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[ "FOURTH SECTION CASE OF R.P.D. v. POLAND (Application no. 77681/01) 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 R.P.D.", "v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrR. Maruste,MrS. Pavlovschi,MrL. Garlicki,MrJ.", "Borrego Borrego,MrsE. Fura-Sandström, 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. 77681/01) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr R.P.D. (“the applicant”), on 15 December 1999.", "The President of the Chamber acceded to the applicant's request not to have his name disclosed (Rule 47 § 3 of the Rules of Court). 2. The Polish Government (“the Government”) were represented by their Agents, Mr K. Drzewicki and subsequently Mr. J. Wołąsiewicz of the Ministry of Foreign Affairs. 3. The applicant alleged, in particular, that the length of the proceedings in his case exceeded a “reasonable time”.", "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 8 April 2003 the Court declared the application admissible.", "6. The applicant and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1981 and lives in Lublin, Poland.", "8. The applicant underwent a heart operation in the Child Health Centre Hospital (Centrum Zdrowia Dziecka) in Warsaw-Międzylesie from 11 April to 27 May 1988. In May and June 1995 the applicant had been diagnosed with jaundice, which he considered to be a result of medical negligence. 9. On 10 September 1996 the applicant's mother filed an action for damages on his behalf with the Warsaw Regional Court (Sąd Wojewódzki) against the Child Health Centre Hospital.", "The applicant claimed that he had contracted jaundice during his stay in the hospital in 1988. In addition, he claimed that as a result of medical negligence he suffered from complications, including heart arrhythmia. 10. In March 1997 the defendant's counsel submitted his pleadings to the court. On 1 June 1997 the applicant's mother asked the court to adjourn the hearing until 30 June 1997 so that she would have sufficient time to prepare a reply to the defendant's submissions.", "11. The first hearing was held on 20 November 1997. On 11 December 1997 the applicant submitted his pleadings to the court. 12. On 7 September 1998 the applicant asked to be granted legal aid.", "On 8 September 1998 the court granted his request and decided that the Warsaw Regional Bar would designate a lawyer for him. 13. On 29 September 1998 the applicant increased his claim. 14. The hearing listed for 5 October 1998 was adjourned at the request of the applicant's mother, since the Warsaw Regional Bar had not complied with the court's decision of 8 September 1998.", "The court again requested the Warsaw Regional Bar to designate a lawyer for the applicant. 15. On 16 December 1998 the court held a hearing. The applicant's counsel asked the court to order an expert opinion. On 11 February 1999 the court ordered an expert opinion from a panel of doctors (a cardiologist and an epidemiologist).", "On 24 March and 16 April 1999 respectively, the experts submitted their opinions to the court. On 15 May 1999 the applicant challenged both reports. 16. In her pleadings of 16 December 1999, the defendant's counsel argued that the Child Health Centre Hospital could not be a defendant in the case because it did not have standing in the proceedings and that the proper defendant should be the Minister of Health (Minister Zdrowia). 17.", "On 13 March 2000 the court held a hearing. On 24 March 2000 the court summoned the Minister of Health (representing the State Treasury) to join the proceedings as a defendant. On 9 October 2000 the Warsaw Regional Court changed its decision of 24 March 2000 and summoned the Governor of Mazowsze as a defendant. 18. On 18 April 2001 the Regional Court ordered yet another expert to prepare an opinion.", "On 11 February 2002 the expert submitted his opinion to the court. 19. On 6 January 2004 the Warsaw Regional Court gave partial judgment. The defendant lodged an appeal with the Warsaw Court of Appeal. 20.", "On 23 June 2004 the Court of Appeal quashed the first-instance judgment and remitted the case. The proceedings are pending before the Warsaw Regional Court. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 21. The applicant complained that the length of the proceedings in his 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 22. The period to be taken into consideration began on 10 September 1996 and in the light of the material available to the Court at the date of the adoption of the present judgment has not yet ended. It thus has already lasted 8 years. B. Reasonableness of the length of the proceedings 1.", "The Government's submissions. 23. The Government alleged that the case had been complex, as the trial court needed to obtain four expert reports. They submitted that the defendant in the proceedings had been changed twice, and this also prolonged the proceedings. 24.", "They further claimed that the authorities had shown due diligence in the case. 25. The Government admitted that the applicant had not significantly contributed to the length of the proceedings. Nevertheless, they were of the view that he had contributed to some extent to the prolongation of the proceedings as he had challenged the expert reports on three occasions. 26.", "Lastly, they were of the view that what had been at stake for the applicant in the proceedings had been of a purely pecuniary nature. 27. In conclusion they invited the Court to find that there had been no violation of Article 6 § 1 of the Convention. 2. The applicant's submissions 28.", "The applicant argued that his case had not been complex and that the medical background had been rather simple. 29. He further claimed that he had not contributed to the length of the proceedings. 30. Referring to what was at stake for him in the proceedings, he maintained that the nature of the claim was of crucial importance to him as it concerned compensation for medical malpractice of which he had been a victim.", "He claimed that the financial compensation could have allowed him to have access to a better medical treatment. Therefore, the nature of the claim had required the domestic courts to display “special diligence” in handling his case. 31. Lastly, he invited the Court to find a violation of Article 6 § 1. 3.", "The Court's assessment. 32. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what was at stake for the applicant in the litigation (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; and Humen v Poland, [GC], no. 26614/95, § 60, 15 October 1999).", "33. The Court considers that even though the proceedings involved a certain degree of complexity on account of the need to obtain evidence, it cannot be said that this in itself justified their total length. 34. As regards the conduct of the applicant, the Court observes that the Government acknowledged that the applicant had not significantly contributed to the length of the proceedings (see paragraph 25 above). 35.", "As to the conduct of the national authorities, the Court notes that there were several delays in the proceedings. In particular there was significant delay when no hearing was held between 20 November 1997 and 16 December 1998 (see paragraphs 11 and 15). 36. Lastly, the Court considers that what was at stake in the litigation at issue was undoubtedly of crucial importance for the applicant since they were intended not only to result in compensation for his suffering but also to enable him to receive better medical treatment. 37.", "Consequently, having regard to the circumstances of the case and taking into account what was at stake for the applicant in the proceedings, the Court finds that the “ reasonable time” requirement laid down in Article 6 § 1of the Convention was not complied with in the present case. 38. There has accordingly been a violation of Article 6 §1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 39.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 40. The applicant sought an award of PLN 32,400 in respect of pecuniary damage. He further claimed the sum of PLN 100,000 for non-pecuniary damage that he suffered as a result of the protracted length of the proceedings. 41.", "The Government submitted that the applicant's claims were excessive and that there had been no causal link between the length of the proceedings and the amount claimed. 42. As regards the pecuniary damage, the Court's conclusion, on the evidence before it, is that the applicant has 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 him under that head (see, mutatis mutandis, Kudła v. Poland [GC], no. 30210/96, § 164, ECHR 2000-XI).", "43. The Court further considers that the applicant certainly suffered non-pecuniary damage, such as distress and frustration on account of the protracted length of the proceedings, which cannot sufficiently be compensated by finding a violation. Taking into account the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant a total sum of 5,500 euros (“EUR”) under that head. B. Costs and expenses 44.", "The applicant also claimed 12,340 Polish zlotys for the costs and expenses incurred before the domestic courts and the Court. 45. The Government contested the claim. 46. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum.", "In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses. C. Default interest 47. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 § 1 of the Convention; 2.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 5,500 (five thousand five hundred euros) in respect of non-pecuniary damage, to be converted into Polish zlotys at a rate applicable at the date of the settlement, plus any tax that may be chargeable 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 applicant's claim 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" ]

[ "FOURTH SECTION CASE OF PABLA KY v. FINLAND (Application no. 47221/99) JUDGMENT STRASBOURG 22 June 2004 FINAL 22/09/2004 In the case of Pabla Ky v. Finland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrM. Pellonpää,MrsV. Strážnická,MrR. Maruste,MrS.", "Pavlovschi,MrL. Garlicki,MrJ. Borrego Borrego, judges,and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 16 December 2003 and 1 June 2004, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 47221/99) 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 partnership company, Pabla Ky, (“the applicant company”), on 2 November 1998.", "2. The applicant company was represented by Mr Hans Mannstén, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen, Director, Ministry of Foreign Affairs. 3. Relying on Article 6 § 1 of the Convention, the applicant company alleged that the court of appeal which had sat in the civil proceedings in which it was a party had not been independent or impartial since one of the judges was a member of parliament,.", "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 16 September 2003, the Chamber declared the application admissible.", "6. The applicant company 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 FACTS I. THE CIRCUMSTANCES OF THE CASE 7.", "The applicant is a limited partnership company founded in 1986 and based in Helsinki. 8. The applicant company, which was running a restaurant in Helsinki, rented the restaurant premises from an insurance company, Keskinäinen Henkivakuutusyhtiö Suomi (KHS). In 1994 it was offered the opportunity to rent more premises, which would be renovated to be suitable for restaurant use. When the renovation was finished, the applicant company found that there were excessive toilet facilities and that part of the planned restaurant facilities were missing, especially those planned to be built in the cellar.", "The applicant company paid 251,000 Finnish marks (approximately 42,200 euros) for the renovation expenses and the monthly rent was raised considerably. The amended rent contract had been signed before the extension work commenced. 9. In 1997 the applicant company instituted civil proceedings against KHS before a Division of the Helsinki District Court (käräjäoikeus, tingsrätt) known as “the Housing Court” (asunto-oikeus, bostadsdomstolen). The applicant company claimed that there had been a breach of the rent contract, as the newly renovated facilities did not correspond to the original plan, on the basis of which the applicant company had signed the amended rent contract.", "KHS disagreed with the applicant company, arguing that even though there had originally been a plan to build restaurant facilities in the cellar, it had later proved to be impossible to build such an extension and that the applicant company had been aware of this before signing the contract (see paragraph 19 below). 10. On 17 September 1997 the Housing Court found in favour of the insurance company, rejecting the applicant company's action for compensation in accordance with the Act on Commercial Leases. 11. The applicant company appealed to the Helsinki Court of Appeal (hovioikeus hovrätt), requesting that the District Court's decision be quashed.", "On 11 December 1997 the Housing Court Division of the Court of Appeal upheld the District Court's decision without an oral hearing. One of the members of the Court of Appeal, M.P., was a member of the Finnish parliament at the time. He had been an expert member of the Court of Appeal since 1974. From 1987 to 1990 and from 1995 to 1998 he was also a member of parliament. For the latter period the date of election was 19 March 1995.", "12. On 9 February 1998 the applicant company applied to the Supreme Court (korkein oikeus, högsta domstolen) for leave to appeal, complaining, inter alia, about the lack of independence of Judge M.P., who had both legislative functions as a member of parliament and judicial functions as a member of the Court of Appeal. On 5 May 1998 the Supreme Court refused the applicant company leave to appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE 13.", "Under section 9 of the Parliament Act (valtiopäiväjärjestys, riksdagsordning 278/1983), which was in force in 1997, only certain military positions and certain high positions in the judiciary, as well as the duties of officials supervising the lawfulness of government activities, were incompatible with the duties of a member of parliament, but there were no such restrictions as regards membership of a court of appeal. That provision read as follows: “The Chancellor of Justice, the Assistant Chancellor of Justice, a Justice of the Supreme Court or of the Supreme Administrative Court, the Parliamentary Ombudsman and the Assistant Parliamentary Ombudsman may not hold the office of a representative. If a representative is appointed to one of the aforesaid offices or elected Parliamentary Ombudsman or Assistant Parliamentary Ombudsman, his parliamentary mandate shall expire.” This provision corresponds to the existing section 27 of the Constitution (perustuslaki, grundlagen 731/1999). 14. According to section 23 of the State Civil Servants Act (valtion virkamieslaki, statstjänstemannalagen 750/1994), a public official must be absent from office for the period of time he or she performs the duties of a member of parliament.", "15. Under section 29(1) (504/1984) of the Act on Court Proceedings in Cases concerning Rental Matters (laki oikeudenkäynnistä huoneenvuokra-asioissa, lag om rättegång i hyresmål 650/1973), as in force at the relevant time, the court of appeal was required to consider appeals concerning rent contracts as a bench of three judges and two expert members, one of whom represented the views of landlords and the other the views of tenants. The expert members of the court of appeal were appointed by the President of the Republic for a period of four years. Members must be between 25 and 70 years old, and have full legal capacity (section 29(2)). Expert members were required to take an oath (section 31).", "16. The Act on Court Proceedings in Cases concerning Rental Matters was repealed by Act no. 597/2002, which came into force on 1 January 2003. Expert members no longer take part in the proceedings before the district courts or courts of appeal. Instead, the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) applies to the proceedings.", "17. The provisions concerning the disqualification of judges are contained in Chapter 13, section 1, of the Code of Judicial Procedure. At the relevant time the said provision was worded as follows: “If the plaintiff or the defendant wishes to challenge a judge, he shall do so in a proper manner, and that judge shall decide whether or not to stand down. The following shall be the legal grounds for disqualification: where the judge is related by blood or marriage to one of the parties to a degree which would constitute a bar to marriage under Chapter 2 of the (1734) Marriage Code, including cousinship by blood although not by marriage; where the judge is the opposing party or a publicly known “enemy” of a party; where the judge or a listed relative has an interest in the case, where they stand to obtain particular benefit or suffer particular loss in it; where the judge has served as a judge in the case in another court; where the judge has served as an advocate or witness in the case; where the judge has previously, on the orders of a court, decided a part of the case; or where the judge has a similar case pending before another court. If the judge knows that such grounds exist in his regard, even though the parties are not aware of the same, the judge shall stand down of his own accord.” 18.", "The provisions of Chapter 13 of the Code of Judicial Procedure concerning the impartiality of judges were amended by an Act (441/2001) which came into force on 1 September 2001. The government bill (HE 78/2000) contains an extensive account of the existing legislative provisions, the case-law of the European Court of Human Rights and precedents of the Supreme Court concerning the disqualification of judges. The amendment has not changed the Government's assessment of the present case. 19. The Act on Commercial Leases (laki liikehuoneiston vuokrauksesta, lag om hyra av affärslokal 482/1995) was presented as a government bill on 21 November 1994.", "It was adopted on 17 February 1995 and came into force on 1 May 1995. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 20. The applicant company complained about a lack of independence and impartiality as one of the expert members sitting on the Court of Appeal when it was determining its case was also a member of the Finnish parliament. The applicant company relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal...” A.", "The parties' submissions 1. The applicant company 21. The applicant company submitted that while M.P. was a fully qualified member of the Court of Appeal, he was also a member of parliament. According to the theory of the separation of powers, a member of parliament should not act as a judge in an individual case since judicial and legislative powers should not be exercised by one and the same person.", "Thus a court of appeal in which a judge was a member of parliament could not be considered to be independent of the legislature. The applicant company argued that inclusion of members of parliament in the composition of judicial bodies disclosed serious structural problems. 22. The applicant company also pointed out that M.P. was a social democrat, as were the President and Prime Minister at the time.", "It submitted that social democrats considered their relations with insurance companies to be important and that Finnish judges generally favoured big companies as they wished to obtain arbitration assignments for lucrative fees. 2. The Government 23. The Government submitted that M.P. was one of the two expert members of the Court of Appeal, in a composition where the three other members of the court were professional judges and in the majority.", "The provisions in Chapter 13 of the Code of Judicial Procedure concerning the impartiality of judges were also applicable to expert members, who had to take an oath. 24. The Government noted, moreover, that the applicant company had not suggested that the parliament would have interfered in M.P. 's exercise of his duties as an expert member of the Court of Appeal. They considered that the position of a member of parliament was a position of trust which did not entail any statutory or other obstacle to prevent him or her from acting as an expert member of a court of appeal in cases concerning rental matters.", "M.P. had sat as a lay member in rental matters since 1974 and gained extensive expertise. The fact that he was a social democrat was of no relevance to the proceedings. 25. The Government emphasised the fact that the prerequisite for expert members is the same as for judges, that is, the expert member may not have a personal relationship with any party to the proceedings or with the case that would jeopardise his or her impartiality.", "The applicant company alleged that the group of insurance companies to which its adversary belonged offered funding and inexpensive lease contracts to members of parliament and that M.P. was partial because of this. The Government observed in this respect that, according to the Court's constant case-law, a mere suspicion of partiality did not render M.P. partial. The applicant company had neither shown that M.P.", "rented an apartment from the opposite party, nor that he received any funding from them. B. The Court's assessment 1. General principles 26. In order to establish whether a tribunal can be considered “independent” for the purposes of Article 6 § 1 of the Convention, regard must be had, inter alia, to the manner of appointment of its members and their terms of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence.", "27. The “impartiality” requirement has two aspects. Firstly, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. 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.", "In this respect even appearances may be of a certain importance. What is at stake is the confidence that the courts in a democratic society must inspire in the public and above all in the parties to proceedings (see Morris v. the United Kingdom, no. 38784/97, § 58, ECHR 2002-I). 28. The concepts of independence and objective impartiality are closely linked, and the Court will accordingly consider both issues together as they relate to the present case (see Findlay v. the United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 281, § 73, and Kleyn and Others v. the Netherlands [GC], nos.", "39343/98, 39651/98, 43147/98 and 46664/99, § 192, ECHR 2003-VI). 29. This case also raises issues concerning the role of a member of the legislature in a judicial context. Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court's case-law (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002-IV), 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.", "The question is always whether, in a given case, the requirements of the Convention are met. As in the other cases examined by the Court, the present case does not, therefore, require the application of any particular doctrine of constitutional law. The Court is faced solely with the question whether, in the circumstances of the case, the Court of Appeal had the requisite “appearance” of independence, or the requisite “objective” impartiality (see McGonnell v. the United Kingdom, no. 28488/95, § 51, ECHR 2000-II, and Kleyn and Others, cited above, § 193). 30.", "Lastly, it should be borne in mind that in deciding whether in a given case there is a legitimate reason to fear that these requirements have not been met, the standpoint of a party is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see, mutatis mutandis, Hauschildt v. Denmark, judgment of 24 May 1989, Series A no. 154, p. 21, § 48). 2. Application in the present case 31.", "The Court notes, first of all, that there is no indication that M.P. was actually, or subjectively, biased against the applicant company when sitting in the Court of Appeal in its case. The only issue is whether due to his position as a member of the legislature his participation cast legitimate doubt on the objective or structural impartiality of the court which decided the applicant company's appeal. 32. There is no objection per se to expert lay members participating in the decision-making in a court.", "The domestic legislation of the Council of Europe's member States affords many examples of tribunals in which professional judges sit alongside specialists in a particular sphere whose knowledge is desirable and even essential in settling the disputes (see, for example, Ettl and Others v. Austria, judgment of 23 April 1987, Series A no. 117, pp. 18-19, §§ 38-40, and Debled v. Belgium, judgment of 22 September 1994, Series A no. 292-B, p. 43, § 36). The Court observes that M.P.", "had sat on the Court of Appeal as an expert in rental matters since 1974 and had, in the Government's view, acquired considerable experience, permitting him to make a valuable contribution to the adjudication of these types of cases. The Court notes in that regard that two expert members sit alongside a majority of three judges in the composition of the court of appeal in such cases. 33. While the applicant company pointed to M.P. 's political affiliation, the Court does not find that there is any indication in the present case that M.P.", "'s membership of a particular political party had any connection or link with any of the parties in the proceedings or the substance of the case before the Court of Appeal (see, mutatis mutandis, Holm v. Sweden, judgment of 25 November 1993, Series A no. 279-A, pp. 15-16, §§ 32-33). Nor is there any indication that M.P. played any role in respect of the legislation which was in issue in the case.", "The Act on Commercial Leases had been submitted by the government for adoption by the parliament on 21 November 1994 and it had been adopted on 17 February 1995, before M.P. had been elected for his second term of office on 19 March 1995. Even assuming therefore that participation by a member of parliament in, for example, the adoption of a general legislative measure could cast doubt on later judicial functions, it cannot be asserted in this case that M.P. was involved in any other capacity with the subject matter of the applicant company's case through his position as a member of parliament. 34.", "Accordingly, the Court concludes that, unlike the situation it examined in Procola v. Luxembourg (judgment of 28 September 1985, Series A no. 326) and McGonnell ,cited above, M.P. had not exercised any prior legislative, executive or advisory function in respect of the subject matter or legal issues before the Court of Appeal for decision in the applicant company's appeal. The judicial proceedings therefore cannot be regarded as involving “the same case” or “the same decision” in the sense that was found to infringe Article 6 § 1 in the two judgments cited above. The Court is not persuaded that the mere fact that M.P.", "was a member of the legislature at the time he sat on the applicant company's appeal is sufficient to raise doubts as to the independence and impartiality of the Court of Appeal. While the applicant company relies on the theory of separation of powers, this principle is not decisive in the abstract. 35. In these circumstances, the Court is of the opinion that the applicant company's fear as to lack of independence and impartiality of the Court of Appeal, due to the participation of an expert member who was also a member of parliament, cannot be regarded as being objectively justified. Consequently, there has been no violation of Article 6 § 1 of the Convention.", "FOR THESE REASONS, THE COURT Holds by six votes to one that there has been no violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 22 June 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O'BoyleNicolas BratzaRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Mr Borrego Borrego is annexed to this judgment. N.B.M.O'.B. DISSENTING OPINION OF JUDGE BORREGO BORREGO (Translation) I regret that I am unable to agree with the reasoning and the conclusion of the majority in the present case.", "In my opinion, the separation of powers is an essential component of a State based on the rule of law and presupposes the separation of the relevant bodies. As far back as 1980 the European Commission of Human Rights stated: “the term independent, appearing in Article 6 ... [means] that the courts must be independent both of the executive and of the parties..., and... the same independence must be established in respect of the legislature, i.e. Parliament” (see Crociani and Others v. Italy, nos. 8603/79, 8722/79, 8723/79 and 8729/79, Commission decision of 18 December 1980, Decisions and Reports 22, p. 220). Recently, the Court reiterated: “Article 6 § 1 of the Convention requires the courts to be independent not only of the executive and the parties but also of the legislature” (see Filippini v. San Marino (dec.), no.", "10526/02, 26 August 2003). For eight years, from 1987 to 1990 and from 1995 to 1998, M.P. was simultaneously a member of the Helsinki Court of Appeal and a member of the Finnish parliament. In December 1997 M.P., at the time a member of parliament, sat on the bench of the Court of Appeal that dismissed the applicant company's appeal. Is it acceptable for a member of a national parliament to be able to act as a judge at the same time?", "The majority of the Chamber consider that it is: “this principle [of separation of powers] is not decisive in the abstract” (see paragraph 34 of the judgment). Having regard to the circumstances of the present case, the majority conclude that there has been no violation. I would refer here to Montesquieu, father of the theory of separation of powers: “Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge could have the force of an oppressor.” I believe that this is the first time the Court has examined a complaint concerning the simultaneous exercise of legislative and judicial functions by the same person.", "I consider – humbly, as befits a minority voice, yet with strong conviction – that in the present case the requirement of independence of the courts from the legislature, as set forth in our case-law, was not observed. In addition, “the concepts of independence and objective impartiality are closely linked” (see Findlay v. the United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 281, § 73). I can only conclude that the applicant company's concerns about the independence and impartiality of the court that considered its case were objectively justified and that there was a violation of Article 6 § 1 of the Convention." ]

[ "FIFTH SECTION CASE OF BUDREVICH v. THE CZECH REPUBLIC (Application no. 65303/10) JUDGMENT STRASBOURG 17 October 2013 FINAL 17/01/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Budrevich v. the Czech Republic, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President, Angelika Nußberger, Boštjan M. Zupančič, Ganna Yudkivska, André Potocki, Paul Lemmens, Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 24 September 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "65303/10) 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 Belarusian national, Mr Andrei Budrevich (“the applicant”), on 9 November 2010. 2. The applicant was represented by Ms H. Franková, a lawyer with the Organization for Aid to Refugees (“the 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, that he had had no effective remedy within the meaning of Article 13 of the Convention against his expulsion. 4. On 9 November 2010 the President of the Section decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to remove the applicant to Belarus. 5. On 20 September 2012 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1979. In October 2006, using an assumed name, he left Belarus and entered the Czech Republic, where he currently resides. He was a party to numerous proceedings in the Czech Republic, of which the relevant ones are described below.", "7. The applicant’s true name was revealed in December 2009 when the Czech police sent his fingerprints to the Belarus police for identification. A. Asylum proceedings 1. The first asylum request 8. On 28 October 2006 the applicant, using an assumed name, requested asylum in the Czech Republic.", "He explained that he had left Belarus in October 2006 because of pressure from the State authorities in connection with the fact that he had imported advertisements in support of the opposition candidate in the presidential elections, Aliaxandr Milinkevich. The applicant asserted that he had been detained for forty-five days and fined, and that his car and passport had been confiscated. Moreover, several searches had been carried out at his house. Following his departure from the country, police had repeatedly visited his home and warned his mother and sister that criminal proceedings would be initiated against him. Thus, he feared imprisonment in Belarus for cooperation with an illegal political party.", "9. On 6 September 2007 the applicant’s asylum request was rejected by the Czech Ministry of the Interior. The Ministry had carried out a detailed analysis of the applicant’s situation and come to the conclusion that his allegations were contradictory and not credible. It noted, inter alia, that although the applicant might have originally been prosecuted and convicted for importing advertisements in support of the opposition candidate in the presidential election, this had only been a one-off activity carried out for a financial reward and the applicant had not been politically active in Belarus. Moreover, he had not made any attempt to lodge a criminal complaint against the persons who had allegedly pressurised him, or to move to another part of the country.", "Further, the applicant had already been punished on that account and did not have any political engagement in his country. There was nothing to indicate that he would face any new risk if he returned to Belarus. 10. On 22 May 2008, the Hradec Králové Regional Court upheld that decision. It found, inter alia, that the events referred to by the applicant were not serious enough to amount to “persecution for upholding political rights and freedoms” since the applicant had also had problems with the police in connection with the importing of other goods.", "11. On 10 June 2009 the Supreme Administrative Court dismissed a cassation appeal by the applicant on the ground that he had failed to specify the reasons for his appeal. This was because the applicant could not be reached by his lawyer, who stated that he could not complete the grounds of appeal without discussing them with the applicant. The Supreme Administrative Court considered that the applicant had been obliged to duly cooperate with his lawyer or to bear the consequences of his passivity. 2.", "The second asylum request 12. On 21 January 2010 the applicant lodged another asylum request on the ground that if returned to Belarus he would be prosecuted by the police and punished for having sought asylum in the Czech Republic. During his interview on 21 January 2010 he declared that he was not aware of any on-going criminal proceedings against him in Belarus. The proceedings were terminated by the Ministry of the Interior on 3 February 2010 on the ground that it was a repeated request and there were no new circumstances. 13.", "The decision was upheld by the Plzeň Regional Court on 13 September 2010. The court rejected the applicant’s argument that the Ministry had known about a pending extradition request concerning the applicant in connection with an allegedly fabricated criminal prosecution in Belarus but had failed to take it into account. The court held, inter alia, as follows: “...only during the examination of the applicant’s renewed asylum request was the Ministry of the Interior informed of the fact that the applicant was being sought on the national level in Belarus for drug trafficking ... and that a preliminary examination was being carried out into an extradition request in connection with criminal proceedings in Belarus. The court is of the opinion that under such circumstances the Ministry did not proceed erroneously given that it only asked the applicant whether he was aware that he was being prosecuted in Belarus (response: “No, I do not know anything about that.”) and left any other steps to the competent authorities in the Czech Republic. Indeed, a repeated asylum request is ... inadmissible when the foreigner does not provide any new facts or findings which were not, for reasons for which the foreigner is not to blame, examined in previous proceedings which have already ended, but not when the administrative authority does not of its own motion re-examine any potential indication which would justify the granting of asylum.", "Therefore, the argument regarding the extradition request of Belarus cannot be regarded as well-founded.” 14. In his cassation appeal the applicant stated that he had not been aware of the new prosecution in Belarus for drug-related offences either during the first asylum proceedings or when he lodged his second asylum request. Indeed, he had become aware of it only when the Plzeň Regional Prosecutor informed him of the extradition request lodged by the Belarusian authorities (see below). He stressed, however, that the Ministry had been aware of his new prosecution in Belarus when it examined his second asylum request, as was demonstrated by the Plzeň Regional Court’s decision quoted above. 15.", "On 28 February 2011 the Supreme Administrative Court quashed the Plzeň Regional Court’s decision of 13 September 2010. It considered that the Ministry - which had known about the extradition request lodged by the Belarusian authorities when it examined the second asylum request - should have informed the applicant about it and not merely asked him whether he was aware of it. The Ministry’s decision had been insufficiently reasoned since it had not examined the question whether the new criminal prosecution and the extradition request constituted a new circumstance rendering a new examination of the merits of the asylum request necessary. 16. On 18 May 2011 the Plzeň Regional Court, in application of the Supreme Administrative Court’s decision, quashed the Ministry’s decision of 3 February 2010 and remitted the case to the Ministry.", "17. On 22 December 2011 the Ministry of the Interior, referring to its decision of 17 October 2011 in the fourth set of asylum proceedings (see below), terminated the proceedings. It stated that the same right, that is international protection, could not be granted twice. It further stated that the applicant had not lodged an action against the decision of 17 October 2011, which had become final on 19 November 2011 (see below). It was, however, not aware that the applicant had in fact challenged that decision.", "18. On 14 December 2012 the appeals commission of the Ministry of the Interior quashed the decision to terminate the proceedings. 19. On 1 February 2013 the proceedings were again terminated on the ground of litispendence on account of the ongoing proceedings concerning the applicant’s fourth request for asylum. The applicant did not challenge that decision.", "3. The third asylum request 20. On 29 September 2010 the applicant lodged another asylum request, in which he mentioned that a fabricated criminal prosecution had been brought against him in Belarus in 2006. 21. The Ministry of the Interior rejected the request on 30 September 2010 pursuant to Section 10a(e) of the Asylum Act, on the ground that it was a repeated request and that there were no new circumstances.", "The Ministry noted that the applicant had not previously alleged that charges against him had been fabricated or that criminal proceedings had been initiated against him in Belarus. These circumstances had, however, been known to the applicant during the previous asylum proceedings since he had stated that he had left Belarus precisely because of the fabricated charges against him. According to the Ministry, these circumstances should have been raised by the applicant in his previous requests and therefore could not be examined at this stage. 22. An attempt was made to serve the decision on the applicant in person on 1 October 2010.", "However, he refused to take receipt of it because his lawyer was not present and nor was an interpreter. 23. On 21 October 2010 the applicant requested judicial review of the decision. He maintained that the decision had not been validly delivered to him. 24.", "On 13 January 2011, the Prague Municipal Court rejected the applicant’s action in respect of that decision as belated. The court held that the Ministry’s decision had been validly served on the applicant on 1 October 2010, despite the latter’s refusal to take receipt of it. According to the court, the case-file had not contained any power of attorney; consequently, it had been possible to validly deliver the decision directly to the applicant instead of to his lawyer. Nor had the presence of an interpreter been necessary since the applicant had submitted his asylum request in the Czech language and he had informed the Ministry that he was able to communicate in that language. 25.", "On 2 February 2011 the applicant lodged a cassation appeal. 26. On 31 May 2011 the Supreme Administrative Court found that the Ministry’s decision had not been validly served upon the applicant because it should have been served also on his lawyer. Accordingly, it quashed the Municipal Court’s decision. 27.", "On 1 February 2013 the proceedings were terminated on the ground of litispendence on account of the ongoing proceedings concerning the applicant’s fourth request for asylum. The applicant did not challenge that decision. 4. The fourth asylum request 28. On 22 November 2010 the applicant lodged a fourth asylum request referring to the reasons given in his previous asylum applications.", "29. On 17 October 2011 the Ministry of the Interior rejected the request for asylum, considering that the applicant did not face any persecution in Belarus within the meaning of section 12 of the Asylum Act. It considered, however, that in the light of the developments in Belarus following President Lukashenko’s re-election, it could not exclude that the applicant would face a real risk of inhuman or degrading treatment upon his return. Therefore, the applicant was granted subsidiary protection under section 14a of the Asylum Act for one year from the date the decision became final (19 October 2011). 30.", "The applicant requested judicial review of that decision before the Hradec Králové Regional Court, arguing that he should have been granted asylum and not only subsidiary protection. 31. On 27 February 2013 the Regional Court rejected the action, endorsing the assessment of the applicant’s situation by the Ministry. 32. In the meantime, on 9 August 2012 the applicant applied for an extension of his subsidiary protection granted on 17 October 2011.", "33. On 3 June 2013 the Ministry granted that extension for twenty-four months because the situation in Belarus had not improved. The decision took effect on 11 June 2013 when it was delivered to the applicant. B. Criminal proceedings and decisions on the applicant’s expulsion 1.", "Proceedings before the Prague 10 District Court 34. On 14 February 2008 the Prague 10 District Court found the applicant guilty of the attempted theft of a mobile phone from a shop. He was sentenced to four months’ imprisonment, suspended for eighteen months. 35. On 5 November 2008 the Prague 10 District Court found the applicant guilty of the theft of three pairs of shoes and sentenced him to expulsion from the territory of the Czech Republic for a period of thirty months.", "The applicant did not appeal against that decision. 36. On 9 September 2010 the applicant requested the suspension of the execution of the above expulsion on the ground that he would face prosecution for a fabricated criminal offence and risked a violation of his rights under Articles 3 and 6 of the Convention. He also referred to the Plzeň Regional Court’s refusal to authorise his extradition (see extradition proceedings below), and informed the District Court that he had lodged another asylum request. 37.", "On 23 September 2010 the District Court granted the applicant’s request for his expulsion to be stayed pending the decision on his asylum request. 38. According to the applicant he should have been expelled on 4 October 2010. The removal did not take place because before boarding the plane the applicant unsuccessfully attempted to commit suicide by cutting his neck. 39.", "On 25 October 2010 the District Court cancelled the suspension of the applicant’s expulsion, referring to the dismissal of his asylum request by the Ministry of the Interior on 30 September 2010 which had terminated the third asylum proceedings. The decision was delivered to the applicant on 5 November 2010. 40. On 9 November 2010 the applicant appealed to the Prague Municipal Court. 41.", "On 10 November 2010 the District Court again stayed the expulsion, in compliance with the Court’s request under Rule 39 not to proceed with the expulsion until further notice. The District Court did not give any time-limit for the duration of the suspension. 42. On 13 January 2011, the Prague Municipal Court rejected the applicant’s appeal of 9 November 2010 as belated. That decision was served on the applicant in April 2011.", "The court found that the applicant had received the challenged decision on 5 November 2010 and thus the last day to lodge an appeal had been 8 November 2010. 2. Proceedings before the Prague 5 District Court 43. On 3 October 2008 the Prague 5 District Court found the applicant guilty of the theft of a jacket. It sentenced him to ten months’ imprisonment, suspended for three years.", "3. Proceedings before the Prague 8 District Court 44. On 13 March 2009 the Prague 8 District Court found the applicant guilty of another theft of an electronic device. The previous sentence given on 14 February 2008 by the Prague 10 District Court was quashed and superseded by a sentence of one year’s imprisonment and expulsion from the territory for five years. The court took into account that the applicant’s first asylum request had been rejected.", "During the proceedings the applicant admitted that he had been a regular drug user. In particular, he had been using heroin for the past seven years. 45. The applicant served his prison sentence from December 2008 to 4 October 2010. 46.", "The execution of the sentence of expulsion was stayed on 11 November 2010 in accordance with the interim measure issued by the Court. According to the Government, this sentence cannot be executed prior to the execution of the previous sentence of expulsion of 5 November 2008 issued by the Prague 10 District Court (see paragraph 35 above). C. Extradition proceedings 47. On 26 November 2009 Belarus requested the applicant’s extradition for the purpose of his prosecution for drug-related offences. In early December 2009 the Plzeň Regional Prosecutor informed the applicant of the request, a fact which the applicant disclosed in his interview in the context of the fourth asylum proceedings.", "48. On 28 January 2010 the prosecutor officially notified the applicant of the initiation of the extradition proceedings. 49. On 23 April 2010 the Plzeň Regional Court found the request for the applicant’s extradition to Belarus inadmissible because there existed reasonable fears that the criminal proceedings brought against him in Belarus would violate his rights under Articles 3 and 6 of the Convention. It relied on a report by the Ministry of Foreign Affairs of the Czech Republic and two reports by Human Rights Watch and Amnesty International provided by the United Nations High Commissioner for Refugees.", "These reports attested, with regard to Belarus, to the continuing persecution and short-term detention of persons for political reasons; lack of independence on the part of the judiciary; inhuman conditions of detention; ill-treatment by police; and regular violations of the right to a fair trial. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Asylum Act (no. 325/1999) 50. Under section 10a(e) a repeated asylum request is inadmissible when lodged by the alien after previous proceedings have been terminated if it does not contain any new facts or findings which were not, for reasons for which the alien is not to blame, examined in the previous proceedings.", "51. Under section 12 asylum is granted to an alien if it is established in the proceedings that the alien has been persecuted for exercising political rights and freedoms, or has a well-founded fear of being persecuted for reasons of race, sex, religion, nationality, or membership of a particular social group or political opinion in the country of which he or she is a citizen or, in case of a stateless person, in the country of his or her last permanent residence. 52. Under section 14a (1) and (2) (b) and (d), subsidiary protection may be granted to an alien who does not fulfil the criteria for asylum if it has been established in the course of the proceedings on the granting of international protection that well-founded concerns exist in his or her case, or that, if returned to the State of citizenship, the alien would face a real risk of serious harm in the form of inhuman or degrading treatment or punishment, or if it would contravene the international obligations of the Czech Republic, and if the alien is unable or, on account of such risk, unwilling to avail him or herself of the protection of the State of which he or she is a citizen, or of the State of his or her last permanent residence. 53.", "Under section 32, lodging a request for judicial review of a decision of the Ministry concerning asylum does not have suspensive effect if the proceedings were discontinued because the asylum request was inadmissible under Section 10a(e). 54. Under section 53a (1) and (4), subsidiary protection is granted for the period for which the beneficiary of subsidiary protection is at risk of serious harm (see section 14a), and at least for one year. The beneficiary of subsidiary protection is granted a residence permit for the territory [of the Czech Republic] for the period set out in the decision granting subsidiary protection. If the beneficiary of subsidiary protection continues to be at risk of serious harm and if no reasons for withdrawing the subsidiary protection arise, the Ministry must extend the subsidiary protection period, and the extension must be under normal circumstances for at least two years.", "55. Under paragraph 5 of that provision if the Ministry fails to decide on the application for extension within the period of validity of the residence permit, the validity of the permit must be extended until the day the decision of the Ministry becomes final. B. Criminal Code (Act no. 40/2009) 56.", "Under Article 80 § 3 a sentence of expulsion is inadmissible if, inter alia, the person has been granted asylum or subsidiary protection, or if there is a risk that the offender will be persecuted on account of his race, ethnicity, nationality, belonging to a social group, or political or religious beliefs in the State of return, or if he could be exposed to torture or other inhuman or degrading treatment or punishment. C. Code of Criminal Proceedings (Act no. 141/1961) 57. Under Article 350b § 4, where a person sentenced to expulsion requests asylum and that request is not clearly manifestly unfounded, the president of the chamber considering the case must suspend the execution of the expulsion, at the person’s request or of his own motion. Under § 5 of the same provision a sentence of expulsion cannot be executed during the period for which the person has been granted subsidiary protection.", "58. Under Article 350h if after the adoption of a judgment imposing a sentence of expulsion circumstances under which that sentence is inadmissible will arise, the court shall waive the sentence of expulsion. 59. Under Article 393(k) an extradition request cannot be granted if there are reasonable fears that criminal proceedings in the requesting State will violate Articles 3 and 6 of the Convention or that imprisonment in that State will not be executed in compliance with Article 3 of the Convention. III.", "Relevant international material concerning the human rights situation in Belarus 60. The relevant international material concerning the human rights situation in Belarus are set out in the Court’s judgments in Y.P. and L.P. v. France, no. 32476/06, §§ 37-45, 2 September 2010, and Kozhayev v. Russia, no. 60045/10, §§ 55-60, 5 June 2012.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 61. The applicant complained that he faced a real risk of ill-treatment in Belarus and therefore his expulsion would violate Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 62. The Government contested that argument and maintained that the applicant had lost his victim status as he had been granted subsidiary protection and the expulsion could therefore not be executed. 63.", "The applicant maintained that he was still a victim because the expulsion had been enforceable and had only been prevented by his unsuccessful suicide attempt and then the Court’s interim measure. That violation of Article 3, which had already occurred, had not been recognised by the domestic authorities. Furthermore, he had not been granted asylum but only temporary subsidiary protection. 64. The Court reiterates that in cases concerning threatened expulsion or extradition it does not examine the question whether a violation has already happened but whether it would happen were the removal executed (see the operative parts of the judgments in, for example, Soering v. the United Kingdom, 7 July 1989, Series A no.", "161, and, more recently, Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, 28 June 2011). Therefore, contrary to the applicant’s argument, what is at issue in this case is not a violation that has already materialised but a prospective violation in the event that the applicant is removed to Belarus. 65. It follows that the relevant time for considering such a complaint, when the applicant has not yet been removed, is when the Court examines the case (see, for example, Mamatkulov and Askarov v. Turkey [GC], nos.", "46827/99 and 46951/99, § 69, ECHR 2005‑I). The Court must thus assess whether the applicant can still be considered a victim at the present time. 66. In this context, the Court reiterates that the word “victim” in Article 34 of the Convention denotes the person directly affected by the act or omission in issue. In other words, the person concerned must be directly affected by it or run the risk of being directly affected by it.", "It is not therefore possible to claim to be a “victim” of an act which is deprived, temporarily or permanently, of any legal effect (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 92, ECHR 2007‑I). In cases where the applicants faced expulsion or extradition the Court has consistently held that an applicant cannot claim to be the “victim” of a measure which is not enforceable. It has adopted the same stance in cases where execution of the deportation or extradition order has been stayed indefinitely or otherwise deprived of legal effect and where any decision by the authorities to proceed with deportation can be appealed against before the relevant courts (see Nasrulloyev v. Russia, no. 656/06, § 59, 11 October 2007, with further references, and Dobrov v. Ukraine (dec.), no.", "42409/09, 14 June 2011). 67. Turning to the present case, the Court notes that on 3 June 2013 the Ministry of the Interior extended the subsidiary protection of the applicant for twenty-four months. The granting of subsidiary protection constitutes a bar to execution of an expulsion under Article 350b of the Code of Criminal Procedure (see paragraph 57 above). Consequently, the applicant does not currently face a risk of expulsion.", "68. The Court observes that at the end of the twenty-four-month period the applicant will be able to request a further extension of the subsidiary protection, and to lodge an appeal if his request is rejected. During those proceedings he will have a valid residence permit. The applicant will thus have access to proceedings in which his claim of a risk of ill-treatment in Belarus will again be assessed at the end of his subsidiary protection (see Ghosh v. Germany (dec.), no. 24017/03, 5 June 2007, where the Court considered it important that before a possible repeated attempt to execute his extradition the applicant would have access to a procedure in which his claim of possible ill-treatment in the target country would be newly assessed).", "69. Moreover, there is nothing to prevent the applicant from applying in the meantime for a waiver of the sentence of expulsion under Article 350h of the Code of Criminal Procedure (see paragraph 58 above). Furthermore, when the term of his subsidiary protection comes to an end the applicant will be able to lodge a new application with the Court and request an interim measure. 70. In view of these considerations, the Court concludes that the applicant lost his victim status when he was granted subsidiary protection (see also I.M.", "v. France, no. 9152/09, § 95, 2 February 2012). 71. In response to the applicant’s argument, the Court adds that the Convention does not require any particular form of protection but only that a person should not be removed to a country where he or she would face a real risk of treatment contrary to Article 3 of the Convention. Consequently, the argument of the applicant that the protection he was afforded was only temporary is misconceived and is not relevant from the point of view of Article 3 of the Convention.", "72. 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. II. RULE 39 OF THE RULES OF COURT 73. The Court reiterates that a decision to declare a complaint inadmissible is final and not subject to any appeal to either by the Court or by any other body (see, for example, De Souza Ribeiro v. France [GC], no.", "22689/07, § 51, ECHR 2012). Moreover, in the present case the applicant does not currently face a risk of expulsion (see, conversely, Singh and Others v. Belgium, no. 33210/11, 2 October 2012). 74. In these circumstances, the Court considers it appropriate to discontinue the interim measure indicated to the Government under Rule 39 of the Rules of Court (see paragraph 4 above).", "III. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION 75. The applicant complained that he had had no effective remedy at the relevant time against his expulsion to Belarus. He relied on Article 13 of the Convention, which reads: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 76. The Government contested that argument.", "A. Admissibility 77. The Government, referring to their arguments under Article 3 of the Convention that that complaint was manifestly ill-founded because the applicant had lost his victim status under Article 34 of the Convention, maintained that Article 13 of the Convention was inapplicable. In their view, a manifestly ill-founded claim of a violation of the Convention could not be considered arguable for the purposes of Article 13. 78. The applicant argued that he had not had an effective remedy at the decisive points when he became aware of new relevant facts, in particular the extradition request and the decision of the Plzeň Regional Court not to allow his extradition because of the risk of violations of Articles 3 and 6 of the Convention.", "79. 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 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. do so (see, among many other authorities, Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 53, ECHR 2007‑II).", "80. In the above-mentioned case the Court found a complaint under Article 13 in conjunction with Article 3 of the Convention concerning an expulsion admissible even though it found the Article 3 complaint inadmissible as the applicant had lost his victim status owing to a subsequent granting of asylum. It noted that the alleged violation of Article 13 had already occurred at the time the threat of the applicant’s removal was lifted, and that the State had not acknowledged, either expressly or in substance, and then afforded redress for, the alleged breach of the Convention (see Gebremedhin [Gaberamadhien], cited above, § 56, and similarly I.M. v. France, cited above, § 100). 81.", "The Court considers that the same conclusions apply in the present case. The applicant argued that the violation of Article 13 had occurred at the time of lodging the application. Therefore, the question that needs to be examined is whether his claim under Article 3 of the Convention was arguable at that time. A subsequent loss of victim status under Article 3 cannot automatically and retrospectively dispense the State from providing effective remedies in the preceding period. 82.", "In this context, the Court observes that the Plzeň Regional Court concluded on 23 April 2010 that the applicant could not be removed to Belarus because there was a real risk of violation of his rights under Articles 3 and 6 of the Convention there (see paragraph 49 above). Furthermore, by an internal instruction, the Minister of the Interior of the Czech Republic decided not to carry out any expulsion of persons to Belarus from 22 December 2010 owing to continuing reprisals by President Lukashenko’s regime, which implies that such a situation must have existed before December 2010. The Court also takes into account the relevant international material. Accordingly, the applicant’s claim that he would run a real risk of treatment contrary to Article 3 of the Convention in Belarus was arguable between 23 April 2010 and 9 November 2010, when he lodged his application with the Court. 83.", "The Court thus considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, or inadmissible on any other ground. It must therefore be declared admissible. B. Merits 1. Arguments of the parties 84.", "The Government firstly stressed that an applicant who was refused asylum was not expelled on the basis of that refusal (or on discontinuation of the asylum proceedings), but on the basis of a decision on his expulsion. Each of the two sets of proceedings was autonomous and had its own remedies, usually with suspensive effect. In both criminal and administrative expulsion proceedings, the risk of serious harm was examined and the expulsion could not be carried out if there were justified reasons to fear that the risk was real. 85. In their view, the applicant, who was to be expelled on the basis of his criminal sentence of expulsion had had at least three types of remedies at his disposal by means of which he could have obtained a review of his claims under Article 3 of the Convention.", "These were, firstly, the ordinary and extraordinary remedies that applied to criminal proceedings, then asylum proceedings, and, finally, a waiver of the expulsion sentence under Article 350h of the Code of Criminal Procedure. 86. In the context of the criminal proceedings, the applicant had had the option of lodging standard appeals against the criminal judgments that would have had suspensive effect. Furthermore, a complaint against the Prague 10 District Court’s order of 25 October 2012 cancelling the stay of the expulsion sentence would also have had automatic suspensive effect. The applicant could have lodged a complaint against the decision without any substantiation and he could have supplemented it later following consultation with his counsel.", "87. The Government further noted that in the context of the asylum proceedings the applicant had mentioned the crucial information of his allegedly fabricated criminal prosecution in Belarus only in his third asylum request in September 2010, although it appeared from his statements that he had already been aware of it at the time of his departure from Belarus in 2006. In any case it was clear that the applicant had received the information about his prosecution on 28 January 2010 in the official notification that the prosecutor had initiated extradition proceedings against him. However, the applicant had not informed the Ministry of the Interior of that fact during the then pending second asylum proceedings. In any case, even in the asylum proceedings the applicant had ultimately had an effective remedy because in both the second and third asylum proceedings he had been successful in his cassation appeals.", "88. Moreover, the fact that the administrative action against the decision on his second application for asylum had not had suspensive effect was irrelevant because at the time of bringing the action the applicant had already been serving his sentence of imprisonment, of which he still had six months left, and during that period it was not possible to expel him. The applicant therefore had not faced any immediate danger. 89. Lastly, the Government maintained that the applicant could have instituted proceedings for a waiver of the expulsion sentence under Article 350h of the Code of Criminal Procedure.", "In the course of the enforcement of an expulsion sentence, a court was obliged to take into consideration the possible emergence or existence of circumstances relevant to a waiver of the execution of the sentence. A criminal court’s duty to assess an applicant’s case from the perspective of Article 3 of the Convention was therefore not limited by the coming into effect of a decision imposing a sentence of expulsion. 90. Having been granted subsidiary protection, the applicant should have lodged an application for a waiver of the sentence of expulsion, which would most probably have been granted. In the event of a court’s negative decision on such an application, the applicant could have lodged a complaint which would have had automatic suspensive effect.", "91. In sum, the Government contended that at the decisive points in the criminal and asylum proceedings the applicant had benefited from an automatic suspensive effect at all levels of the proceedings, with the exception of the inadmissible repeated applications for asylum. With regard to Article 350b of the Code of Criminal Procedure, the asylum proceedings as a whole had also satisfied the Court’s requirement of automatic suspensive effect because the execution of the expulsion sentence had been stayed on the grounds of the pending asylum proceedings. 92. The Government added that the applicant had failed to lodge a constitutional appeal, which was also an effective remedy, as was clear from the Court’s recent case-law in cases against the Czech Republic.", "93. The applicant maintained that the Czech legal system had not offered him any effective opportunity to contest his expulsion at the decisive points when he became aware of new relevant facts, in particular the Belarus extradition request and the decision by the Plzeň Regional Court that his extradition was not allowed because of the risk of violations of Articles 3 and 6 of the Convention. 94. He considered it irrelevant that it had been open to him to appeal against the criminal judgments in which he had been sentenced to expulsion because they had been delivered before the decisive time when, according to him, there had been a real risk of his treatment contrary to the Convention in Belarus. 95.", "Regarding the remedies under the Code of Criminal Procedure in the context of the enforcement of the expulsion sentence, the applicant argued that neither a request to stay the expulsion under Article 350b nor a request for a waiver under Article 350h had automatic suspensive effect. Accordingly, it was immaterial that a possible appeal against those decisions would have had suspensive effect. Furthermore, pending asylum proceedings were not an automatic obstacle to the execution of a sentence of expulsion under Article 350b except for those that the criminal court assessed as not manifestly unfounded. 96. The applicant further maintained that the three-day time-limit for lodging an appeal against the Prague 10 District Court’s decision of 25 October 2010 cancelling the suspension of his expulsion (see paragraph 39 above) had been too short and made that legal avenue ineffective.", "He had been detained while awaiting his expulsion on Friday 5 November 2010 when he received the decision, written in what was for him a foreign language. The deadline for appeal had expired on Monday 8 November 2010. Owing to the restrictions on making a phone call (it was necessary to make a special written request in order to use the telephone), he had been unable to contact his lawyer in due time. Moreover, a return call could not be directly transferred to the applicant without a prior written request. He had therefore forwarded the decision to his lawyer by regular post, but the lawyer had received it only on 9 November 2010.", "Even though the lawyer had lodged the appeal on the same day, it had been considered belated. 97. Further, even if the appeal had not been rejected as belated, it could not be deemed to be an effective remedy since the criminal courts were not equipped to examine the situation in the country of origin. Such an examination could only be carried out by the Ministry of the Interior. 98.", "Asylum proceedings had also proved not to be an effective remedy at the decisive points because both his second and third asylum proceedings had been terminated without a decision on the merits. The requests for judicial review of those decisions had had no suspensive effect. It was therefore immaterial that the he had in fact been successful with his requests for judicial review because at the relevant time his expulsion had been averted only because of his suicide attempt and the Court’s interim measure under Rule 39. 99. His third asylum request had been rejected in just one day without the Ministry of the Interior giving any consideration to his arguments that his extradition was not permissible.", "Since the asylum proceedings had been terminated, a request for judicial review did not have suspensive effect. Although it was theoretically possible to lodge a suspension request, such requests were in practice ineffective. 100. In sum, at the decisive times none of the domestic authorities had evaluated the risk of ill-treatment prohibited by the Convention that the applicant faced in Belarus. 2.", "The Court’s assessment (a) General principles 101. 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 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. 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. 102.", "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. 103. In order to be effective, the remedy required by Article 13 must be available in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see M.S.S.", "v. Belgium and Greece [GC], no. 30696/09, §§ 288-290, ECHR 2011, with further references). 104. In view of the importance which the Court attaches to Article 3 of the Convention, and of the irreversible nature of the damage which may result if the risk of torture or ill-treatment materialises, the notion of an effective remedy under Article 13 requires (i) close and rigorous scrutiny of a claim that there exist substantial grounds for believing that there is a real risk of treatment contrary to Article 3 in the event of the applicant’s expulsion to the country of destination, and (ii) a remedy with automatic suspensive effect (see Jabari v. Turkey, no. 40035/98, § 50, ECHR 2000‑VIII; M.S.S.", "v. Belgium and Greece, cited above, § 293; and Diallo v. the Czech Republic, no. 20493/07, § 74, 23 June 2011). (b) Application in the present case of the above-mentioned principles 105. The Court firstly notes that the removal of the applicant was ordered in the context of criminal proceedings in which he was twice sentenced to expulsion. Consequently, it was against these decisions that the applicant should have had an effective remedy within the meaning of Article 13 of the Convention.", "106. The Court observes that the applicant could have challenged the decisions in an appeal which had suspensive effect. Therefore, in the normal course of events he had access to an effective remedy. However, the present case raises rather an exceptional situation in that the facts which constituted the basis for the applicant’s claims that he would be subjected to treatment contrary to Article 3 of the Convention in the destination State became known to him only after the expulsion orders became final and after his first asylum proceedings – in which he had also access to remedies with automatic suspensive effect – had been terminated. He could not, therefore, have used those arguments in the first asylum proceedings or in his appeals against the criminal decisions sentencing him to expulsion (see Mohammed v. Austria, no.", "2283/12, § 74, 6 June 2013). 107. The Court has thus to decide what is the relevant point of time for a consideration of the applicant’s present complaint. It notes that there is disagreement between the parties as to when it became known to the applicant that criminal proceedings for drug-related offences had been opened against him in Belarus. The Court considers, however, that it is not necessary to decide on this matter.", "It observes in this connection that on 23 April 2010 the Plzeň Regional Court decided not to extradite the applicant to Belarus because of reasonable fears that in Belarus his rights under Articles 3 and 6 of the Convention would be violated. It referred to reports attesting to, inter alia, the detention of persons for political reasons, inhuman conditions of detention and ill-treatment by police (see paragraph 49 above). In the Court’s view, that finding inevitably made that claim arguable in Convention terms. When sentencing the applicant to expulsion on 5 November 2008 and 13 March 2009, the criminal courts did not know about the criminal proceedings in Belarus or the judgment of the Plzeň Regional Court. However, the circumstances changed and the opinion of the Regional Court, which was a new fact, could not be ignored.", "The applicant thus should have had access to an effective remedy between 23 April 2010, the date of the Regional Court judgment, and 4 October 2010, when his prison sentence finished and therefore the first day when the expulsion sentence could have been executed (see also Mohammed, cited above, §§ 74-75, where the Court did not take into account for the purposes of considering whether the applicant had access to an effective remedy any remedies available before the time when his claim became arguable owing to a change in his situation). 108. The Government pointed to several remedies that the applicant had had access to and that were, in their view, effective. The Court will examine them in turn. 109.", "First, the Court considers that the ordinary remedies within the criminal proceedings were clearly unavailable to the applicant at the relevant period. The criminal judgments which sentenced the applicant to expulsion became final before that time (see paragraph 106 above). 110. As to a request for a waiver of the expulsion order under Article 350h of the Code of Criminal Procedure, the Court finds that this did not constitute an effective remedy as it would not have had suspensive effect. It is true that such a waiver would have been granted because the applicant had received subsidiary protection; however, that was only granted on 17 October 2011, after the relevant period.", "111. As to a constitutional appeal, the Court observes that such an appeal does not have automatic suspensive effect and cannot, therefore, constitute an effective remedy in the context of expulsion (see Diallo, cited above, §§ 83-84). The cases referred to by the Government are not relevant in the present case as they did not concern expulsion or extradition. 112. It thus remains to be decided whether the lodging of a fresh asylum request was an effective remedy against the applicant’s expulsion.", "113. Under Article 350b of the Code of Criminal Procedure a criminal court must suspend the execution of an expulsion when the person sentenced to expulsion applies for asylum, unless such a request is clearly manifestly unfounded. Indeed, on 23 September 2010 the Prague 10 District Court stayed the expulsion pending the decision on the applicant’s asylum request (see paragraph 37 above). The suspension was cancelled only on 25 October 2010 after the dismissal of the applicant’s third asylum request became final on 1 October 2010 (see paragraph 39 above). The criminal court thus proceeded correctly when it stayed the applicant’s expulsion because of the pending asylum proceedings.", "Consequently, the lodging of a fresh asylum request by the applicant on 29 September 2010 had suspensive effect and the applicant had in theory an effective remedy for his complaint under Article 3 at the relevant time. 114. Nevertheless, because of the irreversible nature of the damage which may result if the risk of torture or ill-treatment materialises, it is not enough that an effective remedy exists in theory. The Court must ascertain whether the applicant’s claim in the context of that remedy was indeed subjected to close and rigorous scrutiny, as required by the Court’s case-law (see M.S.S. v. Belgium and Greece, cited above, § 321, and Singh and Others v. Belgium, no.", "33210/11, §§ 103-105, 2 October 2012). 115. The Court observes that the Ministry of the Interior dismissed the third asylum request as inadmissible in one day with a very short reasoning on the basis that the applicant had failed to support his request with any new facts. It did not consider the allegedly fabricated proceedings against him for drug trafficking to be a new fact because it concluded that the applicant had known about them at the time of the previous asylum proceedings and he ought to have mentioned them then. The Ministry made no mention at all of the judgment of the Plzeň Regional Court of 23 April 2010.", "116. The Court considers that omission particularly serious as it was that judgment that made the applicant’s claim under Article 3 particularly credible (see paragraph 109 above). When a domestic court makes such a decision, it cannot be ignored by other relevant authorities. That applies especially in the context of subsequent asylum proceedings, for which it is highly relevant as it is primarily in those proceedings that the risks for the applicant in his country of origin needs to be assessed. 117.", "The Court is aware of the fact that asylum proceedings and extradition proceedings are separate and that the relevant bodies can reach different conclusions. Nevertheless, as a minimum, the Ministry should have thoroughly engaged with the said decision and convincingly explained why it did not consider that new fact, which had not existed at the time of applicant’s previous asylum requests, relevant for its decision on the merits of the asylum request. As it failed to do so, the Court cannot conclude that the Ministry subjected the applicant’s claim to close and rigorous scrutiny. In fact the Ministry did not examine the merits of the applicant’s claim at all. 118.", "The Court further observes that a request for judicial review of such a decision did not have automatic suspensive effect. This was also reflected in the decision of the Prague 10 District Court, which cancelled the suspension of the expulsion right after the decision of the Ministry of the Interior (see paragraph 39 above). Accordingly, the third asylum proceedings were not an effective remedy against the applicant’s expulsion. 119. The Court further notes that the Ministry of the Interior terminated the second asylum proceedings on 3 February 2010, that is, before the crucial decision of the Plzeň Regional Court.", "An appeal against that decision also did not have automatic suspensive effect. Nevertheless, as the applicant did not risk expulsion before 4 October 2010, when his prison sentence was about to finish, the Court must look at whether during those proceedings the relevant authorities subjected the applicant’s claim to close and rigorous scrutiny, since the granting of some form of protection in those proceedings could also have prevented the applicant’s expulsion. 120. The court observes that the Ministry, even though it knew about the criminal proceedings against the applicant, failed to address them in its decision on the applicant’s second asylum request. Indeed, it was for that reason that that decision was considered unlawful by the Supreme Administrative Court in its judgment of 28 February 2011.", "121. The subsequent decision of the Regional Court of 13 September 2010 did not examine the applicant’s arguments either. It did not at any rate evaluate the consequences of the decision of this court not to allow his extradition. Accordingly, not even the second asylum proceedings can be considered to have been an effective remedy against his expulsion as his claims were not subjected to any scrutiny during the relevant period. 122.", "The last possibly effective remedy suggested by the Government was an appeal within the context of proceedings under Article 350b of the Code of Criminal Procedure against the decision of the Prague 10 District Court of 25 October 2010 cancelling the suspension of the expulsion. The applicant indeed lodged such an appeal but it was dismissed as belated (see paragraph 42 above). 123. The Court observes that in the proceedings under Article 350b of the Code of Criminal Procedure the criminal court does not examine thoroughly the applicant’s claim about a real risk of treatment contrary to Article 3 in the event of his expulsion to the destination country but only stays the enforcement of the expulsion in order to enable the competent authorities to decide on these matters in the asylum proceedings. Consequently, as at the relevant time the applicant’s asylum proceedings were no longer pending, an appeal under Article 350b could not result in practice in a review of the applicant’s claims.", "124. In the light of these considerations the Court finds that the applicant did not have an effective remedy for his Article 3 complaint at the relevant time. 125. There has accordingly been a violation of Article 13 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 126. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the 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 127. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage. 128.", "The Government considered the amount absolutely disproportionate to any loss he may have suffered and asked the Court to award no damages in the event of a finding of a violation. 129. Even though the applicant must have experienced some suffering and frustration as a result of the failure of the national authorities to subject his arguable claim under Article 3 of the Convention to close scrutiny at the relevant time, the Court, having regard to its case-law (see I.M. v. France, cited above, § 166, and Singh and Others v. Belgium, § 111), considers that the finding of a violation constitutes adequate redress, in the circumstances of the case, for the non-pecuniary damage which the applicant can claim to have sustained. B.", "Costs and expenses 130. The applicant also claimed EUR 3,400 for costs and expenses. 131. The Government maintained that no award should be made to the applicant under this head because he had not submitted any documents in support of his claims. 132.", "According to the Court’s settled case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 283, ECHR 2006-V). Moreover, the Court cannot award those costs and expenses that are not supported by any documents (see Husák v. the Czech Republic, no.", "19970/04, § 63, 4 December 2008). 133. The Court observes that the applicant failed to submit any supporting documents regarding his costs and expenses. Accordingly, no award can be made under this head. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the complaint under Article 13 in conjunction with Article 3 of the Convention admissible and the remainder of the application inadmissible; 2. Decides to discontinue the interim measure indicated to the Government under Rule 39 of the Rules of Court; 3. Holds that there has been a violation of Article 13 in conjunction with Article 3 of the Convention; 4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant; 5. Dismisses the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 17 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekMark VilligerRegistrarPresident" ]

[ "FIFTH SECTION CASE OF GRIGORYEV v. UKRAINE (Application no. 51671/07) JUDGMENT STRASBOURG 15 May 2012 FINAL 15/08/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Grigoryev v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President,Elisabet Fura,Boštjan M. Zupančič,Ann Power-Forde,Ganna Yudkivska,Angelika Nußberger,André Potocki, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 10 April 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "51671/07) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Andrey Grigoryevich Grigoryev (“the applicant”), on 1 November 2007. 2. The applicant was represented by Ms L. Lyakhovetska, a lawyer practising in Odessa. The Ukrainian Government (“the Government”) were represented by their Agent, Ms Valeria Lutkovska. 3.", "The applicant alleged that he had been tortured by the police and that his subsequent conviction had essentially been based on his self-incriminating statements and material evidence obtained by coercion and without legal representation. He also complained that there had been no effective domestic investigation into his allegations of torture. 4. On 22 March 2011 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1967 and is currently serving a prison sentence in Yenakiyeve Penitentiary no. 52. 6. In the morning of 1 March 2002 the “Berkut” special police unit apprehended the applicant, at the home of an acquaintance, in connection with an investigation into a series of armed robberies and murders.", "7. The police searched the applicant and discovered a suspicious sachet in his pocket appearing to contain drugs. According to him, the police had planted it on him when he was already handcuffed. The applicant’s arrest was documented as being based on a suspicion of illegal drug possession. 8.", "On the same day, 1 March 2002, the applicant was placed in administrative detention for three days while the contents of the sachet were analysed. 9. Between 1 and 3 March 2002 he confessed to about fifteen counts of robbery, theft and smuggling, as well as an attempted murder. The applicant also showed to the police a garage and a forest cache where firearms and other weapons and explosives were stored. 10.", "According to the Government’s submissions, the applicant decided to confess and to cooperate with the police of his own free will. According to the applicant, however, he was coerced into self-incrimination. His account of the events following his arrest is as follows. At about 11 a.m. on 1 March 2002 the applicant was taken to an office in the Kyivskyy District Police Department in Odessa where two law-enforcement officials from Kyiv, D. and Y., who introduced themselves as the Deputy Chief of the Criminal Investigation Unit (заступник начальника Департаменту карного розшуку МВС України) and the Chief of the Main Criminal Investigation Department (начальник Головного управління карного розшуку МВС України) respectively, questioned him in respect of a number of robberies and murders. As the applicant denied any involvement in them or knowledge thereof, Y. summoned several officers and ordered them to force him to confess to about forty instances of such offences.", "The applicant, being handcuffed, was suspended from a metal bar between two tables, and Y., together with D., delivered numerous blows with a rubber truncheon to various parts of his body. Subsequently a mask was put on the applicant’s face, and other police officers continued to beat him until about 7 p.m. The applicant signed numerous confessions. In the evening D. and Y. checked on him. As they considered that he had not been sufficiently cooperative, the applicant’s ill-treatment continued until 4 March 2002.", "During that period he was detained in the police station, where he had no contact with his relatives or a lawyer. 11. On 4 March 2002 the applicant was arrested on suspicion of several counts of armed robbery, illegal arms handling and attempted murder. He signed a waiver of legal assistance (its copy in the case file is illegible) and confessed to six counts of robbery. 12.", "The applicant was then transferred to the Odessa Temporary Detention Facility (“the ITT”). 13. Before that transfer, on 4 March 2002, he was examined by a doctor at the local hospital, who found that he had a chest contusion and post-traumatic neuritis. The doctor also concluded that the applicant’s right hand had been subjected to prolonged constriction. 14.", "On 5 March 2002 an expert from the Odessa Regional Bureau for Expert Forensic Medical Examinations examined the applicant on the instructions of the investigator. Although the examination report (delivered on 1 April 2002) noted that the applicant’s right wrist was swollen and restricted in movement, its general conclusions were as follows: “1. The forensic medical examination of [the applicant] has not discovered any external injuries (sores, bruises or wounds). 2. It is impossible to establish the nature of the pathology of the right wrist without an X-ray.” 15.", "From 5 March 2002 the applicant was represented by Ms Lyakhovetska. During his questioning in her presence on that day he again confessed to six counts of robbery. At the same time, the lawyer requested the investigator to arrange for her client to have a medical examination in view of his complaints of ill-treatment. 16. On 6 March 2002 a judge of the Zhovtnevyy District Court of Odessa remanded the applicant in custody pending trial.", "According to that ruling, the applicant was to be detained in the Pre-Trial Detention Centre (“the SIZO”). In reality, however, he remained in the ITT. 17. On 16 March 2002 the investigator decided that the applicant was to be detained in the ITT until 19 March 2002, on account of the considerable number of investigative measures yet to be taken. 18.", "According to the applicant, on 17 March 2002 Y. and D. again tried to obtain confessions from him, this time to several counts of murder. As the applicant resisted, he was handcuffed and beaten by four officers for about thirty minutes. Thereafter he was placed face-down on the floor and immobilised with a chair. The officers then brought an electric generator and attached its wires to the applicant’s ankles and buttocks. After several electric shocks, the applicant signed all the documents handed to him by the police.", "19. On 18 March 2002 he complained to his lawyer about these events, and she further raised the complaint before the prosecution authorities. 20. On 19 March 2002 the applicant was transferred to the SIZO, where he was examined by a doctor. As a result, burn marks measuring about 2 x 1 cm were discovered on his both ankles.", "They were estimated to have been sustained two days earlier as the result of an electric shock. 21. On 5 April 2002 another forensic medical examination of the applicant was carried out. According to the report (delivered on 8 April 2002), eight wounds measuring 1.5 x 2 cm each were discovered on both of his ankles. While the expert noted that it was impossible to establish exactly how and when they had been caused, he referred to the medical certificate of 19 March 2002, according to which the wounds could have been caused by electric burns.", "22. On 29 April 2002 the Odessa Regional Prosecutor’s Office (“the ORPO”) opened a criminal case in respect of the allegations of ill-treatment by the applicant and a co-accused under Article 365 § 2 of the Criminal Code (abuse of power associated with violence and degrading treatment). The prosecutor referred, in particular, to the medical certificate of 8 April 2002 confirming that the applicant had sustained injuries possibly originating in electric shocks. 23. Yet another forensic medical expert examination, which had been assigned on 21 June and completed on 2 July 2002, reported the same injuries as before and classified them as minor.", "Given the ongoing cicatrisation process, it was impossible to establish their origin with precision: the wounds could have been caused either by electric burns or by blunt objects. The report further noted that, according to the medical file, it could not be ruled out that they had been caused by electric shocks. Lastly, the expert answered in the positive the investigator’s question as to whether the wounds in question were in places within the applicant’s reach (“accessible for self-infliction”). 24. On 16 September 2002 the investigator at the Odessa City Prosecutor’s Office (“the OCPO”), to whom the case had apparently been transferred, discontinued the criminal investigation into the ill-treatment allegations, concluding that no indication of a crime could be discerned in the actions of the police officers.", "This decision was based, on the one hand, on the submissions of the applicant and two co-accused (found to be unreliable), and, on the other, on statements by eighteen police officers, including Y. and D., who either denied any coercion or submitted that they did not know anything (found to be trustworthy). While both Y. and D. admitted that they had questioned the applicant following his arrest on 1 March 2002, they maintained that he had confessed to some of the crimes under investigation of his own free will. When asked how he could explain the electric burns on the applicant’s ankles, Y. stated as follows: “I can explain them by the sheer inventiveness of this person, who could make explosive devices and who tortured his victims with devious methods.” 25. The investigator also mentioned the medical certificate issued by the SIZO doctor in respect of the applicant’s injuries, without commenting on it. The general conclusions of this decision read as follows: “... the investigation has established that [the applicant], after [his] arrest, confessed to armed robberies and maintained his confessions during the crime reconstruction exercise.", "Moreover, [the applicant] showed [the investigators] an underground cache of firearms and ammunition. However, later these persons [the applicant and his co-accused], who have previous convictions and are bound by joint responsibility, retracted their earlier statements. In an attempt to escape criminal liability for particularly serious crimes, they, personally and with the assistance of their lawyers, sent complaints to various authorities attempting to cast doubt on their own depositions by allegations that they had been beaten by the police and that they had confessed under duress. The allegations of [the applicant] and the other co-accused are refuted by the ... statements of the police officers.” 26. On 5 November 2002 the ORPO quashed the above decision, concluding that it was not based on a comprehensive and objective investigation.", "27. On 16 December 2002 one of the applicant’s cellmates in the ITT at the material time, L., when questioned by the investigator, confirmed that the applicant, on returning to the cell after his questioning, had had injuries and had hardly been able to stand on his feet. The other cellmates, who were also questioned, did not remember anything of that kind. 28. On 28 December 2002 the OCPO investigator again discontinued the criminal investigation, finding nothing criminal in the police officers’ actions.", "The decision was identical to that of 16 September 2002. 29. On 8 May 2003 the ORPO quashed this second decision also, for non-compliance with instructions. 30. On 14 May 2003 the OCPO investigator in charge of the ill-treatment investigation wrote to the Odessa City Prosecutor (his superior) that it would be more appropriate to transfer the case to the ORPO dealing with the criminal case against the applicant.", "He noted that the ORPO had criticised his decisions and made the following comment in that regard: “... compliance or non-compliance with those instructions would not have had any influence whatsoever on the conclusions reached in this case. This case has no prospect of judicial examination.” 31. In July 2003 the pre-trial investigation in the criminal proceedings against the applicant (and the co-accused) was completed and the case was sent for trial to the Odessa Regional Court of Appeal (“the Regional Court”), acting as a court of first instance. 32. On 8 August 2003 the OCPO investigator, who was still in charge of the ill-treatment investigation, discontinued the proceedings by a decision worded identically to his earlier decisions of 16 September and 28 December 2002.", "The only new part was a remark that the applicant’s cellmates had been questioned and had not confirmed his allegations. 33. On 31 March 2004 the Regional Court examined the applicant’s criminal case and decided that it was necessary to undertake an official investigation (призначити по справі службове розслідування) into the defendants’ allegations about their ill-treatment by the police. This investigation was entrusted to the General Prosecutor’s Office (“the GPO”). It was noted in the court’s ruling that the official investigation in question was required “to take into account not only the explanations of the persons who took part in the investigative measures involving the defendants, but also the medical documents and expert reports on their injuries available in the case file”.", "34. On 21 May 2004 the ORPO quashed the OCPO’s decision (see paragraph 32 above). The case file does not contain a copy of this ruling. 35. On 22 November 2004 the OCPO investigator once again discontinued the investigation for lack of corpus delicti in the police officers’ actions.", "In addition to the earlier reasoning it was noted that, despite all possible efforts, it had been impossible to establish the origin of the applicant’s injuries. 36. On 25 February 2005 the ORPO quashed the above-mentioned decision as based on an incomplete investigation. 37. On 12 April 2005 the OCPO investigator again discontinued the case with a decision identical to that of 22 November 2004.", "38. On 11 May 2005 the Regional Court sent a letter to the GPO which stated as follows: “During the judicial proceedings all the defendants changed their original statements and alleged that they had been subjected to ill-treatment (sometimes amounting to torture) during the pre-trial investigation, as a result of which they were forced to incriminate themselves and plead guilty to criminal offences which they had not committed. The statements of the defendants are indirectly confirmed by some of the materials in the case-file. The court requested the [GPO] as early as 31 March 2004 to undertake an official investigation into the defendants’ allegations. This judicial request was addressed to the GPO because the earlier investigation by the [local prosecuting authorities] had been superficial and failed to take into account all the arguments and the medical documents.", "All the materials in the case-file were forwarded to the [GPO] on 1 April 2004. However, in spite of numerous reminders, the judicial request has not been complied with. The examination of the evidence was completed on 24 January 2005, and the proceedings were stayed pending the [GPO’s] conclusion.” 39. On 2 August 2005 the ORPO wrote to the President of the Regional Court that, on the instructions of the GPO, it had thoroughly investigated the defendants’ allegations of ill-treatment and dismissed them as unfounded. 40.", "On 10 October 2005 the Regional Court found the applicant, along with five other persons, guilty of premeditated murder committed with particular cruelty, for profit, repeatedly and following conspiracy by a group of persons, as well as banditry, illegal firearms handling, carjacking, deliberate destruction of the property of others, and multiple counts of theft and armed robbery. The applicant was additionally found guilty of illegal drug possession. He was sentenced to a total of nineteen years’ imprisonment, with confiscation of all his personal property. The court relied on, among other things, the applicant’s confessions made during the pre-trial investigation – in particular, on 1 and 2 March 2002 – even though he had retracted them in the judicial proceedings. It also relied on the material evidence (firearms and ammunition) shown by the applicant to the police on 1 and 2 March 2002.", "The court found that the applicant’s allegation of ill-treatment in police custody had been thoroughly examined by the official investigation and had been rightly dismissed as unsubstantiated. The term of the applicant’s sentence was to be calculated from 1 March 2002. 41. The applicant, both personally and through his lawyer, appealed in cassation. He submitted that the first-instance court had distorted the facts of the case and that his conviction had been based mainly on confessions obtained from him by coercion and in breach of his right to legal assistance.", "He emphasised in this connection that the Regional Court had relied on the investigation of his ill‑treatment allegations, which had earlier been recognised as superficial and otherwise flawed. It was for that reason that the trial court had decided to entrust the official investigation of his allegations to the General Prosecutor’s Office, since the earlier investigation undertaken by the local prosecution authorities had not taken into account all his arguments or the medical documents. 42. The applicant further emphasised that he (as well as the other defendants) had never been assigned victim status in the criminal investigation regarding the ill-treatment allegations. He noted that on 12 April 2005 the OCPO had discontinued the investigation, finding that there was no case to be examined, and the Regional Court’s assignment of the official investigation to the GPO had never been implemented.", "The applicant pointed out that the fact that he had sustained injuries had not even been mentioned in the final decision. Lastly, he criticised the first-instance court for not having given any consideration to his continued detention in the ITT (for eighteen days instead of the legal maximum of three days). 43. On 4 September 2007 the Supreme Court rejected the applicant’s appeal in cassation. It concluded that his guilt was sufficiently proved by the evidence, including his own confessions.", "As to the applicant’s complaint of a violation of his right to legal assistance, the Supreme Court noted that he had had his rights in that respect explained to him following his arrest on 4 March 2002 and that he had been legally represented thereafter. In so far as his allegation of ill-treatment was concerned, the Supreme Court referred to the investigation into the matter by the prosecution authorities undertaken at the request of the first-instance court. 44. On 19 December 2008 the GPO returned the case file on the ill-treatment allegations to the ORPO as “no longer required”. It noted in its letter: “the General Prosecutor’s Office has not established any grounds for setting aside the decision made”.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 45. Articles 59 and 63 of the Constitution concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of 19 February 2009 in the case of Shabelnik v. Ukraine (no. 16404/03, § 25). 46.", "The provisions concerning the obligation to institute criminal proceedings and investigate a crime can be found in the judgment of 27 November 2008 in the case of Spinov v. Ukraine (no. 34331/03, § 33). 47. According to Article 263 of the Code of Administrative Offences, a person suspected of a drug offence may be detained for up to three days if the suspected drug needs to be analysed. 48.", "Under Article 315-1 of the Code of Criminal Procedure, if a court requires verification or clarification of the factual information obtained during a pre-trial investigation, it may request the investigating authority, by a judicial request (судове доручення), to undertake certain investigative activities within an established time-limit. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 49. The applicant complained that he had been tortured by the police and that there had been no effective investigation into the matter. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 50.", "The Government submitted that the applicant could not be regarded as having exhausted domestic remedies under Article 35 § 1 of the Convention because he had failed to challenge the decision of the Odessa City Prosecutor’s Office of 12 April 2005 before the higher-level prosecution authorities or before the domestic courts. 51. Alternatively, the Government argued that, had the applicant believed he had no effective domestic remedies to exhaust following the aforementioned prosecutor’s decision discontinuing the criminal investigation into his ill-treatment allegation, he should have introduced his application before the Court within the six-month time-limit to be calculated from that date. Accordingly, they maintained that it should be rejected as belated. 52.", "The applicant disagreed. He noted that, indeed, under the domestic legislation, he could have challenged the decision of 12 April 2005 either before the Odessa Regional Prosecutor’s Office or before a local court. He contended, however, that none of those remedies could be considered effective for the following reasons in particular. The Odessa Regional Court of Appeal, which had acted as a first-instance trial court in his own criminal case, had already considered the ill-treatment allegation and assigned its investigation to the General Prosecutor’s Office on account of the deficiencies in the investigation undertaken by the local prosecution authorities (at the city and the regional level). Accordingly, the applicant had considered it pointless to bring the issue before a lower-level court (a local court as compared to the aforementioned Regional Court) or before the Regional Prosecutor’s Office, which had been criticised by the Regional Court for the inadequacy of its investigation.", "53. He also pointed out that the aforementioned judicial request of the Regional Court to the GPO had revived the latter’s obligation to investigate his allegation of ill-treatment after the prosecutor’s decision of 12 April 2005 discontinuing the investigation. 54. The Court emphasises that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism.", "It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see Akdivar and Others v. Turkey [GC], 16 September 1996, § 69, Reports of Judgments and Decisions 1996‑IV, and Aksoy v. Turkey, 18 December 1996, §§ 53-54, Reports 1996-VI). 55. Regard being had to the above, the Court considers that the questions of exhaustion of domestic remedies and compliance with the six-month rule are closely linked to the substance of the applicant’s complaint regarding the effectiveness of the investigation, and accordingly joins them to the merits of that complaint (see, for example, Oleg Nikitin v. Russia, no.", "36410/02, § 28, 9 October 2008, and Bocharov v. Ukraine, no. 21037/05, § 40, 17 March 2011). 56. 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 (a) The parties’ submissions 57. Relying on the medical documents in the case-file and referring to his lengthy detention under the full control of the police (in an ITT instead of a SIZO), the applicant submitted that police officials Y. and D., with the assistance of some other officers, had tortured him following his arrest on 1 March, as well as on 17 March 2002, with a view to extracting his confession to numerous crimes.", "58. The Government considered the applicant’s allegation to lack any basis. They contended that, despite the fact that all possible efforts had been undertaken by the domestic authorities, its veracity had never been established. The Government relied, in particular, on the medical report of 1 April 2002, with the emphasis on its finding that there had been no external injuries discovered on the applicant. As to the other medical evidence confirming that he had sustained eight wounds to his ankles, the Government noted that they were minor injuries and that it could not be ruled out that the applicant had inflicted them on himself.", "(b) The Court’s assessment 59. As the Court has stated on many occasions, Article 3 of the Convention enshrines one of the core values of democratic societies (see, among many other references, Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999‑V). Where allegations are made under this provision, the Court must conduct a particularly thorough scrutiny and will do so on the basis of all the material submitted by the parties (see Matyar v. Turkey, no. 23423/94, § 109, 21 February 2002, and Ülkü Ekinci v. Turkey, no.", "27602/95, § 136, 16 July 2002). 60. In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, as a classic authority, Ireland v. the United Kingdom, cited above, § 161). 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 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. Turning to the present case, the Court notes that three days after the applicant’s arrest, on 4 March 2002, a doctor discovered that he had a chest contusion and post-traumatic neuritis and that his right hand had been subjected to prolonged constriction (see paragraph 13 above). The medical examination a day later made contradictory findings: on the one hand, it stated that “there were no external injuries discovered” on the applicant, while, on the other, it noted that his right wrist was swollen and he could not move it (see paragraph 14 above).", "The Court therefore does not regard it as having rebutted the earlier medical evidence of the applicant’s injuries. 62. The Court further notes that the SIZO doctor who examined the applicant on 19 March 2002 following his transfer there from the ITT discovered several burns on his both ankles and found that they fully corroborated the applicant’s account as to their date and origin. Although the two later forensic medical examinations, of 5 April and 21 June 2002, were less conclusive as to the origin of these injuries, they did not challenge that finding (see paragraphs 20, 21 and 23 above). 63.", "Thus the applicant’s allegation of ill-treatment at the hands of the police – including the administration of electric shocks to him – has a solid evidential basis. The fact that the injuries were to parts of his body within his reach and the alternative view that they had not necessarily resulted from electric shocks, on which the Government relied in their observations, do not undermine its credibility. The Court notes in this connection that the Government did not provide any explanation as to how the applicant could have possibly inflicted such injuries on himself. 64. As to the Government’s submission about the supposedly minor nature of the applicant’s injuries, the Court has already held in its case-law that subjecting a person to electric shocks is a particularly serious form of ill-treatment capable of provoking severe pain and cruel suffering, and therefore falling to be treated as torture, even if it does not result in any long-term damage to health (see Polonskiy v. Russia, no.", "30033/05, § 124, 19 March 2009; and Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 157, 21 April 2011). Moreover, it appears that the use of force against the applicant in the present case was aimed at debasing him, driving him into submission and making him confess to criminal offences. 65. The Court therefore concludes that the applicant suffered ill-treatment serious enough to be considered as torture.", "66. Accordingly, there has been a violation of Article 3 of the Convention under its substantive limb. 2. Effectiveness of the investigation (a) The parties’ submissions 67. The applicant maintained that the domestic authorities had failed to duly investigate his complaint of torture and to hold those responsible liable.", "He contended that the prosecuting authorities in charge had not taken an objective stand on the matter and had sought to dismiss his complaint rather than to verify it. The applicant also pointed out that he had never been assigned victim status even though it had been established that he had sustained injuries in police custody. Lastly, he submitted that, while the deficiencies in the investigation undertaken by the prosecuting authorities at the city and regional levels had been acknowledged and criticised on many occasions, both the General Prosecutor’s Office and the courts eventually chose to ignore them and to take the investigation’s findings at face value. 68. The Government contested that view.", "They submitted that the domestic authorities had investigated the applicant’s allegation of ill-treatment with due diligence and the fact that they had not discerned anything criminal in the police officers’ actions did not undermine the effectiveness of the investigation as such. (b) The Court’s assessment 69. The Court emphasises that where an individual raises an arguable claim that he or she has been seriously ill-treated by the police in breach of Article 3, that provision requires by implication that there should be an effective official investigation 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 1998‑VIII, and Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000‑IV).", "The minimum standards of effectiveness defined 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, Menesheva v. Russia, no. 59261/00, § 67, ECHR 2006‑III). 70. In the present case the Court has found that the respondent State is responsible under Article 3 for the applicant’s torture (see paragraphs 57-66 above). The authorities therefore had an obligation to investigate it in compliance with the aforementioned effectiveness standards.", "71. The Court notes that the applicant complained to the prosecuting authorities about his ill-treatment on 18 March 2002. His allegations were confirmed by two medical reports. As a result, on 29 April 2002 the Odessa Regional Prosecutor’s Office opened a criminal case in respect of abuse of power, associated with violence and degrading treatment, by the police. 72.", "The city and regional prosecuting authorities, however, discontinued the proceedings five times, finding that there was nothing criminal in the actions of the officers in question. The Court also observes that the applicant was never assigned victim status. Although each of the decisions to discontinue the proceedings (apart from the last one of 12 April 2005) was quashed as not being based on proper investigation and taken in disregard of the higher-level prosecutor’s instructions, another such decision followed which merely repeated the earlier reasoning. Its key point was, in substance, that the applicant had himself confessed to a number of criminal offences, but later sought to escape criminal liability, and therefore his words could not be trusted. By such perverted logic the investigator used the applicant’s confessions, the result of his alleged torture, as a reason to dismiss his allegations in that regard.", "73. Furthermore, the Court notes that the investigator in charge of the ill-treatment investigation explicitly admitted that he did not find it necessary to improve the investigation in line with the received instructions, because its conclusions appeared clear to him from the outset (see paragraph 30 above). For the Court, this is not only another confirmation of the investigation’s deficiencies, but also an indication of its lack of impartiality, as reasonably feared by the applicant. 74. The Court also observes that the superficial nature of the investigation and, in particular, its failure to take into account all the medical documents was acknowledged by the Regional Court in the context of the applicant’s trial.", "Moreover, the court instructed the General Prosecutor’s Office to take over the investigation. 75. The Court considers that after the Regional Court requested the GPO, the highest prosecution authority in Ukraine, to investigate the applicant’s complaint of ill-treatment (on 31 March 2004 and again on 11 May 2005), it must indeed have appeared pointless to him to challenge, on his own, the local prosecutor’s decision of 12 April 2005 dismissing that complaint, especially given that the earlier remittals had not in fact led to any improvements in the investigation. 76. The Court notes that the aforementioned instruction regarding the investigation by the GPO remained unimplemented, and the Regional Court eventually contented itself with the findings of the local prosecution authorities which it had itself previously criticised (see paragraphs 33, 38 and 40 above).", "The applicant’s appeal in cassation within his trial was also without effect: the Supreme Court too relied on the findings of the investigation by the prosecution authorities, erroneously noting that it had been undertaken at the instruction of the first-instance court. 77. It therefore appears that appeals both to higher-level prosecutors and to courts have proved not capable of ensuring effective investigation of the applicant’s complaint of ill-treatment by police. At the same time, the Court does not reproach the applicant for having reasonably waited the completion of his trial within which this complaint was examined on the merits. Accordingly, the Court dismisses the Government’s objections as regards exhaustion of domestic remedies and compliance with the six‑month time-limit previously joined to the merits (see paragraph 55 above).", "78. In the light of the above considerations, the Court concludes that the applicant was denied a thorough and effective investigation into his arguable claim that he had been subjected to torture at the hands of police. As the Court has held in its judgment concerning the case of Kaverzin v. Ukraine, this situation stems from systematic problems at the national level allowing for agents of the State responsible for such ill-treatment go unpunished (no. 23893/03, 15 May 2012, §§ 169-182, not yet final). 79.", "There has therefore also been a violation of Article 3 of the Convention under its procedural limb. II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF THE CONVENTION 80. The applicant further complained that he had not had a fair trial on account of his self-incrimination under duress and in the absence of legal assistance. He relied on under Article 6 §§ 1 and 3 (c), which read as follows in their relevant parts: “1.", "In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.” A. Admissibility 81. The Court notes that this complaint is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits (a) The parties’ submissions 82. The applicant maintained that he had been coerced into confessing to a series of serious crimes, while being deprived of any procedural rights, including the right to legal assistance. He noted that the courts had relied on his confessions in securing his conviction, in disregard of the documents in the file indicating that he had not given the confessions of his own free will and with the assistance of a lawyer. 83. The Government submitted that courts at two levels of jurisdiction had examined the applicant’s case with due diligence and that there was no reason to question their findings.", "According to them, had there been any serious breaches of the criminal procedural legislation by the first-instance court, the Supreme Court would have identified and remedied them. (b) The Court’s assessment 84. The Court notes that although the admissibility of evidence is, as a matter of principle, a prerogative of domestic courts, with the role of this Court being limited to assessing the overall fairness of the proceedings, particular considerations apply to evidence obtained by a measure found to violate Article 3 of the Convention. Thus, according to the Court’s case-law, the admission of statements obtained as a result of torture as evidence to establish the relevant facts in criminal proceedings renders the proceedings as a whole unfair, irrespective of their probative value and of whether their use was decisive in securing the defendant’s conviction (see Gäfgen v. Germany [GC], no. 22978/05, § 166, ECHR 2010, with further references).", "85. The Court has found in the present case that the applicant’s initial confessions were extracted and the material evidence was obtained from him by ill-treatment amounting to torture within the meaning of Article 3 of the Convention (see paragraphs 57-66 above). It also notes that the domestic courts admitted those confessions as evidence in his trial (see paragraph 40 above). In the light of the principles of its case-law as outlined above, the Court considers that this extinguished the very essence of the first applicant’s privilege against self-incrimination, irrespective of the weight of the impugned confessions in the evidential basis for his conviction, and regardless of the fact that he confessed again several times during the investigation. 86.", "Furthermore, as confirmed by the domestic courts (the judgment of the Regional Court of 10 October 2005 and the ruling of the Supreme Court of 4 September 2007 upholding it), the applicant met with a lawyer for the first time on 4 March 2002, whereas he had been arrested on 1 March 2002. Although his detention from 1 to 4 March 2002 was documented by the police as being based on a suspicion that he had committed an administrative offence, the Court notes that during that period the applicant was treated as a suspect in criminal investigations into such serious crimes as banditry, murder, robbery and theft. It was during that period that he confessed to these crimes and showed weapons storage places to the police. Looking beyond the appearances and the language used and concentrating on the realities of the situation, the Court considers that the applicant’s administrative detention in reality formed part of his detention as a criminal suspect, but without the requisite safeguards for his procedural rights, notably the right to defence (see Kafkaris v. Cyprus [GC], no. 21906/04, § 116, ECHR 2008, and, mutatis, mutandis, Doronin v. Ukraine, no.", "16505/02, § 55-56, 19 February 2009). The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (see Salduz v. Turkey [GC], no. 36391/02, § 55, ECHR 2008). The Court observes that, in the course of the applicant’s trial, the courts failed to give an adequate response to his complaints about the early restrictions on his right to defence. Moreover, they relied on the applicant’s self-incriminating statements made in the absence of legal assistance.", "87. The Court has on many occasions condemned the practice of placing a person under administrative arrest to ensure his availability for questioning as a criminal suspect while not respecting his procedural rights (see, for example, Leonid Lazarenko v. Ukraine, no. 22313/04, § 54, 28 October 2010, and Nechiporuk and Yonkalo, cited above, § 264). Moreover, the Court has held that this problem is of a structural nature in Ukraine (see Balitskiy v. Ukraine, no. 12793/03, § 54, 3 November 2011).", "The present case discloses another example of it. 88. Accordingly, the Court concludes that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 89.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 90. The applicant claimed nothing for pecuniary or non-pecuniary damage. He noted that the fair examination of his case by the Court would be sufficient just satisfaction for him. 91.", "The Government submitted that no award should be made to the applicant given the aforementioned statements. 92. Having regard to the applicant’s position on the issue, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for him. At the same time, given the Court’s findings regarding the unfairness of the domestic proceedings resulting in the applicant’s conviction and having regard to the grave circumstances of this case, including the fact that confessions obtained in violation of the absolute prohibition on torture were admitted into evidence, the Court considers it indispensable for the proper protection of human rights that a retrial (a possibility of which is envisaged in the Ukrainian legislation) be provided forthwith should the applicant so request. Any such trial must observe, strictly, the substantive and procedural safeguards enshrined in Article 6 of the Convention (see Nechiporuk and Yonkalo, cited above, § 297).", "B. Costs and expenses 93. The applicant did not make any claim under this head. The Court therefore makes no award. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Decides to join to the merits the Government’s objections as to the exhaustion of domestic remedies and compliance with the six-month time-limit in respect of the applicant’s complaint under Article 3 of the Convention and dismisses them after having examined the merits of that complaint; 2. Declares the application admissible; 3. Holds that the applicant has been subjected to torture in violation of Article 3 of the Convention; 4. Holds that there has been a violation of Article 3 of the Convention on account of the lack of an effective investigation into the applicant’s allegation of torture by the police; 5. Holds that there has been a violation of Article 6 § 1 of the Convention as regards the applicant’s privilege against self-incrimination; 6.", "Holds that there has been a violation of Article 6 § 3 (c) of the Convention; 7. Holds that, as suggested by the applicant, the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by him. Done in English, and notified in writing on 15 May 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekDean Spielmann Registrar President" ]

[ "FIRST SECTION CASE OF RYBAKOVA AND OTHERS v. RUSSIA (Application no. 22376/05) JUDGMENT STRASBOURG 4 March 2010 FINAL 04/06/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Rybakova and Others v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Anatoly Kovler,Elisabeth Steiner,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 9 February 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "22376/05) 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 four Russian nationals, Ms Lidiya Arkadyevna Rybakova, Mr Vladislav Nikolayevitch Belyayev, Mr Yuriy Vladislavovitch Belyayev and Ms Marina Vladimirovna Belyayeva (“the applicants”), on 12 June 2005. 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the Court. 3. The applicants complained, in particular, about lengthy non-enforcement of the final and binding judgment in their favour, which had ordered authorities to register the applicants' property title to two vehicles.", "4. On 22 January 2009 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS 5. The applicants were born in 1938, 1939, 1965 and 1963 respectively and live in Novosemeykino, Samara Region.", "6. The applicants are owners of two vehicles. Following the refusal of the Samara Region State Inspectorate for Road Safety (ОГИБДД по Самарской области) (the “Inspectorate”) to register their property title to the vehicles, in October 2000 the applicants brought judicial proceedings against the Inspectorate. 7. On 7 May 2003 the Samarskiy District Court of Samara found for the applicants and ordered the Inspectorate to register their title to the vehicles.", "On 9 June 2003 the Samara Regional Court upheld the judgment on appeal. 8. On 30 June 2003 the writ of execution was sent to one of the applicants, Mr Yuriy Belyayev, who however did not receive it. On 8 August 2003 the writ was sent to him for the second time, and Mr Yuriy Belyayev received it on 9 August 2003. 9.", "On 29 May 2006 the enforcement proceedings were opened at the applicants' request. 10. On 31 August 2006 the Inspectorate informed the bailiff that it could not register the applicants' title and that the writ of execution should be sent to a special state body responsible for vehicles' registration (Samara Inter‑District Department of Registration and Examination – Межрайонный регистрационно-экзаменационный отдел г. Самары). On the same day the bailiff asked the court to accordingly change the debtor in the enforcement proceedings. On 20 September 2006 the Samara District Court of Samara granted the request.", "11. On 30 November 2006 the same court, on the bailiff's initiative, ordered the enforcement proceedings to be discontinued. The applicants appealed, claiming that they had not been duly informed about the proceedings, and on 27 August 2007 the Samara Regional Court quashed that decision and remitted the matter for fresh consideration. On 26 September 2007 the Samara District Court rejected the bailiff's request to discontinue the enforcement proceedings. The decision came into force on 10 October 2007.", "12. On 27 June 2008 the applicants' title to one of the vehicles was duly registered. 13. On 28 June 2008 the applicants informed the bailiff of their decision not to register their title to the second vehicle on the grounds that it had become worthless. 14.", "On 24 November 2008 the enforcement proceedings were closed. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF NON-ENFORCEMENT 15. The applicants complained under Article 6 of the Convention and Article 1 of Protocol No.", "1 that the judgment of 7 May 2003 in their favour had not been enforced in good time. 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.” 16. The Government contested that argument.", "They argued that the applicants had requested the opening of the enforcement proceedings on 29 May 2006, thus the State was not responsible for non-enforcement until that date. They asserted that the applicants were not interested in the enforcement, as, for example, they only appealed against the decision of 30 November 2006 to discontinue the enforcement proceedings on 29 May 2007. The Government further affirmed that the State was not responsible for non-enforcement from 10 October 2007, as the applicants obstructed the enforcement by failing to submit the relevant requests and to pay for the registration. 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 an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see Burdov v. Russia, no.", "59498/00, ECHR 2002‑III). To decide if the delay was reasonable, the Court will look at how complex the enforcement proceedings were, how the applicants and the authorities behaved, and what was the nature of the award (see Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007). 19. In the present case the judgment was not difficult to enforce as it required only a registration of the applicants' property title to the vehicles.", "20. As to the conduct of the applicant and the authorities, the Court reiterates that where a judgment is against the State, as in this case, it must take initiative to enforce it. The requirement of the creditor's cooperation must not go beyond what is strictly necessary (see Akashev v. Russia, no. 30616/05, §§ 21–23, 12 June 2008). 21.", "The authorities' failure to enforce the judgment for more than five years (from May 2003 till June 2008) allows the Court to conclude that there has been a violation of Article 6 and of Article 1 of Protocol No. 1 on account of failure to enforce the judgment in the applicants' favour in good time. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 22. The applicants also complained under Article 6 that the proceedings were too long.", "23. Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in this provision in that respect. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 24.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 25. The applicants claimed 1,280,000 Russian roubles (RUB) in respect of pecuniary damage (the alleged price of vehicles identical to the disputed vehicles). They also claimed 40,000 euros (EUR) in respect of non‑pecuniary damage. 26.", "The Government found the claim for pecuniary damage unsubstantiated and the claim for non-pecuniary damage excessive. 27. The Court does not discern any causal link between the violation found (the authorities' failure, during some five years, to register the applicants' title to vehicles in accordance with a binding judgment) and the pecuniary damage alleged (the price of the similar vehicles). Moreover, the applicants did not substantiate the claim. The Court therefore rejects it.", "28. The Court finds, however, that the applicants may be considered to have suffered some degree of frustration and distress as a result of the violation found in this case. Deciding on an equitable basis, it awards each of the applicants EUR 3,000 in respect of non-pecuniary damage. B. Costs and expenses 29.", "The applicants also claimed RUB 2,400 for the costs and expenses incurred. 30. The Government considered that the applicants' claim should be granted since they had submitted the documents confirming these expenses. 31. 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, the Court awards the sum claimed (EUR 54). 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 admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Articles 6 of the Convention and of Article 1 of Protocol No. 1 in respect of non-enforcement; 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 Russian roubles at the rate applicable at the date of settlement: (i) EUR 3,000 (three thousand euros) to each applicant, plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 54 (fifty four euros) to the applicants jointly, plus any tax that may be chargeable, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 4 March 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FIRST SECTION CASE OF TURLUYEVA v. RUSSIA (Application no. 63638/09) JUDGMENT STRASBOURG 20 June 2013 FINAL 07/10/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Turluyeva v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Mirjana Lazarova Trajkovska,Julia Laffranque,Linos-Alexandre Sicilianos,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 28 May 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "63638/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Raisa Turluyeva (“the applicant”), on 2 December 2009. 2. The applicant was represented by lawyers of the NGO EHRAC/Memorial Human Rights Centre. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicant alleged that her son had been unlawfully detained in Chechnya in October 2009 and then disappeared. 4. On 2 March 2010 the President of the First Section, acting upon the applicant’s request, granted priority treatment to the case under Rule 41 of the Rules of Court. At the same time he decided not to indicate to the Russian Government, under Rule 39 of the Rules of Court, measures sought by the applicant. 5.", "On 1 October 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 6. The applicant was born in 1970 and lives in Goyty, Urus-Martan District, Chechnya.", "A. Abduction of the applicant’s son 1. Background information 7. The applicant is a widow, whose husband died in 1994. She lived with her son, Sayd-Salekh Ibragimov, born in 1990, who at the relevant time was in his second year of studies at the Grozny Oil Institute. The applicant also has a daughter.", "The family lived in the village of Goyty, Urus-Martan District, Chechnya. Their household at 117 Gonchayeva (previously Sovetskaya) Street consisted of three houses sharing a common courtyard. One house belonged to the applicant and her children, and the other two to her husband’s brothers. According to the applicant, one of them had left Chechnya with his family and in 2009 that house was uninhabited. 2.", "Events of 21 October 2009 8. On 21 October 2009 the applicant was in Grozny. At about midday on that day she received a phone call from a relative, who told her that a special operation was taking place at their household and that soldiers were going to burn the house down. The applicant called her son, who was in Grozny, and told him not to come home but to stay at his uncle’s place. 9.", "In the meantime, the applicant and her brother-in-law Adnan I. went to Goyty by car. As soon as they arrived the car was surrounded by armed men in military uniforms, who they understood to be servicemen of the Ministry of the Interior. The servicemen showed them a body and told them that this man had been hiding in their household since the previous day, in the attic of Adnan I.’s house. The body was that of a young man, aged 17‑19, with long hair. His shirt was pulled up to the neck and his hands were raised behind the head; there was one wound in the heart area.", "Adnan I. then went to see his paralysed mother, who had been taken to the neighbours. 10. Police officers then took the applicant and her brother-in-law to the Urus-Martan district department of the interior (“the ROVD”) and questioned them. Both denied all knowledge of fighters’ presence in the attic of a house situated in their household. 11.", "The applicant and her brother-in-law were released at about 9 p.m. that day. They returned to Goyty and found that their houses had been burned down. Firefighters told them that the houses had been set on fire deliberately. Then the applicant’s brother-in-law returned to Grozny. 12.", "Adnan I.’s daughter M. later told her father that Sayd-Salekh Ibragimov had come to their home in Grozny at about 3 p.m. that day. Soon afterwards he had called a taxi and left, heading towards the city centre. M. told her father that a group of armed men had arrived at their house almost as soon as the applicant’s son had left and demanded that she tell them where he had gone or take them there. As M. did not know where he had gone, they left. 13.", "At about 10 p.m. on the same day Adnan I. received a call from the head of the Urus-Martan ROVD, who requested that he return to that office. When he arrived there three soldiers took him to Grozny in their car. He was taken to the office of Mr Sherip Delimkhanov, head of the external guards regiment of the Ministry of the Interior of Chechnya (полк милиции Управления Вневедомственной охраны МВД Чечни), also known as the “oil regiment”, as one of their main tasks was to secure oil pipes and installations. 14. Adnan I. was taken into a room where there were about a dozen members of the police force who had participated in the operation in Goyty earlier that day.", "They told Adnan I. that two police officers had been wounded and one had been killed. Adnan I. denied that any members of illegal groups had ever lived in their household, and stressed that the house in question was uninhabited. He was given to understand that the “blood feud” for the police officer who had been killed would fall on him and his family. 15. After about twenty minutes another soldier brought Sayd-Salekh Ibragimov into the room.", "Adnan I. saw signs of beatings on his nephew’s face: his right cheek was discoloured, there was blood in the right corner of his mouth and nose, and he had difficulty standing up without assistance. He also remarked that his nephew was shaking, looked frightened and spoke fast, without looking at anyone. The policemen told them that Sayd-Salekh Ibragimov could save his life by cooperating; otherwise they would kill him in retribution for the death of their colleague. Adnan I. was allowed to talk to his nephew. The latter admitted that he had maintained contacts with members of illegal armed groups through the Internet and his mobile phone and promised that he would cooperate with the police.", "Adnan I. pleaded with him to do anything to save his life. 16. Soon after midnight Adnan I. and his son Magomed, who had also been brought to the regiment’s headquarters, were released. The family had no news of Sayd-Salekh Ibragimov after that date. 17.", "In support of her submissions the applicant presented written statements drawn up by her and by her brother-in-law, Adnan I., in December 2009 and July 2011. 18. The special operation in Goyty on 21 October 2009 was officially reported by the Ministry of the Interior of Chechnya as follows: “21 October 2009 Policeman killed saving elderly woman Two illegal fighters were killed in Goyty in the Urus-Martan district as a result of a special operation. ‘“The operation aimed at locating and exterminating members of illegal armed groups has just been completed. It took place in Sovetskaya Street, where members of illegal armed groups had been spotted in one of the houses,’ stated the Chechnya Minister of the Interior Mr Ruslan Alkhanov.", "One of the fighters was identified as Abdul Dzhumayev from Shatoy district. The Minister also said that a member of the police force had been killed while saving an elderly woman from a house seized by terrorists there. ‘Unfortunately, one of our comrades died. He was a member of the external guards’ regiment of the Ministry of the Interior of Chechnya. Two other policemen were wounded,’ said Mr Alkhanov.", "He stressed that the officers had received injuries while trying to save the life of an 80-year-old woman. They evacuated her through the window and were shot at by the bandits. One police officer lost his life. The operation was carried out by the Sever (Northern) regiment of the internal troops of the Ministry of the Interior, the Special Police Force (“the OMON”) and the external guards regiment of the Ministry of the Interior of Chechnya under the command of Lieutenant-Colonel of the Ministry of the Interior Sherip Delimkhanov.” 19. The Government, in a memorandum of 26 January 2011, acknowledged the basic facts as submitted by the applicant.", "They confirmed that a special operation had been carried out in Goyty, in Sovetskaya Street, on 21 October 2009, during which one soldier of the external guards regiment had been killed and two others wounded. Two members of illegal armed groups had been killed and a third had escaped. As a result of this conflict, the houses at 117 Sovetskaya Street had burned down. In connection with this incident, at about midnight on 21 October 2009 the servicemen of the external guards regiment had taken Sayd-Salekh Ibragimov to the regiment’s headquarters in Grozny. He had an oral exchange about these events in room 13 of the building and was released at about 12.30 a.m. on 22 October 2009.", "B. The official investigation of the abduction 1. Initial proceedings 20. In the days immediately following 21 October 2009 the applicant expected to be informed about the whereabouts of her son, and did not apply to any authorities. On 1 November 2009 she and her brother-in-law Adnan I. were called to the office of the Achkhoy-Martan District Prosecutor.", "The applicant submitted that the investigator had asked them about the events of 21 October 2009. However, the investigator had refused to note Adnan I.’s statements about the meeting at Mr Delimkhanov’s office. According to the applicant, the investigator told them that if they wanted to pursue complaints against the “oil regiment”, they would be forced to change their statements. The applicant and Adnan I. did not insist on noting their statements. 21.", "The applicant submitted that she continued to seek information about her son from various officials. 22. On 2 December 2009 she submitted a complaint to the Investigating Committee at the Prosecutor’s Office in the Achkhoy-Martan district (hereinafter “the district investigating committee”). She described the events of 21 October 2009 and asked to be informed about the whereabouts of her son. She also asked for him to be allowed to meet with a lawyer and to be given medical assistance if needed.", "23. Upon this written application, the district investigating committee initiated a check, under Articles 144-45 of the Criminal Procedural Code. By 8 December 2009 the investigator in charge of the case had collected personal information about Sayd-Salekh Ibragimov from the local village administration, and requested all the district and regional police and investigating departments in Chechnya to check whether they had any information about the young man. The letters mentioned that on 21 October 2009 he had been delivered by unidentified police officers to the headquarters of the external guards’ regiment of the Ministry of the Interior of Chechnya and that there had been no news of him after that. 24.", "On 9 December 2009 an investigator took a statement from Adnan I. The latter explained that he had come to Goyty on 21 October 2009 at the applicant’s request; that he had seen a large group of Ministry of the Interior soldiers and the body of a young man with long hair; that his paralysed mother had been taken to the neighbours; that he and the applicant had been taken to the Urus-Martan ROVD for questioning; that they had been released on the same day and had seen their houses in Goyty burned down; that he had been called late at night to return to the Urus-Martan ROVD and that from there he had been brought back to Grozny, to the “oil regiment” headquarters in Mayakovskaya Street. The witness then went on to describe in detail the interior of the building and the office where he had been questioned, and where he had last seen Sayd-Salekh Ibragimov. He recognised Mr Delimkhanov among the soldiers. He also stated that his nephew had been questioned by a soldier called Valid, who had earlier told him that he was the commander of the sixth platoon of the regiment and was a native of Goyty.", "Valid showed a mobile phone to Sayd-Salekh and showed him something on the phone, asking whether he knew these people, to which Sayd-Salekh gave a positive answer. Valid told Sayd-Salekh that they had been following him for about a month. He also asked him where he had met these people, to which the Adnan I.’s nephew responded “In a chat room”. Adnan I. stressed that his nephew had looked scared and had signs of beatings on his face. The nephew also stated that the police officers had told him that they would pursue him for the death of their colleague and that he felt threatened and had asked for protection.", "Adnan I. had not seen his nephew after that. 25. On 10 December 2009 the investigator took a statement from the applicant. She gave similar statements about the events of 21 October 2009; she also stated that the house where she lived had burnt down and she and her family (herself, her daughter and her son) had lost their property, including gold jewellery, and documents. The applicant submitted that she had had no news of her son since 21 October 2009, and gave the police two GSM phone numbers used by her son.", "26. On 10 December 2009 the same investigator wrote down explanations submitted by Ms Aminat O., Sayd-Salekh’s girlfriend, who lived with him at his house. She was an eyewitness to the events of 21 October 2009. She stated that at about 2 p.m. a group of armed servicemen had arrived at their house and searched part of the household. There was an exchange of fire in the courtyard and she had asked police officers who were there to take “granny” out of the house, which they did, bringing her out through the window on a mattress.", "She thought that the house had been set on fire by the police officers. She had not seen Sayd‑Salekh Ibragomov after 21 October 2009 and had no news of his whereabouts. 27. On 11 December 2009 the investigator of the Achkhoy-Martan district investigating committee asked the ROVD to take action to find out Sayd-Salekh’s whereabouts, in particular to obtain information from the GSM operator about his movements and calls received since 1 September 2009 and to find and question the driver of the bus which took the students of the Grozny Oil Institute to and from classes. 28.", "Between 11 and 12 December 2009 the investigator sought information about Sayd-Salekh Ibragimov from the management of the Grozny Oil Institute, from the Public Health department of Chechnya, from the Chechnya Prison Department, and from a number of other law‑enforcement bodies. In particular, on 12 December 2009 the investigator requested the commander of the external guards regiment to identify and send for questioning the servicemen who had been on duty on the night of 21 to 22 October 2009 and to send a copy of the regiment’s registration log to the district investigating committee. 29. On 15 December 2009 the Grozny Oil Institute informed the investigator that Sayd-Salekh Ibragimov had not attended classes since 19 October 2009. One of his classmates and a professor confirmed that they had not seen him at the Institute since 19 October 2009; a copy of the class record was acquired.", "30. On 15 December 2009 the investigator, together with Adnan I. and the applicant’s representative from NGO Committee Against Torture, inspected the headquarters of the “oil regiment” in Grozny. Adnan I. showed the office where he had last seen his nephew, at about midnight on 21 October 2009, and specified that about a dozen police officers had been there at the time, including Mr Sherip Delimkhanov. 31. On 17 December 2009 the district investigating committee ruled that criminal proceedings would not be opened.", "It concluded that there was no reason to suspect that murder had been committed, and that therefore there was no evidence of a crime. On the same day the applicant’s representative was forwarded a copy of the decision and informed of the appeal procedure. 2. Opening of the criminal investigation 32. It appears that the applicant complained about the above decision.", "As a result, the documents collected during the investigation were sent to the Leninsky district investigating committee in Grozny, the location of the headquarters of the “oil regiment”. On 28 December 2009 that office opened criminal investigation file 66102 in respect of a suspected murder (Article 105 of the Criminal Code). The document considered it established that on 21 October 2009 Sayd-Salekh Ibragimov had been taken to the headquarters of the regiment by unidentified servicemen of the Ministry of the Interior. There he was questioned orally in room 13 about the incident which had occurred earlier that day in Goyty. Sayd-Salekh Ibragimov was released and left the premises of the regiment at about 12.30 a.m. on 22 October 2009.", "His whereabouts remained unknown. On the same day the applicant was informed about this development. 33. On 15 January 2010 the investigator responsible for the case drew up a detailed plan of the necessary actions which should be taken. 34.", "On 2 February 2010 the applicant was granted the status of victim in the proceedings. 3. Statements by the applicant, Adnan I. and others 35. On 2 and 10 February 2010 the applicant was questioned as a victim of the crime. On the same day Aminat O. was questioned.", "They reiterated their previous statements and stated that their jewellery had disappeared after the special operation. 36. On 24 March 2010 Adnan I. was questioned as a witness. He gave detailed submissions about the events of 21 October 2009, in line with his statement of 9 December 2009 (see paragraph 24 above). He described in detail the encounter with Sherip Delimkhanov, Valid A. and about fifteen servicemen of the regiment at its headquarters on the night of 22 October 2009.", "The witness stressed that the police officers had referred to a blood feud which would now fall on his family, in retribution for the death of their colleague in his house. He then described how Valid A. had led Sayd‑Salekh into and out of the room by holding him by the neck from behind and forcing him to bend forward. The witness described the signs of beatings and blood on his nephew’s face, the fact that he was frightened and was shaking, and that he spoke fast and without looking at anyone. His nephew had admitted that he had maintained contacts with illegal fighters by “Internet chat”. After that admission Mr Delimkhanov had said that “we shall kill this dog and avenge our colleague”, but that he could be spared if he cooperated.", "Adnan I. then pleaded with Sayd-Salekh to do so to save his life. His nephew said that he could establish contact with illegal fighters on the Internet, but only during the daytime. After that, at about 12.30 a.m. on 22 October 2009, the witness was released from the regiment headquarters and returned home. He had not seen his nephew after that. 37.", "Adnan I. described the threats directed at him and his son Magomed. He stated that in early December [2009] he had been invited, under threat, to talk to Mr Delimkhanov, who had told him that he had two days to prove that he had seen Sayd-Salekh at Mr Delimkhanov’s office. Then, at about 6.45 a.m. on 29 December 2009, a group of about fifteen armed men wearing black uniforms and masks burst into his house looking for his son Magomed. After that Magomed I. left Russia, and the witness was not prepared to disclose his place of residence, out of fear for his life. 4.", "Information about the detention and questioning of Sayd-Salekh Ibragimov received from the police 38. At some point the investigation found out that the headquarters of the “oil regiment” was equipped with CCTV cameras, but that their contents were erased within ten days. 39. In September 2010 the investigation sought to establish a complete list of servicemen from various security and police detachments who had taken part in the operation on 21 October 2009. 40.", "On various dates during 2010 the investigators questioned a number of police officers from the external guards regiment and from the Urus‑Martan ROVD who had taken part in the special operation in question and who had been present at the offices when the applicant and her relatives had been there. 41. The servicemen from the Urus-Martan ROVD confirmed that they had taken part in the operation, and also that two suspects had been killed and that there had been police casualties. They also confirmed that the applicant’s house had been burned down. They were not aware that the applicant and her brother-in-law had been questioned at the ROVD.", "42. Mr Delimkhanov was questioned as a witness on 23 June 2010. He confirmed that after the operation of 21 October 2009 he had orally instructed his subordinates to bring Sayd-Salekh Ibragimov, his uncle and cousin to the regiment’s headquarters. During a conversation Sayd-Salekh Ibragimov had confirmed that he had information about members of illegal armed groups, and promised to cooperate. He also promised to return in order to submit further information.", "He and his relatives had then left the regiment’s headquarters. Since that date neither Sayd-Salekh Ibragimov nor his relatives had been to the regiment’s headquarters. 43. Another serviceman of the regiment, Valid A., on 23 June 2010 gave similar statements about the three men being brought to the regiment headquarters at about midnight on 21 October 2009, the ensuing discussion and the fact that they had left the premises. 44.", "Several other servicemen of the external guards regiment were also questioned. Some of them denied any knowledge that Sayd-Salekh Ibragimov or his relatives had been to the regiment’s headquarters in the evening of 21 October 2009. However, one serviceman, Shamsudy A., who had been on duty on the night in question, stated on 18 December 2009 and again on 4 March 2010, that Sayd-Salekh “had come to see the commander of the regiment”. Soon afterwards, two other men – Adnan I. and his son Magomed I. – also arrived to meet Mr Delimkhanov.", "About thirty minutes later the three men had left. No records were made of their visit or questioning. Another serviceman of the regiment, Usman D., stated on 18 December 2009, referring to Shamsudy A., that Sayd-Salekh and his relatives “have been invited to see Sherip Delimkhanov at about 11 p.m. on 21 October 2009”. 45. It appears from the exchange of letters between the Investigating Committee and the Ministry of the Interior that the investigation on several occasions tried to secure further participation of Mr Delimkhanov and two other high-ranking servicemen of the Ministry in the investigation, by means such as questioning and confrontation with other witnesses.", "On 28 September 2010 the investigator in charge of the case wrote a report to his superior, the head of the second serious crimes department of the Chechnya Investigating Committee. He described his attempts to obtain a confrontation between Adnan I. and Mr Delimkhanov. The investigator wrote that he had finally been invited to Mr Delimkhanov’s office, where the latter first refused to participate in the confrontation due to his heavy workload, and then insisted that the confrontation should take place immediately and in his office. The investigator’s attempts to arrange for a confrontation within a reasonable time and on the premises of the Investigating Committee have been unsuccessful. 46.", "From the subsequent documents it follows that on 4 October 2010 the investigator terminated his work with the Investigating Committee and the file was transferred to another investigator. 5. Investigation of the events of 21 October 2009 47. At 4.30 p.m. on 21 October 2009 investigators of the Achkhoy‑Martan district department of the investigating committee examined the buildings at 117 Gonchayeva Street. They described two male bodies, two machine guns, two improvised explosive devices, and a number of new and empty ammunition cartridges.", "They also noted the effects of fire in the houses and outbuildings. Both bodies bore gunshot wounds. An additional inspection of the site took place on 22 October 2009. 48. On 19 December 2009 the Achkhoy-Martan district department of the investigating committee opened a separate criminal investigation of the events of 21 October 2009, on suspicion of violence directed at state officials, membership of an illegal armed group, wilful damage to property and unlawful handling of arms and explosives.", "A number of police officers who had taken part in the operation were questioned. Firefighters who had attended the scene were also questioned. It does not appear that the cause of the fire at the applicant’s address has been established. 49. It appears that this investigation, directed at unknown persons, is still pending.", "6. The latest developments 50. In response to the Court’s request, the Government submitted a complete copy of the criminal investigation file no. 66102 (five volumes, over 1,100 pages). The investigation was adjourned on one occasion and reopened.", "In the latest documents the investigator summarised the findings as follows (the passage quoted below is taken from the decision of 6 September 2010 to extend the term for investigation): “On 21 October 2009 a special operation aimed at discovering members of illegal armed groups was carried out at 117 Gonchayeva Street. The operation was carried out jointly by servicemen from [five different units of the Ministry of the Interior of Chechnya, including the external guards regiment], [the Argun Town Department of the Federal Security Service (FSB)] and servicemen of the Urus-Martan ROVD. In the course of the operation unidentified servicemen of the Urus-Martan ROVD detained [the applicant] and [Adnan I.]. At about midnight on 21 October 2009 Sayd‑Salekh Ibragimov arrived voluntarily at the headquarters of the [external guards regiment] situated in Grozny at the following address ... where he was orally questioned in room 13 about the incident which had taken place on 21 October 2009 ... At about 12.30 a.m. on 22 October 2009 S.-S. Ibragimov left the headquarters of the [regiment] and his whereabouts remain unknown”. 51.", "In addition to the measures described above, the investigation has sent out dozens of requests to various law-enforcement bodies, detention centres, hospitals and travel agencies, but has not received any additional relevant information about the whereabouts of Sayd-Salekh Ibragimov. 52. It appears that by the end of 2010 the investigation was still pending, without any tangible results as to the fate of the applicant’s son. No-one has been charged with any crime. C. Complaint of harassment 53.", "The applicant submitted that on 14 December 2009 Adnan I. had been invited to meet with the commander of the “oil regiment”, Mr Sherip Delimkhanov. Adnan I. and his representative went to Mr Delimkhanov’s home, situated next to the regiment’s headquarters. Adnan I. claimed that he had covertly made an audio recording of the conversation, which was partly in Chechen and partly in Russian; a copy of that recording has been submitted to the Court by the applicant. According to the applicant, Mr Delimkhanov told Adnan I. that as the oldest man in the house he was to be held responsible for what had happened there. Accordingly, the blood feud resulting from the death of the policeman should fall on him.", "Mr Delimkahnov alleged that he had protected Adnan I. from revenge attacks by other servicemen, but now since he had accused Mr Delimkhanov of the torture and murder of his nephew, he would no longer do so. Mr Delimkhanov also stated that he could obtain plenty of statements which would show that Sayd-Salekh Ibragimov was released from the headquarters of the regiment. He suggested that Sayd-Salekh had “gone to the forest” to fight, and that his family had staged the story of kidnapping. 54. The applicant submitted further that on 29 December 2009 a group of armed men had burst into Adnan I.’s house and searched it, without presenting any documents or identifying themselves.", "The applicant submitted that her brother-in-law had complained to the prosecutors’ office about this incident, but did not present any documents. 55. On 7 February 2010 three lawyers of the Committee Against Torture NGO involved in representing the applicant and other individuals complaining of human rights violations in Chechnya were detained overnight by officers of the Shali District Department of the Interior. On 10 February 2010 the Committee issued a public statement denouncing the detention as unlawful, and referred to previous instances of pressure on the applicant and her relative. II.", "RELEVANT DOMESTIC LAW A. Constitution of the Russian Federation 56. Articles 20, 21 and 20 of the Constitution provide that everyone has the right to life and the right to liberty and personal security, which are guaranteed and protected by the State. No one shall be subjected to cruel or degrading treatment or punishment. 57.", "Articles 45 and 46 of the Constitution guarantee judicial protection of rights under the Constitution. 58. Articles 52 and 53 of the Constitution protect the rights of victims of crimes. The State guarantees victims access to justice and compensation for damage. Everyone is entitled to compensation for damage caused by unlawful actions of State officials.", "B. Russian Criminal Code 59. Articles 126 and 127 of the Russian Criminal Code stipulate that kidnapping and unlawful deprivation of liberty, respectively, are crimes punishable by up to fifteen and eight years of imprisonment respectively. Article 105 provides that murder is punishable by six to fifteen years’ imprisonment. Aggravated murder, for example if committed by an organised group, is punishable by prison terms, including life imprisonment, and by the death penalty. C. Russian Code of Criminal Procedure 60.", "Articles 21 and 22 of the Code provide as follows: Article 21. Obligation to prosecute “1. Public prosecution in criminal cases ... shall be carried out on behalf of the State by a prosecutor, an investigator or an inquiry officer. 2. In every instance in which evidence of a crime is observed, the prosecutor, investigator, inquiry agency, or inquiry officer shall take the actions specified by this Code to determine the facts of the crime that took place and to apprehend the persons guilty of committing the crime ...” Article 22.", "Victims’ right to take part in criminal prosecutions “The victim, his legal guardian and/or designated representative shall have the right to take part in the criminal prosecution of the accused ...” 61. Articles 124 and 125 of the Code provide as follows: Article 124. Examination of complaints by a prosecutor or head of an investigating body “1. A prosecutor or head of an investigating body shall examine a complaint within ... ten days of its receipt ...” Article 125. Judicial examination of complaints “1.", "Decisions of an investigator or prosecutor to refuse to initiate a criminal investigation ... or any other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court, which is empowered to examine the legality and grounds of the impugned decisions ... 3. The court shall examine the legality and the grounds of the impugned decisions or acts ... within five days of receipt of the complaint ... 5. Following examination of the complaint, the court shall deliver one of the following decisions: (1) Declaring the decisions, acts or omissions of the official unlawful or unsubstantiated and obliging the official to eliminate any defects; (2) Not allowing the applicant’s complaint ...” 62. Articles 140,141 and 144 of the Code provide as follows: Article 140. Grounds and bases for initiating a criminal case “1.", "The following shall serve as grounds for initiating a criminal case: a) a complaint of a crime ...” Article 141. Criminal complaint “1. A criminal complaint may be submitted in oral or written form.” Article 144. Procedure for reviewing a report of a crime “1. An inquiry officer, inquiry agency, investigator, or prosecutor must accept and investigate every report of a crime ... and shall make a decision on that report ... no later than three days after the filing of the report ... 3.", "A prosecutor, head of an investigation unit or head of an inquiry agency ... may extend the time period specified by (1) of this Article to up to ten days ... 5. Any refusal to accept a report of a crime may be appealed against to the prosecutor or to a court in accordance with the procedures established by Articles 124 and 125 of this Code ... 63. Articles 157 and 159 of the Code provide as follows: Article 157. Urgent investigative actions “1. When there is evidence of a crime for which a preliminary investigation is required, an inquiry agency shall initiate a criminal case and take urgent investigative actions ...” Article 159.", "Mandatory review of official requests submitted “1. An investigator or inquiry officer shall be obliged to review every official request filed in a criminal case ... 2. Under this requirement ... a victim ... or their representatives may not be denied the opportunity to question witnesses or to have a forensic expert analysis or other investigative actions conducted ...” D. Russian Civil Code 64. Chapter 59 of the Code provides that pecuniary and non-pecuniary damage caused, amongst other things, by unlawful actions of State officials should be compensated for in full. III.", "INTERNATIONAL AND DOMESTIC REPORTS ON DISAPEARANCES IN CHECHNYA AND INGUSHETIA A. Reports by international inter-governmental and non-governmental organisations 1. Council of Europe Committee of Ministers Documents 65. According to document CM/Inf/DH(2010)26E of 27 May 2010 entitled “Action of the security forces in the Chechen Republic of the Russian Federation: general measures to comply with the judgments of the European Court of Human Rights”, a special unit has been set up within the Investigating Committee in Chechnya to address the issues raised in the Court’s judgments. An information document submitted by the Russian Government in March 2011 (DH-DD(2011)130E) stated that of 136 cases discussed (concerning the “Khashiyev group” involving findings of violations of core rights in the Northern Caucasus), only two criminal cases have been concluded (one of which was terminated as a result of the suspect’s death).", "The remainder were pending; most of them have been suspended for failure to identify the suspects. 66. The relevant part of Interim Resolution CM/ResDH(2011)292 of 2 December 2011 on “Execution of the judgments of the European Court of Human Rights in 154 cases against the Russian Federation concerning actions of the security forces in the Chechen Republic of the Russian Federation” stated: “1. General framework for domestic investigations carried out in cases which gave rise to a judgment of the Court or to an application before the Court Considering the important changes introduced after the events described in the Court’s judgments in the general framework governing domestic investigations and in particular those conducted in cases which gave rise to a judgment of the Court or an application before the Court; ... Noting with interest the efforts reported by the Russian authorities with a view to remedying the shortcomings of the initial investigations, establishing the facts as well as the identities of those responsible, including servicemen and other representatives of federal forces who might have been involved in the events described in the judgments; ...", "Noting however with concern that despite the efforts made by the Investigative Committee and by other competent authorities, more than six years after the first judgments of the Court, in the vast majority of cases, it has not yet been possible to achieve conclusive results and to identify and to ensure the accountability of those responsible, even in cases where key elements have been established with sufficient clarity in the course of domestic investigations, including evidence implicating particular servicemen or military units in the events; Underlining therefore the need to ensure that the investigating authorities make full and effective use of all means and powers at their disposal as well as to reflect on whether any other additional measures are still required, bearing in mind the difficulties inherent in investigations conducted into the consequences of a large-scale antiterrorist operation such as that at issue; Stressing in addition that the necessary action in this respect should be taken as a matter of priority since with the passage of time, the risk of loss of evidence increases and even if they are eventually identified, the prosecution of those responsible may become impossible given the expiry of the time-limits in the statutes of limitation ... URGES the Russian authorities to enhance their efforts so that independent and thorough investigations into all abuses found in the Court’s judgments are conducted, in particular by ensuring that the investigating authorities use all means and powers at their disposal to the fullest extent possible and by guaranteeing effective and unconditional co-operation of all law-enforcement and military bodies in such investigations; STRONGLY URGES the Russian authorities to take rapidly the necessary measures aimed at intensifying the search for disappeared persons; ENCOURAGES the Russian authorities to continue their efforts to secure participation of victims in investigations and at increasing the effectiveness of the remedies available to them under the domestic legislation; ...” 2. Reports by other Council of Europe bodies 67. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) issued three public statements in relation to Chechnya between 2001 and 2007, deploring the absence of cooperation in the investigation of the alleged violations. The public statement of 13 March 2007 conceded that “the abductions (forced disappearances) and the related problem of unlawful detention ... continue to constitute a troubling phenomenon in the Chechen Republic”. In January 2013 the CPT, for the first time, published a report to the Russian Government drawn up after its visit to the North Caucasian region of the Russian Federation from 27 April to 6 May 2011.", "The report focussed on the allegations of ill-treatment and reported allegations of unrecorded detentions and detentions in unlawful locations. It raised the problems of impunity of the law-enforcement personnel for such crimes and recommended to implement measures aimed at safeguarding the interests of the detainees as of first moments of detention, including proper record-keeping of detention, notification of relatives, access to a lawyer and to medical council, providing full information about their rights. 68. On 4 June 2010 the PACE Committee on Legal Affairs and Human Rights presented a report entitled “Legal remedies for human rights violations in the North-Caucasus Region”. On the basis of that report, on 22 June 2010 PACE adopted Resolution no.", "1738 and Recommendation no. 1922 deploring the absence of an effective investigation and prosecution of serious human rights violation in the region, including disappearances. They found that “the suffering of the close relatives of thousands of missing persons in the region and their inability to get over their grief constitute a major obstacle to true reconciliation and lasting peace.” Among other measures, the Resolution called on the Russian authorities to: “13.1.2. bring to trial in accordance with the law all culprits of human rights violations, including members of the security forces, and to clear up the many crimes which have gone unpunished ...; 13.1.3. intensify co-operation with the Council of Europe in enforcing the judgments of the European Court of Human Rights, especially where they concern reinforcement of the individual measures to clear up the cases of, in particular, abduction, murder and torture in which the Court has ascertained a lack of proper investigation; 13.1.4. be guided by the example of other countries which have had to contend with terrorism, particularly as regards the implementation of measures conducive to the suspects’ co-operation with justice in dismantling the terrorist networks and the criminal entities that exist within the security forces, and to prevent further acts of violence; ... 13.2. both Chambers of the Russian Parliament to devote their utmost attention to the situation in the North Caucasus and to demand exhaustive explanations of the executive and judicial authorities concerning the malfunctions observed in the region and mentioned in this resolution, and to stipulate that the necessary measures be applied.” In Recommendation no. 1922, PACE advised the Committee of Ministers to: “2.1.", "pay the utmost attention to the development of the human rights situation in the North Caucasus; 2.2. in enforcing the judgments of the European Court of Human Rights (the Court) concerning this region, emphasise the prompt and complete elucidation of the cases in which the Court has ascertained an absence of effective investigation; ...” 69. In Resolution 1787 (2011) entitled “Implementation of judgments of the European Court of Human Rights”, PACE considered deaths and ill‑treatment by law-enforcement officials and a lack of effective investigation thereof in Russia as one of the four “major systemic deficiencies which cause a large number of repetitive findings of violations of the Convention and which seriously undermine the rule of law in the states concerned”. 70. A report dated 6 September 2011 by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to the Russian Federation from 12 to 21 May 2011, found a number of positive developments aiming to improve daily life in the republics visited. Despite those positive steps, the Commissioner defined as some of the most serious issues counter-terrorism measures, abductions, disappearances and ill-treatment, combatting impunity and the situation of human rights defenders.", "The report included the Commissioner’s observations and recommendations in relation to those topics. 71. In particular, the Commissioner was deeply concerned by the persistence of allegations and other information relating to abductions, disappearances and ill-treatment of people deprived of their liberty in the Northern Caucasus. While the number of abductions and disappearances in Chechnya might have decreased recently compared with 2009, the situation remained far from normal. Referring to the far-reaching effects of disappearances on a society as a whole, he supported the proposal of the Presidential Council for Civil Society Institutions and Human Rights to create an interdepartmental federal commission to determine the fate of individuals who had gone missing during the entire period of counter-terrorism operations in the Northern Caucasus.", "The Commissioner further emphasised the importance of systematic application of rules prohibiting the wearing of masks or non-standard uniforms without badges, as well as the use of unmarked vehicles in the course of investigative activities. 72. The Commissioner went on to state that the persistent patterns of impunity for serious human rights violations were among the most intractable problems and remained a source of major concern to him. There had certainly been a number of positive steps, such as the establishment of Investigating Committee structures, increased support for victim participation in criminal proceedings, and the promulgation of various directives regarding the conduct of investigations. Despite those measures of a systemic, legislative and regulatory nature, the information gathered during the visit had led the Commissioner to conclude that the situation had remained essentially unchanged in practice since his previous visit in September 2009.", "He called on the Russian leadership to help in creating the requisite determination on the part of the investigators concerned by delivering the unequivocal message that impunity would no longer be tolerated. 3. NGO Reports 73. In September 2009 Human Rights Watch (HRW) issued a report entitled ‘Who Will Tell Me What Happened to My Son? Russia’s Implementation of European Court of Human Rights Judgments on Chechnya’, which was strongly critical of the absence of progress in the investigations in disappearance cases.", "74. On 20 April 2011 HRW and two Russian NGOs, the Committee Against Torture and Memorial, published a joint open letter to the Russian President. They spoke of a “complete failure of the Chechen Republic investigating authorities to deal with abductions of Chechnya residents by local law-enforcement and security agencies”, of “systematic sabotage of investigations by Chechen law-enforcement agencies and the inability of the Investigating Committee to fulfil its direct mandate to investigate crimes”. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 75.", "The applicant complained that the right to life of her son had been violated, and that the authorities had failed to investigate this complaint, contrary to the requirements of Article 2 of the Convention, which reads as follows: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” 76.", "The Government contested that argument. They stressed that the investigation was still pending and that no information about the death of Sayd-Salekh Ibragimov had been obtained. In these circumstances, the complaint should be dismissed as manifestly ill-founded. A. Admissibility 77. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "In so far as the Government’s objection that the investigation is still pending appears to raise issues concerning the effectiveness of the investigation, the Court finds that they are closely linked to the substance of the complaints and should be joined to the merits of the case. It further notes that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "Alleged violation of the substantive aspect of the right to life (a) The parties’ submissions 78. The applicant’s complaint under the substantive aspect of Article 2 was twofold. First, she argued that her son was killed by State agents, in breach of Article 2. She stated that he was last seen at the headquarters of the external guards regiment on the night of 21 to 22 October 2009. He was suspected of a serious crime, that of aiding and abetting members of illegal armed groups who had killed and wounded police officers.", "He was frightened and displayed signs of ill-treatment. Senior members of the police force expressed unambiguous threats to kill him in retribution for the casualties sustained by the regiment, unless he cooperated with them. His detention or questioning were not recorded. No one has seen Sayd-Salekh since that date; there is no information about his fate or whereabouts. The Government have been unable to provide any explanation as to what happened to him subsequently He must therefore be presumed killed by the same persons who detained him on 21 October 2009.", "79. Second, the applicant argued that the Russian Federation failed in their positive obligations under Article 2 to protect the life of Sayd‑Salekh Ibragimov. The applicant indicated a number of serious shortcomings of both a general and a specific nature, which led to the possibility of her son “disappearing” after detention. Despite a large number of “disappearances” occurring in Chechnya in the past years, the authorities had failed to create a system which could prevent such incidents and respond quickly to them when they occurred. Thus, the applicant emphasised that the responsibility for special operations during which persons could be detained was not clear, especially vis-à-vis the local law-enforcement authorities.", "The list of personnel who took part in such operations was not available, and was sought by the investigation months after the operation had taken place. The investigating authorities were unable to ensure the cooperation of the commanding officers, as illustrated by the documents relating to Mr Delimkhanov. No disciplinary or other measures were taken against senior law-enforcement personnel in charge of operations which resulted in disappearances, nor in respect of the senior prosecutors and investigators for failing to take timely steps to combat and investigate them. This resulted in impunity for both perpetrators and officials from the investigating agencies. Finally, the applicant considered that if a fast and comprehensive investigation had been carried out upon her application, her son might have been saved from “disappearing”.", "80. The Government’s position was limited to pointing that no verifiable information about Sayd-Salekh’s death had been obtained so far. (b) The Court’s assessment (i) Whether Sayd-Salekh Ibragimov may be presumed dead, and the establishing of responsibility for his presumed death 81. The Court observes that in its extensive jurisprudence it has developed a number of general principles relating to the establishment of matters in dispute, in particular when faced with allegations of violations of fundamental rights (for a most recent summary of these, see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, 13 December 2012).", "82. Turning to the circumstances of the present case, the Court finds it sufficiently established, on the basis of the parties’ submissions and the documents submitted to it, that at around midnight on 21 October 2009 Sayd-Salekh Ibragimov was taken by servicemen of the external guards regiment to the regiment’s headquarters in Grozny (see, for example, paragraphs 42-44 and 50 above). Two of his relatives, Adnan I. and Magomed I., were also taken to the regiment’s headquarters and saw him there. Sayd-Salekh Ibragimov’s detention was based on the suspicion that he had committed a criminal offence, namely that of aiding an alleged member of a criminal group, although no formal charges were laid against him. During his detention he was questioned by police officers, presumably about his suspected criminal activity.", "However, no formal records were drawn up in relation to his detention or questioning. His uncle and cousin witnessed Sayd-Salekh Ibragimov bearing clear signs of ill-treatment, frightened and totally controlled by his captors. They were given to understand that his life depended on the extent of his “cooperation” with the officers, who considered him responsible for the death and injuries of their colleagues. Although some officers of the oil regiment alleged that he had been released, together with his two relatives, he has not been seen since, and his family have had no news of him. Adnan I and Magomed I. firmly denied that he was released with them, both to the Court and to the domestic investigation (see paragraphs 16, 17, 24 and 36 above).", "The investigation did not acquire any evidence of his alleged release. There is no plausible explanation as to what happened to him after his detention. 83. The Court reiterates that in situations such as the one at hand, where it is possible to establish that a person entered a place under the authorities’ control and has not been seen since, the onus is on the Government to provide a plausible and satisfactory explanation as to what happened at that place, and to show that the person concerned was not detained by the authorities, but left the premises without subsequently being deprived of his or her liberty (see Tanış and Others v. Turkey, no. 65899/01, § 160, ECHR 2005–VIII, and Magomadov v. Russia, no.", "68004/01, § 97, 12 July 2007). The Government referred to the unfinished nature of the criminal investigation and to the lack of evidence of the applicant’s son’s death. However, the Court considers that the fact that the investigation has failed to progress beyond establishment of the basic facts communicated by the applicant is not detrimental to her argument that the State is responsible for Sayd-Salekh Ibragimov’s detention. It finds that the Government have failed to provide a plausible explanation of Sayd-Salekh Ibragimov’s fate following his detention at the external guards regiment headquarters, or to show convincingly that he has been released. 84.", "It remains to be seen whether, as the applicant submits, Sayd‑Salekh Ibragimov can be presumed dead following his unacknowledged detention. The Court reiterates that the presumption of death is not automatic and is only reached on examination of the circumstances of the case, in which the lapse of time since the person was last seen alive or heard from is a relevant element (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, § 143, ECHR 2009). 85. In a number of cases concerning disappearance in Russia’s Northern Caucasus the Court has held that when a person is detained by unidentified State agents without any subsequent acknowledgement of the detention, this can be regarded as life‑threatening.", "Those considerations were reiterated in situations where, as in the present case, individuals disappeared from places and buildings which were under the authorities’ full control (see, for example, Yusupova and Zaurbekov v. Russia, no. 22057/02, § 55, 9 October 2008; Magomadov, cited above, § 98; Asadulayeva and Others v. Russia, no. 15569/06, § 94, 17 September 2009; and Matayeva and Dadayeva v. Russia, no. 49076/06, § 85, 19 April 2011). The Court notes the presence in the case at hand of the same elements which have previously led it to consider the detention life-threatening.", "Moreover, this is a rare example in which witnesses were able to report explicit threats to the life of the person concerned. 86. It must be accepted that the more time goes by without any news of the detained person, the greater the likelihood that he or she has died. The passage of time may therefore to some extent affect the weight to be attached to other elements of circumstantial evidence before it can be concluded that the person concerned is to be presumed dead (see Tanış and Others, cited above, § 201). In the context of the disappearances in the Northern Caucasus the Court has made presumptions of death in the absence of any reliable news of disappeared persons for periods ranging from four and a half years (see Imakayeva v. Russia, no.", "7615/02, § 155, ECHR 2006‑XIII (extracts), and Medova v. Russia, no. 25385/04, § 90, 15 January 2009) to over ten years. 87. At the time of the judgment in the present case, over three years had passed without any news of Sayd-Salekh Ibragimov. In view of many similar findings in the past, the Court reiterates that there is a life‑threatening context to unacknowledged detention in this region.", "It is precisely this context which is most relevant to the decision of whether or not the person may be presumed dead. In such circumstances it would be artificial to impose a particular time-limit for a claim under Article 2 to be considered; while all elements of the case should be taken into account, there is enough evidence to suggest that the victims of disappearances often do not survive for very long after the abductions (see, for example, Luluyev and Others v. Russia, no. 69480/01, § 83, ECHR 2006-XIII (extracts); Akhmadova and Sadulayeva v. Russia, no. 40464/02, §§ 91-92, 10 May 2007; and Dzhabrailovy v. Russia, no. 3678/06, § 65, 20 May 2010).", "88. In view of the above considerations, the Court presumes Sayd‑Salekh Ibragimov to be dead. Consequently, the responsibility of the respondent State is engaged. Noting that the authorities have not relied on any exceptions to the right to life listed in Article 2 § 2, it follows that liability for his presumed death is attributable to the Government. There has been, accordingly, a violation of Article 2 of the Convention in this respect.", "(ii) Alleged failure to take measures to protect against a risk to life 89. The Court will further consider the applicant’s allegation that the State has failed in its positive obligations to protect her son’s life. 90. It is clear that Article 2 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, and Paul and Audrey Edwards v. the United Kingdom, no.", "46477/99, § 54, ECHR 2002‑II). 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 punishment 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, 28 October 1998, § 115, Reports 1998-VIII). 91. 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, cited above, § 55; Medova, cited above § 96; Rantsev v. Cyprus and Russia, no. 25965/04, § 222, ECHR 2010‑ ... (extracts); and Tsechoyev v. Russia, no. 39358/05, § 136, 15 March 2011). 92.", "Accordingly, in the present case the Court must consider whether at the relevant time the authorities could have foreseen that Sayd-Salekh Ibragimov’s life was at real and immediate risk, and whether they had taken measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. 93. First, the Court reiterates that kidnapping and unlawful deprivation of liberty constitute serious crimes in Russian law (see paragraph 59 above). The Court further finds that the problem of enforced disappearances and its life-threatening implications for detained individuals must be known to the law-enforcement authorities of the region, in view of its magnitude and relatively constrained territorial scope. In fact, as it appears from the information summarised above (see paragraphs 65-74 above), the Russian authorities were sufficiently aware of it, and had lately taken a number of specific actions to render investigations of this type of crime more efficient, inter alia, by creating a special unit within the Investigating Committee of the Chechen Republic.", "The Court also takes note of the above finding as to the life-threatening context of the prevalent unacknowledged detention in this region, as attested to by numerous previous judgments (see paragraphs 66 and 87 above). 94. Next, the Court finds that in the aftermath of the events of 21 October 2009 the applicant brought her son’s situation to the authorities’ attention. Thus, on 1 November 2009 she and her relative informed the district prosecutor’s office in Achkhoy-Martan about the absence of news of her son after he was apprehended. However, it appears that at that stage their complaints were not noted or pursued (see paragraph 20 above).", "Next, on 2 December 2009 the applicant lodged a written complaint with the district investigating committee in Achkhoy-Martan (see paragraph 22 above). Some days later the investigator obtained additional evidence that on 21 October 2009 Sayd-Salekh Ibragimov had been seen under the control of his captors and showed clear signs of ill-treatment, that he had been threatened, and that he had not been seen since that time (see paragraphs 24‑26 and 30 above). At the same time, it became clear that no official records of his detention or questioning had been made. 95. In view of the above, the Court concludes that no later than 2 December 2009 the relevant authorities were aware that Sayd-Salekh Ibragimov had become the victim of unlawful deprivation of liberty in a life-threatening situation.", "96. The Court will next examine whether the State has taken operative measures to protect the right to life of the disappeared person, as required by the positive obligation inherent in Article 2 of the Convention (see Koku v. Turkey, no. 27305/95, § 132, 31 May 2005; Osmanoğlu v. Turkey, no. 48804/99, § 72, 24 January 2008; and Medova, cited above, § 99). 97.", "In this context, upon receipt of plausible information pointing to real and immediate danger to a person’s life this obligation requires an urgent and appropriate reaction by law-enforcement bodies. The measures to be taken could have included immediate inspection of the premises; employment of expert methods aimed at collecting individual traces that could have been left by the missing person’s presence or ill-treatment; identification and questioning of the servicemen involved; and collection of other perishable traces, such as the CCTV records. These measures should have been taken as soon as the authorities have become aware of the life-threatening situation in which the person had last been seen. 98. However, no such measures were taken with the aim of saving Sayd‑Salekh Ibragimov’s life.", "In the days following the applicant’s complaint, the investigator contented himself with collecting some statements and exchanging requests for information with a range of institutions, including health and educational facilities. This was clearly an inadequate response to a well-founded submission about a crime so serious and so widespread in the region. 99. The Court is unable to speculate about the exact date of Sayd‑Salekh’s presumed death. However, as noted above, the more time goes by, the less chances there are that the abducted person is still alive.", "This is true for any criminal abduction and disappearance, but is especially so in the context of relatively widespread unresolved disappearances, as in the Chechen Republic. An effective and rapid response by the authorities is absolutely vital in such circumstances, and one could reasonably expect that in view of numerous previous similar crimes in the region an adequate system would have been set up by the time of the events in question. However, it appears that this was not the case. The Court finds particularly regrettable the absence of any operative response in the present case, where the authorities were apprised not only of unacknowledged detention, but of its exact location and the identities of those who had carried it out. It is difficult to reconcile their more than lenient attitude with the apparent gravity of the threat to the identified person’s life and with the obligation to protect it from unlawful threats.", "100. The Court has already found that negligence displayed by the investigating or supervising authorities in the face of real and imminent threats to an identified individual’s life emanating from State agents, such as police, who were acting clearly outside their legal duties, might entail a violation of the positive obligation to protect life (see Gongadze v. Ukraine, no. 34056/02, § 170, ECHR 2005‑XI). Turning to the present case, the Court confirms that the fact that the suspected perpetrators were ‘police officers does not relieve the competent investigating and supervising authorities – the prosecutor’s office and the investigative committee – of this obligation. 101.", "Accordingly, the Court cannot but conclude that, by their failure to act rapidly and decisively, the authorities involved had not taken operative measures within the scope of their powers which, judged reasonably, might have been expected to avoid risking the missing man’s life. 102. There has accordingly been a violation of Article 2 of the Convention also on account of the failure to protect Sayd-Salekh Ibragimov’s life. 2. The alleged inadequacy of the investigation 103.", "The applicant argued that the respondent State has also failed in its procedural obligation to investigate her son’s presumed death. The Government disputed this allegation. 104. The Court has on many occasions stated that the obligation to protect the right to life under Article 2 of the Convention also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. It has developed a number of guiding principles to be followed for an investigation to comply with the Convention’s requirements (for a recent summary, see Rantsev, cited above, §§ 232-33).", "105. The Court notes that the investigation has failed to comply with the requirement of promptness, having delayed for weeks and months the taking of the most essential steps. Most incomprehensibly, the Court notes that despite the evidence corroborating the applicant’s statements, on 17 December 2009 the investigator ruled not to open a criminal investigation, giving the reason of lack of evidence of a crime (see paragraph 31 above). It appears from the documents contained in the investigation file that statements of police officers of the regiment were taken only on 18 December 2009 (see paragraph 44 above), that is after the decision had been taken not to open criminal proceedings. Although the investigation was formally opened on 28 December 2009, it was not until February 2010 that the applicant was accorded victim status and other witnesses were questioned (see paragraphs 34-35 above), and it was not until June 2010 that the two officers directly identified by Adnan I. were questioned (see paragraphs 42 and 43 above).", "106. The transfer of the investigation between different branches of the law-enforcement authorities (see paragraphs 22 and 32 above) contributed to the delays, since one would expect that the report of a crime so serious would be immediately entrusted to the competent office. These delays resulted in the inevitable loss of perishable evidence, such as the victim’s and the perpetrators’ individual imprints and, in the present case, the records of the CCTV camera (see paragraph 38 above). In view of the importance of such evidence in a case concerning unlawful abduction in life-threatening circumstances and subsequent disappearance, this aspect alone could have justified the findings of a violation of a procedural breach of Article 2. 107.", "The delays in questioning of the potential perpetrators of the crime present another serious challenge to the effectiveness of the investigation. In the past, the Court has found a violation where no appropriate steps were taken to reduce the risk of collusion among the officers potentially involved in a crime, which amounted to a significant shortcoming in the adequacy of the investigation (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 330, ECHR 2007‑VI). In the present case, several months passed before the key persons identified by the witnesses were questioned, greatly increasing the risk of such collusion. 108.", "The Court notes yet other aspects of the investigation which call its effectiveness into question. In particular, the Court is struck by the apparent reluctance of the investigating authorities to establish the circumstances and legal grounds of Sayd-Salekh Ibragimov’s delivery to the regiment where he was last seen alive, of his questioning there and alleged release. The statements of the regiment’s officers in this respect are contradictory among them and with the other evidence collected by the investigation (see paragraphs 42-44 above). This was apparent at least to some members of the investigating team, who tried to obtain more cooperation from the senior officials allegedly implicated in the crime, including Mr Delimkhanov. It appears that these attempts were thwarted, and that the investigator terminated his work at the Investigating Committee within days of submitting a report about the lack of cooperation on behalf of the police (see paragraphs 45-46 above).", "109. Next, the Court notes that despite a plausible complaint about the involvement of senior officers of the police force in a serious crime, nothing in the documents reviewed by it suggests that special steps were taken in order to ensure the investigation’s independence and objectivity in all circumstances and regardless of whether those involved were public figures (see Kolevi v. Bulgaria, no. 1108/02, § 208, 5 November 2009). Thus, it does not appear that the investigation has had any impact on their continued service and their, at least potential, ability to put pressure upon the witnesses, victim and even the investigator. The Court notes with particular concern the allegations of threats made to Adnan I., of which he had informed the investigator, and other relevant complaints (see paragraphs 37, 53-55 above).", "Given high rank and influence of the persons in question, the requirement of independent investigation in the present case commanded going beyond merely relying upon institutional independence between the Ministry of the Interior and the Investigating Committee and called for measures designed to remove the persons potentially implicated in the crime from power, even indirect, over the other actors of the investigation. The Court recalls in this respect that the requirement of independent investigation includes not only a lack of hierarchical or institutional connection but also a practical independence. What is at stake here is nothing less than public confidence in the State’s monopoly on the use of force (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 300, ECHR 2011 (extracts), with further references). 110.", "These aspects lead the Court to conclude that the investigation has been ultimately ineffective (see Kolevi, cited above, § 201, and Tsechoyev, cited above, § 153). 111. The Court has joined the Government’s preliminary objection of non-exhaustion in respect of a criminal investigation to the merits of the complaint. In view of the above, it concludes that this objection should be dismissed, since the remedy relied on by the Government was ineffective in the circumstances. 112.", "The Court concludes therefore that there has also been a violation of Article 2 of the Convention under its procedural limb. II. ALLEGED VIOLATION OF ARTICLES 3 AND 5 OF THE CONVENTION ON ACCOUNT OF UNLAWFUL DETENTION AND DISAPPEARANCE OF THE APPLICANT’S SON 113. The applicant complained of a violation of Articles 3 and 5 of the Convention, as a result of the mental suffering caused to her by the disappearance of her son and the unlawfulness of detention. Articles 3 and 5 read, in so far as relevant: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 5 “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.” 114.", "The Government contested these arguments. 115. The Court notes that the complaint is linked to those examined above under Article 2 and must therefore likewise be declared admissible. 116. The Court has found on many occasions that a situation of enforced disappearance gives rise to a violation of Article 3 in respect of close relatives of the victim.", "The essence of such a violation does not lie mainly in the fact of the “disappearance” of the family member but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention (see Orhan v. Turkey, no. 25656/94, § 358, 18 June 2002, and Imakayeva, cited above, § 164). 117. Equally, the Court has found on several occasions that unacknowledged detention is a complete negation of the guarantees contained in Article 5 and discloses a particularly grave violation of its provisions (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev, cited above, § 122).", "The applicant’s son detention was likewise conducted “outside the normal legal system” and, “by its deliberate circumvention of due process, is anathema to the rule of law and the values protected by the Convention” (see, mutatis mutandis, Babar Ahmad and Others v. the United Kingdom (dec.) nos. 24027/07, 11949/08 and 36742/08, §§ 113-14, 6 July 2010, and El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, § 239, ECHR 2012). 118. The Court reiterates its findings regarding the State’s responsibility for the abduction and its failure to carry out a meaningful investigation of the fate of Sayd-Salekh Ibragimov.", "It finds that the applicant, who is the mother of the disappeared man, must be considered a victim of a violation of Article 3 of the Convention, on account of the distress and anguish which she has suffered, and continues to suffer, as a result of her inability to ascertain his fate and of the manner in which her complaints have been dealt with. 119. The Court furthermore confirms that since it has been established that Sayd-Salekh Ibragimov was detained by State agents, apparently without any legal grounds or acknowledgement of such detention, this constitutes a particularly grave violation of the right to liberty and security of persons enshrined in Article 5 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 120.", "The applicant complained of a violation of Article 13 in connection with Article 2, which reads: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 121. The Government contested that argument. 122. The Court notes that the complaint is likewise linked to those examined above under Article 2 and must therefore be declared admissible. 123.", "The Court reiterates that in circumstances where, as here, a criminal investigation of a disappearance has been ineffective and the effectiveness of any other remedy that might have existed, including civil remedies suggested by the Government, has consequently been undermined, the State has failed in its obligation under Article 13 of the Convention (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, § 183, 24 February 2005). 124. Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 125. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 126. The applicant claimed 500,000 euros (EUR) in respect of non-pecuniary damage. 127.", "The Government found this claim excessive. 128. The Court awards the applicant EUR 60,000 in respect of non-pecuniary damage. B. Costs and expenses 129.", "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 legal representation amounted to 3,232 pounds sterling (GBP). She submitted a breakdown of costs and supporting documents, including fee notes, translator’s invoices and a claim for administrative and postal costs. She requested that the payment be transferred directly to the representative’s bank account in the UK. 130.", "The Government disputed the reasonableness of the claim, pointing to the unnecessary increase in expenses when the representation is performed by a foreign organisation. They asked the Court to reject the claims under this heading. 131. The Court has to establish first whether the costs and expenses indicated by the applicant’s representatives were actually incurred and, second, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324, and Fadeyeva v. Russia, no.", "55723/00, § 147, ECHR 2005‑IV). Bearing the above principles in mind, the Court awards the applicant the amount of EUR 3,000 together with any tax that may be chargeable to her, the net award to be paid into the representative’s bank account, as identified by the applicant. C. Default interest 132. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Decides to join to the merits the issue of exhaustion of criminal domestic remedies and rejects it; 2 Declares the application admissible; 3. Holds that there has been a violation of Article 2 of the Convention on account of Sayd-Salekh Ibragimov’s presumed death; 4. Holds that there has been a violation of Article 2 of the Convention on account of the State’s failure to comply with its positive obligation to protect the life of Sayd-Salekh Ibragimov; 5. Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Sayd-Salekh Ibragimov disappeared; 6. Holds that there has been a violation of Article 3 of the Convention in respect of the applicant; 7.", "Holds that there has been a violation of Article 5 of the Convention on account of Sayd-Salekh Ibragimov’s unlawful detention; 8. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2; 9. 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 on the date of settlement, save in the case of the payment for costs and expenses: (i) EUR 60,000 (sixty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, the net award to be paid into the representative’s bank account, as identified by the applicant; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 10. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 20 June 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]

[ "FIFTH SECTION CASE OF KOSMATA v. UKRAINE (Applications nos. 10558/11 and 28218/11) JUDGMENT STRASBOURG 15 January 2015 This judgment is final. It may be subject to editorial revision. In the case of Kosmata v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Boštjan M. Zupančič, President,Helena Jäderblom,Aleš Pejchal, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 9 December 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos.", "10558/11 and 28218/11) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Mrs Lyubov Petrivna Kosmata and Mrs Lyudmyla Anatoliyivna Kosmata (“the applicants”), on 2 February 2011 and 12 April 2011 respectively. 2. The applicants were represented by Mr V.G. Belik, a lawyer practising in Mykolayiv. The Ukrainian Government (“the Government”) were represented by their Agent, Ms Nataly Sevostianova, of the Ministry of Justice.", "3. The applicants alleged that the investigation into the death of their relative had not been effective. 4. On 9 December 2013 the complaint concerning ineffectiveness of investigation into the death of the applicants’ next of kin was communicated to the Government and the remainder of the applications nos. 10558/11 and 28218/11 was declared inadmissible.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1953 and 1975 respectively and live in Mykolayiv. 6. The applicants are respectively mother and sister of Mr K. who had been working at a mill operated by company O.", "7. On 4 March 2006, as K. was cleaning an extruder machine at the mill, someone switched on the electricity, which set the machine in motion seriously injuring K. 8. On 9 March 2006 K. died in hospital of his injuries. A. Special inquiry under workplace safety regulations and judicial review 9.", "On 10 March 2006 the Mykolayiv Regional Department of State Authority for Workplace Safety and Mining Supervision (“the Regional Workplace Safety Department”) appointed a committee (“the first committee”) to conduct a special inquiry into the circumstances of the fatal accident with K. 10. On 30 March 2006 the Mykolayiv Regional Labour Inspectorate (“the Labour Inspectorate”), in response to a request from the first committee, stated that K. had worked at the mill under a services contract concluded between him and company O. under which he had, as a matter of form, the status of an independent contractor. The Labour Inspectorate took the view that this contract arrangement operated to conceal employment relations which in fact existed between K. and the company. 11. On 7 April 2006 the first committee found that K. had been registered as unemployed and was referred to company O. as a trainee by the unemployment office.", "He was not an employee and it had been planned that he would start as an employee of company O. only in April 2006. At the time of the accident he merely had a contract to provide services to the company. He did not contribute to the workplace accident insurance scheme. The committee concluded that the fact that an employment relationship existed between K. and the company had to be established in a court given that the nature of the contract between the parties was unclear. In view of these findings, the committee decided that the special inquiry procedure did not apply to K. since he had neither been an employee nor did he contribute to the workplace accident insurance scheme as a self-employed person.", "It accordingly decided not to conduct an investigation and to refer the materials to the local administration and local prosecutor’s office. 12. On 20 November 2006 the Zavodsky District Court of Mykolayiv, upon the applicants’ claim, established that the contract between K. and company O. had been an employment contract. 13. On 22 March 2007 the Mykolayiv Regional Court of Appeal upheld the judgment of 20 November 2006.", "14. On 24 March 2008 the State Bailiffs ordered the Regional Workplace Safety Department to give effect to the judgment. 15. Complying with the order, in May 2008 the Regional Workplace Safety Department appointed three public officials, Mr L., Mrs L., and Mrs B., as well as Mrs Z., managing director of company O., and Mr Ku., a representative of company O.’s employees, as members of the second committee to investigate the circumstances of the accident (“the second committee”). 16.", "On 12 June 2008 the second committee issued its report regarding the circumstances of the accident and K.’s death. It considered that the accident was not work-related. K. was not asked to repair the extruder and was even prohibited by the management from doing so. According to the conclusions, K., being drunk, himself switched on the extruder and started cleaning it with a vacuum cleaner. The extruder sucked in a loose end of K.’s clothing tearing off his arms and inflicting other injuries, which proved lethal.", "B. added a separate opinion stating that the committee’s report failed to identify organisational reasons for the accident, namely the absence of workplace safety management system at the mill, failure to train K. in safety rules, and failure to follow technical regulations. 17. On 26 November 2012 the Zavodsky District Court of Mykolayiv rejected the first applicant’s civil claim in which she, contesting the factual findings of the second committee, sought to invalidate the second committee’s report of 12 June 2008. 18. On 6 December 2012 this judgment became final.", "B. Criminal investigation 19. On 4 March 2006 the Mykolayiv Tsentralny District Prosecutor examined the scene of the incident at the mill and drew up a report. 20. On 4 and 6 March 2006 a number of employees of the mill and other witnesses were interviewed as part of pre-investigative inquiries.", "21. On 14 March 2006 the District Prosecutor’s Office refused to institute criminal proceedings against company O.’s managers for a breach of workplace safety rules for lack of corpus delicti. Among the reasons for this decision it noted, in particular, that the special inquiry into the accident had not been completed. 22. On 24 December 2009 the Mykolayiv Regional Prosecutor’s Office (“the Regional Prosecutor’s Office”) quashed the decision of 14 March 2006 on the ground that the investigation had not been sufficiently thorough.", "23. On 11 January 2010 the District Prosecutor’s Office refused to institute criminal proceedings against company O.’s managers for breach of safety rules. It relied on the report of the second committee as one of the reasons for the decision and stated that it was not possible to verify the conclusions of the committee because too much time had elapsed since the accident. 24. On 22 January 2010 the Regional Prosecutor’s Office quashed the decision of 11 January 2010 on the ground that the District Prosecutor’s Office had failed to establish whether K. could physically switch on the extruder while simultaneously cleaning it.", "25. On 6 February 2010 the District Prosecutor’s Office again refused to institute criminal proceedings into K.’s death. It relied, in part, on the report of the second committee. It stated that it was not possible to locate two of the witnesses to interview them. 26.", "On 17 September 2010 the Regional Prosecutor’s Office quashed the decision of 6 February 2010 reaffirming the instruction to verify whether K. could possibly switch on the extruder himself and pointing out that it had not been shown that any steps had been taken to locate the two witnesses. 27. On 16 February 2011 the District Prosecutor’s Office refused to institute criminal proceedings once again. It relied, in part, on the report of the second committee. 28.", "On 1 March 2011 the Regional Prosecutor’s Office quashed the decision of 16 February 2011 and instituted criminal proceedings against the managers of company O. on suspicion of breach of labour regulations with fatal consequences. It noted in particular that the previous enquiries had been superficial. It also noted that the subordinate prosecutors had failed to take into account B.’s separate opinion to the second committee’s report and failed to interview her. In addition, it noted that the case raised a number of questions, including those identified by B., which needed to be examined by an expert, in particular the question of who had been responsible for ensuring safe working conditions at the mill. 29.", "On 16 March 2011 the investigator recognised the first applicant as an aggrieved party and a party with a civil claim in the criminal proceedings. 30. On 1 June 2011 the investigator appointed a workplace safety expert to examine a number of questions related to the causes of the accident with K. and compliance with safety regulations at the mill at the relevant time. 31. On 9 September 2011 the investigator interviewed Ku.", "He stated, in particular, that he had been employed as Z.’s driver since 1998, had no training or experience related to the mill’s equipment, and that he had represented the employees on the second committee. 32. On 27 December 2011 the workplace safety expert appointed by the investigator issued his report on the causes of the accident. The expert concluded that K. had switched on the extruder in order to be able clean it faster and was fatally injured as a result. The expert also concluded that the company’s management had breached a number of workplace safety regulations, in that K. was allowed to work on an extruder without sufficient workplace safety training, was improperly allowed access to the machine’s switch and was allowed to work on it while it was out of order and partially dismantled.", "33. On 30 March 2012 Z. was indicted for breach of safety regulations applicable in the course of dangerous operations which caused a death. 34. On 4 May 2012 the Tsentralny District Court of Mykolayiv (“the trial court”) committed Z. for trial. 35.", "On 1 July 2013 the trial court ordered an expert opinion on a number of questions concerning the case, including the question of whether K. had been fatally wounded in the course of a dangerous activity. 36. As of 8 April 2014 the proceedings were pending. II. RELEVANT DOMESTIC LAW A.", "Procedure for inquiries into industrial accidents 37. Resolution of the Cabinet of Ministers no. 1112 of 25 August 2004 approved the Procedure for Inquiries into Accidents, Professional Illnesses and Emergencies Occurring in the Course of Industrial Operations (“the Procedure”). The Procedure governed the investigation of accidents in the workplace at the material time. Paragraph 1 of the Procedure provided that it applied to incidents occurring at State and private companies and with self-employed persons, provided that they contributed to the workplace accident insurance scheme.", "38. Paragraphs 40 and 42 of the Procedure provided that in case of an industrial accident resulting in death and occurring at a private company a special inquiry had to be conducted by a committee appointed by a department of the State Authority for Workplace Safety and Mining Supervision (“the Workplace Safety Authority”). The committee had to include as members representatives of the Workplace Safety Authority, of the local administration, of the Workplace Accident Insurance Fund, of the employer and of the employees. The victim, his next-of-kin or representatives had the right to attend committee meetings, submit documents and be informed about the progress of investigation. 39.", "Under Paragraphs 46, 56, 58, and 59 of the Procedure the committee was required, in particular, to establish the circumstances under which an accident had occurred and its cause, whether the work conditions complied with safety regulations, whether the accident was work-related, and to determine who was responsible for breaches of safety regulations. The employer had to implement all measures recommended by the committee and inform the prosecutor’s office and certain other State authorities about the committee’s findings. The committee’s findings could be challenged before the Workplace Safety Authority or in court. B. Criminal Code of 2001 40.", "Under paragraph 2 of Article 271 of the Criminal Code a breach of workplace safety rules committed by an officer of a company or of another entity or by a private entrepreneur shall be punishable by community service for a term of up to two years or by restriction of liberty for a term of up to five years or by imprisonment for a term of up to seven years, with or without prohibition on the right to occupy certain positions or engage in certain activities for a term of up to two years. 41. Under paragraph 2 of Article 272 the Criminal Code of Ukraine a breach of safety rules governing dangerous activities in the course of industrial operations or at any enterprise committed by a person required to observe such rules and which caused a death or other grave consequences is punishable by restriction of liberty for a term of up to five years or by imprisonment for a term of up to eight years with a prohibition on the right to occupy certain positions or engage in certain activities for a term of up to three years. C. Other relevant provisions of domestic law 42. The other relevant provisions of domestic law can be found in the judgment of Muravskaya v. Ukraine (no.", "249/03, §§ 35 and 36, 13 November 2008). THE LAW I. JOINDER OF THE APPLICATIONS 43. 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 2 OF THE CONVENTION 44.", "The applicants complained that domestic authorities had failed to carry out an effective investigation of the accident which had caused K.’s death. They relied on 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 45. The Government did not raise any objections to the admissibility of the application. 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 parties’ submissions 47. The applicants maintained that the investigation had been ineffective.", "They noted that the investigation was delayed and was characterised by repeated refusals to institute criminal proceedings which were subsequently quashed. They asserted that the domestic authorities had failed to establish the identity of the person who switched on the machine injuring K. and that they had misidentified the cause of the incident, incorrectly stating that it was due to K.’s intoxication. 48. The Government submitted that the investigation into K’s death met the requirements of Article 2. The police started their investigation on the very day of the incident, explanations of witnesses were collected and expert examinations ordered.", "The duly appointed committees conducted investigations and came to the conclusion that K. was intoxicated, switched the machine on himself, on his own initiative and without instructions from the management, and thus caused the accident. The applicants actively participated in the investigations. The authorities took all possible steps to identify those responsible for K’s death. The Government maintained that the issues involved in the case were complex and required technical expertise and this necessitated expert examinations prolonging the criminal investigation. 2.", "The Court’s assessment (a) General principles 49. The Court reiterates that the first sentence of Article 2 of the Convention requires the States, in particular, to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life in the context of any activity, whether public or not, in which the right to life may be at stake (see, e.g., Öneryıldız v. Turkey [GC], no. 48939/99, §§ 89-90, ECHR 2004-XII; Kalender v. Turkey, no. 4314/02, § 51, 15 December 2009; Krivova v. Ukraine, no. 25732/05, § 44, 9 November 2010).", "The obligation to create an effective legislative framework for protection of life also applies in the context of workplace and industrial safety (see Vilnes and Others v. Norway, nos. 52806/09 and 22703/10, § 223, 5 December 2013, Brincat and Others v. Malta, nos. 60908/11, 62110/11, 62129/11, 62312/11 and 62338/11, § 81, 24 July 2014). In case of a life-threatening injury or death, the above obligation calls for an effective independent judicial system to ensure enforcement of the aforementioned legislative framework by providing appropriate redress (see, e.g., Anna Todorova v. Bulgaria, no. 23302/03, § 72, 24 May 2011).", "50. An effective judicial system, as required by Article 2, may, and under certain circumstances must, include recourse to criminal law. However, where an accident has been caused by pure negligence without aggravating circumstances, the Court may be satisfied if the legal system affords victims a remedy in the civil courts, enabling any liability of the parties concerned to be established and any appropriate civil redress, such as an order for damages to be obtained (see Antonov v. Ukraine, no. 28096/04, § 45, 3 November 2011, with further references). 51.", "However, the Court has held that in cases under Article 2 concerning incidents resulting from dangerous activities a purely civil remedy may not be sufficient and the competent authorities must of their own motion initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved in any capacity whatsoever in the chain of events concerned (see Öneryıldız, cited above, § 94; Budayeva and Others v. Russia, nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, § 142, ECHR 2008 (extracts); Brincat, cited above, § 121). 52. In principle, the States should have a margin of appreciation in deciding how a system for the enforcement of a regulatory framework protecting the right to life must be designed and implemented. What is important, however, is that whatever the mode of the investigation, the available legal remedies, taken together, must amount to legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress.", "Any deficiency in the investigation, undermining its ability to establish the cause of the death or those responsible for it may bring to the finding that the Convention requirements have not been met. This requires by implication that that the investigation be prompt and free from unnecessary delays (see Antonov, cited above, § 46, with further references). (b) Application to the present case 53. Turning to the present case, the Court notes that the Government did not contend that the applicants could effectively pursue the matter outside the framework of the criminal investigation (compare Sergiyenko v. Ukraine, no. 47690/07, §§ 40 and 42, 19 April 2012).", "54. The Court will therefore confine itself to examining whether the special inquiry and the criminal investigation of K.’s death satisfied the criteria of effectiveness required by Article 2 of the Convention (see, mutatis mutandis, Valeriy Fuklev v. Ukraine, no. 6318/03, §§ 68-76, 16 January 2014). (i) Special inquiry by ad hoc committees 55. As to the special inquiry, the Court notes that the first committee was formed for the purpose of conducting its inquiry promptly, on 10 March 2006, the day after K.’s death.", "However, it subsequently decided not to conduct an investigation on the ground that it had not been established that K. had been employed by company O. It did so even though the Labour Inspectorate, in response to the committee’s own request, considered that K. had in fact been employed by the company. 56. The latter opinion was ultimately confirmed by domestic courts and the domestic judgment to this effect became final on 22 March 2007. However, despite this fact the Regional Workplace Safety Department appointed the second committee only on 30 May 2008, that is a year and two months later and only after the State Bailiffs had opened proceedings to enforce the judgment.", "57. As a result of this initial error of the first committee and the subsequent delay in correcting that error, the start of investigation was delayed by more than two years and the initial investigation ultimately commenced only two years and more than two months after the accident. 58. The Court would draw attention to the fact that the second committee which conducted the special inquiry into the accident was composed of five members, two of whom had links to company O.’s management: Mrs Z., the company’s managing director, and Mr Ku., her long-time driver. Of the remaining three members one, Mrs B., expressed, in a separate opinion, her reservations about the limited nature of the committee’s findings.", "She stressed, in particular, the committee’s failure to identify the structural causes of the accident, for which the employer and its management rather than K. as an individual worker would be responsible. 59. This opinion eventually led, on 1 March 2011, to the decision to conduct a full-scale criminal investigation against employer’s managers. Moreover, on 1 June 2011 an expert was appointed by the investigator to examine the questions raised by B. However, this took place five years and two months after the accident.", "(ii) Criminal investigation 60. Turning to the criminal investigation, the Court observes that immediately following the incident the authorities took a number of pre-investigative steps, conducting an examination of the scene of event and obtaining explanations of a number of witnesses. 61. However, there was no follow-up to these initial steps and on 14 March 2006 the District Prosecutor’s Office in its initial decision refusing to institute criminal proceedings relied on the fact that the special inquiry had not yet been completed. This meant that the delays which characterized the opening of the special inquiry had the effect of delaying the criminal investigation as well.", "62. Even after completion of the special inquiry by the second committee, which was in itself delayed, the prosecutor’s office between 11 January 2010 and 16 February 2011 adopted three decisions refusing to institute criminal proceedings. Those decisions were based in part on the report of the second committee and disregarded B.’s separate opinion. They were quashed by the supervising prosecutor, who considered that the investigation had been incomplete. 63.", "The Court has repeatedly held that the repetition of such remittal orders discloses a serious deficiency in criminal investigation (see, e.g., Oleynikova v. Ukraine, no. 38765/05, § 81, 15 December 2011, and Prynda v. Ukraine, no. 10904/05, § 56, 31 July 2012). It is relevant to note that in ordering additional investigations the supervising prosecutor specified, inter alia, that additional measures were necessary in order to carry out a comprehensive investigation of the case. 64.", "In this particular case the repeated remittals are all the more notable given that the prosecutor’s office was well informed of the committee’s findings and, accordingly, B.’s criticisms. Instead, disregarding the flaws in the committee’s conclusions, the District Prosecutor’s Office repeatedly relied on them in the decisions refusing to institute criminal proceedings. (iii) The Court’s overall conclusion 65. The Court reiterates that the effectiveness of an investigation implies a requirement of promptness and reasonable expedition. Even where there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities is vital 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 Šilih v. Slovenia [GC], no.", "71463/01, § 195, 9 April 2009). Moreover, with the lapse of time the prospects that any effective investigation can be undertaken will increasingly diminish (see, e.g., Pozhyvotko v. Ukraine, no. 42752/08, § 41, 17 October 2013). 66. The Court notes that in this case the delays in the special inquiry, with its limited scope, have also delayed the criminal investigation.", "In particular, the prosecutors relied on the absence of results of the special inquiry and later on its results as reasons for the refusal to institute criminal proceedings even though ultimately the limited nature of the special inquiry was one of the factors which led the authorities to institute criminal proceedings. 67. As a result, as of 8 April 2014 – that is, more than eight years and one month after the incident – the trial in Z.’s case, which deals with the circumstances surrounding K.’s death, was still ongoing. It cannot be concluded that the overall length of the investigation was justified by the circumstances of the case. 68.", "The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of the procedural limb of Article 2 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 69. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 70.", "The applicants claimed 14,588.46 euros (EUR) in respect of pecuniary damage and EUR 29,444.66 each in respect of non-pecuniary damage. 71. The Government considered that the claims were excessive and had no causal link with the alleged violations of the Convention. 72. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.", "73. The Court considers that the applicants must have suffered distress and anxiety on account of the violation it has found. Ruling on an equitable basis, it awards the applicants EUR 6,000 each in respect of non-pecuniary damage. B. Costs and expenses 74.", "The first applicant also claimed EUR 1,846.67 for legal fees incurred in domestic proceedings and before the Court. Under the head of pecuniary damage she also claimed EUR 101.11 for stationery, photocopying, postage, and mobile phone expenses. 75. The Government argued that the applicant had not substantiated the claimed expenses, in particular submitted no agreement confirming the arrangements for the payment of legal fees and no itemised statements related to the claim for legal fees. 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 are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court makes no award under this head. C. Default interest 77. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Decides to join the applications; 2. Declares the applications admissible; 3. Holds that there has been a violation of the procedural limb of Article 2 of the Convention; 4. Holds (a) that the respondent State is to pay, within three months, EUR 6,000 (six thousand euros) to each of the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicants’ claim for just satisfaction.", "Done in English, and notified in writing on 15 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsBoštjan M. ZupančičRegistrarPresident" ]

[ "FIRST SECTION CASE OF POLESHCHUK v. RUSSIA (Application no. 60776/00) JUDGMENT STRASBOURG 7 October 2004 FINAL 07/01/2005 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 Poleshchuk v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrP.", "Lorenzen,MrG. Bonello,MrA. Kovler,MrV. Zagrebelsky,MrsE. Steiner,MrK.", "Hajiyev, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 16 September 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 60776/00) 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 Mr Yevgeniy Vladimirovich Poleshchuk, a Russian national. He was represented before the Court by Mr S. Melnikov, a lawyer practising in Yaroslavl. 2.", "The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicant complained under Article 6 of the Convention about unfair criminal proceedings against him. He also complained, referring to Article 34 of the Convention, that the prison authorities hindered his right to submit an application to the Court. 4.", "On 10 September 2001 the Judge appointed as Rappoteur requested the Government pursuant to Rule 49 § 2 (a) of the Rules of Court to submit factual information concerning the dispatch by prison authorities of the applicant’s letters to the Court. 5. On 30 April 2002 the Court decided to communicate the application to the Government, in so far as the complaint under Article 34 was concerned. 6. On 11 September 2003 the Court decided to communicate in addition a new complaint concerning the pressure being put on the applicant in connection with his application pending before the Court.", "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 7. The applicant was born in 1963 and lives in Yaroslavl. 8. The facts of the case, as submitted by the parties, may be summarised as follows.", "9. On 26 October 1998 the applicant was convicted by the Yaroslavl Regional Court and sentenced to 13 years’ imprisonment for participation in an organised armed gang. On 22 February 1999 the conviction was upheld on appeal by the Supreme Court of the Russian Federation. The applicant serves his sentence in a correctional colony (the prison). 10.", "On 25 May 1999 and 14 December 1999 the applicant submitted letters addressed to the European Court of Human Rights, in which he complained under Article 6 of the Convention that he had not had a fair trial in the above domestic proceedings, to the prison’s Special Department, the office exercising censorship and general supervision over all inmates’ correspondence. On 8 June 1999 and 30 December 1999 the prison administration refused to dispatch the letters. The competent officials, the head of the Special Department major K. and the deputy warden of the prison major O., pointed out that the application to the Court would not be accepted for dispatch unless and until the applicant applied to the Chairman of the Supreme Court and to the Prosecutor General with requests for a supervisory review of his conviction, or filed an application with the Constitutional Court of the Russian Federation. The applicant complied, as he had no other means to have his mail sent outside prison. However, his applications were unsuccessful.", "11. On 1 February 2000 the applicant sent an application to the Court, in which he complained of an unfair trial. He also explained that he had exceeded the six months time-limit set out in Article 35 § 1 of the Convention, as he had been prevented by the prison administration from dispatching his application earlier. 12. After the questions were put by the Rapporteur to the respondent Government under Rule 49 § 2 (a) of the Rules of Court, on 23 October 2001 the Chief Penitentiary Directorate of the Ministry of Justice of the Russian Federation (Главное управление исполнения наказаний Министерства юстиции Российской Федерации) issued a circular letter to its subordinate departments and bodies prohibiting hindering the dispatch of applications addressed to the Court.", "13. On 22 February 2002 the Chief Penitentiary Directorate of the Ministry of Justice of the Russian Federation designated officials authorised to monitor the unhindered dispatch of applications to the Court from penitentiary institutions. 14. On 29 March 2002 the Deputy Prosecutor General issued a circular letter calling upon the regional prosecutors to take measures to secure unhindered exercise of the right of individual petition by detainees. It mentioned in particular that any pressure, including intimidation, discouragement or dissuasion, was unacceptable.", "15. On 14 June 2002 a commission of the Yaroslavl Regional Prosecutor’s office visited the prison to conduct an inquiry into the refusal of the prison administration to post the applicant’s letters to the Court. The result of this inquiry, if any, remains unknown to the Court. 16. On 13 February 2003 the prison director classified the applicant as a persistent contravener of prison discipline, and on 26 February 2003 transferred him to a stricter security level.", "17. On 4 March 2003 the applicant was transferred to another penitentiary institution, following his request based on allegations of a conflict with the prison administration. 18. At present the applicant continues to serve his sentence. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 19. The applicant alleges violation of his right to submit an application to the Court. He complains that the prison administration prevented him from lodging his application with the Court and that, after his application had been lodged, he was transferred to a strict level of security. He invokes 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.” 20.", "The Court notes that this application raises two separate complaints under Article 34 of the Convention. The first complaint concerns the fact that the applicant’s letters with his original application to the Court were stopped by the prison administration on two occasions in 1999. The second complaint relates to events after his application had been lodged with the Court, when pressure was allegedly put on him. The Court will consider each of these complaints individually. A.", "The refusal to post the applicant’s letters to the Court 1. The parties’ submissions 21. The Government do not dispute the fact that the prison administration refused to dispatch the applicant’s correspondence on 8 June 1999 and 30 December 1999. They explain that, at the time of events, the prison staff did not have enough experience in dealing with that type of correspondence. This caused “disorder” in the manner in which the applicant’s letters were dealt with.", "However, they state that the applicant could no longer claim to be a victim of the alleged violation since administrative measures had been taken to improve the mechanism of sending inmates’ petitions to the Court. They refer to the circular letters which instructed penitentiary institutions not to hinder the dispatch of letters to the Court, and contend that the applicant could correspond with the Court freely thereafter. They submit, in particular, that according to the prison record four letters by the applicant to the Court were dispatched by the prison administration in 2002, and three in 2003. In addition, they report that the applicant was allowed three visits in 2003: a long-term family visit of three days as from 4 April 2003, a short term visit on 29 May 2003 and another long-term visit as from 18 July 2003. 22.", "The applicant maintains his complaint. He alleges that, although the Government have acknowledged the violation of his right of individual petition, he has been afforded no redress for it. 2. The Court’s assessment (a) Admissibility 23. The Court considers whether the applicant retains his status as a victim although subsequent general measures have been taken to facilitate the prisoners’ correspondence with the Court.", "24. The Court takes note the steps taken by the Government to change the practices in the handling of inmates’ official correspondence. It also notes that, from 2000 to 2004, the applicant’s correspondence with the Court has not given cause for concern. 25. However, the Court recalls that “a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention” (see Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36; Dalban v. Romania [GC], no.", "28114/95, § 44, ECHR 1999-VI; and Rotaru v. Romania [GC], no. 28341/95, § 35, ECHR 2000-V). The Court accepts that the Government, in their observations on the admissibility and merits of the application, have expressly acknowledged the violation. However, it is not convinced that adequate and sufficient redress has been afforded to the applicant in this respect. The circular letters to penitentiary institutions which the Government invoke were directives of general application, intended to prevent violations of this kind in the future.", "They neither concerned the applicant personally, nor did they refer to a specific violation which they sought to put right. In view of this lack of direct connection with the applicant’s case, the Court cannot accept those measures as redress capable of depriving the applicant of his victim status. 26. The Court therefore dismisses the Government’s preliminary objection. No other grounds for declaring this complaint inadmissible have been established.", "It must therefore be declared admissible. (b) Merits 27. The Court recalls that Article 34 of the Convention imposes an obligation on a Contracting State not to hinder the right of individual petition. While the obligation imposed is of a procedural nature, distinguishable from the substantive rights set out in the Convention and Protocols, it flows from the very essence of this procedural right that it is open to individuals to complain of its alleged infringements in Convention proceedings (see Manoussos v. the Czech Republic and Germany (dec.), no. 46468/99, 9 July 2002).", "The Court also recalls that the undertaking not to hinder the effective exercise of the right of individual application precludes any interference with the individual’s right to present and pursue his complaint before the Court effectively (see, among other authorities and mutatis mutandis, Akdivar and Others v. Turkey, 16 September 1996, Reports 1996-IV, p. 1219, § 105; Kurt v. Turkey, 25 May 1998, Reports 1998-III, p. 1192, § 159; Tanrikulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV; Sarli v. Turkey, no. 24490/94, §§ 85-86, 22 May 2001; and Orhan v. Turkey, no. 25656/94, 18 June 2002). In the present case, the procedural right attaches to the substantive right under Article 6 of the Convention (see paragraphs 34‑38 below).", "28. The Government do not dispute that the prison administration refused on two occasions to post the applicant’s letter to the Court. Consequently, the lodging of this application has been delayed by more than eight months. The Court concludes that this constituted an interference with the applicant’s right of individual petition, which amounted to a failure on the part of the respondent State to comply with its obligation under Article 34 of the Convention. Accordingly there has been a breach of this provision.", "B. The alleged pressure after the application has been lodged 1. The parties’ submissions 29. The Government contest that the applicant has been subjected to any pressure in response to lodging an application with the Court. They deny any connection between the transfer of the applicant to the strict security level and the case pending before the Court.", "The Government claim that the transfer was no more than a result of disciplinary offences committed by the applicant. They submit a list of disciplinary offences and sanctions applied to the applicant during his sentence: on 31 May 1999 he was reprimanded for smoking in a non‑smoking area; on 19 December 1999 he was subjected to a 9-day confinement in a disciplinary cell[1] for addressing prison officers in obscene language; on 29 December 1999 he was reprimanded for refusing food at meal time; on 6 April 2000 the applicant was subjected to a 15-day confinement in a disciplinary cell after he had been found to be in possession of 3 litres of alcohol; and on 13 February 2003 he was subjected to a 15-day confinement in a disciplinary cell after he had been found to have hidden undeclared money, playing cards and a packet of unauthorised pills. On 26 February 2003 the prison administration decided to assign the applicant to a high security level for his persistent misconduct. The Government supported this list by relevant copies of the prison records. 30.", "The applicant contests the Government’s observations, and maintains that a transfer to a stricter level of security had been intended to discourage him from pursuing proceedings before the Court. 2. The Court’s assessment 31. The Court recalls that it is of the utmost importance for the effective operation of the system of individual application instituted by Article 34 that applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from using a Convention remedy.", "The issue of whether or not a disputed measure taken by authorities amounts to unacceptable practices from the standpoint of Article 34 must be determined in the light of the particular circumstances of the case (see, mutatis mutandis, the above cited judgments Akdivar and Others v. Turkey, Kurt v. Turkey, Tanrikulu v. Turkey, Sarli v. Turkey and Orhan v. Turkey). 32. The Court notes from the parties’ submissions that throughout the applicant’s sentence he has been subjected to disciplinary penalties for various breaches of the prison regulations, which gave grounds to apply additional disciplinary restrictions against him. The Government presented a contemporaneous official record reflecting each occasion when the applicant was subjected to sanctions. In the Court’s view, none of the disciplinary penalties or the resulting increase in his security classification reveal any arbitrariness which could in itself amount to a form of pressure contrary to Article 34 of the Convention.", "The applicant’s allegation that there was a connection between his application to the Court and the imposition of the penalties at issue is unsubstantiated. The Court thus finds that there is an insufficient factual basis to enable it to conclude that the authorities of the respondent State have interfered with the exercise of the applicant’s right of individual petition after he had lodged his case. 33. In the light of the above facts and considerations, the Court finds that the alleged violation of Article 34 of the Convention has not been established. It follows that this part of application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 34. The applicant complains that the criminal proceedings against him were unfair. In particular, he complains about the outcome of the trial, the wrongful assessment of evidence and the excessively severe sentence. He invokes Article 6 § 1 of the Convention, which reads, so far as relevant, as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 35.", "The Court notes that this application was lodged on 1 February 2000, i.e. more than six months from 22 February 1999, the date on which the Supreme Court of the Russian Federation took the final decision in the criminal proceedings against applicant. However, having established above that the applicant was prevented from lodging his application before that date, the Court does not dismiss this application for the failure to comply with the six‑months requirement set out in Article 35 § 1 of the Convention. 36. The Court, however, reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties in 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 domestic law and the national courts (Garcia Ruiz v. Spain judgment of 21 January 1999, Reports 1999-I, § 28; Pesti and Frodl v. Austria (dec.), nos. 27618/95 and 27619/95, ECHR 2000-I). 37. The Court finds that there is nothing to indicate that the national courts’ evaluation of the facts and evidence presented in the applicant’s case was contrary to Article 6 of the Convention.", "The applicant was fully able to defend himself with the assistance of a legal representative and challenge the evidence; there had been a public hearing and the courts’ decisions were adequately reasoned. Having regard to the facts, as submitted, the Court has not found any reason to believe that the proceedings did not comply with the fairness requirement of Article 6 § 1 of the Convention. 38. It follows this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 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.” 40. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaint concerning the stopping of the applicant’s letters to the Court by the prison administration admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 34 of the Convention; Done in English, and notified in writing on 7 October 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident [1] Prisoners confined to a disciplinary cell are kept separately from other detainees; they cannot receive visitors, receive or make phone calls, receive parcels or purchase food; their daily walk is limited to one hour." ]

[ "FIFTH SECTION CASE OF KULINSKI AND SABEV v. BULGARIA (Application no. 63849/09) JUDGMENT STRASBOURG 21 July 2016 FINAL 21/10/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kulinski and Sabev v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President,Khanlar Hajiyev,Erik Møse,André Potocki,Síofra O’Leary,Carlo Ranzoni, judges,Pavlina Panova, ad hoc judge,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 28 June 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "63849/09) 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”) on 30 November 2009 by two Bulgarian nationals, Mr Krum Yordanov Kulinski and Mr Asen Todorov Sabev (“the applicants”), who were born in 1970 and 1977 respectively. 2. The applicants were represented by Mr K. Kanev, from the Bulgarian Helsinki Committee. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice. 3.", "The applicants alleged that they were prevented from voting while serving prison sentences of different lengths. 4. On 4 June 2015 the complaints concerning the applicants’ inability to vote while serving their prison sentences were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 5. Mr Yonko Grozev, the judge elected in respect of Bulgaria, withdrew from sitting in the case (Rule 28 § 3 of the Rules of Court).", "Accordingly, the President of the Fifth Section appointed Ms Pavlina Panova to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The first applicant, Mr Kulinski, was convicted of hooliganism on 16 May 2008 in a final judgment of the Sofia City Court. He served his sentence in Sofia Prison between 6 November 2008 and 30 December 2009.", "Having served the entirety of his sentence, he was released on the latter date. 7. The second applicant, Mr Sabev, was convicted of robbery and murder and sentenced to whole-life imprisonment on 17 December 2003 in a final judgment of the Supreme Court of Cassation. The applicant is serving his sentence in Sofia Prison. On 3 September 2014 the Vice‑President of Bulgaria, exercising the constitutional prerogative to grant clemency, commuted the applicant’s whole-life sentence to a “simple-life” sentence (see paragraph 16 below).", "8. In 2009, while both applicants were serving their sentences, the following elections took place: elections to the European Parliament on 7 June 2009 and to the Bulgarian Parliament on 5 July 2009. No polling station was set up in the prison where the applicants were detained, as the relevant legislation excluded sentenced individuals from voting. 9. Subsequently, the second applicant was not allowed to vote in the elections to the Bulgarian Parliament on 12 May 2013 and 5 October 2014, nor in the European Parliament election on 25 May 2014.", "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW A. Domestic law 1. Constitution 1991 10. Article 42 § 1 provides that citizens of legal age (18 years), except those deprived of legal capacity and those serving prison sentences, have the right to elect State and municipal bodies and to take part in referenda.", "11. According to Article 149 § 1 (1)(2) the Constitutional Court provides binding interpretations of the Constitution and rules on the constitutionality of the laws and other acts passed by Parliament or acts passed by the President. Decisions of the Constitutional Court have effect only for the future (ex nunc). 2. Election of Members of the Bulgarian Parliament Act 2001 (repealed in 2011) 12.", "Section 3(1) of the Act reproduced the essential content of Article 42 of the Constitution as regards the election of Members of Parliament. 3. Election of Members of the European Parliament Act 2007 (repealed in 2011, the relevant provisions incorporated in the Election Code 2011) 13. Bulgarian citizens who are of legal age, have continuously resided in Bulgaria or another EU State during at least the last three months, and have neither been deprived of legal capacity nor are serving a prison sentence, can vote in elections to the European Parliament (Section 4(1)). Other European Union nationals can also elect members of the European Parliament if the former are of legal age, have resided in Bulgaria or another EU member State for at least three months prior to the election, have not been deprived of their right to elect in the State whose citizens they are and have requested in writing participation in the election (Section 4(2)).", "Those eligible can only vote once in every election to the European Parliament. 4. Election Code 2011 (repealed in March 2014) 14. Article 3 §§ 1 and 2 of this Code stipulated that Bulgarian citizens who have not been deprived of legal capacity and are not serving a prison sentence could elect members of Parliament, the President and the Vice‑President of the Republic of Bulgaria. 5.", "Election Code 2014 (in force from March 2014) 15. Article 243 provides that Bulgarian citizens who meet the requirements of Article 42 § 1 of the Constitution 1991 (see paragraph 10 above) can vote in elections to the Bulgarian Parliament. Article 29 § 1 of this Code provides that, in the context of elections to the Bulgarian or European Parliaments, the prison authorities make arrangements for voting in the prisons and manage electoral lists concerning individuals who have been detained but who have not been convicted. 6. Post death penalty abolition 16.", "Since the abolition of the death penalty with effect from 27 December 1998, the Code has provided for three types of custodial penalty: imprisonment for a fixed period of up to thirty years, simple-life imprisonment with the possibility of commutation, and whole-life imprisonment without the possibility of commutation. 7. Release on parole 17. Under Article 70 § 1 of the Criminal Code, release on parole is only applicable to fixed-term prison sentences. Offenders sentenced to whole-life or simple-life imprisonment are not eligible for release on parole.", "8. Reduction of sentences 18. Prisoners can have their sentences reduced under Article 41 § 3 of the Criminal Code, which provides that two days of work effectively carried out counts as three days of imprisonment. When prisoners systematically avoid working or breach prison rules, the court can wholly or partially cancel the reduction of the sentence accrued during the previous two years (Article 41 § 4 of the Criminal Code). 9.", "Amnesty 19. Article 84 (13) of the Constitution provides that amnesty is granted by Parliament. 10. Presidential pardon 20. Under Article 98 (11) of the Constitution, granting a pardon is a presidential prerogative.", "It is a discretionary power which the President of the Republic has delegated to the Vice-President, who may decide to exercise it in any form and at any time while the sentence is being served. His or her decision is unconditional and irrevocable and is not subject to judicial or administrative review (for more detail, see Harakchiev and Tolumov v. Bulgaria, nos. 15018/11 and 61199/12, §§ 72-107, ECHR 2014 (extracts). 11. Ombudsman’s prerogatives 21.", "Since 1 January 2004 the Ombudsman can ask the bodies enumerated in Article 150 of the Constitution, namely the President of the Republic, the Council of Ministers, the Supreme Court of Cassation, the Supreme Administrative Court, the Prosecutor General or at least one-fifth of the members of parliament, to apply to the Constitutional Court with a request for interpretation of the Constitution. From 2006, the Ombudsman can himself or herself ask the Constitutional Court to rule on the compatibility of ordinary laws with the Constitution (Article 150 § 3 of the Constitution). 12. Commutation of the sentence by judicial decision 22. The Criminal Code of 1968 (Article 38a § 3) provides that a simple‑life sentence can be commuted to a fixed-term prison sentence of thirty years, provided that the prisoner has served a minimum of twenty years.", "This is done by the regional court at the request of the regional public prosecutor (Articles 449 and 450 of the Code of Criminal Procedure of 2005). The regional court rules by means of a reasoned decision; a negative decision may be challenged before the higher courts. If the public prosecutor’s proposal is rejected, no further commutation request may be submitted for two years. The legislation makes no provision for the public prosecutor to seek an adjustment of the sentence of offenders sentenced to whole life imprisonment. B.", "International and comparative law 23. The relevant provisions on prisoners’ voting rights, found in international legal instruments and laws of other member States of the Convention, have been summarised in the case of Anchugov and Gladkov v. Russia, nos. 11157/04 and 15162/05, §§ 36-46, 4 July 2013. 24. To the extent that the present case concerns not only Bulgarian parliamentary elections but also the right to vote in elections to the European Parliament, the following is of relevance.", "The Court of Justice of the European Union has examined, in the case of Thierry Delvigne v. Commune de Lesparre-Médoc and Préfet de la Gironde (C-650/13, EU:C:2015:648) the compatibility with Article 39 (2) of the Charter of Fundamental Rights of the European Union of the exclusion, by operation of French law, from those entitled to vote in elections to the European Parliament persons who were convicted of a serious crime. In Delvigne, the Court of Justice held that the French limitation of prisoners’ voting rights did not call into question the essence of those rights since it had the effect of excluding certain persons, under specific conditions and on account of their conduct, from those entitled to vote in elections to the Parliament, as long as those conditions are fulfilled. In addition, it considered the French limitation was proportionate in so far as it takes into account the nature and the gravity of the criminal offence committed and the duration of the penalty (see Delvigne, cited above, paragraphs 48-49). 25. A comparative law study was carried out in the context of the proceedings before the Grand Chamber of the Court in another case concerning prisoners’ voting rights (see Scoppola v. Italy (no.", "3) [GC], no. 126/05, §§ 45-48, 22 May 2012). It showed that, at that time, seven Convention States – Armenia, Bulgaria, Estonia, Georgia, Hungary, Russia and the United Kingdom – automatically deprived all convicted prisoners serving prison sentences of the right to vote, while nineteen of the forty‑three States examined placed no restrictions on that right and seventeen followed an intermediate approach whereby disenfranchisement of prisoners depended on the type of offence and/or the length of the custodial sentence. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL NO.", "1 TO THE CONVENTION 26. Both applicants complained under Article 3 of Protocol No. 1 to the Convention that their disenfranchisement on the ground that they were convicted prisoners violated their right to vote and, in particular, that they had been unable to vote in two elections held on different dates in 2009 (see paragraph 8 above). The second applicant complained separately that he had not been able to vote in three other elections which took place in 2013 and 2014 (see paragraph 9 above). The relevant part of Article 3 of Protocol No.", "1 reads as follows: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” 27. The Government contested the applicants’ assertions. A. Admissibility 28. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The Government’s submissions 29. The Government considered that Article 3 of Protocol No.", "1 did not provide an individual right to participation in elections which was absolute and unlimited. Contracting States had a wide margin of appreciation in respect of people’s voting rights. The restrictions on the exercise of voting rights found in Article 42 (1) of the Bulgarian Constitution was a sovereign right of every State to impose certain restrictions on the voting rights of citizens under its jurisdiction. Article 3 of Protocol No. 1 of the Convention did not imply any other conditions relating to electoral rights, apart from the State having to guarantee the free expression of the people and not to impose arbitrary restrictions on voting.", "In this connection, this Convention provision did not suggest that States had to guarantee to absolutely all of their citizens the right to vote, as long as their electoral systems provided conditions for the holding of free elections in which people could freely express their will when electing the legislature. The Convention member States were therefore entitled to provide criminal conviction as a ground for disenfranchisement. 30. The loss of voting rights was not arbitrary but connected to the commission of crimes in connection with which individuals were effectively serving a sentence of imprisonment. The disenfranchisement pursued the legitimate purpose of promoting high civic responsibility and respect for the rule of law.", "In Bulgaria disenfranchisement applied only in respect of individuals effectively serving sentences of imprisonment on the basis of a final judgment. This restriction did not apply in cases of suspended prison sentences, or in respect of detained suspects or those accused. The number of prisoners who could not exercise their right to vote was relatively low when compared with the general population, respectively 8,614 in January 2009 and 6,996 in July 2015; as such, it did not represent a threat to the democratic foundations of the State. Finally, the Bulgarian legal system contained a mechanism for the automatic restoration of prisoners’ rights after their release from prison. 2.", "The applicants’ submissions 31. The applicants considered that their situation was very similar to that of the applicants in Anchugov and Gladkov, cited above, as the constitutional ban on voting applied to everyone who was serving a sentence. Their situation differed from that described in Scoppola (no. 3), cited above, where the voting ban only applied to those sentenced to more than three years of imprisonment and to those convicted of certain crimes against the State. 3.", "The Court’s assessment (a) General principles 32. The Court observes that the relevant general principles governing the right to vote in parliamentary elections have been summarised in the cases of Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, §§ 63-71, ECHR 2005-IX; Scoppola (no. 3) [GC], cited above, §§ 81-87; and Anchugov and Gladkov, cited above, §§ 93-100.", "The essence of these principles, reiterated in all of these three key cases, is that when disenfranchisement affects a group of people generally, automatically and indiscriminately, solely on the basis that they are serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or gravity of their offences and their individual circumstances, it is not compatible with Article 3 of Protocol No. 1 (see to this effect Hirst (no. 2) [GC], cited above, § 82; Scoppola (no. 3) [GC], cited above, § 96; and Anchugov and Gladkov, cited above, § 100, first two sentences). (b) Application of these principles to the present case 33.", "The Court notes that the present application concerns the inability of two Bulgarian citizens to vote in legislative elections while serving prison sentences. The Court must therefore ascertain whether this was compatible with Article 3 of Protocol No. 1. (i) Interference 34. As regards, in the first place, whether there was an interference with the applicants’ rights under this Convention provision, the Court observes that the applicants were deprived of the right to vote by virtue of Article 42 § 1 of the Bulgarian Constitution and by the relevant provisions of legislation on elections to the Bulgarian and European Parliaments (see paragraphs 12 and 15 above).", "The deprivation therefore constituted an interference with their right to vote enshrined in Article 3 of Protocol No. 1. (ii) Legitimate aim 35. Secondly, the Court has to consider whether the interference pursued one or more legitimate aims. The Court points out in this connection that, unlike other provisions of the Convention, Article 3 of Protocol No.", "1 does not specify or limit the aims which a restriction may pursue. A wide range of purposes may therefore be compatible with this provision (see, for example, Podkolzina v. Latvia, no. 46726/99, § 34, ECHR 2002-II, § 34). The Court accepts the Government’s argument that the ban on voting for convicted prisoners behind bars was aimed at promoting the rule of law and enhancing civic responsibility, both of which are legitimate aims for the purposes of Article 3 of Protocol No. 1 (see Hirst no.", "2 (GC), cited above, §§ 74 and 75; Scoppola (no. 3) (GC), cited above, § 90, and Anchugov and Gladkov, cited above, § 102). (iii) Proportionality 36. Finally, the Court has to establish whether the restrictions in question were proportionate to the aims pursued. 37.", "The Court observes that the applicants were deprived of the right to vote for Parliament as a result of a blanket ban on voting which applied to all convicted persons who were in detention. This prohibition was unambiguous and categorical, stemmed directly from the Constitution (see paragraph 10 above) and was reproduced in several ordinary laws applicable at different points in time during the period in question (see paragraphs 12‑15 above). The situation in the present case is therefore comparable to that examined in the case of Anchugov and Gladkov, cited above, § 101, second sentence, and § 105, last sentence, where the Constitution imposed a blanket ban on voting on all convicted prisoners serving prison sentences and which the Court found to be in breach of the Convention requirements. The Court reiterates in this connection that removal of the right to vote without any ad hoc judicial decision does not, in itself, give rise to a violation of Article 3 of Protocol No. 1 (see Scoppola (no.", "3) [GC], cited above, § 104). With a view to securing the rights guaranteed by Article 3 of Protocol No. 1, the Contracting States may decide either to leave it to the courts to determine the proportionality of a measure restricting convicted prisoners’ voting rights, or to incorporate provisions into their laws defining the circumstances in which such a measure should be applied. In this latter case, it will be for the legislature itself to balance the competing interests in order to avoid any general, automatic and indiscriminate restriction (ibid., § 102; and also Anchugov and Gladkov, cited above, § 107). The Court finds that in the present case, unlike the situation examined in Scoppola (no.", "3), cited above, where the law provided for a prohibition on voting only in respect of individuals sentenced to a prison term of three years or more, the constitutional and legislative provisions at issue do not adjust the voting ban to the circumstances of the particular case, the gravity of the offence or the conduct of the offender. 38. In respect of the Government’s argument that States enjoy a wide margin of appreciation in respect of people’s voting rights, the Court has repeatedly recognised that this margin exists but that it is not all-embracing (see Hirst (no. 2), cited above, § 82). A general, automatic and indiscriminate restriction of the right protected under Article 3 of Protocol No.", "1 must be seen as falling outside any acceptable margin of appreciation, however wide that margin may be in this field (see Hirst (no. 2), cited above, § 82). 39. As regards the extent of the obligation of States under Article 3 of Protocol No. 1, the Court considers it vital to emphasise the following.", "The formulation used in this Article to the effect that “The High Contracting Parties undertake”, as opposed to the wording whereby “Everyone has the right” or “No one shall” which is found in nearly all the other substantive clauses of the Convention, does not reflect any difference of substance between this Article and the other provisions of the Convention and its Protocols (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, §§ 48-50, Series A no. 113). The Court has repeatedly read into this Article the existence of individual subjective rights of participation – the “right to vote” and the “right to stand for election to the legislature”, as protected by the positive obligation of the State to effectively ensure those rights to individuals under its jurisdiction (see Scoppola (no. 3), cited above, § 81; Anchugov and Gladkov, cited above, § 93; and Brânduşe v. Romania (no. 2), no.", "39951/08, § 44, 27 October 2015). 40. The respondent Government argued that the number of prisoners who could not exercise their right to vote was low (see paragraph 30 above, last sentence) with the result that the restriction did not lead to a disproportionate interference with the applicants’ voting rights. The Court finds that, to the extent that such statistical data could be considered relevant, these figures are above all indicative of the numbers of individuals who have been deprived of the exercise of their right to vote while serving prison sentences. 41.", "Finally, in respect of the argument that prisoners regained their right to vote upon their release from prison, the Court observes that this feature of the system does not in any way change the fact that, as the law and practice stood at the time of the elections in question, all convicted prisoners, regardless of their individual circumstances, their conduct and the gravity of the offences committed, were deprived of the right to vote. 42. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 3 of Protocol No. 1 to the Convention in respect of both applicants as regards the election for European Parliament on 7 June 2009 and the election to the Bulgarian Parliament on 5 July 2009. The Court also finds that there has been a violation of this provision in respect of the second applicant as regards the elections to the Bulgarian Parliament on 12 May 2013 and 5 October 2014, and the European Parliament elections on 25 May 2014.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 3 OF PROTOCOL NO. 1 43. Both applicants complained that they did not have effective domestic remedies in respect of their grievance under Article 3 of Protocol No. 1 to the Convention in relation to their inability to vote while serving their prison sentences.", "They relied on Article 13 of the Convention, which provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties’ submissions 44. According to the Government, the applicants had several remedies at their disposal in respect of their complaint. In the first place, they could complain to the Ombudsman, who could in turn make representation to the Constitutional Court (see paragraph 21 above). Secondly, having served at least half of their sentence, they could apply for and obtain early release on parole if they showed by exemplary behaviour and an honest attitude towards labour that they had corrected themselves (see paragraph 17 above).", "Thirdly, the applicants could obtain a reduction of their sentence by working in prison, given that under the applicable legislation two days worked equalled three days served (see paragraph 18 above). The termination of the effective sentences in case of early release and reduction of sentence, albeit conditional, would have the legal effect of permitting the individuals in question to exercise their right to vote, as they would not then be serving sentences of imprisonment. Finally, release could also result from amnesty or full or partial pardon (see paragraphs 19-20 above). 45. In the Government’s view, the above-listed legal mechanisms for reducing a sentence constituted effective remedies which allowed for early recovery of the right to vote; this in turn demonstrated that the Bulgarian criminal justice system had a certain degree of flexibility, as required by the Convention.", "46. As regards the second applicant, the Government pointed out that simple-life imprisonment may be replaced by a sentence of imprisonment for a term of thirty years (see paragraph 22 above). 47. The applicants contested the above arguments. B.", "The Court’s assessment 48. The Court first notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 49. The Court next reiterates that it has already held that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State’s laws as such to be challenged before a national authority on the ground of being contrary to the Convention or to equivalent domestic legal norms (see Greens and M.T. v. the United Kingdom, nos.", "60041/08 and 60054/08, §§ 90-92, ECHR 2010 (extracts), and Szabó and Vissy v. Hungary, no. 37138/14, § 93, 12 January 2016, and the authorities cited therein). 50. In the present case the Court has found a violation of Article 3 of Protocol No. 1 as a result of the applicants’ being deprived of the right to vote by virtue of Article 42 § 1 of the Bulgarian Constitution and the relevant provisions of legislation on elections to the Bulgarian and European Parliaments (see paragraphs 12 and 15 above).", "51. The Court accordingly concludes that there has been no violation of Article 13. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 52. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the 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 53. Mr Kulinski claimed 2,000 euros (EUR) in respect of non-pecuniary damage, and Mr Sabev claimed EUR 5,000 in respect of non-pecuniary damage. 54. The Government considered that both of these claims were unjustified and excessive. 55.", "Having regard to the circumstances of the present case, the Court considers that the finding of a violation constitutes sufficient just satisfaction in the present case for any non-pecuniary damage sustained by the applicants (see Hirst (no. 2) [GC], cited above, §§ 93-94; Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, § 98, ECHR 2010 (extracts); and Anchugov and Gladkov, cited above, § 122). B.", "Costs and expenses 56. The applicants also claimed EUR 2,727 for the costs and expenses incurred before the Court. They asked for this amount to be paid directly into the account of the Bulgarian Helsinki Committee. 57. The Government considered that these claims were exaggerated and unjustified.", "58. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. 59. As regards the costs and expenses incurred before the Court, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,727. C. Default interest 60.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 3 of Protocol No. 1 to the Convention; 3.", "Holds that there has been no violation of Article 13 of the Convention; 4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants; 5. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement: (i) EUR 2,727 (two thousand seven hundred and twenty seven euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid directly into the bank account of the Bulgarian Helsinki Committee; (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 21 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Claudia WesterdiekAngelika NußbergerRegistrarPresident" ]

[ "FOURTH SECTION CASE OF IVAN STOYANOV VASILEV v. BULGARIA[1] (Application no. 7963/05) JUDGMENT This version was rectified on 20 June 2013 under Rule 81 of the Rules of Court STRASBOURG 4 June 2013 FINAL 04/09/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ivan Stoyanov Vasilev v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Ineta Ziemele, President,David Thór Björgvinsson,Päivi Hirvelä,George Nicolaou,Zdravka Kalaydjieva,Vincent A. De Gaetano,Krzysztof Wojtyczek, judges,and Françoise Elens-Passos, Section Registrar, Having deliberated in private on 14 May 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 7963/05) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Ivan Stoyanov Vasilev (“the applicant”), on 7 February 2005. 2. The applicant was represented by Ms S. Margaritova-Vuchkova, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice.", "3. The applicant alleged that proceedings before the Supreme Administrative Court, to which he had sought judicial review of the termination of his employment as a police officer, were unfair. 4. On 3 December 2009 the Government were given notice of the application. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1959 and lives in Bourgas. A. The termination of the applicant’s employment 6.", "On 5 June 2003 the applicant, who was serving as a police officer in Bourgas, filed a request for early retirement. According to him, he did so against his will under threat of dismissal for disciplinary reasons. He learned of this threat from colleagues, who had heard it from their superior. The pretext for the dismissal was said to be a disciplinary penalty which had been imposed on the applicant on 30 May 2003 for having allegedly failed to act with the requisite diligence when handling an incident involving a helicopter. 7.", "Following the applicant’s request for early retirement, and pursuant to section 253(1)(2) of the Ministry of Internal Affairs Act (“the 1997 Act”: see paragraph 15 below), the Minister of Internal Affairs decided to terminate the applicant’s employment. The order for termination was dated 13 June 2003. 8. The order was served on the applicant on 22 July 2003. On receipt of the order the applicant explicitly stated that he had filed his request for early retirement against his will and under threat of a disciplinary dismissal.", "B. The proceedings before the Supreme Administrative Court 9. Under section 258 of the 1997 Act in conjunction with section 36(1) of the Administrative Procedure Act 1979 (in force until 1 March 2007), the applicant had the right to seek judicial review of the order for termination of his employment by the Supreme Administrative Court. He exercised that right on 4 August 2003, alleging that there had been procedural defects in the decision to terminate his employment and that there had been no valid request for early retirement (a key condition for termination of employment), as he had filed his request under duress. He sought to rely on the testimony of four witnesses who, he maintained, would give evidence that he had not intended to retire and had only filed his request for early retirement because of the threat of dismissal.", "10. On 16 December 2003, during the first hearing in the case before a three-member panel of the Supreme Administrative Court, the applicant’s lawyer reiterated the request to call the four witnesses. The Minister of Internal Affairs’ counsel objected, arguing that the applicant could simply have withdrawn his request for early retirement. The prosecutor, who, as of right, participated in the appeal, considered that the witnesses should be heard in order to allow the applicant to prove his claim. Nevertheless, the Supreme Administrative Court refused the applicant’s request to call the witnesses without giving reasons.", "The minutes of the hearing merely stated that the court had decided not to grant the request. 11. In a judgment of 23 January 2004 the three-member panel quashed the termination order, finding that, in issuing the order while the applicant was on sick leave, the Minister had breached section 256(1) of the 1997 Act (see paragraph 15 below). 12. The Minister of Internal Affairs filed a cassation appeal against the decision of the three-member panel.", "In his written pleadings in reply the applicant’s lawyer again reiterated his request to have the witnesses examined. 13. In a final judgment of 25 October 2004 a five-member panel of the Supreme Administrative Court quashed the earlier judgment of the three‑member panel and upheld the order for termination of the applicant’s employment, finding that, although the order had been signed on 13 June 2003 (when he was on sick leave), it had been served on him on 22 July 2003 (when he was back at work). Therefore, there had been no breach of section 256(1) of the 1997 Act. 14.", "Neither the three-member nor five-member panel of Supreme Administrative Court judgments considered the applicant’s allegation that he had filed his request for early retirement under duress or gave reasons for the decision not to call the applicant’s witnesses. II. RELEVANT DOMESTIC LAW 15. Section 253(1)(2) of the 1997 Act, in force until the end of April 2006, provided that the employment of officers in the Ministry of Internal Affairs could be terminated by order of the Minister in cases where they met all the requirements for receiving an old-age pension and upon their request for early retirement. The order for termination was amenable to judicial review by the Supreme Administrative Court (section 258 of the 1997 Act in conjunction with section 36(1) of the Administrative Procedure Act 1979, in force until 1 March 2007).", "Section 256(1) of the 1997 Act provided that the employment of officers could not be terminated whilst on leave except in accordance with the provisions of section 253 of the Act. 16. Section 11(1) of the Administrative Procedure Act 1979 provided that an administrative decision could only be issued after the administrative authority considered any explanations, representations or objections made by the interested party. 17. At the material time, proceedings before the Supreme Administrative Court were regulated by the Supreme Administrative Court Act 1997.", "Section 38 of the Act stated that in cassation proceedings (which included appeals from three-member panels to five-member panels of the Supreme Administrative Court) only documentary evidence was admissible. Section 40(1) provided that, in such proceedings, the Supreme Administrative Court could uphold, quash (wholly or partly) or vary the judgment appealed against. Section 40(2) provided that, if the Supreme Administrative Court quashed the judgment for serious breaches of the rules of procedure, it had to remit the case for reconsideration by a differently constituted panel. In other cases, the case was to be decided on the merits. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 18. The applicant, relying on Article 6 § 1 of the Convention, complained that he had not had a fair trial as a result of the Supreme Administrative Court’s refusal to examine his witnesses without giving reasons. Article 6 § 1 of the Convention, where relevant, provides as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 19. The Government submitted that the application was inadmissible because the applicant had not exhausted domestic remedies. He had failed to make written representations setting out his allegations as to duress (with his supporting evidence) to the Minister.", "The Minister would have been bound to consider those representations, in accordance with the section 11 of the Administrative Procedure Act 1979 (see paragraph 16 above). 20. The Court finds that there is no merit in the Government’s preliminary objection. Whatever administrative remedies he may have had in respect of the termination of his employment, the applicant’s complaint to this Court is not about that termination, but about the fairness of proceedings before the Supreme Administrative Court. The remedy suggested by the Government had no bearing on that complaint.", "Accordingly, the Court rejects the Government’s preliminary objection. Since the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and it is not inadmissible on any other grounds, it must be declared admissible. B. Merits 1. The parties’ submissions 21.", "The Government maintained that the applicant’s allegations concerning the termination of his employment were unfounded. The Supreme Administrative Court enjoyed full jurisdiction to review all elements of the procedural and substantive legality of the termination of his employment. The case had been carefully considered and rejected by the Supreme Administrative Court, which had acted fairly throughout. The three-member panel had given a clear reason for its decision – the breach of section 256(1) – and, in reaching that decision, had fully considered the applicant’s submissions. When that decision was appealed, according to the relevant procedures in place at that time, the five-member panel had been constrained to considering the written evidence in the case.", "This was why the applicant’s requests regarding the hearing of his witnesses had not been considered by the five-member panel: the witnesses were simply not relevant to the issue on appeal before it. Courts had a wide discretion as regards the calling of witnesses and a violation could not be found simply because a court found it unnecessary to call a particular witness, or denied an applicant’s request to have a witness called (see, for instance, H. v. France, 24 October 1989, Series A no. 162‑A; and, mutatis mutandis, S.N. v. Sweden, no. 34209/96, ECHR 2002‑V).", "22. The applicant reiterated that his witnesses were relevant to the key issue in the case, namely whether he had made his request for early retirement under duress. His request to have those witnesses called had been made in accordance with the applicable procedural rules and had been supported by the prosecutor appearing in the case, yet the Supreme Administrative Court gave no reasons for its refusal to call the witnesses. The Supreme Administrative Court had also been required to rule on the merits of every claim which an applicant advanced. It had not done so.", "Instead, the three-member panel had only considered the issue of sick leave and, on appeal, the five-member panel had done the same. When it quashed the three-member panel’s decision regarding the sick leave issue, the proper course would have been for the five-member panel to have remitted the case for reconsideration by a differently constituted panel of three judges, and for that new panel to have considered all of the other issues the applicant had raised, particularly the issue of duress. Instead, the course adopted by the Supreme Administrative Court meant he had been denied the possibility of having his claims regarding duress considered, and his witnesses in support of that claim heard. 2. The Court’s assessment 23.", "The issue before the Court in this case is not whether the order for the termination of the applicant’s employment complied with Bulgarian law or whether it was justified, but whether the judicial review proceedings in respect of that termination breached Article 6 § 1 of the Convention. In ruling on that issue, the Court must consider two questions: whether the civil limb of Article 6 § 1 applies to the proceedings before the Supreme Administrative Court and, if so, whether those proceedings were fair. (a) Applicability of Article 6 § 1 of the Convention 24. For Article 6 § 1 of the Convention to be applicable under its civil limb, there must be a genuine and serious dispute over a right that can be said, at least on arguable grounds, to be recognised in domestic law. The dispute may relate not only to the actual existence of the right but also to its scope and the manner of its exercise.", "Moreover, the outcome of the proceedings must be directly decisive for that right (see, among many other authorities, Efendiyeva v. Azerbaijan, no. 31556/03, § 39, 25 October 2007). 25. In the present case, it is uncontested that there was a dispute over a right recognised under Bulgarian law (in the absence of a valid order for termination of employment, the right to continue to be employed as an officer of the Ministry of Internal Affairs), that the dispute was genuine and serious, and that the outcome of the proceedings before the Supreme Administrative Court was directly decisive for the right concerned (contrast Čavajda v. Slovakia, no. 65416/01, §§ 61‑64, 14 October 2008).", "26. It remains to be established whether that right can be characterised as “civil” within the meaning of Article 6 § 1 of the Convention. In this connection, it should be noted that the applicant was a serving police officer, under the authority of the Ministry of Internal Affairs, and that the dispute that he sought to have resolved in the proceedings he brought before the Supreme Administrative Court concerned the lawfulness of the termination of his employment in that post. 27. In its judgment in the case of Vilho Eskelinen and Others v. Finland [GC], no.", "63235/00, § 62, ECHR 2007‑II, the Court’s Grand Chamber laid down new criteria regarding the applicability of Article 6 § 1 of the Convention to disputes concerning the employment of civil servants. It ruled that this provision applies under its civil limb to all disputes involving civil servants unless (a) the domestic law of the State concerned expressly excludes access to a court for the post or category of staff in question, and (b) that exclusion is justified on objective grounds. If domestic law does not bar access to a court, the Court does not need to go into the second of these criteria (see Rizhamadze v. Georgia, no. 2745/03, §§ 27‑28, 31 July 2007; Efendiyeva, cited above, § 41; and Romuald Kozłowski v. Poland, no. 46601/06, § 24, 20 January 2009).", "28. In the present case, Bulgarian law expressly allowed judicial review of the decision to terminate the employment of a serving officer of the Ministry of Internal Affairs and the applicant’s legal challenge to the termination of his employment was in fact examined by the Supreme Administrative Court. It follows that Article 6 § 1 of the Convention, under its civil limb, was applicable to the proceedings before that court (see Redka v. Ukraine, no. 17788/02, § 25, 21 June 2007; Chukhas v. Ukraine, no. 4078/03, § 20, 12 July 2007; Blandeau v. France, no.", "9090/06, § 21, 10 July 2008; Iordan Iordanov and Others v. Bulgaria, no. 23530/02, § 44, 2 July 2009; and Vanjak v. Croatia, no. 29889/04, §§ 32‑33, 14 January 2010). The fact that the proceedings concerned the termination of the applicant’s employment rather than a question relating to his salary, allowances or similar entitlements does not alter that conclusion (see Cvetković v. Serbia, no. 17271/04, § 38, 10 June 2008; Romuald Kozłowski, cited above, § 24; and Bayer v. Germany, no.", "8453/04, §§ 38‑39, 16 July 2009). (b) Compliance with Article 6 § 1 of the Convention 29. It remains to be determined whether the proceedings before the Supreme Administrative Court were fair. The following four general principles set out in the Court’s case-law are relevant to its determination of that issue. 30.", "First, Article 6 of the Convention does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Schenk v. Switzerland, Series A no. 140, p. 29, §§ 45-46, and Garcia Ruiz v. Spain [GC] no. 30544/96, § 28, ECHR 1999-I). The Court’s task is to ascertain whether the proceedings in their entirety, including the way in which evidence and procedural decisions were taken, were fair (Olujić v. Croatia, no. 22330/05, § 77, 5 February 2009; Tamminen v. Finland, no.", "40847/98, § 38, 15 June 2004). 31. Second, Article 6 of the Convention does not explicitly guarantee the right to have witnesses called or other evidence admitted by a court in civil proceedings. Nevertheless, any restriction imposed on the right of a party to civil proceedings to call witnesses and to adduce other evidence in support of his case must be consistent with the requirements of a fair trial within the meaning of paragraph 1 of that Article, including the principle of equality of arms (Khrabrova v. Russia, no. 18498/04, § 38, 2 October 2012; Gryaznov v. Russia, no.", "19673/03, §§ 56 and 57, 12 June 2012; and also Wierzbicki v. Poland, no. 24541/94, § 39, 18 June 2002). 32. Third, the principle of adversarial proceedings and equality of arms, which is one of the elements of the broader concept of a fair hearing, requires that each party be given a reasonable opportunity to have knowledge of and comment on the observations made or evidence adduced by the other party, and to present his case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent (Olujić, cited above, § 78; Krčmář and Others v. the Czech Republic, no. 35376/97, § 39, 3 March 2000, and Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 33, Series A no.", "274). 33. Finally, the notion of a fair procedure requires that a national court address the essential issues which were submitted to its jurisdiction (Vojtěchová v. Slovakia, no. 59102/08, § 35, 25 September 2012, with further references therein). The national court is 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 (Van de Hurk v. the Netherlands, 19 April 1994, § 59, Series A no.", "288). Article 6 § 1 obliges courts to give reasons for their decisions, but cannot be understood as requiring a detailed answer to every argument (ibid, § 61; Hiro Balani v. Spain, 9 December 1994, § 27, Series A no. 303‑B; Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303‑A). They must, however, indicate with sufficient clarity the grounds on which they based their decision (Hadjianastassiou v. Greece, 16 December 1992, § 33, Series A no.", "252). 34. In the present case, the very reason for the applicant’s application to the Supreme Adminstrative Court was his contention that his request for early retirement had been made under duress and that, as such, the order for termination of his employment had been invalid. Although the Government have disputed the applicant’s factual allegations in this respect they have accepted that, should duress have been proven, as a matter of Bulgarian law, this would have invaldiated the termination order. The issue of duress was thus the central issue in the proceedings before the Supreme Administative Court.", "This was, moreover, a question of fact and, as such, could only have been determined by the Supreme Administrative Court considering the parties’ evidence. Given this background, it would normally have been incumbent upon the Supreme Administrative Court, sitting first as a three‑member panel, either to hear the applicant’s witness or to give clear reasons for its decision not to do so. 35. Having first refused the applicant’s request to call witnesses in regard of the alleged duress (see paragraph 10 above), the three-member panel also gave no ruling or reasoning on this account in its decision. It preferred instead to determine the application for judicial review in the applicant’s favour only on the narrower question of sick leave.", "Thereafter, on appeal the five-member panel, which was limited to examining only the written evidence in the case, summarily quashed the judgment of the three‑member panel without dealing with his complaint regarding duress. The effect of the five-member panel’s decision was to quash a decision which had been favourable to the applicant without affording him any opportunity to have his principal ground of challenge against his dismissal considered. This meant that the essence of the applicant’s complaint was in fact never judically examined by the Supreme Administrative Court and, thus, there was no proper judicial determination of his application for judicial review (see, for instance, Yanakiev v. Bulgaria, no. 40476/98, §§ 68-72, 10 August 2006). The cumulative consequence of the manner of proceeding by the Supreme Administrative Court, at first instance and on appeal, was therefore to deprive the applicant of the right to a fair hearing to which he was entitled under Article 6 § 1 of the Convention.", "For these reasons, there has been a violation that provision. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 36. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 37.", "The applicant made no claim in respect of pecuniary damage but claimed 6,000 euros (EUR) in respect of non-pecuniary damage. He had suffered this damage because of the stress and anxiety incurred as a result of the unfairness of the proceedings before the Supreme Administrative Court. He relied in particular on the fact that, before the termination of his employment, he had been a police officer in good standing with nineteen years’ service and that, since then, his mental and physical health had suffered. 38. The Government considered this claim to be excessive and that the finding of a violation would constitute sufficient just satisfaction.", "In the alternative, they asked the Court to follow its awards in similar cases. 39. The Court finds that the applicant has suffered non‑pecuniary damage on account of the breach of Article 6 § 1 of the Convention which it has found (Khrabrova, cited above, § 59) and that damage cannot be made good by the mere finding of a violation (Olujić, cited above, § 97). Consequently, ruling on an equitable basis, the Court awards the applicant EUR 1,500, plus any tax that may be chargeable on this amount. 40.", "It must in addition be pointed out that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the breach and to redress as far as possible its effects (see, as a recent authority, Stanev v. Bulgaria [GC], no. 36760/06, § 254, ECHR 2012). The most appropriate form of redress in cases where an applicant has not had access to a tribunal in breach of Article 6 § 1 of the Convention is, as a rule, to re‑open the proceedings in due course and re‑examine the case in keeping with all the requirements of a fair trial (see, among other authorities, Yanakiev, cited above, § 90). B. Costs and expenses 41.", "The applicant sought reimbursement of EUR 1,410 incurred in lawyers’ fees. This reflected twenty-three and a half hours’ work on the proceedings before the Court (at the rate of EUR 60 per hour). He requested that EUR 102 of any award made under this head be paid directly to him (since he had already paid that sum to his lawyers) and the remainder to his legal representative. He claimed a further 360 Bulgarian levs (BGN) (EUR 153) in costs and expenses (covering postal and translation services) and asked that this sum be paid directly to him. In support of these claims he submitted a fee agreement between him and his legal representative, a time sheet, contracts for translation services and various postal receipts.", "42. The Government submitted that the number of hours billed and the hourly rate charged by the applicant’s lawyers were inflated. They also submitted that the other expenses should be allowed only in so far as supported by documentation. 43. According to the Court’s case-law, costs and expenses claimed under Article 41 must have been actually and necessarily incurred and be reasonable as to quantum.", "In the present case, the Court notes that the hourly rate charged by the applicants’ lawyers is comparable to those charged in recent cases against Bulgaria having a similar complexity (see, as recent authority, Finger v. Bulgaria, no. 37346/05, § 142, 10 May 2011 with further references therein). It can thus be regarded as reasonable. However, the Court agrees with the Government that the number of hours for which the applicant’s legal representative charged appears to be excessively high. Considering this, and making its assessment on an equitable basis, the Court awards the applicant EUR 1,000 in costs.", "EUR 102 of that amount is to be paid to the applicant himself and the remainder to his legal representative. 44. As for the claim for other expenses, the applicant has requested reimbursement of the cost of translating of documents from English to Bulgarian, and the cost of translating of documents from Bulgarian to English. Under the Court’s case-law, only the latter may be reimbursed as having being necessarily incurred (see United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 2), no.", "34960/04, § 59, 18 October 2011). Accordingly, the Court awards him BGN 135 for translation services and a further BGN 30 to cover the postal expenses he has actually incurred, plus any tax that may be chargeable to him. Converted into euros, the total sum awarded in respect of expense comes to EUR 84. This is to be paid to the applicant himself. C. Default interest 45.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 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 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,084 (one thousand and eighty-four euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, EUR 186 (one hundred and eighty-six euros) of which is to be paid to the applicant himself, and the remainder of which is to be paid to his legal representative; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 4 June 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosIneta ZiemeleRegistrarPresident [1] Rectified on 20 June 2013: The name of this judgment has been changed from Vasilev v. Bulgaria to Ivan Stoyanov Vasilev v. Bulgaria." ]

[ "FIRST SECTION CASE OF MITKOVA v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA (Application no. 48386/09) JUDGMENT STRASBOURG 15 October 2015 FINAL 15/01/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mitkova v. the former Yugoslav Republic of Macedonia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: András Sajó, President,Mirjana Lazarova Trajkovska,Julia Laffranque,Paulo Pinto de Albuquerque,Linos-Alexandre Sicilianos,Erik Møse,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 22 September 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "48386/09) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian national, Ms Maja Mitkova (“the applicant”), on 4 September 2009. 2. The applicant was represented by Mr A. Godžo and Mr D. Godžo, lawyers practising in Ohrid. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov. 3.", "The applicant complained, in particular, under Article 6 of the Convention about the lack of an oral hearing and the length of administrative proceedings for reimbursement of expenses for medical treatment abroad, as well as that the partial reimbursement of those expenses had violated her rights under Article 1 of Protocol No. 1 to the Convention. 4. On 13 December 2012 these complaints were communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1954 and lives in Ohrid. A. Background of the case 6. The applicant is suffering from multiple sclerosis.", "7. On 1 April 1994 the Ministry of Health (“the Ministry”) issued a certificate allowing a bank, in which the applicant’s father had a foreign currency savings account, to transfer 20,000 United States dollars into the account of a hospital in the United States, in order to cover medical expenses related to treatment which the applicant was expected to undergo. It was given on the basis of a medical report (конзилијарно мислење) issued by the Skopje Neurology Clinic which stated, inter alia: “... [the applicant] is suffering from multiple sclerosis, which requires further medical examination and treatment in a medical institution abroad, given the fact that all possibilities for her treatment in the State are exhausted ...” 8. Between 17 May and 28 June 1994 the applicant underwent medical treatment in the hospital H.H.I. in the United States.", "9. On 12 July 1994 the Skopje Neurology Clinic issued another medical report (конзилијарно мислење, “the report of 12 July 1994”), the relevant part of which reads as follows: “It is impossible to treat the disease in the State due to the critical state of [the applicant’s] health and the Clinic’s calendar of events. [The applicant] should leave immediately or by the middle of the month at the latest ...” 10. The report was signed by three doctors, who confirmed that it was impossible to treat the disease in the respondent State. As stated in the report, it was expected that the treatment abroad would prevent the progressive deterioration of the applicant’s health.", "B. First administrative proceedings 11. On 29 November 1994 the applicant requested that the Health Insurance Fund (“the Fund”) issue ex post facto a decision referring her to be treated in hospital H.H.I. (решение за упатување на лекување во странство). This request did not contain a claim for reimbursement of the expenses for the treatment that she had undergone.", "12. On 8 December 1994 the Fund dismissed the applicant’s request after an expert commission set up within the Fund (“the Fund’s commission”) had provided an opinion that the applicant could have been treated in the respondent State. 13. On 21 March 1995 the applicant appealed against the Fund’s decision to the Ministry, arguing that the Fund’s expert commission had not taken into account the report of 12 July 1994 (see paragraph 9 above). She also requested that the Ministry approve further check-ups and treatment in hospital H.H.I.", "14. On 30 November 1995 the Ministry, as the second-instance administrative body, dismissed the applicant’s appeal after obtaining an opinion from the Second-Instance Medical Commission for Treatment Abroad (“the Second-Instance Commission”). The Ministry found that the possibilities for treatment in the State had not been exhausted. 15. The applicant initiated administrative-dispute proceedings before the Supreme Court.", "On 14 January 1998 the Supreme Court quashed the Ministry’s decision. It found that it had not been clear whether the applicant was supposed to undergo a medical check-up or prolonged treatment abroad and that there was a contradiction in the medical reports as to whether the possibilities to treat the applicant’s condition domestically had been exhausted. 16. On 9 July 1999 the Ministry again dismissed the appeal by the applicant against the Fund’s decision of 8 December 1994. C. Second administrative proceedings 17.", "In so far as can be established from the available material, on 7 July 1995 the applicant lodged a separate request with the Fund for reimbursement of the expenses for the treatment that she had undergone in hospital H.H.I. 18. On 21 September 1995 the Fund ordered a partial reimbursement of the medical expenses in the amount of 278,311 Macedonian denars (MKD), or 20% of the expenses actually incurred. On 12 November 1995 the decision was adjusted to 10%. It appears that on 13 November 1995 the awarded amount was increased to MKD 313,100.", "19. On 11 November 1996 the Ministry examined the applicant’s appeal and increased the award by an additional MKD 50,215. 20. The applicant challenged the latter decision with an administrative-dispute claim before the Supreme Court. 21.", "On 25 March 1998 the Supreme Court quashed the decision of 11 November 1996. It found that the Fund and the Ministry had failed to assess whether the applicant could have been treated in the State, in accordance with the Rules on the Conditions and Manner of Referral of Insured Persons for Treatment Abroad (see paragraphs 38-41 below). It further found that these bodies interpreted section 15 of the Rules to signify that a person was not entitled to reimbursement of expenses if he/she had not obtained a prior decision referring him/her for treatment abroad (решение за упатување на лекување во странство). In the court’s view, such an interpretation would be contrary to the Health Protection Act. 22.", "On 6 January 1999 the Ministry reached an identical decision to that of 11 November 1996. 23. The applicant initiated administrative-dispute proceedings against the Ministry’s decision. D. Joint proceedings 24. On 22 November 2000 the Supreme Court quashed both the decision of 6 January 1999 (see paragraph 22 above) and the decision of 9 July 1999 (see paragraph 16 above).", "It found that the Ministry should have joined the proceedings for reimbursement of the medical expenses incurred in hospital H.H.I. with the proceedings for referral for treatment abroad. It should have decided in the first place the request for referral to treatment abroad, the outcome of which was decisive for the applicant’s claim for reimbursement of the medical expenses. It again instructed the Ministry to assess whether the applicant could have been treated in the State. 25.", "On 23 February 2001 the Ministry quashed the decision of 21 September 1995 (see paragraph 18 above) and decided that the applicant’s treatment abroad could not be recognised as treatment abroad based on a decision of the Fund. Nevertheless, the applicant was to be reimbursed the expenses for treatment abroad not based on such a decision, in the amount of MKD 378,741. The Ministry came to its conclusion on the basis of an opinion of a medical commission of 14 December 2000 which found that the applicant could be treated in the respondent State. 26. The applicant again challenged the Ministry’s decision before the Supreme Court.", "27. On 13 November 2003 the Supreme Court quashed the decision, finding that the administrative bodies had not established whether at the time of the treatment the possibilities for treatment in the respondent State had been exhausted. 28. On 5 November 2004 the Ministry again dismissed the appeal against the decision of 21 September 1995, this time based on a conclusion of the Second-Instance Commission of 3 November 2004 that the applicant could have been treated in the respondent State in 1994. 29.", "On 14 December 2006 the Supreme Court again quashed the decision of the Ministry. The court found that there had been conflicting medical evidence as to whether the applicant could have been treated in the respondent State at the relevant time. It further requested that the doctors who had drawn up the report of 12 July 1994 give evidence as to whether the possibilities for treatment of the specific condition in the State in 1994 had been exhausted. 30. After having consulted the doctors, on 8 October 2007, the Ministry again dismissed the applicant’s appeal against the decision of 21 September 1995.", "The relevant part of the decision reads as follows: “The Minister of Health ... on the basis of all the documents in the file established that the [applicant’s] treatment in the [H.H.I. hospital] cannot be considered as treatment abroad based on a decision of the [Fund] in accordance with sections 7, 9 and 10 of the Rules for Referral for Treatment Abroad (Official Gazette nos. 3/92, 11/92, 32/92 and 48/92) and in accordance with sections 5, 7 and 8 of the subsequently adopted Rules on the Manner of Using Health Services Abroad (Official Gazette no. 111/2000) because under the provisions of both sets of Rules the medical opinion of the respective clinic is merely a proposal for referral for treatment abroad of an insured person, and the assessment and the opinion on the need for treatment abroad is provided by the [Fund’s commission], which assesses whether the possibilities for treatment in the State are exhausted and whether there are possibilities for successful treatment abroad, in which State and in which foreign medical facility. The insured person obtains the right to treatment abroad only by a decision of the [Fund] on the basis of a finding of the [Fund’s commission].", "It is a fact that the [applicant] went for treatment abroad without [having obtained] a decision of the [Fund] on her own assessment, given that at that moment there was not even a medical report [by the clinic] which is only a proposal of the clinic for referral to treatment abroad. In the entire proceedings the first- and second-instance bodies acted in accordance with the provisions of the Rules for [Referral to Treatment Abroad] and, in line with section 15 of the Rules, they decided to reimburse expenses as if the treatment had been performed in the [respondent] State, for the reason that the [applicant] had not obtained a right to be treated abroad because the competent commission had found that that condition had been treatable in the State ... ... That the Supreme Court in its last judgment requests that the members who provided the medical report of 1994 [give evidence] ... is irrelevant, given that the medical report is an initiative – a proposal for initiating certain proceedings – but [it does] not [confer] a right to be treated abroad. If, in the court’s view, the medical report was decisive in the present case, a question arises as to what the competence of the [Fund’s commission] is and why there are provisions in the Rules ... and prescribed proceedings for obtaining the right to treatment abroad. Having in mind the fact that the [Fund’s commission] for referral for treatment abroad, in the present case, had on multiple occasions found that the possibilities for treatment in the existing health institutions at the Skopje Clinic had not been exhausted ... the case is considered under section 15 [of the Rules of 1992], that is section 20 [of the Rules of 2000] ... , and it was decided that expenses for the treatment be reimbursed to the [applicant] in line with the price list for health services in the [respondent State].” 31. The applicant challenged the Ministry’s decision seeking under the Administrative Disputes Act (see “Relevant domestic law” below) that the Supreme Court hold an oral hearing in order to take evidence from the doctors who had drawn up the 1994 report, the Chairman of the Ministry’s Second-Instance Commission and Dr R.L., the doctor who had treated her.", "She referred to the certificate of 1 April 1994 (see paragraph 7 above) and the medical report that it had been based on. She argued that, in view of her condition at that juncture and the short period of available time, she had not lodged a request to the Fund before leaving as she had considered that she could have done it after her return to the State. She further argued that the Ministry had failed to decide her claim for referral for treatment abroad and had only decided the claim for reimbursement of expenses. 32. On 22 January 2009 the Administrative Court, which had meanwhile become competent to decide administrative disputes, held a private session and finally dismissed the applicant’s appeal.", "It did not in its decision address the applicant’s request for an oral hearing. 33. The court referred to section 10 § 1 (14) and section 30 of the 2000 Health Insurance Act, as well as sections 20 of the Rules on the Manner of Using Health Services Abroad (see paragraphs 37, 41 and 42 below). It ruled that the administrative bodies had correctly applied the applicable law in awarding the applicant partial compensation for the medical expenses for her treatment in hospital H.H.I. in 1994.", "The relevant parts of the judgment stated as follows: “... In the present case, [the applicant] went for treatment abroad without [having obtained] a decision of [the Fund], on her own assessment, and without a medical report, which she obtained after she had returned from the U.S.A. from the Skopje Neurology Clinic on 12 July 1994, contrary to section 30 of the 2000 Health Insurance Act. The court considers that the [administrative] bodies in the proceedings correctly established that the [applicant’s] treatment in the [H.H.I.] hospital in the U.S.A. cannot be considered as treatment abroad based on a decision of [the Fund] in accordance with sections 7, 9 and 10 of the Rules for referral for treatment abroad (Official Gazette nos. 3/92, 11/92, 32/92 and 48/92) and in accordance with sections 5, 7 and 8 of the Rules on the Manner of Using Health Services Abroad (Official Gazette no.", "111/2000), because under the provisions of the two [sets of] Rules the medical report of the relevant clinic is only a proposal for referral for treatment abroad of an insured person, and the assessment and the opinion on the need for treatment abroad is provided by the [Fund’s commission], which assesses whether the possibilities for treatment in the State are exhausted and whether there are possibilities for successful treatment of the condition abroad and in which country or in which foreign medical institution. In deciding, the court assessed [the applicant’s] arguments that in [the respondent State] there had been no possibility of a successful continuation of her treatment and that there had been a need to continue the treatment abroad, but found them groundless since, according to the expert opinion of the Neurology Clinic, all cases of multiple sclerosis have always been treated in the State wherein the therapeutic procedures for these diseases are in accordance with international medical standards. Hence, the court considers that the [administrative] bodies acted in accordance with the Supreme Court’s instructions and removed the breaches in the proceedings in terms of clarification of the contradictions which had existed before, deciding to award expenses as if the treatment had been conducted in the State, under the terms of section 15 of the Rules for Referral to Treatment Abroad, given that [the applicant] had not obtained the right to be treated abroad because the competent [Fund’s commission] had provided its opinion that the condition had been treatable in the State.” 34. This judgment was served on the applicant on 6 March 2009. II.", "RELEVANT DOMESTIC LAW A. Administrative Disputes Act of 2006 (Закон за управните спорови, Official Gazette no. 62/2006) 35. Section 30 of the Act applicable at the material time provided that the court decides, in principle, at a hearing held in private. It could hold a public oral hearing in the following situations: if the case was complex; in order to clarify matters (поради подобро разјаснување на состојбата на работата); and to establish facts and adduce evidence.", "For the same reasons, a party to the proceedings could request that the court hold a public hearing. Section 40 § 1 (5) and (6) provided that the court had to decide the merits of the case when inter alia it had previously quashed the administrative decision and the administrative body had failed to implement the court’s instructions or when the administrative body had acted contrary to the court’s legal opinion or to the court’s observations concerning the proceedings and the claimant had lodged a fresh administrative-dispute claim. B. Health Protection Act of 1991 (Закон за здравствената заштита, Official Gazette nos. 38/91, 46/93 and 55/95) 36.", "Under section 44 of the Act, a person suffering from a disease that could not be treated in the State was entitled to receive medical assistance abroad where such a disease could be successfully treated, under conditions specified by the Rules of the Ministry of Health. C. Health Insurance Act of 2000 (Закон за здравственото осигурување, Official Gazette no. 25/2000) 37. Section 10 § 1 (14) of the Act provided that compulsory medical insurance did not cover medical treatment abroad unauthorised by the Fund regarding costs that exceeded those for the corresponding services in the State. Section 30 provided for the same rules specified in section 44 of 1991 Health Protection Act.", "D. Rules on the Conditions and the Manner of Referral of the Insured Persons to Treatment Abroad (“Rules on the Referral to Treatment Abroad”, Правилник за условите и начинот на упатување на осигурениците на лекување во странство, Official Gazette nos. 3/92, 11/92 and 48/92) 38. Under section 3 of the Rules, the proceedings for referral for treatment abroad were initiated upon the insured person’s request. Under section 5, a proposal, that is a medical opinion of the appropriate clinic at the Skopje Faculty of Medicine, as well as the necessary medical documents, particularly more recent ones, was attached to the request. 39.", "Section 7 provided that the Fund’s First-Instance Medical Commission for Treatment Abroad made an assessment and provided its opinion on the need for treatment abroad. Under section 9, the opinion of the commission included also the issue as to whether all possibilities for treatment in the State had been exhausted and whether there had been possibilities for successful treatment abroad and in which country or foreign medical facility. Under section 10, the Fund issued a decision for referral for treatment abroad on the basis of the documents referred to in section 5 of the Rules and the assessment and opinion of the First-Instance Medical Commission. 40. Under section 12, exceptionally, when there was a direct danger to the insured person’s life, the Fund referred him/her to treatment abroad as a matter of urgency upon a proposal of the appropriate clinic at the Skopje Faculty of Medicine.", "41. Under section 15, if the person insured with the Fund had been treated in a foreign medical institution without having obtained a decision referring him/her to treatment abroad, the Fund could reimburse part of the expenses up to the maximum of the established cost of the respective treatment with the difference in the amount for the treatment, travel and per diem expenses borne by him/her. E. Rules on the Manner of Using Health Services Abroad by Insured Persons (Правилник за начинот на користење на здравствени услуги на осигурените лица во странство, Official Gazette nos. 111/00, 31/03 and 113/05) 42. Sections 2, 3, 5, 7 and 8 of the Rules provided for the same rules specified under sections 3, 5, 7, 9 and 10, respectively, of the Rules for Referral for Treatment Abroad (see paragraphs 37 and 38 above).", "43. Under section 20, if the insured person was treated in a foreign medical institution without having obtained a decision referring him/her for treatment abroad, and if the treatment concerned a condition that had not been treatable in the State, part of the expenses up to the established cost of the respective treatment could be reimbursed, and the difference in the amount of expenses for the treatment, travel and per diem expenses would be borne by him/her. THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 44. The applicant complained about the length of the administrative proceedings and the lack of an oral hearing under Article 6 of the Convention, the relevant part of which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time ...” A. Admissibility 45.", "The Government did not raise any objection as to the admissibility of these complaints. 46. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits 1. The length of the proceedings (a) The parties’ submissions 47. The Government accepted that the impugned proceedings had lasted unreasonably long time. 48.", "The applicant did not submit any comments in reply. (b) The Court’s assessment 49. The Court observes that the first administrative proceedings were instituted on 29 November 1994. However, the period to be taken into consideration began only on 21 March 1995 when the applicant appealed against the first-instance decision. It was then that a “dispute” within the meaning of Article 6 § 1 arose (see, for example, Štokalo and Others v. Croatia, no.", "15233/05, § 48, 16 October 2008, and Janssen v. Germany, no. 23959/94, § 40, 20 December 2001). The proceedings ended on 6 March 2009. They therefore lasted thirteen years, eleven months and nineteen days, at two levels of jurisdiction, of which eleven years, ten months and twenty eight days fall within the Court’s jurisdiction ratione temporis (after 10 April 1997, the date of ratification of the Convention by the respondent State). 50.", "The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case; the conduct of the applicants and the relevant authorities; and what was at stake for the applicants in the dispute (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 51. The Court takes note of the Government’s acknowledgment that the impugned proceedings were excessive and failed to meet the “reasonable time “ requirement and sees no reason to hold otherwise as it has frequently found violations of Article 6 § 1 of the Convention in cases raising similar issues as the present one (see Docevski v. the former Yugoslav Republic of Macedonia, no. 66907/01, 1 March 2007; Ogražden Ad and Others v. the former Yugoslav Republic of Macedonia, nos.", "35630/04, 53442/07 and 42580/09, 29 May 2012; Dimitrijoski v. the former Yugoslav Republic of Macedonia, 3129/04, 10 October 2013; and Šterjov and Others v. the former Yugoslav Republic of Macedonia, 40160/04, 16 October 2014). 52. There has accordingly been a breach of Article 6 § 1 of the Convention. 2. The lack of an oral hearing (a) The parties’ submissions 53.", "The Government argued that the Administrative Court had decided the case on the basis of facts which had been sufficiently established by the administrative bodies. The case had not been complex and it had not required additional evidence to be adduced before the court. The Administrative Court had not reassessed the facts, but had decided on purely legal issues related to the interpretation of the relevant legislation. In its judgment it considered the issue of whether in the relevant period there were conditions for treating the applicant in the respondent State irrelevant and excluded it from its consideration. They further argued that holding a hearing in the case would run contrary to the principle of efficiency and economy of the proceedings, especially in view of their length.", "The issues decided by the court did not require a public hearing and, in view of the nature of the present issue, it could have been expected that the applicant would have requested that the public be excluded. The fact that the Administrative Court did not address the applicant’s request for a public hearing only concerned the reasoning of the court’s judgment. 54. The applicant replied that the lack of a public hearing in the present case had not been predicated by urgency given that the Government themselves accepted that the impugned proceedings had lasted an unreasonably long time. She further argued that owing to the failure to hold a public hearing in the case, the public was prevented from observing the administration of justice.", "(b) The Court’s assessment 55. The Court firstly notes that both the Government and the applicant in their observations referred to the issue at stake as concerning a lack of public hearing. The Court, however, will proceed to examine the case as raising an issue of lack of oral hearing, as it was initially raised by the applicant in her application and as it was communicated to the parties. 56. The Court reiterates that in proceedings before a court of first and only instance the right to a “public hearing” under Article 6 § 1 entails an entitlement to an “oral hearing” unless there are exceptional circumstances that justify dispensing with such a hearing (see, for instance, Miller v. Sweden, no.", "55853/00, § 29, 8 February 2005; Eriksson v. Sweden, no. 60437/08, § 64, 12 April 2012; and Schädler-Eberle v. Liechtenstein, no. 56422/09, § 97, 18 July 2013). 57. The exceptional character of the circumstances that may justify dispensing with an oral hearing essentially comes down to the nature of the issues to be decided by the competent national court, not to the frequency of such situations.", "It does not mean that refusing to hold an oral hearing may be justified only in rare cases. The Court has recognised that disputes concerning benefits under social-security schemes are generally rather technical, often involving numerous figures, and their outcome usually depends on written opinions given by medical doctors. Many such disputes may accordingly be better dealt with in writing than in oral argument. Moreover, it is understandable that in this sphere national authorities should have regard to the demands of efficiency and economy. Systematically holding hearings could be an obstacle to the particular diligence required in social-security cases (see Schuler-Zgraggen v. Switzerland, 24 June 1993, § 58, Series A no.", "263; Salomonsson v. Sweden, no. 38978/97, § 38, 12 November 2002; Döry v. Sweden, no. 28394/95, § 41, 12 November 2002; and Lundevall v. Sweden, no. 38629/97, § 38, 12 November 2002). 58.", "Turning to the present case, the Court notes that no oral hearing was held at any stage of the proceedings. After several remittals by the Supreme Court, the Administrative Court was the first and only tribunal which examined the applicant’s case in the proceedings. Thus, she was in principle entitled to an oral hearing before the first and only tribunal examining her case unless there were exceptional circumstances which justified dispensing with such a hearing (see Koottummel v. Austria, no. 49616/06, §§ 18 and 19, 10 December 2009). 59.", "The Court will therefore need to examine whether there had been such exceptional circumstances in the present case. In this respect it observes that the final decision in the present case was taken by the Administrative Court, which had become competent to decide administrative disputes. This court dismissed the applicant’s claim finding that the applicant had gone for treatment abroad without having obtained a decision of the Fund and a medical report concerning the necessity of treatment abroad, which the court found to be in contravention of section 30 of the Health Insurance Act. It further found that, under the applicable domestic law, the expert medical report from the clinic (namely, the report of 12 July 1994) had been a proposal for referral for treatment abroad, which in the court’s view did not confer a right on the applicant to be treated abroad. The court accordingly concluded that the applicant’s treatment abroad could not be considered treatment abroad “based on a decision of the Fund”.", "60. The Court notes, however, that in addition to this finding, the Administrative Court also examined the issue of the possibility for the applicant to be treated in the respondent State. In this respect, it found that the applicant had not obtained the right to be treated abroad because the Fund’s commission had stated that the applicant’s illness could have been treated in the respondent State (see paragraph 33 in fine). In the Court’s view, this finding concerns an issue of fact which was disputed between the parties. 61.", "In this connection, the Court further observes that throughout the impugned proceedings the Supreme Court (at the time when it was still competent to adjudicate the case) remitted the case on several occasions due to contradictory evidence as to whether the applicant’s condition could have been treated in the respondent State. It appears therefore that the Supreme Court considered that this particular issue was determinative for the applicant’s claim. 62. Finally, the Court notes that the applicant explicitly requested an oral hearing at which the court would examine witnesses (see, conversely, Döry, cited above, § 44). The Administrative Court, however, did not give any reasons why it considered that no hearing was necessary (see, mutatis mutandis, Alge v. Austria, no.", "38185/97, § 30, 22 January 2004). 63. In view of the foregoing, the Court is not persuaded that there have been any exceptional circumstances to justify dispensing with an oral hearing. Accordingly, there has been a violation of Article 6 § 1 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 OF THE CONVENTION 64. The applicant complained about the domestic authorities’ decision for partial reimbursement of the medical expenses, relying on Article 1 of Protocol No. 1 to the Convention, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. The parties’ submissions 65. The Government submitted that the applicant had failed to observe the procedural requirements for exercising her right to treatment abroad and had not had a legitimate expectation of receiving full reimbursement. There was the possibility for her to initiate urgent proceedings for referral for treatment abroad (see paragraph 40 above) which she failed to avail herself of at the relevant time. The certificate allowing for the transfer of the money for the treatment abroad (see paragraph 7 above) did not create a legitimate expectation of having the expenses for that treatment reimbursed.", "Her hope that the proceedings for referral to treatment abroad could be conducted after her return to the State was also not sufficient to create a legitimate expectation. 66. The applicant argued that the fact that the Fund had reimbursed part of the expenses for the treatment abroad had proved that the medical treatment had not been available in the State and there had been a justified need for treatment abroad. The certificate allowing for the transfer of the money did create a legitimate expectation of reimbursement. B.", "The Court’s assessment 67. The Court reiterates that “possessions”, which Article 1 of Protocol No. 1 protects, can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. It does not, however, guarantee the right to acquire property (see J.A. Pye (Oxford) Ltd and J.A.", "Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, § 61, ECHR 2007‑III). 68. No legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (see Kopeckỳ v. Slovakia [GC], no. 44912/98, § 50, ECHR 2004-IX; and Anheuser-Busch Inc. v. Portugal [GC], no.", "73049/01, § 65, ECHR 2007‑I). 69. The Court notes that the applicant lodged her claim for referral for treatment abroad after she had been treated abroad and had returned to the respondent State. The Administrative Court finally dismissed her claim for reimbursement of the total expenses for the treatment abroad, finding that the applicant had acted contrary to section 30 of the Health Insurance Act of 2000. Furthermore, she had not obtained the right to be treated abroad, given that, according to the Fund’s commission finding, the applicant’s condition was treatable in the respondent State.", "70. The Court reiterates that given its supervisory power to review domestic courts’ interpretation of the domestic law it is primarily for the national courts to resolve problems of interpretation of domestic legislation, and the Court will not question their interpretation, save in the event of evident arbitrariness (see Stoilkovska v. the former Yugoslav Republic of Macedonia, no. 29784/07, § 41, 18 July 2013). The Court considers that there is nothing in the current case to lead it to conclude that the Administrative Court interpreted and applied the legal provision in question manifestly erroneously or so as to reach an arbitrary conclusion. There is, furthermore, no evidence before the Court to suggest that the Administrative Court’s reasoning contradicted settled case-law regarding the application of the relevant domestic legislation.", "71. The Court accordingly finds that in the circumstances of the present case there is no “possession”. 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 in accordance with Article 35 § 4. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 72.", "The applicant further complained under Article 6 that she was denied the opportunity to have knowledge of and to comment on all evidence adduced. Lastly, she complained under Article 14 of the Convention that she had been discriminated against on the basis of her health. 73. The Court has examined these complaints. 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.", "74. 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 75. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 76. The applicant claimed 60,243.6 United States dollars (USD) in respect of pecuniary damage, reduced by the MKD 328,526 which she had been awarded domestically. She further claimed 5,000 euros (EUR) in respect of non-pecuniary damage suffered due to the alleged violations of her rights under Article 6 and an additional EUR 2,000 for the alleged violation of Article 1 of Protocol No.1. 77. The Government contested these claims as excessive and unsubstantiated.", "78. The Court does not discern any causal link between the violation found and the pecuniary damage claimed; it therefore rejects this claim. On the other hand, it considers that the applicant herself must have sustained non-pecuniary damage for the violation of her rights under Article 6 of the Convention. Ruling on equitable basis, it awards her EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. B.", "Costs and expenses 79. The applicant also claimed EUR 1,358 for the costs and expenses incurred before the Court, namely fees for her legal representation, calculated under the tariff list of the Macedonian Bar. In support, the applicant submitted a copy of a decision enlisting her representatives as taxpayers. 80. The Government contested that claim as excessive and unsubstantiated.", "81. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as they relate to the violation found and in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award EUR 850 for the proceedings before the Court, plus any tax that may be chargeable to the applicant. C. Default interest 82. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaints concerning the lack of an oral hearing before the Administrative Court and the length of the administrative proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 of the Convention as regards the length of the proceedings; 3. Holds that there has been a violation of Article 6 of the Convention on account of the lack of an oral hearing; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 5,000 (five thousand), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 15 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenAndrás SajóRegistrarPresident" ]

[ "FOURTH SECTION CASE OF GÓRKA v. POLAND (Application no. 55106/00) JUDGMENT (Friendly settlement) STRASBOURG 5 November 2002 This judgment is final but it may be subject to editorial revision. In the case of Górka v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrM. Pellonpää,MrA. Pastor Ridruejo,MrsV.", "Strážnická,MrR. Maruste,MrS. Pavlovschi, MrL. Garlicki, judges,and Mr M. O’Boyle, Section Registrar, Having deliberated in private on 8 October 2002, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "55106/00) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mrs Janina Górka (“the applicant”), on 1 February 1999. 2. The applicant was represented by Mr Z. Sobiech, a lawyer practising in Warsaw, Poland. The Polish Government (“the Government”) were represented by their Agent, Mr K. Drzewicki, of the Ministry of Foreign Affairs. 3.", "The applicant complained under Article 6 § 1 of the Convention about the length of civil proceedings. 4. On 29 January 2002, after obtaining the parties’ observations, the Court declared the application admissible. 5. On 8 August 2002 the Government submitted their and the applicant’s formal declarations accepting a friendly settlement of the case.", "THE FACTS 6. The applicant was born in 1915 and lives in Kraków, Poland. 7. The proceedings in question, which concerned the distribution of an inheritance, began on 10 September 1986. On that date the applicant’s sister-in-law, Z.S.-G. filed with the Warsaw District Court (Sąd Rejonowy) an application for distribution of the estate left by the applicant’s deceased brother.", "8. Between 10 September 1986 and 11 June 1991 the court held seven hearings (of which two were adjourned) and obtained four expert reports. 9. On 11 June 1991 the District Court gave a partial decision (postanowienie częściowe). On 14 April 1992 that decision was quashed on appeal by the Warsaw Regional Court (Sąd Wojewódzki).", "The case was remitted to the District Court. 10. In the course of the subsequent proceedings the District Court held a number of hearings and obtained several expert reports. 11. On 18 November 1998 the District Court gave its second partial decision, determining the assets which constituted the estate left by the applicant’s brother.", "It further proceeded to the sharing out of the property in the estate. It that connection, it needed to obtain fresh evidence from experts. 12. On 28 May 2001 the Warsaw District Court gave a decision. On 26 June 2001 E.D., one of the parties to the proceedings, appealed.", "The applicant appealed on 28 June 2001. On 6 August 2001 the District Court refused to proceed with her appeal as she had failed to comply with a number of procedural requirements. It appears that the proceedings are pending. THE LAW 13. On 13 August 2002 the Court received from the Government two declarations signed by the parties.", "The applicant’s declaration was made on 17 July 2002 and read as follows: “I note that the Government of Poland are prepared to pay me the sum of 10,000 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.” 14.", "The Government’s declaration, which was made on 7 August 2002, read: “I declare that the Government of the Republic of Poland offer to pay to Ms Janina Górka the sum of 10,000 Polish zlotys with a view to securing a friendly settlement of the application no. 55106/00 pending before the European Court of Human Rights in Strasbourg. This sum is to cover any pecuniary and non-pecuniary damage as well as costs, and it will be payable to the applicant after signing the declarations by the parties concerned, however not later than three months after the notification of the decision delivered 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. I declare at the same time that the offer of the above-mentioned amount has been made in connection with duration of the proceedings in the applicant’s case before the organs of the Polish judiciary.", "This declaration does not entail any acknowledgement by the Government of a violation of the European Convention on Human Rights in the present case. I further undertake not to request that the case be referred to the Grand Chamber under Article 43 § 1 of the European Convention. [Signed:] Krzysztof Drzewicki Agent of the Government of Poland.” 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 1. Decides unanimously 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 5 November 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O’BoyleNicolas BratzaRegistrarPresident" ]

[ "SECOND SECTION CASE OF GÜRAKIN v. TURKEY (Application no. 1313/08) JUDGMENT STRASBOURG 28 November 2017 This judgment is final but it may be subject to editorial revision. In the case of Gürakın v. Turkey, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Nebojša Vučinić, President,Paul Lemmens,Stéphanie Mourou-Vikström, judges,and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 7 November 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 1313/08) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Bülent Gürakın and Mr Bartu Gürakın (“the applicants”), on 7 January 2008.", "2. The Turkish Government (“the Government”) were represented by their Agent. 3. On 31 January 2017 the complaint concerning the applicants’ right of access to a court was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1961 and 1996 respectively and live in Muğla. 5. The first applicant was the husband and the second applicant was the son of Mrs Özlem Gürakın, who died on 3 September 2001. 6.", "On an unspecified date, the applicants brought compensation proceedings against the Dokuz Eylül University Hospital, alleging that Mrs Özlem Gürakın had been a victim of medical negligence. The applicants further requested legal aid for the court fees. In respect of their legal aid claim, they submitted documents attesting to their poor financial situation. 7. On 13 December 2006 the Izmir Administrative Court rejected the applicants’ legal aid claim, without indicating any specific reasons.", "They were notified that they had to pay 1,683 Turkish liras (TRY) (approximately 870 Euros (EUR)) in court fees within one month to continue the proceedings and that failure to do so would result in the discontinuation of the proceedings. 8. As the applicants failed to pay the court fees within the time-limit, the İzmir Administrative Court sent a further warning letter to the applicants and ordered them to pay the court fees. 9. On 6 April 2007 the applicants made a second request for legal aid and asked the court to reconsider its former decision.", "10. On 20 April 2007 the Izmir Administrative Court once again rejected the applicants’ request and granted them one month to pay the court fees. 11. On 12 July 2007 the court decided to discontinue the proceedings, because the applicants had not paid the necessary court fees. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 12. A description of the relevant domestic law and practice can be found in Mehmet and Suna Yiğit v. Turkey, no. 52658/99, §§ 19-22, 17 July 2007. 13. In December 2006, the minimum wage in force was TRY 380 (approximately EUR 185).", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 14. The applicants complained under Article 6 § 1 of the Convention that they had been denied access to a court on account of the administrative court’s refusal to grant them legal aid to pay the court fees. A. Admissibility 15. In their observations, the Government submitted that the applicants did not exhaust domestic remedies and argued that they could have appealed against the domestic court’s decision.", "The Court observes that the applicants requested legal aid as they did not have means to pay the court fees. When their request was rejected, they could not pay the court fees which led to the domestic court’s decision not to continue with proceedings. Since decisions regarding legal aid are final and cannot be appealed against pursuant to Article 469 of the Code of Civil Procedure the applicants cannot be expected to appeal against the domestic decision. The Court therefore rejects the Government’s objection (see Onar v. Turkey [Committee], no. 13160/07, § 19, 16 December 2014).", "16. 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 17. The Court reiterates that the Convention is intended to guarantee practical and effective rights. This is particularly so for the right of access to a court in view of the prominent place held in a democratic society by the right to a fair trial. It is crucial to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before the court and that he or she is able to enjoy equality of arms with the opposing side (see Steel and Morris v. the United Kingdom, no. 68416/01, § 59, ECHR 2005‑II).", "18. In the present case, the Court must therefore determine whether the requirement to pay the court fees imposed on the applicants constituted a restriction in breach of their right of access to a court. 19. The Court observes that the applicants submitted documents to the domestic courts attesting to their poor financial situation. Nevertheless, the legal aid request was rejected without any specific reasons.", "20. The court fees that the applicants were required to pay amounted to approximately EUR 870 while the monthly minimum wage was approximately EUR 185 at the time. The Court observes that it has already examined similar grievances in the past and has found a violation of Article 6 § 1 of the Convention on the grounds, inter alia, that the legal aid system in Turkey fails to offer individuals substantial guarantees to protect them from arbitrariness (see, in particular, Bakan v. Turkey, no. 50939/99, §§ 74-78, 12 June 2007; Mehmet and Suna Yiğit v. Turkey, no. 52658/99, §§ 31-39, 17 July 2007; and Eyüp Kaya v. Turkey, no.", "17582/04, §§ 22‑26, 23 September 2008). The Court finds no particular circumstances in the present case which would require it to depart from its findings in the aforementioned cases. In this respect, the Court observes that the refusal of the applicants’ legal aid request deprived them of the possibility of submitting their case before a tribunal. 21. In view of the foregoing, the Court concludes that in the instant case there has been a disproportionate restriction on the applicants’ right of access to a court.", "There has accordingly been a violation of Article 6 § 1 in that respect. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 22. Without specifying their claims, the applicants requested that their loss be compensated by the Court. 23.", "The Government stated that the applicants should not be granted any just satisfaction as they had not made a specific claim. 24. As regards pecuniary damage, the Court notes that it cannot speculate as to what the outcome of the proceedings compatible with Article 6 § 1 would have been. Accordingly, it considers that no award can be made to the applicants under this head. Moreover, the Court notes that within one year following the adoption of the present judgment, the applicants can request a retrial at the domestic level pursuant to Article 53 § 3 of the Administrative Procedure Code.", "25. As regards non-pecuniary damage, deciding on an equitable basis, the Court awards the applicants a total of EUR 3,000. 26. The Court further 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 applicants, within three months EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 28 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Hasan BakırcıNebojša VučinićDeputy RegistrarPresident" ]

[ "CASE OF ASSANIDZE v. GEORGIA (Application no. 71503/01) JUDGMENT STRASBOURG 8 April 2004 In the case of Assanidze v. Georgia, The European Court of Human Rights, sitting as a Grand Chamber composed of: MrL. Wildhaber, President,MrC.L. Rozakis,MrJ.-P. Costa,MrG. Ress,SirNicolas Bratza,MrL.", "Caflisch,MrL. Loucaides,MrI. Cabral Barreto,MrsV. Strážnická,MrK. Jungwiert,MrJ.", "Casadevall,MrB. Zupančič,MrsW. Thomassen,MrsS. Botoucharova,MrM. Ugrekhelidze,MrV.", "Zagrebelsky,MrsA. Mularoni, judges,and Mr P.J. Mahoney, Registrar, Having deliberated in private on 19 November 2003 and 10 and 24 March 2004, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 71503/01) 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 Georgian national, Mr Tengiz Assanidze (“the applicant”), on 2 July 2001.", "2. The applicant, who was granted legal aid, was represented by Ms L. Mukhashavria, a lawyer from a Tbilisi-based association, “Article 42 of the Constitution”, and Mr Z. Khatiashvili, a lawyer and member of the Union of Independent Lawyers of Georgia. The Georgian Government (“the Government”) were represented by Mr L. Chelidze, the General Representative of Georgia at the Court, and Mr L. Hincker, of the Strasbourg Bar. 3. The applicant alleged, in particular, a violation of his right to liberty and security, arguing that the fact that he had remained in the custody of theauthorities of the Ajarian Autonomous Republic, despite having received a presidential pardon in 1999 for a first offence and been acquitted of a second by the Supreme Court of Georgia in 2001 following his conviction by the Ajarian courts, constituted a violation of his rights guaranteed by Article 5 §§ 1, 3 and 4, Article 6 § 1, Article 10 § 1 and Article 13 of the Convention, and Article 2 of Protocol No.", "4. 4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). On 26 February 2002 it was communicated to the respondent Government (Rule 54 § 2 (b)). In their observations submitted to the Court on 18 April 2002, the Government confined themselves to the facts, making no legal submissions on the admissibility or merits of the application.", "On 30 May 2002 the applicant lodged his comments on the Government's observations. 5. On 12 November 2002 the application was declared partly admissible by a Chamber from the Second Section composed of Mr J.-P. Costa, President, Mr A.B. Baka, Mr Gaukur Jörundsson, Mr K. Jungwiert, Mr V. Butkevych, Mrs W. Thomassen, Mr M. Ugrekhelidze, judges, and Mrs S. Dollé, Section Registrar. 6.", "Attempts were made between December 2002 and February 2003 to reach a friendly settlement of the case (Article 38 § 1 (b) of the Convention and Rule 62). On 10 February 2003 the Government informed the Court that the central State authorities' negotiations with the local Ajarian authorities had been unsuccessful, so that they were unable to submit proposals for a friendly settlement to the Court. 7. On 18 March 2003 a differently composed Chamber (with Mr L. Loucaides replacing Mr Gaukur Jörundsson, who was unable to take any further part in the case), relinquished jurisdiction in favour of the Grand Chamber, none of the parties being opposed thereto (Article 30 of the Convention and Rule 72). 8.", "The composition of the Grand Chamber was determined in accordance with Article 27 §§ 2 and 3 of the Convention and Rule 24. 9. As the Government had not lodged any legal submissions on the merits when the case came before the Section Chamber, on 11 July 2003 the President of the Grand Chamber invited the parties to submit written comments on the merits of the complaints that had been declared admissible (Rule 59 § 1 and Rule 71 §§ 1 and 2). Both the applicant and the Government then filed observations on the merits of the application. 10.", "On 18 July 2002, 17 February and 15 September 2003 Mr Hincker, a member of the Strasbourg Bar, applied for leave for the Union of the Victims of the Crimes committed by Tamaz and Tengiz Assanidze and their Criminal Gang, for Mr V. Khakhutaishvili, Vice-President of the High Court of the Ajarian Autonomous Republic, and for the local Ajarian authorities represented by Mr Avtandil Abashidze, President of the High Court of the Ajarian Autonomous Republic, to join the proceedings as third parties (Article 36 § 2 of the Convention). 11. On 9 October 2003 the Government asked the Court to grant the Ajarian authorities leave to join the proceedings as a third party. 12. On 30 October 2003, after consulting the judges of the Grand Chamber, the President refused the applications for leave to join the proceedings as third parties.", "As regards the request made on behalf of the authorities of the Ajarian Autonomous Republic, he pointed out that, in proceedings before the Court, authorities of the respondent State, including the regional authorities (even ones enjoying autonomous status), were, in principle, required to be represented by the central government and, consequently, could not be joined as third parties to the proceedings. 13. However, in the light of their request of 9 October 2003, the President reminded the Government that they were entitled to include representatives of the regional authorities in the delegation that would attend the hearing on 19 November 2003 with authority to appear before the Court. 14. On 8 November 2003 the Government informed the Court that their delegation would include the representatives of the Ajarian authorities.", "15. On 17 November 2003 Mr Hincker, Mr Avtandil Abashidze and Mr V. Khakhutaishvili, with the support of Mr L. Chelidze, the General Representative of Georgia at the Court, applied to the Court for an adjournment of the hearing, as the local Ajarian authorities had not had sufficient time to prepare for it since the central government's decision to include them as members of their delegation. On 18 November 2003 the President dismissed that application. 16. A hearing on the merits therefore took place in the Human Rights Building, Strasbourg, on 19 November 2003 (Rule 59 § 3).", "There appeared before the Court: (a) for the Government MrL. Chelidze, General Representative of Georgia at the Court,MrA. Abashidze, President of the High Court of the Ajarian Autonomous Republic,MrV. Khakhutaishvili, Vice-President of the High Court of the Ajarian Autonomous Republic,MrL. Hincker, Counsel,MrG.", "Nuss, Adviser; (b) for the applicant MsL. Mukhashavria, MrZ. Khatiashvili,Counsel,MsV. Vandova,MsM. Gioshvili,Advisers,MrD.", "Assanidze, the applicant's son. The Court heard addresses by Mrs Mukhashavria, Mr Chelidze and Mr Hincker and their replies to questions asked by some of the judges. 17. In the light of the events in Georgia in November 2003 that had led in particular to the resignation of the Georgian President, Mr Edward Shevardnadze, the President of the Grand Chamber asked the parties on 28 November 2003 to advise him of any effect which those changes might have on the observations that had already been submitted to the Court. 18.", "On 15 December 2003 the parties submitted their observations after being granted an extension of time. 19. On 15 January 2004 the Government submitted their comments on the applicant's claim for just satisfaction, in accordance with Rule 60 § 3. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 20.", "The applicant was born in Georgia in 1944. He is currently in custody in Batumi, the capital of the Ajarian Autonomous Republic in Georgia. A. The applicant's first conviction and the presidential pardon 21. The applicant was formerly the mayor of Batumi, the capital of the Ajarian Autonomous Republic, and a member of the Ajarian Supreme Council.", "He was arrested on 4 October 1993 on suspicion of illegal financial dealings in the Batumi Tobacco Manufacturing Company, a private company, and the unlawful possession and handling of firearms. He was convicted on 28 November 1994 and given an immediate custodial sentence of eight years; orders were made for the confiscation of his assets and requiring him to make good the pecuniary losses sustained by the company. On 27 April 1995 the Supreme Court of Georgia, in a judgment on an appeal on points of law, upheld the applicant's conviction of 28 November 1994 for illegal financial dealings but quashed his other convictions. Instead of being transferred to prison to serve his sentence, the applicant remained in custody in the short-term remand prison of the Ministry of Security of the Ajarian Autonomous Republic. 22.", "By Decree no. 1200 of 1 October 1999, the Georgian President granted the applicant a pardon suspending the remaining two years of his sentence. The relevant provisions of the decree read as follows: “... that [the following] shall be granted a pardon: 1. Tengiz David Assanidze, born in 1944, who was tried for offences under Articles 238 § 2, 96.1 and 45 of the Criminal Code and sentenced on 28 November 1994 to eight years' imprisonment by the High Court of the Ajarian Autonomous Republic; the remaining two years of his prison sentence shall be suspended and replaced by release on licence for the same period ... 2. N.V.G., born in 1983 ... 3.", "M.A.M., born in 1953 ...” 23. Despite the presidential pardon, the applicant remained in custody in the short-term remand prison of the Ajarian Ministry of Security. 24. The Batumi Tobacco Manufacturing Company immediately challenged Presidential Decree no. 1200 of 1 October 1999 in the High Court of the Ajarian Autonomous Republic (“the Ajarian High Court”) on the ground that it had been granted unlawfully.", "Execution of the pardon was therefore stayed in accordance with Article 29 of the Code of Administrative Procedure. 25. On 11 November 1999 the Ajarian High Court declared the pardon null and void on the ground that the statutory procedure that should have been followed before the President of Georgia could exercise his right of pardon had not been complied with. 26. That judgment was quashed on 28 December 1999 by the Supreme Court of Georgia, which, in accordance with Article 360 of the Civil Code which was then in force, remitted the case to the Administrative and Tax Affairs Panel of the Tbilisi Court of Appeal.", "In its submissions to that court, the Batumi Tobacco Manufacturing Company again contended that the pardon contravened the Presidential Decree of 13 May 1998 establishing the rules governing the exercise by the President of Georgia of his right of pardon, added to which the applicant had yet to make good the pecuniary damage the company had suffered. 27. In the meantime, the applicant was charged with further criminal offences on 11 December 1999 (see paragraphs 33 et seq. below). 28.", "In a decision of 24 March 2000, the Tbilisi Court of Appeal dismissed the Batumi Tobacco Manufacturing Company's complaints as unfounded. It ruled that the procedural defects pleaded (the failure to obtain the opinion of the Pardons Board and the applicant's lack of remorse) did not render the President's order unlawful, as the right of pardon was an absolute constitutional right vested in the President of Georgia. It said that, since the pardon granted to the applicant did not extend to the ancillary award of compensation for pecuniary damage, the company could bring further legal proceedings to enforce that award; as to the remaining points, the company had no grounds for contesting the appropriateness of the pardon or the legality of the President's order. The Court of Appeal also noted that the company was not entitled in law to call for the reopening of the criminal proceedings against the applicant. It stated that it considered the applicant's detention to be in violation of Article 5 § 1 of the European Convention on Human Rights.", "29. On 11 July 2000 the Supreme Court of Georgia dismissed an appeal on points of law by the Batumi Tobacco Manufacturing Company as unfounded. It noted that the impugned decision to pardon the applicant had left intact both the applicant's main sentence and the obligation to make good the pecuniary damage caused to the company. This was because the remaining two years of the sentence had been unconditionally suspended, the sentence being commuted to one of release on licence for the same period. The Supreme Court of Georgia said that the sole effect of the presidential pardon had accordingly been to secure the applicant's immediate release, while leaving intact the main and ancillary sentences.", "As to the President of Georgia's failure to follow the Rules on the Exercise of the Right of Pardon, the Supreme Court found that the decree of 13 May 1998 contained the working rules and regulations of the Office of the President of the Republic and that failure to observe them could under no circumstances prevent the Georgian President exercising his constitutional right of pardon. 30. Even after 11 July 2000 the local authorities in the Ajarian Autonomous Republic continued to hold the applicant in the short-term remand prison of the Ajarian Ministry of Security in Batumi. 31. The question of the legality of the applicant's pardon was referred by the Bureau of the Parliament on 24 June 2002 to the investigation committee of the Georgian Parliament responsible for supervising the lawfulness of civil servants' activities, which delivered its report on 26 September 2002 (see paragraphs 72 et seq.", "below). 32. On 4 October 2002 the President of Georgia issued a decree amending the presidential decree of 13 May 1998 establishing the Rules on the Exercise of the Right of Pardon. A new Article 10.1 of the decree vested the President of Georgia with the power to pardon convicted persons, as defined by Article 73 § 1, sub-paragraph 14, of the Constitution, without complying with the additional requirements set out in the decree beforehand. B.", "The applicant's second conviction and subsequent acquittal 33. On 12 November 1999 Mr David Assanidze, a close relative of the applicant who had been sentenced to twenty years' imprisonment by the Supreme Court of Georgia on 20 September 1996, gave an interview on a television channel broadcasting in the Ajarian Autonomous Republic in which he affirmed that the applicant had been one of his accomplices. 34. Following that interview the applicant, who had remained in custody after being pardoned by the President on 1 October 1999, was charged on 11 December 1999 with being a member of a criminal association in 1993 and with the attempted kidnapping of V.G., the head of the regional department of the Ministry of the Interior for Khelvachauri (Ajarian Autonomous Republic). 35.", "On 28 December 1999 the Batumi Court of First Instance remanded the applicant in custody pending the investigation of the new charges. According to the applicant, the pre-trial investigation into the case ended on 29 December 1999 and a five-volume case file was compiled. 36. In a decision of 2 March 2000, the Georgian General Prosecutor's Office decided to take no further action, finding that the applicant's prosecution was not based on an arguable case and that all the circumstances and evidence relating to V.G. 's murder had been examined by the Supreme Court of Georgia in its unfettered discretion at Mr David Assanidze's criminal trial in 1996.", "The General Prosecutor's Office took the view that, since the exhaustive examination of the file relating to V.G. 's kidnapping and murder had not thrown up any evidence whatsoever that the applicant had been a member of the criminal association led by Mr David Assanidze, there were no grounds for charging him in connection with the same case six years after the event. 37. On 20 March 2000 that decision was set aside by the Batumi Court of First Instance on an appeal by the civil party. Consequently, on 28 April 2000 the Prosecutor's Office of the Ajarian Autonomous Republic ordered the criminal proceedings against the applicant to be reopened.", "It brought the pre-trial investigation to an end by an order dated 29 April 2000. 38. The applicant was committed to stand trial in the Ajarian High Court, where he denied all guilt. He maintained that this second prosecution was the result of a conspiracy to frame him. He denied ever having had any links with Mr David Assanidze or his associates, who prior to their arrest had been living as outlaws in the Ajarian forests.", "The applicant also said that he had at no stage hired them to kidnap V.G., who had been killed by Mr David Assanidze's gang, and, contrary to what had been affirmed by the three prosecution witnesses, kidnapping a State official would not have helped the applicant to consolidate his power as mayor of Batumi. He asked the judges to find him innocent. 39. The Ajarian High Court found that, even though the applicant had denied helping to organise the kidnapping that had resulted in the victim's murder, his guilt was established by the depositions of three prosecution witnesses: Mr David Assanidze, the leader of the criminal gang, and two gang members, Mr Mamuka Mosiava and Mr Tamaz Jincharadze. On 20 September 1996 all three had been convicted with Mr Tamaz Assanidze, the applicant's brother, of, inter alia, V.G.", "'s murder. 40. At the applicant's trial, a confrontation was arranged between Mr David Assanidze and the applicant, at which the former affirmed that the applicant had supplied him with funds and two machine guns to carry out the kidnapping. 41. Mr Mamuka Mosiava said that he did not know the applicant and had never met him.", "He explained that he had merely caught a glimpse of the applicant when accompanying Mr David Assanidze to a meeting with him and had heard him instruct Mr David Assanidze to kidnap V.G. 42. It appears from the judgment that Mr Tamaz Jincharadze, the third witness, was unable to appear in court owing to illness and was heard by the judges in the office of the governor of the short-term remand prison of the Ajarian Ministry of Security. He stated that he did not know the applicant and had only seen him on television. It was through Mr David Assanidze that he had learnt that the applicant's brother, Mr Tamaz Assanidze, had instructed their group to kill V.G.", "Mr David Assanidze did not want to be involved in murder and had been to see the applicant, whom he was convinced was behind the plot. It was at that meeting that the applicant had told Mr David Assanidze that there was no need to eliminate V.G., only to kidnap him. On 2 October 1993 the three members of the group had waylaid the victim in a street in Batumi and, on attempting to abduct him in accordance with the applicant's instructions, had killed him by accident. 43. The Ajarian High Court said that it was not just the three witnesses' depositions which confirmed the applicant's guilt, but also the fact that they had been convicted by the Supreme Court of Georgia on 20 September 1996.", "Without elaborating further on that point, the Ajarian High Court said in conclusion that, even if there was a close relation between the applicant's case and that of Mr David Assanidze and his co-defendants, it constituted an independent criminal act involving participation in the activities of the criminal gang led by Mr David Assanidze and the organisation of V.G. 's kidnapping. In its view, the applicant was directly accountable under the criminal law for his part in those events. 44. Consequently, on 2 October 2000 the applicant was convicted and sentenced to twelve years' imprisonment to be served in a strict-regime prison.", "45. The Ajarian High Court noted that since his arrest on 4 October 1993 the applicant had remained in custody at all times and had not been released after being granted a presidential pardon on 1 October 1999. Accordingly, he was deemed to have begun his sentence on 4 October 1993. 46. The applicant appealed on points of law to the Supreme Court of Georgia.", "The central authorities made various attempts to secure his transfer from Batumi to Tbilisi for the day of the hearing. The Georgian Minister of Justice requested the Ajarian authorities through the intermediary of the Georgian Minister of State Security and the Public Defender (Ombudsperson) to arrange for the applicant's transfer to the capital, but in vain. 47. On 29 January 2001 the Criminal Affairs Chamber of the Supreme Court of Georgia heard the appeal in the applicant's absence; it quashed the judgment of 2 October 2000 and acquitted the applicant. 48.", "It said, inter alia: “The preliminary investigation and judicial investigation in the present case were conducted in flagrant breach of the statutory rules. The criminal file does not contain incontrovertible evidence capable of supporting a guilty verdict; the judgment is, moreover, self-contradictory and based on inconsistent conjecture and depositions from persons interested in the outcome of the proceedings that were obtained in breach of the procedural rules. The convicted person, Tengiz Assanidze, did not admit the offences of which he was accused either during the preliminary investigation or at trial. He said that he had been charged as a result of a conspiracy against him by persons with an interest in his obtaining an unfavourable outcome to the proceedings. The Supreme Court notes that there is no evidence in the file to refute his arguments.", "It has been established that Mr David Assanidze and Mr Tamaz Assanidze [the applicant's brother] were convicted on 20 September 1996 and that Mr David Assanidze, who repeatedly said that his accomplice was Mr Tamaz Assanidze, had at no stage implicated Mr Tengiz Assanidze at the material time. It was only on 12 November 1999 – six years and one month after the events – that, in an interview given to Ajarian television, Mr David Assanidze accused Mr Tengiz Assanidze of having been his accomplice. In that interview, Mr David Assanidze also expressed indignation and outrage at Mr Tengiz Assanidze's receipt of a presidential pardon and sought to denounce the authorities' attempts to portray him as an 'innocent lamb'.” 49. The Supreme Court found that the investigating bodies and the court that tried the case at first instance had not sought to establish why Mr David Assanidze had waited for so long before implicating the applicant and had not done so at his own trial. Instead, they had merely affirmed: “Relations between Mr David Assanidze and Mr Tengiz Assanidze were healthy and it is inconceivable that Mr David Assanidze's belated allegations were made out of self-interest.” In the Supreme Court's view, however, the evidence in the case file suggested the contrary and “preclude[d] finding that Mr David Assanidze [had] no interest in making his allegations against the applicant or that they [were] founded and true”.", "It noted that the applicant had said that relations between him and Mr David Assanidze had become strained as a result of a dispute over the sharing of a family tomb where their fathers were buried. Mr David Assanidze had not denied the existence of that dispute at a hearing on 20 September 1999. The Supreme Court accordingly found that Mr David Assanidze's assertion that there was no ill-feeling between them in private did not reflect the truth. 50. It held that the applicant could not be found guilty on the sole basis of affirmations made by Mr David Assanidze six years after the events in issue.", "51. The Supreme Court went on to note that, in addition to Mr David Assanidze, Mr Mosiava and Mr Jincharadze had also belatedly accused the applicant of participating in the activities of the criminal gang led by Mr David Assanidze. They too had only implicated the applicant several years after their trials. However, both men had said that they did not know the applicant and had only learnt of his involvement in the kidnapping through Mr David Assanidze himself. The Supreme Court ruled that in such circumstances Mr Mosiava's and Mr Jincharadze's statements could not constitute true and incontrovertible evidence.", "52. It was also noted that their assertions that the applicant had provided the gang with money and two machine guns to kidnap V.G. were not corroborated. 53. After examining other evidence relied on by the court of first instance in the applicant's case and comparing it with Mr David Assanidze's depositions at his trial in 1996, the Supreme Court found: “Both [the applicant's] indictment and conviction rely solely on the depositions of persons who have a direct interest in the outcome of the proceedings against him and there is no other evidence of his guilt in the case file.", "The Court must therefore find that Mr Tengiz Assanidze has not committed an offence under the criminal law.” 54. In addition, the Supreme Court found serious procedural defects in the criminal proceedings against the applicant. Among other matters, it noted that on 6 March 2000 the investigating officer in charge of the case had rejected a request by the applicant for a confrontation with Mr David Assanidze regarding the kidnapping charge on the ground that it was unconnected with Mr David Assanidze's case and intended only to delay the proceedings unnecessarily. In the Supreme Court's view, the investigating bodies had failed to carry out a thorough investigation into the allegation that the applicant was implicated in the case. 55.", "The Supreme Court noted: “According to the impugned judgment, despite its connection with the case of Mr David Assanidze and his co-defendants, the present case concerned an independent criminal act. However, it is stated elsewhere in the same judgment that, in addition to other evidence against him, Mr Tengiz Assanidze's guilt was confirmed by the convictions of Mr David Assanidze and his co-defendants, which have become final.” The Supreme Court added that, in making that affirmation, the trial court “[had] not provide[d] any explanation as to how Mr David Assanidze's and his co-defendants' convictions confirmed Mr Tengiz Assanidze's guilt, since they [had been] convicted of the murder of an official, whereas Mr Tengiz Assanidze was accused of having organised his kidnapping”. Thus, in the Supreme Court's view, the trial court had not in fact decided whether the applicant's case should be treated as part of Mr David Assanidze's case or as an independent criminal act. The Supreme Court therefore found the applicant's conviction unlawful on other grounds, pertaining to the classification in law of the acts concerned. 56.", "Consequently, it held: “Mr Tengiz Assanidze's conviction on 2 October 2000 by the High Court of the Ajarian Autonomous Republic is quashed and the criminal proceedings against him discontinued, as his acts do not disclose any evidence of an offence. Mr Tengiz Assanidze shall be immediately released. This judgment is final and no appeal shall lie against it. Mr Assanidze shall be informed that he has the right to bring proceedings for compensation for the damage caused by the illegal and unjustified acts of the bodies involved in his criminal case.” 57. On 29 January 2001 the President of the Chamber of the Supreme Court forwarded the short version of the judgment acquitting the applicant to the Minister of Justice, the director of the department responsible for the execution of sentences at the Ministry of Justice and the governor of the short-term remand prison of the Ajarian Ministry of Security for execution.", "He informed them that they would receive the reasoned version of the judgment subsequently. 58. On 5 February 2001 the President of the Chamber sent them the reasoned version of the judgment acquitting the applicant for execution. 59. That judgment was never executed and the applicant remains in custody in the short-term remand prison of the Ajarian Ministry of Security.", "60. The applicant's unlawful detention was denounced on a number of occasions by the General Prosecutor's Office of Georgia, the Public Defender, the Georgian Ministry of Justice and the Legal Affairs Committee of the Georgian Parliament. They contacted the local authorities concerned in the Ajarian Autonomous Republic, seeking his immediate release. 61. In letters of 20 April and 22 May 2001, the General Public Prosecutor's Office of Georgia informed the applicant's wife as follows: “... [I]n response to your letter, I wish to inform you that the General Public Prosecutor's Office of Georgia is making every effort to secure compliance with the judgment of the Supreme Court of Georgia dated 29 January 2001 and to bring Mr Tengiz Assanidze's unlawful detention to an end.” 62.", "In a letter of 20 April 2001, the Vice-President of the Supreme Court of Georgia informed the applicant's wife that the operative provisions of the judgment of 29 January 2001 acquitting her husband had been sent by facsimile transmission that day for execution to the Georgian Minister of Justice, the director of the department responsible for the execution of sentences at the Ministry of Justice, the governor of the short-term remand prison of the Ajarian Ministry of Security and the governor of the long-term remand prison of the Ajarian Ministry of Security. He added that the reasoned judgment had been sent to them under cover of a letter of 5 February 2001. The Vice-President also said in his letter that on 9 February 2001 the Supreme Court of Georgia had received an acknowledgment of receipt slip signed by the governor of the short-term remand prison of the Ajarian Ministry of Security. 63. On 18 May 2001 the Public Defender wrote directly to Mr Aslan Abashidze, the Head of the Ajarian Autonomous Republic: “...", "Your authorities have not yet responded to my recommendation of 31 January 2001, even though Mr Tengiz Assanidze remains in the Ajarian Ministry of Security prison in flagrant breach of the law. ... Under the Public Defender Act, it is both an administrative and a criminal offence not to comply with the Public Defender's recommendations if the Public Defender is thereby obstructed in the course of his or her duties. ... I would therefore ask you to comply with my lawful demands as Public Defender and to hold both the governor of the short-term remand prison of the Ajarian Ministry of Security and the Minister himself accountable.” 64.", "On 10 May 2001 the President of the Legal Affairs Committee of the Georgian Parliament wrote to the General Public Prosecutor's Office of Georgia in the following terms: “... In a decision of 29 January 2001, the Supreme Court of Georgia acquitted Mr Tengiz Assanidze. However, he continues to serve his sentence in a cell at the short-term remand prison of the Ministry of Security of the Ajarian Autonomous Republic. ... This constitutes a serious violation of ...", "Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms. ... I would therefore ask you to take the necessary measures to prosecute those responsible for failing to comply with the aforementioned judicial decision.” 65. In a letter of 7 June 2001, the director of the department responsible for the execution of sentences at the Georgian Ministry of Justice advised the applicant's wife that her husband was fully entitled to lodge an application against the Georgian State with the European Court of Human Rights. He stated in his letter: “We consider that the authorities of the Ajarian Autonomous Republic are acting in flagrant breach of the law and of human rights.” 66.", "The central authority's efforts to secure the applicant's release were unsuccessful. 67. According to the Government, on 3 September 2001 the Georgian courts martial prosecuting authority ordered certain officials from the Ajarian Ministry of Security suspected of failing to execute the judgment of 29 January 2001 acquitting the applicant to be charged with offences, in accordance with the Criminal Code. The police are trying to trace those concerned. 68.", "In a letter of 8 January 2002, the applicant's son informed the Court that his father's health had deteriorated. According to a medical certificate dated 4 December 2001, the applicant was suffering from gastritis, cardiac insufficiency and gastro-oesophageal reflux. As this was causing him severe dietary problems, he required appropriate medical attention as a matter of urgency. 69. On 28 May 2003 the Government produced to the Court a letter of 4 March 2003 from Mr E. Shevardnadze to Mr Aslan Abashidze, Head of the Ajarian Autonomous Republic, in which he stated: “You are a man with the State's interests at heart and I believe that I can count on your understanding in this situation.", "... As you are aware, the Court [in Strasbourg] is very shortly due to decide whether to hold a hearing on the merits in the Assanidze case. The family is seeking three million euros in compensation. It is almost self-evident that Georgia will lose this case and that our State will be heavily condemned. There is a solution to this problem. Were Mr Assanidze to be released, his family would agree to withdraw the application.", "I am sure that you will play a part in taking the only decision that is just, that which is in Georgia's interests.” 70. On 3 April 2003 the President of the Ajarian High Court sent a reply to the Georgian President. He began by accusing the Head of State of harbouring persons of Ajarian extraction who had fled Batumi to take refuge in Tbilisi after attempting to organise terrorist attacks on the Head of the Ajarian Autonomous Republic. He then drew the President's attention to the parliamentary committee's report (see paragraphs 72 et seq. below), which highlighted numerous irregularities in the proceedings that had led to the applicant's pardon and acquittal.", "Relying on the parliamentary committee's findings and Article 2 of Protocol No. 7 to the European Convention on Human Rights, the President of the Ajarian High Court suggested to the President of Georgia that the applicant's trial should be reopened so that his case could be reconsidered in the light of the matters set out in the report. 71. He also said in his letter that the applicant's application to the European Court of Human Rights constituted an abuse of his right of application within the meaning of Article 35 § 3 of the Convention and that he had been aided in that task by the General Public Prosecutor's Office of Georgia, the Public Defender, the Supreme Court of Georgia and the National Security Council. He added that, as the parliamentary committee was a national authority within the meaning of Article 13 of the Convention, the applicant could not be regarded as having exhausted domestic remedies before 26 September 2002, the date of the committee's report.", "Drawing the Georgian President's attention to this point, he said that the Georgian Ministry of Justice had misled the European Court of Human Rights in its observations. C. The parliamentary committee's report of 26 September 2002 and the President of the Supreme Court of Georgia's observations in reply 1. The parliamentary committee's report 72. In a letter of 30 July 2002, the Government informed the Court that on 24 June 2002 the investigation committee of the Georgian Parliament responsible for supervising the lawfulness of civil servants' activities had been requested by the Bureau of the Parliament to launch an inquiry into the circumstances in which a presidential pardon had been granted in the Assanidze case. The committee, which was composed of members of parliament assisted by university lecturers and practising lawyers, produced its report on 26 September 2002.", "73. Although its terms of reference were confined to issues relating to the presidential pardon, the committee also decided to examine the circumstances in which the applicant had been prosecuted and acquitted in the second set of proceedings. In the introduction to its report, the committee explained its reasons for so extending its terms of reference. In particular, it stated: “[T]he presidential pardon did not constitute an isolated act or separate procedure; in the present case, there was a close relation between all the proceedings and, in order to provide an overall view of the issues, it was considered appropriate to examine the chronology of the various sets of criminal proceedings brought against the applicant, the conduct of those proceedings and the merits of the decisions that were taken.” There were thus two separate parts to the report: one on the legality of the presidential pardon and the other on the decisions of the domestic courts in the criminal proceedings against the applicant. (a) The presidential pardon (i) Legality of the presidential pardon 74.", "On 12 October 1998 the National Security Council examined the question of measures that needed implementing in the prison system. On a proposal by the Georgian President, it was decided that he would exercise his right of pardon. The prison authorities were asked to study the cases of convicted prisoners in their custody and to submit to the President any requests for a pardon, together with the files and assessments of the prisoners concerned. Requests for a pardon had to be made in these terms: “Dear President, I repent of the crime I have committed and ask you to remit the remainder of my sentence.” Requests made in the prescribed terms were examined and the President exercised his right of pardon in a number of cases. 75.", "The parliamentary committee established that on 15 January 1999 the applicant had sent a letter to the Georgian President asking for the remainder of his sentence to be remitted. Since he had not made his request in the terms referred to above, the committee considered that his pardon did not satisfy the regulatory requirements in force and was therefore invalid. It also noted a number of other failings: “the [applicant's] file” had not been submitted to the Pardons Board appointed by the Georgian President, the applicant's name was not on the combined list of convicted persons seeking a pardon that was submitted to the President by the Ajarian authorities concerned and no appraisal of the applicant had been furnished by the Ajarian prison authorities in support of his request. 76. The committee established that, in breach of the rules in force, the Vice-President of the National Security Council, one of the Georgian President's aides, had prepared and submitted to the President a recommendation for the applicant to be pardoned solely on the strength of the applicant's letter of 15 January 1999.", "The committee said that that request should have been referred to a court under the rules of criminal procedure and not to the President of Georgia as a request for a pardon. 77. According to the committee, even assuming that the Georgian President had been entitled to grant the applicant a pardon without first complying with the statutory rule requiring requests for pardons to be examined by the competent board in the first instance, the decision had been taken shortly before the general election of October 1999 and was manifestly influenced by political considerations. (ii) Judicial review of the presidential pardon 78. The committee considered that the reasons given by the Tbilisi Court of Appeal and the Supreme Court of Georgia in their judgments of 24 March and 11 July 2000 respectively did not comply with Articles 60 and 61 of the Administrative Code, which provide an exhaustive list of the grounds on which administrative acts may be declared null and void.", "Indeed, their effect was to render Article 42 of the Constitution, which guaranteed everyone the right to apply to a court to protect his or her rights, meaningless. 79. It noted that under domestic law a presidential pardon was an administrative act for which judicial review lay in the administrative courts. As the applicant's presidential pardon had been challenged in the courts, it had not become enforceable until 11 July 2000, the date of the Supreme Court's decision. 80.", "The committee criticised the reason advanced by the Tbilisi Court of Appeal on 24 March 2000 for dismissing the Batumi Tobacco Manufacturing Company's application for judicial review. In particular, it considered that the Tbilisi Court of Appeal had ruled on matters beyond the scope of the application, as the company had not sought an order reopening the criminal proceedings against the applicant. The Court of Appeal should not, therefore, have ruled on the lawfulness of the applicant's continued detention. Since those two issues were within the jurisdiction of the criminal courts, not the administrative courts, the committee considered that the Tbilisi Court of Appeal should have restricted its review to the legality of the contested presidential act. 81.", "The committee further noted that the presidential pardon concerned only the prison sentence and not the applicant's duty to pay the Batumi Tobacco Manufacturing Company compensation for the pecuniary damage caused. The Tbilisi Court of Appeal should, therefore, also have examined the effects of the presidential pardon on that ancillary punishment. (b) The applicant's acquittal 82. According to the committee, the second set of proceedings in which the applicant was acquitted was, like the first, tainted by various procedural defects at both the investigation and trial stages. In addition, the trial courts had failed to resolve contradictions in the various statements taken in the course of the investigation or to perform a thorough examination of the special circumstances of the case.", "In the committee's view, those circumstances should have been “treated as evidence by the courts and examined with a view to establishing the truth”. 83. In order to illustrate this point, the committee conducted a detailed examination of various items of evidence and statements obtained in the criminal proceedings against Mr David Assanidze, Mr Tamaz Assanidze, Mr Nodar Shotadze and fourteen co-defendants, who had been convicted, inter alia, of the murder of the Ministry of the Interior official concerned (see paragraphs 33 et seq. above). 84.", "The committee thus established that at the trial in the Supreme Court of Georgia in 1996 Mr David Assanidze and Mr Shotadze had “sought to identify” the applicant as one of the organisers of the attack on Mr Aslan Abashidze, the Head of the Ajarian Autonomous Republic. In its view, instead of “ignoring Mr David Assanidze's and Mr Nodar Shotadze's attempts to implicate the applicant in serious offences”, the judges of the Supreme Court of Georgia who heard the applicant's appeal on points of law should have brought “new criminal proceedings against [the applicant] in accordance with Article 257 of the Code of Criminal Procedure in force at the material time”, that is to say, in 1993. 85. The committee considered that, in order to clarify certain details vital to the truth, the Supreme Court of Georgia should have heard evidence not only from the witnesses who were called, but also from Mr David Assanidze, who should have been questioned about his informal meeting with the judge who heard his case in 1996, and the judge himself. It should have sought to establish by whom and in what circumstances that meeting – at which Mr David Assanidze had accused the applicant off the record of taking part in his group's activities – had been recorded, and why the judge concerned had not mentioned it in his judgment of 20 September 1996.", "86. The committee criticised the Supreme Court for not hearing evidence from two other people who had also been implicated by Mr David Assanidze, and the applicant's son. It considered that the Supreme Court judges who heard the applicant's case should have ordered expert evidence to be obtained to establish when, by whom and how the weapons, the military munitions and technical equipment seized in Mr David Assanidze's case in 1996 had been purchased. Nor had they sought to ascertain why the prosecutor in the applicant's case had declined to make an order joining his case with Mr David Assanidze's. 87.", "The committee found, lastly, that the Supreme Court of Georgia had “failed to remit the applicant's case to the investigating bodies for further investigation” and should not have taken “a decision to acquit that was illegal, unfair and based on insufficiently investigated facts”. 88. In the committee's view, “the new circumstances revealed in its examination of the case for the purposes of the parliamentary report warranted investigation and analysis”. That proved that “the statutory remedies designed to elicit the truth [had] not yet been exhausted”. Referring to Articles 593 § 2 (g) and 539 of the Code of Criminal Procedure, it suggested that the applicant's trial should be reopened.", "89. On 25 March 2003 the General Prosecutor's Office of Georgia refused a request by the civil party for the applicant's case to be reopened and re-examined in the light of the parliamentary committee's findings. It found, inter alia, that the findings did not constitute new circumstances that could warrant a reopening of the applicant's case. In the absence of new circumstances, a judgment of the Supreme Court, which was final and could not be appealed against, could not be challenged under Georgian law. 2.", "The observations of the President of the Supreme Court of Georgia 90. On 8 November 2002 the President of the Supreme Court of Georgia submitted to the Georgian President his observations on the findings in the parliamentary committee's report of 26 September 2002. 91. He described the report as “tendentious”, “biased”, “unconstitutional” and “erroneous”. He noted, firstly, that the parliamentary committee had acted far outside the scope of its terms of reference and, instead of examining the circumstances in which the applicant had received a presidential pardon, had decided to review a judgment of the highest court of the land.", "In so doing, the committee had, in his view, contravened the fundamental constitutional rule requiring the separation of powers. The report undermined the notions of democracy and the rule of law. The President of the Supreme Court said that under the Constitution no one had the right to demand an explanation from a judge about a case. Criticism by a parliamentary committee of a final judicial decision against which no appeal lay served only to hinder execution of the decision and to discredit the judiciary. (a) The presidential pardon 92.", "As regards the committee's findings on the subject of the presidential pardon, the President of the Supreme Court of Georgia noted, firstly, that the right conferred by the Constitution on the Georgian President to grant a pardon was absolute and unconditional and could be exercised independently of the regulations laying down the principles on which requests for a pardon were to be examined by the Presidential Office. He further noted that in many countries there was no right of appeal against a pardon, which constituted the ultimate act of humanity. The fact that the applicant's request for a pardon had not been examined beforehand by the Presidential Pardons Board could not render the pardon illegal, especially as, in the applicant's case, obtaining his file and details from the Ajarian prison authorities had been no easy task. The President of the Supreme Court of Georgia also pointed out that, in the instant case, the grant of a pardon also represented an attempt at restoring justice to a convicted prisoner who had been held for years in an unlawful place of detention. 93.", "He added that the section of the report on the Ajarian High Court's judgment of 11 November 1999 declaring the presidential pardon null and void for procedural defects was entirely erroneous. He pointed out that on 11 November 1999 the New Code of Administrative Procedure had yet to come into force and that, in accordance with Article 360 of the Code of Civil Procedure – the statutory provision applicable to contested administrative cases at the time – the Tbilisi Court of Appeal had exclusive territorial jurisdiction to hear applications for judicial review of presidential acts. The President of the Supreme Court of Georgia said that it was regrettable that the committee had omitted to mention that the Ajarian High Court had on 11 November 1999, in breach of the law then in force, assumed jurisdiction to hear an application for judicial review of a pardon granted by the President of Georgia. (b) The applicant's acquittal 94. In his observations, the President of the Supreme Court of Georgia noted that, in describing the judgment acquitting the applicant as biased, incomplete and illegal, the parliamentary committee had at no point mentioned the question of the applicant's interests or his unlawful detention.", "The President of the Supreme Court considered that the committee was thereby seeking to justify the applicant's continued detention despite his acquittal. 95. The committee had chosen to review the judgment acquitting the applicant on its own initiative, but had not put forward a single plausible argument that pointed to the applicant's guilt. Nor had it shown that the Supreme Court could have returned a guilty verdict on the evidence before it. On the contrary, the committee saw no difficulty in an acquitted defendant being held in custody until such time as the issue of his guilt or innocence had been re-examined in the light of new circumstances.", "That, said the President of the Supreme Court in conclusion, was “totally unlawful”. 96. The President of the Supreme Court considered it unfortunate that the committee had failed to mention that the applicant had been held since his conviction in the Ajarian Ministry of Security prison, in breach of the law. He noted that Mr David Assanidze, whose televised remarks ought, in the committee's eyes, to have prompted the Supreme Court of Georgia to convict the applicant, was serving his twenty-year prison sentence in the same prison. 97.", "The passage in the report in which the committee found that the applicant would not have exhausted the statutory remedies until such time as his trial was reopened in the light of the new circumstances revealed by the parliamentary committee was described by the President of the Supreme Court as a “masterpiece of legal invention”. He recommended that the report be translated into various foreign languages so that international human rights organisations would also have access to it. 98. The President of the Supreme Court regretted that the parliamentary committee had yielded to political pressure from certain groups, instead of helping justice to prevail, in accordance with the wish expressed at the end of its report. 99.", "In conclusion, the President of the Supreme Court of Georgia said that he would leave the issue of the applicant's continued detention following his acquittal to the discretion of the Court in Strasbourg. II. RELEVANT INTERNATIONAL AGREEMENTS AND DOMESTIC LAW A. Evolution of the status of Ajaria (“Batumi district”) and the Georgian Constitution of 1921 100. In the 1080s Ajaria, part of the Bagratid Kingdom known as the “Kingdom of the Georgians”, was laid to waste by Seljuk invaders from the South. In the 1570s it was invaded by the Ottoman Empire.", "The sanjaks (districts) of Upper Ajaria and Lower Ajaria were formed there and the region was annexed to the vilayet (province) of Childir (Akhaltsikhe). Subsequently, at various times, the Ottomans and the adjoining Georgian principalities fought over the region. Under the terms of Article IV of the Treaty of Adrianople signed on 2 September 1829 between tsarist Russia and the Ottoman Empire, Ajaria was assigned to the latter. 101. Article LVIII of the Treaty of Berlin signed on 13 July 1878 between the Russian and Ottoman Empires provided: “The Sublime Porte cedes to the Russian Empire in Asia the territories of Ardahan, Kars, and Batum together with the port of the latter.” 102.", "Articles XI and XV of the Armistice Treaty signed on 30 October 1918 at Mudros between Great Britain and her allies, and Turkey provided: “XI. ... Part of Trans-Caucasia has already been ordered to be evacuated by Turkish troops, the remainder to be evacuated if required by the Allies after they have studied the situation there.” “XV. ... This clause to include Allied occupation of Batoum ...” 103. The Armistice Treaty signed at Brest-Litovsk on 3 March 1918 between Germany, Austria-Hungary, Bulgaria and Turkey, and Russia provided: “IV.", "... The districts of Erdehan, Kars, and Batum will likewise and without delay be cleared of the Russian troops. Russia will not interfere in the reorganisation of the national and international relations of these districts, but leave it to the population of these districts to carry out this reorganisation in agreement with the neighbouring States, especially with Turkey.” 104. Article 107 of the Constitution of the Democratic Republic of Georgia, which was adopted on 21 February 1921, provided: “The inseparable parts of the Republic of Georgia, namely the district of Abkhazia-Sokhoumi, Muslim Georgia (district of Batumi) and the district of Zakatala, shall have the right of self-government for local affairs.” 105. Article 2 of the Moscow Accords dated 16 March 1921 and signed by Russia and Turkey provided: “Turkey agrees to cede to Georgia suzerainty of the port of Batumi, together with the territory to the north of the border referred to in Article 1 of this Treaty that forms part of the district of Batumi ... on condition that: (a) the populations of these territories enjoy a large degree of local administrative autonomy guaranteeing each community its cultural and religious rights and are permitted to introduce in the aforementioned places an agrarian regime in accordance with their wishes.", "...” 106. On 16 July 1921 Ajaria was granted the status of an autonomous Soviet socialist republic forming part of the Soviet Socialist Republic (SSR) of Georgia. 107. Article 6 of the Kars Treaty signed on 13 October 1921 between the government of Turkey and the governments of the Soviet Socialist Republics of Azerbaijan, Armenia and Georgia provided: “Turkey agrees to cede to Georgia suzerainty of the town and port of Batumi, together with the territory to the north of the border referred to in Article 4 of this Treaty that was formerly part of the district of Batumi ... on condition that: (i) The populations of the places specified in this Article enjoy a large degree of local administrative autonomy guaranteeing each community its cultural and religious rights and are permitted to introduce in the aforementioned places an agrarian regime in accordance with their wishes. (ii) Turkey is guaranteed free transit of goods and all materials to or from Turkey through the port of Batumi, free of customs, without hindrance, free of all duties and imposts and with the right for Turkey to use the port of Batumi without special costs.", "In order to implement this provision, a Committee of Representatives of Interested Parties shall be set up immediately after the signature of this Treaty.” B. Status of Ajaria under the 1995 Constitution, as currently worded 108. On 24 August 1995, four years after the dissolution of the USSR, the Georgian Parliament adopted a new Constitution, Article 2 § 3 of which provides: “The internal territorial arrangement of Georgia shall be determined by constitutional law on the basis of the principle of division of power after the full restoration of the jurisdiction of Georgia over all its territory.” 109. On 20 April 2000 the Constitution was amended by a constitutional law which replaced the term “Ajaria” with “Ajarian Autonomous Republic” and added a third paragraph to Article 3 of the Constitution, which reads: “The status of the Ajarian Autonomous Republic shall be determined by a constitutional law on the status of the Ajarian Autonomous Republic.” On 10 October 2002 the Georgian Parliament enacted a constitutional law containing similar amendments and additions with respect to Abkhazia. It has not passed any similar legislation with respect to the Tskhinvali region (formerly, the “Autonomous District of South Ossetia”).", "110. The proposed constitutional law determining the status of the Ajarian Autonomous Republic (see Article 3 of the Constitution) has not yet been passed. C. Presidential pardons 1. The Constitution 111. Article 73 § 1, sub-paragraph 14, of the Constitution reads as follows: “The President of Georgia: ... has the right to grant convicted persons a pardon; ...” 2.", "Presidential Decree no. 319 on the exercise of the right of pardon 112. The relevant provisions of Article 1 of Decree no. 319 of 13 May 1998 on the exercise of the right of pardon provide: Article 1 “The President of Georgia may grant convicted persons a pardon in accordance with Article 73 § 1, sub-paragraph 14, of the Constitution. In order to exercise this right, the President shall examine beforehand requests by convicted persons for a pardon that have been submitted by the Georgian courts, ..., petitions for a pardon lodged by members of parliament, private individuals, groups of private individuals, organisations or public bodies, and requests for convicted persons to be released from an obligation to pay compensation for pecuniary damage under an order of the Georgian courts made in favour of a public undertaking, institution or organisation.", "A pardon may be granted at the request of a convicted person if he or she admits his or her guilt and repents.” Article 2 § 1 “Requests and petitions for a pardon shall be examined by the Pardons Board before being submitted to the President. The board ... shall be set up to carry out a prior examination of requests and petitions made to the President for a pardon and to make recommendations in that regard. The board's recommendations shall be examined by the President, who shall take the final decision.” Article 7 “If granted a pardon, the convicted person shall be entitled to: (a) remission of all the main or any ancillary sentence, with or without deletion of his or her name from the criminal records; (b) remission of part of the main or any ancillary sentence, in other words, to a reduction in the length of his or her sentence; (c) have the remainder of his or her sentence commuted to a lesser sentence; (d) remission of all or part of an order of the trial court to pay compensation for pecuniary damage.” Article 9 “A pardon may not be granted to convicted persons: (a) who have been tried for a serious crime and sentenced to a term of imprisonment of more than five years and have not yet served at least half of their sentence; (b) who have been sentenced for the first time to a term of imprisonment of less than five years and have not yet served at least a third of their sentence; ... (f) who are of bad character according to the institution in which they are being held and have a reputation for unacceptable violations of the applicable prison regulations. Requests by convicted persons falling within the provisions of this Article shall not be examined by the Pardons Board unless special circumstances so warrant.” Article 10 “Prior to its examination by the Pardons Board the request for a pardon shall be sent with the file documents produced by the penal institution concerned for opinion to the Supreme Court of Georgia, the General Prosecutor's Office and the Ministry of the Interior. Prior to being examined by the Pardons Board the request for remission of an obligation to pay compensation for pecuniary damage shall be sent with the file documents to the Supreme Court of Georgia, the territorial administrative authorities and self-governing authorities and any legal entity that is a civil party to the proceedings.", "The aforementioned authorities' opinions and legal entity's observations shall be submitted to the Pardons Board within two weeks.” 113. By Presidential Decree no. 426 of 4 October 2002, an Article 10.1 was added to the aforementioned Decree no. 319. It provides: “The President of Georgia shall have the right to grant a pardon to a convicted person in accordance with Article 73 § 1, sub-paragraph 14, of the Constitution even if the additional conditions set out in this decree are not satisfied.” 3.", "Relevant provisions of other Codes 114. Article 360 of Chapter XIX of the Code of Civil Procedure, which contained the rules of procedure in administrative-law disputes before the Code of Administrative Procedure came into force on 1 January 2000 provided: “The application must be lodged with the court of appeal with territorial jurisdiction for the area in which the body from which the contested act emanated is situated.” 115. The relevant provisions of the Code of Administrative Procedure provide: Article 6 § 1 (a) “The courts of appeal shall hear as courts of first instance applications concerning: (a) the legality of administrative acts of the President of Georgia; ...” Article 29 “An application for judicial review of an administrative act shall stay execution of that act.” D. The parliamentary report 116. The relevant provisions of the Constitution are as follows: Article 56 §§ 1 and 2 “Parliament shall set up committees for the duration of its term to conduct preliminary studies of legislative issues, to implement decisions, and to supervise the activities of the Government and the bodies accountable to Parliament for their work. In the circumstances set out in the Constitution and the Rules of Parliament, or at the request of at least a quarter of the members of parliament, committees of inquiry and other temporary committees shall be set up.", "The representation of the parliamentary majority on such committees shall not exceed one-half of the total number of the committee members.” Article 42 § 1 “Everyone shall be entitled to seek judicial protection of his or her rights and freedoms.” 117. Article 60 of the Administrative Code, as amended on 2 March 2001, reads as follows: “1. An administrative decision shall be declared null and void (a) if it emanates from an unauthorised body or person; (b) if its execution could entail the commission of an offence; (c) if its execution is impossible for objective factual reasons; (d) if it is contrary to the law or if there has been a material breach of the statutory rules governing its preparation or adoption. 2. A breach of the law that results in a different decision from that which would have been taken had the law been complied with shall constitute a material breach of the statutory rules on the preparation and adoption of administrative decisions.", "3. An administrative decision shall be declared null and void by either the body from which it originated or a higher administrative body on an internal appeal or an administrative court on an application for judicial review.” 118. Article 257 of the former Code of Criminal Procedure, which was in force until 15 May 1999, provided: “If, during the course of the judicial examination of a case, circumstances come to light that indicate that the offence was committed by a person who has not been charged, the court shall make an order for criminal proceedings to be brought against that person and forward the decision to the inquiry and investigative bodies for execution.” 119. The relevant provisions of the New Code of Criminal Procedure, which came into force on 15 May 1999, are as follows: Article 539 “A judgment or other judicial decision shall be ill-founded if: (a) a guilty verdict is returned that is not based on the evidence in the case; (b) there are unresolved conflicts of evidence that call into question the validity of the court's finding; (c) the court failed to take material evidence into account when reaching its decision; (d) the court reached its findings on the basis of evidence that was inadmissible or irrelevant; (e) the court rejected certain evidence in favour of other conflicting evidence without explaining its reasons for so doing; (f) the court did not afford the convicted person the benefit of the doubt.” Article 593 “1. The judgment ... may be quashed in whole or in part if new factual or legal circumstances come to light.", "2. New factual circumstances shall entail a review of any court decision that is illegal or does not contain reasons. There shall be a review in particular when: (a) it is judicially established that the evidence of a witness or expert witness or of any other kind that constituted the basis for the impugned court decision was false; (b) it is judicially established that the trial judge, the public prosecutor, the investigating officers or prosecuting authority contravened the law when dealing with the case;(c) fresh evidence has come to light ... that may prove the innocence of a convicted person or the guilt of an acquitted person ...;(d) fresh evidence has come to light that shows that ... the evidence on which the decision was based was inadmissible.” E. Procedure in the Supreme Court of Georgia and on acquittal 120. Article 9 of the Institutional Law on the Supreme Court of Georgia of 12 May 1999 sets out the jurisdiction of the various chambers of the Supreme Court, including the Criminal Affairs Chamber: “The chambers ... of the Supreme Court of Georgia are courts of cassation which ... hear appeals on points of law against the decisions of the regional courts of appeal, the High Courts of the Autonomous Republics of Abkhazia and Ajaria and the Criminal Affairs Panel of the Supreme Court.” 121. The relevant provisions of the New Code of Criminal Procedure are as follows: Article 28 (a) “Criminal proceedings may not be brought and pending criminal proceedings shall be discontinued if the act or omission concerned is not an offence under the Criminal Code.” Article 602 § 2 “Judgments must be prepared for execution at the latest within seven days after the date on which they become enforceable.” Article 604 “1.", "It is for the court which delivered the decision to send the judgment or order for execution. The order relating to execution of the judgment and a copy of the judgment shall be sent by the judge or the president of the court to the body responsible for its enforcement. ... 2. The body responsible for its enforcement shall immediately inform the court which delivered the judgment of its execution. ...” F. The place of detention 122.", "Section 6(1) and (3) of the Detention Act of 22 July 1999 provides: “Sentences of imprisonment judicially imposed in a judgment shall be served in prison institutions supervised by the Ministry of Justice of Georgia. In the territory of Georgia, these prison institutions shall be as follows: (a) ordinary-regime prisons; (b) strict-regime prisons; (c) isolation prisons.” THE LAW I. PRELIMINARY OBJECTION OF FAILURE TO EXHAUST DOMESTIC REMEDIES 1. The parties' submissions 123. Counsel for the Government invited the Court to declare the application inadmissible for breach of the obligation under Article 35 of the Convention to exhaust domestic remedies.", "Noting that the machinery of protection established by the Convention was subsidiary to the national systems safeguarding human rights (see Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 22, § 48), he submitted that the Court's decision declaring the present application admissible had infringed the subsidiarity principle embodied in international law. He pointed out that the Government had not communicated to the Court the parliamentary committee's report of 26 September 2002 before the Court examined the issue of the admissibility of the applicant's complaints. In his submission, that omission had prevented the Court from taking an informed decision on the issue of admissibility. 124.", "Counsel for the Government noted that the investigation committee of the Georgian Parliament had found a number of irregularities in the proceedings in which the applicant had been acquitted (see paragraphs 82 et seq. above). However, the respondent State had not yet had an opportunity to remedy the situation in the light of the committee's findings using the means available within its own legal system (see Retimag SA v. the Federal Republic of Germany, no. 712/60, Commission decision of 16 December 1961, Yearbook 8, pp. 29-42).", "In his submission, “when a national parliament decides to examine a particularly sensitive domestic case in order to verify whether the decisions of the judicial authorities were lawful, the case cannot reasonably be regarded as having been finally decided in the country concerned”. Counsel for the Government provided a detailed summary of the parliamentary committee's report and asked the Court not to underestimate its relevance to the proceedings before it. He noted that the parliamentary committee had suggested that the applicant's trial should be reopened on account of the irregularities it had found and said that statutory remedies would not have been exhausted until that had been done (see paragraph 88 above). In his submission, that finding by the committee confirmed that the applicant had failed to comply with his obligation to exhaust domestic remedies within the meaning of Article 35 of the Convention, with the result that his complaints were inadmissible. 125.", "The applicant replied that the parliamentary committee's report had no legal effect in the domestic system. On a separate point, he drew the Court's attention to the fact that the report had only been signed by the president of the committee whereas, under the parliamentary rules of procedure, the signatures of the other members were also necessary to validate the document. The applicant also pointed out that the president of the committee was a member of parliament who had been elected as a candidate from the political party of Mr Aslan Abashidze, the Head of the Ajarian Autonomous Republic. 2. The Court's assessment 126.", "Even though the Government are late in making this plea of inadmissibility (Rule 55 of the Rules of Court), the Court considers that it must examine it, in view of the special circumstances of the case. 127. It notes that the investigation committee of the Georgian Parliament was instructed by the Bureau of the Parliament to examine the circumstances in which the applicant had come to be granted a presidential pardon, even though he had taken no steps to request one. On its own initiative, the committee also proceeded to examine the second set of criminal proceedings, in which the applicant was acquitted and, in its report of 26 September 2002, suggested the reopening of the case so that it could be remitted to the investigating bodies for further investigation (see paragraphs 72-88 above). The Court reiterates that the rule of exhaustion of domestic remedies requires an applicant to have normal recourse to remedies within the national legal system 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. There is no obligation to have recourse to remedies which are inadequate or ineffective (see, among other authorities, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 67, and Andronicou and Constantinou v. Cyprus, judgment of 9 October 1997, Reports 1997-VI, pp. 2094-95, § 159). Thus, extraordinary procedural remedies that do not satisfy the requirements of “accessibility” and “effectiveness” are not remedies requiring exhaustion for the purposes of Article 35 § 1 of the Convention (see, mutatis mutandis, Kiiskinen v. Finland (dec.), no. 26323/95, ECHR 1999-V, and Moyá Alvarez v. Spain (dec.), no.", "44677/98, ECHR 1999‑VIII). 128. The Court notes that under the Georgian legal system the report of a parliamentary investigation committee on a court decision does not entail that decision being set aside or reviewed. At most, the prosecuting authorities may judge it necessary to set the criminal process in motion in respect of matters that have thereby been brought to their attention. In the instant case, on 25 March 2003, following a request for the reopening of the proceedings by the civil party, the General Prosecutor's Office of Georgia found that the parliamentary committee's findings in its report of 26 September 2002 did not constitute new factual or legal circumstances that could warrant reopening the applicant's case (see paragraph 89 above).", "Since the parliamentary committee's report did not result in a review of the proceedings in which the applicant was acquitted (see paragraph 47 above), the Government cannot validly maintain that those criminal proceedings are still pending in the domestic courts or that the applicant's application to the Court was premature. In these circumstances, the Court considers it unnecessary to examine whether the report was validly approved by all the members of the investigation committee. 129. In any event, the Court notes that the principle of the rule of law and the notion of fair trial enshrined in Article 6 of the Convention preclude any interference by the legislature with the administration of justice designed to influence the judicial determination of the dispute (see Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301‑B, p. 82, § 49).", "Consequently, the Court would be extremely concerned if the legislation or practice of a Contracting Party were to empower a non-judicial authority, no matter how legitimate, to interfere in court proceedings or to call judicial findings into question (see, mutatis mutandis, Cooper v. the United Kingdom [GC], no. 48843/99, § 130, ECHR 2003-XII). 130. The judgment acquitting the applicant was final. Accordingly, without prejudice to the provisions of Article 4 § 2 of Protocol No.", "7, the principle of legal certainty – one of the fundamental aspects of the rule of law – precluded any attempt by a non-judicial authority to call that judgment into question or to prevent its execution (see, mutatis mutandis, Brumărescu v. Romania [GC], no. 28342/95, §§ 61-62, ECHR 1999-VII, and Ryabykh v. Russia, no. 52854/99, §§ 51-52, ECHR 2003-IX). 131. In the light of the foregoing, the Court dismisses the objection of failure to exhaust domestic remedies.", "II. THE RESPONDENT STATE'S JURISDICTION AND RESPONSIBILITY UNDER ARTICLE 1 OF THE CONVENTION 132. Article 1 of the Convention provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” 1. The Government's submissions 133. The Government accepted that the Ajarian Autonomous Republic was an integral part of Georgia and that the matters complained of were within the jurisdiction of the Georgian State.", "However, they did not touch upon the difficulties encountered by the central State authorities in exercising their jurisdiction in the Ajarian Autonomous Republic. 134. As a preliminary point, counsel for the Government drew the Court's attention to the fact that the Georgian central government had not informed the Ajarian authorities of the proceedings before the Court in the present case. Consequently, although directly implicated by the application, the Ajarian authorities had had no opportunity to explain to the Court why the applicant remained in custody. Noting that the Ajarian Autonomous Republic was subject to Georgian law, counsel for the Government stressed that the Georgian Supreme Court had the power to overturn decisions of the Ajarian High Court on an appeal on points of law.", "He said that Georgian law was duly applied in the Republic and that, apart from the present case, with its strong political overtones, there was no problem of judicial cooperation between the central authorities and the local Ajarian authorities. Counsel for the Government added that, unlike the other two autonomous entities (the Autonomous Republic of Abkhazia and the Tskhinvali region), the Ajarian Autonomous Republic had never had separatist aspirations and that any suggestion that it would refuse to cooperate with the central judicial authorities was unfounded. He also said that the Ajarian Autonomous Republic was not a source of conflict between different States and that the central State authorities exercised full jurisdiction over it. 2. The applicant's submissions 135.", "Like the Government, the applicant stated that there was no doubt that the Ajarian Autonomous Republic was part of Georgia, both under domestic and international law. He noted that the Ajarian Autonomous Republic was not a separatist region, that the Georgian State exercised its jurisdiction there and was answerable to the international courts for matters arising in all parts of Georgia, including Ajaria. He added that the central authority had no difficulty in exercising its jurisdiction in the Ajarian Autonomous Republic. In his view, the Supreme Court of Georgia was generally successful in supervising the functioning of the Ajarian courts, the instant case proving the sole exception to that rule. 136.", "The applicant considered that his inability to secure compliance with the judgment acquitting him was attributable domestically to the local Ajarian authorities, but also to the central authorities, whose actions had not been sufficiently effective, and to the President of Georgia, who had not played his role as guarantor of the State. In his submission, his application did not concern questions of jurisdiction or responsibility, but only the respondent State's failure to secure, by all available means, execution of a judicial decision. 3. The Court's assessment (a) The question of “jurisdiction” 137. Article 1 of the Convention requires the States Parties to “secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention”.", "It follows from this provision that the States Parties are answerable for any violation of the protected rights and freedoms of anyone within their “jurisdiction” – or competence – at the time of the violation. In certain exceptional cases, jurisdiction is assumed on the basis of non-territorial factors, such as: acts of public authority performed abroad by diplomatic and consular representatives of the State; the criminal activities of individuals overseas against the interests of the State or its nationals; acts performed on board vessels flying the State flag or on aircraft or spacecraft registered there; and particularly serious international crimes (universal jurisdiction). However, as a general rule, the notion of “jurisdiction” within the meaning of Article 1 of the Convention must be considered as reflecting the position under public international law (see Gentilhomme and Others v. France, nos. 48205/99, 48207/99 and 48209/99, § 20, 14 May 2002, and Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, §§ 59-61, ECHR 2001-XII).", "That notion is “primarily” or “essentially” territorial (see Banković and Others, ibid.). 138. In addition to the State territory proper, territorial jurisdiction extends to any area which, at the time of the alleged violation, is under the “overall control” of the State concerned (see Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310), notably occupied territories (see Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001-IV), to the exclusion of areas outside such control (see Banković and Others, cited above).", "139. The Ajarian Autonomous Republic is indisputably an integral part of the territory of Georgia and subject to its competence and control. In other words, there is a presumption of competence. The Court must now determine whether there is valid evidence to rebut that presumption. 140.", "In that connection, the Court notes, firstly, that Georgia has ratified the Convention for the whole of its territory. Furthermore, it is common ground that the Ajarian Autonomous Republic has no separatist aspirations and that no other State exercises effective overall control there (see, by converse implication, Ilaşcu and Others v. Moldova and Russia (dec.) [GC], no. 48787/99, 4 July 2001, and Loizidou, cited above). On ratifying the Convention, Georgia did not make any specific reservation under Article 57 of the Convention with regard to the Ajarian Autonomous Republic or to difficulties in exercising its jurisdiction over that territory. Such a reservation would in any event have been ineffective, as the case-law precludes territorial exclusions (see Matthews v. the United Kingdom [GC], no.", "24833/94, § 29, ECHR 1999-I) other than in the instance referred to in Article 56 § 1 of the Convention (dependent territories). 141. Unlike the American Convention on Human Rights of 22 November 1969 (Article 28), the European Convention does not contain a “federal clause” limiting the obligations of the federal State for events occurring on the territory of the states forming part of the federation. Moreover, since Georgia is not a federal State, the Ajarian Autonomous Republic is not part of a federation. It forms an entity which, like others (the Autonomous Republic of Abkhazia and, before 1991, the Autonomous District of South Ossetia), must have an autonomous status (see paragraphs 108-10 above), which is a different matter.", "Besides, even if an implied federal clause similar in content to that of Article 28 of the American Convention were found to exist in the European Convention (which is impossible in practice), it could not be construed as releasing the federal State from all responsibility, since it requires the federal State to “immediately take suitable measures, in accordance with its constitution ..., to the end that the [states forming part of the federation] may adopt appropriate provisions for the fulfillment of [the] Convention”. 142. Thus, the presumption referred to in paragraph 139 above is seen to be correct. Indeed, for reasons of legal policy – the need to maintain equality between the States Parties and to ensure the effectiveness of the Convention – it could not be otherwise. But for the presumption, the applicability of the Convention could be selectively restricted to only parts of the territory of certain States Parties, thus rendering the notion of effective human rights protection underpinning the entire Convention meaningless while, at the same time, allowing discrimination between the States Parties, that is to say beween those which accepted the application of the Convention over the whole of their territory and those which did not.", "143. The Court therefore finds that the actual facts out of which the allegations of violations arose were within the “jurisdiction” of the Georgian State (see Bertrand Russell Peace Foundation Ltd v. the United Kingdom, no. 7597/76, Commission decision of 2 May 1978, Decisions and Reports (DR) 14, pp. 117 and 124) within the meaning of Article 1 of the Convention. (b) Issues of imputability and responsibility 144.", "The present application is distinguishable from the cases which the Court has been called upon to examine under Article 1 of the Convention. In those cases, the notions of imputability and responsibility were considered as going together, the State only engaging its responsibility under the Convention if the alleged violation could be imputed to it (see Loizidou, cited above, pp. 20-22, §§ 52-56, and Cyprus v. Turkey, cited above, pp. 260-62, §§ 75-81). In the aforementioned cases, the Court held, in particular, that the alleged violations of the Convention committed on part of the territory of the Contracting Party to the Convention could not engage that State's responsibility when the zone concerned was under the effective control of another State (see Loizidou, pp.", "23-24, § 62). The position in the present case is quite different: no State apart from Georgia exercised control – and therefore had jurisdiction – over the Ajarian Autonomous Republic and indeed it has not been suggested otherwise before the Court, quite the opposite (see paragraphs 132-36 above). The present application also differs from that in Banković and Others, which was distinguishable from the two preceding cases, in that the respondent States – which were parties to the Convention and members of NATO – did not exercise “overall control” over the territory concerned. In addition, the State which did have such control, the Federal Republic of Yugoslavia, was not a party to the Convention. 145.", "The applicant in the instant case is a person who, despite being acquitted by the Supreme Court of Georgia (see paragraph 47 above), nonetheless remains in the custody of the local Ajarian authorities (see paragraph 59 above). While attributing his continued detention to arbitrariness on the part of the local authorities, the applicant also complains that the measures taken by the central authority to secure his release have been ineffective. As the case file shows, the central authorities have taken all the procedural steps possible under domestic law to secure compliance with the judgment acquitting the applicant, have sought to resolve the dispute by various political means and have repeatedly urged the Ajarian authorities to release him. However, no response has been received to any of their requests (see paragraphs 60-69 above). Thus, the Court is led to the conclusion that, under the domestic system, the matters complained of by the applicant were directly imputable to the local Ajarian authorities.", "146. However, it must be reiterated that, for the purposes of the Convention, the sole issue of relevance is the State's international responsibility, irrespective of the national authority to which the breach of the Convention in the domestic system is imputable (see, mutatis mutandis, Foti and Others v. Italy, judgment of 10 December 1982, Series A no. 56, p. 21, § 63; Zimmermann and Steiner v. Switzerland, judgment of 13 July 1983, Series A no. 66, p. 13, § 32; and Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 28, § 46).", "Even though it is not inconceivable that States will encounter difficulties in securing compliance with the rights guaranteed by the Convention in all parts of their territory, each State Party to the Convention nonetheless remains responsible for events occurring anywhere within its national territory. Further, the Convention does not merely oblige the higher authorities of the Contracting States themselves to respect the rights and freedoms it embodies; it also has the consequence that, in order to secure the enjoyment of those rights and freedoms, those authorities must prevent or remedy any breach at subordinate levels (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 90-91, § 239). The higher authorities of the State are under a duty to require their subordinates to comply with the Convention and cannot shelter behind their inability to ensure that it is respected (ibid., p. 64, § 159).", "147. Despite the malfunctioning of parts of the State machinery in Georgia and the existence of territories with special status, the Ajarian Autonomous Republic is in law subject to the control of the Georgian State. The relationship existing between the local Ajarian authorities and the central government is such that only a failing on the part of the latter could make the continued breach of the provisions of the Convention at the local level possible. The general duty imposed on the State by Article 1 of the Convention entails and requires the implementation of a national system capable of securing compliance with the Convention throughout the territory of the State for everyone. That is confirmed by the fact that, firstly, Article 1 does not exclude any part of the member States' “jurisdiction” from the scope of the Convention and, secondly, it is with respect to their “jurisdiction” as a whole – which is often exercised in the first place through the Constitution – that member States are called on to show compliance with the Convention (see United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports 1998-I, pp.", "17‑18, § 29). 148. The authorities of a territorial entity of the State are public-law institutions which perform the functions assigned to them by the Constitution and the law. In that connection, the Court reiterates that in international law the expression “governmental organisation” cannot be held to refer only to the government or the central organs of the State. Where powers are distributed along decentralised lines, it refers to any national authority exercising public functions.", "Consequently, such authorities have no standing to make an application to the Court under Article 34 of the Convention (see Municipal Section of Antilly v. France (dec.), no. 45129/98, ECHR 1999-VIII, and Ayuntamiento de Mula v. Spain (dec.), no. 55346/00, ECHR 2001-I). These principles show that, in the present case, the Ajarian regional authorities cannot be described as a non-governmental organisation or group of individuals with a common interest, for the purposes of Article 34 of the Convention. Accordingly, they have no right to make an application to the Court or to lodge a complaint with it against the central authorities of the Georgian State.", "149. The Court thus emphasises that the higher authorities of the Georgian State are strictly liable under the Convention for the conduct of their subordinates (see Ireland v. the United Kingdom, cited above, p. 64, § 159). It is only the responsibility of the Georgian State itself – not that of a domestic authority or organ – that is in issue before the Court. It is not the Court's role to deal with a multiplicity of national authorities or courts or to examine disputes between institutions or over internal politics. 150.", "The Court therefore finds that the actual facts out of which the allegations of violations arose were within the “jurisdiction” of Georgia within the meaning of Article 1 of the Convention and that, even though within the domestic system those matters are directly imputable to the local authorities of the Ajarian Autonomous Republic, it is solely the responsibility of the Georgian State that is engaged under the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 151. The applicant complained that he had been the victim of a violation of Article 5 § 1 of the Convention following his pardon by the President on 1 October 1999, and submitted that his detention since his acquittal on 29 January 2001 was arbitrary. The relevant provisions of Article 5 § 1 of the Convention 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: (a) the lawful detention of a person after conviction by a competent court; ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...” A. Period of detention following the presidential pardon of 1 October 1999 1. The Government's submissions 152. In their observations filed after the admissibility decision (see paragraphs 4 and 9 above), the Government noted that the presidential pardon had been challenged in the administrative courts and its execution stayed in accordance with Article 29 of the Code of Administrative Procedure.", "The proceedings in the administrative courts had ended on 11 July 2000, when at last instance the Supreme Court of Georgia dismissed an appeal on points of law in which the Batumi Tobacco Manufacturing Company had argued that the presidential decree of pardon was illegal. That judgment was the final domestic decision within the meaning of Article 35 § 1 of the Convention and the applicant's complaint that he had been unlawfully detained between 1 October and 11 December 1999 was out of time. 153. As to the merits of the complaint, the Government maintained that the applicant's detention between 1 October and 11 December 1999 fully complied with the requirements of Article 5 § 1 (a) of the Convention. Having been sentenced on 28 November 1994 to eight years' imprisonment by the Ajarian High Court, the applicant was granted a pardon by the Georgian President on 1 October 1999 (see paragraphs 21 and 22 above).", "That presidential decree was immediately challenged by the Batumi Tobacco Manufacturing Company in the Ajarian High Court (see paragraph 24 above). That challenge itself operated to stay execution of the pardon in accordance with Article 29 of the Code of Administrative Procedure (see paragraph 115 above) and the judgment of 28 November 1994 continued to serve as the basis for the applicant's detention. Since the proceedings in the administrative courts only ended with the Supreme Court of Georgia's judgment of 11 July 2000 dismissing the Batumi Tobacco Manufacturing Company's appeal on points of law at last instance (see paragraph 29 above), the basis for the applicant's detention from 1 October to 11 December 1999 was the judgment of 28 November 1994 and the detention therefore complied both with domestic law and the requirements of Article 5 § 1 (a) of the Convention. 154. Counsel for the Government said that, in his view, the applicant had been pardoned for purely political reasons.", "He concurred with the Government's representative in considering that the basis for the applicant's detention during that period was the Ajarian High Court's judgment of 28 November 1994. 2. The applicant's submissions 155. The applicant submitted, firstly, that his detention from 1 October 1999 to date constituted a single period and that he had been unlawfully detained throughout. In that connection, he pointed out that there had been no visible change in his status between his detention in the first set of criminal proceedings and his detention following his conviction in the second set of proceedings and that the entire period he had spent in custody since receiving his pardon had served the same political purpose of the Ajarian authorities.", "The applicant therefore asked the Court to examine his detention from 1 October 1999 to date as a whole. 156. He added that for the period from 1 October to 11 December 1999 there had been no basis or lawful order for his continued detention. He stressed that, in contrast to himself, the other two convicted prisoners who had been granted pardons by the President of Georgia in the same decree (see paragraph 22 above) had both been released immediately. 157.", "Both in his observations filed with the Court after the admissibility decision and at the hearing on 19 November 2003, the applicant complained for the first time about his prosecution in December 1999 and ensuing detention in the second set of criminal proceedings. He said, in particular, that there had been “no reasonable ground to suspect” him of being implicated in the activities of the criminal gang led by Mr David Assanidze. His acquittal on 29 January 2001 demonstrated that the charges in the second set of proceedings were a complete fabrication and that his detention in connection with those proceedings also contravened the requirements of Article 5 § 1 of the Convention. 3. The Court's assessment 158.", "The Court notes at the outset that under Georgian law a substantive decision of the Georgian President constitutes an administrative act amenable to judicial review in the administrative courts (Article 60 of the Administrative Code and Article 6 § 1 (a) of the Code of Administrative Procedure – see paragraphs 117 and 115 above). Since the decree of pardon issued on 1 October 1999 was immediately challenged in the domestic courts by the Batumi Tobacco Manufacturing Company, its execution was stayed in accordance with Article 29 of the Code of Administrative Procedure and it only became enforceable on 11 July 2000, when the Supreme Court of Georgia dismissed at last instance an appeal by that company (see paragraph 29 above). In the meantime, on 11 December 1999, the applicant had already been charged in the second set of criminal proceedings and had been unable to secure his release (see paragraphs 27, 34 and 35 above). 159. Unlike the applicant, the Court considers that the period of detention after the presidential pardon of 1 October 1999 cannot be regarded as forming a whole with his continued detention since 29 January 2001, the date of his acquittal (see paragraph 47 above).", "Even though there was no gap between these periods of detention (as the applicant was not released), they were preceded by distinct periods of detention imposed on the applicant in two separate sets of proceedings and on different statutory bases. The Court must therefore determine the extent to which it will examine each of these periods (from 1 October to 11 December 1999 and from 29 January 2001 to date) in the light of the rules governing admissibility and, in particular, the rule that applications must be made to the Court “within a period of six months from the date on which the final decision was taken”, that is to say, the decision ending the process of “exhaustion of domestic remedies” within the meaning of Article 35 (see Kadikis v. Latvia (no. 2) (dec.), no. 62393/00, 25 September 2003). 160.", "On 12 November 2002 the Chamber to which the case was originally assigned declared the whole of the applicant's complaint under Article 5 § 1 of the Convention admissible. However, by virtue of Article 35 § 4 of the Convention, the Court may declare a complaint inadmissible “at any stage of the proceedings” and the six-month rule is a mandatory one which the Court has jurisdiction to apply of its own motion (see, among other authorities, Kadikis (no. 2), cited above). In the light of the Government's observations and the special circumstances of the case, the Court considers that in the instant case it is necessary to take this rule into account when examining the various periods for which the applicant was detained. 161.", "As regards the first period (from 1 October to 11 December 1999), the Court finds it unnecessary to examine whether the six-month period started to run from 1 October 1999, when the presidential pardon was granted, or, as the Government have submitted, from 11 July 2000, when the Supreme Court of Georgia dismissed the Batumi Tobacco Manufacturing Company's appeal at last instance (see paragraph 152 above). Whichever date is taken, the Court notes with regard to the first period of detention that the complaint under Article 5 § 1 was made outside the six-month time-limit, since the applicant lodged his application with the Court on 2 July 2001. It follows that this part of the application must be declared inadmissible as being out of time. 162. As to the complaint concerning the applicant's prosecution on 11 December 1999 in the second set of criminal proceedings and his detention between that date and his acquittal, the Court notes that the first occasion it was raised before it was on 23 September and 19 November 2003 (see paragraph 157 above).", "Consequently, it was not dealt with in the admissibility decision of 12 November 2002, which defines the scope of the Court's examination (see, among other authorities, Peltier v. France, no. 32872/96, § 20, 21 May 2002; Craxi v. Italy (no. 1), no. 34896/97, § 55, 5 December 2002; and Göç v. Turkey [GC], no. 36590/97, § 36, ECHR 2002-V).", "It follows that this complaint falls outside the scope of the case referred to the Grand Chamber for examination. 163. The Court will therefore only examine the applicant's complaints concerning the period of detention that began on 29 January 2001. B. Period of detention from 29 January 2001 to date 1.", "The Government's submissions 164. Despite requests from the Court, the Government have at no stage of the proceedings made any legal submissions on the applicant's detention since his acquittal on 29 January 2001. In exclusively factual observations that were submitted on 18 April 2002, they said that they were obliged to confine themselves to the facts of the instant case (see paragraph 4 above). Subsequently, the Government also declined to reply to a question concerning the merits of this complaint. However, their counsel has stated that the applicant's continued detention – despite his acquittal on 29 January 2001 – was entirely legitimate, since there was no basis for the acquittal in law.", "In so arguing, he relied primarily on the findings of the parliamentary committee's report of 26 September 2002. In his submission, since the judgment of 29 January 2001 was invalid, the basis for the applicant's detention since then had been his conviction and sentence on 2 October 2000 (see paragraph 44 above), that being the only judgment which remained effective. The detention consequently fell within Article 5 § 1 (a) of the Convention and complied fully with that provision. He added that, even if that were not the case, the applicant's detention was in any event justified under Article 5 § 1 (c) of the Convention by his dangerous links with mafia and terrorist groups. Counsel for the Government further submitted that the findings in the parliamentary committee's report constituted new circumstances that were capable of forming a basis for reopening the second set of criminal proceedings against the applicant.", "165. As to the relevance of the place where the applicant was held to the lawfulness of his detention under the Convention, the Government referred to the Court's judgment in Bizzotto v. Greece (judgment of 15 November 1996, Reports 1996-V) and submitted that, even if it contravened domestic law, the place of detention did not of itself render the detention contrary to Article 5 § 1 of the Convention. 2. The applicant's submissions 166. The applicant complained that he had been kept in custody despite his acquittal in 2001 and described that deprivation of liberty as arbitrary.", "It was his belief that he was being held because it suited the local Ajarian authorities, who wanted him out of the way, the motive being political revenge. 167. Both in his observations filed with the Court on 23 September 2003 and at the hearing on 19 November 2003, the applicant complained for the first time that the place of his detention – a prison-style cell in the Ajarian Ministry of Security measuring some six square metres – was illegal under domestic law. Since his arrest in 1993, the applicant had been held in total isolation in that cramped cell and had never left it. The applicant pointed out that under domestic law such cells were intended to hold remand prisoners during the preliminary investigation and that, even without the presidential pardon and his acquittal, he should have been transferred to a strict-regime prison immediately after his convictions on 28 November 1994 and 2 October 2000.", "He submitted that that aspect of his detention amounted to a violation of his rights under Article 5 § 1 of the Convention. 168. In his observations of 23 September and oral submissions of 19 November 2003, the applicant also asked the Court for the first time to examine the issue of his place of detention under Article 3 of the Convention and to hold that he had been subjected to degrading treatment. 3. The Court's assessment (a) Whether the detention was lawful 169.", "The Court observes, firstly, that Article 5 of the Convention guarantees the fundamental right to liberty and security. That right is of primary importance in a “democratic society” within the meaning of the Convention (see De Wilde, Ooms and Versyp v. Belgium, judgment of 18 June 1971, Series A no. 12, p. 36, § 65, and Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, p. 16, § 37). 170.", "All persons are entitled to the protection of that right, that is to say, not to be deprived, or to continue to be deprived, of their liberty (see Weeks v. the United Kingdom, judgment of 2 March 1987, Series A no. 114, p. 22, § 40), save in accordance with the conditions specified in paragraph 1 of Article 5. The list of exceptions set out in Article 5 § 1 is an exhaustive one (see Labita v. Italy [GC], no. 26772/95, § 170, ECHR 2000-IV, and Quinn v. France, judgment of 22 March 1995, Series A no. 311, p. 17, § 42) and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his or her liberty (see Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A no.", "22, p. 25, § 58, and Amuur v. France, judgment of 25 June 1996, Reports 1996-III, p. 848, § 42). 171. However, the fact that the deprivation of liberty comes within one of the categories permitted under Article 5 § 1 does not suffice. A person who is arrested or detained must benefit from the various safeguards set out in paragraphs 2 to 5 of Article 5 to the extent that they are applicable (see Weeks, cited above, p. 22, § 40). Thus, the provisions of Article 5 require the detention to be “in accordance with a procedure prescribed by law” and any decision taken by the domestic courts within the sphere of Article 5 to conform to the procedural and substantive requirements laid down by a pre-existing law (see Agee v. the United Kingdom, Commission decision of 17 December 1976, DR 7, p. 165).", "The Convention here refers essentially to national law, but it also requires that any deprivation of liberty be in conformity with the purpose of Article 5, namely to protect individuals from arbitrariness (see Quinn, cited above, pp. 18-19, § 47, and Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, p. 1864, § 118). Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should review whether this law has been complied with (see Scott v. Spain, judgment of 18 December 1996, Reports 1996-VI, p. 2396, § 57; Benham v. the United Kingdom, judgment of 10 June 1996, Reports 1996-III, p. 753, § 41; and Giulia Manzoni v. Italy, judgment of 1 July 1997, Reports 1997‑IV, p. 1190, § 21). 172. In the instant case, the applicant was detained by the Ajarian authorities for the purposes set out in Article 5 § 1 (c) from 11 December 1999 onwards, that being the date he was charged in a fresh set of proceedings (see paragraph 34 above).", "However, that situation ended with his acquittal on 29 January 2001 by the Supreme Court of Georgia, which at the same time ordered his immediate release (see paragraphs 47 and 56 above). Since then, despite the fact that his case has not been reopened and no further order has been made for his detention, the applicant has remained in custody. Thus, there has been no statutory or judicial basis for the applicant's deprivation of liberty since 29 January 2001. It cannot, therefore, be justified under any sub-paragraph of Article 5 § 1 of the Convention. 173.", "As to the conformity of the applicant's detention with the aim of Article 5 to protect against arbitrariness, the Court observes that it is inconceivable that in a State subject to the rule of law a person should continue to be deprived of his liberty despite the existence of a court order for his release. 174. As the documents in the case file show, the central State authorities themselves pointed out on a number of occasions that there was no basis for the applicant's detention. The central judicial and administrative authorities were forthright in telling the Ajarian authorities that the applicant's deprivation was arbitrary for the purposes of domestic law and Article 5 of the Convention. However, their numerous reminders and calls for the applicant's release went unanswered (see paragraphs 60-69 above).", "175. The Court considers that to detain a person for an indefinite and unforeseeable period, without such detention being based on a specific statutory provision or judicial decision, is incompatible with the principle of legal certainty (see, mutatis mutandis, Jėčius v. Lithuania, no. 34578/97, § 62, ECHR 2000-IX) and arbitrary, and runs counter to the fundamental aspects of the rule of law. 176. The Court accordingly finds that since 29 January 2001 the applicant has been arbitrarily detained, in breach of the provisions of Article 5 § 1 of the Convention.", "(b) The place of detention 177. The applicant has complained of various aspects of his detention in the instant case: firstly, the place of the detention itself, which he alleged was illegal under domestic law, and, secondly, the fact that he was held in total isolation. 178. As it has found that the applicant's continued detention since his acquittal is arbitrary, the Court considers that his separate complaint regarding the legality of the place of detention under domestic law adds nothing to the violation that has already been found. It accordingly considers it unnecessary to examine this issue separately under Article 5 § 1 of the Convention.", "As to the applicant's complaint that the fact that he had been held in total isolation in a cell at the Ajarian Ministry of Security prison constituted a breach of Article 3 of the Convention, the Court notes that it was raised for the first time on 23 September 2003 (see paragraph 167 above) and, consequently, was not referred to in the admissibility decision of 12 November 2002 which determined the scope of the proceedings to be examined by the Court (see, among other authorities, Peltier, cited above, § 20; Craxi (no. 1), cited above, § 55; and Göç, cited above, § 36). It follows that this complaint is outside the scope of the case that was referred to the Grand Chamber for examination. IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 179.", "The applicant submitted that the failure to comply with the judgment acquitting him had infringed Article 6 § 1 of the Convention, which provides: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...” 1. The parties' submissions 180. The Government did not make any submissions on this complaint. Referring to the Court's judgment in Hornsby v. Greece (judgment of 19 March 1997, Reports 1997-II), the applicant requested the Court to find a violation of his rights under Article 6 § 1 of the Convention.", "2. The Court's assessment 181. The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of the trial for the purposes of Article 6 (see, mutatis mutandis, Hornsby, cited above, pp. 510-11, § 40; Burdov v. Russia, no. 59498/00, §§ 34-35, ECHR 2002-III; and Jasiūnienė v. Lithuania, no.", "41510/98, § 27, 6 March 2003). 182. The guarantees afforded by Article 6 of the Convention would be illusory if a Contracting State's domestic legal or administrative system allowed a final, binding judicial decision to acquit to remain inoperative to the detriment of the person acquitted. It would be inconceivable that paragraph 1 of Article 6, taken together with paragraph 3, should require a Contracting State to take positive measures with regard to anyone accused of a criminal offence (see, among other authorities, Barberà, Messegué and Jabardo v. Spain, judgment of 6 December 1988, Series A no. 146, pp.", "33-34, § 78) and describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without at the same time protecting the implementation of a decision to acquit delivered at the end of those proceedings. Criminal proceedings form an entity and the protection afforded by Article 6 does not cease with the decision to acquit (see, mutatis mutandis, Belziuk v. Poland, judgment of 25 March 1998, Reports 1998-II, p. 570, § 37). 183. Applying those principles to the instant case, the Court emphasises that it was impossible for the applicant to secure execution of the judgment of a court that had determined criminal charges against him, within the meaning of Article 6 § 1 of the Convention. It does not consider it necessary to establish which domestic authority or administration was responsible for the failure to execute the judgment, which was delivered more than three years ago.", "It merely observes that the administrative authorities taken as a whole form one element of a State subject to the rule of law and their interests accordingly coincide with the need for the proper administration of justice (see Hornsby, cited above, p. 511, § 41). If the State administrative authorities could refuse or fail to comply with a judgment acquitting a defendant, or even delay in doing so, the Article 6 guarantees the defendant previously enjoyed during the judicial phase of the proceedings would become partly illusory. 184. Consequently, the fact that the judgment of 29 January 2001, which is a final and enforceable judicial decision, has still not been complied with more than three years later has deprived the provisions of Article 6 § 1 of the Convention of all useful effect. V. ALLEGED VIOLATIONS OF ARTICLES 5 § 4 AND 13 OF THE CONVENTION 185.", "The applicant submitted that the failure to comply with the operative provision of the judgment of 29 January 2001 ordering his immediate release constituted a violation of his rights under Article 5 § 4 and Article 13 of the Convention, which read as follows: Article 5 § 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.” 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.” 186. The Government did not make any submissions on this point. Counsel for the Government said that the applicant had at all times been able to challenge the lawfulness and merits of his detention in accordance with the requirements of Article 5 § 4 and Article 13 of the Convention, as witnessed by his many applications for release. 187. The Court notes that the complaints under Article 5 § 4 and Article 13 of the Convention are based on the failure to comply with the second operative provision of the judgment ordering the applicant's immediate release (see paragraph 56 above).", "They therefore raise essentially the same legal issue on the basis of the same facts as that examined by the Court under Article 6 § 1 of the Convention. Consequently, no separate examination of these complaints is necessary. VI. ALLEGED VIOLATION OF OTHER PROVISIONS OF THE CONVENTION 1. Alleged violation of Article 5 § 3 of the Convention 188.", "Without elaborating on his arguments in support of this complaint, the applicant said that his continued unlawful detention automatically entailed a violation of Article 5 § 3. Article 5 § 3 of the Convention reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be 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.” 189. The Government have not submitted observations on this complaint at any stage of the proceedings. 190.", "The Court notes that the period of detention for which the applicant was entitled to benefit from the guarantees set out in Article 5 § 3 ended on 2 October 2000 with his conviction at first instance by the Ajarian High Court (see paragraph 44 above), that is to say, outside the six-month time-limit laid down by Article 35 § 1 of the Convention (see paragraphs 160-61 above). It follows that this complaint must be dismissed as being out of time. 2. Alleged violation of Article 10 § 1 of the Convention 191. The applicant submitted that there had been a violation of his rights under Article 10 § 1 of the Convention, which provides: “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.” The applicant has not at any stage of the proceedings advanced any argument in support of this complaint, other than to say that the violation of Article 10 § 1 was “closely linked to that of Article 5 § 1 of the Convention”. The Government have not submitted any observations in reply. 192. In these circumstances, the Court finds that the applicant's complaint under Article 10 § 1 of the Convention is unsubstantiated.", "3. Alleged violation of Article 2 of Protocol No. 4 193. The applicant submitted that his continued detention infringed his rights under Article 2 of Protocol No. 4, which provides: “1.", "Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. ...” The Government argued that there had been no violation of that provision in the instant case, as at no stage had the applicant been subject to a measure restricting his liberty of movement within the country or preventing him from leaving it. While it was accepted that the applicant's detention made it impossible for him to exercise his right afforded by that provision, the restrictions on his movement resulted from his continued detention, not any violation of his rights under Article 2 of Protocol No.", "4. 194. The Court considers that the present case is concerned not with a mere restriction on freedom of movement within the meaning of Article 2 of Protocol No 4, but, as it has found above, with arbitrary detention falling under Article 5 of the Convention. It is not therefore necessary to consider the complaint under Article 2 of Protocol No. 4.", "VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 195. Under Article 41 of the Convention, “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 196. The applicant made the following claims: as reparation for pecuniary damage (loss of monthly income since 1 October 1999), 12,000 euros (EUR); for non-pecuniary damage, EUR 3,000,000.", "197. The Government argued that the sum of EUR 3,000,000 claimed by the applicant was “grossly exaggerated”. In their submission, the applicant had not advanced any valid legal or factual argument relating to the violation of the Convention that would justify making such a large award. Noting that a judgment of the Court finding a violation imposed an obligation on the State to make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (restitutio in integrum), the Government asked the Court not to grant the applicant's request for just satisfaction, but to dismiss it as ill-founded. Were the Court minded not to dismiss the claim, the Government asked it to take into account the severe socio-economic crisis in Georgia and the State's financial situation, which the Government said precluded it from paying out large sums to the applicant over any length of time.", "The Government therefore asked the Court, in the event of its finding a violation of the Convention provisions, to restrict any award for non-pecuniary damage to the applicant to a reasonable level. The Government did not comment on the sum claimed by the applicant for pecuniary damage. 198. The Court reiterates that, in the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which it finds a breach imposes on the respondent State a legal obligation under that provision to put an end to the breach and to make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. If, on the other hand, national law does not allow – or allows only partial – reparation to be made for the consequences of the breach, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate.", "It follows, inter alia, that a judgment in which the Court finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and make all feasible reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004-I; Menteş and Others v. Turkey (Article 50), judgment of 24 July 1998, Reports 1998-IV, p. 1695, § 24; and Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII). Furthermore, it follows from the Convention, and from Article 1 in particular, that in ratifying the Convention the Contracting States undertake to ensure that their domestic legislation is compatible with it. Consequently, it is for the respondent State to remove any obstacles in its domestic legal system that might prevent the applicant's situation from being adequately redressed (see Maestri, cited above, § 47).", "199. In the instant case, as regards the non-pecuniary damage already sustained, the Court finds that the violation of the Convention has indisputably caused the applicant substantial damage. Held arbitrarily in breach of the founding principles of the rule of law, the applicant is in a frustrating position that he is powerless to rectify. He has had to contend with both the Ajarian authorities' refusal to comply with the judgment acquitting him handed down some three years ago and the failure of the central government's attempts to compel those authorities to comply. 200.", "As to pecuniary damage, in view of the lack of evidence of the applicant's monthly income prior to his arrest, the Court has been unable to make a precise calculation. However, it considers that the applicant must necessarily have sustained such a loss as a result of being held without cause when, from 29 January 2001 onwards, he should have been in a position to find employment and resume his activities. 201. Consequently, ruling on an equitable basis and in accordance with the criteria set out in its case-law, the Court awards the applicant EUR 150,000 in respect of the period of detention from 29 January 2001 to the date of this judgment for all heads of damage combined, together with any amount which may be due by way of value-added tax (VAT). 202.", "As regards the measures which the Georgian State must take (see paragraph 198 above), subject to supervision by the Committee of Ministers, in order to put an end to the violation that has been found, the Court reiterates that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose the means to be used in its domestic legal order in order to discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court's judgment (see, among other authorities, Scozzari and Giunta, cited above, § 249; Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I; Akdivar and Others v. Turkey (Article 50), judgment of 1 April 1998, Reports 1998-II, pp. 723-24, § 47; and Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, p. 25, § 58). This discretion as to the manner of execution of a judgment reflects the freedom of choice attached to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1) (see, mutatis mutandis, Papamichalopoulos and Others v. Greece (Article 50), judgment of 31 October 1995, Series A no.", "330-B, pp. 58-59, § 34). However, by its very nature, the violation found in the instant case does not leave any real choice as to the measures required to remedy it. 203. In these conditions, having regard to the particular circumstances of the case and the urgent need to put an end to the violation of Article 5 § 1 and Article 6 § 1 of the Convention (see paragraphs 176 and 184 above), the Court considers that the respondent State must secure the applicant's release at the earliest possible date.", "B. Costs and expenses 204. The applicant claimed the sum of EUR 37,000 for costs and expenses, broken down as follows: EUR 2,000 for secretarial costs and costs of interpretation incurred in the proceedings before the Court; EUR 1,800 for his lawyer's travel expenses between Tbilisi and Batumi in connection with the preparation of his defence before the domestic courts; and 42,000 United States dollars (USD) (approximately EUR 33,200) for the fees of Mr Khatiashvili, his lawyer in the domestic proceedings and before the Court. Apart from an agreement entered into between the applicant's son and Mr Khatiashvili on 30 November 2000, the applicant has not furnished any documentary evidence in support of his claims, as he is required to do by Rule 60 § 2 of the Rules of Court. The agreement provides: “If Mr Tengiz Assanidze is successful in his case before the Supreme Court of Georgia, and once Mr T. Assanidze has been released, his son undertakes to pay Mr Khatiashvili the sum of USD 42,000.” 205.", "The Government did not comment on this point. 206. The Court notes that this case has given rise to two series of written observations and an adversarial hearing (see paragraphs 4, 9 and 16 above). Nevertheless, having examined the applicant's claims and taking into account the fact that a number of vouchers are missing, the Court is not satisfied that all the costs and expenses claimed were incurred solely for the purposes of putting an end to the violation. Under the Court's case-law, the Court may only order the reimbursement of costs to the extent that they were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention (see, among other authorities, Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no.", "316-B, p. 83, § 77, and Malama v. Greece (just satisfaction), no. 43622/98, § 17, 18 April 2002). The Court is also mindful of the great differences at present in rates of fees from one Contracting State to another, and does not consider it appropriate to adopt a uniform approach to the assessment of fees under Article 41 of the Convention. It reiterates too that it does not consider itself bound by domestic scales and practices, although it may derive some assistance from them (see, inter alia, M.M. v. the Netherlands, no.", "39339/98, § 51, 8 April 2003). 207. Ruling on an equitable basis and taking into account the sums already paid to the applicant by the Council of Europe in legal aid, the Court awards him EUR 5,000, together with any VAT that may be payable. C. Default interest 208. The Court considers it appropriate to base the default interest 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 preliminary objection of failure to exhaust domestic remedies (paragraph 131); 2. Holds unanimously that the matters complained of are within the “jurisdiction” of Georgia within the meaning of Article 1 of the Convention and that only the responsibility of the Georgian State is engaged under the Convention (paragraph 150); 3. Holds unanimously that the complaint under Article 5 § 1 of the Convention regarding the applicant's detention from 1 October to 11 December 1999 is out of time (paragraph 161); 4. Holds unanimously that the complaint under Article 5 § 1 of the Convention regarding the applicant's detention from 11 December 1999 to 29 January 2001 falls outside the scope of the matters referred to it for examination (paragraph 162); 5.", "Holds unanimously that since 29 January 2001 the applicant has been held arbitrarily in breach of the provisions of Article 5 § 1 of the Convention (paragraph 176); 6. Holds unanimously that no separate examination of the issue of the applicant's place of detention is necessary under Article 5 § 1 of the Convention (paragraph 178); 7. Holds unanimously that the complaint under Article 3 of the Convention falls outside the scope of its examination (paragraph 178); 8. Holds by fourteen votes to three that there has been a violation of Article 6 § 1 of the Convention on account of the failure to comply with the judgment of 29 January 2001 (paragraph 184); 9. Holds by fourteen votes to three that no separate examination of the complaint concerning the failure to comply with the judgment of 29 January 2001 is necessary under Article 5 § 4 of the Convention (paragraph 187); 10.", "Holds unanimously that no separate examination of the complaint concerning the failure to comply with the judgment of 29 January 2001 is necessary under Article 13 of the Convention (paragraph 187); 11. Holds unanimously that the complaint under Article 5 § 3 of the Convention is out of time (paragraph 190); 12. Holds unanimously that there has been no violation of Article 10 § 1 of the Convention (paragraph 192); 13. Holds unanimously that it is unnecessary to consider the complaint under Article 2 of Protocol No. 4 (paragraph 194); 14.", "Holds unanimously (a) that the respondent State must secure the applicant's release at the earliest possible date (paragraphs 202 and 203); (b) that, in respect of all the damage sustained, the respondent State is to pay the applicant, within three months, EUR 150,000 (one hundred and fifty thousand euros) for the period of detention from 29 January 2001 to the date of this judgment, plus any amount payable by way of value-added tax, to be converted into Georgian laris at the rate applicable at the date of settlement (paragraph 201); (c) that the respondent State is to pay the applicant, within three months, EUR 5,000 (five thousand euros) in respect of costs and expenses, plus any amount payable by way of value-added tax, to be converted into Georgian laris at the rate applicable at the date of settlement (paragraph 207); (d) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 15. Dismisses unanimously the remainder of the applicant's claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 8 April 2004. Luzius WildhaberPresidentPaul MahoneyRegistrar In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Mr Loucaides; (b) partly concurring opinion of Mr Costa; (c) joint partly dissenting opinion of Mr Costa, Sir Nicolas Bratza and Mrs Thomassen. L.W.P.J.M.", "CONCURRING OPINION OF JUDGE LOUCAIDES While agreeing with the approach of the majority in this case I would like to say a few words about the notion of “jurisdiction” within the meaning of Article 1 of the Convention. This issue is dealt with in paragraphs 137 and 138 of the judgment. To my mind “jurisdiction” means actual authority, that is to say the possibility of imposing the will of the State on any person, whether exercised within the territory of the High Contracting Party or outside that territory. Therefore, a High Contracting Party is accountable under the Convention to everyone directly affected by any exercise of authority by such Party in any part of the world. Such authority may take different forms and may be legal or illegal.", "The usual form is governmental authority within a High Contracting Party's own territory, but it may extend to authority in the form of overall control of another territory even though that control is illegal (see Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310), notably occupied territories (see Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001-IV). It may also extend to authority in the form of the exercise of domination or effective influence through political, financial, military or other substantial support of a government of another State. And it may, in my opinion, take the form of any kind of military or other State action on the part of the High Contracting Party concerned in any part of the world (see, by way of contrast, Banković and Others v. Belgium and Others (dec.) [GC], no.", "52207/99, ECHR 2001‑XII, cited in the judgment). The test should always be whether the person who claims to be within the “jurisdiction” of a High Contracting Party to the Convention, in respect of a particular act, can show that the act in question was the result of the exercise of authority by the State concerned. Any other interpretation excluding responsibility of a High Contracting Party for acts resulting from the exercise of its State authority would lead to the absurd proposition that the Convention lays down obligations to respect human rights only within the territory under the lawful or unlawful physical control of such Party and that outside that context, leaving aside certain exceptional circumstances (the existence of which would be decided on a case-by-case basis), the State Party concerned may act with impunity contrary to the standards of behaviour set out in the Convention. I believe that a reasonable interpretation of the provisions of the Convention in the light of its object must lead to the conclusion that the Convention provides a code of behaviour for all High Contracting Parties whenever they act in the exercise of their State authority with consequences for individuals. PARTLY CONCURRING OPINION OF JUDGE COSTA (Translation) 1.", "I have decided to concur with my fellow judges' view that the operative provisions of the judgment should contain an indication to the Government of the respondent State that the applicant's release must be secured at the earliest possible date. 2. I would like briefly to explain the reservations I have had on this subject. 3. The Court's case-law in this sphere is well known.", "Since its judgment in Marckx[1], the Court has regarded its decisions as being essentially declaratory, so that when it finds that there has been a violation of the Convention, it leaves to the State the choice of the means to be utilised in its domestic legal system for performance of its obligations under Article 46[2], which contains an undertaking by the States to abide by judgments of the Court. 4. The distinction between the choice of means and the obligation to achieve a specific result thus seeks to reconcile the principle of subsidiarity with the collective guarantee of the rights and freedoms protected by the Convention. Normally, it is for the Committee of Ministers of the Council of Europe, not the Court, to ensure compliance with the Court's judgments by supervising the general and individual measures taken by the respondent State to remedy the violation of the Convention. This, too, follows from Article 46.", "5. There have already been cases in which the Court has limited the State's choice of means. In cases involving deprivation of property, it has stated in the operative provisions that the State must return the property to the applicant[3]. It is true that it has not viewed that obligation as being totally mandatory, as it stipulates in the judgments that “failing such restitution ...” the State must pay certain sums to the applicant. In other words, restitutio in integrum is only compulsory in cases of this type to the extent that it is feasible (such a proviso being necessary, inter alia, to protect the rights of third parties acting in good faith).", "6. In any event, while an order by the Court requiring a State to achieve a specific result offers the advantage of simplifying the Committee of Ministers' task, it also complicates it in some ways. Under the system that operated before Protocol No. 11 came into force, in cases in which, instead of being responsible for supervising the execution of a Court judgment[4], the Committee of Ministers had itself decided that there had been a violation of the Convention[5], the States undertook to treat any decision of the Committee of Ministers as binding[6]. Under the current system, that State obligation to the Committee of Ministers has, at least on the face of it, disappeared, although that does not prevent the Committee of Ministers, when supervising the execution of a judgment in accordance with Article 46 § 2 as now worded, from relying on paragraph 1 of that Article, which provides: “The [States] undertake to abide by the final judgment of the Court in any case to which they are parties.” 7.", "The more specific the wording of the judgment, the easier the Committee of Ministers' task of supervising the execution of measures imposed on the States becomes from the legal perspective. However, that is not necessarily true of the political aspects, since, if it has no choice as to the measures to be implemented, the respondent State will be left with only one alternative: either to comply with the Court's order (in which case all will be well), or to run the risk of blocking the situation. 8. The present case thus gave considerable pause for thought. The continued detention, without any legal basis, of a person acquitted in a final judgment nearly three years ago, constitutes a flagrant denial of justice to which the Court had to respond with exemplary firmness, but, equally, the practical difficulties of enforcing the judgment called for caution.", "Although the authorities of the Autonomous Republic of Ajaria have yet to release the applicant, this has not been for want of action on the part of the central government authorities[7], who have repeatedly called for and sought to obtain his release from prison. Paragraphs 59 to 71 of the judgment are sufficiently clear on this point. The question that arises, therefore, is whether the Court should have waited for a more suitable opportunity to take this step forward in its case-law. Similarly, is there not a risk that the Committee of Ministers will find itself faced with a situation which, albeit straightforward legally, is highly complex in practice? 9.", "I have pondered each of these objections. Two series of considerations have been instrumental in my rejecting them. As regards principle, which is the most important factor, it would have been illogical and even immoral to leave Georgia with a choice of (legal) means, when the sole method of bringing arbitrary detention to an end is to release the prisoner. From the factual standpoint, at a time when relations between the respondent State and its decentralised entity have changed considerably and are still evolving, the wording adopted by the Court in its judgment ought to help put a stop to what is a glaring injustice that has gone on for far too long, especially as Georgia will remain responsible for a continuing violation of Article 5 § 1 of the Convention until such time as Mr Assanidze is released. 10.", "In any event, it is my hope that this judgment will be followed by the applicant's release as soon as possible. I would also note that the Court has taken what to my mind represents a welcome and logical step forward from the aforementioned restitution of property cases, as, rather than deciding that Georgia must pay the applicant compensation if it fails to secure his release, it has ruled that the payment obligation is additional to and does not in any way lessen the obligation to secure his release. JOINT PARTLY DISSENTING OPINIONOF JUDGES COSTA, Sir Nicolas BRATZAAND THOMASSEN We are in complete agreement with the conclusion and reasoning of the majority of the Court save as to the finding that the failure to comply with the judgment acquitting the applicant infringed Article 6 § 1 of the Convention and that, in consequence, no separate examination of the complaint under Article 5 § 4 was called for. In our view, the conclusion should have been reversed and a violation of Article 5 § 4 found, without the necessity of examining the case separately under Article 6. The essence of the applicant's claim under the Convention is that, notwithstanding his acquittal on all the charges against him by a final judgment of the Supreme Court of Georgia, he has continued to be detained in violation of domestic law and without any lawful basis since 29 January 2001.", "This has quite correctly resulted in the Court's finding that the applicant has been arbitrarily detained since that date, in breach of the provisions of Article 5 § 1. In holding that the refusal to comply with the judgment of the Supreme Court acquitting the applicant additionally violated Article 6 of the Convention, the majority of the Court have adapted and applied the principle first expounded in Hornsby v. Greece (judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II) to the effect that the “right to a court” of which the right of access constitutes one aspect, would be illusory if a State's domestic legal system allowed a final, binding decision to remain inoperative to the detriment of one party. As the Court went on to observe in its judgment in that case, it would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions. However, Hornsby, and subsequent decisions of the Court applying the principles there stated, involved civil rather than criminal proceedings. We are not persuaded that the reasoning of the Court – with its references to access to a court, to the execution of judgments and to the necessary measures to comply with a final, enforceable judgment (see paragraphs 40-45 of Hornsby) – can be easily transposed to the case of a defendant in criminal proceedings.", "This is the more so where, as in the present case, a defendant is acquitted by a final judgment of a court, where in general there is nothing for the national authorities to execute and where no measures are necessary to comply with the judgment. Further, the Court's reliance in Hornsby on the fact that the procedural guarantees under Article 6 would otherwise be illusory has much less force in the case of the acquittal of a defendant, having regard to the well-established case-law of the Convention organs that an applicant who is acquitted cannot in any event claim to be a victim of a violation of such procedural guarantees. Moreover, since the failure of the national authorities to comply with the judgment of the Supreme Court is at the heart of the Court's finding of a breach of Article 5 – to which as the lex specialis in the sphere of liberty and security of person the case more naturally belongs – we see no necessity in any event for a separate and additional finding under Article 6 directed specifically to the failure of compliance itself. On the other hand, we consider that there is a separate and distinct problem under Article 5 § 4, which confers on a person deprived of his liberty the right to take proceedings by which the lawfulness of his detention shall be decided speedily and his release ordered if the detention is not lawful. It is an inherent requirement of this provision that the national authorities should promptly comply with any such order for release.", "The Government argue that the applicant has at all times been able to challenge the lawfulness and merits of his detention before the domestic courts. While this may be formally the case, the submission wholly ignores the reality that such an application would have been fruitless. In the present case, the Supreme Court did not confine itself to quashing the applicant's conviction and dismissing the criminal proceedings against him. It went further by ordering his immediate release. While the order for release was made at the end of the criminal proceedings against the applicant and not in a separate challenge to the lawfulness of his continued detention, the fact that for a period of over three years the authorities have consistently refused to respect or give effect to the order of the Supreme Court of Georgia is the clearest evidence of the ineffectiveness of the remedy in the case of the present applicant and of a violation of the State's obligations under Article 5 § 4 of the Convention.", "[1]. Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, p. 25, § 58. [2]. Former Article 53 of the Convention.", "[3]. See Papamichalopoulos and Others v. Greece (Article 50), judgment of 31 October 1995, Series A no. 330-B, and Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, ECHR 2001-I. [4].", "Under former Article 54 of the Convention. [5]. As it had power to do under former Article 32. [6]. In accordance with paragraph 4 of that provision.", "[7]. Who are rightly held solely responsible for the breach of the Convention in the present judgment (see paragraph 150)." ]

[ "FIFTH SECTION CASE OF AYBABIN v. UKRAINE (Application no. 23194/02) JUDGMENT STRASBOURG 18 December 2008 FINAL 18/03/2009 This judgment may be subject to editorial revision. In the case of Aybabin v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Rait Maruste, President,Volodymyr Butkevych,Renate Jaeger,Mark Villiger,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 25 November 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 23194/02) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Dmitriy Aleksandrovich Aybabin (“the applicant”), on 3 May 2002.", "2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. 3. On 18 September 2006 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the proceedings to the Government. It also decided to examine the merits of the remainder of the application at the same time as its admissibility (Article 29 § 3).", "THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1970 and is currently detained in the prison of Zhovti Vody, Ukraine. 5. On 8 June 1997 the applicant killed Mr R. and Mr Sh. and inflicted grievous bodily harm on Mr S. and Mr Sch.", "after a quarrel in a pub with a number of youths. The applicant received minor injuries. The applicant alleged that he had confronted the above persons with a knife after the quarrel in a pub since he and his friend, Mrs M., had been attacked. 6. On 8 June 1997 the applicant was arrested on suspicion of aggravated murder.", "He was suspected of having killed Mr R. and Mr Sh. and inflicted grievous bodily harm on Mr S. and Mr Sch. 7. On 11 June 1997 the applicant was formally charged with two counts of aggravated intentional murder. On the same day the prosecutor authorised his detention on remand.", "8. On 1 August 1997 the prosecutor extended the applicant’s detention on remand and the term of pre-trial investigation up to three months. 9. On 1 September 1997 the charges against the applicant were amended: he was accused of exceeding the limits of necessary defence which resulted in killing two persons and in inflicting grievous bodily harm on two others. 10.", "On 3 October 1997 the investigation was completed and the case was referred to the Kyivskiy District Court of Kharkiv. 11. On 3 November 1997 the case was referred from the Kyivskiy District Court of Kharkiv to the Kominternovskiy District Court of Kharkiv for examination on the merits. 12. On 11 June 1999 a judge of the Kominternovskiy District Court of Kharkiv remitted the case to the Kyivskiy District Prosecutor’s Office of Kharkiv for additional investigation.", "The court ordered the investigative authorities to find all witnesses in the case and question them, hold a confrontation between them, find the persons who participated in the quarrel and inflicted minor bodily injuries on the applicant and Mrs M. The court also requested a reconstruction of the events and additional forensic examination if the latter appeared to be necessary. The court also requested to check whether the charges against the applicant should be re-qualified under Article 93 of the Criminal Code. 13. On 30 August 1999 the investigation in the case was reopened. 14.", "On 28 September 1999 the applicant was charged with exceeding the limits of necessary defence which resulted in killing two persons and in inflicting grievous bodily harm on two others. 15. On 1 November 1999 the case was referred to the Kominternovskiy District Court of Kharkiv. 16. On 26 November 1999 a judge of the Kominternovskiy District Court of Kharkiv remitted the case to the Kyivskiy District Prosecutor’s Office of Kharkiv for additional investigation.", "The court ordered that a reconstruction of events be held and then a forensic examination be conducted if it appeared to be necessary. 17. On 7 April 2000 the investigation in the case was reopened. 18. On 6 May 2000 the applicant was again charged with exceeding the limits of necessary defence which resulted in killing two persons and in inflicting grievous bodily harm on two others.", "19. On 6 May 2000 the case was referred to the Kominternovskiy District Court of Kharkiv. 20. On 18 May 2000 a judge of the Kominternovskiy District Court of Kharkiv remitted the case for additional investigation on the ground that the investigative authorities had failed to comply with the requirements contained in the ruling of 26 November 1999. 21.", "On 30 May 2000 the investigation in the case was officially renewed. 22. On the same day the Kharkiv City Prosecutor set a term for additional investigation until 30 June 2000 and extended the applicant’s detention on remand until the same date. 23. On 7 June 2000 the investigator of the Kharkiv City Prosecutor’s Office instituted criminal proceedings against the applicant charging him with two counts of murder and two counts of attempted murder.", "24. On 20 June 2000 the same investigator re-qualified the charges against the applicant and instituted criminal proceedings against him on two counts of murder connected to the victims’ performance of their public duty to prevent a crime; and two counts of an attempted murder connected to the victims’ performance of their public duty to prevent a crime. 25. On 20 June 2000 the same investigator instituted criminal proceedings against the applicant for extremely malicious hooliganism. 26.", "On the same day the above criminal proceedings against the applicant were joined. 27. On 29 June 2000 the applicant was officially charged with the above offences. 28. On the same day the pre-trial investigation was completed.", "29. On 3 August 2000 the applicant consulted the case-file. 30. On 4 August 2000 the bill of indictment was completed and the case was referred to the Kharkiv Regional Court. 31.", "On 17 May 2001 the Kharkiv Regional Court found that the applicant had intentionally killed Mr R. and Mr Sh. and attempted to kill Mr S. and Mr Sch. following a quarrel in the pub. Therefore, the court convicted the applicant of two counts of murder and two counts of attempted murder and sentenced him to fifteen years’ imprisonment. 32.", "On 18 December 2001 the Supreme Court upheld the judgment. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 33. 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 ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 34. The Government contested that argument.", "35. The applicant was arrested on 8 June 1997. The period to be taken into consideration began only on 11 September 1997, when the recognition by Ukraine of the right of individual petition took effect. However, in assessing the reasonability of the time that elapsed after that date, account must be taken of the state of proceedings at the time. 36.", "The period in question ended on 18 December 2001. It thus lasted four years and three months for the investigation and two levels of jurisdiction. A. Admissibility 37. 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 38. The Government submitted that the applicant’s criminal case had been complex. In particular, they stated that the domestic court had to consider thoroughly the applicant’s allegations that he had been acting in self-defence.", "According to the Government, the applicant had been responsible for several delays, in particular, by making demands for expert evidence and by lodging petitions. The Government finally submitted that the witnesses and the victims had also contributed to the length of proceedings. 39. The applicant disagreed. 40.", "The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). What is at stake for the applicant has also to be taken into consideration. In this respect the Court recalls that throughout the period under consideration the applicant was kept in custody – a fact which required particular diligence on the part of the authorities and courts dealing with the case to administer justice expeditiously (see Abdoella v. the Netherlands, 25 November 1992, § 24, Series A no. 248‑A).", "41. As regards the complexity of the case, the Court notes that the proceedings at issue concerned one episode which included two counts of murder and two counts of attempted murder, and required the questioning of fifteen witnesses, conducting several simple forensic examinations and a reconstruction of events. The applicant was the only accused in this case. Therefore it could not be said that the proceedings were so complex as to justify their length. 42.", "As regards the conduct of the parties, the Court finds that a major delay was caused by the remittal of the case from the Kyivskiy District Court of Kharkiv to the Kominternovskiy District Court of Kharkiv for examination on the merits, and by the repetitive remittals of the case for additional investigation (see paragraphs 11, 12, 16, 20 above). It reiterates that a repetitive re-examination of the case within one set of proceedings can disclose a serious deficiency in the domestic judicial system (see Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003). Although the Court has previously rejected some cases concerning repeated remittals, having observed that the judicial authorities had acted diligently in handling a complex matter (see, for example, Zhurba v. Ukraine (dec.), no. 11215/03, 19 June 2007, and Bespalov v. Ukraine (dec.), no.", "11484/05, 15 January 2008), it cannot find a similar justification for remittals in the present case. 43. Having regard to the information in its possession and its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 44. There has accordingly been a breach of Article 6 § 1 II APPLICATION OF ARTICLE 41 OF THE CONVENTION 45.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 46. The applicant claimed UAH 11,365 Ukrainian hryvnas (UAH, approximately EUR 1,557) and sought a new apartment in respect of pecuniary damage. He also claimed 700,000 euros (EUR) in respect of non-pecuniary damage. 47.", "The Government contested these claims. 48. 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 800 EUR under that head.", "B. Costs and expenses 49. The applicant also claimed UAH 274.10 (approximately 40 EUR) for the costs and expenses. 50. The Government agreed to pay the applicant UAH 209.86.", "51. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. 52. 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 EUR 40 for costs and expenses. C. Default interest 53.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the remainder of the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 800 (eight hundred euros) in respect of non-pecuniary damage and EUR 40 (forty euros) in respect of costs and expenses, to be converted into the national currency of Ukraine at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 18 December 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekRait MarusteRegistrarPresident" ]

[ "FOURTH SECTION CASE OF JAŁOWIECKI v. POLAND (Application no. 34030/07) JUDGMENT STRASBOURG 17 February 2009 FINAL 17/05/2009 This judgment may be subject to editorial revision. In the case of Jałowiecki v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Ljiljana Mijović,David Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä,Mihai Poalelungi, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 27 January 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 34030/07) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Stanisław Jałowiecki (“the applicant”), on 3 August 2007.", "2. The applicant was represented by Ms I. Kornaś-Pierzak, a lawyer practising in Cracow. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3. The applicant alleged, inter alia, that the lustration proceedings in his case had been unfair, in violation of Article 6 of the Convention.", "4. On 25 February 2008 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1946 and lives in Stronie Śląskie. 6. On 3 August 1997 the Law of 11 April 1997 on disclosing work for or service in the State’s security services or collaboration with them between 1944 and 1990 by persons exercising public functions (ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 1944-1990 osób pełniących funkcje publiczne) (the “1997 Lustration Act”) entered into force. 7. On 14 April 2004 the applicant, a candidate for the European Parliament, declared that he had not collaborated with the communist-era secret services.", "He was subsequently elected as a Member of the European Parliament. 8. On 9 December 2004 the Warsaw Court of Appeal (Sąd Apelacyjny) decided to institute lustration proceedings against the applicant following a request made by the Commissioner of the Public Interest (Rzecznik Interesu Publicznego) on the grounds that the applicant had lied in his lustration declaration by denying that he had cooperated with the secret services. 9. On 17 February 2006 the Warsaw Court of Appeal, acting as the first‑instance lustration court, found that the applicant had submitted an untrue lustration declaration since he had been an intentional and secret collaborator with the State’s secret services.", "The court established that the applicant had met on probably two occasions in 1973 with agents of the secret services and had agreed to help them as a consultant. 10. The applicant appealed against the decision. He submitted that he had never collaborated with the secret services and the meeting in question had been in connection with the preparation of an article. The applicant also referred to his subsequent activity in the “Solidarność” movement for which he had been persecuted and detained by the communist authorities.", "Subsequently, he was allowed to leave Poland and between 1985 and 1994 he was a deputy of the Polish Section of Radio Free Europe in Munich. 11. On 6 June 2006 the Warsaw Court of Appeal, acting as the second‑instance lustration court, upheld the impugned judgment. 12. On 1 February 2007 the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal.", "That decision was notified to the applicant on 8 March 2007. II. RELEVANT DOMESTIC LAW 13. A detailed rendition of the provisions of the relevant domestic law is set out in the Court’s judgment in the case of Matyjek v. Poland, no. 38184/03, ECHR 2007‑...", "THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTION A. The parties’ submissions 14. The Government submitted that the applicant had not exhausted all relevant domestic remedies as required under Article 35 § 1 of the Convention. They argued that neither at the appellate nor at the cassation stage had the applicant alleged, even in substance, any infringement of his right to a fair hearing as presented in his subsequent complaint to the Court.", "In particular, the applicant had not questioned the alleged restrictions on his access to the case file and on taking notes from it. Nor had he complained that he could not present his arguments in accordance with the principles of an adversarial hearing and equality of arms. 15. The Government further argued that the applicant had failed to lodge a constitutional complaint with the Constitutional Court. Had the applicant been of the opinion that the legal provisions on which the courts had based their decisions or their interpretation – namely Article 156 § 4 of the Code of Criminal Procedure in conjunction with section 52 § 2 of the Lustration Act – had breached his rights, in particular his right to a fair hearing enshrined in Article 45 of the Constitution, he should have lodged a constitutional complaint.", "In particular, the applicant should have requested the Constitutional Court to examine whether the rules imposed by those provisions had violated his right to a fair trial. 16. The Government further submitted that the application had been lodged outside the time-limit of six months as the final decision in the applicant’s case had been given on 1 February 2007 while he had lodged his application with the Court on 3 August 2007. 17. The applicant disagreed.", "He submitted that the rules governing access to the case file and the manner in which the lustration proceedings had been conducted could not have been effectively challenged in an appeal or cassation appeal as they were provided for by the domestic law. As regards the constitutional complaint, he submitted that it had been an extraordinary remedy which he had not been obliged to exhaust. Finally, he submitted that the decision of 1 February 2007 had been notified to him on 8 March 2007, and that he had lodged his application with the Court within less than six months from that date. The applicant provided a copy of an envelope from the Supreme Court, and a delivery receipt, confirming that the reasoned decision of the Supreme Court of 1 February 2007 had been notified to him on 8 March 2007. B.", "The Court’s assessment 18. The Court firstly observes that it has already found that Article 6 of the Convention under its criminal head applied to lustration proceedings (see, Matyjek v. Poland (dec.), no. 38184/03, ECHR 2006‑... and Bobek v. Poland (dec.), no. 68761/01, 24 October 2006). 19.", "The Court also considers that the question of whether the applicant could effectively challenge the set of legal rules governing access to the case file and setting out the features of the lustration proceedings is linked to the Court’s assessment of Poland’s compliance with the requirements of a “fair trial” under Article 6 § 1 of the Convention (see Matyjek v. Poland, cited above, § 42, Luboch v. Poland, no. 37469/05, § 46, 15 January 2008). 20. The Court accordingly joins the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies to the merits of the case. 21.", "The Court further notes that the Government alleged that the applicant had introduced his application out of time and that it should be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. However, the Court observes that it appears from the documents provided by the applicant that the Supreme Court’s decision of 1 February 2007 had been notified to him on 8 March 2007. The Court reiterates that where an applicant is entitled to be served ex officio with a written copy of the final domestic decision, the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the written judgment (see Worm v. Austria, § 33, 29 August 1997, Reports of Judgments and Decisions 1997-V). The applicant lodged his application with the Court on 3 August 2007 thus within less than six months from the date of notification. It could not be therefore said that the application was introduced out of time.", "The Government’s objection should be dismissed. 22. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 23. The applicant complained under Article 6 of the Convention that the lustration proceedings had been unfair. Article 6 of the Convention provides, in so far as relevant: “1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ...by [a] ... tribunal... 3.", "Everyone charged with a criminal offence has the following minimum rights: (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; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.” A. The applicant’s submissions 24. The applicant argued that the principle of equality of arms had not been respected in his case. He had been hindered in his access to the case file and thus could not defend himself properly against the allegations raised by the Commissioner of the Public Interest. Furthermore, he had been entirely deprived of a possibility to participate in the proceedings before the Commissioner and to access the case file prepared by him.", "He could not question the Commissioner’s decision to choose the documents to be considered as evidence against him. He also complained about his lustration trial, in particular, about the rules governing the consultation of the case file in the secret registry. He referred to the case of Matyjek v. Poland and complained that he could not freely consult confidential documents and had been prevented from removing any notes he had made in the secret registry. The applicant submitted that he had been placed at a significant disadvantage vis-à-vis the Commissioner who had had access to all documents and archives. 25.", "The applicant considered misleading the Government’s assessment that the evidence classified as secret had constituted only a minor part of his file. He submitted that some very important documents remained classified as secret and that he had a very limited access to them. These included the Militia’s files which had constituted the main evidence against the applicant, receipts that he had accepted the money, the documents in which he had allegedly agreed to cooperate etc. Moreover, all the documents presented to the court by the Commissioner had been photocopies made from microfilms, which raised doubts as to their quality and genuineness. The applicant maintained that the classified evidence in his case covered documents produced by the former security services a long time ago which were no longer important for protecting the State’s interest.", "Their confidentiality, however severely curtailed the applicant’s rights of defence in the lustration proceedings. As a result, he could not challenge the version of events put forward by the Commissioner. B. The Government’s submissions 26. The Government argued that the applicant’s right to a fair trial had been respected in the instant case.", "They submitted that part of the evidentiary material in the applicant’s case had been classified as “top secret” under the 1982 Protection of State Secrets Act. Afterwards, the State Security Bureau upheld the “secret” classification of those documents on the basis of the 1999 Protection of Classified Information Act. The classified character of those documents had influenced the course of the proceedings; however it had had no adverse effect on the fairness of the proceedings. Moreover, most of the evidence collected in the case file and the reasoning of the court judgments had not been classified. 27.", "The Government argued that under the 1999 Protection of Classified Information Act and Article 156 § 4 of the Code of Criminal Procedure, the evidence in the case, having been regarded as classified information, had been available to the parties only in the secret registry of the lustration court. They maintained that both parties to the proceedings, that is, the applicant and the Commissioner of the Public Interest, had been subject to the same strict rules governing access to the file deposited in the secret registry, in particular those regarding the taking of notes. The notes from the case file had to be made in a special notebook which was subsequently placed in an envelope, sealed and deposited in the secret registry. 28. Furthermore, the Government observed that the need to protect the public interest may justify withholding certain evidence from the defence in criminal proceedings (Edwards and Lewis v. the United Kingdom, nos.", "39647/98 and 40461/98, § 53, 22 July 2003). However, they underlined that in the present case all evidence had been disclosed to the applicant. The only difficulty had been related to the classified nature of the evidence which had resulted in the application of particular arrangements as far as access to the case file had been concerned. 29. The Government concluded that there had been no violation of Article 6 § 1 in the present case.", "C. The Court’s assessment 30. The Court firstly reiterates that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set forth in general in paragraph 1. For this reason it considers it appropriate to examine the applicant’s complaint under the two provisions taken together (see Edwards v. the United Kingdom, judgment of 16 December 1992, Series A no. 247‑B, p. 34, § 33). 31.", "According to the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis‑à‑vis his opponent (see, for example, Jespers v. Belgium, no. 8403/78, Commission decision of 15 October 1980, Decisions and Reports (DR) 27, p. 61; Foucher v. France, judgment of 18 March 1997, Reports of Judgments and Decisions 1997‑II, § 34; and Bulut v. Austria, judgment of 22 February 1996, Reports 1996‑II, p. 380-81, § 47). The Court further reiterates that in order to ensure that the accused receives a fair trial any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (see Doorson v. the Netherlands, judgment of 26 March 1996, Reports 1996‑II, p. 471, § 72, and Van Mechelen and Others v. the Netherlands, judgment of 23 April 1997, Reports 1997‑III, p. 712, § 54). 32. The Court had already dealt with the issue of lustration proceedings in the Turek v. Slovakia case (no.", "57986/00, § 115, ECHR 2006‑... (extracts)) and in Ādamsons v. Latvia (no. 3669/03, 24 June 2008). In the Turek case the Court held in particular that, unless the contrary is shown on the facts of a specific case, it cannot be assumed that there remains a continuing and actual public interest in imposing limitations on access to materials classified as confidential under former regimes. This is because lustration proceedings are, by their very nature, oriented towards the establishment of facts dating back to the communist era and are not directly linked to the current functions and operations of the security services. Lustration proceedings inevitably depend on the examination of documents relating to the operations of the former communist security agencies.", "If the party to whom the classified materials relate is denied access to all or most of the materials in question, his or her possibilities of contradicting the security agency’s version of the facts will be severely curtailed. Those considerations remain relevant to the instant case despite some differences with the lustration proceedings in Poland (see Matyjek, cited above, § 56) 33. Turning to the instant case, the Court observes firstly that the Government have pointed to the series of successive laws on the basis of which the communist-era security services’ materials continued to be regarded as a State secret. Thus, at least part of the documents relating to the applicant’s lustration case had been classified as “top secret”. The Court has considered the powers vested in the Head of the State Security Bureau, in particular to uphold or lift the confidentiality rating, inconsistent with the fairness of lustration proceedings, including with the principle of equality of arms (see Matyjek, cited above, § 57).", "34. Secondly, the Court notes that, at the pre-trial stage, the Commissioner of the Public Interest had a right of access, in the secret registry of his office or of the Institute of National Remembrance, to all materials relating to the lustrated person created by the former security services. After the institution of the lustration proceeding, the applicant could also access his court file. However, pursuant to Article 156 of the Code of Criminal Procedure and section 52 (2) of the 1999 Protection of Classified Information Act, no copies could be made of materials contained in the court file and confidential documents could be consulted only in the secret registry of the lustration court. Furthermore, it has not been disputed by the parties that, when consulting his case file, the applicant had been authorised to make notes.", "However, any notes he took could be made only in special notebooks that were subsequently sealed and deposited in the secret registry. The notebooks could not be removed from this registry and could be opened only by the person who had made them (see Matyjek, cited above, § 58). 35. The Court reiterates that the accused’s effective participation in his criminal trial must equally include the right to compile notes in order to facilitate the conduct of his defence, irrespective of whether or not he is represented by counsel (see Pullicino v. Malta (dec.), no 45441/99, 15 June 2000 and Matyjek, cited above, § 59). The fact that the applicant could not remove his own notes, taken in the secret registry, in order to show them to an expert or to use them for any other purpose, effectively prevented him from using the information contained in them as he had to rely solely on his memory.", "Regard being had to what was at stake for the applicant in the lustration proceedings - not only his good name but also a ban on being a Member of Parliament or holding public office for 10 years - the Court considers that it was important for him to have unrestricted access to those files and unrestricted use of any notes he made, including, if necessary, the possibility of obtaining copies of relevant documents (see Foucher, cited above, § 36). 36. Thirdly, the Court is not persuaded by the Government’s argument that at the trial stage the same limitations as regards access to confidential documents applied to the Commissioner of the Public Interest. Under the domestic law, the Commissioner, who was a public body, had been vested with powers identical to those of a public prosecutor. Under section 17(e) of the Lustration Act, the Commissioner of the Public Interest had a right of access to full documentation relating to the lustrated person created by, inter alia, the former security services.", "If necessary, he could hear witnesses and order expert opinions. The Commissioner also had at his disposal a secret registry with staff who obtained official clearance allowing them access to documents considered to be State secrets and were employed to analyse lustration declarations in the light of the existing documents and to prepare the case file for the lustration trial. 37. The Court has held that lustration measures are by their nature temporary and the necessity to continue such proceedings diminishes with time (see Ādamsons, cited above, § 116). It has been recognised by the Court that at the end of the 1990s the State had an interest in carrying out lustration in respect of persons holding the most important public functions.", "The Court has also accepted that a similar interest was still legitimate at the beginning of the current decade, at least in respect of parliamentary elections (see Chodynicki v. Poland (dec.), no 17625/05, 2 September 2008). However, it reiterates that if a State adopts lustration measures, it must ensure that the persons affected thereby enjoy all procedural guarantees under the Convention in respect of any proceedings relating to the application of such measures (see Turek, cited above, § 115, Matyjek, cited above, § 62 and Ādamsons, cited above, § 116). The Court accepts that there may be a situation in which there is a compelling State interest in maintaining secrecy of some documents, even those produced under the former regime. Nevertheless, such a situation will only arise exceptionally given the considerable time that has elapsed since the documents were created. It is for the Government to prove the existence of such an interest in the particular case because what is accepted as an exception must not become a norm.", "The Court considers that a system under which the outcome of lustration trials depends to a considerable extent on the reconstruction of the actions of the former secret services, while most of the relevant materials remains classified as secret and the decision to maintain the confidentiality is left within the powers of the current secret services, creates a situation in which the lustrated person’s position is put at a clear disadvantage. 38. In the light of the above, the Court considers that due to the confidentiality of the documents and the limitations on access to the case file by the lustrated person, as well as the privileged position of the Commissioner of the Public Interest in the lustration proceedings, the applicant’s ability to prove that the contacts he had had with the communist‑era secret services did not amount to “intentional and secret collaboration” within the meaning of the Lustration Act were severely curtailed. Regard being had to the particular context of the lustration proceedings, and to the cumulative application of those rules, the Court considers that they placed an unrealistic burden on the applicant in practice and did not respect the principle of equality of arms. 39.", "It remains to be ascertained whether the applicant could have successfully challenged the features of the lustration proceedings in his appeal and cassation appeal. Given the Government’s assertion that the rules on access to the materials classified as secret were regulated by the successive laws on State secrets and Article 156 of the Code of the Criminal Procedure and that those legal provisions were complied with in this case, the Court is not persuaded that the applicant, in his appeals or cassation appeals, could have successfully challenged the domestic law in force. In so far as the Government rely on the constitutional complaint, the Court points, firstly, to the fact that the Lustration Act had on several occasions been unsuccessfully challenged before the Constitutional Court (see Matyjek v. Poland (dec.), cited above). Moreover, the Court has held that a constitutional complaint was an effective remedy for the purposes of Article 35 § 1 of the Convention only in situations where the alleged violation of the Convention resulted from the direct application of a legal provision considered by the complainant to be unconstitutional (see, Szott-Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003; Pachla v. Poland (dec.), no.", "8812/02, 8 November 2005). In this connection, the Court observes that the breach of the Convention complained of in the present case cannot be said to have originated from any single legal provision or even from a well‑defined set of provisions. It rather resulted from the way in which the relevant laws were applied to the applicant’s case and, in particular, Article 156 § 4 of the Code of Criminal Procedure, allowing the President of the Lustration Court to limit the applicant’s access to the case file and his possibilities of taking notes and copying documents (see Bobek, cited above, § 73 and Luboch, cited above, § 71). In that connection the Court points to the established case-law of the Constitutional Court, according to which constitutional complaints based solely on the allegedly wrongful interpretation of a legal provision are excluded from its jurisdiction (see Palusiński v. Poland (dec.), cited above). The Government did not refer to any other domestic remedy which could have offered reasonable prospects of success in this case.", "40. It follows that it has not been shown that the applicant had an effective remedy at his disposal under domestic law by which to challenge the legal framework setting out the features of lustration proceedings. Consequently, the Government’s objection as to the exhaustion of domestic remedies should be rejected. 41. In these circumstances the Court concludes that the lustration proceedings against the applicant, taken as a whole, cannot be considered as fair within the meaning of Article 6 § 1 of the Convention taken together with Article 6 § 3.", "There has accordingly been a breach of those provisions. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 42. Lastly, the applicant alleged that the Lustration Act had violated Article 7 of the Convention in that the definitions employed by it had been ambiguous. He complained about a violation of Article 8 of the Convention in that the Lustration Act had required him to self-assess his moral and ethical conduct from a few decades ago.", "The applicant also submitted that the fact that decision-making in the lustration proceedings had been vested in specially established courts had given rise to a breach of Article 2 of Protocol No. 7 to the Convention. 43. The Court has examined the remainder of the complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicant has failed to substantiate his complaints (see Chodynicki v. Poland (dec), no.", "17625/05 , 2 September 2008 and Luboch, cited above, § 79). It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. IV. 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 50,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. 46. The Government contested the claim in respect of pecuniary damage. If the Court were to find a violation in the present case, they invited the Court to rule that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.", "47. The Court does not discern any causal link between the violation found and the pecuniary damage alleged. It is not for the Court to speculate on what might have been the outcome of the proceedings had they complied with the fairness requirements of Article 6 (Jalloh v. Germany [GC], no. 54810/00, § 128, ECHR 2006-...). It therefore rejects this claim.", "The Court also considers that in the particular circumstances of the case the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage which may have been sustained by the applicant (see, Matyjek, cited above, § 69). B. Costs and expenses 48. The applicant also claimed 17,400 Polish zlotys (PLN) (approximately EUR 4,600) for the costs and expenses incurred before the domestic courts and PLN 13,300 (approximately EUR 3,500) for those incurred before the Court. As regards the first amount, it included court fees for the cassation and appeal proceedings in the amount of PLN 1,681 and PLN 750 respectively and PLN 15,000 for the costs of legal representation of the applicant before the domestic courts at three instances as documented by the copies of invoices.", "With respect to the costs of the proceedings before the Court the applicant’s lawyer provided copies of invoices for the costs of legal representation, travel and translation. 49. The Government considered that these claims were excessive. 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 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 3,000 covering costs under all heads. 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. Joins to the merits the Government’s preliminary objection concerning non-exhaustion of domestic remedies; 2.", "Declares the complaint under Article 6 of the Convention regarding the unfairness of the proceedings admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3 and dismisses, in consequence, the Government’s preliminary objection; 4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained; 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 to the applicant, in respect of costs and expenses, to be converted into Polish zlotys at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 17 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident" ]

[ "THIRD SECTION CASE OF SILVESTRU v. THE REPUBLIC OF MOLDOVA (Application no. 28173/10) JUDGMENT STRASBOURG 13 January 2015 FINAL 13/04/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Silvestru v. the Republic of Moldova, 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 9 December 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "28173/10) 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 Sergiu Silvestru (“the applicant”), on 14 May 2010. 2. The applicant was represented by Ms P. Copacinschi, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol. 3.", "The applicant alleged a breach of his rights guaranteed by Article 3 of the Convention on account of his detention in inhuman and degrading conditions. 4. On 7 October 2013 his complaint concerning conditions of detention was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1985 and lives in Chişinău. 6. In April 2008 the applicant was arrested and placed in detention on suspicion of aggravated rape and ill-treatment of a young woman. 7. On 29 December 2009 the applicant was found guilty as charged and sentenced to twelve years’ imprisonment.", "8. In the meantime, between 30 April 2008 and 6 September 2010 the applicant was detained in Prison no. 13 in Chisinau where, according to him, the conditions of detention were very poor. In particular, the applicant alleges that the cells were overcrowded and dirty, that the food was of very poor quality, and that he was not provided with appropriate medical care. II.", "RELEVANT MATERIALS 9. The relevant parts of the report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment concerning his visit to Moldova from 4 to 11 July 2008 (The United Nations Human Rights Council, document A/HRC/10/44/Add.3, 12 February 2009) read as follows: “B. Conditions in places of detention Institutions under the Ministry of Justice 30. Undoubtedly, progress has been achieved in improving conditions of detention. However, some of the institutions visited by the Special Rapporteur were heavily overcrowded.", "The authorities themselves pointed out that Institution No. 13 in Chişinău was severely overcrowded - on the day of the visit it held 931 persons with the official capacity being 600 (see also appendix). The Special Rapporteur was informed of Government plans to close down this institution. 31. Common problems at all pre- and post-trial prisons are the poor hygienic conditions, restricted access to health care and lack of medication as well as risk of contamination with tuberculosis and other diseases.", "Whereas the Special Rapporteur notes that the minimum norms regarding nutrition of detainees (Government Decision n. 609 of 29 May 2006) are checked on a daily basis and that, according to the financial plan of the Penitentiary Department, the food budget for 2008 had almost doubled in comparison to 2004 and is set to rise further, he also received consistent allegations regarding the poor quality and quantity of food ...” 10. In its report for 2009 (page 117 ­-“Conditions of detention”), the Centre for Human Rights in Moldova (“the Human Rights Centre”, which also acts as the Moldovan Ombudsman) found, inter alia, that: “Regarding personal hygiene, clothing and bedding, despite [the fact that] Government decision no. 609 (29 May 2006) concerning minimum daily food requirements and the issuing of items of personal hygiene provides for the issuing of soap to detainees for bathing and other sanitary-hygienic needs, this has remained unfulfilled during 2009.” 11. In its report for 2010 (page 142 et seq. - “Conditions of detention”) the Human Rights Centre found, inter alia, that: “Failure to adhere to the statutory cell size (4 square metres per person) in the living blocks of the institution has become an unpleasant problem which now affects the prison system across the entire country ...", "The same situation was confirmed during a visit to Chişinău Prison no. 13 in on 9 September 2010. In some cells the living space was not proportionate to the number of detainees. During the visit, eight detainees were being held in cell no. 38, which measured 24 square metres.", "This situation has been seen repeatedly during visits by the Centre’s staff to the Chişinău Pre-trial Detention Centre. Similar findings were made during visits to Rusca Prison no. 7 on 19 May 2010, where six detainees were being held in a cell measuring 15.5 square metres and to Cricova Prison no. 4, where (in living block no. 7) over twenty detainees were being held in a cell measuring 65 square metres.", "Overcrowding comes directly within the Ombudsman’s remit as part of the National Mechanism for the Prevention of Torture, which on many occasions has recognised overcrowding in the country’s prisons ... [T]he Prisons Department informed the Ombudsman that meat and fish products are provided [to detainees] whenever possible. At the same time, the authority stated that, owing to the difficult financial situation, during 2010 the detainees in Rezina Prison no. 17 received only 75% and 80% of their normal quotas of meat and fish products respectively. In this connection, the Minister of Justice provided information to the Ombudsman about the expenditure on prisoners’ food in 2010. The cost amounted to MDL 24.05 million, whereas the budgetary need for the same year was, according to the Ministry of Finance’s draft budget, MDL 29.05 million.", "The daily cost of feeding a detainee in 2010 was MDL 10.24, whilst the daily budgetary need was MDL 12.35. This statistic was often cited by prison authorities to justify why they were unable to provide detainees with meat and fish ... As regards sanitary conditions, lighting and ventilation problems continue to exist in the majority of living blocks in Moldovan prisons, with the exception of Taraclia Prisons no. 1 and Rusca Prison no. 7. The Republic of Moldova inherited old gulag-type prisons in dilapidated buildings, corresponding to former Soviet standards.", "The prisons do not conform to current national and international standards; however, the budget constraints upon the State do not allow for their reconstruction or renovation. In the prisons, with the exception of Taraclia Prison no. 1, detainees are held in large-capacity cells insufficiently equipped for their daily needs, namely areas for sleeping, for everyday living and for sanitary equipment. Detainees are held in extremely overcrowded, dark, damp and unventilated spaces full of cigarette smoke. In certain prisons the bunk beds essentially prevent daylight from reaching the living space.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 12. The applicant complained under Article 3 of the Convention about the conditions of his detention in Prison no. 13 and about the lack of medical assistance during his detention. Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 13. The Government submitted that the applicant had failed to exhaust domestic remedies in respect of his complaint about poor conditions of detention.", "They pointed to case-law of the Supreme Court which awarded compensation for poor conditions of detention to persons released from detention. 14. The applicant argued that he had no effective remedies in respect of his complaint under Article 3 of the Convention. 15. The Court reiterates that it has examined on numerous occasions the issue of domestic remedies in respect of poor conditions of detention in Moldova (see Holomiov v. Moldova, no.", "30649/05, §§ 101-107, 7 November 2006; Istratii and Others v. Moldova, nos. 8721/05, 8705/05 and 8742/05, § 38, 27 March 2007; Modarca v. Moldova, no. 14437/05, § 47, 10 May 2007; and Stepuleac v. Moldova, no. 8207/06, § 46, 6 November 2007), and has concluded on each occasion that the remedies suggested by the Government were ineffective in respect of individuals currently held in detention, because they offered no opportunity to put an end to the detention in inhuman and degrading conditions. In Malai v. Moldova (no.", "7101/06, §§ 42-46, 13 November 2008), it found a violation of Article 13 of the Convention on account of the lack of effective domestic remedies in respect of inhuman and degrading conditions of detention, concluding that “it has not been shown that effective remedies existed in respect of the applicant’s complaint under Article 3” concerning conditions of detention. Since the case-law of the Supreme Court relied upon by the Government is similar to the one cited by them in the above-mentioned cases, the Court sees no reason to depart from that finding in the present case. 16. The Court finds, therefore, that the complaint cannot be declared inadmissible for non-exhaustion of domestic remedies, and accordingly the Government’s objection must be dismissed. It also notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. 17. At the same time, the Court notes that the applicant failed to substantiate the other part of the complaint under Article 3 of the Convention, namely that he had not been provided with appropriate medical care during detention. Indeed, the applicant did not adduce any evidence that he was in need of any urgent medical care. Accordingly, the Court concludes that this part of the complaint under Article 3 of the Convention is manifestly ill-founded, and therefore inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention.", "B. Merits 18. The applicant submitted that the conditions of detention in Prison No. 13 between April 2008 and September 2010 amounted to inhuman and degrading treatment. 19.", "The Government submitted that the conditions of detention in Prison No. 13 did not amount to inhuman and degrading treatment, and argued that the conditions in that prison have considerably improved since the Court found them to be contrary to Article 3. 20. The Court reiterates the general principles concerning conditions of detention set out in Ostrovar v. Moldova (no. 35207/03, §§ 76‑79, 13 September 2005).", "21. The Court observes that in Hadji v. Moldova (nos. 32844/07 and 41378/07, § 20, 14 February 2012), it found a violation of Article 3 of the Convention in respect of the poor conditions of the applicant’s detention in Prison no. 13 between March 2007 and April 2008. The Court further notes that the Government adduced no evidence in support of their submission to the effect that considerable improvements in Prison No.", "13 had taken place in recent years. Against this background, the Court notes that the poor conditions of detention in the same detention facility were acknowledged in the years 2008, 2009 and 2010 by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment of the United Nations and by the Moldovan Ombudsman (see paragraphs 9-11 above). In such circumstances, the Court considers that there are no reasons to depart from the conclusions reached in Hadji. The Court thus considers that the hardship endured by the applicant during his detention between April 2008 and September 2010 went beyond the unavoidable level of hardship inherent in detention, and reached a threshold of severity contrary to Article 3 of the Convention. Accordingly, there has been a violation of that provision.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 22. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 23. The applicant claimed 8,000 euros (EUR) in respect of non-pecuniary damage suffered as a result of his detention in inhuman and degrading conditions.", "24. The Government submitted that amount claimed by the applicant was excessively high. 25. The Court considers it appropriate to award the applicant compensation in respect of non-pecuniary damage. Deciding on an equitable basis, the Court awards him EUR 5,500.", "B. Costs and expenses 26. The applicant also claimed EUR 700 for costs and expenses incurred before the Court. 27. The Government contested the amount claimed by the applicant and argued that it was excessive.", "28. 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 500. C. Default interest 29. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint under Article 3 of the Convention in respect of the applicant’s conditions of detention in Prison no. 13 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Moldovan lei at the rate applicable on the date of settlement: (i) EUR 5,500 (five thousand five 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, 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 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsJosep CasadevallRegistrarPresident" ]

[ "FIFTH SECTION CASE OF SLUKVINA v. UKRAINE (Application no. 9023/03) JUDGMENT STRASBOURG 21 December 2006 FINAL 26/03/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Slukvina v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: MrP. Lorenzen, President,MrK.", "Jungwiert,MrV. Butkevych,MrsM. Tsatsa-Nikolovska,MrJ. Borrego Borrego,MrsR. Jaeger,MrM.", "Villiger, judges,and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 27 November 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 9023/03) 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, Mrs Roza Polikarpovna Slukvina (“the applicant”), on 6 March 2003. 2. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs Z. Bortnovska, Mrs V. Lutkovska and Mr Y. Zaytsev.", "3. On 2 June 2004 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1936 and resides in the town of Novogrodivka, Donetsk region, Ukraine. 5. The applicant instituted proceedings in the Novogrodivskyy Town Court of Donetsk Region against the Novogrodivska Mining Company No. 1/3 (Шахта 1/3 «Новогродівська») - a State-owned enterprise - to recover salary arrears and other payments due to her late husband. 6.", "On 28 May 2001 the Novogrodivskyy Town Court found in favour of the applicant (Рішення Новогродівського міського суду Донецької області) and awarded her 23,741.84[1] Ukrainian hryvnias (“UAH”). The judgment was sent for enforcement to the Novogrodivskyy Town Bailiffs' Service (Відділ Державної виконавчої служби Новогродівського міського управління юстиції). 7. Subsequently, the applicant instituted proceedings in the Novogrodivskyy Town Court of the Donetsk Region against the Novogrodivskyy Town Bailiffs' Service for failure to enforce the judgment in her favour. On 20 December 2001 the Town Court rejected the applicant's claim, finding no fault had been committed by the Bailiffs' Service.", "The court stated that the Bailiffs' Service had acted properly in enforcing the judgment of 28 May 2001. However, by a number of decisions of the Commercial Court of the Donetsk Region, the Bailiffs' Service had been prohibited from selling the property of the Mining Company, due to the bankruptcy proceedings which had been initiated against the company. On 14 March 2002 the Supreme Court of Ukraine rejected the applicant's appeal in cassation. 8. In August 2002, the applicant instituted another set of proceedings in the Novogrodivskyy Town Court of the Donetsk Region against the Novogrodivskyy Town Bailiffs' Service for failure to enforce the judgment in her favour.", "On 10 October 2002 the Town Court rejected the applicant's claim, for the same reasons as before. On 16 December 2002 the Donetsk Regional Court of Appeal upheld the decision of the first instance court of 10 October 2002. On 22 October 2003 the Supreme Court of Ukraine rejected the applicant's appeal in cassation. 9. In February 2003 the Novogrodivska Mining Company was reorganised and became a structural subdivision of the Selidovugol Mining Company.", "As the latter thereby became the debtor, in February 2004 the enforcement proceedings were transferred to the Selidivskyy Town Bailiffs' Service (Відділ Державної виконавчої служби Селидівського міського управління юстиції). 10. The judgment in the applicant's favour was enforced by instalments, the last amount being paid on 31 August 2004. 11. The applicant instituted proceedings in the Selidivskyy Town Court of the Donetsk region against the Selidivskyy Town Bailiffs' Service claiming compensation for material and moral damage caused to her by the delay in the enforcement of the judgment in her favour.", "On 24 November 2004 the court found against the applicant. On 21 July 2005 the Donetsk Regional Court of Appeal upheld this judgment. The applicant appealed in cassation and the proceedings are still pending. II. RELEVANT DOMESTIC LAW 12.", "The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005). THE LAW I. SCOPE OF THE CASE 13. The Court notes that, after the communication of the case to the respondent Government, the applicant introduced a new complaint, alleging a violation of Article 13 of the Convention without any further specification.", "14. In the Court's view, the new complaint is not an elaboration of the applicant's original complaints, lodged with the Court approximately two years earlier, on which the parties have commented. The Court considers, therefore, that it is not appropriate now to take this matter up separately (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005). II.", "ADMISSIBILITY 15. The applicant complained about the lengthy non-enforcement of the judgment in her favour. She invoked Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. These Articles provide, insofar as relevant, as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.", "...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ....” 16. The Government raised an objection regarding the applicant's victim status similar to that which the Court has already dismissed (see Shmalko v. Ukraine, no.", "60750/00, §§ 30-34, 20 July 2004). The Court considers that the present objection must be rejected for the same reasons. 17. The Court concludes that the applicant's complaint under Article 6 § 1 of the Convention about the delay in the enforcement of the judgment of the Novogrodivskyy Town Court raises issues of fact and law under the Convention, the determination of which requires an examination of the merits. It finds no ground for declaring this complaint inadmissible.", "For the same reasons, the applicant's complaint under Article 1 of Protocol No. 1 cannot be declared inadmissible. III. MERITS 18. The Government maintained that the judgment in the applicant's favour was enforced in full.", "They further maintained that the responsibility of the State in this situation was limited to the organisation and proper conduct of enforcement proceedings and that the length of the enforcement proceedings had been caused by the critical financial situation of the debtor company and the energy sector of the Ukrainian economy in general. The Government contended that the Bailiffs' Service had performed all necessary actions and could not be blamed for the delay. The regularity of the enforcement proceedings in the present case was confirmed by the domestic courts. The Government argued that the State could not be considered responsible for the debts of its enterprises and that the State annually allocated substantial amounts from its budget to cover part of disability allowances and other compensatory payments to the workers in the mining industry. 19.", "The applicant disagreed. 20. The Court notes that the judgment in the applicant's favour was not enforced for more than three years and three months. 21. The Court recalls that it has already found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1 in cases like the present application (see, Sokur v. Ukraine, cited above, §§ 30-37; Shmalko v. Ukraine, cited above, §§ 55-57). 22. Having examined all the materials submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. 23. There has, accordingly, been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No.", "1. 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 applicant claimed EUR 2,001 in respect of pecuniary damage and EUR 6,000 in respect of non-pecuniary damage. 26. The Government maintained that the applicant had not substantiated her claims. 27. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.", "However, the Court considers that the applicant must have sustained non‑pecuniary damage, and, deciding on an equitable basis, awards her EUR 800 in this respect. B. Costs and expenses 28. The applicant did not submit any claim under this head within the set time-limit; the Court therefore makes no award in this respect. C. Default interest 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 1 of Protocol No.", "1 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 800 (eight hundred euros) in respect of non-pecuniary damage plus any tax that may be chargeable; (b) that the above amount shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 21 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident [1] At the material time around 3,774.14 euros (EUR)" ]

[ "FIRST SECTION CASE OF KLYUKIN v. RUSSIA (Application no. 54996/07) JUDGMENT STRASBOURG 17 October 2013 FINAL 17/02/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Klyukin v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Linos-Alexandre Sicilianos,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 24 September 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "54996/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Aleksandr Lemarkovich Klyukin (“the applicant”), on 30 October 2007. The applicant complained about the conditions of his detention in remand prison no. IZ-77/3 in Moscow and correctional colony no. IK-5 in the Nizhniy Novgorod region. On 25 March 2008 he introduced similar complaints in respect of correctional colony no.", "IK-16 in the Nizhniy Novgorod region. On 12 January 2011 the applicant complained about the conditions of his detention in respect of his detention in the correctional colonies from 16 April 2008 to 27 November 2009. 2. The applicant was represented by Ms M. Samorodkina, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.", "3. The applicant alleged, in particular, that he had been detained in appalling conditions. 4. On 1 July 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1961 and lives in Moscow. A. Criminal proceedings against the applicant 6.", "On 16 April 2006 the applicant was arrested on suspicion of having committed a burglary together with K., his underage son, and S., also a minor. His flat was searched. He was brought to a temporary detention centre, where he was held until 18 or 19 April 2006 (the parties disputed the relevant date). He received very little food and water and did not have access to medical assistance. During that period he was questioned on several occasions in the absence of a lawyer and beaten up by police officers, who wanted him to confess.", "According to the applicant, his lawyer’s signature was later added to the transcript of his questioning. 7. On 18 April 2006 the Moscow Tushinskiy District Court authorised the applicant’s pre-trial detention. In particular, the court noted as follows: “Pursuant to the materials submitted, [the applicant] is charged with criminal offences entailing a custodial sentence exceeding five years, he is not officially employed and, if released, might abscond. Furthermore, the court discerns no grounds rendering possible the imposition of a less strict restrictive measure.” 8.", "The applicant remained in custody pending investigation and trial. The District Court extended his detention on 14 June and 29 November 2006 and 27 February 2007. The applicant did not appeal against those decisions. 9. On 14 June 2006 the District Court opened the trial.", "The applicant was represented by State-appointed counsel. 10. On 12 March 2007 the District Court found the applicant guilty as charged and sentenced him to five-and-a-half years’ imprisonment. On 14 May 2007 the Moscow City Court upheld the applicant’s conviction on appeal. B.", "Conditions of the applicant’s detention 1. Remand prison no. IZ-77/3 in Moscow 11. From 18 or 19 April 2006 to 13 June 2007, the applicant was detained at remand prison no. IZ-77/3 in Moscow.", "(a) The description provided by the Government 12. The Government’s submissions as regards the conditions of the applicant’s detention in remand prison no. IZ-77/3 can be summarised as follows: Period of detention Cell no. Cell surface area (square metres) Number of beds Number of inmates From 19 April 2006 to 17 February 2007 411 32.4 12 12 From 17 February to 16 March 2007 401 32.4 12 12 From 16 March to 11 April 2007 704 36.3 9 5-6 From 11 to 25 April 2007 411 32.4 12 12 From 16 May to 13 June 2007 309 32.4 12 9-12 13. All the cells were equipped with a ventilation system ensuring adequate fresh air circulation.", "Each cell had two windows measuring 0.89 x 0.94 metres covered with metal grilles that had 50 x 50 millimetres openings. The grilles installed did not prevent access to natural light. The windows had small vents which could also be kept open to ensure access to fresh air. The electric lighting was constantly on. From 6 a.m. to 10 p.m. four 40-watt electric bulbs were used.", "For the rest of the time two 40-watt electric bulbs were used. 14. The toilet in each cell was separated from the living area by a 1.7‑metre high brick wall and a door. The distance between the toilet and the dining table was 2 metres. There was a sink with hot and cold running tap water.", "15. The inmates were allowed at least an hour’s daily outdoor exercise in designated exercise areas measuring 33 square metres on average. The exercise areas were covered with steel mesh, with openings measuring 20 x 20 centimetres. The mesh did not prevent access to natural light or fresh air. (b) The applicant’s submissions 16.", "The applicant accepted the Government’s submissions in part concerning cell measurements and the number of sleeping places. He challenged the data submitted by the Government as regards cell population. According to the applicant, at all times the cells were severely overcrowded. The number of inmates was two to three times as high as the cells’ design capacity. The number of sleeping places was insufficient and the inmates had to take turns to sleep.", "In particular, in cells nos. 401 and 411 there were from 30 to 50 inmates detained together with the applicant; cell no. 704 housed from 5 to 20 inmates. The applicant did not contest the information submitted by the Government in respect of the number of inmates detained in cell no. 309.", "17. There was no ventilation system in any of the cells. The electric lighting was insufficient. The glass panes were missing from the windows and it was extremely cold in the winter and extremely hot in the summer. The windows were covered with several layers of metal grilles and bars which prevented access to natural light.", "Nor was there running hot water. 18. The applicant was allowed outdoor daily exercise in the specially designated areas only during the period of his detention in cell no. 309, in other words from 16 May to 13 June 2007. For the rest of the time he was taken outdoors to a semi-circular area measuring from 20 to 25 square metres.", "However, in view of the large number of inmates brought to that area, it was impossible to exercise or walk around. The applicant did not have winter clothes and was not allowed to exercise outdoors during the winter. 19. In cells nos. 401 and 411 the toilet was not separated from the living area of the cell.", "The cells were infested with lice, bed bugs and other insects. The toilet was foul smelling. No bed linen was provided. The only mattresses provided were dirty, covered with blood stains and infested with lice. Sometimes detainees suffering from tuberculosis, hepatitis and AIDS were placed in the cell.", "The food was of a very low quality. The library was closed. Nor were the inmates provided with board games. 20. From 24 April to 16 May 2007 the applicant was admitted to the hospital at remand prison no.", "IZ-77/1 in Moscow. He claimed that he did not receive proper medical assistance there. 2. Conditions of the applicant’s detention after conviction 21. The time frame of the applicant’s detention in correctional colonies nos.", "IK-5 and IK-16 in the Nizhniy Novgorod region where the applicant served a prison sentence can be presented as follows: Period Detention facility From 27 June to 5 September 2007 Correctional colony no. IK-16, block 2 From 5 September to 7 November 2007 Hospital at correctional colony no. IK-5 From 7 November 2007 to 16 April 2008 Correctional colony no. IK-16, block 2 From 16 April to 2 July 2008 Hospital at correctional colony no. IK-5 From 2 July 2008 to 27 November 2009 Correctional colony no.", "IK-16, block 1 (a) Correctional colony no. IK-5 in the Nizhniy Novgorod region (i) The description provided by the Government 22. According to the Government, from 5 to 9 September 2007 the applicant was held in the colony’s hospital, in ward no. 2 measuring 23.3 square metres and equipped with eight beds. From 10 September to 7 November 2007 and from 16 April 2008 to 2 July 2008 the applicant was held in ward no.", "3 measuring 23.3 square metres and equipped with ten beds. The Government did not specify the number of inmates detained there. The wards were equipped with a ventilation system. The windows in the wards ensured adequate access to daylight. They were not covered with grilles or shutters.", "The electric lighting was adequate. The bathroom was located outside the ward. Both the hospital and the transit area of the correctional colony had outdoor exercise areas. (ii) The description provided by the applicant 23. According to the applicant, upon arrival to the hospital on 5 September 2007, he was placed in disciplinary cell no.", "2 measuring 20 sq. m. since there were no beds available in ordinary wards. The toilet was located some 1 metre away from the dining table. He was transferred to hospital ward no. 3 only on 10 September 2007.", "24. Disciplinary cell no. 2 was infested with insects and rats. The walls were dirty. The windows there were covered with metal grilles.", "The mattresses were dirty and covered with blood. No bedding was provided. It was impossible to sleep in those beds because of metal springs sticking out. The lighting there was insufficient. Ward no.", "3 was much cleaner than the disciplinary cell. There were no metal grilles on the windows. The lighting was sufficient. 25. The applicant was provided with an individual bed at all times.", "The food was scarce and of a very low quality. During the night the applicant was unable to sleep because of hunger. He spent nights in the bathroom reading the bible. The bathroom was in a satisfactory condition. The number of inmates detained together with the applicant sometimes was twice as high as the number indicated by the Government.", "The applicant was not allowed any outdoor exercise. (b) Correctional colony no. IK-16 in the Nizhniy Novgorod region (i) The description provided by the Government 26. Without indicating specific time periods, the Government submitted the following information as regards the number of inmates detained together with the applicant in correctional colony no. IK-16 in the Nizhniy Novgorod region: Dormitory Surface area of the dormitory where the applicant was placed (square metres) Number of inmates/sleeping places in the dormitory where the applicant was placed Number of inmates/sleeping places per block Number of toilet cabins Number of wash sinks Exercise area (square metres) Block 2 196 120 179 5 10 274 Block 1 35 16 126 5 8 70 27.", "The living premises in the colony were equipped with a ventilation system. The inmates could also open vents in the windows to ensure access to fresh air. The windows were not covered with metal bars or grilles. The electric lighting in the dormitories was sufficient. The sanitary area in each unit was equipped with five toilets separated by one-metre high non-transparent screens.", "28. The inmates were able to partake in outdoor exercise in areas adjacent to blocks 1 and 2 measuring 70 and 274 square metres respectively. (ii) The description provided by the applicant 29. The applicant did not challenge the veracity of the Government’s submissions concerning the surface area of the dormitories in correctional colony no. IK-16 at the time of his detention there.", "He claimed, however, that the number of inmates assigned with him to the dormitories was much higher than the figures provided by the Government. According to the applicant, the beds in the dormitories were arranged in three-tier bunks offering very little personal space to the inmates. His bed was located near the window and he could read easily during the day time. In the evening, however, the electric light was insufficient for reading. The hygienic conditions of the dormitories were also poor due to the large number of detainees assigned to them.", "The dormitories were equipped with a ventilation system. The windows were not covered with metal grilles. The bathrooms located were in satisfactory conditions. The applicant had sufficient opportunity for an outdoor exercise. C. The applicant’s release 30.", "On 30 November 2009 the Lyskovo District Court in the Nizhniy Novgorod Region released the applicant on parole. The court noted, inter alia, that the applicant demonstrated his remorse for the crimes he had committed and regretted them. 31. The applicant appealed, claiming that he had never admitted that he had actually committed the crimes he had been convicted of and that the District Court had erred in stating the contrary in the decision of 30 November 2009. 32.", "The parties did not inform the Court of the outcome of the appeal proceedings. II. RELEVANT DOMESTIC LAW 33. Section 23 of the Detention of Suspects Act of 15 July 1995 provides that detainees should be kept in conditions which satisfy sanitary and hygiene requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries.", "Each inmate should have no less than four square metres of personal space in his or her cell. Moreover, detainees should be given, free of charge, sufficient food for the maintenance of good health in line with the standards established by the Government of the Russian Federation (section 22 of the Act). 34. Article 99 of the Russian Code on the Execution of Criminal Sentences of 8 January 1997, as amended, provides that the personal space allocated to each individual in a dormitory should be no less than two square metres. Inmates are to be provided with individual sleeping places, bed sheets, toiletries and seasonal clothes.", "THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 35. The applicant complained about the conditions of his pre-trial detention from 18 (in the Government’s submission, 19) April 2006 to 13 June 2007 at remand prison no. IZ-77/3 in Moscow; and during multiple periods between 27 June 2007 and 27 November 2009 in correctional colonies nos. IK-16 and IK-5 in the Nizhniy Novgorod region.", "He also complained of the lack of an effective domestic remedy in this respect. The Court will examine the complaints under 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 1. The parties’ submissions 36. The Government submitted that the applicant had failed to exhaust available domestic remedies. In particular, he had not brought a civil action seeking damages for the allegedly appalling conditions of his detention.", "Alternatively, he could have brought his complaints to the attention of a prosecutor. 37. The applicant asserted that he had lodged numerous complaints about the conditions of his detention before domestic prosecutors. All of them had been to no avail. Nor would a civil action for damages have been an effective remedy in respect of the alleged violation of Article 3 of the Convention.", "2. The Court’s assessment (a) Exhaustion of domestic remedies 38. As regards the Government’s objection that the applicant failed to exhaust effective domestic remedies in respect of his complaint about the conditions of his detention, the Court reiterates that in the case of Ananyev and Others v. Russia (nos. 42525/07 and 60800/08, §§ 93-119, 10 January 2012) the Court carried out a thorough analysis of domestic remedies in the Russian legal system in respect of a complaint relating to the material conditions of detention in a remand prison. The Court concluded in that case that it was not shown that the Russian legal system offered an effective remedy that could be used to prevent the alleged violation or its continuation and provide the applicant with adequate and sufficient redress in connection with a complaint of inadequate conditions of detention.", "Accordingly, the Court dismissed the Government’s objection as to the non‑exhaustion of domestic remedies and found that the applicants did not have at their disposal an effective domestic remedy for their grievances, in breach of Article 13 of the Convention. 39. The Court further observes that in an earlier case of Kulikov (see Kulikov v. Russia, no. 48562/06, § 31, 27 November 2012), it dismissed the Government’s objection as to the alleged non-exhaustion of domestic remedies by the applicant. The Court noted in Kulikov that the Government had failed to demonstrate the practical effectiveness of the applicant’s recourse to the domestic authorities in respect of his complaints about the conditions of his detention in a correctional colony.", "40. Having examined the Government’s arguments, the Court finds no reason to depart from that conclusion in the present case. Accordingly, the Court rejects the Government’s argument as to the exhaustion of domestic remedies. (b) Compliance with six-month rule 41. In the light of the Court’s finding (see paragraphs 38-40 above) that the Russian legal system offers no effective remedy providing adequate redress, the Court considers that the six months’ period should start running from the end of the situation complained of.", "(i) Severability of the applicant’s complaints 42. The Court notes from the outset that the applicant’s complaints concern the conditions of his detention in two different types of detention facility, notably in remand prison no. IZ-77/3 in Moscow and correctional colonies nos. IK-5 and IK-16 in the Nizhniy Novgorod region. He was detained in the remand prison pending investigation and trial.", "Once his conviction became final, the applicant was sent to serve a prison sentence in correctional colony no. IK-16. His detention there was not, however, continuous and comprised three distinct periods punctuated by his two transfers to correctional colony no. IK-5 where he underwent medical treatment (see paragraph 21 above). Accordingly, the Court’s task in the present case is to ascertain whether the applicant’s detention constituted a “continuing situation” or, if not, to decide on the admissibility of the applicant’s complaint in respect of each period of the applicant’s detention.", "43. In this connection, the Court observes that detention facilities of different types have different purposes and vary in the material conditions they offer (see, mutatis mutandis, Fetisov and Others v. Russia, nos. 43710/07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, § 76, 17 January 2012). Such a difference in material conditions creates the presumption that detention in detention facilities of different types does not constitute a continuing situation and the applicant is expected to submit a separate complaint in respect of the conditions of his or her detention in each detention facility. 44.", "The Court further observes that a significant change in the detention regime, even where it occurs within the same facility, has been held by the Court to put an end to the “continuing situation” as described above (see Fetisov, cited, above, §§ 77-78). 45. Regard being had to the above, the Court finds firstly, that the applicant’s detention in remand prison no. IZ-77/3 in Moscow and his detention in correctional colonies nos. IK-5 and IK-16 in the Nizhniy Novgorod region do not constitute a “continuing situation”.", "46. As regards the applicant’s detention in the correctional colonies, the Court notes as follows. During the first two periods of the applicant’s detention in correctional colony no. IK-16, the applicant was assigned to a dormitory in block 2. The applicant’s placement in a hospital in between those two periods, being of a temporary nature, does not prevent the Court from treating his detention during those two periods as a “continuing situation”.", "However, upon return to correctional colony no. IK-16 after the second admission to hospital, the applicant was assigned to block 1 where the conditions of his detention (number of inmates assigned to the dormitory, size of the dormitory and exercise area, capacity of sanitary facilities, etc.) different significantly from those in block 2 (see paragraphs 26-29 above). Accordingly, the third period of the applicant’s detention should be considered separately. 47.", "Lastly, the Court notes that the two periods of detention of the applicant’s in correctional colony no. IK-5 where he underwent medical treatment, as noted above, being of a temporary nature, did not constitute a continuing situation and the Court will examine them separately. 48. Accordingly, the Court will examine separately whether the applicant complied with the six-month rule in respect of each of the following periods: Period Detention facility From 27 June 2007 to 16 April 2008 Correctional colony no. IK-16, block 2 From 5 September to 7 November 2007 Hospital at correctional colony no.", "IK-5 From 16 April to 2 July 2008 Hospital at correctional colony no. IK-5 From 2 July 2008 to 27 November 2009 Correctional colony no. IK-16, block 1 (ii) Detention in remand prison no. IZ-77/3 in Moscow from 18 or 19 April 2006 to 13 June 2007 49. The applicant was required to introduce the complaint in respect of the conditions of his detention in remand prison no.", "IZ-77/3 in Moscow from 18 or 19 April 2006 to 13 June 2007 no later than 13 December 2007. The Court finds, accordingly, that by lodging the complaint on 30 October 2007 the applicant complied with the six-month rule in respect of this part of the application. (iii) Detention in correctional colony no. IK-16 in the Nizhniy Novgorod region 50. The Court considers that, by introducing the complaint on 25 March 2008 in respect of the detention in correctional colony no.", "IK‑16 in the Nizhniy Novgorod region between 27June 2007 and 16 April 2008 and on 30 October 2007 in respect of the detention in correctional colony no. IK-5 in the Nizhniy Novgorod region from 5 September to 7 November 2007, the applicant complied with the six-month rule. However, as regards the applicant’s detention in the same colonies during the period between 16 April 2008 and 27 November 2009, the applicant lodged the relevant complaints only 12 January 2011, that is more a year after his detention ended. It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. (iv) Conclusion 51.", "The Court notes that the complaints about conditions of the applicant’s detention in remand prison no. IZ-77/3 in Moscow from 18 (or 19) April 2006 to 13 June 2007, in correctional colony no. IK-16 in the Nizhniy Novgorod region between 27 June 2007 and 16 April 2008 and in correctional colony no. IK-5 in the Nizhniy Novgorod region from 5 September to 7 November 2007 are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds.", "They must therefore be declared admissible. B. Merits 1. Article 3 of the Convention (a) The parties’ submissions 52. The Government submitted that the conditions of the applicant’s detention in the remand prison had been compatible with the standards set forth in domestic legislation and the requirements of Article 3 of the Convention.", "They relied on excerpts (22 in total) from the remand prison population register which recorded, for each day, the number of sleeping places and the number of inmates in each cell, the total number of inmates in each of the seven wings of the remand prison and the total number of inmates in the entire remand prison, and on certificates prepared by the administration of the remand prison concerning its population in August 2010. As for the conditions of the applicant’s detention in the correctional colonies, the Government submitted statements prepared by the colonies’ administration. 53. The applicant challenged the veracity of the data submitted by the Government in respect of the remand prison population. In particular, he pointed out that the figures concerning the remand prison population contained visible corrections.", "In any event, he asserted that, if the Government’s allegations were accepted as credible, the personal space afforded to him during the periods of his detention in cells nos. 401 and 411 had been below three square metres, which fact alone had been found by the Court on many occasions as sufficient to find a violation of Article 3 of the Convention. As regards the correctional colonies, the applicant conceded that the conditions of his detention there had been better than the conditions of detention in the remand prison. Nevertheless, in view of insufficient personal space afforded to him and the scarcity and low quality of food there, he considered that those conditions had been incompatible with the standards set out in Article 3 of the Convention. (b) The Court’s assessment 54.", "For an overview of the general principles, see the Court’s judgment in the case of Ananyev and Others (cited above, §§ 139-159). (i) Conditions of detention in the remand prison 55. The Court observes that the parties have disputed certain aspects of the conditions of the applicant’s detention in remand prison no. IZ-77/3 in Moscow. However, there is no need for the Court to establish the veracity of each and every allegation.", "The focal issue for the Court in the present case is the personal space afforded to the applicant during his detention at the remand prison. 56. The Court reiterates that Convention proceedings, such as the present application, do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation) because in certain instances the respondent Government alone have access to information capable of corroborating or refuting the allegations made. A failure on a Government’s part to submit such information without a satisfactory explanation may give rise to the drawing of inferences as to the validity of the applicant’s allegations (see, among other authorities, Ahmet Özkan and Others v. Turkey, no. 21689/93, § 426, 6 April 2004).", "57. In support of their submissions as to the cell population and the availability of an individual sleeping place, the Government produced certificates issued by the administration of the remand prison in August 2010 and selected pages from the prison population register which recorded, for each day, the number of sleeping places and the number of inmates in each cell, the total number of inmates in each of the seven wings of the remand prison and the total number of inmates in the entire remand prison. 58. The certificates from the prison governor were issued in August 2010, long after the applicant had left the remand prison. The Court has repeatedly declined to accept the validity of similar certificates on the grounds that they could not be viewed as sufficiently reliable, given the lapse of time involved and the absence of any supporting documentary evidence (see, among other numerous authorities, Idalov v. Russia [GC], no.", "5826/03, §§ 99-100, 22 May 2012). The certificates are therefore of little evidentiary value for the Court. 59. Turning next to the copies of the prison population register produced by the Government, the Court notes, firstly, that the Government preferred to submit the copies of certain pages only, covering twenty-two days out of almost a year and four months that the applicant spent in the remand prison. It finds such incomplete and selective evidence unconvincing (see, for similar reasoning, Sudarkov v. Russia, no.", "3130/03, § 43, 10 July 2008, and Kokoshkina v. Russia, no. 2052/08, § 60, 28 May 2009). It further observes that on all the pages containing data in respect of the population of cells nos. 401 and 411 the entries showing the number of sleeping places and the number of inmates were visibly altered, with a figure having been erased and another figure having been written over instead. It is significant that on each page only the entries concerning the applicant’s cells were corrected, the entries in respect of the other cells remaining intact.", "The entries recording the total number of inmates in the applicant’s wing and the total number of inmates in the entire remand prison were also erased and changed. The Government did not indicate at what point and for what purpose the information in the register had been modified in such a way. The Court notes in this connection that it has already found that alterations in a prison population register, without any explanations as to their origin, reason and timing, made the information contained in it unreliable (see Glotov v. Russia, no. 41558/05, § 25, 10 May 2012). 60.", "Having regard to the above considerations, the Court considers that the Government have not substantiated their argument that the number of inmates in the applicant’s cells did not exceed the capacity they were designed for. Accordingly, the Court accepts the applicant’s submissions that the cells in remand prison no. IZ-77/3 in Moscow where he was detained were overcrowded. 61. The Court has frequently found a violation of Article 3 of the Convention on account of a lack of personal space afforded to detainees (see, among the leading authorities, Ananyev, cited above, § 166).", "62. Having regard to its case-law on the subject and the materials submitted by the parties, the Court reaches the same conclusion in the present case. The fact that the applicant was obliged to live, sleep and use the toilet in the same cell with so many other inmates was itself sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and arouse in him feelings of anguish and inferiority capable of humiliating and debasing him. 63. There has therefore been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in remand prison no.", "IZ-77/3 in Moscow from 18 or 19 April 2006 to 13 June 2007, which amounted to inhuman and degrading treatment within the meaning of that provision. (ii) Conditions of detention in the correctional colonies (α) Detention in correctional colony no. IK-16 in the Nizhniy Novgorod region between 27 June 2007 and 16 April 2008 64. The Court notes that the applicant challenged the information submitted by the Government as regards the personal space afforded to him in a dormitory during his detention in correctional colony no. IK-16 in the Nizhniy Novgorod region between 27 June 2007 and 16 April 2008.", "However, there is no need for the Court to establish the veracity of each and every allegation. It can find a violation of Article 3 of the Convention, even on the assumption that the information provided by the Government is correct. 65. The Court notes that, according to the Government, during the periods in question the applicant shared a dormitory measuring 196 square metres with 120 other persons. The personal space afforded to him amounted, accordingly, to 1.63 square metres.", "The Court does not lose sight of the fact that this figure is below the domestic statutory standard of 2 square metres for male convicts in correctional colonies (see paragraph 34 above). It also reiterates that this figure must be viewed in the context of the wide freedom of movement enjoyed by the applicant from the wake-up call in the morning to lights out at night, when he would have been able to move about a substantial part of the correctional colony, including the rest of the prison block and adjacent grounds of 274 square metres (compare Nurmagomedov v. Russia (dec.), no. 30138/02, 16 September 2004). Nevertheless, in the circumstances of the present case, the Court considers that the level of privacy available to the applicant was insufficient to comply with the standards set forth in Article 3 of the Convention. For over seven and a half months, during the night, the applicant was housed in a dormitory with at least 120 other persons where he was afforded only 1.63 square metres of personal space.", "Furthermore, in the Court’s view, the sanitary facilities available were not sufficient to accommodate the needs of the detainees. There were only ten wash basins and five toilets available for approximately 180 detainees living in the same block as the applicant (see paragraphs 21 and 26 above). 66. There has therefore been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in correctional colony no. IK-16 in the Nizhniy Novgorod region between 27 June 2007 and 16 April 2008, which it considers inhuman and degrading within the meaning of this provision.", "(β) Detention in a hospital at correctional colony no. IK-5 in the Nizhniy Novgorod region from 5 September to 7 November 2007 67. The Court observes that the applicant spent two months in a hospital at correctional colony no. IK-5 where, according to him, he had no opportunity for outdoor exercise and the food was scant and of poor quality. He also challenged the information provided by the Government as regards the personal space afforded to him and claimed that on certain occasions he had been afforded no more than 0.1 square metres.", "68. The Court further notes that the Government’s submissions were based on the statements made by the administration of the correctional colony prepared in 2010, that is almost three years after the applicant’s detention there. In this respect, the Court reiterates that it attaches little evidential value to such documents and cannot view them as sufficiently reliable (see, for example, Idalov, cited above, §§ 99-100). 69. Nevertheless, taking into account the cumulative effect of the conditions of the applicant’s detention and, in particular, the time-period during which he was detained in a hospital at correctional colony no.", "IK-5, the privacy he was afforded as regards the use of sanitary facilities and the fact that he could move freely within the hospital, the Court does not consider that the conditions of the applicant’s detention, although far from adequate, reached the threshold of severity required to characterise the treatment as inhuman or degrading within the meaning of Article 3 of the Convention (compare, Fetisov, cited above, § 138). Therefore, there has been no violation of this provision. (iii) Summary of the Court’s conclusions 70. Regard being had to the above findings, the Court considers that (1) there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in remand prison no. IZ-77/3 in Moscow from 18 or 19 April 2006 to 13 June 2007 and in correctional colony no.", "IK-16 in the Nizhniy Novgorod Region between 27 June 2007 and 16 April 2008; and (2) there has been no violation of the said provision on account of the conditions of the applicant’s detention in a hospital at correctional colony no. IK-5 in the Nizhniy Novgorod Region from 5 September to 7 November 2007. 2. Article 13 of the Convention 71. The Court takes note of its earlier findings (see paragraphs 38 and 40 above), and concludes that there has been a violation of Article 13 of the Convention on account of the lack of an effective remedy under domestic law enabling the applicant to complain about the conditions of his detention in remand prison no.", "IZ-77/3 in Moscow and correctional colony no. IK-16 in the Nizhniy Novgorod Region. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 72. Lastly, the applicant complained of ill-treatment in police custody, the unlawfulness and the length of his pre-trial detention, a search in his flat, the unfairness and the length of the criminal proceedings against him, and about the court’s reasoning underlying his release on parole and the destruction of one his letters addressed to the Court by an inmate.", "73. 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 being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 74.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 75. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage. 76. The Government considered the applicant’s claim excessive.", "77. The Court observes that for over two years the applicant was detained in appalling conditions in contravention of Articles 3 and 13 of the Convention. The Court considers that the applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation. However, the Court accepts the Government’s argument that the particular amount claimed appears excessive. Making its assessment on an equitable basis, it awards the applicant EUR 6,000, plus any tax that may be chargeable, in respect of non-pecuniary damage.", "B. Costs and expenses 78. The applicant did not submit any claims for costs and expenses. Accordingly, the Court makes no award under this head. C. Default interest 79.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints concerning the conditions of the applicant’s detention in remand prison no. IZ-77/3 in Moscow from 18 (or 19) April 2006 to 13 June 2007, in correctional colony no. IK-16 in the Nizhniy Novgorod Region between 27 June 2007 and 16 April 2008 and in a hospital at correctional colony no.", "IK-5 in the Nizhniy Novgorod region from 5 September to 7 November 2007 and the lack of an effective remedy in this respect admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in remand prison no. IZ-77/3 in Moscow from 18 (or 19) April 2006 to 13 June 2007 and correctional colony no. IK-16 in the Nizhniy Novgorod Region between 27 June 2007 and 16 April 2008; 3. Holds that there has been no violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in a hospital at correctional colony no.", "IK-5 in the Nizhniy Novgorod region from 5 September to 7 November 2007; 4. Holds that there has been a violation of Article 13 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 17 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "André WampachIsabelle Berro-Lefèvre Deputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF ALEXOV v. BULGARIA (Application no. 54578/00) JUDGMENT STRASBOURG 22 May 2008 FINAL 22/08/2008 This judgment may be subject to editorial revision. In the case of Alexov v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Snejana Botoucharova,Karel Jungwiert,Rait Maruste,Renate Jaeger,Mark Villiger,Isabelle Berro-Lefèvre, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 29 April 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 54578/00) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Dragomir Dimitrov Alexov (“the applicant”) who was born in 1966 and lives in Plovdiv, on 21 October 1999.", "2. The applicant, who had been granted legal aid, was represented by Mr V. Stoyanov, a lawyer practising in Pazardzhik. 3. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Kotzeva, of the Ministry of Justice. 4.", "The applicant alleged, in particular, (a) that he had been detained in inadequate conditions at the Pazardzhik Regional Investigation Service detention facility, the Pazardzhik Prison and the Montana Regional Investigation Service detention facility and that he had no effective remedy in respect thereof, (b) that the authorities had unlawfully searched his apartment on 26 August 1999 and that he had no effective remedy thereof and (c) that his pre-trial detention had been unlawful, of excessive length and unjustified, his appeals had not been examined speedily and that he lacked an enforceable right to seek compensation for being a victim of an arrest or detention in breach of the provisions of Article 5 of the Convention. 5. By a decision of 22 May 2006 the Court declared the application partly admissible. 6. The applicant and the Government each filed observations on the merits (Rule 59 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. The Pazardzhik criminal proceedings 1. The criminal proceedings 7. On 17 August 1999 a burglary was committed and, among other items, a television and a video recorder were stolen.", "8. A preliminary investigation was opened against two other suspects on 17 August 1999 and against the applicant on 28 August 1999. On the same day the applicant confessed to having committed five burglaries with his accomplices between 29 January and 20 August 1999. 9. On 31 August 1999 the applicant was charged with committing burglary on 17 August 1999 with his accomplices.", "10. The applicant gave another four statements to the investigator confessing to the other burglaries and providing additional information on how they had been perpetrated. 11. On 17 September 1999 the preliminary investigation into the burglary of 17 August 1999 was joined to the preliminary investigations into the other four burglaries. 12.", "On 7 October 1999 the charges against the applicant were amended to include the other four burglaries. 13. The preliminary investigation was concluded on 15 October 1999 and on 21 December 1999 the Pazardzhik district public prosecutor’s office issued an indictment against the applicant and his two accomplices for the five burglaries. 14. The Pazardzhik District Court conducted eleven hearings in the case, the last of which was held on 30 September 2004.", "15. The Court has not been informed of any subsequent developments in or of the outcome of these proceedings. 2. The search of the applicant’s apartment 16. On 26 August 1999 the police, with the approval of the public prosecutor’s office, searched the apartment in which the applicant and one of his accomplices had been living.", "The applicant had been renting the said apartment under a lease dated 2 March 1999. 17. The search and seizure protocol indicates that the search was conducted in the presence of two witnesses. Various items were seized including three cameras, a hi-fi system, a dining set, gloves and a wrench. 3.", "The applicant’s pre-trial detention 18. On 28 August 1999, under an order issued by an investigator and approved by the public prosecutor’s office, the applicant was arrested and detained for twenty-four hours beginning at 5 p.m. The grounds for his detention were that he was suspected of having committed the burglary on 17 August 1999 because the stolen television and a wrench that had allegedly been used to perpetrate the offence had been found in his apartment, and he had attempted to abscond. 19. On 29 August 1999 the public prosecutor’s office extended the applicant’s preliminary detention for another two days until 5 p.m. on 31 August 1999.", "20. The applicant was placed in pre-trial detention as part of the decision of 31 August 1999 to charge him and his accomplices with the burglary on 17 August 1999 (see paragraph 9 above). That decision was issued by an investigator and was confirmed later in the day by the public prosecutor’s office. In ordering the applicant’s pre-trial detention, the investigator referred to his alleged lack of a permanent address, the fact that he had committed a number of other burglaries and, in general terms, the risk that he might abscond, re-offend or obstruct the investigation. 21.", "The applicant’s pre-trial detention was confirmed in the decision of 7 October 1999 to amend the charges against him (see paragraph 12 above). That decision was issued by an investigator without any indication that it was subsequently confirmed by the public prosecutor’s office. In ordering the applicant’s pre-trial detention, the investigator referred to the lack of a permanent address, the fact that he had committed a number of other burglaries and, in general terms, his personality, the gravity of the offences and the risk that he might abscond. 22. The report of 15 October 1999 concluding the preliminary investigation (see paragraph 13 above) indicated that the applicant was in pre-trial detention.", "23. In his submissions to the Court, the applicant stated that he had appealed against the decision to order pre-trial detention on 8 October 1999. In his appeal, he had argued, inter alia, that there was no risk of him obstructing the investigation as it had effectively been completed, that he had made a full confession, that he had a permanent address and that his detention had not been ordered by a court, in violation of the Convention. In his submissions to the Court, the applicant further claimed that, because of a delay in scheduling a hearing for the examination of his appeal, on 18 October 1999 he had filed a complaint to that effect with the Supreme Judicial Council and the Ministry of Justice. This purportedly led to a hearing being scheduled for the very next day, 19 October 1999, to which the applicant was summoned at very short notice, while his counsel had found out about it only by chance and had not had time to prepare for the hearing or to call witnesses.", "24. The Government, on the other hand, presented the Court with a copy of the applicant’s appeal dated by the Pazardzhik District Investigation Service as having been deposited only on 18 October 1999. 25. On 19 October 1999 the appeal was examined by the District Court, which dismissed it on the grounds, inter alia, of the applicant’s prior criminal record and lack of employment, the gravity of the offences and the fact that he did not appear to have a permanent address, as he had been living in rented apartments in different cities and could not provide the permanent address of his next of kin. 26.", "On 5 November 1999 the applicant filed another appeal against his detention and requested that bail be set. He maintained that his continued detention was in violation of the Convention, that he had a permanent address and that there was no risk that he would abscond, obstruct the investigation or re-offend. 27. A report from the Pazardzhik Prison governor dated 9 November 1999 was presented to the District Court which certified that the applicant had thus far been detained for a period of two months and twelve days calculated from 28 August to 10 November 1999. 28.", "The District Court examined the applicant’s appeal on 10 November 1999. At the hearing the applicant presented a copy of his rental agreement and called a witness, who informed the court that he would put the applicant up and pay his bail. Taking this into account, the District Court found in favour of the applicant and ordered his release on bail of 400 Bulgarian levs. The release was to be effected once a recognizance had been provided. In reaching its decision the court referred, inter alia, to the fact that the applicant had been rehabilitated in respect of his previous convictions, that he had an address at which he could be contacted and that there was insufficient evidence that he might abscond, obstruct the investigation or re-offend.", "As evidenced by a bank receipt, the recognizance was deposited on 22 December 1999. 29. The indictment of 21 December 1999 (see paragraph 13 above) indicated that the applicant had been in pre-trial detention since 31 August 1999 and that recognizance had still not been provided. 30. A communiqué from the Pazardzhik Prison governor, dated 27 December 1999, was sent to the District Court to certify that the applicant had been released on 21 December 1999.", "However, the original text of the communiqué indicated 22 December as the release date which had been changed to 21 December by hand. 4. The conditions of detention (a) Pazardzhik Regional Investigation Service detention facility 31. The applicant said that he had been detained at the Pazardzhik Regional Investigation Service detention facility from 28 August to 31 October 1999 where the cells were small, overcrowded and below street level. There was no natural light or fresh air and a strong, unbearable smell in the cells.", "Quite often there were rodents and cockroaches. A bucket was provided for sanitary needs. There was no hot water or soap. The applicant was not allowed out of his cell for exercise. The food provided was of insufficient quantity and substandard.", "The applicant was not allowed to read newspapers or books. (b) Pazardzhik Prison 32. The applicant stated that he was detained at the Pazardzhik Prison for about two months from 1 November 1999 onwards where the conditions were slightly better than in the Pazardzhik Regional Investigation Service detention facility. Similarly, though, the food was insufficient and of the same inferior quality; the cells were small and overcrowded; the light was poor and a bucket was provided for sanitary needs. Limited exercise was provided in the prison yard.", "(c) Declaration 33. The applicant’s description of the conditions at the above facilities is corroborated by the signed declaration of another detainee, Mr R. Dobrev. B. The Montana criminal proceedings 1. The criminal proceedings and the applicant’s detention 34.", "On 18 April 1998 the applicant was arrested in a block of flats in the town of Montana where a burglary had been committed. He was questioned by the police and released. 35. At the time, the applicant was living in Montana and so was able to give the authorities his address in that town. In the summer of 1998 he moved to Plovdiv.", "36. On 11 February 1999 the authorities opened a preliminary investigation against the applicant in relation to the burglary in Montana. 37. On 15 October 1999 the authorities charged the applicant with the burglary in Montana and ordered that he be placed in pre-trial detention. The decision was issued by an investigator and confirmed later in the day by the public prosecutor’s office.", "In ordering the applicant’s pre-trial detention, the investigator referred to his “personality”. As the authorities were unable to find the applicant at his Montana address, an arrest warrant for his detention was issued on the same day, 15 October 1999. 38. The preliminary investigation in relation to the burglary in Montana was suspended on 18 October 1999. 39.", "On 23 May 2000 the applicant was arrested in Plovdiv on the basis of the Montana arrest warrant. He was then transferred to the Montana Regional Investigation Service. 40. The preliminary investigation in relation to the burglary in Montana was resumed on 29 May 2000. It is unclear when the applicant was formally charged.", "41. The preliminary investigation was completed on an unspecified date and on 5 June 2000 the investigator in charge forwarded the case file to the public prosecutor’s office with a recommendation for the applicant to be indicted for the burglary in Montana. 42. On an unspecified date the applicant appealed against his pre-trial detention. 43.", "In a decision of 22 June 2000 the Montana Regional Court found in favour of the applicant and released him on condition that he did not leave his place of residence without the authorisation of the public prosecutor’s office. The decision became final and the applicant was released on 26 June 2000. 44. On 11 September 2000 the Montana district public prosecutor’s office discontinued the preliminary investigation against the applicant in respect of the Montana burglary for lack of evidence. The restriction imposed on the applicant not to leave his place of residence without the authorisation of the public prosecutor’s office was also lifted.", "45. The decision of the public prosecutor’s office was confirmed by the Montana District Court on 21 September 2000. 2. The conditions of detention in the Montana Regional Investigation Service detention facility 46. The applicant was detained at the Montana Regional Investigation Service detention facility from 23 May to 26 June 2000.", "47. He described the cells as overcrowded and lacking natural light and fresh air. The food was of insufficient quantity and substandard. He was not allowed to read newspapers or books or to go out of his cell for exercise. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Search of premises 1. Search of premises during an inquiry 48. At the relevant time, Article 191 of the Code of Criminal Procedure 1974 (“the CCP”) provided that in the course of an inquiry (that is to say, when there is insufficient evidence to initiate formal criminal proceedings) a search of premises could be conducted only when examining the scene of the crime and if there would be no possibility of collecting and securing evidence if a search was not carried out immediately. 2.", "Search of premises during criminal proceedings 49. At the relevant time Article 134 of the CCP provided that a search of premises could be carried out if there was probable cause to believe that objects or documents of potential relevance to a case would be found there. Such a search could be ordered by the trial court (during the trial phase) or by the prosecutor (during the pre-trial phase) (Article 135). 50. Searches were to be conducted in the presence of witnesses and the occupier of the premises or an adult member of his or her family.", "If the occupier or an adult member of his or her family was unable to be present, the search was to be conducted in the presence of the manager of the property or a representative of the municipality (Article 136). 51. There was no special procedure through which a search warrant issued by a prosecutor could be challenged. Thus, the only avenue of appeal available was a hierarchical one to a higher ranking prosecutor (Article 182). Such appeals did not have suspensive effect (Article 183).", "B. Grounds for detention 52. The relevant provisions of the CCP and the Bulgarian courts’ practice before 1 January 2000 are summarised in the Court’s judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II, Ilijkov v. Bulgaria, no. 33977/96, §§ 55-59, 26 July 2001; and Yankov v. Bulgaria, no.", "39084/97, §§ 79-88, ECHR 2003-XII (extracts)). 53. After 1 January 2000 the legal detention regime under the CCP was amended with the aim of ensuring compliance with the Convention (TR 1‑02 Supreme Court of Cassation (“the SCC”)). The amendments and the resulting practice of the Bulgarian courts are summarised in the Court’s judgments in the cases of Dobrev v. Bulgaria (no. 55389/00, §§ 32-35, 10 August 2006) and Yordanov v. Bulgaria (no.", "56856/00, §§ 21-24, 10 August 2006). C. Scope of judicial control of pre-trial detention 54. On the basis of the relevant law before 1 January 2000, when ruling on applications for release of a person charged with a “serious” offence, the domestic courts generally disregarded facts and arguments concerning the existence or absence of a danger of the accused person’s absconding or committing offences and stated that anyone accused of a serious offence was to be remanded in custody unless exceptional circumstances dictated otherwise (see decisions of the domestic authorities criticised by the Court in the cases of Nikolova and Ilijkov, both cited above, and Zaprianov v. Bulgaria, no. 41171/98, 30 September 2004). 55.", "As of 1 January 2000 the relevant part of the amended Article 152 provided: “(1) Detention pending trial shall be ordered [in cases concerning] offences punishable by imprisonment..., where the material in the case discloses a real danger that the accused may abscond or commit an offence. (2) In the following circumstances it shall be considered that [such] a danger exists, unless established otherwise on the basis of the evidence in the case: 1. in cases of special recidivism or repetition; 2. where the charges concern a serious offence and the accused has a previous conviction for a serious offence for which he or she received an immediate sentence of not less than one year’s imprisonment; 3. where the charges concern an offence punishable by not less than ten years’ imprisonment or a heavier punishment. (3) Detention shall be replaced by a more lenient measure of control where there is no longer a danger that the accused will abscond or commit an offence.” 56. Divergent interpretations of the above provisions were observed in the initial period after their entry into force on 1 January 2000. 57.", "In June 2002, interpreting the amended provisions on pre-trial detention, the SCC stated that when examining an appeal against pre-trial detention the courts’ task was not only to verify whether the initial decision on remand in custody was lawful but also to establish whether continued detention was still lawful and justified. In such proceedings the courts had to examine all available evidence on all relevant aspects, including, if applicable, the amount of the recognizance (TR 1‑02 SCC). D. Release on bail Article 150 § 5 of the CCP, as in force at the relevant time, provided: “When the measure for securing [a person’s appearance in court] is changed from a more [restrictive] one to bail, the [person] shall be released following provision of a recognizance.” E. State and Municipalities Responsibility for Damage Act 1988 58. The State and Municipalities Responsibility for Damage Act 1988 (the “SMRDA” – renamed in 2006) provided at the relevant time that the State was liable for damage caused to private persons by (a) the illegal orders, acts or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties and (b) investigation bodies, the prosecution and the courts for unlawful pre‑trial detention if a detention order was set aside for lack of lawful grounds (sections 1-2). 59.", "In respect of the detention regime and conditions of detention, the relevant domestic law and practice under sections 1 and 2 of the SMRDA were summarised in the cases of Iovchev v. Bulgaria (no. 41211/98, §§ 76‑80, 2 February 2006) and Hamanov v. Bulgaria (no. 44062/98, §§ 56-60, 8 April 2004). 60. In respect of the unlawful search of premises, the only reported case is one dating from 2002 in which the Sofia City Court examined, on appeal, an action for damages stemming from an allegedly unlawful search and seizure conducted by the authorities in the claimant’s home.", "The court quashed the judgment of the lower court and remitted the case solely because the lower court had failed to examine the action under section 1 of the SMRDA, having examined it as a tort action instead. Accordingly, the Sofia City Court instructed the lower court to re-examine the action solely under the SMRDA (реш. от 29 юли 2002 г. по гр. д. № 169/2002 г., СГС, IVб отд.).", "III. REPORTS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (“THE CPT”) 61. The CPT visited Bulgaria in 1995, 1999, 2002, 2003 and 2006. 62. The Pazardzhik Prison was visited in 1995 while the Pazardzhik Regional Investigation Service detention facility was visited both in 1995 and 2006.", "The Montana Regional Investigation Service detention facility has never been visited, but there are general observations about the problems in all investigation service establishments in the 1995, 1999, 2002 and 2006 reports. 63. A summary of the relevant findings and observations of the CPT, prior to its 2006 visit report, is contained in the Court’s judgments in the cases of Dobrev (cited above, §§ 44-56) and Malechkov v. Bulgaria (no. 57830/00, §§ 38-50, 28 June 2007). 64.", "Separately, the CPT in several of its reports has recommended that States apply a minimum standard of 4 sq m per detainee in multiple‑occupancy cells (see, for example, the CPT reports on the 2002 visit to Bulgaria, CPT/Inf (2004) 21, paragraphs 82 and 87, on the 2004 visit to Poland, CPT/Inf (2006) 11, paragraphs 87 and 111, and the 2006 visit to Bulgaria, CPT/Inf (2008) 11, paragraphs 55, 77 and 90). Relevant findings of the 2006 report (made public in 2008) Pazardzhik Regional Investigation Service 65. The CPT found that this facility was operating below its official capacity of forty-two places (e.g. there were 13 detainees at the time of the visit) and that there was no overcrowding in the cells (e.g. three persons in a cell measuring some 12 sq m).", "In addition to beds, the cells were fitted with a table, chairs and shelves. However, the cells were located in the basement and had limited access to natural light; further, artificial lighting was dim and ventilation left something to be desired. 66. As to the regime of available activities, the CPT found that at the time of its visit detainees were being allowed to stroll around an empty room without access to natural light. Inside their cells, in addition to books and newspapers, detainees were in principle allowed to have battery‑operated radio and TV sets, but few such were witnessed.", "67. Certain improvements were found in respect to detainee’s access to sanitary facilities but none in respect to hygiene. Food meanwhile was provided three times a day, but there were some complaints about its quantity and/or quality. THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 68.", "The applicant complained under Article 3 of the Convention that he had been subjected to inhuman or degrading treatment while detained at the Pazardzhik Regional Investigation Service detention facility, the Pazardzhik Prison and Montana Regional Investigation Service detention facility. Article 3 of the Convention provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 1. The Government (a) Pazardzhik Regional Investigation Service detention facility 69. The Government submitted that the applicant had been held in pre‑trial detention at this facility from 28 August to 1 October 1999 and presented a report from the Pazardzhik Investigation Services’ Detention Facilities Section of the Directorate for Execution of Sentences of the Ministry of Justice (“the Pazardzhik Investigation Service Report”).", "The information provided therein is summarised below. 70. The Pazardzhik Investigation Service Report indicated that the applicant had been accommodated alone in a cell measuring 3 m by 3 m by 3 m, situated in the northern section of the detention facility and had no access to direct sunlight. 71. The Pazardzhik Investigation Service Report also stated that, in accordance with the regulations in place at the relevant time, the applicant had been assigned a wooden bed with a mattress, pillow and two blankets.", "All the cells had central heating and light was provided by two light bulbs situated above the cell doors which were never turned off. There was natural ventilation and extractor fans were also in use. Access to sanitary facilities was provided twenty-four hours a day. Detainees could bath twice a week during the summer and were provided with soap. Food was provided by Pazardzhik Prison.", "Measures were taken to exterminate insects and rodents in the cells where necessary. The relevant public prosecutor had the power to allow family visits. Medical checks were performed on the detainee’s arrival, and thereafter once a week and in the event of an emergency. 72. In summary, the Government argued that the detention conditions and regime had not been intended to degrade or humiliate the applicant.", "They also argued that the suffering and humiliation involved did not go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment, so that any ill‑treatment had not attained the minimum level of severity necessary to bring it within the scope of Article 3 of the Convention. There had not, therefore, been a violation of that provision on that account. 73. In conclusion, the Government claimed that the applicant had been held at this facility in conditions of detention which completely fulfilled the requirement for respect of his human dignity, that the distress and hardship he had endured during the period did not exceed the unavoidable level of suffering inherent in detention and that the resulting anguish did not go beyond the threshold of severity under Article 3 of the Convention. (b) Pazardzhik Prison 74.", "The Government submitted that the applicant had been held in pre‑trial detention at this facility from 2 to 21 November 1999. They also presented a report (“the Pazardzhik Prison Report”) from the deputy prison governor, dated 3 February 2005, which indicated that the applicant had been detained there from 2 November to 21 December 1999, but later in the text claimed that he had been released on 21 November 1999. The remainder of the information provided in the Pazardzhik Prison Report is summarised below. 75. The applicant had been attached to second prisoners’ company, which had been accommodated in seven cells with a total living area of 182.33 sq.", "m. The size of the cells ranged from 6.45 sq. m to 38.85 sq. m. During the year 2000 the average number of occupants per cell in the second prisoners’ company was sixty-one. 76. During the period of the applicant’s detention only five of the cells had sanitary facilities, so communal facilities had been provided consisting of four separate toilet cabins and two extended sinks with four taps of running water each.", "Access to these facilities had been possible at set periods several times during the day, usually before and after meals and the various other daily activities. As an exception, access to the sanitary facilities had also been possible at other times. 77. All the cells had access to direct sunlight from windows which could be opened to allow fresh air to circulate. Artificial light had been available from 10 p.m. to 6 a.m. 78.", "Each detainee had been provided with clothes, a bed with a mattress and bed linen (sheets, a pillow cover and two blankets). They had also been provided with a locker where they could place their personal belongings. A washing machine had also been available for them to wash their clothes. In 1999 boilers had been installed in each corridor to provide detainees with easier access to hot water. 79.", "The detainees had been provided free-of-charge with toiletry products and materials to wash and disinfect their clothes and living areas. However, the Pazardzhik Prison Report noted that the level of cleanliness depended in part on the detainees who were responsible, under the supervision of the prison authorities, for keeping their living areas clean. 80. The prison authorities had concluded an agreement with a private anti-infestation company to monitor and, if necessary, exterminate pests, as evidenced by numerous invoices for such services dating from 1999. 81.", "The prison kitchen prepared the food for the detainees. The daily menus had been set and controlled for quantity and quality by the prison authorities. The menu for the week from 27 September to 3 October 1999 had been presented to the Court as an example. It could be seen that it provided for a balanced diet which included meat, fish and vegetarian dishes, dairy products and fresh vegetables. 82.", "During 1999 detainees had been provided with an hour of daily outdoor exercise. A sports hall with weightlifting equipment and courts for playing basketball, volleyball and mini-football had also been available. 83. Daily access to a prison library with over 8,000 books had also been provided and newspapers and magazines had been available as the prison had taken out a number of subscriptions for such media. Individual subscriptions had also been possible.", "The prison also had a chapel, a priest and organised religious services. It also had an equipped cinema hall where films were shown. In 1999 each cell and dormitory was connected to a cable television network offering over fifty channels and had been equipped with television sets (personal or state-owned). Detainees could also attend professional development or literacy courses. 84.", "Detainees’ correspondence with their lawyers, relatives and friends had been unrestricted and was not registered. There had also been no restriction on the number of petitions, appeals or requests they could make. Telephone conversations could also be organised with relatives and lawyers. 85. Detainees could also meet privately, without restriction or limitation, with their lawyers in a specially designated room.", "86. With regard to the applicant, the Pazardzhik Prison Report noted that while held at that detention facility he had not filed any complaints with the prison governor in respect of the conditions of detention. In addition, he had been found to be completely healthy at the medical check‑up that was performed on his arrival, had not made any complaints and until his release had not sought any medical attention at the prison’s infirmary. 87. In conclusion, the Government argued that the applicant had been held at the facility in conditions of detention which completely fulfilled the requirement for respect of his human dignity, that the distress and hardship he had endured during the period did not exceed the unavoidable level of suffering inherent in detention and that the resulting anguish did not go beyond the threshold of severity under Article 3 of the Convention.", "(c) The Montana Regional Investigation Service detention facility 88. The Government noted that the applicant had been held in pre-trial detention at this facility from 23 May to 26 June 2000 and presented a report from the Montana Regional Investigation Services’ Detention Facilities (“the Montana Investigation Service Report”). The information provided therein is summarised below. 89. The applicant had been held in cell no.", "14, which was 4.30 m long by 2.4 m wide and had a window measuring 1.9 m by 0.6 m. He had been alone in the cell until 2 June 2000, when another detainee had also been placed there. On 8 June 2000 the two had been moved to cell no. 5, which was 3 m long by 2.3 m wide and had a window measuring 1.9 m by 0.95 m. Both cells had a functioning ventilation system. Access to hot water had been provided every morning and evening and to sanitary facilities upon request because none had been available in the cells at the relevant time. Owing to the lack of a designated area, detainees were permitted to exercise in the corridor of the detention facility.", "Pest control had also been carried out when necessary. 90. Food had been provided from the canteen of the Montana police station and had been monitored for quality by a paramedic. It consisted of three meals a day, two of which had been hot dishes including one containing meat. The applicant could also separately purchase food, soap, newspapers, magazines and cigarettes as evidenced by a record listing all such purchases he had made.", "91. During his detention at this facility the applicant had not filed any complaints regarding conditions there. 92. In conclusion, the Government argued that the applicant had been held at this facility in conditions of detention which completely fulfilled the requirement for respect of his human dignity, that the distress and hardship he had endured during the period did not exceed the unavoidable level of suffering inherent in detention and that the resulting anguish did not go beyond the threshold of severity under Article 3 of the Convention. 2.", "The applicant 93. The applicant reiterated his complaints and contended that the conditions of detention in which he was held were inadequate and amounted to inhuman and degrading treatment under Article 3 of the Convention. He relied, inter alia, on the findings of the Court in other similar cases against Bulgaria (such as, for example, Malechkov, cited above), the assessments of the CPT in their reports, the conclusions of the Bulgarian Helsinki Committee in their annual reports and the declaration of his fellow detainee, Mr R. Dobrev (see paragraph 33 above), in respect of the conditions of detention at the Pazardzhik Regional Investigation Service detention facility and Pazardzhik Prison. 94. The applicant also claimed that in Pazardzhik Prison detainees had to use a bucket to relieve themselves because the guards did not allow them out of their cells to use the toilets.", "He also claimed that he was not provided with a separate bed in either the Pazardzhik or the Montana Regional Investigation Service detention facility. In addition, during the summer the temperature in the cells at the Montana Regional Investigation Service detention facility had been very high and there was no fresh air. Moreover, during the period of his detention at this facility his wife had been pregnant which had made his detention more frustrating and traumatic. B. General principles 95.", "The relevant general principles under Article 3 of the Convention are summarised in the Court’s judgments in the cases of Navushtanov v. Bulgaria (no. 57847/00, §§ 108-13, 24 May 2007), Dobrev (cited above, §§ 120-24) and Yordanov (cited above, §§ 85-89). C. Application of the general principles to the present case 1. The declaration by Mr R. Dobrev 96. The Court notes at the outset that in respect of the conditions of detention in the Pazardzhik Regional Investigation Service detention facility and Pazardzhik Prison the applicant presented a signed declaration by another detainee, Mr R. Dobrev (see paragraph 33 above).", "However, in so far as that individual had an application before the Court concerning conditions of detention in the same facilities at the same time (Dobrev, cited above), it finds that his statement should not be considered objective and should not therefore be given any particular weight. 2. The Pazardzhik Regional Investigation Service detention facility 97. The Court notes that a discrepancy exists in respect of the period during which the applicant had been held at this facility. He claimed that he had been detained there from 28 August to 31 October 1999 and that he had then been transferred to Pazardzhik Prison (see paragraphs 31 and 32 above).", "The Government meanwhile asserted in their observations that he had been held at this facility only until 1 October 1999, as indicated in the Pazardzhik Investigation Service Report (see paragraph 69 above), but agreed that he had been held at Pazardzhik Prison from 2 November 1999 onwards (see paragraph 74 above), which means that the applicant’s whereabouts are unaccounted for during the month of October 1999. The Court notes that the applicant appealed against his pre-trial detention on 8 or 18 October 1999 (see paragraphs 23 and 24 above), his detention was confirmed on 7 and 19 October 1999 (see paragraphs 21 and 25 above) and a number of documents noted that he had been in detention during the month of October (see paragraphs 22, 27 and 29 above). Thus, the Court finds that the applicant was detained at the Pazardzhik Regional Investigation Service detention facility from 28 August to 1 or 2 November 1999, that is, for two months and four or five days. 98. The Court notes, at the outset, that in other similar cases against Bulgaria it had the occasion to examine the conditions of detention at this facility over the relevant period and found them to have been inadequate (see Yordanov, cited above, §§ 90-100 and §§ 137-39; Dobrev, cited above, §§ 125-32 and §§ 137-39; and Malechkov, cited above, §§ 136-47).", "99. The Court observes that the parties disagreed as to whether the applicant had available a sufficient living area, whether there had been easy access to sanitary facilities and whether the material conditions and food were adequate. They did agree that the applicant had been accommodated in a cell which was below street level and had no direct sunlight. Nor had he been permitted out of his cell for exercise. The Court considers that the fact that the applicant was confined to his cell for practically twenty-four hours a day for over two months, in apparent isolation, without exposure to natural light and without any possibility of physical and other out-of-cell activities must have caused him considerable suffering.", "In the absence of compelling security considerations there was no justification for subjecting the applicant to such limitations. No such considerations have been put forward for assessment by the Court. 100. In conclusion, having regard to the stringent regime to which the applicant was subjected and the absence of any proffered justification for it, the Court considers that the distress and hardship he endured exceeded the unavoidable level of suffering inherent in detention and that the threshold of severity under Article 3 of the Convention was attained. 101.", "Therefore, there has been a violation of Article 3 of the Convention on account of the applicant’s detention at the Pazardzhik Regional Investigation Service detention facility. 3. Pazardzhik Prison 102. The Court notes that a discrepancy also exists in respect of the period during which the applicant had been held at the prison. He claimed that he had been detained there for about two months from 1 November 1999 onwards (see paragraph 32 above).", "The Government meanwhile asserted in their observations that he had been held at this facility from 2 to 21 November 1999 and presented the Court with the Pazardzhik Prison Report which indicated both 21 November and 21 December 1999 as the end of the period of the applicant’s detention at this facility (see paragraph 74 above). The Court notes that the applicant provided the required recognizance only on 22 December 1999 (see paragraph 28 above), which concurs with the information contained in the indictment of 21 December 1999 (see paragraph 29 above) and the communiqué from the Pazardzhik Prison governor, dated 27 December 1999 (see paragraph 30 above). Thus, the Court finds that the applicant was detained at Pazardzhik Prison from 2 November to 22 December 1999, that is, for one month and twenty days. 103. The Court notes, at the outset, that the applicant found the conditions at this facility to have been better than those at the Pazardzhik Regional Investigation Service detention facility.", "It also takes note of the Government’s detailed submissions and the supporting documents they have presented (see paragraphs 74-87 above) to show that the conditions of detention were materially different from what the applicant had contended. Accordingly, the Court finds that it must afford them the required weight when accessing the merits of the applicant’s complaint. Lastly, it notes that in other similar cases against Bulgaria it has had the occasion to examine the conditions of detention at this facility over the relevant period and found them to have been adequate (see Navushtanov, §§ 124-33 and Malechkov, §§ 148-58, both cited above). 104. In view of the above and based on the information provided by the Government, the Court notes that on average the living area available per detainee in second prisoners’ company during the year 2000 was 2.98 sq.", "m, which is below the standard applied by the CPT of a minimum of 4 sq. m per prisoner in multiple occupancy cells (see paragraph 64 above). However, the applicant was detained in this facility at the end of 1999 and it is unclear whether the occupancy level during that period was comparable. 105. Separately, the Court notes from the Government’s contentions that during the period of the applicant’s detention there were limited sanitary facilities in the cells, but that access to such facilities was provided several times daily.", "There was direct sunlight and the windows in the cells could be opened to allow fresh air to circulate. Detainees were provided with clothes, a bed with a mattress, bed linen and a locker for personal belongings. They had access to a washing machine and to hot water on account of the boilers installed in each corridor. Detainees were provided free-of-charge with toiletry products and materials to wash and disinfect their clothes and living areas. Efforts were also made to exterminate any insects and rodents.", "106. The applicant complained that the food provided was of insufficient quantity and substandard. However, the Government claimed, and the applicant did not subsequently deny, that at the time of the applicant’s detention the prison kitchen prepared the food and adhered to menus set and controlled for quantity and quality by the prison authorities. On the basis of the menu presented by the Government, the Court does not find that the food during those periods was substandard or inadequate. 107.", "The applicant also complained that there were only limited possibilities for outdoor or out-of-cell activities at this detention facility. The Court notes, however, that the Government claimed, and the applicant did not subsequently deny, that detainees were provided with an hour of daily outdoor exercise. An equipped sports hall and courts for playing basketball, volleyball and mini-football had also been available. 108. Having regard to the regime to which the applicant was subjected and the material conditions in which he was held at the Pazardzhik Prison for a period of just over one-and-a-half months, the Court concludes that the distress and hardship he endured during the period of his detention at this facility did not exceed the unavoidable level of suffering inherent in detention and did not go beyond the threshold of severity under Article 3 of the Convention.", "109. Therefore, there has been no violation of Article 3 of the Convention on account of the applicant’s detention at the Pazardzhik Prison. 4. The Montana Regional Investigation Service detention facility 110. The Court notes that the applicant was detained at the Montana Regional Investigation Service detention facility from 23 May to 26 June 2000.", "The period to be taken into account, therefore, is one month and four days. 111. The Court observes, at the outset, that the parties disagreed as to whether the food available at this facility was sufficient and whether he had access to newspapers or books. 112. In any event, the Court notes that the applicant was initially afforded 10.32 sq.", "m of living area while alone in a cell, which became 5.16 sq. m when a second detainee was placed with him and finally 3.45 sq. m when they were both moved to a smaller cell (see paragraph 89 above). The latter period continued for eighteen days and did not meet the standard applied by the CPT of a minimum of 4 sq. m per prisoner in multiple occupancy cells (see, for example, the CPT reports on the 2002 visit to Bulgaria, CPT/Inf (2004) 21, paragraphs 82 and 87, and on the 2004 visit to Poland, CPT/Inf (2006) 11, paragraphs 87 and 111).", "113. Further, the detention facility lacked a designated area for outdoor exercise, so the applicant would have been confined practically twenty‑four hours a day during more than a month to his cell and, possibly, the corridor outside without exposure to natural light and without any possibility for physical and other out-of-cell activities. This situation must have caused him considerable suffering. The Court is of the view that in the absence of compelling security considerations there was no justification for subjecting the applicant to such restrictions. No such considerations have been put forward for assessment by the Court.", "114. In conclusion, having regard to the cumulative effects of the stringent regime to which the applicant was subjected and the living area afforded to him, the Court considers that the distress and hardship he endured exceeded the unavoidable level of suffering inherent in detention and went beyond the threshold of severity under Article 3 of the Convention. 115. Therefore, there has been a violation of Article 3 of the Convention on account of the applicant’s detention at the Montana Regional Investigation Service detention facility. II.", "ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION 116. The applicant complained under Article 13 of the Convention that he lacked an effective remedy for his complaints regarding the conditions of detention at the Pazardzhik Regional Investigation Service detention facility, Pazardzhik Prison and the Montana Regional Investigation Service detention facility. Article 13 of the Convention provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 117. The Government did not comment. 118.", "As the Court has held on many occasions, Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 of the Convention is thus to require the provision of a domestic remedy to deal with the substance of an “arguable claim” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 of the Convention varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law (see Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2286, § 95; Aydın v. Turkey, judgment of 25 September 1997, Reports 1997‑VI, pp. 1895-96, § 103; and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998‑I, pp.", "329-30, § 106). 119. The Court notes that the applicant’s complaints under Article 3 of the Convention were declared admissible (see paragraph 5), were examined on the merits (see paragraphs 97-115) and violations were found in respect of his detention at the Pazardzhik Regional Investigation Service detention facility and the Montana Regional Investigation Service detention facility (see paragraphs 101 and 115 above). Thus, in respect of the violations found an “arguable claim” clearly arises for the purpose of Article 13 of the Convention. Likewise and in spite of the finding that there was no violation in respect of the applicant’s detention at Pazardzhik Prison (see paragraph 109 above), an “arguable claim” also arises in respect of it for the purpose of Article 13 of the Convention (see Andrei Georgiev v. Bulgaria, no.", "61507/00, § 67, 26 July 2007 and, mutatis mutandis, Ramirez Sanchez v. France [GC], no. 59450/00, §§ 157‑60, ECHR 2006). Thus, it remains to be established whether the applicant had available an effective remedy in Bulgarian law to make a complaint about the adequacy of the conditions of detention at the above facilities. 120. The Court notes in this respect that the Government did not challenge the applicant’s assertion and failed to submit any information or arguments about the possible existence or effectiveness of a domestic remedy.", "121. Thus, it considers that in the present case it has not been shown by the Government that at the relevant time an effective remedy existed in Bulgarian law for the applicant to raise his complaint about the adequacy of the conditions of detention (see Andrei Georgiev, cited above, § 68). Thus, in that respect there has been a violation of Article 13 in conjunction with Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 122.", "The applicant complained of an interference with his right to respect for his home. In particular, he contended that the search on 26 August 1999 of the apartment he had been renting was carried out in contravention of domestic legislation, because there had been no legal justification for it and it was performed in his absence. Moreover, no inquiry or preliminary investigation had been pending against him at the time. Lastly, the applicant noted that the Court already examined the lawfulness of the same search in the case of Dobrev (cited above, §§ 150‑65). Article 8 of the Convention provides, as relevant: “1.", "Everyone has the right to respect for his private ... life, his home... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 123. The Government did not comment. A. Whether there was an interference 124.", "The Court notes that on 26 August 1999 the apartment the applicant had been renting since 2 March 1999 and had been living in with one of his accomplices had been searched by the police, with the approval of the public prosecutor’s office. It finds that there was an interference with the applicant’s right to respect for his home (see Dobrev, cited above, §§ 158-59). B. Whether the interference was justified 125. In view of the above, it has to be determined whether the interference was justified under paragraph 2 of Article 8 of the Convention, 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.", "“In accordance with the law” 126. The Court reiterates that an interference cannot be regarded as “in accordance with the law” unless, first of all, it has some basis in domestic law. In relation to paragraph 2 of Article 8 of the Convention, the term “law” is to be understood in its “substantive” sense, not its “formal” one. In a sphere covered by the 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).", "127. The Court notes that the domestic legislation provided, at the relevant time, that a search of premises could be ordered by the trial court (during the trial phase) or by the prosecutor (during the pre-trial phase) only if there was probable cause to believe that objects or documents which may be relevant to a case would be found in them (see paragraphs 49-51 above). Such a search could also be conducted in the course of an inquiry, but only when examining the scene of the crime and if there would be no possibility of collecting and securing evidence if a search was not carried out immediately (see paragraph 48 above). 128. In the instant case, the Court finds that the context in which the search of the applicant’s home was conducted is unclear as, at the time, no inquiry or preliminary investigation had been opened.", "It notes in this respect that the Government have not sought to argue otherwise. In addition, although according to the search protocol the search was conducted in the presence of two witnesses, it appears that none of the other individuals required by law to be present – the occupier or a member of his family, the manager of the property or a representative of the municipality (see paragraph 50 above) – attended. Accordingly, it appears that the prerequisites for performing such a search were not present and its execution was not in compliance with the relevant provisions of domestic law. 129. The Court further observes that the Government failed to provide any information and evidence to show that the search was ordered and conducted in accordance with the domestic legislation.", "130. In view of the above, the Court must conclude that the search of the applicant’s home on 26 August 1999 was not conducted “in accordance with the law” within the meaning of paragraph 2 of Article 8 of the Convention. Thus, there has been a violation of that provision on account of the search (see Dobrev, cited above, § 165). In the light of this conclusion, the Court is not required to determine whether the interference was “necessary in a democratic society” for one of the aims enumerated in paragraph 2 of Article 8 of the Convention. IV.", "ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION 131. The applicant complained under Article 13 of the Convention that he had not had an effective remedy for his complaint under Article 8 of the Convention as he had no possibility of challenging the actions of the authorities or of seeking redress for their allegedly unlawful actions. As noted above, Article 13 of the Convention provides that: “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.” 132. The Government did not comment. 133.", "The Court refers to the summary of the general principles outlined above in respect of the applicant’s complaint under Article 13 in conjunction with Article 3 of the Convention (see paragraph 118 above). 134. Noting the Court’s finding of a violation in respect of the applicant’s complaint under Article 8 of the Convention (see paragraph 130 above), it remains to be established whether the applicant had available an effective remedy in Bulgarian law to raise a complaint about the lawfulness of the interference with his right to respect for his home. 135. The Court observes that the applicant did not attempt to challenge the lawfulness of the search of his apartment on 26 August 1999.", "Nor did he initiate an action in damages against the State under the SMRDA on the grounds of the alleged unlawful interference with his right to respect for his home, as it appears he could have done after 2002 (see paragraph 60 above) although it is unclear whether such a remedy was available in 1999. 136. In any event, however, the Court notes that the Government did not challenge the applicant’s assertion and failed to submit any information or arguments about the possible existence or effectiveness of a domestic remedy during the relevant period. 137. Thus, it considers that in the present case it has not been shown by the Government that at the relevant time an effective remedy existed in Bulgarian law for the applicant to raise his complaint about the lawfulness of the interference with his right to respect for his home.", "Thus, in that respect there has been a violation of Article 13 in conjunction with Article 8 of the Convention. V. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 138. The applicant made several complaints falling under 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; ... 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.” 139. The applicant also complained under Article 13 of the Convention that he had not had at his disposal effective domestic remedies for his Convention complaints. In the admissibility decision of 22 May 2006 the Court considered that this complaint fell to be examined only under Article 5 §§ 4 and 5 of the Convention, which constitute a lex specialis in relation to the more general requirements of Article 13 (see, among other authorities, Nikolova, cited above, § 69 and Tsirlis and Kouloumpas v. Greece, judgment of 29 May 1997, Reports 1997‑III, p. 927, § 73). A. Complaints under Article 5 § 3 of the Convention that the applicant was not brought promptly before a judge or other officer authorised by law to exercise judicial power 140.", "The applicant complained that when he was arrested on 28 August 1999 and again on 23 May 2000 he was not brought promptly before a judge or other officer authorised by law to exercise judicial power. 141. The Government did not comment. 1. The applicant’s arrest on 28 August 1999 142.", "The Court notes that in previous judgments which concerned the system of detention pending trial, as it existed in Bulgaria until 1 January 2000, it found that neither investigators before whom the accused were brought, nor prosecutors who approved detention orders, could be considered as “officer[s] authorised by law to exercise judicial power” within the meaning of Article 5 § 3 of the Convention (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998‑VIII, p. 3296, §§ 144-50; Nikolova, cited above, §§ 49-53, and Shishkov v. Bulgaria, no. 38822/97, §§ 52-54, ECHR 2003‑I (extracts)). 143. In the present case, the applicant’s detention on 28 August 1999 was likewise ordered by an investigator and confirmed by a prosecutor (see paragraph 18 above). 144.", "It follows that there has been a violation of the applicant’s right to be brought before a judge or other officer authorised by law to exercise judicial power within the meaning of Article 5 § 3 of the Convention upon his arrest on 28 August 1999. 2. The applicant’s arrest on 23 May 2000 145. In respect of the applicant’s arrest on 23 May 2000, the Court notes that it was effected after the amendments to the CCP on 1 January 2000, but pursuant to an arrest warrant issued on 15 October 1999 by an investigator which was confirmed by the public prosecutor’s office. 146.", "The Court notes, moreover, that the Government failed to challenge the applicant’s assertion that his arrest was not compatible with Article 5 § 3 and they failed to provide any information or documents which might indicate that he had in fact been brought promptly before a judge or other officer authorised by law to exercise judicial power after his arrest on 23 May 2000. 147. It follows that on that account there has been a violation of Article 5 § 3 of the Convention. B. Complaints under Article 5 § 1 (c) of the Convention that the applicant was detained unlawfully 148.", "The applicant claimed that his detentions had been unlawful, because the evidence against him had not been sufficient to lead to the conclusion that he was guilty of any offences. 149. The Court observes that the main issue to be determined in the context of this complaint is whether the disputed detention was “lawful”, including whether it complied with “a procedure prescribed by law”. The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5 of the Convention, namely to protect individuals from arbitrariness (see Benham v. the United Kingdom, judgment of 10 June 1996, Reports 1996‑III, pp. 752-53, § 40).", "It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 § 1 of the Convention failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see Benham, cited above, § 41). 1. The applicant’s detention from 10 November to 22 December 1999 150. The Court notes that on 10 November 1999 the District Court amended the measure for securing the applicant’s appearance in court to bail and ordered his release subject to the provision of a recognizance (see paragraph 28 above).", "It recognises therefore that the statutory basis for the applicant’s detention thereby changed and from that point on was the court’s order under Article 150 § 5 of the CCP which provided for his continued detention pending the provision of recognizance (see Navushtanov, cited above, § 55). Once recognizance was provided the applicant was released on 22 December 1999 (see paragraphs 28-30 and 102 above). 151. Consequently, the Court finds that there was no violation of Article 5 § 1 (c) of the Convention. 2.", "The applicant’s detention between 23 May and 26 June 2000 152. In respect of this period of detention the Government raised an objection of non-exhaustion and claimed that the applicant had not initiated proceedings for damages under the SMRDA. The Court reiterates that objections of this kind should be raised before the admissibility of the application is considered (see, among other authorities, Brumărescu v. Romania [GC], no. 28342/95, §§ 52-53, ECHR 1999-VII and Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 54, ECHR 2000‑XI).", "However, as the Government’s objection was first raised on 31 July 2006, which is after the Court’s decision declaring the application admissible (see paragraph 5 above), there is estoppel. 153. As an alternative, the Government argued that the applicant’s detention had been lawful as it had been imposed for the purpose of bringing him before the competent legal authority on suspicion of having committed an offence and that all the formalities required by domestic law had been observed. 154. The Court finds that the applicant’s detention from 23 May and 26 June 2000 was imposed for the purpose of bringing him before the competent legal authority on suspicion of having committed an offence and finds no indication that the formalities required by domestic law had not been observed because the arrest warrant issued in 1999 had lost effect.", "As regards the alleged lack of reasonable suspicion, the Court reiterates that the standard imposed by Article 5 § 1 (c) of the Convention does not presuppose the existence of sufficient evidence to bring charges, or to find guilt, at the time of arrest. Facts which raise a suspicion need not be of the same level as those necessary to bring a charge (see O’Hara v. the United Kingdom, no. 37555/97, § 36, ECHR 2001-X). 155. In the present case, the Court considers that the authorities had sufficient information to give rise to a “reasonable” suspicion against the applicant as they had initially arrested him in the block of flats where the burglary was committed and he had moved to another town without informing the authorities.", "156. Consequently, the Court finds that there was no violation of Article 5 § 1 (c) of the Convention. C. Complaints under Article 5 § 3 of the Convention that the applicant’s detention was unjustified and unreasonably lengthy 157. The applicant complained that his detentions had been unjustified and excessively lengthy. 158.", "The Government did not comment. 1. The applicant’s detention in the context of the Pazardzhik criminal proceedings 159. The Court notes the applicant was in held in pre-trial detention from 28 August to 10 November 1999, when the District Court ordered his release subject to the provision of a recognizance (see paragraphs 18 and 28 above). Thus, the period in question is two months and thirteen days.", "160. The Court finds that, unlike in previous cases against Bulgaria where violations were found (see, for example, Ilijkov, cited above, §§ 67‑87), in the present case the authorities made an assessment of specific facts and evidence which indicated that the applicant might abscond, obstruct the investigation or re-offend, namely that he had previous convictions, had no apparent permanent address and had moved from town to town (see paragraphs 20-21 and 25 above). 161. In view of the above, the Court finds that there has been no violation of Article 5 § 3 of the Convention. 2.", "The applicant’s detention in the context of the Montana criminal proceedings 162. The Court notes the applicant was in held in pre-trial detention from 23 May to 26 June 2000. The period in question therefore is one month and four days. 163. The Court reiterates that justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov, cited above, § 66).", "In the present case, the authorities did not rely on any facts or evidence to justify the applicant’s continued detention following his initial arrest and did not on their own initiative undertake a reassessment of the justification for his pre-trial detention after the initial arrest warrant was issued on 15 October 1999. Moreover, the justification for the applicant’s detention under that warrant was only his personality and no reference was made to any facts or evidence that he might abscond, re-offend or obstruct the investigation (see paragraph 37 above). The justification for the applicant’s pre-trial detention was not reassessed until the Regional Court found in his favour on his appeal and ordered his release (see paragraph 43 above). 164. In view of the above, the Court finds that there has been a violation of Article 5 § 3 of the Convention on account of the authorities’ failure to justify the applicant’s continued detention.", "D. Complaint under Article 5 § 4 of the Convention that the applicant’s appeal against his detention of 8 October 1999 was not decided speedily 165. The applicant claimed that in respect of his appeal of 8 October 1999 there had been a violation of the requirement for a speedy decision under Article 5 § 4 of the Convention. 166. The Government did not comment but presented the Court with a copy of the applicant’s appeal stamped by the Pazardzhik District Investigation Service as having been deposited on 18 October 1999 (see paragraph 24 above). 167.", "The Court reiterates that Article 5 § 4 guarantees the right to a speedy judicial decision concerning the lawfulness of detention (see Rutten v. the Netherlands, no. 32605/96, § 52, 24 July 2001). In the present case, in the context of the Pazardzhik criminal proceedings, the applicant claimed to have lodged an appeal against his detention on 8 October 1999. He did not however present a copy dated as having been deposited on that day with any relevant State institution, as the Government did by presenting a copy dated 18 October 1999. The Court therefore finds that the applicant has not convincingly substantiated his assertion that he filed his appeal on 8 October 1999 but rather accepts that it was deposited with the Pazardzhik District Investigation Service only on 18 October 1999.", "As the appeal was then examined by the District Court one day later on 19 October 1999, the Court considers this period to be in conformity with the requirement for a speedy decision under Article 5 § 4 of the Convention. 168. Thus, in this respect there has not been a violation of Article 5 § 4 of the Convention. E. Complaint under Article 5 § 5 of the Convention 169. The applicant complained that he did not have an enforceable right to seek compensation for being a victim of arrest or detention in breach of the provisions of Article 5 of the Convention.", "170. The Government did not comment. 171. The Court observes at the outset the similarity of this complaint to those in a number of other cases against Bulgaria where violations were found (see, for example, Yankov, cited above, §§ 189‑198 and Belchev v. Bulgaria, no. 39270/98, §§ 84‑94, 8 April 2004).", "It further observes that it has already found a number of violations of Article 5 of the Convention in respect of the applicant’s detention (see paragraphs 144, 147 and 164). Thus, Article 5 § 5 of the Convention is applicable and the Court must establish whether or not Bulgarian law afforded the applicant an enforceable right to compensation for the breaches of Article 5 of the Convention established in his case. 172. The Court notes that by section 2 (1) of the SMRDA, a person who has been remanded in custody may seek compensation only if the detention order has been set aside “for lack of lawful grounds”; this refers to unlawfulness under domestic law (see paragraphs 58-59 above). 173.", "In the present case, the applicant’s pre-trial detention was considered by the authorities to have been in full compliance with the requirements of domestic law. Therefore, the applicant did not have a right to compensation under section 2 (1) of the SMRDA. Nor does section 2 (2) apply. It follows that in the applicant’s case the SMRDA did not provide for an enforceable right to compensation. Furthermore, it does not appear, and the Government did not contend, that such a right is secured under any other provision of Bulgarian law (see paragraphs 58-59 above).", "174. Thus, the Court finds that Bulgarian law did not afford the applicant an enforceable right to compensation, as required by Article 5 § 5 of the Convention. There has therefore been a violation of that provision. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 175.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the 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 176. The applicant claimed 7,500 euros (EUR) as compensation for each of the alleged violations of his rights under the Convention. He referred to the size of awards in other similar cases against Bulgaria and claimed that the standard of living was constantly improving in the country, which required that awards be adapted accordingly. 177.", "The Government did not submit comments on the applicant’s claim for damage. 178. The Court notes that in the present case violations of the Convention were found under Articles 3, 5, 8 and 13 (see paragraphs 101, 115, 121, 130, 137, 144, 147, 164 and 174 above). It further notes the applicant’s argument in respect of the alleged improvements in the standard of living in Bulgaria, which though unquantifiable on the basis of the information presented are at the same time relevant when determining its award under Article 41 of the Convention. In view of the above, the specific circumstances of the present case, its case-law in similar cases and deciding on an equitable basis, the Court awards EUR 5,000 under this head, plus any tax that may be chargeable on that amount.", "B. Costs and expenses 179. The applicant also claimed EUR 7,200 for 70 hours of legal work by his lawyer in the proceedings before the domestic authorities and the Court at an approximate effective hourly rate of EUR 103. In addition, he claimed 30 Bulgarian levs (approximately EUR 15) for the postal and other expenses of his lawyer. He submitted a legal fees agreement between him and his lawyers, a timesheet and receipts.", "The applicant requested that the costs and expenses incurred should be paid directly to his lawyer, Mr V. Stoyanov. 180. The Government did not submit comments on the applicant’s claim for costs and expenses. 181. The Court reiterates that according to its case-law, an applicant is entitled to the reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "Having regard to all relevant factors and noting that the applicant was paid EUR 715 in legal aid by the Council of Europe, the Court considers it reasonable to award the sum of EUR 2,000 in respect of costs and expenses. C. Default interest 182. 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 the Convention on account of the applicant’s detention at the Pazardzhik Regional Investigation Service detention facility; 2.", "Holds that there has been no violation of Article 3 of the Convention on account of the applicant’s detention at Pazardzhik Prison; 3. Holds that there has been a violation of Article 3 of the Convention on account of the applicant’s detention at the Montana Regional Investigation Service detention facility; 4. Holds that there has been a violation of Article 13 in conjunction with Article 3 of the Convention; 5. Holds that there has been a violation of Article 8 of the Convention on account of the unlawful interference with the applicant’s right to respect for his home as a result of the search of the apartment he was renting; 6. Holds that there has been a violation of Article 13 in conjunction with Article 8 of the Convention; 7.", "Holds that there has been a violation of Article 5 § 3 of the Convention on account of the applicant not having been promptly brought before a judge or other officer authorised by law to exercise judicial power after he was arrested on 28 August 1999 and on 23 May 2000; 8. Holds that there has been no violation of Article 5 § 1 (c) of the Convention; 9. Holds that there has been a violation of Article 5 § 3 of the Convention on account of the authorities’ failure to justify the applicant’s continued detention after his arrest on 23 May 2000; 10. Holds that there has not been a violation of Article 5 § 4 of the Convention in respect of the speediness of the judicial decision in response to the applicant’s appeal of 18 October 1999; 11. Holds that there has been a violation of Article 5 § 5 of the Convention on account of the applicant not having had available an enforceable right to compensation for being a victim of an arrest or detention in breach of the provisions of Article 5 of the Convention; 12.", "Holds (a) that the respondent State is to pay to the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable on the date of settlement : (i) EUR 5,000 (five thousand euros) in respect of non-pecuniary damage, payable to the applicant himself; (ii) EUR 2,000 (two thousand euros) in respect of costs and expenses, payable into the bank account of the applicant’s lawyer in Bulgaria, Mr V. Stoyanov; (iii) any tax that may be chargeable to the applicant 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; 13. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 22 May 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]

[ "SECOND SECTION CASE OF ŠOŠ v. CROATIA (Application no. 26211/13) JUDGMENT STRASBOURG 1 December 2015 FINAL 01/03/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Šoš v. Croatia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Işıl Karakaş, President,Julia Laffranque,Paul Lemmens,Valeriu Griţco,Ksenija Turković,Jon Fridrik Kjølbro,Georges Ravarani, judges,and Abel Campos, Deputy Section Registrar, Having deliberated in private on 10 November 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "26211/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Vlatko Šoš (“the applicant”), on 3 April 2013. 2. The applicant was represented by Ms G. Grubeša, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.", "The applicant alleged that his pre-trial detention had been arbitrary and excessively lengthy and that there had been no effective review procedure before the Constitutional Court in that respect, contrary to Article 5 §§ 1 (c), 3 and 4 of the Convention. 4. On 3 June 2013 the complaints were communicated to the Government and the remainder of the application was declared inadmissible. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1980 and lives in Zagreb. A. Criminal proceedings against the applicant 6. On 19 May 2011 the Split Office of the National Police Unit for the Suppression of Corruption and Organised Crime (Policijski nacionalni ured za suzbijanje korupcije i organiziranog kriminaliteta, Odjel za suzbijanje korupcije i organiziranog kriminaliteta Split; hereinafter: “the police”) lodged a criminal complaint against the applicant before the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Državno odvjetništvo, Ured za suzbijanje korupcije i organiziranog kriminaliteta; hereinafter: “the State Attorney’s Office”), alleging that he had participated in an organised international drug-trafficking scheme. 7.", "On the basis of the extensive evidence collected during the preliminary investigation, including through mechanisms of international legal assistance in criminal matters from the authorities in Spain, Slovenia and the Netherlands, and the results of secret surveillance measures, on 20 May 2011 the State Attorney’s Office opened an investigation in respect of the applicant and nine other persons suspected of drug trafficking. In particular, it was alleged that the applicant had participated in an organised drug-trafficking scheme by securing the means of communication between other members of the group. 8. During the investigation, the State Attorney’s Office questioned a number of witnesses and obtained further voluminous evidence from the police. It also commissioned telecommunication expert reports and requested assistance in obtaining evidence from the authorities in Spain, Slovenia, the Czech Republic, Bosnia and Herzegovina and the Netherlands.", "9. On 9 November 2011 the State Attorney of the Republic of Croatia (Glavni državni odvjetnik Republike Hrvatske) extended the investigation for a further six months. 10. Following the completion of the investigation, on 16 May 2012 the State Attorney’s Office indicted the applicant and nine other defendants in the Split County Court (Županijski sud u Splitu) on charges of drug trafficking. It alleged that the applicant had facilitated communication between other members of the group operating an international drug-trafficking scheme.", "11. On 18 May 2012 the investigating judge forwarded the indictment to the defendants, instructing them that they could submit their comments on it within a period of eight days. 12. On 28 May 2012 the applicant denied the charge, alleging numerous substantive and procedural flaws. 13.", "Several hearings for the confirmation of the indictment were held before a three-judge panel of the Split County Court. Meanwhile, the defence lawyers challenged the decision on the admissibility of evidence before the Supreme Court. 14. On 23 November 2012 the applicant complained to the Supreme Court of a lack of diligence in the conduct of the proceedings. He pointed out that the Supreme Court had not yet decided on the question of the admissibility of the evidence, which was incompatible with the requirement of due diligence in the conduct of the proceedings.", "15. On 25 January 2013 a three-judge panel of the Split County Court confirmed the indictment and referred the case to trial. 16. The criminal proceedings against the applicant are still pending. B.", "Decisions on the applicant’s detention 17. On 19 May 2011 the applicant was arrested in connection with the criminal complaint lodged against him by the police (see paragraph 6 above). 18. The next day, after hearing the applicant’s defence, the State Attorney’s Office ordered that he be remanded in custody for a period of forty-eight hours. 19.", "Following the opening of the investigation against him, on 20 May 2011 the State Attorney’s Office asked an investigating judge (sudac istrage) of the Split County Court to order the applicant’s pre-trial detention (istražni zatvor). It also requested that the other defendants be remanded in custody. 20. On the same day the investigating judge accepted the request and ordered the applicant’s pre-trial detention for one month under Article 123 § 1 (2), (3) and (4) of the Code of Criminal Procedure (risk of collusion, risk of reoffending and gravity of charges). He also ordered the pre-trial detention of nine other defendants in the proceedings.", "The relevant part of the decision reads: “Reasonable suspicion that the suspects committed the offences at issue follows from the criminal complaint lodged by [the police] and the [supporting material] ... The pre-trial detention of all the suspects, save for Đ.F. and N.E. who are detained in Spain, was ordered under Article 123 § 1 (2) of the Code of Criminal Procedure. The suspects Š.L.", "and D.J. ... are still at large and there is therefore a risk that if the other suspects were at large, they could hinder the proper conduct of the proceedings by influencing [Š.L. and D.J.]. In addition, a number of witnesses should be questioned concerning the offences at issue ... and, since they know the suspects or are relatives of theirs, there is a risk that the suspects, if at large, could hinder the proper conduct of the proceedings by influencing the witnesses ... The pre-trial detention of all the suspects was also ordered under Article 123 § 1 (3) of the Code of Criminal Procedure.", "Given the scale of the alleged criminal activity, the period in which it has taken place, the extent of the [suspects’] organisation, and the fact that they have allegedly smuggled over 700 kilograms of cocaine, 338 kilograms of which has been seized in Spain, this court finds that it suggests special circumstances justifying the fear that they may reoffend. ... The pre-trial detention of all the suspects, save for S.R., was also ordered under Article 123 § 1 (4) of the Code of Criminal Procedure. This court finds it necessary to order detention under this provision also so as to ensure the proper conduct of the proceedings, given that the case concerns a particularly grave offence under Article 173 § 3 of the Criminal Code for which a sentence of long-term imprisonment has been prescribed. Specifically, it is alleged that the suspects have smuggled over 700 kilograms of cocaine, which can be used to make a significant number of individual doses and thus to endanger the health of a high number of persons.", "Moreover, the suspects have allegedly operated on the territories of several countries, where they organised networks of persons helping them in the commission of the offences, which suggests a particularly organised and systemic approach in the commission of the offences. Apparently large sums of money were also spent for the [distribution and] transport of the drugs from South America. This suggests, in the view of this court, that the circumstances of the offence are particularly serious, surpassing the circumstances in which such offences are ‘usually’ committed ...” 21. The applicant challenged the decision of the investigating judge before a three-judge panel of the Split County Court, arguing that the judge had failed to take into account the extent of his specific participation in the alleged offences at issue. He pointed out that his alleged role in the commission of the offences was peripheral and irrelevant, since his only contact with the case was through the third defendant, whom he had known from the past but had not suspected of being involved in a criminal activity.", "The applicant also stressed that he was a self-employed car mechanic and had had no previous conflict with the law. He therefore requested that less severe preventive measures be applied for securing his proper participation in the proceedings. 22. On 6 June 2011 a three-judge panel of the Split County Court dismissed the appeals lodged by the applicant and two other defendants. The relevant part of the decision reads: “It is alleged that the suspects, acting within an organised group, obtained cocaine abroad and transported it to Croatia for the purpose of its further distribution.", "The proceedings at issue concern not only a serious and socially dangerous offence, but there are also other specific circumstances showing the seriousness of the case. The suspects obtained the drugs in South America, in large quantities of several hundreds of kilograms, and the whole process of transporting the drugs required a high degree of organisation and distribution of work. The quantity of drugs found, namely around 370 grams [sic] of cocaine, is higher than in other [similar cases]. The investigating judge thus correctly concluded that in respect of the suspects S.K. and Vlatko Šoš the circumstances of the offence are particularly serious, which also justifies the fear that the suspects might reoffend.", "There are therefore sufficient reasons for pre-trial detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure. ... Furthermore, since in the further course of the proceedings, as indicated in the investigating judge’s decision, it is necessary to question a number of witnesses who have relevant knowledge of the offences at issue and know the suspects S.K., Vlatko Šoš and S.R., the investigating judge correctly ordered the detention under Article 123 § 1 (2) of the Code of Criminal Procedure. Given that the investigating judge’s decision ordering the detention is justified, there are no grounds for accepting the requests of the suspects, put forward in the appeals, to replace their detention by alternative measures.” 23. On 17 June 2011 the investigating judge extended the applicant’s pre-trial detention for two months under Article 123 § 1 (2), (3) and (4) of the Code of Criminal Procedure (risk of collusion, risk of reoffending and gravity of charges), reiterating his previous arguments.", "24. The applicant challenged that decision, arguing that it lacked the relevant reasoning concerning the circumstances of the case pertinent to his particular situation. On 7 July 2011 a three-judge panel of the Split County Court dismissed his complaints, endorsing the reasoning of the investigating judge. 25. On 18 August 2011 the investigating judge extended the applicant’s pre-trial detention for two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges).", "He found that all the relevant witnesses had been questioned and that there was no further possibility of remanding the applicant in detention on the grounds of the risk of collusion. As to the other grounds relied upon for the applicant’s detention, the investigating judge reiterated his previous findings. 26. The applicant lodged an appeal against that decision before a three-judge panel of the Split County Court, arguing that his detention had been constantly extended without providing any reasons relevant to his particular situation. He also requested that his detention be replaced by house arrest.", "27. On 27 September 2011 a three-judge panel of the Split County Court dismissed the applicant’s appeal, endorsing the findings of the investigating judge. It provided no reasoning concerning the applicant’s request for the replacement of his detention by house arrest. 28. On 18 October 2011 the investigating judge extended the applicant’s pre-trial detention for two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges).", "The relevant part of the decision reads: “The pre-trial detention of all the suspects was also ordered under Article 123 § 1 (3) of the Code of Criminal Procedure. Given the scale of the alleged criminal activity, the period in which it has taken place, the extent of the [suspects’] organisation, and the fact that they have allegedly smuggled over 700 kilograms of cocaine, 338 kilograms of which has been seized in Spain, this court finds that it suggests special circumstances justifying the fear that they may reoffend. ... The pre-trial detention of all the suspects, save for S.R., was also ordered under Article 123 § 1 (4) of the Code of Criminal Procedure. This court finds it necessary to order detention under this provision, also so as to ensure the proper conduct of the proceedings, given that the case concerns a particularly grave offence under Article 173 § 3 of the Criminal Code for which a long prison sentence has been prescribed.", "Specifically, it is alleged that the suspects have smuggled over 700 kilograms of cocaine, which can be used to make a significant number of individual doses and thus to endanger the health of a high number of persons. Moreover, the suspects have allegedly operated on the territories of several countries, where they organised networks of persons helping them in the commission of the offences, which suggests a particularly organised and systemic approach in the commission of the offences. Apparently large sums of money were also spent for the [distribution and] transport of the drugs from South America. This suggests, in the view of this court, that the circumstances of the offence were particularly serious, surpassing the circumstances in which such offences are ‘usually’ committed ...” 29. The applicant lodged an appeal against the above decision, asking to be released and for less severe preventive measures to be applied.", "On 28 October 2011 a three-judge panel of the Split County Court dismissed his appeal as ill-founded, reiterating its previous arguments and without providing further reasons for refusing the applicant’s request. 30. On 15 November 2011 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) against those decisions, arguing that the reasons given for his continued detention were neither relevant nor sufficient. He pointed out that the Split County Court had collectively extended the pre-trial detention of all the defendants in the proceedings, without taking into account his specific arguments. 31.", "On 18 November 2011 the investigating judge extended the applicant’s pre-trial detention for a further two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). In his decision, the investigating judge stated that the initial grounds for the applicant’s detention had not changed. The judge also noted that owing to the complexity of the case, the investigation would be extended for a further six months. 32. The applicant appealed against that decision, arguing that it lacked the relevant reasoning.", "He also asked to be released on bail or for the application of other less severe preventive measures. 33. On 6 December 2011 a three-judge panel of the Split County Court dismissed the applicant’s appeal as ill-founded, reiterating its previous arguments. It held that, in view of the gravity of the offences at issue, the applicant’s detention could not be replaced by less severe preventive measures, nor could he be released on bail. 34.", "On 9 and 16 December 2011 the applicant urged the Constitutional Court to decide on his constitutional complaint of 15 November 2011 (see paragraph 30 above). 35. On 22 December 2011 the Constitutional Court declared the applicant’s constitutional complaint of 15 November 2011 inadmissible on the ground that a new decision on his detention had been adopted in the meantime, namely on 18 November 2011 (see paragraph 31 above), and that his detention was no longer based on the impugned decision. This decision was served on the applicant’s representative on 10 January 2012. 36.", "On 18 January 2012 the investigating judge extended the applicant’s detention for a further two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) on the ground that the relevant circumstances warranting his detention had not changed. 37. The applicant lodged an appeal against the above decision, arguing that it lacked the relevant reasoning and asking that his detention be replaced by less severe preventive measures. 38. On 31 January 2012 a three-judge panel of the Split County Court dismissed the applicant’s appeal as ill-founded, reiterating its previous arguments concerning the necessity of the defendants’ continued detention.", "39. On 14 February 2012 the applicant lodged a constitutional complaint before the Constitutional Court, arguing that in extending his detention throughout the investigation, the court had always used the same wording and phrases. He pointed out that the Split County Court had failed to make a proper assessment of the necessity of his continued detention given that its decisions were merely a reproduction of the same wording provided in the initial decision ordering his detention on 20 May 2011. 40. On 22 February 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the Split County Court.", "The relevant part of the decision reads: “The impugned decision of the investigating judge ... provides detailed and clear reasoning with regard to the relevant legal circumstances related to the appellant’s [detention]. The Constitutional Court finds that the impugned decisions comply with the relevant constitutional [requirements] concerning the extension of the appellant’s pre-trial detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure.” 41. On 16 March 2012 the investigating judge extended the applicant’s detention for a further two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) on the ground that nothing had changed in the relevant circumstances warranting his continued detention. 42. The applicant appealed against that decision, reiterating his request for release and the application of less severe preventive measures.", "43. On 29 March 2012 a three-judge panel of the Split County Court dismissed the applicant’s appeal as ill-founded, reiterating its previous arguments. It found that it was not possible to release him and to apply less severe preventive measures in view of the particular gravity and seriousness of the charges against him. 44. Following the submission of the indictment against the applicant to the Split County Court (see paragraph 10 above), on 18 May 2012 a three-judge panel of that court extended the applicant’s detention pending trial under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) without setting any time-limits for the detention.", "The relevant part of the decision reads: “Against the defendant: ... 9. Vlatko Šoš ... the pre-trial detention is extended and it should continue further ... on the basis of Article 123 § 1 (3) and (4) of the Code of Criminal Procedure ... Statement of reasons ... Reasonable suspicion that the suspects have committed the offences at issue follows from the indictment submitted by the [State Attorney’s Office] and the evidence listed in the indictment. ... With regard to the defendants P.Ć., M.V., A.Ć., S.K.", "and Vlatko Šoš the detention was extended under Article 123 § 1 (3) of the Code of Criminal Procedure. Given the scale of the alleged criminal activity, the period in which it has taken place, the extent of [the defendants’] organisation, and the fact that they have allegedly smuggled large quantities of cocaine for the purpose of its further distribution, 338 kilograms of which has been seized in Spain, this panel finds that it suggests special circumstances justifying the fear that they may reoffend. The detention of the defendants P.Ć., M.V., A.Ć., S.K. and Vlatko Šoš was also extended under Article 123 § 1 (4) of the Code of Criminal Procedure. This panel finds that the case concerns a particularly grave offence under Article 173 § 3 of the Criminal Code for which a sentence of long-term imprisonment has been prescribed.", "Specifically, the very fact that [the case] concerns a large number of persons organised in a criminal enterprise for the purpose of trafficking large quantities of cocaine, for which purpose the defendant P.Ć. established a criminal organisation in Croatia, as well as the fact that a venture of trafficking of large quantities of the drug, such as the one smuggled by the defendants, is not undertaken by individuals who are not aware of the trafficking, suggest that the circumstances of the offence are particularly serious. The defendants are charged with acting on the basis of a prepared plan and agreement for permanently trafficking large quantities of cocaine, and in the period between January 2010 and 19 May 2011 they smuggled large quantities of [that drug] for the purpose of further distribution. The undisputed purity of the last shipment of the seized cocaine, amounting to 338.29 kilograms, means that it could have been used for making at least 3,000 doses for individual use ... which on the black market could have endangered the health of a high number of persons. These circumstances of the offence surpass the usual circumstances in which [such offences] are committed, and therefore they suggest its particular gravity.” 45.", "The applicant appealed to the Supreme Court (Vrhovni sud Republike Hrvatske) against the above decision, arguing that the Split County Court had failed to adduce any relevant reason warranting his continued detention. He pointed out in particular that the individual circumstances of his case had not been examined, such as the fact that he had not had any previous conflict with the law. This called into question the findings of the Split County Court that he could reoffend. He also asked that his detention be replaced by less severe preventive measures. 46.", "On 15 June 2012 the Supreme Court dismissed the applicant’s appeal as ill-founded, endorsing the decision of the Split County Court. It did not examine the possibility of replacing the applicant’s detention by the application of alternative preventive measures. With regard to the applicant’s specific arguments, the Supreme Court held: “The importance of the reasons making the detention under Article 123 § 1 (3) of the Code of Criminal Procedure necessary and the only appropriate measure for averting the risk of reoffending has not been called into question by the appeal arguments of the defendants S.K. and Vlatko Šoš that they did not have a criminal record. The fact that ... prior to his arrest [Vlatko Šoš] was well-known as a hardworking and decent person who was earning money by working as a car mechanic could be taken into account in the sentencing, in the event of his conviction.” 47.", "On 13 August 2012 a three-judge panel of the Split County Court again extended the applicant’s pre-trial detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges), reiterating its previous arguments and without setting any time-limits for the applicant’s detention. It did not examine the possibility of replacing his detention by the application of less severe preventive measures. 48. The applicant challenged the decision of the Split County Court before the Supreme Court, arguing that the courts had extended his detention throughout the period of his remand by constantly repeating the same phrases and almost identical wording, and without a proper assessment of the individual circumstances of his case. He also asked that his detention be replaced by less severe preventive measures.", "49. On 12 September 2012 the Supreme Court dismissed the applicant’s appeal as ill-founded on the ground that there was nothing calling into question the findings of the Split County Court concerning the necessity of his continued detention. It also stressed that, in view of the gravity of the charges and the persisting risk of reoffending, the applicant’s detention could not be replaced by less severe preventive measures. 50. On 22 October 2012 the applicant lodged a constitutional complaint against the above decision.", "He contended that the lower courts had constantly extended his pre-trial detention throughout the proceedings, always using the same stereotyped formulae and phrases. He considered, therefore, that they had failed to adduce any relevant and sufficient reasons for his continued detention. He pointed out the wording of the decisions extending his detention and the fact that his detention had been extended during the trial without setting any time-limits. 51. On 6 November 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts.", "In particular it held: “The Constitutional Court finds in the case at hand that the impugned decisions were adopted on the basis of the competent courts’ careful assessment of the reasons justifying the extension of the appellant’s detention, in view of the particular circumstances of the case (extent of the criminal activity, quantity and value of the drugs, high degree of organisation and connection with other defendants with clearly distributed tasks in performing the criminal activity, continuity of the criminal activity, time period in which it has occurred, [criminal] resolve, and the fact that the offence at issue is punishable by long-term imprisonment) and that the [competent courts] provided sufficient reasons justifying [the detention].” 52. On 9 November 2012 a three-judge panel of the Split County Court extended the applicant’s detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges), without setting any time-limits for the detention. The relevant part of the decision reads: “With regard to the defendants P.Ć., M.V., A.Ć., S.K. and Vlatko Šoš the detention was extended under Article 123 § 1 (3) of the Code of Criminal Procedure. Given the scale of the alleged criminal activity, the period in which it has taken place, the extent of [the defendants’] organisation, and the fact that they have allegedly smuggled large quantities of cocaine for the purpose of its further distribution, 338 kilograms of which has been seized in Spain, this panel finds that it suggests special circumstances justifying the fear that they may reoffend.", "The detention of the defendants P.Ć., M.V., A.Ć., S.K. and Vlatko Šoš was also extended under Article 123 § 1 (4) of the Code of Criminal Procedure. This panel finds that the case concerns a particularly grave offence under Article 173 § 3 of the Criminal Code for which a sentence of long-term imprisonment has been prescribed. Specifically, the very fact that [the case] concerns a large number of persons organised in a criminal enterprise for the purpose of trafficking large quantities of cocaine, for which purpose the defendant P.Ć. established a criminal organisation in Croatia, as well as the fact that a venture of trafficking of large quantities of the drug, such as the one smuggled by the defendants, is not undertaken by individuals who are not aware of the trafficking, suggest that the circumstances of the offence were particularly serious.", "The defendants are charged with acting on the basis of a prepared plan and agreement for permanently trafficking large quantities of cocaine, and in the period between January 2010 and 19 May 2011 they smuggled large quantities of [that drug] for the purpose of further distribution. The undisputed purity of the last shipment of the seized cocaine amounting to 338.29 kilograms means that it could have been used for making at least 3,000 doses for individual use ... which, on the black market, could have endangered the health of a high number of persons. These circumstances of the offence surpass the usual circumstances in which [such offences] are committed, and therefore they suggest that the charges are particularly serious.” 53. The applicant appealed against the above decision to the Supreme Court. On 28 November 2012 the Supreme Court dismissed his appeal as ill-founded, upholding the decision of the Split County Court.", "54. On 25 January 2013 a three-judge panel of the Split County Court extended the applicant’s pre-trial detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges), reiterating the wording of its previous decision and without setting any time-limits for the detention. 55. The applicant appealed against the decision on his pre-trial detention to the Supreme Court, arguing that it lacked relevant and sufficient reasons. 56.", "On 20 February 2013 the Supreme Court found that the applicant’s detention was to be extended only under Article 123 § 1 (3) of the Code of Criminal Procedure (risk of reoffending). It explained that the 2013 amendments to the Criminal Code provided that the offence at issue was punishable by a prison sentence of between three and fifteen years and no longer by long-term imprisonment. It was therefore not possible to remand the applicant on the grounds of the gravity of the charges since the possibility of imposing a sentence of long-term imprisonment was one of the conditions for extending pre-trial detention under Article 123 § 1 (4) of the Code of Criminal Procedure (gravity of charges). 57. On 20 April 2013 a three-judge panel of the Split County Court extended the applicant’s pre-trial detention under Article 123 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), relying on its previous reasoning and without setting any time-limits for the detention.", "58. The applicant appealed against that decision before the Supreme Court, reiterating that his continued detention had not been based on relevant and sufficient reasons. On 24 May 2013 the Supreme Court dismissed his appeal as ill-founded. 59. Meanwhile, on 17 May 2013, following the expiry of the maximum period of the applicant’s pre-trial detention, a three-judge panel of the Split County Court exceptionally extended this maximum time-limit for his detention for a further six months, relying on section 35 of the Act on the Office for the Suppression of Corruption and Organised Crime (see paragraph 71 below).", "It held that the time-limit for his detention before the adoption of the first-instance judgment would expire on 19 November 2013. 60. The applicant challenged the extension of the time-limit for his pre-trial detention before the Supreme Court, arguing that such a measure was unreasonable. He pointed out that the first-instance judgment could not be adopted before 19 November 2013 given that so far only the preparatory hearing had been scheduled. The applicant also contended that the impugned decision lacked relevant and sufficient reasons warranting his continued detention on the ground of the risk of reoffending.", "61. On 7 June 2013 the Supreme Court dismissed the applicant’s appeal, upholding the decision to extend the time-limit for his pre-trial detention. 62. On 2 August 2013 a three-judge panel of the Split County Court extended the applicant’s pre-trial detention under Article 123 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), reiterating its previous reasoning and without setting a time-limit for the detention. It also held that the applicant’s detention could not be replaced by less severe preventive measures.", "63. The applicant challenged that decision before the Supreme Court, arguing that in view of all the circumstances of the case, his continued detention was unreasonable. 64. On 9 September 2013 the Supreme Court dismissed the applicant’s appeal, upholding the decision of the Split County Court. 65.", "On 19 November 2013 the applicant was released from detention as the maximum statutory time-limit for his detention had expired. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Relevant domestic law 1. Constitution 66.", "The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows: Article 22 “Personal freedom and integrity are inviolable. No one shall be deprived of his liberty save in accordance with the law, and any deprivation of liberty must be examined by a court.” 2. Constitutional Court Act 67. The relevant part of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no.", "49/2002) 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 and obligations, or as regards a suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local and regional government guaranteed by the Constitution (‘constitutional right’) ... 2. If another legal remedy exists in respect of the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used.” 3. Criminal Code 68. The relevant provision of the Criminal Code (Kazneni zakon, Official Gazette nos.", "110/1997, 27/1998, 129/2000, 51/2001, 105/2004, 84/2005, 71/2006, 110/2007, 152/2008 and 57/2011) provides: Abuse of narcotic drugs Article 173 “ ... (2) Whoever, without authorisation, manufactures, processes, sells or offers for sale or buys for the purpose of reselling, keeps, distributes or brokers the sale and purchase of, or, in some other way and without authorisation, puts into circulation, substances or preparations which are by regulation proclaimed to be narcotic drugs, shall be punished by imprisonment for not less than three years. (3) If the criminal offence referred to in paragraph 2 of this Article is committed while the perpetrator is part of a group or a criminal organisation, or if he has set up a network for selling drugs, he shall be punished by imprisonment for not less than five years or by long-term imprisonment.” 69. The relevant provisions of the new Criminal Code (Kazneni zakon, Official Gazette nos. 125/2011 and 144/2012), which came into force on 1 January 2013, provide: Unauthorised manufacturing of or trafficking in drugs Article 190 “... (2) Whoever manufactures, processes, transfers, exports or imports, obtains or possesses [narcotic drugs] for the purpose of unauthorised sale or in some other way puts into circulation, or without authorisation offers for sale, sells or brokers the sale or in some other way puts into circulation [narcotic drugs] shall be punished by imprisonment for one to twelve years.” Commission of an offence by participating in a criminal organisation Article 329 “(1) Whoever, aware of the aim of a criminal organisation or its criminal activity, commits an offence while participating in such an organisation ... shall be punished: ... 4. for an offence which is punishable by up to ten or twelve years’ imprisonment, by a sentence of imprisonment for three to fifteen years”. 4.", "Code of Criminal Procedure 70. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 152/2008, 76/2009, 80/2011, 121/2011, 91/2012, 143/2012 and 56/2013) provide: Preventive Measures Article 98 “(1) Where the conditions for ordering pre-trial detention under Article 123 of this Code have been fulfilled, and where the same purpose may be achieved by other preventive measures, the court or the State Attorney shall order that one or more preventive measures 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 of the defendant to report periodically to a certain person or a State body; 4) prohibition on contact with a certain person; 5) prohibition on establishing or maintaining contact with a certain person; 6) prohibition on undertaking a certain business activity; 7) temporary seizure of a passport or other document necessary for crossing the State border; 8) temporary seizure of a driving licence ...” Bail Article 102 “(1) Pre-trial detention under Article 123 paragraphs 1 to 4 of this Code may be terminated provided that the defendant personally, or another person on his behalf, posts bail and the defendant personally promises that he will not hide or leave his place of residence without permission, that he will not interfere with the criminal proceedings and that he will not commit a new criminal offence. (2) In the decision on pre-trial detention, the court may set the amount of bail which could replace the detention. Bail shall always be set in a pecuniary amount determined with regard to the gravity of the criminal offence and the personal circumstances and financial situation of the defendant.", "(3) If the court considers that bail cannot substitute pre-trial detention, it shall set out the reasons why it considers that [to be so]. (4) Complementary to the bail, the court may order the application of one or more preventive measures.” General provisions on pre-trial detention Article 122 “(1) As soon as the grounds for pre-trial detention cease to exist, the detention shall be lifted and the detainee released. (2) When deciding on pre-trial detention, in particular its duration, a court shall take into consideration the proportionality between the seriousness of the offence, the sentence which ... may be expected to be imposed, and the need to order and determine the duration of the detention. ... ... (4) In the event that pre-trial detention has been ordered, the proceedings shall be conducted particularly promptly ...” Grounds for ordering pre-trial detention Article 123 “(1) Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in pre-trial detention: ... 2. there is a risk that he or she might destroy, hide, alter or forge evidence or clues relevant to the criminal proceedings or influence witnesses, or where there is a risk of collusion; 3. there is a risk that the person concerned might reoffend ...; 4. if it is necessary to order detention so as to secure the proper conduct of the proceedings for an offence for which a sentence of long-term imprisonment may be imposed and which concerns particularly grave circumstances.” Decision on pre-trial detention Article 124 “(1) The pre-trial detention shall be ordered and extended by a written court decision. (2) ... [A] decision on the pre-trial detention shall provide: 1) if an investigation is conducted, specification of the investigation order; 2) the legal grounds for detention; 3) the time-limit for the detention; 4) the relevant provision concerning the way in which the previous deprivation of liberty was calculated and an indication of the time of the arrest; 5) the amount of bail which may substitute the pre-trial detention.", "(3) The decision on the pre-trial detention shall be reasoned so as to provide a specific and full indication of the facts and relevant evidence concerning the reasonable suspicion that the defendant has committed the offence, the grounds [for detention], as well as the reasons why the pre-trial detention should not be replaced with a less severe measure, and any decision concerning the bail. ... ” Duration of pre-trial detention Article 131 “... (3) In the decision on pre-trial detention after the submission of the indictment the time-limit for [its] duration shall not be determined, but the court shall, every two months, calculating from the date of the previous final decision on detention until the adoption of the first-instance judgment, re-examine whether the legal grounds for detention still persist, and [based on that assessment] it shall extend or lift the detention. ...” Article 133 “(1) Until the adoption of a first-instance judgment, pre-trial detention may last for a maximum of: ... 5. two years for offences carrying a sentence of more than eight years’ imprisonment; ...” 5. Act on the Office for the Suppression of Corruption and Organised Crime 71. The relevant provision of the Act on the Office for the Suppression of Corruption and Organised Crime (Zakon o Uredu za suzbijanje korupcije i organiziranog kriminaliteta, Official Gazette nos.", "76/2009, 116/2010, 145/2010, 57/2011 and 136/2012) provides as follows: Section 35 “(1) The total duration of the pre-trial detention before the submission of the indictment, if the investigation is lengthy (Article 230 paragraph § 1 of the Code of Criminal Procedure) may be twelve months. ... (2) If the pre-trial detention during the investigation has been extended under subsection (1) above, the total duration of the pre-trial detention under Article 130 § 2 of the Code of Criminal Procedure shall be extended for six months.” B. Relevant practice 72. On 13 January 2014, in its decision no. U-III-5449/2013, the Constitutional Court found that it should change its approach to cases where a constitutional complaint has been brought against a decision on detention which has in the meantime been replaced by a new decision on detention, before the Constitutional Court has decided on it.", "It considered that, in view of the requirements under Article 5 § 4 of the Convention, such complaints should be examined on the merits. The relevant part of the decision reads: “6. The [Court’s] case-law with respect to Croatia shows that the Constitutional Court is obliged to re-examine its case-law in line with the requirements under Article 5 § 4 [of the Convention]. ... The Constitutional Court is obliged, however, to align its practice with the requirements of Article 5 § 4 of the Convention.", "That means in the case at issue that the Constitutional Court is obliged to examine the appellant’s complaints against the impugned decisions extending his pre-trial detention on the merits, irrespective of the fact that those decisions were repealed ... before the termination of the proceedings before the Constitutional Court ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 73. The applicant complained that his continued pre-trial detention had been arbitrary and had not been based on relevant and sufficient reasons. He relied on Article 5 §§ 1 (c) and 3 of the Convention. The Court, being the master of the characterisation to be given in law to the facts of the case (see, for example, Margaretić v. Croatia, no.", "16115/13, § 75, 5 June 2014), considers that this complaint falls to be examined under Article 5 § 3 of the Convention, which reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 74. 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’ arguments (a) The applicant 75. The applicant contended that his pre-trial detention had been excessively lengthy and had not been based on relevant and sufficient reasons. He stressed that when extending his detention throughout the period at issue the domestic courts had failed to cite any compelling reasons justifying his deprivation of liberty.", "In fact, from the very beginning of his deprivation of liberty they had merely reiterated the same stereotyped wording without making the necessary assessment of the particular circumstances of the case. Moreover, following the submission of the indictment in the competent court, the domestic courts had failed to set time-limits for the continued detention in their decisions extending his detention. 76. The applicant further argued that the domestic authorities had failed to display “special diligence” in the conduct of the proceedings, given that he had been detained on 19 May 2011 and the indictment against him had not been confirmed until 25 January 2013. In those circumstances, his pre-trial detention had essentially turned into a prison sentence and had lost its purpose of a preventive measure.", "The applicant also pointed out that the domestic courts had never given genuine consideration to the possibility of replacing his pre-trial detention with less severe preventive measures but had simply dismissed any proposal he had made in that respect. (b) The Government 77. The Government argued that the applicant’s pre-trial detention had been in full compliance with the requirements of the relevant domestic law and had been based on relevant and sufficient reasons. In particular, the time-limits for his pre-trial detention had not been set out in the decisions extending the detention following the submission of the indictment because that had not been required under the relevant domestic law. However, on each occasion the domestic authorities had paid due attention to the necessity of his continued detention and had examined the particular circumstances of the case warranting his continued deprivation of liberty.", "78. In the Government’s view, there was no doubt that throughout the period of the applicant’s pre-trial detention a reasonable suspicion had existed that he had committed the offence at issue. Moreover, during the investigation the domestic authorities had relied on a justified fear that he might suborn witnesses, but once the witnesses had been questioned they had not extended his detention on that ground. The domestic authorities had also found that the particular circumstances of the case and the manner in which the offence at issue had been committed suggested that the applicant might reoffend. In addition, they had initially relied on the gravity of the charges as an element suggesting that the detention was needed to ensure the proper conduct of the proceedings, but when the relevant domestic law changed, they no longer extended his detention on that ground.", "79. The Government further argued that the fact that the domestic authorities, when extending the applicant’s pre-trial detention, had reiterated the same or similar reasoning did not suggest any breach of his rights since his detention had been extended by the domestic courts sitting in various formations and with due respect to the applicant’s rights and the particular circumstances warranting his continued deprivation of liberty. The domestic courts had examined the possibility of applying less restrictive preventive measures but had found them insufficient in view of the circumstances of the case. The Government also pointed out that the criminal proceedings at issue concerned a particularly complex case and that the domestic authorities had duly complied with the requirement of special diligence in the conduct of the proceedings. 2.", "The Court’s assessment (a) General principles 80. The Court reiterates that Article 5 of the Convention is in the first rank of the fundamental rights that protect the physical security of an individual, and that three strands in particular may be identified as running through the Court’s case-law: the exhaustive nature of the exceptions, which must be interpreted strictly and which do not allow for the broad range of justifications under other provisions (Articles 8 to 11 of the Convention in particular); the repeated emphasis on the lawfulness of the detention, procedurally and substantively, requiring scrupulous adherence to the rule of law; and the importance of the promptness or speediness of the requisite judicial controls under Article 5 §§ 3 and 4 (see, for instance, McKay v. the United Kingdom [GC], no. 543/03, § 30, ECHR 2006‑X). 81. The Court has repeatedly held that the question whether a period of detention is reasonable, under Article 5 § 3, cannot be assessed in abstracto.", "Whether it is reasonable for an accused to remain in detention must be assessed in each case. Continued detention can be justified only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, W. v. Switzerland, 26 January 1993, Series A no. 254‑A; Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‑XI; and Idalov v. Russia [GC], no. 5826/03, § 139, 22 May 2012).", "82. The presumption is in favour of release. The second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require him to be released provisionally once his continuing detention ceases to be reasonable (see Vlasov v. Russia, no. 78146/01, § 104, 12 June 2008, with further references).", "83. It falls in the first place to the national judicial authorities to ensure that in a given case the pre-trial detention of an accused person does not exceed a reasonable time. To this end, they must examine all the evidence for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty, and must set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and the facts cited by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000‑IV).", "84. The arguments for and against release must not be “general and abstract” (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 63, ECHR 2003-IX). Where the law provides for a presumption in respect of factors relevant to the grounds for continued detention, the existence of the specific facts outweighing the rule of respect for individual liberty must be convincingly demonstrated (see Ilijkov v. Bulgaria, no. 33977/96, § 84 in fine, 26 July 2001).", "85. The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see, amongst many others, Idalov, cited above, § 140; Contrada v. Italy, 24 August 1998, § 54, Reports of Judgments and Decisions 1998-V; I.A. v. France, 23 September 1998, § 102, Reports 1998-VII; Toth v. Austria, 12 December 1991, § 67, Series A no.", "224; B. v. Austria, 28 March 1990, § 42, Series A no. 175; and Krikunov v. Russia, no. 13991/05, § 36, 4 December 2014). (b) Application of these principles to the present case 86. As to the period be taken into account in the present case, the Court reiterates that in determining the length of detention under Article 5 § 3 of the Convention, the period to be taken into consideration begins on the day the accused is taken into custody and ends on the day he is released (see, for example, Fešar v. the Czech Republic, no.", "76576/01, § 44, 13 November 2008) or when the charge was determined, even if only by a court of first instance (see Belevitskiy v. Russia, no. 72967/01, § 99, 1 March 2007). 87. It follows that the period of the applicant’s detention to be taken into consideration began on 19 May 2011, the date of his arrest (see paragraph 17 above), and ended on 19 November 2013, when he was released (see paragraph 65 above), which in total amounts to two years and six months. 88.", "The Court observes at the outset that the national authorities must put forward convincing reasons for having kept the applicant in detention for such a long time (see Artemov v. Russia, no. 14945/03, § 74, 3 April 2014). 89. The Court notes that the applicant’s pre-trial detention was initially based on three grounds: risk of collusion by suborning witnesses, risk of reoffending, and the gravity of the charges. The first cited ground ceased to exist once the investigating judge had heard evidence from all the relevant witnesses.", "Thus, from 18 August 2011 the risk of collusion was no longer relied upon as a ground for the applicant’s pre-trial detention (see paragraph 25 above). Similarly, the ground of gravity of the charges could no longer be applied after January 2013 following the objective circumstances related to the changes in the relevant domestic law (see paragraphs 56 and 68-70 above). Thereafter the applicant’s detention was extended solely on the ground of a risk of reoffending. 90. It remains to be ascertained whether the domestic authorities established and convincingly demonstrated the existence of specific facts in support of their conclusions with regard to the particular grounds relied upon.", "In making that assessment the Court will bear in mind, even taking into account the particular difficulty in dealing with a case concerning an organised criminal group, that the domestic authorities are required to make an adequate individual assessment of the grounds for detention in respect of a particular defendant (see, amongst many others, Dolgova v. Russia, no. 11886/05, § 49, 2 March 2006; and Yevgeniy Gusev v. Russia, no. 28020/05, § 88, 5 December 2013). 91. With regard to the domestic authorities’ decisions on the applicant’s detention relying on the risk of collusion by suborning witnesses, the Court notes that at the initial stages of the proceedings the investigating judge found that it was necessary to question a number of witnesses who had relevant knowledge of the offences at issue and knew the applicant (see paragraph 22 above).", "In the Court’s view, having in mind the particular complexity of the case at issue, this reason was “relevant” and “sufficient” to justify the applicant’s detention. 92. As regards the domestic authorities’ reliance on the gravity of charges when extending the applicant’s pre-trial detention, the Court reiterates that while that may be a relevant element in the overall assessment, the need to continue deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence (see, for instance, Kolunov v. Russia, no. 26436/05, § 51, 9 October 2012, and cases cited therein). 93.", "However, the Court accepts that, by reason of their particular gravity and the public reaction to them, certain offences may give rise to public disquiet capable of justifying pre-trial detention, at least for a certain time. In exceptional circumstances – and subject, obviously, to there being sufficient evidence – this factor may therefore be taken into account for the purposes of the Convention. However, this ground can be regarded as relevant and sufficient only provided that it is based on facts capable of showing that the accused’s release would actually prejudice public order. In addition, detention will continue to be legitimate only if public order actually remains threatened; its continuation cannot be used to anticipate a custodial sentence (see, for example, Kemmache v. France, 27 November 1991, § 52, Series A no. 218, and Tomasi v. France, 27 August 1992, § 91, Series A no.", "241‑A). 94. In this connection the Court observes that the national courts did not explain why the applicant’s continued detention was necessary in order to prevent public disquiet and did not examine whether the applicant presented a danger for public safety, given the specific circumstances of his case and the charges held against him. Therefore, the domestic authorities’ arguments, although relevant, cannot be seen as sufficient for ordering or extending the applicant’s detention. 95.", "With regard to the extension of the applicant’s detention on the grounds of the risk of reoffending, the Court notes that the domestic courts did not point to any aspects of the applicant’s character or behaviour that would justify their conclusion that he presented such risks. Moreover, they paid no heed to important and relevant facts supporting the applicant’s specific requests for release and reducing the above risks, such as his clean criminal record and his employment (compare Taranenko v. Russia, no. 19554/05, § 54, 15 May 2014). 96. Although the applicant consistently insisted on the need to devote proper attention to his particular situation, pointing out the factors in favour of his release, the domestic courts continued applying detention orders without a proper assessment of his case in the context of the detention orders against nine other defendants.", "Moreover, the domestic courts failed to thoroughly examine the possibility of applying another, less severe, measure of restraint and they either rejected at the outset or ignored the applicant’s request for application of the preventive measures (see, for instance, paragraphs 20-22, 28-29 and 44-46 above; and compare Taranenko, cited above, §§ 53-54). 97. The Court therefore finds that by failing to sufficiently refer to the relevant matters pertinent to the applicant’s specific situation the domestic authorities extended his detention on grounds which cannot be regarded as “relevant” and “sufficient”. 98. Lastly, with regard to the applicant’s arguments that following the submission of the indictment in the competent court, the domestic courts had failed to set time-limits for the continued detention in their decisions extending his detention, the Court notes that the domestic courts’ orders referred to specific statutory grounds and reasons for the applicant’s continued detention, which were then re-examined every two months, as required under the relevant domestic law (see paragraph 70 above, Article 131 § 3 of the Code of Criminal Procedure).", "Thus, in the Court’s view, contrary to the case-law concerning some other countries (see, for instance, Kharchenko v. Ukraine, no. 40107/02, § 98, 10 February 2011, and Chumakov v. Russia, no. 41794/04, § 130, 24 April 2012), no issue of itself arises in this context. 99. In view of its findings above (see paragraphs 94 and 97 above), the Court considers that the domestic authorities failed to convincingly justify the applicant’s continued deprivation of liberty, as required under Article 5 § 3.", "In those circumstances, it is not necessary to examine whether the proceedings were conducted with “special diligence” (see, for instance, Orban v. Croatia, no. 56111/12, § 62, 19 December 2013). 100. There has accordingly been a violation of Article 5 § 3 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 101. The applicant complained that he had not been able to obtain effective judicial review of his pre-trial detention, contrary to Article 5 § 4 of the Convention. In particular, he contended that the Constitutional Court had unjustifiably declined to examine his constitutional complaint of 15 November 2011 on the merits, declaring it inadmissible on 22 December 2011 merely because a new decision on his detention had been adopted in the meantime. 102. The Government contested this argument.", "103. The Court notes that the final domestic courts’ decision complained of, namely the decision of the Constitutional Court of 22 December 2011, was served on the applicant’s representative on 10 January 2012 (see paragraph 35 above) and that he introduced his application before the Court on 3 April 2013, namely more than six months later. 104. In this connection the Court reiterates that, irrespective of the absence of an objection raised by the Government, in each case brought before it, the Court must ensure that the application has been lodged in compliance with the six-month time-limit (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 29, 29 June 2012).", "105. Consequently, given that the applicant brought his complaints before the Court more than six months following the service of the final domestic court decision on him, the Court finds that he failed to comply with the relevant six-month time-limit (compare Bernobić v. Croatia, no. 57180/09, § 78-81, 21 June 2011; and Balta v. Turkey (dec.), no. 51359/09, § 86, 9 December 2014). 106.", "It follows that this part of the application 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 107. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the 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 108.", "The applicant claimed 22,338.16 euros (EUR) in respect of pecuniary damage for loss of earnings during the period of his detention, and EUR 4,000 in respect of non-pecuniary damage. 109. The Government considered the applicant’s claim unfounded and unsubstantiated. 110. 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 2,600 in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 111. The applicant also claimed EUR 20,000 for the costs and expenses incurred before the domestic courts and for those incurred before the Court. 112.", "The Government considered this claim unfounded and unjustified. 113. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,000 covering costs under all heads, plus any tax that may be chargeable. C. Default interest 114.", "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 applicant’s complaints about the length of his 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 applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Croatian kunas (HRK), at the rate applicable at the date of settlement: (i) EUR 2,600 (two thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 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 1 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposIşil KarakaşDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF MULLAI AND OTHERS v. ALBANIA (Application no. 9074/07) JUDGMENT (merits) STRASBOURG 23 March 2010 FINAL 23/06/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mullai and Others v. Albania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,Päivi Hirvelä,Ledi Bianku,Nebojša Vučinić, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 2 March 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "9074/07) 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 seven Albanian nationals, Mrs Nesime Mullai, Mr Astrit Daci, Mrs Mediha Hoti, Mrs Suzana Zereliu, Mrs Nermin Daci, Mrs Etleva Mullai and Mrs Eva Pinguli (“the individual applicants”) and by Teknoprojekt sh.p.k. (“the applicant company”), a limited liability company, on 1 December 2006. 2. The applicants were represented by Mr S. Puto, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their then Agent, Ms S. Meneri.", "3. The applicants alleged a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention on account of the quashing of a final judgment, the authorities' failure to enforce a final court judgment and the excessive length of the proceedings. 4. On 12 September 2007 the President of the Section to which the case was allocated decided to give notice of the application to the Government.", "Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility. On the same date the application was given priority under Rule 41 of the Rules of Court. 5. The applicants and the Government each filed written observations (Rule 59 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 6. The individual applicants were born in 1938, 1938, 1926, 1963, 1942, 1970 and 1954 respectively and live in Albania, the United States of America and Italy. 7. The applicant company is incorporated under Albanian law and is registered in Tirana. A.", "Proceedings concerning the restitution of property 8. The individual applicants are the heirs of a certain Mr M. who, in 1947, was the owner of a three-storey villa and an adjacent plot of land situated in the centre of Tirana. On an unspecified date in 1947 the authorities confiscated the property, which remained in their possession until 1994. 9. On 30 December 1994, following the individual applicants' request in accordance with the Property Act 1993, the Tirana Commission on Restitution and Compensation of Properties (“the Commission”) allowed their claim to the villa and 1,100 sq.", "m of land. The Commission rectified that decision on 8 August 2002, recognising the individual applicants' property rights to a plot of land measuring 1,515 sq. m, which corresponded to the original property. The property title was entered in the Land Register. 10.", "From 1996 to 1998 the property concerned was leased by the individual applicants to the Libyan Embassy in Tirana. B. Proceedings concerning the building permit 1. Administrative proceedings 11. On 30 April 1998 the individual applicants entered into an agreement with the applicant company for the construction of a tower block on their property.", "Under that agreement the applicant company was given authority to obtain the administrative authorisations needed for the construction. A final contract was to be concluded when the requisite permit had been obtained. 12. On 23 October 1998 and 22 December 1998 the Tirana Municipality's Council for Territorial Planning (Këshilli i Rregullimit Territorit të Bashkisë së Tiranës – “the municipal CTP”) granted the applicant company a planning permit and a building permit authorising it to erect a sixteen-storey building on the property. Consequently, on15 July 1999 the Tirana Municipality Technical Council (Këshilli Teknik i Bashkisë së Tiranës) authorised the applicant company to demolish the existing three-storey villa and erect the new construction in its place.", "13. On an unspecified date in 1999 the applicant company demolished the villa and developed the site according to the permits and plans approved by the Tirana Municipality (“the Municipality”). 14. On 31 August 1999, while the construction work was under way, the Prefect of Tirana, (“the Prefect”) issued a notice suspending the work. The notice stated that the building permit should have been granted by the national Council for Territorial Planning (“the national CTP”) and that the Municipality had exceeded its competence by authorising the construction of such a large building in the centre of Tirana (see paragraph 59 below).", "15. On 6 September 1999 the Municipality informed the Prefect that the building permit was in order and had been issued on the basis of the relevant legal provisions. Notwithstanding this, on 4 October 1999, the Tirana Construction Police (Policia Ndërtimore) enforced the Prefect's notice and suspended work on the construction site. 16. On 12 January 2000, acting on the applicant company's request, the Prefect annulled his previous notice and the building work resumed.", "17. On 22 January 2000 the Minister of Public Works (“the Minister”) ordered the suspension of the construction work on the basis that the municipal CTP's decisions (see paragraph 12 above) had to be examined and approved by the national CTP. On the same day the Tirana Construction Police enforced the Minister's order by suspending the work again. 18. On 26 January 2000 the applicant company unsuccessfully filed an application with the Director of the national Construction Police to have the suspension order lifted.", "19. On 9 February 2000 the national CTP decided that a legal interpretation of the validity of the building permit was needed, stating that the permit had been adopted on the basis of the Urban Planning Act 1993, which had been repealed at the material time. It did not revoke the suspension order. Nor did the decision explicitly indicate the body that was to be responsible for the legal interpretation. However, it appears that the decision was addressed to the Municipality, requesting it to issue a new urban plan of the area and to inform the national CTP accordingly.", "20. On 13 March 2000 and 3 May 2000 the Ministry of Public Works requested the Tirana Municipality to comply with the national CTP's decision. 21. According to the individual applicants and the applicant company, on an unspecified date in 2000 the Municipality confirmed the validity of its decisions of 23 October 1998 and 22 December 1998. However, no substantiating document was produced.", "2. The judicial proceedings concerning the lawfulness of the Minister's order and the action of the Construction Police of 22 January 2000 22. On an unspecified date in 2000 the applicant company challenged the validity of the above acts (see paragraph 17 above). 23. On 11 July 2000 the District Court dismissed their application.", "In its reasoning it found that the building permit was null and void as it had been issued on the basis of the Urban Planning Act 1993, which was not in force at the material time. The operative part of the judgment did not state that the building permit was null and void. 24. On 4 January 2001 the Tirana Court of Appeal (“the Court of Appeal”) quashed the District Court's judgment. It upheld the applicant company's grounds of appeal and annulled the Minister's order and the action of the Construction Police.", "25. On 29 March 2001, following an appeal by the Construction Police, the Supreme Court quashed the Court of Appeal's judgment and upheld that of the District Court. The Supreme Court found that the prefect's decision of 12 January 2000 was ultra vires in so far as the proceedings were pending before the national CTP. Given the circumstances, the Minister and the Tirana Construction Police had suspended the work on 22 January 2000. The judgment stated the following: “(...) The court notes that the national CTP's decision is not final.", "It does not determine the merits of the case at issue, but it implies that they will be determined once the tasks emanating from the decision have been completed. Point (a) of the national CTP's decision [the legal interpretation of the municipal CTP decision of22 December 1998] questions the lawfulness of the building permit issued by the municipal CTP. It does not, however, take a final decision on the matter, even though it should have done so. It is not clear as to who is to make the legal interpretation of the municipal CTP decision. (...) The contents of points (b) [the preparation of a new urban plan of the area] and (c) [the Municipality's obligation to comply with the national CTP decision and inform it accordingly] of the national CTP decision reinforce the conclusion that the decision is not final.", "The final decision shall be taken after the municipal CTP issues a new urban plan of the area, which shall be subject to examination by the national CTP. (...) It is incumbent upon the national CTP to fully, unequivocally and finally address the above issues. Only after the administrative remedies have been exhausted, with the help of the national CTP (...), can the matter be referred to the courts for the protection of property rights and other rights in rem of parties bordering on the plot of land (...). The prefect represents the Council of Ministers [the Central Government] to the local government. He has been invested with powers by law.", "However, when an issue has been transferred to the Central Government, even by his own motion, he cannot exercise any other right. Otherwise, that would be considered an excess of powers.” 26. However, in the same judgment the Supreme Court went on to declare the building permit null and void for the following reasons: “(...) It results that at the time the building permit was granted, the Urban Planning Act 1993, which redefined the composition of the municipal CTP, had been repealed. Article 19 of the new [Urban Planning] Act of 1998 establishes the new composition of the municipal CTP, made up of 21 members, stipulating the respective functions and tasks to be carried out. (...) The new [1998] Act entered into force on 25 October 1998.", "Given that the new Act does not contain any transitional provisions which would render legitimate the continuation of the municipal CTP's work on the basis of the 1993 Act, the new [municipal] CTP should have been established in compliance with the composition and selection criteria of its members laid down in the new [1998] Act. Consequently, any decision taken by the previous CTP [on the basis of the Urban Planning Act 1993] is considered null. A decision taken by an organ which has been revoked by law and on the basis of a repealed law is null and, as such, cannot yield any legal consequences. That being so, the [applicant company's] building permit of 22 December 1998 is considered null and void. In view of the foregoing, the Civil Bench of the Supreme Court concludes that the District Court's judgment was not ultra vires when it considered the building permit null and void, even though this was not part of the object of those proceedings.", "[The District Court] did not examine the [applicant company's] right to continue the building work as this would have been beyond the scope of the examination of the administrative dispute before it.” 27. The operative part of the Supreme Court's ruling did not contain any mention of the invalidity of the building permit. The judgment became final on the same day as none of the parties filed a complaint with the Constitutional Court. C. The judicial proceedings initiated by the Swiss Embassy in Tirana (“the Embassy”) 28. On 19 March 2001 the Embassy, whose premises are adjacent to the construction site, challenged the validity of the building permit.", "The individual applicants intervened in the proceedings as third parties (ndërhyrës dytësor). 29. On 28 May 2002 the District Court declared the building permit null and void. Without explicitly referring to the Supreme Court's ruling of 29 March 2001 (see paragraph 26 above), the reasoning of the District Court stated that the building permit had been issued on the strength of the Urban Planning Act 1993, which had been repealed at the material time. 30.", "The individual applicants and the applicant company appealed. On 3 March 2003 the Court of Appeal requested the national CTP to rule on the validity of the building permit in the light of the Supreme Court's finding of 29 March 2001 that all administrative remedies had to be exhausted (see paragraph 25 above). 31. On 18 June 2003 the national CTP upheld the validity of the building permit issued by the Municipality. In its letter to the Court of Appeal the Minister of Territorial Planning, acting as the deputy chairman of the national CTP, indicated that the judicial proceedings pending before the Court of Appeal would examine and finally resolve the dispute (është procesi gjyqësor që do të bëjë vlerësimin dhe do të zgjidhë përfundimisht konfliktin e paraqitur në lidhje me këtë objekt).", "32. On 3 October 2003 the Court of Appeal quashed the District Court's judgment and dismissed the case. In its reasoning, it stated that the Embassy had lodged its action outside the time-limits prescribed by the Code of Civil Procedure. It appears that the building permit was declared lawful, although no mention of this was made in the operative part of the judgment. The Court of Appeal did not make any reference to the reasoning of the Supreme Court's judgment of 29 March 2001, which had declared the building permit null and void (see paragraph 26 above).", "There was no order in the judgment for the construction work to be resumed. 1. Developments following the Court of Appeal's judgment of 3 October 2003 33. On 15 September 2003 the applicant company requested the Construction Police to cancel the order for the suspension of building work on the strength of the national CTP's decision of 18 June 2003 (see paragraph 31 above). 34.", "The Construction Police requested the applicant company to update the file relating to the work by presenting ex novo the necessary documents in order for them to consider the request. The applicant company submitted the documents as requested. No response from the police was received. 35. On 29 December 2004, following the applicant company's request for intervention, the Albanian Ombudsperson (Avokati i Popullit) acknowledged that the building permit had been declared null and void by the Supreme Court's judgment of 29 March 2001 and refused to intervene.", "2. Proceedings before the Supreme Court 36. On 20 April 2005, following an appeal by the Embassy, the Supreme Court upheld the Court of Appeal's judgment of 3 October 2003. It found that the Embassy did not have locus standi to challenge the impugned building permit and reasoned, in so far as relevant, as follows. “The building permit relates to an administrative-legal relationship between the construction company [the applicant company] and the national CTP.", "The action filed by the plaintiff [the Embassy] cannot pertain outside the context of an action concerning the cessation of interference with its property rights (...) Article 32 (a) of the Code of Civil Procedure stipulates: “A civil legal action is lodged in order to seek the restoration of a right or legitimate interest that has been violated.” (...) In the instant case, no legitimate interest within the meaning of the provision cited above has been invoked. [The Embassy] has not argued any violation or denial of a right directly caused to it by the defendant's building permit. Since the lodging of the civil action and throughout the [court] proceedings, [the Embassy] has merely set out some procedural violations associated with the granting of the building permit. The existence or otherwise of these violations cannot impinge upon a claimant's subjective right. The claimant would have locus standi if it alleged that the company's construction work resulted in an infringement of its property rights.", "Even though [the Embassy] initially introduced such a claim, it subsequently withdrew it and did not refer it to the court. (...) the court concludes that [the Embassy] lacks a legal interest and therefore lacks locus standi to lodge the civil action. (...) The claimant argued that the Court of Appeal had been wrong to accept that the national CTP had ruled on the validity of the building permit as no decision had been issued by that authority. This complaint relates to the determination of the merits of the case, on which the court deems it inappropriate to rule one way or the other. In the light of the above conclusions, there are no other legal grounds to challenge the Court of Appeal's judgment.” 37.", "In its ruling, the Supreme Court did not examine the lawfulness of the building permit. The judgment became final on the same day, as none of the parties filed a complaint with the Constitutional Court. 3. Developments following the Supreme Court's judgment of 20 April 2005 38. On 22 June 2005 the applicant company, considering that the lawfulness of the building permit had been upheld by the Supreme Court's judgment of 20 April 2005, and given the inactivity of the Construction Police, informed the Municipality that it had decided to resume the construction notwithstanding the fact that a suspending order was still in force.", "39. On 23 June 2005 the Municipal Police (Policia Bashkiake) inspected the construction site and ordered the suspension of work until such time as security measures were properly observed. 40. On 29 June 2005 the Municipal Police extended the suspension order on account of some breaches of urban planning rules. In a letter of 4 July 2005 the applicant company provided explanations concerning the alleged breaches.", "41. On 30 November 2005, following the applicant company's request for permission to resume the building work, the Construction Police informed them that the request concerning the dispute between the applicant company and the Municipal Police was outside their jurisdiction. D. The second set of judicial proceedings initiated by the Embassy 42. On an unspecified date in 2005 the Embassy initiated another set of proceedings with the District Court alleging that the new construction breached its property rights. 43.", "On 14 December 2005 the District Court delivered its judgment finding that the new building would not comply with urban planning distances and therefore breached the Embassy's property rights. The District Court ordered the suspension of construction work until the final determination of the dispute. It relied on the Supreme Court's judgment of 29 March 2001, which had declared the building permit null and void. 44. On an unspecified date between 2005 and 2006 the applicant company challenged the lawfulness of the District Court's judgment before the Court of Appeal, arguing that the Court of Appeal's judgment of 3 October 2003, which had become final, confirmed the validity of the building permit (see paragraph 32 above).", "The District Court's judgment of 14 December 2005 had quashed that final ruling, thereby contravening the principle of legal certainty. 45. Two months later, the District Court's judgment had not yet been served on the applicant company. On 15 March 2006, following complaints by the applicant company, the High Council of Justice informed them that the case had been sent to the Ministry of Justice for the appropriate disciplinary proceedings to be taken against the District Court judges who had failed to deliver the judgment. In a letter of 5 April 2006 the applicant company complained to the Court of Appeal that they had not yet been served with a copy of the District Court's judgment.", "The case file indicates that the judgment was served on them at some point after 5 April 2006. 46. On 13 June 2007 the Court of Appeal quashed the District Court's judgment. It found that there had been no interference with the Embassy's property rights since the construction had barely started, so there was no building to comply with urban planning distances. It further held that as the Supreme Court had found in its judgment of 29 March 2001 that the building permit was not valid, there could be no interference with the Embassy's property rights.", "It finally dismissed the case. 47. On an unspecified date in 2007 the Embassy appealed to the Supreme Court. On 14 July 2009 the Supreme Court declared the appeal inadmissible in accordance with Article 472 of the Code of Civil Procedure (no valid grounds of appeal). 48.", "On 1 August 2007 the Tirana Construction Police informed the Embassy and the Ministry of Public Works that they would comply with the Court of Appeal's judgment of 13 June 2007, which, in their opinion, had confirmed the lawfulness of the applicant company's building permit. 49. On 21 August 2007, at the applicant company's request, the District Court issued a writ of execution in respect of the Court of Appeal's judgment of 13 June 2007. 50. On an unspecified date in 2007 the applicant company resumed the construction work, which was subsequently suspended by the Construction Police on 11 September 2007 with the cooperation of the police.", "51. On 13 September 2007 the Municipal Construction Inspectorate (“MCI”) requested the applicant company to provide some missing technical documents. 52. On 19 September 2007, at the applicant company's request, the Tirana prosecutor's office enquired about the lawfulness of the action of the Construction Police of 11 September 2007 in the absence of any written notice of the suspension of construction work. The applicant company maintained that the validity of the building permit had been acknowledged by the national CTP and confirmed by the judgments of the Court of Appeal and the Supreme Court of 3 October 2003 and 20 April 2005, respectively.", "53. On 24 September 2007 the MCI ordered the suspension of the construction work because certain technical documents were missing from the file. On 1 October 2007 the applicant company appealed to the National Construction Inspectorate (“the NCI”). On 30 October 2007 the NCI informed the applicant company that they should submit their concerns to the MCI. 54.", "On 5 January 2008, noting that some technical documents were missing, the MCI decided to suspend the work. There is no indication that an appeal was filed against that decision. On 16 January 2008 the MCI extended the suspension order for a period of sixty days. 55. On 18 March 2008 the MCI decided to stop the construction work altogether and demolish what had already been built.", "There is no indication that an appeal was filed against that decision. Nor is there any information that the existing construction has been demolished. II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution 56.", "The Albanian Constitution, in so far as relevant, reads as follows: Article 131 “The Constitutional Court shall decide: ... (f) final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.” B. The Urban Planning Act 1998 (Law no. 8405 of 17 September 1998 as amended by Law no. 8501 of 16 June 1999, Law no. 8991 of 23 January 2003 and, more recently, Law no.", "9843 of 17 December 2007) (“The 1998 Act”) 57. The 1998 Act defines the general rules governing the location and architecture of constructions in Albania. The Act entered into force on 25 October 1998. Section 7 provides for the establishment of the national CTP, presided over by the Prime Minister. Its composition is determined by decision of the Council of Ministers (section 8).", "The Ministry responsible for territorial planning coordinates the work of the national CTP (section 12). Section 14 provides for the establishment of municipal CTPs. 58. The 1998 Act instituted a two-tier procedure for obtaining the necessary permits. An application for planning permission (kërkesa për shesh ndërtimi) should initially be submitted for examination and approval by the Municipal CTP pursuant to section 39.", "A building permit (leje ndërtimi) should then be obtained pursuant to section 45. This is the sole legal document on the basis of which construction work may start. 59. Section 9 of the 1998 Act empowered the national CTP, amongst other things, to approve the urban study and building permits in respect of constructions located in city centres. Under section 10 of the 1998 Act the national CTP was empowered to quash decisions adopted by the municipal CTPs.", "By decision no. 29 of 21 December 2006 the Constitutional Court declared unconstitutional these parts of section 9 and section 10, since they breached the constitutional principle of decentralisation and local government autonomy. C. The Construction Police Act 1998 (“the 1998 Police Act”) as amended by the Construction Inspection Act 2007 (“the 2007 Police Act”) (Law no 8408 of 25 September 1998 as repealed by Law no. 9780 of 16 July 2007) 60. The 1998 Police Act established the Construction Police, responsible for supervising compliance with urban planning legislation.", "The Construction Police were empowered to impose fines, decide on the suspension of construction work and order the demolition of unlawful constructions. 61. The 2007 Police Act repealed the 1998 Police Act and introduced the Construction and Urban Planning Inspectorate, which operates at municipal/communal level (“Municipal Construction Inspectorate – the MCI”), at district (qark) level and at national level (“National Construction Inspectorate – the NCI”) (sections 3, 7 and 8). 62. The duties of the MCI include the imposition of fees, the suspension of construction work and the demolition of unlawful constructions (section 5).", "The inspectors have the right to access and inspect construction sites (section 12 and Council of Minister's decision no. 862 of 5 December 2007). 63. MCI decisions are open to appeal before the NCI. An interested party may take court action against a decision of the NCI.", "The court action does not have suspensive effect on the execution of the impugned administrative decision (section 14). D. The Act on the Organisation and Operation of the Municipal and Commune Police (“The Municipal Police Act”) (Law no. 8224 of 15 May 1997 as amended by Law no. 8335 of 23 April 1998) 64. The Municipal Police Act provides for the establishment of the Municipal Police, who answer to the Mayor and operate under the supervision of the Prefect.", "Under section 8, the Municipal Police ensure the effective implementation of acts and decisions of the Mayor and the city council which relate to public order and maintenance of public infrastructure. They prevent, stop or demolish unlawful constructions, and prevent the unlawful occupation of plots of land, buildings and property belonging to the municipality and ensure their immediate evacuation (section 8 § 6). E. Code of Civil Procedure 65. Articles 189-201 govern the participation of third parties in civil proceedings. Article 195 provides that a third party has the right to undertake all the same procedural steps as the main parties to the proceedings, save for steps that concern the disposal of the object of the civil action.", "Article 196 provides that the effect of a decision taken after a third party's intervention extends equally to the relationship between the third party and the claimant or the defendant. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 66. The applicants alleged a number of violations of Article 6 § 1 of the Convention, including failure to enforce the Court of Appeal's final judgment of 3 October 2003, a breach of the principle of legal certainty as a result of the quashing of that final judgment and the excessive length of the proceedings. Article 6 § 1 of the Convention, in so far as relevant, reads: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal ...” 1.", "The parties' submissions 67. The applicants complained about the non-enforcement of the Court of Appeal's judgment of 3 October 2003, which they alleged had established that the building permit was valid and that the building work should continue. 68. The Government submitted that the applicants had not complained before the domestic courts about the non-enforcement of a final court judgment, and that there had been no violation on account of the authorities' failure to enforce a final court judgment. 69.", "The applicants argued that the Court of Appeal's judgment of 3 October 2003 was a final judgment but had been quashed by the District Court's judgment of 14 December 2005, violating the principle of legal certainty. 70. The Government contended that the object of the second and third sets of proceedings differed. The validity of the building permit had been finally determined by the Supreme Court's judgment of 29 March 2001. The second set of proceedings had been dismissed by the domestic courts because the Embassy did not have locus standi.", "71. In the applicants' view, the domestic proceedings had exceeded the reasonable time requirement within the meaning of Article 6 § 1 of the Convention. 72. The Government did not raise any objections concerning the admissibility of this complaint. a.", "The lack of legal certainty as regards domestic courts' decisions 73. The Court reiterates that 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 (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998‑I). 74. The Court notes that the parties did not dispute the applicability of Article 6 of the Convention.", "In the Court's view, having regard to the circumstances of the case, the applicants' complaints about the non-enforcement of the Court of Appeal's judgment of 3 October 2003 and its alleged quashing are essentially linked to the lawfulness of the building permit, which constitutes the core issue of the complaints. It therefore considers that it is necessary to examine both complaints from the perspective of the principle of legal certainty, notably whether the domestic courts pursued a uniform line of reasoning concerning the lawfulness of the building permit. 75. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. b. The length of the proceedings 76. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. As regards the lack of legal certainty concerning domestic courts' decisions a. The parties' submissions 77.", "The Government contended that the building permit had been declared null and void by the Supreme Court in its judgment of 29 March 2001, which had acquired the force of res judicata. They argued that the case was complex, as demonstrated by the need for three different sets of proceedings. 78. The applicants argued that the lawfulness of the building permit had been upheld by the Court of Appeal's judgment of 3 October 2003, which had become final. They maintained that the case was not complex and that the authorities were to blame for having made the proceedings unnecessarily complicated.", "b. The Court's assessment 79. 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).", "80. Turning to the present case, the Court must determine whether a final and binding decision was adopted as regards the lawfulness of the building permit. It reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law. It is not for the Court to assess the facts on the basis of which the national courts adopted their decision, provided that it is compatible with the articles of the Convention. The Court shall, within the framework of Article 6 of the Convention, examine applications which allege a breach of specific procedural guarantees or allege that the conduct of the procedure, as a whole, did not provide the guarantees of the right to a fair hearing to the applicant (see Schwarzkopf and Taussik v. the Czech Republic (dec.), no.", "42162/02, 2 December 2008). 81. The Court notes that three sets of proceedings were conducted in the present application, spanning a period of almost ten years. Whereas the object of each set of proceedings was to some degree different, the essence of all of them, taking account of the domestic courts' judgments, was the lawfulness of the applicant company's building permit. 82.", "The first set of proceedings, which examined the lawfulness of the Minister's order and the action of the Construction Police, addressed the lawfulness of the building permit. The Court finds the reasoning in the Supreme Court's judgment of 29 March 2001 inconsistent. The Supreme Court declared that the prefect's decision of 12 January 2000 was ultra vires on account of non-exhaustion of domestic administrative remedies in respect of the validity of the building permit. In the same judgment, the Supreme Court overruled this finding and proceeded to declare the building permit null and void. 83.", "The Court considers that such inconsistencies within the same judgment of the Supreme Court are incompatible with its judicial function. The role of a higher court in a Contracting Party is precisely to resolve conflicts, avoid divergences and be consistent. In fact, in the present case, the Supreme Court itself became the source of uncertainty undermining public confidence in the judiciary and the rule of law (see, mutatis mutandis, Beian v. Romania (no. 1), no. 30658/05, §§ 37-39, ECHR 2007‑...).", "84. The ensuing judicial proceedings considerably added to that general climate of legal uncertainty. It was during those proceedings that the Embassy essentially sought to have the building permit revoked. The fact that the District Court examined the Embassy's action suggested that the validity of the building permit had not been definitively established in the first set of proceedings. Moreover, the Court of Appeal's judgment of 3 October 2003 appeared to recognise the lawfulness of the building permit, whereas the Supreme Court's judgment of 20 May 2005 left the issue of its lawfulness unanswered (see paragraphs 32 and 36–37 above).", "85. In the third set of judicial proceedings, the domestic courts recognised the invalidity of the building permit. 86. The Court notes that the Contracting States have the obligation to organise their legal system so as to allow the courts to identify related proceedings and, where necessary, avoid the adoption of discordant judgments. It considers that the underlying problem in the present case has resulted from the multiplicity of legal proceedings, which could have been better managed so as to contribute to the speedy clarification of the issues involved.", "For the Court, the existence of multiple parallel and interrelated proceedings raising substantially the same legal issue cannot be considered to be in compliance with the rule of law. By giving a number of contradictory decisions at several levels of jurisdiction the Albanian authorities demonstrated a shortcoming in the judicial system for which they are responsible (see, mutatis mutandis, Gjonbocari and Others v. Albania, no. 10508/02, §§ 66-67, 23 October 2007; Marini v. Albania, no. 3738/02, § 145, ECHR 2007‑... (extracts); and Driza v. Albania, no. 33771/02, § 69, ECHR 2007‑XII (extracts)).", "87. Moreover, the manner in which the other domestic authorities proceeded was far from consistent with the State's obligation to deal with the applicants' situation in as clear and coherent a manner as possible and with utmost consistency (see Beyeler v. Italy [GC], no. 33202/96, § 120, ECHR 2000‑I). The domestic authorities' letters of 1 August and 19 September 2007 added further confusion to this continuous lack of clarity and certainty (see paragraphs 48 and 52 above). Furthermore, none of the suspension orders issued after 29 March 2001 mentioned the invalidity of the building permit as their main ground of justification (see paragraphs 39–40 and 53–55 above).", "88. Having regard to the combination of the above reasons, the Court considers that there has accordingly been a breach of the principle of legal certainty as regards the lack of consistent reasoning in the domestic courts' decisions about the lawfulness of the building permit. 2. As regards the length of the proceedings 89. The Court considers that in the light of its finding of a violation under Article 6 § 1 of the Convention about the breach of the principle of legal certainty, it does not have to rule separately on the merits of the length of proceedings complaint.", "II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 90. The individual applicants and the applicant company alleged that their right to the peaceful enjoyment of their possessions had been breached. They further complained that they were unlawfully deprived of the use of their property for a long period of time.", "Article 1 of Protocol No. 1 to the Convention reads: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 1. The parties' submissions 91.", "The Government maintained that the applicant company did not have “possessions” within the meaning of Article 1 of Protocol No. 1 as the Supreme Court's decision of 29 March 2001 had declared the building permit null and void. They requested the Court to declare this complaint incompatible ratione materiae. 92. The Government submitted that the individual applicants' property rights were limited by the contractual agreement they had concluded with the applicant company.", "The individual applicants' complaint about a breach of their property rights should have been directed towards the applicant company within the framework of the agreement they had concluded with it. Consequently, in the Government's view, the seven individual applicants could not be considered victims within the meaning of Article 34 of the Convention. Furthermore, the individual applicants had not instituted any legal proceedings concerning the alleged violation of their property rights. 93. The individual applicants contended that they were “victims” within the meaning of Article 34 of the Convention.", "They recalled that Article 1 of Protocol No. 1 entitled owners to the peaceful enjoyment of their possessions, which entailed, inter alia, the right to conclude agreements with third parties in order to freely dispose of their property by selling and renting it or constructing buildings on it in full compliance with the relevant domestic law provisions. The individual applicants had concluded an agreement with the applicant company as part of the requirements for obtaining a building permit. In the individual applicants' view, the fact that the municipality granted the building permit for the construction work on their property was not, in principle, sufficient to deprive them of victim status. 94.", "The applicant company argued that the building permit constituted a possession within the meaning of Article 1 of Protocol No. 1. 2. The Court's assessment 95. The first question that arises is whether the applicant company and the individual applicants had a “possession” within the meaning of Article 1 of Protocol No.", "1 to the Convention. 96. The Court recalls that the notion “possessions” in Article 1 of Protocol No. 1 has an autonomous meaning which is certainly not limited to ownership of physical goods and is independent from the formal classification in domestic law: certain other rights and interests constituting assets can also be regarded as “property rights” and thus as “possessions”. The issue that needs to be examined in each case is whether the circumstances of the case, considered as a whole, conferred on the applicants title to a substantive interest protected by Article 1 of Protocol No.", "1 (see Beyeler [GC], cited above, § 100, ECHR 2000‑I; Broniowski v. Poland [GC], no. 31443/96, § 129, ECHR 2004‑V; and Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 63, ECHR 2007‑...). 97. In the case of non-physical assets, the Court has taken into consideration, in particular, whether the legal position in question gave rise to financial rights and interests and thus had an economic value (see, for example, Anheuser-Busch Inc., cited above, where intellectual property constituted possessions; Paeffgen GMBH v. Germany (dec.), no.", "25379/04, 21688/05, 21722/05 and 21770/05, 18 September 2007, in which the right to use or dispose of internet domains constituted possessions; Pine Valley Developments Ltd and Others v. Ireland, 29 November 1991, Series A no. 222, where the granting of a commercial operating licence by the authorities constituted possessions; and Tre Traktörer AB v. Sweden, 7 July 1989, Series A no. 159, in which licences to serve alcoholic beverages constituted possessions). 98. The Court will examine whether the circumstances of the case, considered as a whole, conferred on the applicant company and the individual applicants an interest protected by Article 1 of Protocol No.", "1. In that connection, it notes that an application for a building permit cannot give rise to a well-defined proprietary interest. Such an interest would materialise if the application, after having been examined and found to satisfy the relevant formal and procedural conditions, was accepted by the relevant authority by issuing a building permit. 99. In the present case, the Court notes that a building permit was granted to the applicant company by the municipality of Tirana on 22 December 1998 to build on the individual applicants' plot of land.", "Consequently, the building permit constituted “possessions” for the applicant company. On that account, the Government's objection concerning the applicant company's lack of “possessions” should be dismissed. 100. In itself, the building permit also gave rise to the benefits of the contract negotiated between the applicant company and the individual applicants for the construction of the tower block. It therefore generated a capital asset and had a definite economic value for the individual applicants.", "It was on the strength of the building permit that the individual applicants' then existing three-storey villa was demolished. Moreover, it has not been disputed that the individual applicants continued to have property rights over the plot of land, which is an “existing possession” within the meaning of Article 1 of Protocol No. 1 to the Convention. Therefore, the Government's submission based on the lack of victim status of the individual applicants must be dismissed. 101.", "As regards the Government's submission that the individual applicants did not exhaust domestic remedies, the Court reiterates that in the context of the machinery for the protection of human rights the rule on exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism. At the same time it requires in principle that the complaints intended to be made subsequently at international level should have been aired before [the appropriate domestic] courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004-III, and Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999-I). 102.", "The applicant company was a partner with whom the seven individual applicants agreed to make use of their proprietary interest. The applicant company was the main party to the domestic proceedings, with the individual applicants acting as interveners, notably in the first set of proceedings initiated by the Swiss Embassy, which, in their opinion, resulted in the acknowledgement of the building permit's validity. In the Court's view, the domestic proceedings must be regarded as an examination of the respective proprietary rights of the individual applicants and the applicant company, since the lawfulness of the building permit was interlinked with the individual applicants' enjoyment of their proprietary interest. Consequently, the Government's objection based on non-exhaustion of domestic remedies by the individual applicants must be dismissed. 103.", "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 104. The Government contended that the applicant company's behaviour prevented the authorities from examining the lawfulness of the building permit. They argued that in its decision no. 1 of 27 April 2004 the National CTP had envisaged the construction of buildings no higher than three storeys in the city centre. 105.", "The individual applicants and the applicant company maintained that the authorities had interfered with their possessions by preventing the applicant company from constructing a building on the individual applicants' plot of land. 106. The applicants submitted that the crux of their complaint concerned the non-enforcement of the Court of Appeal's judgment of 3 October 2003. They maintained that the legal uncertainty surrounding the reluctance of the executive authorities to comply with a valid building permit and the lack of any effective domestic remedy, combined with the absence of any compensation, meant that they had been made to bear an excessive burden. 107.", "Additionally, they claimed that the authorities' interference with the construction of a building adjacent to a foreign Embassy's property did not pursue a general interest, nor did it strike a fair balance. They also mentioned that high-rise buildings already existed in the immediate vicinity of their property. a. Whether there was an interference 108. Article 1 of Protocol No.", "1 comprises three distinct rules. The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions. The third rule recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose (see Sporrong and Lönnroth v. Sweden, 23 September 1982, § 61, Series A no. 52).", "109. The Court notes that for many years the individual applicants and the applicant company have been unable to enjoy and freely dispose of their contractual benefits as a result of the suspension of the construction work arising out of the disputed lawfulness of the building permit. The multiplicity of legal proceedings has failed to remedy the situation. There has accordingly been an interference with their right of property. 110.", "In the Court's opinion there was no formal expropriation of the property in question, that is to say a transfer of ownership. Nor can it be said that there was a de facto deprivation. The impugned measures imposed limitations on the individual applicants' and the applicant company's enjoyment of their proprietary interests. 111. The Court finds that the interference must be considered as a control of the use of the applicants' property falling within the scope of the second paragraph of Article 1 of Protocol No.", "1 (see, for example, Sporrong and Lönnroth, cited above, §§ 62 – 64; Tre Traktörer AB, cited above, § 55; and Allan Jacobsson v. Sweden (no. 1), 25 October 1989, § 54, Series A no. 163). b. Whether the interference was lawful 112.", "The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of someone's possessions should be lawful (Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999‑II). 113. The Court considers that when speaking of “law”, Article 1 of Protocol No.", "1 alludes to the same concept to be found elsewhere in the Convention, a concept which comprises statutory law as well as case-law. It refers to the quality of law in question, requiring that it be accessible to the persons concerned, precise and foreseeable (see Špaček, s.r.o., v. the Czech Republic, no. 26449/95, § 54, 9 November 1999; Carbonara and Ventura v. Italy, no. 24638/94, § 64, ECHR 2000‑VI; Baklanov v. Russia, no. 68443/01, §§ 40-41, 9 June 2005).", "114. The Court accepts that its power to review compliance with domestic law is limited as it is in the first place for the national authorities to interpret and apply that law. In the instant case, the Court is required to verify whether the way in which the domestic law was interpreted and applied produces consequences that are consistent with the principles of the Convention. 115. The Court notes that this complaint is closely linked to the complaint under Article 6 § 1 of the Convention in which it found a violation of the principle of legal certainty (see paragraphs 79–88 above).", "In that connection, the Court notes that the case-law of the domestic courts has led to inconsistent decisions on the lawfulness of the building permit. The case-law lacked the required precision to enable the applicant company and the individual applicants to foresee, to a degree that was reasonable in the circumstances, the consequences of their actions and the State's interference (see, mutatis mutandis, Sierpiński v. Poland, no. 38016/07, §§ 74-76, 3 November 2009 and Plechanow v. Poland, no. 22279/04, § 105-107, 7 July 2009). Such confusion and lack of foreseeability, leading to arbitrariness, continues to prevail even to date.", "116. It follows that the interference with the applicant company's right and the proprietary rights of the individual applicants' who demolished their three-storey villa on the strength of the building permit issued by the authorities, cannot be considered lawful within the meaning of Article 1 of Protocol No. 1. This conclusion makes it unnecessary to ascertain whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the applicants' fundamental rights (see Iatridis, cited above, § 62). 117.", "There has, accordingly, been a breach of Article 1 of Protocol No. 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 118. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the 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 119. The individual applicants claimed 1,547,037.4 euros in respect of pecuniary damage and 270,000 euros in respect of non-pecuniary damage. The applicant company claimed 10,297,947 euros in respect of pecuniary damage and 1,650,000 euros in respect of non-pecuniary damage. In support of their claim for pecuniary damage, they submitted an expert's valuation report. 120.", "The Government submitted that the individual applicants and the applicant company had not exhausted the domestic remedies in respect of their claims for pecuniary and non-pecuniary damage. However, the Court would point out that the rule of exhaustion of domestic remedies does not apply in connection with Article 41 claims (see Matache and Others v. Romania (just satisfaction), no. 38113/02, § 16, 17 June 2008). 121. The Court considers that the question of the application of Article 41 is not ready for decision.", "The question must accordingly be reserved and the further procedure fixed with due regard to the possibility of agreement being reached between the Albanian Government and the applicant company and the individual applicants. 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 as regards a breach of the principle of legal certainty; 3. Holds that it does not consider it necessary to examine the complaint about the length of the proceedings under Article 6 § 1 of the Convention; 4.", "Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 5. Holds that the question of the application of Article 41 is not ready for decision; accordingly, (a) reserves the said question in whole; (b) invites the Government and the applicants to submit, within the forthcoming three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach; (c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be. Done in English, and notified in writing on 23 March 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıNicolas Bratza Deputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF RANĐELOVIĆ AND OTHERS v. MONTENEGRO (Application no. 66641/10) JUDGMENT STRASBOURG 19 September 2017 FINAL 19/12/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ranđelović and Others v. Montenegro, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Robert Spano, President,Julia Laffranque,Işıl Karakaş,Nebojša Vučinić,Paul Lemmens,Valeriu Griţco,Stéphanie Mourou-Vikström, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 29 August 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "66641/10) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by thirteen Serbian nationals, one of whom is also a national of the Former Yugoslav Republic of Macedonia, on 23 March 2011. Further personal details of the applicants are set out in the appendix. 2. All the applicants were initially represented by Mr Vladan Stanojević, Director of the Roma Centre for Strategy, Development and Democracy (hereinafter “the Roma Centre”). The eleventh applicant subsequently authorised Ms S. Bulatović, a lawyer practising in Podgorica, to represent her.", "The Montenegrin Government (“the Government”) were initially represented by their Agent at the time, Mr Z. Pažin, and subsequently by their newly appointed Agent, Ms V. Pavličić. The Serbian Government, who had made use of their right to intervene under Article 36 of the Convention, were represented by their Agent, Ms N. Plavšić. 3. Notified under Article 36 § 1 of the Convention and Rule 44 § 1 (a) of the Rules of Court of their right to intervene in the present case, the Government of the Former Yugoslav Republic of Macedonia expressed no wish to do so. 4.", "The applicants alleged, in particular, that there had not been a prompt and effective investigation into the deaths and/or disappearances of their family members and that those responsible had not been brought to justice. 5. On 5 February 2014 the complaint concerning the failure of the relevant Montenegrin bodies to promptly and effectively investigate the deaths and/or disappearances of the applicants’ family members and prosecute those responsible was communicated to the Montenegrin Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. The parties were duly informed. The remainder of the application included a general complaint of mass murders and human trafficking of, inter alia, Roma and their deportations, detention and arrests, which was declared inadmissible as unsubstantiated.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicants are the next-of-kin of several Roma who died or disappeared in the circumstances described below. A. Incident at sea and the ensuing investigation and criminal proceedings 7.", "On the night of 15 August 1999 around seventy Roma boarded the boat “Miss Pat” on the Montenegrin coast with the intention of reaching Italy. A few hours later the boat sank owing to the large number of passengers. 8. By 30 August 1999 one of the passengers had been found alive on the Montenegrin shore, and thirty-five bodies had been found in the sea, thirteen of which were identified by their relatives. The forensic specialists who had performed autopsies on the bodies by 30 August 1999 stated that the cause of death could not be established with certainty on the basis of autopsies alone.", "In their opinion, however, the cause of death was drowning. 9. On 1 September 1999 the Court of First Instance (Osnovni sud) in Bar initiated a formal judicial investigation (rješenje o sprovođenju istrage) against seven individuals on suspicion of illegally crossing the State border in connection with reckless endangerment. 10. By 21 October 1999 the investigating judge had (a) questioned two suspects who were available to the authorities at the time, as well as thirty other individuals in relation to the incident, including the eleventh applicant; (b) requested that some other witnesses be questioned by the relevant authorities in Serbia; and (c) asked for the autopsy reports, an expert opinion on the capacity of the boat and a report on the weather conditions on the night of the incident.", "The eleventh applicant was questioned on 10 September 1999. She stated that she had been living with her brother and sister-in-law and their children in Kosovo, but that her brother and sister-in-law had decided to go to Montenegro. They had not called her from Podgorica or mentioned that they had intended to go to Italy. She also stated that she had not recognised them amongst the bodies found, but had recognised her brother’s arm in one of the photographs shown to her during questioning. Being illiterate, she had “signed” the minutes of the hearing by giving a fingerprint.", "11. On 21 October 1999 the State prosecutor in Bar lodged an indictment with the Court of First Instance in Bar against the seven suspects. 12. On 29 October 1999 the court decided that it lacked territorial competence to deal with the case and transferred it to the Court of First Instance in Kotor. On 6 December 1999 the High Court (Viši sud) in Podgorica declared that the court in Bar was territorially competent to process the case and the case was returned.", "13. By the end of 2002 the court in Bar had decided that two defendants still at large would be tried in their absence and appointed representatives for them. The remaining five defendants appeared before the court. 14. Between 25 December 2002 and 24 September 2003 ten trial hearings (glavni pretres) were scheduled, five of which took place.", "Four were adjourned because some of the defence lawyers, defendants, witnesses and an interpreter did not attend court; there is no information in the case file about one of the hearings. During the hearings that did take place, the court questioned four defendants and eleven witnesses. 15. On 24 September 2003 the court decided to recommence the trial hearing due to the passage of time. By 14 April 2004 ten hearings had been scheduled, six of which took place.", "Four were adjourned because one of the defence lawyers and some of the witnesses did not attend court. During the hearings that did take place, the court read out the indictment again, questioned four defendants and sixteen witnesses, including the eleventh applicant, and read out the earlier statements made by the witnesses; the fifth defendant chose to remain silent. The eleventh applicant was heard on 8 October 2003. She stated that she had come to Podgorica with her brother and his family and had had no idea that her brother and his wife had intended to go to Italy. When asked to explain the differences between that and her previous statement of 10 September 1999, she stated that she was certain that they had all been together since they had all been living together in one tent.", "She also confirmed that she was illiterate. 16. On 14 April 2004 the Supreme State Prosecutor (Vrhovni državni tužilac) in Podgorica instructed the State prosecutor in Bar to specify the indictment in terms of the facts and legal classification of the criminal offences, after which the court in Bar would declare that it lacked competence to deal with the case and would transfer it to the High Court in Podgorica (hereinafter “the High Court”), as the competent court to deal with it. Accordingly, the indictment was amended and the case file transferred to the High State Prosecutor (Viši državni tužilac) and the High Court. 17.", "On 26 May 2004 the High State Prosecutor requested that an investigation be opened (zahtjev za sprovođenje istrage) against the same seven people and another individual, Z, on suspicion of committing reckless endangerment. 18. By 20 October 2004 the High Court had questioned four of the defendants, while the fifth had chosen to remain silent. It also ordered that the remaining three defendants be brought before the court. 19.", "On 11 November 2004 an investigating judge of the High Court decided to initiate a formal judicial investigation against the eight individuals, a decision which was upheld by the High Court on 25 November 2004. 20. On 25 February 2006 the High State Prosecutor urged the investigating judge to finish the investigation. 21. On 28 March 2006 an expert witness issued an opinion on the capacity of the boat.", "22. On 31 October 2006 the High State Prosecutor charged eight defendants with reckless endangerment under Article 338 § 2 in connection with Article 327 §§ 1 and 3 of the Criminal Code (see paragraphs 43-44 below). 23. Between 24 and 28 November 2006 the indictment was served on four of the defendants. 24.", "On 15 January 2007 the president of the chamber informed the president of the High Court that a trial hearing could not be scheduled yet as the indictment had not yet been served on all the defendants. 25. By 15 February 2008 the High Court had issued a national arrest warrant (potjernica) against one of the defendants, and had attempted to serve one on the other three, one of whom was in detention in Podgorica at the time. The other two were based in Serbia and Bosnia and Herzegovina respectively. 26.", "On 3 April 2008 the High Court rejected the indictment against Z (the defendant based in Serbia), a decision which was upheld by the Court of Appeal on 26 May 2008. 27. By 28 September 2009 the High Court had decided that the two defendants at large, one of whom was based in Bosnia and Herzegovina, would be tried in their absence. 28. At the first trial hearing on 28 September 2009 one of the defendants, X, stated that he was illiterate and did not understand the indictment.", "At the request of his lawyer the hearing was adjourned until further notice, so that the indictment could be translated into Romani. By 31 October 2009 the translation of the indictment into Romani had become available. 29. In the course of 2010 seven hearings were scheduled. One was held on 8 October 2010, during which the indictment was read out and four defendants were heard, the fifth having chosen to remain silent.", "Six hearings scheduled for 5 February, 29 April, 4 June, 2 July, 17 November and 17 December 2010 were adjourned because some of the defendants, defence lawyers, the interpreter for Romani and a witness did not attend court. 30. On 25 January 2011 another judge of the High Court took over the case. In the course of 2011 eight hearings were scheduled, seven of which were adjourned: (a) three because there was no permanent court interpreter for Romani; (b) two because the defence lawyers and witnesses did not attend court; (c) one because one defendant and several defence lawyers did not attend court and an interpreter had not yet been appointed; and (d) one because of changes to the Criminal Procedure Code, which made the relevant court panel incomplete. One hearing was held on 21 November 2011, during which four defendants were heard and their earlier defence statements made in 1999, 2003, 2004 and 2010 read out.", "The fifth defendant chose to remain silent. 31. In the course of 2012 seven hearings were scheduled, two of which were adjourned because one defendant, a defence lawyer, some of the witnesses, including the seventh applicant, and/or the interpreter did not attend court. Five hearings were held, two of which by 24 September 2012, when several witnesses were heard. On 24 September 2012 the trial hearing was recommenced due to “the passage of more than three months”.", "During that hearing and the subsequent two hearings four defendants and several witnesses were heard again, and a number of written documents were read out, including the indictment, the defendants’ earlier statements and witness statements from 1999, 2003 and 2012, reports by the Kotor and Budva police directorates (odjeljenja bezbjednosti), as well as information provided by the Radio and Television of Montenegro and the Bar Public Information Centre. The fifth defendant remained silent. 32. In the course of 2013 nine hearings were scheduled, five of which were adjourned because one of the defendants, two lawyers, an expert witness, a judge, and/or the interpreter did not attend. The lawyers were fined 500 euros (EUR) for their unjustified absence.", "By 18 December 2013 three hearings had been held, during which one expert witness was heard, and a number of other pieces of documentary evidence were read out, such as an earlier statement of another expert witness, earlier statements of other witnesses from 1999, 2003 and 2004, including the statements of the eleventh applicant, autopsy reports and reports from the Port of Bar of 1995 and 1998 relating to the boat. On 18 December 2013 the trial hearing was recommenced due to the passage of time. Four defendants and one of the expert witnesses were heard and their earlier statements read out. 33. In the course of 2014 five hearings were scheduled, two of which were adjourned because the interpreter and one of the expert witnesses did not attend court and because one defendant was justifiably absent.", "By 4 June 2014 one hearing had been held, at which earlier statements of witnesses, including the eleventh applicant’s statements, official reports, autopsy reports and experts witness statements were read out. On 4 June 2014 the trial hearing was recommenced due to the passage of time. At that and the subsequent hearing held in 2014 the court read out the indictment, the defendants’ earlier statements and some witness statements, including the eleventh applicant’s, as well as other written evidence. One of the witnesses was also heard. 34.", "On 24 July 2014 the High Court acquitted all the accused for lack of evidence. On 10 November 2014 the High State Prosecutor appealed against that judgment. There is no information in the case file as to the outcome of the appeal. B. The Ombudsman’s involvement 35.", "On an unspecified date prior to 7 December 2009 the Roma Centre complained to the Ombudsman, asking for the criminal proceedings to be expedited and the responsible persons punished, as well as for a DNA analysis of the bodies which had been buried. 36. On 7 December 2009 the Ombudsman issued a report in this regard noting, in substance, that the investigation had lasted for more than seven years and that ten years after the impugned event the criminal proceedings had not yet been terminated, which was unjustified. He recommended that the High Court undertake all necessary steps to terminate the proceedings as soon as possible. 37.", "On 21 December 2010 the Ombudsman enquired what had been done in the meantime. The judge in charge informed him of the hearings scheduled between October and December 2010. C. Other relevant facts 38. On 19 August 1999 the only surviving passenger was found guilty of boarding the boat on 16 August 1999 with the intention of illegally crossing the border to Italy and was fined by the Misdemeanour Court (Sud za prekršaje) in Kotor. 39.", "In the course of 2002 a number of family members of those who had disappeared, two of them applicants in the present case, urged that the proceedings at issue be expedited. Some of them claimed that their next-of-kins were alive but had been trafficked. It appears that some others also hoped that their family members might still be alive. 40. On 15 June 2011 the president of the High Court requested the Ministry of Justice to appoint a permanent court interpreter for Romani as soon as possible, stressing that one of the reasons for the criminal proceedings in question having “lasted too long” had been the absence of an adequate interpreter for Romani.", "41. It would appear that on several occasions the Roma Centre requested the High Court to expedite the proceedings, and that on 16 August 2010 it issued a statement that the investigation had not been effective. 42. The eleventh applicant’s initial representative submitted an authority form signed by her. He also specified that her two sons, two daughters-in-law and five grandchildren had died or disappeared in the impugned event.", "II. RELEVANT DOMESTIC LAW A. Criminal Code (Krivični zakonik, published in Official Gazette of the Republic of Montenegro - OG RM - nos. 70⁄03, 13⁄04, 47⁄06, and the Official Gazette of Montenegro - OGM - nos. 40⁄08, 25⁄10, 73⁄10, 32⁄11, 64⁄11, and 40⁄13) 43.", "Article 327 § 1 provides, inter alia, that endangerment of a human life or a human body by a dangerous activity or by dangerous means is punishable by imprisonment of between six months and five years. Article 327 § 3 provides that if the offence is committed in a place where there is a large number of people (veći broj ljudi), it is punishable by imprisonment of between one and six years. 44. Article 338 § 2 provides that if the offence defined in Article 327 §§ 1 to 3 results in the death of one or more persons, it is punishable by imprisonment of between two and twelve years. B.", "Criminal Procedure Code (Zakonik o krivičnom postupku, published in OG RM nos. 71⁄03, 07⁄04, and 47⁄06) 45. Article 8 provides, inter alia, that parties to criminal proceedings who do not speak the official language of the court may use their own language instead, in which case both a translation of all the documents as well as interpretation will be provided. 46. Article 16 § 2 provides that the court has a duty to conduct proceedings without delay and to prevent any abuse of the rights of the parties.", "47. Articles 19, 20 and 44 provide, inter alia, that formal criminal proceedings can be instituted at the request of an authorised prosecutor. In respect of publicly prosecutable offences the authorised prosecutor is the State prosecutor. His or her authority to decide whether or not to press charges is bound by the principle of legality, which requires that he or she must act whenever there is a reasonable suspicion that a publicly prosecutable offence has been committed. 48.", "Articles 19 and 59 provide, inter alia, that should the State prosecutor decide that there is no basis on which to prosecute, he or she must inform the victim of that decision, and the latter then has the right to take over the prosecution of the case – as a “subsidiary prosecutor” – within eight days of being notified of that decision. When notifying the victim of the decision not to prosecute, the State prosecutor must inform him or her what actions he or she may undertake as subsidiary prosecutor. 49. Article 62 provides that a subsidiary prosecutor has the same rights as the State prosecutor, except for those which the State prosecutor has as a State body. 50.", "Article 266 provides that if the investigation is not terminated within six months, an investigating judge must inform the president of the court of the reasons for the delay. If needed, the president will undertake measures to terminate the investigation. 51. Article 267 provides, inter alia, that a victim may file a request with an investigating judge to conduct an investigation. 52.", "Article 272 provides that parties to proceedings and victims are entitled to complain about delays in the proceedings and other irregularities to the president of the court, who will look into the complaint and, if requested, inform him or her of what has been done in that regard. 53. Article 273 provides that once an investigation is over, court proceedings may only be initiated on the basis of the indictment of the State prosecutor or the victim in his or her capacity as subsidiary prosecutor. 54. Article 291 § 2 provides that the president of the chamber must schedule a trial hearing within two months of receiving the indictment.", "If the trial hearing is not scheduled within the time-limit the president of the chamber must inform the president of the court why, and the latter will then, if needed, undertake measures to schedule it. 55. Articles 310 to 319 set out details as to the holding and adjournment of trial hearings, including in cases where various parties to the proceedings do not attend court. Article 317 § 3 provides, in particular, that if the trial hearing has been adjourned for more than three months or is to be held before another president of the bench, it must be started afresh and all witnesses reheard and documentary evidence reassessed (i svi dokazi se moraju ponovo izvesti). C. Courts Act (Zakon o sudovima, published in OG RM nos.", "05⁄02, 49⁄04, 22⁄08, 39⁄11, 46⁄13 and 48⁄13) 56. Section 84 provides, inter alia, that the president of the court is responsible for organising the work of the court and undertakes measures to ensure prompt and timely performance of duties in the court. D. Obligations Act (Zakon o obligacionim odnosima, published in OGM nos. 47⁄08 and 04⁄11) 57. The Obligations Act, which entered into force in 2008, was partially amended in April 2017.", "The relevant provisions, as in force at the time, provided as follows. 58. Sections 148 to 216 set out details as regards compensation claims. 59. Sections 148 and 149 set out the different grounds for claiming compensation for both pecuniary and non-pecuniary damage.", "In particular, section 148(1) provided that whoever caused damage to somebody else was liable to compensation, unless he or she could prove that the damage was not his or her fault. 60. Section 166(1) provided that any legal entity, including the State, was liable for any damage caused by one of “its bodies”. 61. Sections 206 and 207 provided, inter alia, that anyone who suffered fear, physical pain or mental anguish as a consequence of the violation of his or her personal rights or owing to the death of someone close to them, was entitled, depending on the duration and intensity, to sue for damages in the civil courts and, in addition, request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction.", "62. Section 208(1) and (2) provided that in the event of a person’s death the courts could award just satisfaction for mental anguish to their closest family, including their brothers and sisters, provided that they had been living together. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 63. The applicants complained, under various Articles of the Convention, that the relevant Montenegrin bodies had failed to promptly and effectively investigate the deaths and/or disappearances of their family members and prosecute those responsible.", "Being the master of the characterisation to be given in law to the facts of any case before it (see Tarakhel v. Switzerland [GC], no. 29217/12, § 55, ECHR 2014 (extracts)), the Court considers that the applicants’ complaint falls to be examined under Article 2 of the Convention, which reads as follows: “1. Everyone’s right to life shall be protected by law. ...” 64. The Government denied that there had been a violation of the applicants’ rights.", "A. The first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, twelfth and thirteenth applicants 65. On 10 June 2014 the Government submitted their observations on the admissibility and merits. They were sent to the applicants, who were invited to appoint a lawyer, given that the initial representative was not a lawyer for the purposes of Rule 36(2) and 4(a), and submit written observations with any claims for just satisfaction by 23 September 2014. 66.", "By a registered letter dated 28 November 2014 the Court reminded the applicants that their observations had not been submitted. They were invited to inform the Court by 5 January 2015 at the latest whether they wished to pursue their application and to do so unequivocally. They were invited to comply with the Court’s previous request by the same date if that was the case. They were also warned, in accordance with Article 37 § 1 (a) of the Convention, that the Court could strike a case out of its list of cases if it concluded that an applicant did not intend to pursue his or her application. 67.", "Between 19 and 22 December 2014 the third, fifth, sixth, tenth, eleventh and thirteenth applicants received the Court’s letter. The rest of the letters were returned to the Court. The twelfth applicant was said to no longer live at the address provided initially, the seventh and eight applicants’ address was non-existent and the first, second and ninth applicants “did not ask for the letter” (nisu tražili). Nothing was specified in respect of the fourth applicant, but it would appear that she did not ask for the letter either. 68.", "The eleventh applicant complied with the Court’s request within the requisite time-limit. None of the other applicants responded. 69. The Court considers that, in these circumstances, the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, twelfth, and thirteenth applicants may be regarded as no longer wishing to pursue the application, within the meaning of Article 37 § 1 (a) of the Convention. 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 examination of their complaints to be continued.", "70. In view of the above, it is appropriate to strike the application out of the list in so far as it concerns the complaints of the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, twelfth and thirteenth applicants. B. The eleventh applicant 1. Admissibility a.", "Compatibility ratione personae i. Want of an applicant α) The parties’ submissions 71. The Government submitted that the application was inadmissible for want of an applicant given that the eleventh applicant’s initial representative had not had a valid authorisation. They relied in this regard on the Court’s decision in Post v. the Netherlands ((dec.), no. 21727/08, 20 January 2009).", "In particular, the authority form submitted by the initial representative on her behalf was signed, whereas the second authority form, which was provided by the lawyer and notarised, contained her fingerprint instead and an explanation by the notary that she was illiterate. The Government averred that that clearly indicated that the signature in the first authority form had been forged. 72. The eleventh applicant, for her part, confirmed that she had authorised the initial representative to lodge an application on her behalf, and had only appointed a lawyer instead when invited to do so by the Court. Notably, she had been told at the time that all she had to do in order to authorise the first representative had been to provide him with her ID, birth certificate and her deceased family members’ birth certificates, which she had duly done.", "In any event, she had explicitly accepted and approved of all the actions undertaken by him on her behalf. 73. The Serbian Government, which intervened in the case, made no comment in this regard. β) The Court’s conclusion 74. The relevant general principles in this regard are set out in Lambert and Others v. France ([GC], no.", "46043/14, §§ 89-91, ECHR 2015 (extracts)). 75. In particular, the Court notes that where applicants choose to be represented under Rule 36 § 1 of the Rules of Court rather than lodging an application themselves, Rule 45 § 3 requires them to provide a written authority to act, duly signed. It is essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim within the meaning of Article 34 on whose behalf they purport to act before the Court (see Post, cited above; as regards the validity of an authority to act, see Aliev v. Georgia, no. 522/04, §§ 44-49, 13 January 2009).", "76. Turning to the present case, the Court notes that the first authority form, which was provided by the initial representative, was indeed signed by the eleventh applicant, whereas the second, which was provided by the lawyer, contained a fingerprint instead as well as confirmation by a notary that she was illiterate. It transpires from the case file that the applicant is in fact illiterate (see paragraphs 10 and 15 above). 77. The Court considers that the present case is to be distinguished from Post (cited above by the Government), as in that case the applicant’s representative admitted that she had not had the applicant’s authority to act, the authority form had never been received by the Court, the applicant had never been in contact with the Court directly, and the case file had contained no other document indicating that the applicant had wished the representative to lodge an application with the Court on her behalf, or any indication why it would have been impossible for the applicant or her representative to submit a power of attorney.", "78. In the present case, however, the eleventh applicant explicitly and clearly confirmed directly to the Court that she had wanted the first representative to lodge an application on her behalf and to represent her from the outset (see, mutatis mutandis, Aliev, cited above, § 47). She also confirmed that she had authorised him to do so, that is to say she did everything she was requested to do at the time in order to authorise him to act (see paragraph 72 above). She also explicitly accepted all the actions undertaken by him. 79.", "In view of the above, in spite of certain formal shortcomings in respect of the first authority form, the Court considers that there were no substantial shortcomings. In any event, it is not in dispute that the eleventh applicant retroactively validated all the actions undertaken by him on her behalf. In such circumstances, the Court must reject the Government’s objection in this regard. ii. Victim status α) The parties’ submissions 80.", "The Government submitted that the applicants had failed to establish their victim status. Notably, they had failed to prove that any of their family members had died or disappeared in the impugned event and the burden of proof in that regard was on them. The Government maintained that “the criminal proceedings [so far had] not offered a reliable answer as to the identity of the others, either those who had been found dead or those who [had] disappeared”. They submitted that it was therefore necessary to identify all those who claimed to be indirect victims of the impugned event and to request valid documentation proving that they were closely related to the victims found. Of all the applicants, only the eleventh applicant had provided documents suggesting that she was related to the alleged victims, and even they had been questionable.", "In addition, the eleventh applicant’s submissions as to which of her relatives had been on the boat and her statements made in court had been inconsistent (see paragraphs 42, 10 and 15 above, in that order). 81. The eleventh applicant reiterated her complaint. She maintained in particular that her brother and sister-in-law had died or disappeared in the impugned event, and submitted her and her brother’s birth certificates. She also averred that she had participated in the domestic proceedings as a witness, and had been heard twice in that capacity, on 10 September 1999 and 8 October 2003 (see paragraphs 10 and 15 above).", "82. The Serbian Government made no comment in this regard. β) The Court’s conclusion 83. The relevant principles in this regard are set out in Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania ([GC], no. 47848/08, §§ 97-100, ECHR 2014).", "In particular, the Court held that the close relatives of missing persons may lodge applications raising complaints concerning their disappearances, to the extent that such complaints fall within the Court’s competence (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 112 in fine, ECHR 2009). 84. The Court notes that throughout the domestic proceedings the eleventh applicant claimed that her brother and sister-in-law had died or disappeared in the impugned event (see paragraphs 10 and 15 above). She also expressly repeated that claim in her observations submitted to the Court (see paragraph 116 below).", "In view of that, the Court considers that she was consistent in stating that her brother and his wife had been on the boat. The Court is prepared, therefore, to accept that the different information provided initially in this regard (see paragraph 42 above) was an innocent mistake rather than the result of any intention by her or her representative at the time to mislead the Court. 85. As regards the Government’s objection that the eleventh applicant failed to prove that any of her relatives died or disappeared in the accident, the Court firstly notes that not everyone on the boat was found, given that there were at least seventy people on board and only thirty-five bodies were recovered (see paragraphs 7-8 above). Secondly, out of those thirty-five only thirteen were identified (see paragraph 8 above).", "It would appear from the case file that the victims found had been identified by their family members on the basis of recognition only, and it is clear that not all the bodies could be recognised owing to the post-mortem changes. The eleventh applicant submitted, and the Government did not contest, that no DNA analysis had ever been performed to identify the rest of the bodies, not even after she had stated in court that she had recognised her brother’s hand on one of the photographs of the bodies found (see paragraph 10 above). Thirdly, the applicant, for her part, claimed from the outset to the domestic authorities that her brother and sister-in-law had been on the boat, she had participated in the domestic proceedings as a witness and given statements to that effect, and had provided the Court with both her and her brother’s birth certificates. In such circumstances, in which the State, by its own admission, did not find all the victims and even failed to identify all those who had been found, the Court fails to see what more the eleventh applicant could have done that she had not done already. 86.", "In view of the above, the Court rejects the Government’s objection in this regard. b. Compatibility ratione temporis i. The parties’ submissions 87. The Government maintained that only the events and actions undertaken after 3 March 2004 were within the Courts’ jurisdiction ratione temporis.", "88. The eleventh applicant submitted that the application was compatible ratione temporis given that a number of procedural steps had been undertaken after the Convention had entered into force in respect of the respondent State, such as the investigation, which had begun on 26 May 2004, and the indictment, which had been issued on 31 October 2010. She relied in this regard on Šilih v. Slovenia ([GC], no. 71463/01, 9 April 2009) and Bajić v. Croatia (no. 41108/10, 13 November 2012).", "89. The Serbian Government submitted that the applicants’ complaint was compatible ratione temporis given that most of the investigative steps had been carried out after the Convention had entered into force in respect of the respondent State, while the time between the impugned event and the entry into force of the Convention was reasonably short. ii. The Court’s conclusion 90. The relevant principles in this regard are set out in Šilih (cited above, §§ 159-63), and Janowiec and Others v. Russia ([GC], nos.", "55508/07 and 29520/09, §§ 140-51, ECHR 2013). 91. In particular, temporal jurisdiction is strictly limited to procedural acts which were or ought to have been implemented after the entry into force of the Convention in respect of a respondent State (“the critical date”), and it is subject to the existence of a genuine connection between the event giving rise to the procedural obligation under Article 2 and the critical date. Such a connection is primarily defined by the temporal proximity between the triggering event and the critical date, which must be separated only by a reasonably short lapse of time that should not normally exceed ten years (see Janowiec and Others, cited above, § 146) and it will only be established if much of the investigation – that is to say the undertaking of a significant proportion of the procedural steps to determine the cause of death and hold those responsible to account – took place or ought to have taken place in the period following the entry into force of the Convention (ibid.,§ 147). 92.", "Turning to the present case, the Court notes that the complaint in respect of the procedural aspect of Article 2 of the Convention concerns the investigation of an event which took place in August 1999 and resulted in the deaths and/or disappearances of the eleventh applicant’s family members. It should thus be noted that less than four years and seven months passed between the triggering event and the Convention’s entry into force in respect of Montenegro on 3 March 2004 (see Bijelić v. Montenegro and Serbia, no. 11890/05, § 69, 28 April 2009), a relatively short lapse of time (see, mutatis mutandis, Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 208, ECHR 2014 (extracts)). 93.", "The investigation began in September 1999, shortly after the impugned event. Prior to the date of entry into force of the Convention in respect of the respondent State, few procedural acts were carried out in the context of the investigation. It was after that date, and especially from 14 April 2004 onwards, that the investigation took shape through the transfer of the case to the High Court as the court competent to deal with the case, the opening of a new judicial investigation, as well as a new indictment resulting in criminal proceedings (see, mutatis mutandis, Mocanu and Others, cited above, § 209 in fine). In other words, the majority of the proceedings and the most important procedural measures were carried out after the critical date. 94.", "Consequently, the Court finds that it has jurisdiction ratione temporis to examine the complaint raised by the eleventh applicant under the procedural aspect of Article 2 of the Convention, in so far as it relates to the criminal investigation conducted in the present case after the entry into force of the Convention in respect of Montenegro. c. Abuse of the right of petition 95. The Government submitted that the application was inadmissible due to an abuse of the right of petition in view of its partly insulting and provocative content. They did not specify exactly what was insulting and provocative. 96.", "The eleventh applicant made no comment in this regard. 97. The Serbian Government made no comment in this regard. 98. 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). 99. Turning to the present case, it is observed that the Government did not specify which part of the application was insulting and provocative in their view. The Court can only assume that they were referring to the applicants’ vague and unsubstantiated allegations of mass killings and ethnic persecution, which have already been examined by the Court as a separate complaint against the respondent State and declared inadmissible (see paragraph 5 above), of which the parties were duly informed. It therefore rejects the Government’s objection in this regard.", "d. Exhaustion of domestic remedies i. The parties’ submissions 100. The Government submitted that the applicants had not exhausted all effective legal remedies. Notably, they had not availed themselves of a civil action or lodged a criminal complaint with the State prosecutor. Furthermore, they could have taken over prosecution in a private capacity if that avenue had been unsuccessful.", "101. The eleventh applicant maintained that, under Article 2 of the Convention, where there was reason to believe that someone had passed away in suspicious circumstances, it was the State’s duty to conduct an efficient investigation and it could not be left to family members to lodge a formal complaint or take over the responsibility for the investigation. She relied in this regard on Nachova and Others v. Bulgaria ([GC], nos. 43577/98 and 43579/98, § 111, ECHR 2005‑VII). She also maintained that under domestic law she was entitled to compensation in connection with the deaths of her brother and sister-in-law, as she had been living with them.", "102. The Serbian Government made no comment in this regard. ii. The Court’s conclusion 103. The relevant general principles in this regard are set out in Vučković and Others v. Serbia ((preliminary objection) [GC], nos.", "17153/11 and 29 others, §§ 69-75, 25 March 2014). 104. In particular, 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. That 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 applicant’s personal circumstances.", "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). 105. The Court firstly notes in this regard that the Government failed to specify against whom the eleventh applicant should have brought a compensation claim or to provide any examples of domestic case-law in support of their submission that a civil claim would be an effective domestic remedy in this regard. The Court, for its part, has already found in an earlier case in which applicants had brought a compensation claim against the State on the basis of the provisions of the Obligations Act that the domestic courts neither acknowledged the breach as clearly as should have been necessary in the circumstances of that case nor afforded the applicants appropriate redress (see Milić and Nikezić v. Montenegro, nos.", "54999/10 and 10609/11, §§ 75-76, 28 April 2015). As regards a compensation claim against private individuals, the Court notes that a plaintiff in such a case must, inter alia, identify the person believed to have committed the tort. In the instant case, however, it is still unknown who was responsible for the acts of which the applicant complained. Given the situation, there does not seem to have been any basis on which the eleventh applicant could have pursued a civil claim with any reasonable prospect of success (see, mutatis mutandis, İlhan, cited above, § 62). 106.", "As regards a criminal complaint, the Court notes that under the relevant statutory provisions in force at the time formal criminal proceedings could be instituted at the request of an authorised prosecutor. In the present case it was the State prosecutor who had to act whenever there was a reasonable suspicion that a publicly prosecutable offence had been committed (see paragraphs 47, and 11, 16-17, and 22 above). A victim only had the right to take over prosecution if the State prosecutor decided that there was no basis on which to prosecute (see paragraph 48 above), which was not the case here. Given that the investigation had already been started by the State prosecutor of his own motion, the Court considers that the eleventh applicant could legitimately have expected that the necessary investigation would be conducted without an additional specific, formal complaint from herself (see, mutatis mutandis, İlhan, cited above, § 63). Also, it does not consider that a criminal complaint lodged by the eleventh applicant would have been capable of altering to any significant extent the course of the investigation that had been made (see, mutatis mutandis, Tanrıkulu v. Turkey [GC], no.", "23763/94, § 110 in fine, ECHR 1999‑IV). 107. In view of the above, the Court rejects the Government’s objection in this regard. e. Six-month rule i. The parties’ submissions 108.", "The Government submitted that the applicants had not complied with the six-month time-limit. The criminal investigation had been started on 26 May 2004 and the indictment issued on 31 October 2006, while the applications had not been lodged until 2010. In addition, the eleventh applicant had only turned to the Court for the first time in January 2015, when she had filed her observations. In the Government’s opinion the previous submissions lodged by the initial representative could not be considered legally valid as he had had no proper power of attorney. 109.", "The eleventh applicant maintained that she had submitted her application within six months. 110. The Serbian Government maintained that the application had been submitted within six months, in view of certain steps undertaken in criminal proceedings, which created an illusion of continuity, and given that the applicants had not become aware that there had been no effective investigation of the deaths of their family members until 16 August 2010, when the Roma Centre had issued a statement to that effect. ii. The Court’s conclusion 111.", "The relevant principles in this regard are set out in Mocanu and Others (cited above, §§ 258-69). In particular, the Court has held in cases concerning the obligation to investigate under Article 2 of the Convention that where a death has occurred, applicant relatives are expected to keep track of the progress of the investigation and lodge their applications with due expedition once they are or should have become aware of the lack of any effective investigation (see Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002; Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002‑III; and Varnava and Others, cited above, § 158). As long as there is some indication, or realistic possibility, of progress in investigative measures, considerations of undue delay by the applicants will not generally arise (see Mocanu and Others, cited above, § 269, and Varnava and Others, cited above, § 165).", "112. Turning to the present case, the Court has already accepted that the eleventh applicant’s initial representative was acting on her behalf from the outset, 23 March 2011, when the application was lodged. It therefore rejects the Government’s submission that the eleventh applicant only addressed the Court for the first time by means of her observations. 113. Furthermore, it has already been noted that after the Convention entered into force in respect of Montenegro the investigation was recommenced and new criminal proceedings were initiated, in the course of which some hearings were held and others adjourned.", "It is observed in this regard that the first trial hearing took place in September 2009. Even though the second took place in October 2010, the Court considers that the applicant could not have known immediately after the first hearing that the next few hearings would be adjourned. In other words, it was not unreasonable for her to wait some time after the first hearing and see how the proceedings would develop and how diligently they would be conducted. After the second hearing held in October 2010, all the other hearings scheduled as of November 2010 were again systematically adjourned for more than a year, for various reasons, none of which were attributable to the applicants (see paragraphs 29-30 above). 114.", "In view of the above, the Court considers that the period of six months could not have started running before November 2010 at the earliest, and that the issue of compliance with the six-month time-limit therefore does not arise given that the eleventh applicant lodged the application on 23 March 2011. The Government’s objection in this regard is therefore dismissed. f. The Court’s conclusion 115. The Court notes that the eleventh applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties’ submissions a. The eleventh applicant 116.", "The eleventh applicant she submitted that the State had failed to conduct an effective investigation as more than fifteen years since the impugned event the relevant authorities had only identified thirteen bodies and still had not found those responsible for the deaths of her brother and sister-in-law. She also maintained that the criminal proceedings had been neither speedy nor effective, which had been the result of a lack of willingness on the part of the High Court to act speedily and a strategy by the defence to prolong the proceedings. b. The Government 117. The Government submitted that the obligation of the State was not an obligation of result but of means, that is to say that the investigation be thorough and the authorities undertake all reasonable measures at their disposal to secure evidence of the impugned event.", "118. They maintained that in the present case the competent authorities had undertaken all reasonable measures at their disposal to secure all possible evidence and shed light on the impugned event as far as possible, including hearing evidence from a large number of people in the courts. 119. The Government further averred that the circumstances of the case were rather specific and that it had been impossible to investigate the “crime scene”, collect forensic evidence and undertake other investigative measures. Only one witness had survived the impugned event, other potential witnesses had been unavailable (nedostupni), the direct victims had not been citizens of Montenegro but citizens of other countries merely in transit through Montenegro, and because of all the abuses of the Roma population which unfortunately took place, cooperation with them was more difficult.", "In addition, complex criminal cases, as this one definitely was, required a certain amount of time. 120. In view of all this, the Government maintained that the investigation and the proceedings as a whole had been conducted efficiently and in accordance with Article 2. c. The Serbian Government 121. The Serbian Government maintained that the respondent State had failed to carry out an effective investigation of the impugned event. In particular, four years after the event the indictment had been given a new legal classification, the proceedings had had to be started afresh and before another court, and the domestic bodies had failed to ensure the presence of all the accused, which had caused numerous adjournments of the case.", "In view of this, they submitted that the criminal proceedings as a whole had been in breach of Article 2 of the Convention. 2. The Court’s conclusion 122. The Court reiterates that the obligation in Article 2 to protect the right to life imposes a procedural obligation upon the State to investigate deaths, not only when they occur at the hands of State agents, but also at the hands of private or unknown individuals (see, for example, Branko Tomašić and Others v. Croatia, no. 46598/06, § 62, 15 January 2009; Toğcu v. Turkey, no.", "27601/95, § 109 in fine, 31 May 2005; and Menson v. the United Kingdom (dec.), no. 47916/99, 6 May 2003). 123. The essential purpose of an investigation is to “secure the effective implementation of the domestic laws which protect the right to life” and ensure the accountability of those responsible. In order to be effective, an investigation must be capable of leading to the identification and punishment of those responsible.", "Although it is not an obligation of result but of means, any deficiency in the investigation which undermines its ability to establish the circumstances of the case or the person responsible will risk falling foul of the required standard of effectiveness (see, inter alia, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 183, ECHR 2012). Where an official investigation leads to the institution of proceedings in the national courts, the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law. It should in no way be inferred from the foregoing that Article 2 may entail the right for an applicant to have third parties prosecuted or sentenced for a criminal offence or an absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence. On the other hand, the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished (see, mutatis mutandis, Öneryıldız v. Turkey [GC], no.", "48939/99, §§ 95-96, ECHR 2004‑XII). Given that the criminal trial is still under way, the issue to be assessed is not whether the judicial authorities, as guardians of the laws laid down to protect lives, were determined to sanction those responsible, if appropriate, but whether they had proceeded with exemplary diligence and promptness (see Mučibabić v. Serbia, no. 34661/07, § 132, 12 July 2016). While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating an alleged infringement of the right to life 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 Mučibabić, cited above, § 132; see, also, mutatis mutandis, Hugh Jordan v. the United Kingdom, no. 24746/94, § 108, 4 May 2001; McCaughey and Others v. the United Kingdom, no.", "43098/09, § 130, ECHR 2013; and Hemsworth v. the United Kingdom, no. 58559/09, § 69, 16 July 2013). 124. Turning to the present case, the Court notes that the eleventh applicant had an arguable claim that her relatives had lost their lives as a result of an act of reckless endangerment committed by third parties. Even though it has temporal jurisdiction to examine the complaint only in so far as it concerns the events after 3 March 2004 (see paragraph 94 above), the Court will nevertheless, for reasons of context, succinctly take note of all relevant events prior to that date (see Mučibabić, cited above, § 130, and Mladenović v. Serbia, no.", "1099/08, § 52, 22 May 2012). 125. The Court notes that within less than three months of the impugned event (a) autopsies were performed on the bodies found and the relevant reports in that regard issued, (b) a formal judicial investigation was conducted, during which the investigating judge heard thirty-two people, including two suspects, and asked for expert opinions on the capacity of the boat, the autopsy reports, and a weather report on the night of the incident, and (c) an indictment was issued against seven suspects. 126. By the end of 1999 the case file had been transferred to another court, but the High Court declared the Court of First Instance in Bar competent to deal with the case, after which the file was returned.", "In the next three years, that is to say by the end of 2002, it was decided that two defendants who were at large would be tried in their absence and representatives were appointed for them. Between 25 December 2002 and 14 April 2004 eleven hearings took place and eight were adjourned for various procedural reasons, there being no information in the case file on one of the hearings. During that time the proceedings had to be recommenced once, on 24 September 2003, due to the passage of time, and defendants and a number of witnesses were therefore heard twice. 127. After the Convention entered into force in respect of the respondent State first the indictment was changed in April 2004, and then the case file was transferred to the High Court, as the competent court (see paragraph 16 above).", "A new formal judicial investigation into the impugned incident was commenced on 11 November 2004, and a new indictment issued on 31 October 2006. During those nearly two years only one piece of evidence was obtained, namely an opinion of an expert witness on the capacity of the boat. While it may well be that that piece of evidence was sufficient for the indictment to be issued and no other evidence needed to be obtained, the Court does not see why it took the domestic authorities more than a year and four months to obtain that piece of evidence (which was initially requested as early as in 1999, see paragraph 10 above) and an additional seven months to issue the indictment (see paragraphs 19-22 above). 128. It is noted in this connection that after the new indictment was issued in October 2006, the first hearing was held on 28 September 2009, nearly three years later.", "Moreover, it was the only hearing held in 2009. During those three years the domestic authorities tried to serve the indictment on the defendants. The Court notes that the indictment was not successfully served even on the defendant who was in detention in Podgorica (see paragraph 25 above), and for some other defendants it was clear that they had already been at large since 2002 (see paragraph 13 above). 129. The Court further observes that between 28 September 2009 and 9 July 2014 fifteen hearings were held, while a total of twenty-two hearings were adjourned for various procedural reasons.", "While perhaps not all the adjournments may be attributed to the respondent State, certainly none was attributable to the eleventh applicant. Moreover, the trial was recommenced on at least three occasions because delays in proceedings necessitated a fresh trial, despite the relevant statutory provision providing that courts have a duty to conduct proceedings without delay (see paragraphs 31-33 and 46 above). The Ombudsman considered unjustified the length of the investigation and the ensuing criminal proceedings as early as in December 2009 and recommended that the High Court terminate the proceedings as soon as possible (see paragraph 35 above). Even though the president of the High Court also recognised that the proceedings in question had already “lasted too long” in June 2011 (see paragraph 40 above), the proceedings are still pending. 130.", "The Court further observes that more than ten years and seven months after the new indictment was issued, and more than seventeen years and nine months after the impugned event, the criminal proceedings in question appear to still be pending at second instance, the defendants having been acquitted by the first-instance court in July 2014 for lack of evidence (see paragraph 34 above). The Court reiterates that violations have also been found where a trial continued unduly (see Opuz v. Turkey, no. 33401/02, § 151, ECHR 2009, a case where the criminal proceedings at issue had lasted for more than six years and were still pending). In that regard, the Court would stress that the passage of time inevitably erodes the amount and quality of evidence available and the appearance of a lack of diligence casts doubt on the good faith of the investigative efforts (see Trubnikov v. Russia, no. 49790/99, § 92, 5 July 2005).", "Moreover, the very passage of time is definitely liable to compromise the chances of an investigation being completed (see M.B. v. Romania, no. 43982/06, § 64, 3 November 2011). It also prolongs the ordeal for members of the family (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002‑II).", "The Court considers that in Article 2 cases concerning proceedings instituted to elucidate the circumstances of an individual’s death, lengthy proceedings are a strong indication that the proceedings were defective to the point of constituting a violation of the respondent State’s procedural obligations under the Convention, unless the State has provided highly convincing and plausible reasons to justify such a course of proceedings (see Mučibabić, cited above, § 135). Indeed, in the present case, the Court considers that the Government have failed to justify such lengthy proceedings following the ratification date. 131. In view of the above, the Court considers that the delays cannot be regarded as compatible with the State’s obligation under Article 2, and that the investigation and the subsequent criminal proceedings have not complied with the requirements of promptness and efficiency. There has accordingly been a violation of Article 2 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 132. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the 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 133. The eleventh applicant claimed 1,000 euros (EUR) in respect of pecuniary damage and EUR 17,500 for non-pecuniary damage.", "134. The Government contested her claim. 135. The Court does not discern any causal link between the violation found and the pecuniary damage alleged and therefore rejects the claim. On the other hand, it awards the eleventh applicant EUR 12,000 in respect of non-pecuniary damage.", "B. Costs and expenses 136. The eleventh applicant also claimed EUR 500 for costs and expenses incurred before the Court. 137. The Government contested her claim.", "138. 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 500 for the proceedings before the Court. C. Default interest 139. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to strike the application out of its list of cases in so far as it concerns the complaints of the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, twelfth and thirteenth applicants; 2. Declares the eleventh applicant’s complaint under the procedural aspect of Article 2 of the Convention admissible; 3. Holds that there has been a violation of the procedural aspect of Article 2 of the Convention in respect of the eleventh applicant; 4. Holds (a) that the respondent State is to pay the eleventh 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 12,000 (twelve 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 eleventh 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 eleventh applicant’s claim for just satisfaction. Done in English, and notified in writing on 19 September 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithRobert SpanoRegistrarPresident APPENDIX No. First name LASTNAME Birth date Deceased/disappeared relative Nationality Place of residence Zorka RANĐELOVIĆ (the first applicant) 10/09/1944 Son and two grandchildren Serbian Knjaževac, Serbia Dasa FERATOVIĆ (the second applicant) 13/08/1976 Parents, wife and three children Serbian Knjaževac, Serbia Nardživana DŽAFEROVIĆ (the third applicant) 28/06/1952 Son, daughter-in-law and three grandchildren Serbian Bujanovac, Serbia Nedžmija TAIROVIĆ (the fourth applicant) 26/07/1960 Husband, son, daughter, brother-in-law with his daughter Serbian Žarkovo, Serbia Darko RADOSAVLJEVIĆ (the fifth applicant) 02/02/1978 Sister Serbian Lazarevac, Serbia Salija BERIŠA (the sixth applicant) 16/05/1973 Wife and two children Serbian Sremčica, Serbia Pravdo BOJKOVIĆ (the seventh applicant) 11/12/1968 Brother, sister-in-law, two nieces Serbian Železnik, Serbia Mirka BOJKOVIĆ (the eighth applicant) 27/02/1945 Daughter, son-in-law, three grandchildren Serbian Železnik, Serbia Ivica JOVANOVIĆ (the ninth applicant) 01/01/1975 Wife Serbian Knjaževac, Serbia Manojlo RISTIĆ (the tenth applicant) 21/11/1982 Wife and two children Serbian Kaluđerica, Serbia Begija GAŠI (the eleventh applicant) 25/12/1960 Brother and sister-in-law Serbian Podgorica, Montenegro Qulsefa RAŠIDOLSKA (the twelfth applicant) 01/01/1957 Son, daughter-in-law, granddaughter Serbian, the Former Yugoslav Republic of Macedonia Smederevo, Serbia Elvira ABDULAHU (the thirteenth applicant) 05/09/1982 Mother Serbian Kruševac, Serbia" ]

[ "FIFTH SECTION CASE OF STOYAN MITEV v. BULGARIA (Application no. 60922/00) JUDGMENT STRASBOURG 7 January 2010 FINAL 07/04/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Stoyan Mitev v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Karel Jungwiert,Rait Maruste,Mark Villiger,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska, judges,Pavlina Panova, ad hoc judge,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 1 December 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "60922/00) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Stoyan Stoyanov Mitev (“the applicant”), on 27 July 2000. The applicant was born in 1934, lived in Sokolovo and passed away in 2001. By a letter of 6 April 2005 his son, Mr Asen Stoyanov Mitev, informed the Court that he wished to continue the application on behalf of his father. 2. The applicant was represented by Ms Y. Vandova, a lawyer practising in Sofia.", "3. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Kotzeva, of the Ministry of Justice. 4. The applicant alleged, in particular, that his continued detention in spite of his constantly deteriorating medical condition amounted to inhuman and degrading treatment in contravention of Article 3 of the Convention. 5.", "On 1 September 2005 the Court declared the application partly inadmissible and decided to communicate the complaint under Article 3 of the Convention to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). 6. Judge Kalaydjieva, the judge elected in respect of Bulgaria, withdrew from sitting in the case (Rule 28 of the Rules of Court). On 30 January 2009, the Government, pursuant to Rule 29 § 1 (a), informed the Court that they had appointed in her stead Ms Pavlina Panova as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1 of the Rules of the Court).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. The criminal proceedings against the applicant 7. On 17 August 1997 the applicant was arrested after neighbours found him beating another elderly individual, who later died from his injuries. 8.", "In a judgment of 10 December 1998 the Burgas Regional Court found the applicant guilty of premeditated murder and sentenced him to seventeen years’ imprisonment, to be initially served in a high security prison. The applicant appealed against the judgment. 9. In a judgment of 15 November 1999 the Burgas Court of Appeal upheld the lower court’s judgment. The applicant lodged a cassation appeal.", "10. Two hearings before the Supreme Court of Cassation were adjourned because of the applicant’s failure to attend them as a result of his deteriorating medical condition. 11. On 21 July 2000 the Supreme Court of Cassation ordered the applicant’s release on bail. The guarantee was deposited on 24 July 2000 and the applicant was released the next day.", "12. Subsequently, several more hearings were scheduled, but none were conducted due to the deteriorating medical condition of the applicant. 13. On 14 December 2001 the applicant passed away. 14.", "In view of the applicant’s death, by a decision of 19 March 2002 the Supreme Court of Cassation quashed the judgment of the Burgas Court of Appeal and discontinued the criminal proceedings against him. B. The applicant’s medical condition 1. Prior to the criminal proceedings 15. The applicant was a pensioner who retired on medical grounds.", "After a domestic accident in 1993 he became disabled, walked with a stick and limped because his left leg had become shorter than his right by six centimetres. The applicant was apparently a heavy smoker. 2. Injuries allegedly sustained during the arrest 16. At the time of his arrest on 17 August 1997 the applicant allegedly sustained an injury to his testicles.", "On 20 February 1998 his lawyer requested the courts to order that his client be provided with hospital treatment for the aforementioned injury. It is unclear whether the applicant received any such treatment. At the time, he was held at the detention facility of the Burgas Investigation Service. 3. While in detention (a) Angiopathy and inguinal hernia 17.", "On 21 November 1997 the applicant was transferred to Stara Zagora Prison where he was examined by a doctor. He complained of poor blood circulation in both legs and was found to have angiopathy[1]. It does not appear that he received any specific treatment for this condition. The applicant was also diagnosed with left-sided inguinal hernia[2] and was prohibited physically intensive work. 18.", "On 11 February 1998 the applicant was examined by the prison doctor, who found that the applicant’s inguinal hernia was progressing and ordered that it be operated on. 19. On 4 March 1998 the applicant was transferred to Sofia Prison Hospital where on 10 March 1998 the operation was performed. The applicant remained hospitalised for at least another ten days, when his stitches were removed. He was discharged on an unspecified day, advised not to lift anything heavy and was given thirty days’ home leave.", "20. On an unspecified date before May 1998 the applicant returned to Stara Zagora Prison. (b) Urinary infection 21. Some time prior to July 1998 the applicant developed an infection or complications which affected his urinary tract and he had difficulty urinating. It is unclear whether he received any treatment for this condition and when it cleared up.", "(c) Stroke (i) Stara Zagora 22. At around 10:30 a.m. on 28 January 2000 the applicant, while physically exerting himself for an unspecified reason, developed a very severe headache, his mouth became crooked, he started having difficulty speaking and his right limbs became numb. Upon examination, he was found to have very high blood pressure. The applicant was taken to the emergency room of Stara Zagora hospital where various tests were performed, including a CAT scan (computed tomography) of the brain. As a result, it was discovered that he had suffered a stroke and was diagnosed with the following: “Brain atherosclerosis.", "Arterial hypertension - 3rd stage. Transient disturbance of the brain’s blood circulation in the left carothic system (stroke). Right-sided hemiparesis.” 23. The applicant returned to the medical ward in Stara Zagora Prison where he was placed under medical supervision and ordered to remain in bed. He was prescribed daily doses of Agapurin, Vasopren and Cinnarizine.", "24. As the applicant’s medical condition had stabilised, on 9 February 2000 the prison warden proposed that the applicant be transferred to Sofia Prison Hospital for further treatment and rehabilitation. 25. On 18 February 2000 the applicant was transferred to the neurological ward of Sofia Prison Hospital. (ii) Sofia Prison Hospital 26.", "At Sofia Prison Hospital the applicant was prescribed a medication regime aimed at improving the blood circulation to his brain. On 23 February 2000 he also started physiotherapy. 27. The applicant’s medical records from his stay at this facility indicate that his medical condition was regularly monitored, but sometimes not every single day. He also appears to have had regular contact with and access to doctors or medical personnel, who addressed, in so far as possible, the complaints or complications he had.", "28. On 1 March 2000 a medical commission examined the applicant and concluded that it was not necessary to move him to an outside civil medical facility, as he was showing signs of improvement and the required treatment could be provided adequately at Sofia Prison Hospital. 29. The applicant’s medical record indicates that on 20 March 2000 he said he had fainted while being led out to see a visitor. 30.", "It appears that the applicant’s medical condition gradually began to deteriorate. Towards the end of April or the beginning of May 2000 it worsened considerably. 31. On 4 May 2000 another CAT scan of the applicant’s brain was performed, which found evidence of a five millimetre encephalomacic lesion in the internal brain cavity. 32.", "A medical report by the head of the neurological ward of Sofia Prison Hospital indicated that the applicant’s diagnosis was as follows: “Generalised and brain atherosclerosis; ischemic (thromboembolic) brain stroke; right-sided hemiparesis; partial aphasia; arterial hypothermia – 3rd stage”. It also specified that as a result of the lack of specialised rehabilitation and physiotherapy the applicant’s ability to move would continue to deteriorate, as had his speech as a result of the lack of a logopaedic specialist. The doctor concluded the following: “the patient is unsuitable to remain in [prison] conditions of high or standard level of security. [The applicant] requires constant monitoring of his arterial pressure, neurological status and to be given therapy...”. 33.", "On 9 May 2000 a medical commission found the applicant’s blood pressure too unstable, and that this precluded his participation in the hearing of that day. In addition, it reasoned that if the applicant’s medical condition did not improve, due to the heightened risk of a second stroke it would be necessary to assess whether to propose that his detention be replaced with another measure to secure his participation in the court proceedings. 34. On 15 May 2000 a medical commission of three doctors from the Hospital of the Ministry of Internal Affairs prepared a report on the applicant’s medical condition. They found that in spite of his initial improvement by following the prescribed treatment, the applicant’s condition was deteriorating.", "They proposed that the applicant be released from detention for an initial period of three months in order to receive adequate treatment for his condition in a specialised civil medical facility. The report was sent to the warden of Stara Zagora Prison. 35. On 18 May 2000 the warden of Stara Zagora Prison proposed to the Burgas Regional Court that the applicant’s detention be replaced with another measure to secure his participation in the court proceedings. He based his proposal on the findings of the medical commission of 15 May 2000 and the need for the applicant to receive treatment in a specialised rehabilitation centre.", "36. On an unspecified date, the Burgas Regional Court apparently refused to replace the applicant’s detention with another measure to secure his participation in the court proceedings. The applicant appealed, but on 2 June 2000 the Supreme Court of Cassation upheld the lower court’s decision. The latter court based its decision on the contradictions it had found in the medical reports prepared since March 2000 regarding the applicant’s medical condition, his ability to move, the course of the treatment required and the place most suitable to obtain it. The court concluded the following: “it cannot be unequivocally concluded that the applicant’s [medical] condition had deteriorated to such an extent as to exclude the possibility that he might be moved or transported and, accordingly, that [the applicant] might abscond or reoffend”.", "37. On 20 June 2000, in spite of the medical restriction, the applicant was taken to court to attend a hearing without an escort or a wheelchair. When he returned at 11.45 a.m. he had very high blood pressure. He was given medication and by 4.30 p.m. his blood pressure had been lowered to a safer level. 38.", "On 1 July 2000 an interview with the applicant appeared in the national newspaper Sega which detailed his situation in Sofia Prison Hospital. In it the applicant expressed his desire to be released from prison on medical grounds and his fears that this would not happen and that he would die in detention before his case was examined by the courts. 39. Acting on a new petition for release, on 21 July 2000 the Supreme Court of Cassation ordered the applicant’s release on bail. It based its decision on the proposal of the warden of Stara Zagora Prison of 18 May 2000 and the findings of the medical commission of 15 May 2000.", "The court noted the inability of the applicant to move on his own and thus to abscond or reoffend and also the need for him to receive treatment as an outpatient in a medical facility, which ruled out the imposition of house arrest as an alternative to detention. 4. Following the applicant’s release on bail 40. The applicant was treated at various medical establishments following his release on bail, but with no viable improvement. For example, from 15 to 20 September 2000 he was a patient at the Neurological Clinic of the Military Medical Academy but was discharged “due to [his] financial constraints [and] with no improvement in the condition”.", "41. A report from the same facility of 8 November 2000 found, inter alia, that the applicant had severely damaged psychological and intellectual capacity due to the numerous strokes he had suffered as a result of the ageing of his arteries and his arterial hypertension. Given the damage caused to his brain he could no longer be considered sane and the likelihood that his condition would improve was minimal. 42. On 14 December 2001 the applicant passed away, the cause being “sudden cardiac arrest”.", "II. RELEVANT DOMESTIC LAW Provision of medical services to persons in detention 43. Section 10 of the Execution of Sentences Act, as in force at the relevant time, provided that prisons might also accommodate persons who have been placed in detention. 44. In addition, section 20c of the Act, as in force at the relevant time, provided that such persons received free medical services at State and municipal medical facilities, as well as at those operated by the Ministry of Internal Affairs.", "45. Finally, section 22 of the Act, as in force at the relevant time, provided that if medical establishments attached to prisons were not adequate for the provision of a required treatment, then the detained person was to be sent to a civilian medical facility for that treatment. THE LAW I. PRELIMINARY ISSUE 46. The Court observes that the applicant passed away in 2001 and that his son, Mr Asen Stoyanov Mitev, informed the Court in a letter of 6 April 2005 that he wished to continue the application on behalf of his father.", "47. In view of the above, the Court holds that the applicant’s son has standing to continue the present proceedings in the applicant’s stead. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 48. The applicant complained that his continued detention, in spite of his deteriorating medical condition, amounted to inhuman and degrading treatment in contravention of Article 3 of the Convention.", "He referred, in particular, to his advanced age, prior disability and difficulty in walking, the herniotomy performed on 10 March 1998, the stroke suffered on 28 January 2000 and the fear and anguish he felt that he would die in detention as a result of the allegedly inadequate medical capacity of the facilities where he had been detained. Article 3 of the Convention 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 49. The Government stated that the applicant had been detained in conditions which were satisfactory and were not in any way different from those in which other detainees at the same facilities had been held.", "50. In particular, they noted that the applicant had been examined on arrival at Stara Zagora Prison on 21 November 1997 and had been found to be suffering from a left-sided inguinal hernia. Subsequently he had been transferred to Sofia Prison Hospital, where he underwent an operation on 10 March 1998, made a full recovery and was given thirty days’ home leave to recuperate. Likewise, in respect of the stroke suffered by the applicant on 28 January 2000, the Government stated that he had been immediately placed under medical supervision in the prison’s infirmary and had then been taken to the emergency room of Stara Zagora hospital where various tests had been performed, including a CAT scan of his brain. After his condition had stabilised, the applicant had been transferred to Sofia Prison Hospital to continue treatment and to start physiotherapy.", "Accordingly, in respect of the level of care provided, the Government considered that during the stated period the applicant’s medical condition had been closely monitored, he had been provided with all the required medicines, had undergone all the necessary tests and examinations by specialists and had been adequately cared for by the medical staff at the various facilities. 51. In addition, the medical commission that examined the applicant on 1 March 2000 concluded that it was not necessary to move him to an outside civil medical facility as he was showing signs of improvement and the required treatment could adequately be provided at Sofia Prison Hospital. Only subsequently, when the applicant’s condition deteriorated, did another medical commission on 9 May 2000 reason that it might be necessary to reassess the need for his detention. Such a proposal was made on the 15th of the month by a medical commission from the Hospital of the Ministry of Internal Affairs and on the 18th of the month by the warden of Stara Zagora Prison.", "Based on these proposals, on 21 July 2000 the Supreme Court of Cassation ordered the applicant’s release on bail. 52. In view of the above, the Government argued that by releasing the applicant on bail the domestic courts had fully complied with and had taken into account the conclusions of the medical experts. Moreover, the facts of the present case were not as severe as in Kudła v. Poland ([GC], no. 30210/96, § 46-50, ECHR 2000‑XI), where the Court found there to have been no violation in spite of a delay of several months by the national courts to take into account the conclusions of medical experts that the applicant in that case was a danger to himself and might attempt suicide.", "53. The Government notes that the applicant’s unstable health and old age might have placed him in a more precarious situation compared to other detainees and might have increased his feeling of distress or anguish, but they noted the fact that the applicant had by that time already been charged with and convicted of premeditated murder at two levels of jurisdiction. In spite of this, the actions of the medical experts led to the applicant’s release from detention. Accordingly, the Government considered that the applicant’s detention could not be construed to have constituted inhuman or degrading treatment in contravention of Article 3 of the Convention. 2.", "The applicant 54. The applicant reiterated the substance of his complaint and considered that it was irrelevant whether he had been held in conditions similar to those of other detainees in the same facilities, because the conditions they all shared were substandard. This was claimed to have been supported by the findings of the CPT in its reports over the given period and by statements of politicians in the national press. 55. In addition, the applicant argued that his age, difficulty in walking and precarious health should have made his detention unjustified and unnecessary from the outset.", "Instead he had been detained for a particularly lengthy period of time. 56. As to the information provided by the Government, the applicant considered that they had failed to respond adequately to the questions of the Court and had failed to provide sufficient documentation detailing the conditions in which he had been held. In particular, he noted that he had been detained at the Burgas Investigation Service in the initial months after his arrest. However, in respect of this period no information or data had been provided.", "As it was common knowledge that these detention facilities were much worse than the prisons, it must be concluded that the applicant had not been examined by a doctor over the said period in spite of his age. 57. As to the adequacy of the provided medical treatment, the applicant noted that on 21 November 1997 the doctor at Stara Zagora Prison had established that he suffered from inguinal hernia and angiopathy. The inguinal hernia had been operated on four months later, which should be considered inadequate, while the angiopathy had never been treated. Thus, it must be considered that he did not receive adequate care for these conditions.", "As the applicant’s health had allegedly not been monitored over the period, it cannot be assessed to what extent the lack of treatment for the angiopathy contributed to the subsequent stroke. 58. In respect of the treatment provided for the stroke he had suffered, the applicant noted that the Government had once again failed to provide sufficient data in respect of the initial medical care provided at the infirmary of Stara Zagora Prison, so it cannot be established whether that care was sufficient or timely. Moreover, the event itself is questionable as the applicant was exerting himself when it happened and could therefore have been doing hard manual labour of some sort which he should not have been allowed to do in view of the medical restriction on heavy lifting. As to the subsequent care at Sofia Prison Hospital, it was argued that the applicant had not been monitored closely enough because the doctors visited him every day only at the beginning of his stay there.", "Subsequently, such visits became less and less frequent. His blood pressure was also not checked regularly over the period. 59. As to the decision of 21 July 2000 to release him on bail, the applicant argued that it had been taken too late, as his health had already deteriorated significantly. Moreover, there had been unjustified delays even after the procedure had been initiated by the medical commission and the warden at the beginning of May 2000.", "Note was also taken of the inexcusable event of 20 June 2000 when, in clear violation of the existing medical restrictions, his life had been endangered as a result of being allowed to go to court to attend a hearing without an escort or a wheelchair. 60. In conclusion, the applicant disagreed with the position of the Government and considered that he had been subjected to inhuman and degrading treatment in contravention of Article 3 of the Convention as a result of having been detained for a period of over three years in spite of his age, disability and rapidly deteriorating state of health. This had placed him in a situation not comparable with that of other detainees, as he had had to endure much greater hardship as a result of having to fend for himself without assistance or care from relatives. Moreover, this had been evident and had been documented by the journalist in the interview of 1 July 2000.", "B. Admissibility 61. The Court notes at the outset that the application was lodged with the Court on 27 July 2000. It further notes that it can examine conditions of detention only at facilities in which an applicant continued to be detained during the six months prior to the date of his application (see Koval v. Ukraine (dec.), no. 65550/01, 30 March 2004). Thus, the Court is competent to assess the conditions, and any medical assistance provided, only at the Stara Zagora Prison and Sofia Prison Hospital.", "It follows that the part of the complaint under Article 3 in respect of the detention facility of the Burgas Investigation Service has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 62. The Court notes that the complaint in respect of Stara Zagora Prison and Sofia Prison Hospital 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. This part of the complaint must therefore be declared admissible.", "C. Merits 1. General principles 63. 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 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 Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).", "In the context of deprivation of liberty the Court has consistently stressed that to fall under Article 3 the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with the detention (see, mutatis mutandis, Tyrer v. the United Kingdom, 25 April 1978, § 30, Series A no. 26, and Soering v. the United Kingdom, 7 July 1989, § 100, Series A no. 161). The Court often faces allegations of insufficient or inadequate medical care in places of detention. In exceptional circumstances, Article 3 may go as far as requiring the conditional liberation of a prisoner who is seriously ill or disabled.", "Thus, in Farbtuhs v. Latvia, (no. 4672/02, 2 December 2004), the Court concluded that the detention of a disabled seventy-nine-year-old applicant was in breach of Article 3 on account of “his age, infirmity and health situation” (see also Papon v. France (no. 1) (dec.), no. 64666/01, ECHR 2001-VI, and Priebke v. Italy (dec.), no. 48799/99, 5 April 2001).", "64. In deciding whether or not the detention of a seriously ill person raised an issue under Article 3 of the Convention, the Court has taken into account various factors. Thus, in Mouisel v. France (no. 67263/01, §§ 40‑42, ECHR 2002‑IX) the Court examined such elements of the case as (a) the medical condition of the prisoner, (b) the adequacy of the medical assistance and care provided in detention and (c) the advisability of maintaining the detention measure in view of the state of health of the applicant. This test was further developed in the case of Gelfmann v. France (no.", "25875/03, 14 December 2004), where the Court took into account, among other relevant factors, the dynamics of the applicant’s health condition, the possibility of conditional release or parole for a seriously ill detainee if his health deteriorated, and the applicant’s own attitude (namely his persistent refusal to cooperate with the doctors). In the cases of Henaf v. France (no. 65436/01, §§ 49 et seq., ECHR 2003‑XI) and Mouisel (cited above) the Court also analysed whether the application of handcuffs or the shackling of a seriously ill detainee to his bed was justified by any security risks. The applicant’s potential “dangerousness” was also taken into account in the case of Sakkopoulos v. Greece (no. 61828/00, § 44, 15 January 2004) in order to decide whether his continuous detention was justified.", "65. In most cases concerning the detention of ill persons the Court has examined whether or not the applicant received adequate medical assistance in prison. The Court reiterates in this respect that even if Article 3 does not entitle a detainee to be released “on compassionate grounds”, it always requires the health and well-being of detainees to be adequately secured by, among other things, providing them with the requisite medical assistance (see Kudła [GC], cited above, § 94; see also Hurtado v. Switzerland, 28 January 1994, § 79, Series A no. 280-A, opinion of the Commission; Kalashnikov v. Russia, no. 47095/99, §§ 95 and 100, ECHR 2002‑VI; and Khudobin v. Russia, (no.", "59696/00, § 96, ECHR 2006‑... (extracts)). 66. The “adequacy” of medical assistance remains the most difficult element to determine. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment has proclaimed the principle of comparability of health care in prison with that in the outside community (see the 3rd General Report [CPT/Inf (93) 12]). However, the Court has not always adhered to this standard, at least when it comes to medical assistance to convicted prisoners (as opposed to those in detention).", "In particular, on several occasions the Court has held that Article 3 of the Convention cannot be interpreted as securing for every detained person medical assistance of the same level as “in the best civilian clinics” (see the case of Mirilashivili v. Russia (dec.), no. 6293/04, 10 July 2007). In the case of Grishin v. Russia (no. 30983/02, § 76, 15 November 2007) the Court went further, holding that it was “prepared to accept that in principle the resources of medical facilities within the penitentiary system are limited compared to those of civil clinics”. 2.", "Application of these principles to the present case 67. The Court observes that at the time of his arrest on 17 August 1997 the applicant was sixty-three years old and had pre-existing medical conditions, as he suffered from inguinal hernia and angiopathy, which were identified on 21 November 1997 upon his arrival in Stara Zagora Prison. Once detected, the applicant started treatment for the inguinal hernia and had an operation at Sofia Prison Hospital on 10 March 1998. He apparently made a full recovery and was even given thirty days’ home leave to recuperate. Thus, he appears to have been adequately treated for this condition.", "68. As to the angiopathy, there appears to have been no particular treatment prescribed for the applicant. However, the Court is unaware whether the applicant’s condition was treatable and notes that he failed to provide any substantive submissions in that respect, such as a medical expert’s opinion or information of subsequent treatment obtained after release, other than to claim that the condition should have been addressed. Thus, on the basis of the information before it, the Court is unable to assess whether the lack of treatment of the applicant’s angiopathy amounted to a lack of provision of requisite medical assistance. As to the applicant’s claim of a possible link between the lack of treatment of the angiopathy and the subsequent stroke, the Court once again notes that no medical evidence or expert opinion was presented to that effect other than the applicant’s assertions.", "Thus, it would be pure speculation on the part of the Court to conclude one way or another as to a possible causal link, if any, between the two conditions. 69. In respect of the stroke suffered by the applicant on 28 January 2000, the Court notes that the applicant was immediately taken into the prison infirmary and then to the emergency room at Stara Zagora hospital, where various tests were performed, including a CAT scan of the brain. He was treated for the immediate after-effects and, after his condition stabilised, on 18 February 2000 he was transferred for further treatment and rehabilitation to the neurological ward of Sofia Prison Hospital. There the applicant started physiotherapy on 23 February 2000 and, as indicated in the report of 1 March 2000, appeared to respond to the treatment, so it was considered unnecessary to move him to an outside medical facility.", "Accordingly, his treatment continued at Sofia Prison Hospital where his condition was monitored regularly, albeit not every day. In view of the above actions undertaken by the prison authorities, the Court does not find that during this period the applicant failed to receive the requisite medical assistance. Moreover, he has not indicated in what respect the medical assistance received at the Sofia Prison Hospital during this period would have been different had he been in a civil medical facility. 70. When the applicant’s medical condition did deteriorate towards the end of April or the beginning of May, further tests were conducted, including a CAT scan on 4 May 2000.", "When the results showed that there was an encephalomacic lesion on the internal cavity of the applicant’s brain the head of the neurological ward of Sofia Prison Hospital concluded that the applicant was “unsuitable to remain in [prison] conditions”. Soon afterwards on 9 May 2000 the applicant was not allowed to participate in a hearing before the Supreme Court of Cassation and the doctors reasoned that it might be necessary to reassess his detention. Then, on 15 May 2000 a medical commission proposed to the warden of Stara Zagora Prison that the applicant be released from detention for an initial period of three months in order to receive adequate treatment for his condition in a specialised civil medical facility. As a result, on 18 May 2000 the warden of Stara Zagora Prison proposed to the Burgas Regional Court that the applicant’s detention be replaced with another measure to secure his participation in the court proceedings. 71.", "The domestic courts initially refused to release the applicant, as evidenced by the decision of 2 June 2000 of the Supreme Court of Cassation, citing conflicting medical reports and conclusions as to his condition and treatment. In particular, they considered that it had not been shown that the applicant’s medical condition outweighed the risk of his absconding or reoffending. Nonetheless, acting on a new request the Supreme Court of Cassation released the applicant on bail a month and a half later on 21 July 2000 when it considered more pertinent the conclusions and proposal of May 2000. 72. Considering that the above procedure led to the applicant’s release on bail on medical grounds, in spite of the fact that he had already been convicted of murder at two levels of jurisdiction, the Court finds that the prison, medical and judicial authorities responded adequately to the changing requirements for his treatment.", "In particular, within weeks of the discovery of the encephalomacic lesion and the conclusion that the applicant could not be adequately treated in prison facilities a proposal had been made to the competent courts which eventually led to the applicant’s release on bail. As to the delay in acting on the said proposals, the Court notes that during this period the applicant continued to be at Sofia Prison Hospital where medical assistance was available and specialised assistance could be provided in case of need while the applicant had difficulties in following the required course of treatment after release due to financial constraints. Therefore, the Court does not consider that the length of the delay can in itself be considered to have amounted to inhuman and degrading treatment in contravention of Article 3 of the Convention. 73. In conclusion, the Court accepts that the applicant’s advanced age and medical condition might have made him more vulnerable than the average detainee and that his detention may have exacerbated to a certain extent his feelings of distress, anguish and fear.", "However, on the basis of the evidence before it and assessing the relevant facts as a whole, the Court does not find it established that the applicant was subjected to ill-treatment that attained a sufficient level of severity to come within the scope of Article 3 of the Convention. 74. Accordingly, there has been no violation of that Article in the present case. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint in respect of the conditions of detention at Stara Zagora Prison and Sofia Prison Hospital admissible and the remainder of the application inadmissible; 2.", "Holds that there has been no violation of Article 3 of the Convention. Done in English, and notified in writing on 7 January 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident [1] Angiopathy is the generic term for a disease of the blood vessels (arteries, veins, and capillaries). The best known and most prevalent angiopathy is diabetic angiopathy, a complication that may occur in chronic diabetes. [2] Inguinal hernias occur when soft tissue – usually part of the intestine – protrudes through a weak point or tear in the lower abdominal wall." ]

[ "FOURTH SECTION CASE OF GAINA v. LITHUANIA (Application no. 42910/08) JUDGMENT STRASBOURG 11 October 2016 FINAL 11/01/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gaina v. Lithuania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: András Sajó, President,Vincent A. De Gaetano,Paulo Pinto de Albuquerque,Krzysztof Wojtyczek,Egidijus Kūris,Iulia Motoc,Gabriele Kucsko-Stadlmayer, judges,and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 20 September 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 42910/08) 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, Ms Liudmila Gaina (“the applicant”), on 18 July 2008. 2. The applicant was represented by Ms R. Gradauskienė, a lawyer practising in Kaunas. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė.", "3. The applicant alleged that public authorities had unjustifiably delayed the cancellation of her debt to the State, causing her to incur significant costs. She relied on Article 1 of Protocol No. 1 to the Convention. 4.", "On 21 May 2015 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1961 and lives in Kaunas. A.", "The applicant’s debt to the State 6. In 1994 the applicant obtained a loan of 30,100 Lithuanian litai (LTL – approximately 8,718 euros (EUR)) from the State. The purpose of the loan was to build or buy an apartment. In 2000 the applicant became the owner of an apartment built by a public association, and in exchange she took over the association’s loan of LTL 90,036 (EUR 26,076) from the State. The apartment was pledged to the bank as collateral.", "Both loans were given under preferential conditions – the annual interest rate was lower than the average annual interest rate for loans given by private banks at that time. Both loans were administered by a State bank, the State Commercial Bank of Lithuania (hereinafter “the bank”). In 1998 that bank transferred the claims to some of its loans, including both of the applicant’s loans, to another State bank, the Savings Bank of Lithuania. In 2001 the latter bank was privatised and became the private bank AB Hansabankas. 7.", "On 13 August 2001 the applicant concluded an agreement with a third party, A.E., under which the applicant paid LTL 30,870 (EUR 8,940) and bought from A.E. the right to restoration of title in respect of 1.47 hectares of land in Kaunas. That land had belonged to A.E.’s grandfather, S.F., who had died in 1949. It had been determined by a ruling of the Kaunas District Court of 23 May 2001 that S.F. had owned a total of 68.26 hectares of land in Kaunas.", "Following that ruling, A.E. sold the right to restoration of title in respect of different parts of that land to over a hundred individuals, including the applicant. 8. On 23 October 2001 the Kaunas County Administration (hereinafter “the KCA”) restored the applicant’s title in respect of 1.47 hectares of land. At the applicant’s request, her property rights were restored by cancelling her outstanding debt to the State (see paragraphs 31-33 below).", "The KCA estimated that the value of that plot of land was LTL 70,560 (EUR 20,435.60), and its indexed value was LTL 112,896 (EUR 32,697), an amount equal to the applicant’s outstanding debt under the two loan agreements of 1994 and 2000 (see paragraph 6 above). 9. On 10 November 2001 the KCA forwarded to the Ministry of Finance a list of individuals, including the applicant, whose property rights it had decided to restore by cancelling their debts to the State. B. Suspension of the cancellation of debt 10.", "On 16 November 2001 the KCA ordered an internal audit into the restoration of property rights in respect of the land which had belonged to S.F. (see paragraph 7 above). The audit report, delivered on 7 December 2001, found that the documents in the possession of the KCA showed that from 1927 to 1940 S.F. had sold parts of his land to numerous individuals, and that, as a result, at the time of his death he had owned no more than 15.58 hectares. Accordingly, the audit report considered that the size of S.F.’s land, as established by the Kaunas District Court (see paragraph 7 above), had been incorrect, and recommended that the KCA suspend the restoration of property rights in respect of any land which had previously been considered as belonging to S.F.", "11. Following the internal audit, on 14 December 2001 the KCA suspended the restoration of property rights in respect of S.F.’s land. It informed the Ministry of Finance about the suspension, and asked it to suspend the cancellation of debt for all the individuals on the previously submitted list, including the applicant (see paragraph 9 above). 12. Subsequently the Kaunas Regional Prosecutor (hereinafter “the prosecutor”), at the request of the KCA and relying on the findings of the audit report, asked the domestic courts to reopen the civil proceedings concerning the size of S.F.’s land, and to suspend the enforcement of all the KCA’s decisions concerning the restoration of property rights in respect of that land.", "On 21 March 2002 the Kaunas Regional Administrative Court suspended the enforcement of the KCA’s decisions. The applicant participated in the court proceedings as a third party and appealed against the suspension, but on 25 April 2002 the Supreme Administrative Court dismissed her appeal. On 23 October 2002 the Supreme Court reopened the civil proceedings concerning the size of S.F.’s land, on the grounds that the audit report had revealed relevant information which had not been known at the time of the adoption of the Kaunas District Court’s ruling of 23 May 2001. 13. In the reopened proceedings, on 30 April 2003 the Kaunas District Court determined that S.F.", "had owned 48.40 hectares of land. On 30 June 2004 the Kaunas Regional Court partly amended that judgment and determined that S.F. had owned 47.91 hectares of land. The latter judgment became final. The KCA and the applicant participated in the reopened proceedings as third parties.", "14. On 25 October 2004 the prosecutor asked the Kaunas Regional Administrative Court to revoke the order suspending the enforcement of the KCA’s decisions concerning the restoration of property rights in respect of S.F.’s land. The prosecutor submitted that the total amount of land affected by those decisions was less than 47.91 hectares, so there was no risk of restoring property rights in respect of land which had not belonged to S.F. On 26 October 2004 the Kaunas Regional Administrative Court granted the prosecutor’s application. 15.", "On 9 November 2004 the KCA asked the Ministry of Finance to resume the cancellation of debt with regard to the applicant and other individuals (see paragraph 9 above). 16. On 6 December 2004 the Ministry of Finance issued a certificate confirming the cancellation of the applicant’s outstanding debt to the State, amounting to LTL 112,896 (EUR 32,697). On that same day the bank received the certificate from the Ministry and cancelled the applicant’s debt. C. Civil proceedings instituted by the bank 17.", "It appears that from 23 October 2001 to 6 December 2004 the applicant did not make any loan repayments to the bank and the bank did not request any such payments. However, until September 2002 she was paying interest and late payment fines under the two loan agreements, and paid a total of LTL 5,222.26 (EUR 1,512.47). 18. On 26 January 2005 the bank informed the applicant that she owed it LTL 13,140.56 (EUR 3,805.77) in interest and late payment fines under the two loan agreements. 19.", "On 3 February 2005 the bank lodged a civil claim against the applicant concerning the unpaid interest and late payment fines under the loan agreement of 1994, amounting to LTL 2,909.33 (EUR 842.60). It asked the Kaunas District Court to order interim measures – seizing the applicant’s apartment. On the same day the bank unilaterally terminated the loan agreement of 2000 and asked the court to begin the forced recovery of the debt under that agreement, amounting to LTL 10,231.23 (EUR 2,963.17), by seizing the applicant’s apartment, which had been pledged to the bank as collateral. 20. On 7 February 2005 the Kaunas District Court seized the applicant’s apartment and informed her that, following her failure to repay the debt under the loan agreement of 2000 within one month, the apartment would be sold at auction.", "The following day the court also granted the bank’s application for interim measures concerning the loan agreement of 1994, but having found that the applicant’s apartment had already been seized, the court ordered the seizure of the applicant’s movable property, financial assets and property rights, amounting to the sum of LTL 2,909.33. 21. On 24 February 2005 the applicant submitted a counterclaim against the bank. She stated that on 23 October 2001 the KCA had restored her property rights by cancelling her debt to the State, but due to circumstances beyond the applicant’s control the Ministry of Finance had only informed the bank about the cancellation on 6 December 2004. The applicant submitted that from 23 October 2001 until 6 December 2004 she had repeatedly contacted the bank and asked it to not count the interest and late payment fines.", "Thus, she considered that the bank had known about the cancellation of her debt, and it was therefore unjust and unfair for it to ask her for any payments for that period, or to unilaterally terminate the loan agreement of 2000. The applicant further asserted that in the period of 2001‑2002 she had paid the bank a total of LTL 5,222.26 (EUR 1,512.47) in interest and late payment fines under the two loan agreements; she claimed that there had been no grounds for the bank to accept those payments, and asked the court to order the bank to return them to her. 22. On 22 March 2005, at the applicant’s request, the Kaunas District Court suspended the forced recovery of the debt by means of seizing the applicant’s apartment, pending the examination of the claim and counterclaim in the civil case. On 18 October 2005 the court lifted the order for seizure of the applicant’s apartment because the bank had not requested its sale at auction within the time-limit prescribed by law.", "23. On 22 February 2006 the Kaunas District Court granted the bank’s civil claim in part. The court found that the applicant’s debt had only been cancelled on 6 December 2004, so there were no grounds to find that her obligation to honour the loan agreement with the bank had ended before that date. The court held that the applicant had been using the loan during the period of 2001-2004, and thus she was obliged to pay interest to the bank. Accordingly, it ordered the applicant to pay the bank LTL 2,705.52 (EUR 783.57).", "However, the Kaunas District Court also noted that the loan had been given to the applicant by the State and not by the bank, so the latter could not claim to have suffered any losses due to late payments. The court found no bad faith on the part of the applicant – it considered that she had had legitimate grounds to expect that the cancellation of her debt, ordered on 23 October 2001, would be implemented promptly. Accordingly, the court decided that the bank had no grounds to claim late payment fines, and ordered it to return to the applicant LTL 72.25 (EUR 20.93) which she had already paid. The applicant’s counterclaim was dismissed. 24.", "The applicant appealed against that judgment, but on 1 June 2006 the Kaunas Regional Court dismissed her appeal and upheld the first-instance judgment in its entirety. The court considered that the applicant had to assume the risks resulting from her agreement with A.E., which had enabled her to seek the cancellation of her outstanding debt after paying a sum that was several times lower than that debt (see paragraphs 7-8 above), especially as the bank had not been a party to that agreement. The court also noted that the delay in the cancellation of the applicant’s debt had been caused not by the actions of the bank but by those of the KCA and the prosecutor, so the bank had had the right to receive interest payments during the period in question. 25. In those proceedings, the courts did not examine whether the applicant had been under an obligation to pay interest and late payment fines under the loan agreement of 2000, because she had not made such a claim.", "As submitted by the applicant and not disputed by the Government, on an unspecified date in 2006 the applicant paid LTL 10,231.23 (EUR 2,963.17) in interest and late payment fines requested by the bank under that agreement. D. Proceedings for damages instituted by the applicant 26. On 3 July 2006 the applicant submitted to the Kaunas Regional Administrative Court a civil claim for damages against the KCA, the Prosecutor General’s Office and the Ministry of Finance. She claimed that because of the unnecessary and unjustified delay in the cancellation of her debt from 23 October 2001 until 6 December 2004, caused jointly by those three institutions, she had suffered financial losses of LTL 20,926.73 (EUR 6,060.80), consisting of interest and late payment fines paid under the two loan agreements, as well as legal expenses incurred in the civil proceedings instituted by the bank. She also claimed non-pecuniary damages of LTL 15,000 (EUR 4,344.30) for the stress and frustration caused during that delay.", "27. On 13 July 2006 the Kaunas Regional Administrative Court refused to accept the applicant’s claim, on the grounds that complaints against the Prosecutor General’s Office and the Ministry of Finance – and, as a result, the entire claim – had to be examined by the Vilnius Regional Administrative Court (see paragraph 38 below). 28. On 26 April 2007 the applicant submitted to the Kaunas Regional Administrative Court a civil claim for damages against the KCA only. She again claimed pecuniary damages of LTL 20,926.73 and non-pecuniary damages of LTL 15,000 in respect of damage allegedly caused by the unjustified delay in the cancellation of her debt.", "The applicant argued that the KCA had acted unlawfully by suspending the restoration of her property rights and asking the prosecutor to apply for the reopening of the civil proceedings concerning the size of S.F.’s land. The Prosecutor General’s Office and the Ministry of Finance participated in the proceedings as third parties. 29. On 11 June 2007 the Kaunas Regional Administrative Court dismissed the applicant’s claim. It held that the principle of the rule of law obliged the KCA to ensure that the restoration of property rights was conducted in accordance with the applicable laws.", "The court considered that, in the presence of well-founded doubts about the actual size of the land owned by S.F., the KCA had acted lawfully and diligently by suspending the restoration of the property rights and initiating the reopening of the proceedings. The fact that the courts dealing with the reopened proceedings had found that S.F. had owned less land than initially determined (48.40 hectares and 47.91 hectares, as opposed to the initial estimate of 68.26 hectares) showed that the suspension had had a proper basis. Accordingly, the court concluded that the KCA had acted lawfully and there were no grounds to award damages to the applicant. 30.", "The applicant appealed against that judgment, but on 12 March 2008 the Supreme Administrative Court dismissed her appeal and concluded that the KCA’s actions in initiating the suspension of its decisions concerning the restoration of property rights had been in accordance with domestic law. In addition, the Supreme Administrative Court distinguished between the KCA’s competence and that of the Ministry of Finance: while the KCA was responsible for the restoration of property rights, it was the Ministry of Finance which had the authority to cancel the applicant’s debt and issue the bank with a certificate confirming such cancellation. The KCA’s request of the Ministry of Finance to suspend the cancellation of the applicant’s debt (see paragraph 11 above) had not been legally binding on the Ministry, and had had no legal effect on the cancellation of the debt. The court further held that the suspension of restoration of the applicant’s property rights had been ordered not by the KCA but by the ruling of the Kaunas Regional Administrative Court of 21 March 2002, and the ruling had been revoked by that same court only on 26 October 2004 (see paragraphs 12 and 14 above). Accordingly, the Supreme Administrative Court concluded that the KCA could not be held responsible for the suspension of the restoration of the applicant’s property rights and the cancellation of her debt, and thus there were no grounds to award her damages.", "II. RELEVANT DOMESTIC LAW A. Restoration of property rights and cancellation of debts 31. The Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property, in force at the material time, listed the ways in which the State could compensate individuals for the loss of real property which had been nationalised during the Soviet occupation. One such way was the cancellation of their debts to the State, where such debts had been incurred after the nationalisation of the property but prior to the decision on the restoration of their property rights (Article 16 § 9 (2)).", "32. At the material time, Article 16 § 1 of the Law on Land Reform established the competence of county administrations to implement land reform and take decisions concerning, inter alia, the restoration of property rights. 33. At the material time, Regulation No. 616 on the Approval of the Order for Cancellation of Citizens’ Outstanding Debts to the State as Compensation, adopted by the Government on 20 May 1999, provided that individuals who wished to have their debt to the State cancelled as compensation for loss of property had to submit applications to that effect to county administrations (paragraphs 2 and 3 of the Regulation).", "A county administration had to prepare a list of individuals whose debts could be cancelled and forward it to a competent institution; in cases where the individual in question had obtained a loan from a special fund to buy or build houses or residential apartments, the competent institution was the Ministry of Finance (paragraph 4 of the Regulation). The Ministry had to verify the list and prepare a certificate for each applicant, confirming the cancellation of his or her debt. The date of that certificate was considered to be the day of the cancellation. A copy of the certificate had to be sent to the relevant bank (paragraphs 5 and 6 of the Regulation). B.", "Civil procedure 34. At the material time, the Code of Civil Procedure provided that courts could establish facts of legal significance in respect of the personal or pecuniary rights of individuals or organisations, including facts relating to ownership rights in respect of real property (Article 272 § 2 (6)). 35. At the material time, the Code of Civil Procedure permitted the reopening of court proceedings concluded by a final decision, where essential information relating to a case was discovered, and the person applying to reopen the proceedings had not known about that information and could not have known about it earlier (Articles 37117 and 37118 § 2). Persons authorised to apply for the reopening of proceedings included parties and their representatives, as well as public authorities – including prosecutors – acting to protect the rights and interests of the State or other persons (Articles 55 and 37117).", "An application to reopen proceedings could be submitted within three months of the date on which the person lodging the application discovered, or should have discovered, the information constituting the grounds for reopening the proceedings (Article 37121 § 1). C. Laws relating to the decisions of public administration entities 36. At the material time, the Law on Public Administration provided that a public administration entity, upon receiving information on factual or legal errors in a decision which it had taken, had to suspend the validity of that decision and initiate the procedure for rectification of the relevant errors (Article 32 § 1). 37. At the material time, the Law on Administrative Proceedings provided that an administrative court could, at the request of parties or participants in court proceedings, or on its own initiative, order a temporary suspension of a disputed administrative act if the continued application of that act could render the implementation of a subsequent court decision difficult or impossible (Article 71 §§ 1 and 2 (3)).", "D. Territorial jurisdiction of administrative courts 38. At the material time, the Law on Administrative Proceedings provided that, in cases where defendants were several public administration entities falling within the territorial jurisdiction of different courts, territorial jurisdiction would be determined by the seat of the superior entity (Article 17 § 4). Cases in which the claimant or defendant was a central entity of public administration were assigned, with limited exceptions, to the Vilnius Regional Administrative Court (Article 19 § 1). THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.", "1 TO THE CONVENTION 39. The applicant complained that public authorities had unjustifiably delayed the restoration of her property rights and the cancellation of her debt to the State, thereby causing her to incur substantial costs. She relied on Article 1 of Protocol No. 1 to the Convention, which reads: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 1. Non-exhaustion of domestic remedies 40. The Government submitted that the applicant had failed to exhaust effective domestic remedies, and asked the Court to reject the application in line with Article 35 §§ 1 and 4 of the Convention. They firstly argued that the applicant should have lodged a civil claim for damages against the KCA for its failure to provide the domestic courts with all available documents concerning the size of S.F.’s land – had the KCA acted properly and in a timely manner, there would have been no subsequent need to reopen the civil proceedings and revisit the ruling of 23 May 2001. 41.", "The Government also submitted that the applicant had not availed herself of her right to claim damages from the Ministry of Finance and the Prosecutor General’s Office, because her complaint against those institutions had not been submitted in line with the domestic procedural requirements (see paragraphs 27 and 38 above). 42. Lastly, the Government argued that the applicant should have lodged a civil claim for damages against the Kaunas Regional Prosecutor for asking the domestic courts to suspend the validity of the KCA’s decisions concerning the restoration of property rights in respect of S.F.’s land. They provided examples of domestic case-law where courts had awarded damages for damage caused by the application of interim measures on the grounds that those measures had been ordered to secure unfounded claims. 43.", "The applicant did not comment on those submissions. 44. The Court reiterates that the obligation to exhaust domestic remedies 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 in practice, failing which they will lack the requisite accessibility and effectiveness. To be effective, a remedy must be capable of directly redressing the impugned state of affairs and must offer reasonable prospects of success (see Mocanu and Others v. Romania [GC], nos.", "10865/09, 45886/07 and 32431/08, § 222, ECHR 2014 (extracts), and the cases cited therein). It also reiterates that if there are a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see O’Keeffe v. Ireland [GC], no. 35810/09, § 109, ECHR 2014 (extracts), and the cases cited therein). 45.", "As to the Government’s first submission, the Court notes that the Kaunas District Court adopted its ruling of 23 May 2001 on the basis of the information available to it, which it considered sufficient for the purpose of determining the size of S.F.’s land. Those civil proceedings were later reopened on the grounds that new information had been revealed by the KCA’s internal audit. Neither the prosecutor who applied for the reopening of the proceedings, nor the court which granted the prosecutor’s application mentioned anything about the KCA’s failure to provide documents in 2001 (see paragraph 12 above). Therefore, taking into account the information available to the applicant, the Court considers that it could not have been reasonably expected of her to submit that specific claim against the KCA. 46.", "As to the Government’s other submissions, the Court notes that the applicant submitted a claim against the KCA, alleging that it had acted unlawfully by suspending the restoration of her property rights and asking the prosecutor to apply for the reopening of the civil proceedings. The domestic courts dismissed the applicant’s claim and held that, in the presence of well-founded doubts that the size of S.F.’s land had not been established correctly, the reopening of the proceedings and the suspension of the restoration of property rights in respect of S.F.’s land had been lawful (see paragraphs 29-30 above). In such circumstances, the Court is of the view that submitting the same claim against any other defendants would essentially have had the same effect, and was therefore not an effective remedy which the applicant was obliged to use. 47. Accordingly, the Court dismisses the Government’s objection that the applicant failed to exhaust effective domestic remedies.", "2. Incompatibility ratione materiae 48. The Government further submitted that the applicant could not claim to have had “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention, and thus that provision was inapplicable ratione materiae. They asserted that the restoration of property rights – carried out by the KCA – and the cancellation of debt – carried out by the Ministry of Finance – were two separate, albeit interrelated, procedures.", "Therefore, while the Government acknowledged that the KCA’s decision of 23 October 2001 had given the applicant a “legitimate expectation” to have her rights in respect of 1.47 hectares of land restored, she could not have had such an expectation with regard to the cancellation of her debt to the State until 6 December 2004, when the Ministry of Finance had adopted a certificate in line with domestic law (see paragraph 33 above). 49. The applicant did not comment on those submissions. 50. The Court firstly underlines that it is not in dispute that the KCA’s decision of 23 October 2001 entitled the applicant to the restoration of her property rights, and thus created a proprietary interest falling within the scope of Article 1 of Protocol No.", "1 to the Convention. While the Contracting States have a wide discretion in regulating the restitution process (see Paukštis v. Lithuania, no. 17467/07, § 74, 24 November 2015, and the cases cited therein), the Court observes that the domestic law in force at the material time provided that the cancellation of debts to the State was one of the ways to restore property rights (see paragraph 31 above), and it was not disputed at any stage of the domestic proceedings that the applicant had fulfilled the relevant criteria to have her debt cancelled as compensation for property rights (see paragraphs 31 and 33 above). Accordingly, the Court considers that the applicant had a legitimate expectation to have her property rights restored by way of the cancellation of her outstanding debt to the State, as provided for in domestic law and confirmed by the KCA’s decision of 23 October 2001. The Government’s objection as to incompatibility ratione materiae is therefore dismissed.", "3. Conclusion on admissibility 51. Having dismissed the Government’s objections, 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. The parties’ submissions (a) The applicant 52. The applicant submitted that the decisions of the relevant public authorities to reopen the proceedings concerning the size of S.F.’s land and suspend the restoration of her property rights and the cancellation of her debt had been unlawful and unfounded. She argued that the doubts as to the exact size of S.F.’s land had not affected the 1.47 hectares which had to be returned to her, because there had been no claims that S.F. had owned less than 1.47 hectares of land.", "Accordingly, the authorities had had no grounds to suspend the restoration of her property rights without verifying whether there were any concerns about the 1.47 hectares specifically. The applicant complained that, as a result of the delay in the cancellation of her debt, she had sustained pecuniary losses of LTL 20,926.73 (see paragraph 26 above). She considered it unfair that she alone had had to bear the cost of the errors committed by public authorities. (b) The Government 53. The Government acknowledged that there had been an interference with the applicant’s peaceful enjoyment of her possessions, but argued that that interference had been in line with the requirements of Article 1 of Protocol No.", "1 to the Convention. In the Government’s view, the interference fell to be examined under the second paragraph of that provision – control of the use of property. 54. The Government submitted that all the relevant State institutions had acted in line with domestic law when initiating the reopening of the civil proceedings and the suspension of the KCA’s decisions. The Government also drew the Court’s attention to the fact that the applicant had continued paying interest to the bank until September 2002.", "They argued that she herself had thereby accepted the lawfulness of such payments after the cancellation of her debt had been suspended. 55. The Government also submitted that the interference in question had sought a legitimate aim, in that that the reopening of the proceedings concerning the size of S.F.’s land had been necessary to ensure that property rights were not restored to undeserving claimants, and to prevent unjust enrichment at public expense. They argued that rights to restoration of title in respect of S.F.’s land had been transferred to over a hundred individuals, and the total value of their claims had amounted to approximately LTL 1,908,000 (EUR 552,600), and thus the State had been justified in seeking to prevent such a considerable loss from its budget. 56.", "The Government further argued that there was a reasonable relationship of proportionality between the means employed and the aim pursued. They submitted that the proceedings concerning the size of S.F.’s land had been reopened owing to well-founded doubts as to the accuracy of the Kaunas District Court’s ruling of 23 May 2001; those doubts had eventually been proved to be correct, as the courts dealing with the reopened proceedings had established that the land was almost twenty hectares smaller than the initial estimate. The Government also argued that the reopening of the proceedings and the suspension of all the relevant decisions by the KCA had been the only available means to rectify the errors made by the Kaunas District Court after its ruling of 23 May 2001 had become final. They contended that the reopened proceedings and the consequent suspension had lasted a reasonable period of time – slightly over three years. The applicant had been sufficiently involved in all related court proceedings and had exercised her procedural rights.", "57. Lastly, the Government submitted that the applicant had entered into the two loan agreements voluntarily; she had obtained the loans under preferential conditions, and the rates of interest and late payment fines had been lower than the corresponding average rates set by banks at the material time. The Government also submitted that the total value of the two loans had been LTL 120,136 (EUR 34,794) and the applicant had obtained the right to have LTL 112,896 (EUR 32,697) of the debt cancelled, even though the sum which she had paid to A.E. in exchange (LTL 30,870 (EUR 8,940)) had been more than three times lower than the cancelled part of the debt. The Government argued that, in such circumstances, even though the applicant had sustained certain losses because of the delay in the cancellation, she had nonetheless not had to bear “an individual and excessive burden”.", "2. The Court’s assessment 58. The Court notes that the applicant complained that from 23 October 2001 until 6 December 2004 she had not been able to have her property rights restored and her debt to the State cancelled, and as a result she had sustained pecuniary losses. The Court has already found that the KCA’s decision of 23 October 2001 created a legitimate expectation for the applicant to have her property rights restored by way of cancellation of her debt, and thus created a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention (see paragraph 50 above).", "The parties have not disputed that the delay in restoring her rights constituted an interference with the applicant’s property rights. In the circumstances of the present case, the Court considers that the applicant’s complaint falls to be examined under the first sentence of the first paragraph of Article 1 of Protocol No. 1, namely the right to the peaceful enjoyment of property. It will now assess whether the interference with the applicant’s peaceful enjoyment of her property was prescribed by law, whether it pursued a legitimate aim, and whether there was a reasonable relationship of proportionality between the means employed and the aim pursued (see Broniowski v. Poland [GC], no. 31443/96, §§ 147-151, ECHR 2004‑V).", "(a) Lawfulness and legitimate aim 59. As to the lawfulness of the interference, the Court is convinced that the civil proceedings concerning the size of S.F.’s land were reopened in line with the relevant provisions of the Code of Civil Procedure (see paragraphs 34-35 above), and that the validity of the KCA’s decisions concerning the restoration of property rights in respect of that land was suspended in line with the Law on Administrative Proceedings and the Law on Public Administration (see paragraphs 36-37 above). The Court sees no reason to disagree with the domestic courts that there was new information raising well-founded doubts as to the size of S.F.’s land, which justified the reopening of the proceedings in accordance with the domestic law (see paragraph 29 above). 60. As to the legitimate aim pursued by the interference, the Court considers that the measures in question were necessary to prevent errors in the process of restoring the property rights, and to ensure that such rights were restored only to people who were entitled to claim them, and were thus in the public interest (see, mutatis mutandis, Pyrantienė v. Lithuania, no.", "45092/07, §§ 44-48, 12 November 2013, and the cases cited therein). (b) Proportionality 61. In assessing whether a fair balance was struck between the demands of the general interest of the community and the requirement of protecting the individual’s fundamental rights, the Court firstly notes that the restoration of the applicant’s property rights was suspended in order to correct errors committed by State authorities, and the applicant did not contribute to that situation in any way. The Court underlines that when the applicant obtained from A.E. the right to have her property rights restored, she had no reason to doubt that the Kaunas District Court’s ruling of 23 May 2001 was accurate and would remain final.", "The Court has previously held that the principle of good governance requires that any errors made by State authorities should not be remedied at the expense of individuals who have acquired property rights in good faith (see, among other authorities, Pincová and Pinc v. the Czech Republic, no. 36548/97, § 58, ECHR 2002‑VIII; Radchikov v. Russia, no. 65582/01, § 50, 24 May 2007; Gashi v. Croatia, no. 32457/05, § 40, 13 December 2007; Gladysheva v. Russia, no. 7097/10, § 80, 6 December 2011; and Vukušić v. Croatia, no.", "69735/11, § 64, 31 May 2016). 62. The Court further observes that the applicant’s situation with regard to her obligations to the bank remained uncertain during the period from 23 October 2001 until 6 December 2004. The bank did not require the applicant to repay the loan, but continued calculating interest, which she paid until September 2002. After the applicant stopped paying interest, it appears that the bank did not contact her about the unpaid interest and the pending late payment fines until January 2005, after her debt had already been cancelled (see paragraphs 17-18 above).", "While the domestic courts found the payment of interest justified, they did not examine whether the applicant’s legal obligations during the period in question had been clarified to her by either the bank or the State authorities involved in the debt cancellation process (see paragraphs 23-24 above). 63. At the same time, the Court observes that the domestic authorities noticed the possible mistake in the calculation of the size of S.F.’s land promptly – about six months after the Kaunas District Court’s ruling of 23 May 2001 and less than two months after the KCA’s decision to restore the applicant’s property rights (compare with Moskal v. Poland, no. 10373/05, § 69, 15 September 2009). It also considers that the length of the delay in cancelling the applicant’s debt (three years and almost two months) in the circumstances of the present case cannot be considered excessive.", "That period included several different sets of court proceedings (an application to reopen the civil proceedings, an application to suspend the KCA’s decisions, an examination of the merits in the reopened proceedings, and revocation of the order suspending the KCA’s decisions), as well as the exchange of information between the KCA, the prosecutor and the Ministry of Finance. There do not appear to have been any significant periods of inactivity on the part of the authorities (see, mutatis mutandis, Romankevič v. Lithuania, no. 25747/07, §§ 43-44, 2 December 2014). The Court also notes that the applicant was included in all the relevant court proceedings as a third party and exercised her procedural rights (see Gladysheva, cited above, § 68). 64.", "Furthermore, assessing the circumstances of this case as a whole, the Court is not convinced that the applicant had to bear an excessive burden. While her expenses during the period of delay were not insignificant, eventually more than ninety percent of the total value of her debt was cancelled (see paragraph 57 above). All the expenses which the applicant sustained in relation to the two loans (consisting of the parts of the loans which she had repaid, the sum which she paid to A.E., and the interest, late payment fines and legal expenses) together amounted to less than half of the total value of the loans. Moreover, during the period when the debt cancellation was delayed, the applicant retained the use of the apartment which she had acquired with the help of those loans, that is she continued to enjoy the benefits derived from the loans (compare with Bogdel v. Lithuania, no. 41248/06, § 67, 26 November 2013, and contrast with JGK Statyba Ltd and Guselnikovas v. Lithuania, no.", "3330/12, §§ 143-144, 5 November 2013). In this connection, the Court also notes that the applicant was entitled to the cancellation of her debt, not because she or her ancestors had had property nationalised by the Soviet regime, but because she had bought the right to restoration from a third party, and at the time when she received the two loans, given to her by the State under preferential conditions (see paragraph 6 above), she could not have reasonably expected that her debt under those loan agreements would subsequently be cancelled. Accordingly, the Court considers that the delay in the cancellation of the applicant’s debt and her losses resulting from that delay did not disproportionately affect the benefits which she derived from the two loans and the eventual cancellation of her outstanding debt. 65. In the light of the foregoing considerations, the Court concludes that the interference with the applicant’s right to peaceful enjoyment of her property achieved a fair balance between the demands of the general interest of the community and the requirement of protecting the fundamental rights of the individual.", "66. Accordingly, there has been no violation of Article 1 of Protocol No. 1 to the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2.", "Holds that there has been no violation of Article 1 of Protocol No. 1 to the Convention. Done in English, and notified in writing on 11 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea TamiettiAndrás SajóDeputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF MERKULOVA v. UKRAINE (Application no. 21454/04) This version was rectified on 8 June 2011 under Rule 81 of the Rules of Court. JUDGMENT STRASBOURG 3 March 2011 FINAL 03/06/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Merkulova v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President,Karel Jungwiert,Mark Villiger,Isabelle Berro-Lefèvre,Ann Power,Ganna Yudkivska,Angelika Nußberger, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 8 February 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 21454/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Nataliya Volodymyrivna Merkulova (“the applicant”), on 4 June 2004. 2. The applicant was represented by Mr S. Kyrychenko[1], a lawyer practising in Kherson. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.", "3. The applicant alleged, in particular, that the criminal investigation of the circumstances leading to her son's premature death had been ineffective and that the relevant proceedings, in which she had been a civil party, had lasted an unreasonably long time. 4. On 21 October 2009 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1955 and lives in Dudarkiv. 6. On 30 April 1997 Oleksandr Lanetskyy, the applicant's son, was beaten up by A.Y., an acquaintance.", "The next day he felt ill and was admitted to hospital for in-patient treatment. On 14 May 1997, after several operations, Oleksandr Lanetskyy died in hospital. 7. On 15 May 1997 the Bilozerskyy District Prosecutor's Office instituted criminal proceedings against A.Y. for inflicting grievous bodily harm on Oleksandr Lanetskyy.", "On the same day the applicant was granted leave to join the proceedings as an injured party. 8. On 19 May 1997 A.Y. was placed under an obligation not to abscond. 9.", "On 20 May 1997 a medical expert gave an assessment, according to which Oleksandr Lanetskyy's death was a direct effect of the injuries inflicted on him by A.Y. 10. On 16 October 1997 another forensic assessment was carried out by a panel of experts, which confirmed the direct link between the injuries and Oleksandr Lanetskyy's eventual death. 11. On 27 October 1997 the applicant's civil claim was accepted for examination by the court.", "12. Between May and November 1997 the investigative authorities carried out numerous interviews of witnesses, two reconstructions of the crime scene and other measures. On 17 November 1997 the case was referred to court for trial. 13. On 20 March 1998 the Nova Kakhovka Town Court referred the case back for additional investigation on account of numerous procedural shortcomings in the investigation.", "14. On an unspecified date A.Y. went into hiding and on 16 April 1998 he was placed on the wanted list. 15. On several occasions the applicant complained to various authorities about omissions by the police during their inquiries into A.Y.", "'s whereabouts, in particular their failure to react promptly when she had notified them of his probable home visits. 16. Following A.Y. 's disappearance the criminal proceedings against him were suspended. However, on several occasions they were reopened in order to carry out certain investigative measures, such as the examination of additional witnesses.", "17. On 27 August 2000 and 20 November 2001 the General Prosecutor's Office acknowledged that the police had failed to take all the necessary steps to trace A.Y. 18. On 16 October 2002 the failings of the police were further acknowledged by the Kherson Department of the Ministry of the Interior, which decided to transfer responsibility for the investigation to the Kherson Regional Police and advised them of additional measures to be taken to establish A.Y. 's whereabouts.", "19. In May 2003 the applicant instituted civil proceedings against the Kherson Regional Police and the State Treasury, seeking damages on account of the police's omissions in investigating the case against A.Y. Her claims were rejected by the courts at three levels of jurisdiction, the final decision being taken on 5 October 2005 by the Supreme Court of Ukraine. 20. In the meantime, on 19 June 2003 A.Y.", "was arrested in the Magadan Region of the Russian Federation and detained pending extradition to Ukraine. 21. On 6 October 2003 the Magadan Regional Court released A.Y. following the expiry of the time-limit established by the provisions of a relevant bilateral treaty concerning extradition for preparation of the necessary paperwork. 22.", "On 17 November 2003 the General Prosecutor's Office of the Russian Federation consented to the extradition of A.Y. 23. On 8 June 2004 A.Y. was arrested in Samara (Russian Federation). 24.", "In August 2004 A.Y. was extradited to Ukraine. 25. On 10 November 2004 the case was sent for trial in the Komsomolsky District Court of Kherson. 26.", "On several occasions in 2005 the court ordered the appearance of witnesses G., S. and R., and instructed the local police to ensure their appearance. On 4 May 2005 the court addressed a letter to the Ministry of the Interior, noting that its instructions had repeatedly not been fulfilled and requesting the Ministry's intervention to ensure the taking of the necessary measures to establish the witnesses' whereabouts and summon them for the hearings. 27. In August 2005 the court ordered a new forensic assessment of the causes of Oleksandr Lanetskyy's death, finding that the previous assessments had lacked some important details. 28.", "On 30 November 2005 the new panel of experts concluded that there was no direct causal link between the applicant's son's injuries and his death. Instead, the injuries caused by A.Y. were of intermediate gravity and had not been life-endangering at the time they had been inflicted. Oleksandr Lanetskyy's eventual death had resulted from post-surgery intussusceptions and inflammatory processes. 29.", "On an unspecified date in April 2006 the Komsomolsky District Court issued a separate ruling (окрема ухвала) to the Komsomolsky District Prosecutor, noting that the latter's representative had come to the hearing of 28 April 2006 unprepared for the deliberations, thus making it necessary to adjourn the hearing. The court requested the prosecutor to take measures to prevent such incidents in the future. 30. On 3 May 2006 the Komsomolsky District Court convicted A.Y. of inflicting grievous bodily harm on the applicant's son, resulting in his death.", "It noted that the conclusion of the last forensic expert assessment concerning the lack of a direct link between the injuries and the death contradicted other evidence in the case file and should therefore be disregarded in this part. The court further sentenced A.Y. to seven years' imprisonment and partly allowed the applicant's civil claim against him. 31. On 1 September 2006 the Kherson Regional Court of Appeal modified that judgment.", "It found that the final medical expert assessment should take precedence and that there was no direct causal link between A.Y. 's actions and Oleksandr Lanetskyy's death in hospital after several operations two weeks after the incident. The court reclassified A.Y. 's actions as inflicting moderate bodily harm and sentenced him to almost two and a half years' imprisonment[2]. It further remitted the applicant's civil claim to the trial court for fresh consideration.", "32. On 27 November 2007 the Supreme Court of Ukraine quashed the decision of 1 September 2006, finding that the Court of Appeal had re-evaluated the facts without having explored them at a hearing, and remitted the case to that court for a fresh examination on appeal. 33. On 4 April 2008 the Kherson Regional Court of Appeal sentenced A.Y. to almost two and a half years' imprisonment[3] and remitted the civil claim to the trial court for fresh consideration.", "34. On 26 May 2009 the Supreme Court quashed that decision and remitted the case for a fresh appellate review. It noted, in particular, that the Court of Appeal had not duly complied with its previous instructions and had failed to substantiate its preference for the 2005 forensic expert assessment over other evidence in the case file. 35. On 4 August 2009 the Kherson Regional Court of Appeal quashed the sentence of 3 May 2006 and remitted the case to the first-instance court for fresh consideration.", "It found, in particular, that the first-instance court had failed to substantiate its preference for the 1997 forensic expert assessment over the one conducted in 2005. 36. On 29 March 2010 the Komsomolsky District Court convicted A.Y. of having inflicted grievous bodily harm on the applicant's son and sentenced him to seven years' imprisonment. It further awarded the applicant 3,534.50 Ukrainian hryvnias (UAH) in respect of pecuniary damage and UAH 50,000 in respect of non-pecuniary damage.", "37. On 13 July 2010 the Kherson Regional Court of Appeal upheld that judgment. 38. The parties have not informed the Court whether the Court of Appeal's judgment has become final or whether a cassation appeal has been lodged against it. II.", "RELEVANT DOMESTIC LAW 39. The relevant provisions of the Constitution and the Code of Criminal Procedure can be found in the judgment in the case of Sergey Shevchenko v. Ukraine (no. 32478/02, §§ 36-39, 4 April 2006). THE LAW I. COMPLAINT ABOUT THE ALLEGED INEFFECTIVENESS AND THE LENGTH OF THE INVESTIGATION INTO OLEKSANDR LANETSKYY'S DEATH 40.", "The applicant complained that the authorities had lacked diligence in investigating the circumstances of Oleksandr Lanetskyy's death, and that as a consequence the investigation had been ineffective and the criminal proceedings against A.Y. had lasted an unreasonably long time. She relied on Article 6 § 1 and Article 13 of the Convention, which read as follows, in so far as relevant: Article 6 § 1 “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 41. The Court, which is master of the characterisation to be given in law to the facts of the case (see, as a recent authority, Castravet v. Moldova, no.", "23393/05, § 23, 13 March 2007), finds that the complaint about ineffective investigation of Oleksandr Lanetskyy's death also falls to be examined under the procedural limb of Article 2 of the Convention, the relevant part of which reads as follows: Article 2 “1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law ...” A. Admissibility 42. The Government submitted that the complaint that the investigation had been ineffective was inadmissible ratione personae, as the person at fault for Oleksandr Lanetskyy's lethal injuries had been identified and convicted. The applicant could therefore no longer claim to be a victim of the violations complained about.", "They also submitted that Article 6 § 1 of the Convention was inapplicable to the proceedings at issue in its criminal limb, as the proceedings had not concerned the determination of a criminal charge against the applicant. 43. The applicant maintained that notwithstanding the immediate identification of A. Y. as the person at fault for her son's injuries, the authorities had not been able to secure his conviction and punishment for a period exceeding ten years. It was only on account of her active involvement in the proceedings and numerous complaints about their ineffectiveness that some measures had eventually been taken. 44.", "As regards the Government's objection concerning the applicant's victim status, the Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010‑...). The Court notes that in the present case the investigation into the circumstances of Oleksandr Lanetskyy's death has lasted some thirteen years and it is unclear whether the criminal proceedings against A.Y. have come to an end. No pronouncement at national level has ever been made concerning the sufficiency of the measures taken in the course of the investigation into Oleksandr Lanetskyy's death for discharging the State's Convention duty under Article 2.", "The applicant thus cannot be said to have lost her victim status in respect of this complaint, irrespective of A.Y. 's conviction (see, mutatis mutandis, Şandru and Others v. Romania, no. 22465/03, §§ 62-64, 8 December 2009). The Government's objection must therefore be dismissed. 45.", "As regards the applicability of Article 6 § 1 of the Convention, the Court agrees with the Government that this provision is not applicable to the present case under its criminal head. On the other hand, it reiterates that the applicant acted as a civil claimant in the criminal proceedings against A.Y. Those proceedings therefore concerned the determination of her civil rights. On numerous occasions the Court has found Article 6 to be applicable to civil-party claims in criminal proceedings and has examined relevant complaints on the merits (see, for example, Perez v. France [GC], no. 47287/99, §§ 73-75, ECHR 2004‑I; and mutatis mutandis, Baglay v. Ukraine, no.", "22431/02, §§ 9 and 25, 8 November 2005, and Sergey Shevchenko, cited above, § 79). The Court does not find any reason to depart from its case-law on the subject in the present case. 46. The Court finds that the applicant's complaints about the alleged ineffectiveness of the investigation into Oleksandr Lanetskyy's death and the length of the criminal proceedings against A.Y. 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 47. The applicant alleged that the investigation of her son's death had been ineffective, as it had been marked by prohibitive delays and a lack of diligence on the part of the authorities in collecting evidence and securing A.Y.", "'s conviction. She submitted, in particular, that during the pre-trial investigation the authorities had not collected all the necessary evidence; that they had been at fault for A.Y. 's escape, as they had refused to arrest him and place him in custody; that during the time when he was in hiding, they had not taken all the necessary measures to establish his whereabouts, and had refused to react to her notifications that he had arrived home for a visit; and that the judicial proceedings had been marked by numerous unnecessary delays and periods of inactivity. 48. The Government objected to this view.", "They noted that the offender had been promptly identified and that numerous investigative measures had been taken to collect the evidence, including an examination of the site of the incident, two reconstructions of the crime scene, several forensic expert assessments and over forty witness interviews. The Government also pointed out that essential evidence had been collected within the first few months following the incident and that a major delay had been due to A.Y. 's hiding in Russia for some six years, for which the national authorities could bear no liability. Finally, they noted that notwithstanding this delay, A.Y. had eventually been brought to justice, having been sentenced to a prison term and ordered to pay damages to the applicant.", "In the light of all the above and in particular A.Y. 's conviction, the investigation could not be considered ineffective for Article 2 purposes. 49. The Court reiterates that Article 2 of the Convention requires by implication that there should be some form of effective official investigation when individuals have died as a result of the use of force (see, mutatis mutandis, Kaya v. Turkey, 19 February 1998, § 86, Reports of Judgments and Decisions 1998-I). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life.", "This is not an obligation of result, but of means. The authorities must have taken all reasonable steps to secure the evidence concerning the incident (see Gongadze v. Ukraine, no. 34056/02, § 176, ECHR 2005-XI). 50. The State's obligation under Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory; above all, it must also operate effectively in practice and that requires a prompt examination of the case without unnecessary delays (see Šilih v. Slovenia [GC], no.", "71463/01, § 195, ECHR 2009-...). 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 or a disappearance may generally be regarded as essential in ensuring public confidence in their maintenance of the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, as a recent authority, Dudnyk v. Ukraine, no. 17985/04, § 33, 10 December 2009). 51.", "In line with the above, while identification and punishment of those responsible for the death and the availability of compensatory remedies to the applicant are important criteria in the assessment of whether or not the State has discharged its Article 2 obligation (see, among other authorities, Rajkowska v. Poland (dec.), no. 37393/02, 27 November 2007, and Fedina v. Ukraine, no. 17185/02, §§ 66-67, 2 September 2010), in a number of recent cases before the Court the finding of a violation was largely based on the existence of unreasonable delays and a lack of diligence on the authorities' part in conducting the proceedings, regardless of their final outcome (see, for example, Šilih, cited above, § 211, 9 April 2009; Şandru and Others, cited above, §§ 73 and 77-80; Dvořáček and Dvořáčková v. Slovakia, no. 30754/04, § 70, 28 July 2009; Agache and Others v. Romania, no. 2712/02, §§ 79-84, 20 October 2009; and Mojsiejew v. Poland, no.", "11818/02, §§ 57-58, 24 March 2009). 52. Turning to the facts of the present case, the Court notes that the authorities have taken a number of measures aimed at discharging their positive obligation under Article 2 of the Convention. In particular, within two weeks of Oleksandr Lanetskyy's beating and one day of his death criminal proceedings were instituted to examine the relevant circumstances. The person who was responsible for the beating was promptly identified, and a number of steps to collect the evidence (including interviews of witnesses and forensic assessments) were taken within the first few months following the incident.", "The Court further notes that the perpetrator was eventually committed for trial, convicted and sentenced to a term of imprisonment. The applicant was also awarded damages. 53. At the same time the Court observes that Oleksandr Lanetskyy was injured in April 1997 and died in May 1997, whereas the last decision concerning A. Y.", "'s punishment was taken in July 2010. It is not clear from the case file whether that decision has become final or whether a cassation appeal has been lodged against it. In any event, it has taken the authorities at least thirteen years to prosecute and punish the offender. Out of this time, the period starting from 11 September 1997 falls within the Court's jurisdiction ratione temporis. 54.", "Examining to what extent this period may be justified by objective circumstances, the Court finds that it can be analysed in terms of three main sub-periods: the active phases of the pre-trial investigation, during which A.Y. was available; the period during which A.Y. was in hiding; and the judicial proceedings. 55. Firstly, as regards the active investigation period, it lasted less than one year in total (May to November 1997 and August to November 2004).", "While this period included no serious delays, the Court cannot reach the same conclusion with regard to the diligence of the authorities in the collection of evidence. It observes, in the first place, that after the case had initially been sent for trial, the Nova Kakhovka Town Court found in March 1998 that the procedural shortcomings were such that an additional investigation was warranted (see paragraph 13 above). 56. The Court also notes that, regard being had to the subsequent focus of the judicial proceedings and the disagreements between various panels of judges concerning the cause of Oleksandr Lanetskyy's death, the investigative authorities do not appear to have collected exhaustive evidence on the matter (in particular, they did not explore and reject the theory of medical negligence). On the basis of the available evidence, the Court cannot rule out the possibility that insufficient diligence in the initial collection of evidence led to subsequent delays during the judicial phase.", "57. Secondly, a major delay in the proceedings resulted from A.Y. 's disappearance for a period exceeding six years (April 1998 to August 2004). While the applicant blamed the Government for failing to prevent his absconding, her arguments were limited to the allegation that A.Y. should have been placed in custody pending trial.", "She did not submit any evidence that the Government had failed to take reasonable measures in the face of a foreseeable risk that A.Y. would decide to abscond. The Court is therefore not convinced that the Government were responsible for A.Y. 's escape and thus for the entire six-year delay in his trial and conviction. 58.", "On the other hand, the Court cannot accept the Government's view that the period at issue should be entirely excluded from consideration. The Court notes, on the one hand, that a number of investigative measures (such as questioning witnesses or preparing forensic assessments) clearly did not require A.Y. 's presence and that some such measures did in fact take place during that time (see paragraph 16 above). At the same time the Court notes that the Government have not produced any evidence that the prosecutor's office had put in place a reasonable action plan for the establishment of A.Y. 's whereabouts in good time.", "On the contrary, on several occasions the authorities themselves acknowledged that the relevant measures had been lacking (see paragraphs 17-18 above). The Court considers, therefore, that A.Y. 's disappearance alone cannot justify the six-year delay in his trial. 59. Thirdly, as regards the judicial proceedings, the Court notes that they have lasted from November 2004 until at least July 2010, that is, five years and eight months.", "This period was marked by repeated referrals of the case for reconsideration between the courts at three levels of jurisdiction. During the last round of proceedings, however, the decisions were given by two levels of courts only. While the matter before the courts was of a certain complexity, in particular on account of contradictory evidence as regards the direct cause of Oleksandr Lanetskyy's death, the Court finds that the judicial examination featured certain delays, which cannot be explained by this complexity. 60. In particular, it observes that the initial consideration of the case by the trial court was delayed in view of several failures of the law-enforcement authorities to secure the appearance of important witnesses (see paragraph 26 above) and to prepare for judicial deliberations (see paragraph 29 above); that the cassation review proceedings were marked by some two years of inactivity on the Supreme Court's part (see paragraphs 32-34 above); and that the case was remitted for reconsideration several times on account of the lower courts' failures to provide sufficient justification for their conclusions (see paragraphs 32, 34 and 35 above).", "In the light of the above, the Court cannot conclude that A.Y. 's trial was conducted with the promptness and diligence required to comply with the State's positive obligation under Article 2. 61. Regard being had to all the above, in particular the lack of a comprehensive approach to the collection of evidence during the pre-trial investigation phase, the insufficient activity of the authorities in establishing A.Y. 's whereabouts during his six years in hiding and various delays and remittals in the judicial proceedings against him, the Court considers that a nearly thirteen-year delay in securing his conviction was incompatible with the State's obligation under Article 2 of the Convention to carry out an effective investigation of suspicious deaths.", "62. There has therefore been a violation of the procedural limb of Article 2 of the Convention in the present case. 63. Having regard to the particular circumstances of the present case and to the reasoning which led it to find a violation of Article 2 in its procedural limb, the Court considers that it is not necessary also to examine the case under Article 6 § 1 (see Šilih, cited above, § 216) and Article 13 of the Convention. II.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 64. The applicant also complained under Article 3 of the Convention that the suffering she had experienced on account of the omissions by the authorities and the delays in the proceedings amounted to inhuman and degrading treatment, and invoked Articles 10 and 14 of the Convention in relation to the facts of the present case. 65. Having considered the applicant's submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. 66.", "It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 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 claimed 3,000,000 Ukrainian hryvnias (UAH) in respect of non-pecuniary damage. 69. The Government submitted that this claim was exorbitant and unsubstantiated. 70. The Court considers that the applicant suffered anguish and distress on account of the events leading to the finding of the violation in the present case.", "Ruling on an equitable basis, it awards the applicant EUR 12,000 in respect of non-pecuniary damage. B. Costs and expenses 71. The applicant did not submit any claim under this head. The Court therefore makes no award.", "C. Default interest 72. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints concerning the ineffective investigation of Oleksandr Lanetskyy's death admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of the procedural limb of Article 2 of the Convention; 3.", "Holds that there is no need to examine the complaints under Article 6 § 1 and 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 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the national currency of Ukraine at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 3 March 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekDean SpielmannRegistrarPresident [1].", "Rectified on 8 June 2011: the text was “Mr S. Kirpichenko”. [2]. Rectified on 8 June 2011: \"two and a half years' imprisonment\" replaced with \"almost two and a half years' imprisonment\". [3]. Id." ]

[ "FIRST SECTION CASE OF LILLO-STENBERG AND SÆTHER v. NORWAY (Application no. 13258/09) JUDGMENT STRASBOURG 16 January 2014 FINAL 16/04/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Lillo-Stenberg and Sæther v. Norway, 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 17 December 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "13258/09) 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 two Norwegian nationals, Mr Lars Lillo-Stenberg and Mrs Andrine Sæther (“the applicants”), on 5 March 2009. 2. The applicants were represented by Mr Harald Stabell, a lawyer practising in Oslo. The Norwegian Government (“the Government”) were represented by their Agent, Mrs Fanny Platou Amble, attorney at the Attorney General’s Office (Civil Affairs). 3.", "The applicants alleged that their right under Article 8 of the Convention to respect for private life had been breached by a Supreme Court judgment of 2 September 2008. 4. On 26 May 2010 the application was communicated to the Government, but it was decided to await the outcome of Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, ECHR 2012 and Axel Springer AG v. Germany [GC], no.", "39954/08, 7 February 2012. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1962 and 1964 respectively. They live in Oslo.", "The first applicant is a musician and the second applicant is an actress. They are both known to the public in Norway. 6. On 20 August 2005, the applicants married in a private ceremony which took place outdoors on an islet in the municipality of Tjøme in the Oslo fjord, approximately 100 km south of the capital. 7.", "Subsequently, the weekly magazine Se og Hør, hereafter “the magazine”, published a two-page article about the wedding, accompanied by six photographs. One photograph showed the bride, her father and her bridesmaids arriving at the islet in a small rowing boat; another showed the bride being brought to the groom by her father on the islet, surrounded by people; and yet another photograph showed the bride and the groom returning to the mainland on foot by crossing the lake on stepping stones. In the last photograph, the bride was barefoot with her wedding dress raised above her knees to avoid getting the dress wet. There was also a photograph of a couple and their baby who were wedding guests. Finally, there were two old photographs: one of the applicants framed in a heart and one of the second applicant and the applicants’ young son attending a musical festival one month earlier.", "8. The article described the ceremony, the applicants and some of the guests. It stated, inter alia, that the ceremony was touching; that several guests could not hold back their tears when the bride arrived at the islet and a male voice choir starting singing the song “To live is to love”; and that a party took place after the ceremony in the garden of a named guest house. It also stated that the applicants’ manager had informed the magazine that the applicants did not wish to comment on their wedding. 9.", "The applicants brought compensation proceedings against the magazine before Oslo District Court (Oslo tingrett) and invoked, among other things, the right to respect for private life under section 390 of the Penal Code and Article 8 of the Convention. It was not in dispute that the magazine was not invited to the wedding and that the photographs were taken without the applicants’ knowledge approximately 250 meters from the islet. 10. By judgment of 22 November 2006 the Oslo District Court found for the applicants and ordered the magazine to pay them each 50,000 Norwegian kroner (NOK). In addition, the editor responsible was ordered to pay each applicant NOK 15,000 and the journalist and the photographer were ordered to pay each applicant NOK 5,000.", "11. The magazine appealed to the Borgarting High Court (lagmannsrett), which by judgment of 13 February 2008 upheld the judgment. 12. The magazine appealed to the Supreme Court (Høyesterett), which by judgment of 2 September 2008 found against the applicants, by three votes to two. 13.", "Mr Justice U. gave the following reasons, which in the main were endorsed by the two other members of the majority: “I have concluded that the appeal should be allowed. (34) In recent years the Supreme Court has considered legal questions relating to violation of privacy in the judgments Rt-2007-687 (Big Brother) and Rt-2008-489 (Plata). My argument is based mainly on these judgments. As follows from the judgments, section 3-6 of the Damages Act concerning redress for violation of privacy must be read in conjunction with section 390 of the Penal Code. The provision in section 3-6 refers, at any rate primarily, to violation of section 390.", "In my view, there is no need to consider whether, as contended by [the applicants], there may be cases that are covered in principle by Article 8 of the European Convention on Human Rights but not by \"privacy\" under section 390 of the Penal Code. Nor will I examine whether this is a discussion of terminology or of facts. (35) I have already described the content of the article. There is no doubt that the case concerns information ‒ which I am using as a general term to refer to both text and pictures ‒ that taken as a whole is relevant to the issue of privacy. There is no reason for me to evaluate individual elements on the basis of whether or not they impinge on the concept of privacy.", "The article as a whole contains information about the couple and their child in addition to information about the wedding. The relationships within the family and between the family and their friends are clearly of a personal nature. (36) Thus the question under consideration is whether a violation of privacy took place, cf. section 390 of the Penal Code. There would have been no question of violation of privacy if consent to publication had been obtained, cf.", "paragraph 62 of the judgment in the Big Brother case. In this case it has been clearly established that the couple had not been informed beforehand that there were plans to publicise the wedding, nor were they asked for their consent. However, the journalist, Mr S, contacted [the first applicant’s] manager on Monday, immediately before the article went to press. The manager said that the couple did not wish to comment on the wedding. A little later the same day Se og Hør was contacted and informed that the couple did not consent to publication, but the reply was that the magazine was already in the press.", "It has thus been clearly established that the article was published without the couple’s consent. I would add that I see nothing in the article indicating that the couple had given the magazine permission to report on the wedding in return for payment. On the contrary, the article stated at the end that the two celebrities did not wish to comment. (37) The next question is whether the article was unlawful. This question must be decided on the basis of an overall evaluation of the article, cf.", "paragraph 64 of the Big Brother judgment with further references. In my assessment of legality I also refer to the Big Brother judgment, citing, as was done in the Plata judgment, paragraphs 57 and 58: ‘... When the penal provision applies to violation of privacy, this necessarily implies that the issue that arises is that of legality. This again implies that the publication must be assessed as a whole, in the actual context and situation, where protection of privacy must be weighed against freedom of expression, cf. Bratholm og Matningsdal, Part Three, 1998, page 222, of the Penal Code and comments, and further references.", "... The European Convention on Human Rights is incorporated into internal Norwegian law in the Human Rights Act. Both Article 8 relating to respect for private and family life and Article 10 relating to the right to freedom of expression are central to the present case. The principles that must be weighed in this case are similar to those that must be weighed under section 3-6, first paragraph, of the Damages Act and section 390 of the Penal Code, and in the present situation these provisions should be interpreted in such a way that their content is in compliance with Articles 8 and 10 of the European Convention on Human Rights.’ (38) Reference is also made in paragraph 72 of the Big Brother judgment to the summing up by the European Court of Human Rights in the von Hannover judgment: ‘... The conclusion must naturally be read in conjunction with the rest of the judgment.", "The issue throughout is the balancing of the right to privacy against the principle of freedom of expression. The central issue with respect to protection of privacy is therefore whether the published article contributes to a debate of public interest. In other words, the particular importance of protection under Article 10 of the Human Rights Convention lies in the relevance of the information in question to public debate. With respect to publication of details referring exclusively to an individual’s private life, and particularly to the private relationship between two persons who do not occupy positions in politics or in society, this is clearly outside the area that the provisions relating to freedom of expression are intended to regulate.’ (39) Both [applicants] are well-known figures, but neither of them has had a prominent role either in the public administration or in any other public body. Thus the provisions of Article 10 have no particular weight with respect to the magazine article in question, which clearly has a purely entertainment value.", "In the assessment of legality, protection under Article 8 of the Human Rights Convention is the most relevant principle to be weighed. (40) I will now examine the circumstances in the present case in relation to the issue of legality. As mentioned above, an overall assessment of the magazine article shows that it concerns the subjects’ private life, and the question is whether in spite of this there are grounds for saying that it does not constitute a violation of privacy. A wedding is a very personal act. At the same time it also has a public side.", "A wedding is a public affirmation that two persons intend to live together, and has legal consequences in many different sectors of society. Thus information about a wedding does not in itself involve a violation of privacy if it is given in a neutral form and based on a reliable source, cf. paragraph 80 of the Big Brother judgment. (41) The judgment of the Court of Human Rights in the case of von Hannover and the subsequent judgment of the Supreme Court in the Big Brother case have premises that seem to go far in support of protection against the use of pictures and texts concerning an individual’s private life. It is therefore necessary to examine the facts on which the judgments were based.", "Paragraph 49 of the von Hannover case concerns a series of photographs of the aggrieved party. In its evaluation of the application of the law in the case at hand, the court stated in paragraphs 68 and 69: ‘... The Court finds another point to be of importance: even though, strictly speaking, the present application concerns only the publication of the photos and articles by various German magazines, the context in which these photos were taken ‒ without the applicant’s knowledge or consent and the harassment endured by many public figures in their daily lives cannot be fully disregarded (see paragraph 59 above). In the present case this point is illustrated in particularly striking fashion by the photos taken of the applicant at the Monte Carlo Beach Club tripping over an obstacle and falling down ... It appears that these photos were taken secretly at a distance of several hundred metres, probably from a neighbouring house, whereas journalists’ and photographers’ access to the club was strictly regulated ... ...", "The Court reiterates the fundamental importance of protecting private life from the point of view of the development of every human being’s personality. That protection ‒ as stated above ‒ extends beyond the private family circle and also includes a social dimension. The Court considers that anyone, even if they are known to the general public, must be able to enjoy a “legitimate expectation” of protection of and respect for their private life ...’ (42) Paragraph 59 states: ‘Furthermore, photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution.’ (43) Thus the way in which the photos were published and the constant photographing ‒ often by photographers who followed her around ‒ constituted harassment of the aggrieved party and also an invasion of privacy. The situation was similar to some extent in the Big Brother case. Se og Hør ran several articles featuring photos taken from different sources together with speculation and gossip.", "The magazine also described the relationship between the parties during their life together, which was an invasion of their private life as a couple. (44) The right to protection of privacy is no weaker for well-known cultural personalities than it is for others, despite the fact that their photos are published in magazines and newspapers and on the internet in connection with their professional lives. It could be said that in the case of such individuals it is even more important to ensure that their private lives and personal relationships are protected. (45) A wedding is a very significant personal experience for the bridal couple, an experience that includes their families, friends and other persons close to them. The wedding ceremony and celebrations are therefore clearly part of private and family life and thus in principle should be protected.", "However, in my opinion this consideration is only one aspect of the case. (46) As mentioned above, a neutral description of two individuals’ wedding is not unlawful. (47) Neither the text nor the photos in the disputed magazine article contain anything unfavourable to the couple. The article contains no criticism, nor is there anything in the content that could weaken their reputations. (48) Furthermore, although the couple’s relationships with close friends are part of their private life, I cannot see that in this context the naming of a few of the participants constitutes a violation.", "Nor is it particularly unusual to write that the ceremony was “moving, and several of the guests couldn’t hold back their tears when a men’s choir sang ...”. (49) The article contains no photos of the actual wedding ceremony. It is therefore not possible for me to have any views on whether such photos, including close-ups, would have to be regarded in a different light from those featured in the article. Photos in such a situation would clearly have more personal significance than photos showing the bridal couple arriving at or leaving the place where the marriage took place. (50) I shall now examine more closely the way the wedding was conducted.", "The bride arrived at the islet in a rowing boat, with six bridesmaids on board. There she was greeted by her future husband and by a men’s choir singing a hymn. After the ceremony the bride and groom had to step from rock to rock in order to reach the shore, which the bride accomplished in bare feet. As pointed out in paragraph 50 of the von Hannover judgment, the concept of private life is comprehensive, and includes ‘a zone of interaction of a person with others, even in a public context, which may fall within the scope of ‘private life’. However, a certain amount of weight must be given to the fact that the wedding was organised in a very unusual way, and took place in an area that is accessible to the public under the Outdoor Recreation Act and that is easily visible.", "As already mentioned, the photos do not show the most personal part of the wedding, the actual marriage ceremony. (51) As mentioned above, the photos were taken of a wedding in a place accessible to the public. It can be assumed that even in August there are large numbers of people on Tjøme, which is one of the most popular locations for holiday cottages and recreation in Norway. Furthermore, many of the arrangements were such as to attract attention from third parties, for example the arrival of the bride in an open boat and the presence of a men’s choir singing a hymn on the islet. The arrangements were also spectacular in themselves.", "In spite of the fact that all individuals, including celebrities, are entitled to protection against being photographed even in public places, I consider that this must be taken into account in the assessment of legality. (52) The photos were taken from a headland about 200-250 metres from the islet where the ceremony was being held, and a 300- to 400-millimetre zoom lens was used. For the bridal couple, however, the situation would not have been any better if the photography had taken place somewhere closer, or from a place where the photographer and journalist could have been seen by the wedding party. This could have disturbed the whole wedding. Nor was the photographing in the nature of a breach of confidence, as it would have been if for example any of the participants had published personal photos taken during or in connection with the wedding.", "The situation would also have been different if the photos had been taken of events taking place in a closed area where the subjects had reason to believe that they were unobserved, cf. paragraph 68, second sub-paragraph, of the von Hannover judgment. (53) The article contained a photo of [the second applicant] together with the couple’s under-age child. During the proceedings the focus has been on the photos related to the wedding, and it has not been contended that the use of the photo of the under-age child puts the case in a different light. The photo had previously been published in Aftenposten, and it has not been contended that consent was lacking on that occasion.", "For these reasons I shall not examine the particular questions raised by the use of a photo of an under-age child without the necessary consent of the parents. (54) Thus it must be concluded that the article did not involve unlawful violation of privacy. (55) [The applicants] have contended as an alternative that the photos were used in a way that conflicts with the provisions of section 45c of the Copyright Act relating to the right to control the use of one’s image. In my view these provisions should also be read with the reservation that there could be a conflict of principles and in conjunction with Articles 8 and 10 of the Human Rights Convention. The conclusion would then be the same as that of my principal assessment.", "(56) The Court therefore allows the appeal. However, the case raises difficult and uncertain legal questions, clarification of which is in the public interest, cf. section 20-2, third paragraph, a, of the Code of Civil Procedure. No award of costs should therefore be made.” 14. Mr Justice T. gave the following reasons which in the main were endorsed by the other member of the minority: “(58) I am substantially in agreement with the first-voting judge’s general interpretation of section 3-6 of the Damages Act and section 390 of the Penal Code.", "However, when weighing the right to privacy against the principle of freedom of expression in this specific case, I have arrived at a different conclusion, since I consider that in the present case the appellants have violated the right to privacy under section 390 of the Penal Code. (59) I will first examine whether the subject of the article in Se og Hør can be considered to be ‘a personal matter’ in the meaning of section 390. (60) I agree with the first-voting judge that information that a marriage has been contracted between two named individuals can be published without being in conflict with the provisions of section 390 of the Penal Code. However, this is not the issue in the present case. The article in Se og Hør also describes in words and pictures details of the arrangements in connection with the wedding ceremony.", "(61) Weddings have always been a subject of general interest in the sense that those close to the bridal couple consider them important and wish to participate. It is also usual for the couple to wish to share the event with others. For these reasons there should in principle be no reason why the press should not report a wedding ceremony that takes place in full public view, and where no special arrangements have been made to indicate that the ceremony is private. (62) However, today it is not unusual for the couple to wish to share their wedding and its arrangements only with those closest to them, and often to give the event a personal touch. They are entitled to protect themselves from publicity in such cases as well, and this includes withholding permission for the press to publish the event.", "In my view the desire to hold a private wedding should be respected in the sense that the wedding ceremony should be regarded as a personal matter within the meaning of section 390. (63) A private wedding ceremony may take different forms. For example, a wedding held in a private home provides a clear signal to third parties that the marriage is a personal matter that may not be reported in the form published by Se og Hør without the bridal couple’s prior consent. (64) In my view all the relevant circumstances indicate that in the present case the wedding was a private event. The wedding party was held at a hotel on Tjøme, which in this context is clearly a private area.", "The islet where the events reported by Se og Hør, and the marriage itself, took place is a relatively short walk away and directly linked with the hotel’s property. In my opinion the fact that there is a general right of public access to the islet under the Outdoor Recreation Act does not prevent this part of the wedding from also being of a clearly private nature. It follows from the von Hannover judgment that protection of privacy also applies to places to which the public has access. Furthermore, consent to the use of the islet had been obtained from the landowner. Thus the arrangement as a whole indicated that the couple wished to restrict the wedding to themselves and their guests.", "From this perspective the event must be considered to be a personal matter within the meaning of section 390. (65) For these reasons I consider that Se og Hør published in words and pictures a number of details relating to a personal matter. Firstly, the magazine published details of the arrangements for the ceremony, which have been described more fully by the first-voting judge. I regard these as the personal touch that the bridal couple had wished to give their wedding and that in my view underlines the private nature of the wedding. Secondly, the article included a description of the guests and the couple’s families, together with the names of well-known figures.", "In this connection the names of guests with children were also given, and pictures were shown of the children and their parents. (66) Like the first-voting judge, I consider that it has been clearly demonstrated that the opposite parties’ consent had not been obtained. (67) The next question is whether the publication is legal and justified despite the fact that the subject of the article is a personal matter. It follows from paragraph 72 of Rt-2007-687 that the main question to be weighed is whether ‘the article contributes to a debate of public interest. In other words, the particular importance of the principle of protection under Article 10 of the European Convention on Human Rights lies in the sphere of public debate’.", "I agree with the first-voting judge that this wording cannot be interpreted in such a way that it does not rule out that the publication of personal matters is justified in cases where it does not contribute to public debate. However, when matters of a personal nature such as those in question here are published, they must have at least a minimum of public interest if the invasion of privacy is to be considered legitimate. In the present case the publication was a celebrity article written for the sole purpose of entertainment. Although the desire to entertain is in itself legitimate, its nature does not justify overriding the affected parties’ desire to protect their privacy. In this connection I place special emphasis on the fact that getting married is a very significant occasion in a person’s life, and that therefore the activities celebrating it ‒ the marriage ceremony and the wedding party ‒ will for most people be one of the most important events of their lives, and will often be associated with strong emotions.", "(68) The fact that the opposite parties are well-known cultural figures in Norway has no bearing on the assessment. Well-known persons also have the right to respect for personal matters of the kind we are dealing with here. I find support for this view both in Rt-2007-687, cf. paragraph 74, and in the von Hannover judgment ..., cf. paragraph 67.", "(69) Although this has not influenced my view of the case, I would also like to comment on Se og Hør’s use of a zoom lens. The zoom lens enabled the journalist and the photographer to take close-up pictures of the bridal couple and their guests that make it look as if they were actually at the event themselves, when in fact they were hidden from those who were being observed. It seems likely that the reason for using this technique was that the journalist and photographer were aware that the bridal couple would have reacted to their presence on the islet and this might have resulted in the marriage ceremony being moved inside the hotel. Using a zoom lens because of the personal and private nature of the event resembles the use of a hidden camera, which is a factor that also weighs against the appellants. (70) For these reasons I am of the opinion that the article in Se og Hør cannot be justified on the basis of an assessment of legality, and that the opposite parties are entitled to redress for pain and suffering from the appellants.", "With regard to the amount of redress, the opposite parties have demanded that the amount decided by the Court of Appeal should be maintained. I have no objections to the amounts decided on. Since I know that I am in the minority, I will not formulate a final conclusion.” II. RELEVANT DOMESTIC LAW 15. The relevant provision of the Penal Code reads as follows: Section 390 Any person who violates another person’s privacy by giving public information about personal or domestic relations shall be liable to fines or imprisonment for a term not exceeding three months.", "Sections 250 and 254 shall apply correspondingly. If the misdemeanour is committed in a printed forum, an order for confiscation may be made in accordance with section 38. A public prosecution will only be instituted when it is requested by the aggrieved person and required in the public interest. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 16.", "The applicants complained that their right to respect for private life as secured by Article 8 of the Convention was breached by the Supreme Court’s judgment of 2 September 2008. Article 8 reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 17.", "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.", "Submissions by the parties 18. The Government submitted that the Supreme Court, in its judgment of 2 September 2008, carried out a balancing test in full conformity with the criteria laid down in the Court’s case law, as summarised and clarified in the recent Grand Chamber judgments Axel Springer AG v. Germany [GC], no. 39954/08, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, both dated 7 February 2012.", "They pointed out that in such a situation the Member States should be afforded a wide margin of appreciation and that the Court would require strong reasons to substitute its view for that of the domestic courts. The Government asserted that such strong reasons could not be demonstrated in the present case, and that the Court should therefore refrain from substituting its view for that of the Norwegian Supreme Court. Such an approach would also be fully in line with the strengthening of the principle of subsidiarity, as most recently reinforced by the Member States in their Brighton Declaration of 19 April 2012, provision B. 11 and 12, in particular litrae a) and b). 19.", "Furthermore, the Court’s case-law supported the Norwegian Supreme Court’s finding that the applicants’ marriage contributed, at least to some degree, to a debate of general interest. Thus, the publication was not for entertainment purposes alone, and the event did not exclusively relate to the applicants’ strictly private lives. Furthermore, given the setting and framework the applicants had chosen for the ceremony, the non-intrusive reporting technique employed, and that neither the photographs nor the accompanying article conveyed detrimental or very intimate information, the Supreme Court correctly concluded that the publication was justified under the Convention as well as under Norwegian law. 20. The applicants maintained that the Supreme Court failed to strike a fair balance between “freedom of expression” and “right to respect for private life” and that it did not undertake this balancing exercise in conformity with the criteria laid down in the Court’s case-law, and notably the most recent Grand Chamber cases.", "21. In particular, in the present case, as acknowledged by the majority in the Supreme Court (see paragraph 39 of the judgment) the article in question “clearly had a purely entertainment value” and the applicants were “well-known figures, but neither of them had a prominent role either in public administration or in any other public body”. Accordingly the applicants were not “public figures” and the article did not “contribute to a debate of general interest”. The present case should thus clearly be distinguished from Van Hannover (2) v. Germany, cited above. 22.", "Also the content and form of the article and the circumstances in which the photographs were taken supported the fact that there had been a serious intrusion into the applicants’ private life. The applicants underlined that the use of a zoom lens enabled the journalist and the photographer to take close‑up photographs of the bridal couple and their guests that made it look as if they were actually at the event themselves, when in fact they were hidden from those who were being observed. 23. The applicants contended that the majority of the Supreme Court seemed to base their decision on the view that since the photographs were not taken in “a climate of continual harassment” with reference to Von Hannover v. Germany, no. 59320/00, ECHR 2004‑VI, and the article did not contain anything unfavourable to the couple, the interference was not severe enough to constitute a breach of Article 8.", "This approach is not in conformity with the Court’s case-law. 24. Therefore, the applicants’ right to respect for their private life was breached by the Supreme Court’s judgment of 2 September 2008. 2. The Court’s assessment (a) General principles 25.", "Starting from the premise that the present case requires an examination of the fair balance that has to be struck between the applicants’ right to the protection of their private life under Article 8 of the Convention and the publisher’s right to freedom of expression as guaranteed by Article 10, the Court finds it useful to reiterate some general principles relating to the application of both articles. 26. In respect of Article 8, the Court has already held that the concept of private life extends to aspects relating to personal identity, such as a person’s name, photograph or physical and moral integrity (see Von Hannover (no. 2), cited above, § 95). Regarding photographs, the Court has stated that a person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers.", "The right to the protection of one’s image is thus one of the essential components of personal development. It mainly presupposes the individual’s right to control the use of that image, including the right to refuse publication thereof (ibid. § 96; see also Standard Verlags GmbH v. Austria (no. 2), no. 21277/05, § 48, 4 June 2009, and Hachette Filipacchi Associés (ICI PARIS) v. France, no.", "12268/03, § 53, 23 July 2009). 27. In certain circumstances, even where a person is known to the general public, he or she may rely on a “legitimate expectation” of protection of and respect for his or her private life (see Von Hannover (no. 2), cited above, § 97). 28.", "Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, freedom of expression is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, Axel Springer AG v. Germany [GC], cited above, § 78, 7 February 2012, and also, among other authorities, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Editions Plon v. France, no.", "58148/00, § 42, ECHR 2004‑IV; and Lindon, Otchakovsky‑Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007‑IV). 29. The Court has also repeatedly emphasised the essential role played by the press in a democratic society. Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest.", "Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see, Axel Springer AG, cited above, § 79; see also Bladet Tromsø and Stensaas v. Norway [GC], no.21980/93, §§ 59 and 62, ECHR 1999-III, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 71, ECHR 2004‑XI). 30. While freedom of expression includes the publication of photographs, this is nonetheless an area in which the protection of the rights and reputation of others takes on particular importance, as the photographs may contain very personal or even intimate information about an individual and his or her family (see Von Hannover (no.", "2), cited above, § 103; Eerikäinen and Others v. Finland, no. 3514/02, § 70, 10 February 2009; A. v. Norway, no. 28070/06, § 72, 9 April 2009; and Rothe v. Austria, no. 6490/07, § 47, 4 December 2012). 31.", "The adjective “necessary” within the meaning of Article 10 § 2 implies the existence of a “pressing social need”. In assessing whether such a need exists and what measures should be adopted to deal with it, the national authorities are left with a certain margin of appreciation. This power of appreciation is not unlimited but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10. The Court’s task in exercising its supervisory function is to look at the interference in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” and whether it was “proportionate to the legitimate aim pursued” (see, among other authorities, Bladet Tromsø and Stensaas, cited above, § 58). 32.", "Furthermore, the Court has recently set out the relevant principles to be applied when examining the necessity of an interference with the right to freedom of expression in the interests of the “protection of the reputation or rights of others”. It noted that in such cases the Court may be required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely on the one hand, freedom of expression protected by Article 10 and, on the other, the right to respect for private life enshrined in Article 8 (see Axel Springer AG, cited above, § 84, and MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011). 33. In Von Hannover v. Germany (no.", "2) (cited above, §§ 104-107) and Axel Springer AG (cited above, §§ 85-88), the Court defined the Contracting States’ margin of appreciation and its own role in balancing these two conflicting interests. The relevant paragraphs of the latter judgment read as follows: “85. The Court reiterates that, under Article 10 of the Convention, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent an interference with the freedom of expression guaranteed under that provision is necessary (see Tammer v. Estonia, no.41205/98, § 60, ECHR 2001‑I, and Pedersen and Baadsgaard, cited above, § 68). 86. However, this margin goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by an independent court (see Karhuvaara and Iltalehti v. Finland, no.53678/00, § 38, ECHR 2004‑X, and Flinkkilä and Others, cited above, § 70).", "In exercising its supervisory function, the Court’s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (see Petrenco v. Moldova, no. 20928/05, § 54, 30 March 2010; Polanco Torres and Movilla Polanco, cited above, § 41; and Petrov v. Bulgaria (dec.), no. 27103/04, 2 November 2010). 87. In cases such as the present one the Court considers that the outcome of the application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher who has published the offending article or under Article 8 of the Convention by the person who was the subject of that article.", "Indeed, as a matter of principle these rights deserve equal respect (see Hachette Filipacchi Associés (ICI PARIS) v. France, no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011; see also point 11 of the Resolution of the Parliamentary Assembly – paragraph 51 above). Accordingly, the margin of appreciation should in principle be the same in both cases.", "88. Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case‑law, the Court would require strong reasons to substitute its view for that of the domestic courts (see MGN Limited, cited above, §§ 150 and 155, and Palomo Sánchez and Others v. Spain [GC], nos.28955/06, 28957/06, 28959/06 and 28964/06, § 57, 12 September 2011).” 34. The Court went on to identify a number of criteria as being relevant where the right of freedom of expression is being balanced against the right to respect for private life (see Von Hannover (no. 2), cited above, §§ 109‑113, and Axel Springer AG, cited above, §§ 89-95), namely: (i) contribution to a debate of general interest (ii) how well known is the person concerned and what is the subject of the report? (iii) prior conduct of the person concerned (iv) method of obtaining the information and its veracity/circumstances in which the photographs were taken (v) content, form and consequences of the publication.", "(b) Application of these principles to the present case 35. The Supreme Court’s legal point of departure was section 390 of the Penal Code interpreted in the light of Articles 8 and 10 of the Convention and the existing case law (see paragraph 13 above). It stated that in order to decide whether the publication was justified, “the publication must be assessed as a whole, in the actual context and situation, where protection of privacy must be weighed against freedom of expression”. It should be noted in this connection that the specific wording used by the Supreme Court in its judgment from 2008 corresponded to the said Penal Code provision about violation of privacy by giving public information about personal or domestic relations, rather than the formulation of the criteria set out in the subsequent Grand Chamber judgments from 2012 cited above. 36.", "The definition of what constitutes a subject of general interest will depend on the circumstances of the case. The Court nevertheless considers it useful to point out that it has recognised the existence of such an interest not only where the publication concerned political issues or crimes, but also where it concerned sporting issues or performing artists (see Von Hannover (no. 2), cited above, § 109). 37. The criterion regarding how well‑known the person is and the subject of the report, is related to the criterion of general interest.", "In the present case the applicants had no public community functions but they were well-known performing artists, and accordingly public figures. The article and the photographs concerned their wedding. In this respect the Supreme Court found, among other things, that the article had “a purely entertainment value” and continued: “a wedding is a very personal act. At the same time it also has a public side. A wedding is a public affirmation that two persons intend to live together, and has legal consequences in many different sectors of society.", "Thus information about a wedding does not in itself involve a violation of privacy if it is given in a natural form and based on a reliable source”. Hence, although not stating that the article constituted a subject of general interest, the Supreme Court did emphasise that a wedding has a public side. The Court agrees and finds reason to add that the publication of an article about a wedding cannot itself relate exclusively to details of a person’s private life and have the sole aim of satisfying public curiosity in that respect (see, Von Hannover (no. 2), cited above, § 110). It therefore considers that there was an element of general interest in the article about the applicants’ wedding.", "38. There is no information available to the Court about the applicants’ conduct prior to the publication of the article. Nevertheless, the mere fact of having cooperated with the press on previous occasions cannot serve as an argument for depriving the party concerned of all protection against publication of the article and the photographs at issue (see, Von Hannover (no. 2), cited above, § 111). Similarly, the Supreme Court recognised that the right to protection of privacy “is no weaker for well-known cultural personalities than it is for others”, despite the fact that their photographs are published in magazines and newspapers and on internet in connection with their professional lives.", "39. The Court will now turn to the other relevant criteria under the Convention, namely the method of obtaining the information, its veracity, the circumstances in which the photographs were taken, content, form and consequences of the publication. It is not in dispute between the parties that the applicants did not consent to the publication of the photographs or the accompanying article, and that the photographer obtained the photographs by hiding and using a strong telephoto lens from a distance of approximately 250 meters. In the view of the Supreme Court, however, for the bridal couple: “the situation would not have been any better if the photography had taken place somewhere closer, or from a place where the photographer and journalist could have been seen by the wedding party. This could have disturbed the whole wedding.", "Nor was the photography in the nature of a breach of confidence, as it would have been if for example any of the participants had published personal photographs taken during or in connection with the wedding. The situation would have been different if the photographs had been of events taking place in a closed area, where the subjects had reason to believe that they were unobserved”. 40. The Supreme Court went on to analyse paragraphs 59 and 68-69 in the judgment Von Hannover v. Germany, (no.1), cited above, and noted in particular that in that judgment, the way in which the photographs were published and the constant photography constituted harassment of the aggrieved party (similarly to the previous “Big Brother case” but unlike the present case) and also an invasion of privacy. 41.", "It also pointed out that neither the text nor the photographs in the disputed magazine article contained anything unfavourable to the applicants. It did not contain any criticism, nor was there anything in the content that could damage their reputation. 42. There were no photographs of the actual marriage ceremony. In the view of the Supreme Court, however, had there been photographs of the actual wedding ceremony, such a situation would clearly have had more personal significance than photographs showing the bridal couple arriving at or leaving the place where the wedding took place.", "43. Moreover the Supreme Court examined the way the wedding was conducted and reiterated the principle set out in Von Hannover v. Germany, (no.1), cited above, that the concept of private life is comprehensible, and includes “a zone of interaction of a person with others, even in a public context, which may fall within the scope of ‘private life’. It thus noted that the wedding was organised in a very unusual way, for example with the arrival of the bride in an open boat and the presence of a men’s choir singing a hymn on the islet. Moreover, since the ceremony took place in an area that was accessible to the public, easily visible, and a popular holiday location, it was likely to attract attention by third parties. The Court accepts the Supreme Court’s view in this respect that these elements should also be given a certain amount of weight.", "44. In the opinion of the Court, both the majority and the minority of the Norwegian Supreme Court carefully balanced the right of freedom of expression with the right to respect for private life, and explicitly took into account the criteria set out in the Court’s case‑law which existed at the relevant time. In addition, de facto, the Supreme Court assessed all the criteria identified and developed in the subsequent case‑law, notably in Von Hannover (no. 2) and Axel Springer AG, both cited above. The Court therefore finds reason to point out that, although opinions may differ on the outcome of a judgment, “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, Von Hannover v. Germany (no.", "2), cited above, § 107 and Axel Springer AG v. Germany, cited above, § 88). 45. In these circumstances, and having regard to the margin of appreciation enjoyed by the national courts when balancing competing interests, the Court concludes that the Supreme Court did not fail to comply with its obligations under Article 8 of the Convention. Accordingly, there has not been a violation of the said provision. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the application admissible; 2. Holds that there has been no violation of Article 8 of the Convention; Done in English, and notified in writing on 16 January 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]

[ "FIFTH SECTION CASE OF LORENZ v. AUSTRIA (Application no. 11537/11) JUDGMENT STRASBOURG 20 July 2017 FINAL 20/10/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Lorenz v. Austria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President,Nona Tsotsoria,André Potocki,Yonko Grozev,Mārtiņš Mits,Gabriele Kucsko-Stadlmayer,Lәtif Hüseynov, judges,and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 27 June 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "11537/11) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Günter Lorenz (“the applicant”), on 15 February 2011. 2. The applicant was represented by Mr G. Gahleithner, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs. 3.", "The applicant alleged, in substance under Article 5 §§ 1 and 4 of the Convention, that the length of the proceedings for the review of his detention in an institution for mentally ill offenders (Anstalt für geistig abnorme Rechtsbrecher) had violated his rights, and that those proceedings had been unlawful. 4. On 12 May 2014 the complaints concerning the length and lawfulness of the review proceedings were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 5. On 17 March 2017 additional questions concerning the applicant’s complaints were put before the parties.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1964 and is detained in Krems. A. The applicant’s criminal conviction and placement in an institution for mentally ill offenders 7.", "On 9 February 1983 the applicant shot his cousin, P.D., three times in the chest and stomach. His victim died. The applicant then decapitated P.D. and disposed of his head. 8.", "On 15 February 1983 the applicant shot dead two women, namely his former girlfriend, U.E., as well as her mother, S.E., using the same gun as he had used for the previous murder. 9. The applicant was arrested on 26 February 1983 and remanded in custody. 10. On 14 March 1984 the Vienna Regional Criminal Court (Straflandesgericht – hereinafter, “the Criminal Court”), sitting as an assize court (Geschworenengericht), convicted the applicant of triple murder and disturbing the peace of the dead (Störung der Totenruhe).", "He was found to be criminally responsible for his acts and was sentenced to twenty years’ imprisonment. In addition to the sentence, the Criminal Court ordered his detention in an institution for mentally ill offenders in accordance with Article 21 § 2 of the Criminal Code (Strafgesetzbuch; see paragraph 31 below). A psychiatric expert, Dr Q., had found in his expert opinion that the applicant presented a distinctive picture of secondary personality defence mechanisms, in the sense of suppression of fear, emotion and sexuality. His potential for aggression was increased and he was emotionally unstable and could easily become aggressive. Moreover, there were clear signs of an identity disorder.", "11. The above judgment was upheld by the Supreme Court (Oberster Gerichtshof) on 27 September 1984. 12. The applicant has been detained in institutions for mentally ill offenders since 27 September 1984. He served his prison sentence until 26 February 2003 (as the time he had spent in pre-trial detention – see paragraph 9 above – was counted towards his prison sentence).", "Thereafter, he remained in preventive detention, subject to yearly review proceedings in accordance with Article 25 § 3 of the Criminal Code (see paragraph 32 below). He was first detained in the units for mentally ill offenders of the Vienna-Mittersteig Prison and Graz-Karlau Prison (Justizanstalt), and since 2008 has been detained in the respective unit of Stein Prison in Krems. B. Other review proceedings (not the subject of the instant application) 1. The 2008/09 review proceedings 13.", "On an unknown date in 2008, the applicant applied for release from the institution for mentally ill offenders. He argued that he had completed individual therapy with Professor G. in the Vienna-Mittersteig Prison as well as specialised therapy preparing him for his release with an external therapist. Two psychiatric experts had attested that the danger emanating from him had abated or was significantly reduced. Even though different entities had suggested that he be granted privileges (Vollzugslockerung) under section 126 of the Execution of Sentences Act (Strafvollzugsgesetz – see paragraph 41 below), he had not yet been granted any. The applicant claimed that his lawyer had offered him a job and a small apartment if he were released.", "14. On 25 February 2009 the Krems a.d. Donau Regional Court (Landesgericht – hereinafter, “the Regional Court”) ordered the continuation of the applicant’s detention in the institution for mentally ill offenders. It referred to an expert opinion of 25 January 2009 by Dr L., who had stated that the applicant’s condition had stabilised and that the danger emanating from him had considerably abated in respect of the closed and protected living environment of the prison. However, the same could not be said with certainty for a life outside prison. The director of the prison did not recommend releasing the applicant either, as the special therapy he needed in order to be prepared for release was only available in the Vienna‑Mittersteig Prison.", "The applicant waived his right to appeal against that decision. 2. The 2009/10 review proceedings 15. On 20 September 2009 the applicant again applied for release, reiterating that Dr L. in his expert opinion of 25 January 2009 had attested that a process of mental stabilisation had taken place and that it was highly likely that the danger emanating from him was significantly reduced. The applicant claimed that he had successfully completed psychotherapy, which he considered as sufficient preparation for life outside of prison.", "He emphasised that he was willing to be treated, but that currently he was not receiving any therapy. Moreover, he reminded the court that his lawyer would be able to supply a flat and a job for him if he were released. He complained that the prison authorities had refused his requests to be granted privileges, and as a consequence the domestic courts had dismissed his previous applications for release as he had not been prepared for it. 16. On 15 March 2010 the Regional Court, having held an oral hearing, ordered the continuation of the applicant’s detention.", "It confirmed that Dr L., in his additional expert opinion of 24 February 2010, had referred to the fact that the applicant’s condition had stabilised. Even though the applicant had developed an aversion to psychotherapy, he did not refuse to talk to psychiatrists. He was actively seeking a dialogue with them. However, Dr L. also found that no protection and support would be provided for the applicant after his release. Without such support, conditional release would be too risky from a psychiatric point of view.", "The stress caused by the overwhelming feeling of unpreparedness for release could lead to near-psychotic or micropsychotic disorders, the danger of which was unpredictable. 17. The Regional Court also referred to the expert opinion of Dr H. of 31 October 2006 and the forensic expert opinion by the Vienna-Mittersteig Prison of January 2007, as well as the most recent expert opinion by Dr B. (the resident psychologist of Stein Prison, where the applicant was held at that time) of 3 March 2010. The latter had come to the conclusion that the applicant still suffered from a pronounced combined personality disorder with paranoid, schizoid, emotionally unstable and narcissistic elements.", "Dr B. responded to the generally positive tenor of Dr L.’s opinion and found that the stabilisation process was rather a reaction to the “enemy” institution, namely the prison, in which the applicant was being held, and was not to be considered real or rendering the applicant capable of surviving the challenges of daily life outside prison. Moreover, at that time, Dr B. did not recommend further therapy for the applicant, who was not prepared for any self-reflection and was not ready to process the experiences and challenges of normal social interaction, and thus was still likely to present a danger to others. The director of Stein Prison also recommended the continuation of the applicant’s detention, adding that his institution was not equipped to deal with the preparation of his release, which it considered to be a complex and risk-prone task. Only the Vienna-Mittersteig Prison was capable of preparing the applicant for his release. The applicant in any event refused to undergo any more therapy.", "18. The Regional Court found that owing to the applicant’s negative approach to therapy, it was impossible to prepare him for release, even though his counsel had confirmed the offer of a flat and a job, and the applicant appeared to be stable. In line with the argumentation of the expert opinions of Dr B. and Dr L., the court held that in the light of the gravity of the underlying criminal offences, there was a danger that an unprepared release would overwhelm the applicant and could have unpredictable consequences. Therefore, the application for conditional release had to be dismissed. 19.", "On 26 July 2010, the Vienna Court of Appeal (Oberlandesgericht – hereinafter, “the Court of Appeal”) dismissed an appeal lodged by the applicant. It referred to the expert opinions obtained in 1983, 2000, 2002, 2006, 2009 and 2010, and confirmed the decision of the first-instance court. It also reiterated that Stein Prison’s psychology service had recommended a transfer to the Vienna-Mittersteig Prison, where the necessary therapy was available. C. Review proceedings which are the subject of the instant application 1. The 2010/11 review proceedings 20.", "The applicant lodged an application for release with the Regional Court on 20 August 2010 and submitted additional observations on 16 November and 3 December 2010. In essence, he repeated the arguments he had made in the previous review proceedings (see paragraphs 13 and 15 above). He also requested that a new expert opinion be obtained from Dr L. 21. On 7 December 2010 the Regional Court, ordered the continuation of the applicant’s detention in an institution for mentally ill offenders, referring to the most recent expert opinion by Dr B. of 3 March 2010 (see paragraph 17 above). It found that there had been no changes in his circumstances and therefore declined the request for a new expert opinion.", "Recently obtained information from Stein Prison’s psychology service stated that the applicant still refused to undergo further therapy at their institution and requested preparation for his release. It reiterated that the necessary preparation was not available in Stein Prison, but only in the Vienna-Mittersteig Prison. However, the latter had not yet responded to a request for the applicant’s transfer. The Regional Court further referred to the reasoning in previous review decisions to avoid repetition, in particular the one by the Court of Appeal of 26 July 2010 (see paragraph 19 above). It stressed that the applicant still refused to deal with his offences in a therapeutic setting, which in turn was a prerequisite for being granted privileges.", "In the light of the gravity of the underlying offence, the statements obtained from the various prison services as well as the recent expert opinions, the Regional Court concluded that the applicant still presented a danger to society. 22. On 25 January 2011 the Court of Appeal dismissed an appeal lodged by the applicant as unfounded, as it was evident that there had not been a change in his negative attitude towards further therapy. 2. The 2011/12 review proceedings 23.", "On 8 September 2011 the applicant applied for conditional release from the institution. 24. On 23 January 2012 the Regional Court held an oral hearing and subsequently ordered an expert opinion in the framework of the yearly judicial review proceedings. On 1 February 2012 the applicant submitted his observations on the review. He stated that the expert opinion of Dr B.", "(see paragraph 17 above) had been wrong and the court should therefore rather rely on Dr L.’s expert opinion (see paragraphs 13-16 above). As the applicant refused to be examined by any expert, the court held another hearing on 23 April 2012. On that occasion, the presiding judge reproached the applicant with the fact that he could not expect to be granted privileges if he did not collaborate with the experts and the authorities. The applicant replied that previously one of the experts had found that privileges were a prerequisite for his release, and that another expert had even come to the conclusion that he could already be released. He explained that he had refused to be examined by a psychiatrist because he was not suffering from a mental illness.", "The applicant repeated that his lawyer had offered him a small apartment and work in his law firm. He was not willing to live in an assisted-living facility or to follow psychotherapy after his eventual release, but would agree to work with a probation officer. 25. On 23 April 2012, the Regional Court ordered the continuation of the applicant’s detention. Based on the information on file, the latest expert opinion of Dr B. of 3 March 2010 and the information from the director of the prison, it concluded that the danger emanating from the applicant still persisted and therefore his application for release had to be dismissed.", "26. That decision was upheld by the Court of Appeal on 30 July 2012. The court summarised the genesis of the case so far and the applicant’s complaints, and reiterated the lower court’s findings. As to its own conclusion, it almost exclusively referred to its previous decisions in the applicant’s case of 26 July 2010 and 25 January 2011, holding that there had been no significant changes in the applicant’s situation, in particular that he still refused any further therapy. 3.", "The 2013 review proceedings 27. On 26 March 2013 the applicant applied for release from the institution for mentally ill offenders. 28. On 20 June 2013 the Regional Court again ordered the continuation of the applicant’s detention, essentially reiterating the reasoning it had given in its decision of 23 April 2012 (see paragraph 25 above). It appears that the Regional Court did not hold an oral hearing prior to that decision.", "It referred to the “current” expert opinion of Dr B. of 2010 (see paragraph 17 above) and statements by the prison administration and the social service of the prison (Maßnahmenteam) that the applicant should not be released, as he refused to undergo therapy and still posed a threat. The Regional Court reiterated that the applicant could only be prepared for his release at the Vienna-Mittersteig Prison, but found that it would be unreasonable to order his transfer because of his negative attitude towards therapy. 29. On 19 July 2013 the Court of Appeal dismissed an appeal lodged by the applicant as unfounded. It held that the Regional Court had had no choice but to take into consideration the expert opinion of 2010, as in the course of the 2011/12 review proceedings the applicant had refused to be examined by an expert.", "The Court of Appeal again referred to the reasoning it had given in its three previous decisions relating to the applicant. 30. At the time of the above decision, the applicant was almost forty‑nine years old and had spent some twenty-nine years of his life in different institutions for mentally ill offenders. II. RELEVANT DOMESTIC LAW AND PRACTICE 31.", "The placement in an institution for mentally ill offenders as a preventive measure is dealt with under Article 21 of the Criminal Code, the relevant parts of which read as follows: “(1) If a person commits an offence punishable by a term of imprisonment exceeding one year, and if he cannot be punished for the sole reason that he committed the offence in a state of mind that excludes responsibility (Article 11) resulting from a serious mental or emotional disorder, and if in view of his mental state, his condition and the nature of the offence it is feared that he might otherwise, in view of his mental or emotional disorder, commit another criminal offence with serious consequences, the court shall order his placement in an institution for mentally ill offenders. (2) If such a fear exists, an order for placement in an institution for mentally ill offenders shall also be made in respect of a person who, while not lacking responsibility, commits an offence punishable by a term of imprisonment exceeding one year on account of his severe mental or emotional abnormality. In such a case the placement is to be ordered at the same time as the sentence is passed.” 32. The duration of those preventive measures is governed by Article 25 of the Criminal Code, which states: “(1) Preventive measures shall be ordered for an indefinite period. They shall be implemented for as long as is required by their purpose ... (2) The termination of the preventive measure shall be decided by the court.", "(3) The court shall, of its own motion, examine at least once per year whether the placement in an institution for mentally ill offenders ... is still necessary.” 33. According to the case-law of the Supreme Court, Article 25 § 3 of the Criminal Code is complied with where the review of the necessity of further detention has started within one year of the last decision on that matter. The law guarantees an examination at regular intervals, but does not fix a time-limit for the actual decision. It is therefore not necessary that the first and/or second-instance decisions be taken within a one-year time-limit (Supreme Court, judgment of 30 September 1980, no. 10 Os 79/80).", "Domestic law does not give any time-limits for the examination of an application lodged by a detained person before the yearly review is due. 34. In accordance with Article 47 § 2 of the Criminal Code, conditional release from a preventive measure which is combined with deprivation of liberty must be ordered if, from the demeanour and development of the detained person, his or her state of health, personality, past life, and prospects for living an honest life, it can be assumed that he or she no longer presents the level of dangerousness that had led to the preventive measure. 35. Section 164 of the Execution of Sentences Act stipulates that the purpose of placing a person in an institution for mentally ill offenders is to deter him or her from committing further offences as a result of his or her mental illness.", "The purpose of the placement is to improve the person’s mental state, so that he or she is unlikely to commit further criminal acts. 36. In accordance with section 134(1) of the Execution of Sentences Act, as in force at the relevant time, the Directorate for the Enforcement of Sentences (Vollzugsdirektion) decides, among other things, in which institution a mentally ill offender will be remanded. Under section 134(6) the directorate also decides, ex officio, whether it is necessary to transfer a detainee to another institution. In taking such a decision, it must consider whether such a transfer is necessary for the individual concerned in order to achieve the aims of his or her detention (see sections 134(2) and 164 of the Execution of Sentences Act; for the latter see paragraph 35 above).", "37. In accordance with section 162(3) of the Execution of Sentences Act, applications for the review of a person’s further detention in an institution for mentally ill offenders are considered by a single judge. Save for cases where the Act contains more specific provisions, the Code of Criminal Procedure (Strafprozessordnung) applies, mutatis mutandis, to the review proceedings. Accordingly, a person in an institution for mentally ill offenders has largely the same rights as an accused in criminal proceedings, such as the right to have access to the case file, the possibility to lodge requests for the taking of evidence (such as, for example, to obtain an expert opinion), and the right to be represented by counsel. 38.", "Section 178 of the Execution of Sentences Act, read in conjunction with section 152(2), provides that a person who is detained in an institution for mentally ill offenders has the right to apply for a review of the lawfulness of his or her detention. 39. In accordance with section 167(1) of the Execution of Sentences Act, the detainee must be heard in person by the court competent for the review of his or her detention at least once every two years. This provision, read in conjunction with Articles 126 § 1 and 127 § 3 in fine of the Code of Criminal Procedure, stipulates that an expert opinion must also be obtained every two years, namely on the occasion of such a hearing. 40.", "Article 127 § 3 of the Code of Criminal Procedure states that a third expert must be consulted if the findings of the two previous experts are contradictory on essential points and those contradictions cannot be resolved by putting questions before them. 41. The conditions for the execution of a prison sentence in a less restrictive manner (Strafvollzug in gelockerter Form) are governed by section 126 of the Execution of Sentences Act. It provides that prisoners must be granted one or more of the following privileges, provided that they are not expected to abuse them: detention without the doors of the common rooms or the gates being locked during the daytime; limited or no supervision of the inmate during his or her work, even outside the prison; leaving the prison premises for the purposes of vocational training or medical treatment; or one or two unaccompanied outings per month for reasons other than those mentioned above. The head of the prison decides whether a prisoner will be granted privileges.", "THE LAW I. SCOPE OF THE CASE BEFORE THE COURT 42. The Court considers it necessary to clarify at the outset that the instant application concerns solely the following review periods: - the proceedings which started with the applicant’s application for release lodged on 20 August 2010, and ended with the decision by the Court of Appeal of 25 January 2011 (see paragraphs 20-22 above); - the proceedings which started with the applicant’s application for release lodged on 8 September 2011, and ended with the decision by the Court of Appeal of 30 July 2012 (see paragraphs 23-26 above); and - the proceedings which started with the applicant’s application for release lodged on 26 March 2013, and ended with the decision by the Court of Appeal of 19 July 2013 (see paragraphs 27-29 above). 43. The content of other decisions concerning earlier review proceedings as set out in the facts part of the instant judgment (see paragraphs 13-19 above) are relevant in order to get a broader view of the development of the applicant’s case, but are not as such the subject of the instant application.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 44. The applicant complained in substance under Article 5 § 1 of the Convention that the review proceedings of 2010/11, 2011/12 and 2012/13 and his continued detention had not been lawful. The relevant parts of this provision 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: (a) the lawful detention of a person after conviction by a competent court; ... (e) the lawful detention ... of persons of unsound mind ...” A. Admissibility 45. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. Submissions by the parties (a) The applicant’s arguments 46. The applicant complained that the periodic review of his detention had not been carried out in accordance with the domestic legal provisions. The courts had failed to adduce relevant and sufficient reasons in their decisions for the continuation of his detention. Those proceedings had therefore not been lawful.", "(b) The Government’s arguments 47. The Government pointed out that the applicant had repeatedly made use of his right to apply for a review of his detention in an institution for mentally ill offenders, in accordance with section 178 of the Execution of Sentences Act, read in conjunction with section 152(2) (see paragraph 38 above). Furthermore, he had been heard in person every second year, as required by section 167 of the Execution of Sentences Act (see paragraph 39 above). The applicant had not asked to be heard more often. 48.", "In relation to the 2010/11 review proceedings, the Government submitted that the relevant facts had not changed since the previous review decision of 15 March 2010. In particular, the applicant still refused to undergo therapy. 49. Before taking the decision of 23 April 2012 on the continuation of the preventive measure, the Regional Court had tried in vain to obtain a fresh psychiatric assessment of the applicant, who refused to be examined. The court therefore had no other choice than to base its decision on the previous expert opinion by Dr B. of 2010.", "The most decisive factor of that decision, however, was that the applicant continuously refused to undergo therapy and showed no awareness of his illness. The same applied to the review proceedings of 2013, where the Regional Court had had to assume that the applicant would again refuse to be examined by an expert. 50. The Government emphasised that the recourse to the last available expert opinion of 2010 in the three review proceedings in question was solely due to the applicant’s conduct and his failure to cooperate with the authorities. 51.", "The Government asserted that in proceedings concerning the review of the lawfulness and necessity of further detention in an institution, the person concerned basically had the same procedural rights as an accused. In the present case, the applicant had been – at least partly – represented by counsel. It could thus be assumed that he had adequately been informed by his legal representative of both his rights and his obligation to actively participate in the rehabilitation measures specifically developed for him. The applicant had nonetheless continuously refused to undergo therapeutic treatment. 52.", "When it comes to the question why the applicant had not been transferred to the Vienna-Mittersteig Prison despite repeated recommendations to that end (see paragraphs 14, 17 and 21 above), the Government stated that the applicant had been ex officio transferred to Stein Prison in 2007. Thereafter, neither the applicant nor the prison authorities have requested a transfer, which is why no decision in that respect was taken. The applicant had twice requested his transfer to Garsten Prison, but these requests have been refused. 2. The Court’s assessment (a) General principles 53.", "The relevant general principles have recently been summarised in the Court’s judgment in the case Bergmann v. Germany, no. 23279/14, §§ 95‑102, 7 January 2016: “95. The Court reiterates that 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 Del Rio Prada v. Spain [GC], no. 42750/09, § 123, 21 October 2013 with further references). The applicability of one ground does not necessarily preclude that of another; detention may, depending on the circumstances, be justified under more than one sub-paragraph (see Kharin v. Russia, no.", "37345/03, § 31, 3 February 2011 with further references). Only a narrow interpretation of the exhaustive list of permissible grounds for deprivation of liberty is consistent with the aim of Article 5, namely to ensure that no one is arbitrarily deprived of his liberty (see, among many others, Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33; and Shimovolos v. Russia, no. 30194/09, § 51, 21 June 2011). 96.", "The Court further reiterates that the term “persons of unsound mind” in sub-paragraph (e) of Article 5 § 1 does not lend itself to precise definition since its meaning is continually evolving as research in psychiatry progresses (see Winterwerp, cited above, § 37, and Rakevich v. Russia, no. 58973/00, § 26, 28 October 2003). An individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind, that is, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see Winterwerp, cited above, § 39, and Stanev v. Bulgaria [GC], no. 36760/06, § 145, ECHR 2012). 97.", "A mental disorder may be considered as being of a degree warranting compulsory confinement if it is found that the confinement of the person concerned is necessary as the person needs therapy, medication or other clinical treatment to cure or alleviate his condition, but also where the person needs control and supervision to prevent him from, for example, causing harm to himself or other persons (compare, for example, Witold Litwa v. Poland, no. 26629/95, § 60, ECHR 2000-III, and Hutchison Reid v. the United Kingdom, no. 50272/99, § 52, ECHR 2003-IV). 98. In deciding whether an individual should be detained as a person “of unsound mind”, the national authorities are to be recognised as having a certain discretion, in particular on the merits of clinical diagnoses, since it is in the first place for the national authorities to evaluate the evidence adduced before them in a particular case; the Court’s task is to review under the Convention the decisions of those authorities (see Winterwerp, cited above, § 40; X v. the United Kingdom, 5 November 1981, § 43, Series A no.", "46; H.L. v. the United Kingdom, no. 45508/99, § 98, ECHR 2004-IX; and S. v. Germany, no. 3300/10, § 81, 28 June 2012). The relevant time at which a person must be reliably established to be of unsound mind, for the requirements of sub paragraph (e) of Article 5 § 1, is the date of the adoption of the measure depriving that person of his liberty as a result of that condition (compare Luberti v. Italy, 23 February 1984, § 28, Series A no.", "75, and B v. Germany, no. 61272/09, § 68, 19 April 2012). 99. Furthermore, there must be some relationship between the grounds of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the “detention” of a person as a mental-health patient will only be “lawful” for the purposes of sub-paragraph (e) of Article 5 § 1 if effected in a hospital, clinic or other appropriate institution (see Hutchison Reid, cited above, § 49; Brand v. the Netherlands, no.", "49902/99, § 62, 11 May 2004; Kallweit v. Germany, no. 17792/07, § 46, 13 January 2011; and Glien v. Germany, no. 7345/12, § 75, 28 November 2013 with further references). (...) 101. 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 v. the United Kingdom [GC], no. 13229/03, § 67, ECHR 2008). 102. 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 and 45; Saadi, cited above, § 67; and Reiner v. Germany, no.", "28527/08, § 83, 19 January 2012). ” 54. The reasonableness of the decision to extend a person’s detention in order to protect the public from further offences committed by that person is called into question, in particular, where the domestic courts plainly had at their disposal insufficient elements warranting the conclusion that the person concerned still posed a danger to the public, notably because the courts had failed to obtain indispensable and sufficiently recent expert advice (see, in the context of preventive detention, Dörr v. Germany (dec.), no. 2894/08, 22 January 2013, and H.W. v. Germany, no.", "17167/11, § 107, 19 September 2013; compare, mutatis mutandis, Ruiz Rivera v. Switzerland, no. 8300/06, § 60, 18 February 2014). 55. The reason why the medical assessment must be sufficiently recent is to enable the authorities to assess the mental health of the person concerned at the time when the request for discharge is examined. In the case of Herz v. Germany (no.", "44672/98, § 50, 12 June 2003), for example, the Court found that a psychiatric assessment dating back a year and a half was not sufficient by itself to justify deprivation of liberty. In Ruiz Rivera (cited above, § 63), the Court equally found that, for that purpose, a psychiatric report dating back more than three years was not sufficiently recent either. 56. When it comes to the evaluation of psychiatric expert opinions, the Court has held that it is primarily for the domestic courts to assess the scientific quality of diverging psychiatric opinions, and in that context the national authorities have a certain margin of appreciation (see, in relation to Article 5 § 4 of the Convention, Ruiz Rivera, cited above, § 62). 57.", "The Court has found that the successful completion of therapeutic measures obviously necessitates the cooperation of the person concerned (Rangelov v. Germany, no. 5123/07, § 98, 22 March 2012). Where no other possibility exists, for instance because the person concerned has refused to appear for an examination, a medical expert’s assessment on the basis of the case file of the actual state of that person’s mental health must at least be sought, failing which it cannot be maintained that the person has reliably been shown to be of unsound mind, which would in turn render his or her further detention unlawful (see Varbanov v. Bulgaria, no. 31365/96, § 47, ECHR 2000‑X, and Constancia v. the Netherlands (dec.), no. 73560/12, § 26, 3 March 2015).", "58. Lastly, a decision not to release a detainee may become inconsistent with the objectives of the sentencing court’s order for preventive detention if the person concerned was detained because there was a risk that he or she would reoffend, but the person was, at the same time, deprived of the necessary means, such as suitable therapy, to demonstrate that he or she was no longer dangerous (see Klinkenbuss v. Germany, no. 53157/11, § 47, 25 February 2016, with further references). (b) Application of the above general principles to the present case 59. At the outset, the Court observes that during the review periods in question, the applicant refused to undergo further therapy at Stein Prison and in the course of the 2011/12 proceedings also refused to be examined by a psychiatric expert.", "Moreover, the Court notes that the intervals at which oral hearings were held appear to have been in accordance with domestic law, and that the applicant did not request that oral hearings be conducted more often. These facts were not in dispute between the parties. 60. The Court considers that the following issues require a closer examination: Whether the domestic courts have sufficiently examined the question of transferring the applicant to the Vienna-Mittersteig Prison in order to receive the appropriate treatment and be prepared for an eventual release; whether the domestic courts had a sufficient factual basis at their disposal for deciding on the continuation of the applicant’s detention, in particular whether psychiatric expert opinions were obtained at reasonable intervals; and whether the domestic courts’ decisions had been sufficiently reasoned. (i) The recommended transfer of the applicant to the Vienna-Mittersteig Prison 61.", "First, the Court will examine whether the applicant had been offered the opportunity to undergo the necessary treatment and preparation for release, which – according to the domestic courts – could only be provided in the Vienna-Mittersteig Prison. The Court reiterates that, under its well‑established case-law, the detention of a person as a mental-health patient will, in principle, only be “lawful” for the purposes of sub‑paragraph (e) of Article 5 § 1 if effected in an appropriate institution (see Bergmann, cited above, § 99). Moreover, when dealing with mentally ill offenders, the authorities are under an obligation to work towards the goal of preparing the person concerned for their release, for example by providing incentives for further therapy such as the transfer to an institution where they can actually receive the necessary treatment, or by granting certain privileges, if the situation so allows (compare and contrast Rangelov, § 98 in fine, cited above). 62. Turning to the instant case, the Court notes that in accordance with section 134(6) of the Execution of Sentences Act as in force at the relevant time (see paragraph 36 above), the Directorate for the Enforcement of Sentences is the competent authority to decide ex officio on the transfer of a detainee.", "In taking such a decision, it must consider whether such a transfer is necessary for the individual concerned in order to reach the purpose of the detention. In the applicant’s case, it was clear from the domestic courts’ review decisions that being prepared for his release was a prerequisite for them granting his requests for release. It appears that he had already received such preparation prior to 2008, when he was transferred to Stein Prison. However, it seems that this preparation had not been considered sufficient by the domestic authorities, as the applicant’s detention continued. It was not contested that Vienna-Mittersteig Prison was the only institution where the applicant could adequately be prepared for his release (see paragraphs 14, 17 and 19 above).", "63. The reasons adduced by the domestic courts as to why the authorities had not transferred the applicant to the Vienna-Mittersteig Prison varied. In the decision of 25 February 2009 the Regional Court simply pointed out that therapy in the Vienna-Mittersteig Prison was a precondition for release and since the applicant had not completed this therapy, release was not possible. Later, in its decision of 7 December 2010, the Regional Court stated that the Vienna-Mittersteig Prison had not responded to a request to accept the applicant’s transfer. It appears that the obvious necessity for the applicant’s transfer had not been followed up thereafter.", "The courts mentioned it in their review proceedings, but did not consider that it was a prerequisite for his release, and in this context did not examine the question of whether the applicant was detained in an appropriate institution. In the course of the 2013 review proceedings, the applicant was still detained in Stein Prison. The Regional Court then based the fact that the applicant had still not been transferred on his refusal to undergo therapy. 64. The Court concludes from the above that the prison authorities ignored, over several years, the obvious need – which had clearly been stated in the domestic courts’ decisions – that the applicant be transferred to the Vienna-Mittersteig Prison to receive the appropriate therapy and be prepared for an eventual release, even though at the latest from 2009 the authorities could and should have been alerted that this was the only institution where the applicant could receive such treatment.", "While the applicant refused to undergo any more therapy, he requested measures for his release. It was thus for the authorities to find a way to overcome this obvious deadlock and examine the question of the transfer of the applicant to that prison. 65. Thus, because the authorities failed to examine in the review proceedings the question of the applicant’s transfer to the Vienna‑Mittersteig Prison, the applicant’s detention was not in line with the requirements of lawfulness of Article 5 § 1 (e) of the Convention. For the same reasons as those set out above, the Court finds that the causal connection between the applicant’s initial sentence and his continued detention was broken, which is why his detention following the review proceedings in question could not be justified under sub-paragraph (a) of Article 5 § 1 of the Convention either.", "(ii) The intervals at which psychiatric expert opinions have been obtained 66. Second, the Court will examine whether the psychiatric expert opinions have been obtained at reasonable intervals. The Court reiterates that since his criminal conviction became final on 27 September 1984, the applicant has been remanded in institutions for mentally ill offenders. The review proceedings in question took place in 2010/11, 2011/12 and 2013 respectively, hence some seven, eight and ten years after the applicant, on 26 February 2003, had completed the prison sentence imposed on him (see paragraph 12 above). The Court finds that when a person has spent such a substantial amount of his lifetime in preventive detention, special diligence is required from the authorities when deciding on the continuation of his or her detention, as the longer the detention continues, the more remote the link to the initial conviction and the decision to place him or her in an institution for mentally ill offenders becomes.", "67. The Court observes that domestic law requires that an expert opinion be obtained and an oral hearing held every second year (see paragraph 39 above). Those intervals have been respected during the three sets of proceedings in question when it comes to the oral hearings, but not as regards the expert opinions. The Court considers that the 2010/11 review proceedings were based on a sufficiently recent expert opinion, namely the opinion by Dr B. of 3 March 2010 (see paragraph 17 above) and were conducted with the necessary diligence. However, in the course of the 2011/12 review proceedings, when the law proscribed an expert opinion to be obtained, the applicant refused to be examined.", "It appears that domestic law does not provide an answer to the question whether this meant that in the following review period a new attempt had to be made to obtain an expert opinion. In the 2013 review proceedings, the Regional Court did not commission an expert, but based its decision to dismiss the applicant’s application for release on – among other things – Dr B.’s expert opinion of 2010, which was about three years old by that time. No new attempt to have the applicant examined was made. 68. The Court has previously found that when a person is unwilling to be examined by an expert, a medical expert’s assessment, on the basis of the case file, of the actual state of that person’s mental health must at least be sought.", "Otherwise it cannot be maintained that the person has reliably been shown to be of unsound mind, which in turn renders his or her further detention unlawful (see Varbanov, § 47, and Constancia (dec.), § 26, both cited above). In the instant case, it appears that in the 2011/12 and 2013 review proceedings this was not done, and no expert opinion was obtained at all, even though, under domestic law, this had been envisaged (see paragraph 39 above). The decisions by the Regional Court were taken on the basis of the old expert opinions as well as the statements obtained by the prison services and authorities. 69. In that context, the Court reiterates that special diligence is required from the authorities when deciding whether to continue the preventive detention of someone like the applicant, who has already spent such a substantial amount of time in an institution for mentally ill offenders.", "70. The Court is conscious that the applicant has not shown much willingness to cooperate with the domestic authorities in the review proceedings in question. He refused to undergo further therapy and also refused, in the course of the 2011/12 proceedings, to be examined by an expert. However, at the time of the 2011/12 review proceedings he had already spent some twenty-seven years in an institution for mentally ill offenders, and in previous expert opinions there had been at least indications that he had become less dangerous (see paragraphs 13-16 above). The Court reiterates that the purpose of obtaining an expert opinion would not only have been to reassess the applicant’s dangerousness, but also to obtain fresh proposals for initiating the necessary therapeutic treatment (see H.W.", "v. Germany, cited above, § 112). 71. The Court takes the view that, in line with domestic law (see paragraph 39 above), and with special regard to contradictions in the existing assessments (see paragraph 17 above) and to the obvious deadlock (see paragraph 64 above), the domestic courts in the 2011/12 review proceedings should have obtained an expert opinion based on the case file. As they did not do so, they should have attempted to obtain a new expert opinion proprio motu in the course of the 2013 review proceedings. Therefore, in the particular circumstances of the instant case, the Court is not convinced that the domestic courts had a sufficient factual basis at hand in the course of the 2011/12 and 2013 review proceedings to decide on the applicant’s requests for release.", "(iii) The complaint of a lack of relevant and sufficient reasons 72. In the light of the above findings, the Court does not consider it necessary to examine separately the applicant’s complaint that the domestic courts’ reasoning was not relevant and sufficient. (c) Conclusion 73. The applicant’s detention during the review periods in question was therefore not “lawful” for the purposes of sub-paragraph (a) or (e) of Article 5 § 1 of the Convention, on account of the domestic courts’ failure to examine the question of his transfer to the Vienna-Mittersteig Prison (see paragraph 65 above), and the lack of a sufficient factual basis in the 2011/12 and 2013 review proceedings to decide on the applicant’s applications for release (see paragraph 71 above). 74.", "There has accordingly been a violation of Article 5 § 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 75. The applicant complained under Article 5 § 4 of the Convention that the review proceedings in question (see paragraph 42 above) had not been conducted “speedily” as required by that provision, 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 76. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Submissions by the parties (a) The applicant’s arguments 77.", "The applicant asserted that the review proceedings in question had not been conducted with sufficient expediency. (b) The Government’s arguments 78. The Government referred to the Supreme Court’s case-law (see paragraph 33 above), reiterating that the requirement of an annual review in accordance with Article 25 § 3 of the Criminal Code has been complied with if proceedings are instituted within one year of the previous review decision. Where an appeal is lodged against the first-instance court’s decision, the beginning of the one-year period for the following periodic review will be the date of the second-instance decision. In addition, a detainee has the right to request his or her release at any time, which in that case would result in shorter review intervals.", "79. In the instant case, the applicant’s request of 20 August 2010 was thus the relevant date for the beginning of the 2010/11 review proceedings, which were terminated by the Court of Appeal’s final decision of 25 January 2011. The proceedings thus lasted around five months. 80. The proceedings instituted by the applicant’s request of 8 September 2011 were terminated by the Court of Appeal’s decision of 30 July 2012.", "They thus lasted for around ten months. 81. The proceedings instituted by the applicant’s request of 26 March 2013 were terminated by the Court of Appeal’s final decision of 19 July 2013. They thus lasted for around four months. 82.", "The Government concluded from the above that the review decisions had been taken speedily. The necessity of conducting an oral hearing or obtaining an expert opinion affected the duration of the proceedings. Under section 167(1) of the Execution of Sentences Act a detainee must be heard in person by the competent court at least once every two years. That legal requirement was fulfilled in the instant case, as the applicant was heard in person on 15 March 2010 during the 2009/10 review proceedings, and subsequently on 23 January 2012 in the course of the 2011/12 review proceedings. Equally, an expert opinion had been requested by the domestic courts every second year, namely during the same review proceedings in which oral hearings were held (2009/10 and 2011/12).", "83. The complexity of the instant case resulted from the fact that the applicant had not only refused to undergo the therapeutic treatment offered to him, but during the review proceedings had refused to be examined by the (external) court-appointed experts. Moreover, each time an independent expert opinion had been obtained, the Regional Court had had to forward the opinion to the public prosecutor’s office (securing the public interest in the proper administration of criminal justice and protection from potentially dangerous criminals), the head of the institution in charge of the enforcement of the detention, and the psychology staff for their comments. These comments in turn had had to be forwarded to the applicant to give him the possibility to submit his reply. Therefore, in the Government’s view, the requirement of a speedy decision had been complied with in the applicant’s case.", "2. The Court’s assessment (a) General principles 84. The applicable general principles have recently been summarised in Kuttner v. Austria (no. 7997/08, §§ 36-38, 16 July 2015) as follows: “36. The Court reiterates that Article 5 § 4 of the Convention proclaims the right to a speedy judicial decision concerning the lawfulness of detention, and to an order for release if it proved unlawful (see Baranowski v. Poland, no.", "28358/95, § 68, ECHR 2000‑III, and Kadirzhanov and Mamashev v. Russia, nos. 42351/13 and 47823/13, § 119, 17 July 2014). Whereas the Court has held above, that Article 5 § 4 is applicable in this case, it reiterates that Article 5 § 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention. However, where domestic law provides for an appeal, the appellate body must also comply with the requirements of Article 5 § 4, for instance as concerns the speediness of the review in appeal proceedings. Accordingly, in order to determine whether the requirement that a decision be given “speedily” has been complied with, it is necessary to effect an overall assessment where the proceedings have been conducted at more than one level of jurisdiction (see Mooren v. Germany [GC], no.", "11364/03, § 106, 9 July 2009). At the same time, the standard of “speediness” is less stringent when it comes to proceedings before an appellate court (see Lebedev v. Russia, no. 4493/04, § 96, 25 October 2007). 37. The question of whether periods comply with the requirement of “speediness” under Article 5 § 4 must be determined in the light of the circumstances of each case (see Sanchez-Reisse v. Switzerland, 21 October 1986, § 55, Series A no.", "107, Oldham v. the United Kingdom, no. 36273/97, § 31, ECHR 2000-X, and Rehbock v. Slovenia, no. 29462/95, § 84, ECHR 2000-XII). Although the amount of time taken by the relevant proceedings is obviously an important element, it is not necessarily in itself decisive for the question of whether a decision has been given with the requisite speed (see Merie v. the Netherlands (dec.), no. 664/05, 20 September 2007).", "What is taken into account is the diligence shown by the authorities, the delay attributable to the applicant, and any factors causing delay for which the State cannot be held responsible, such as the complexity of a case (see, mutatis mutandis, Jablonski v. Poland, no. 33492/96, §§ 91-94, 21 December 2000). The Court must also examine whether any new relevant factors that have arisen in the interval between periodic reviews have been assessed, without unreasonable delay, by a court having jurisdiction to decide whether or not the detention has become “unlawful” in the light of these new factors (see Abdulkhakov v. Russia, no. 14743/11, § 215, 2 October 2012). 38.", "The Court observes that it is not its task to attempt to rule on the maximum period of time between reviews which should automatically apply to a certain category of detainees (see Kadirzhanov and Mamashev v. Russia, cited above, § 130). The requirements of Article 5 § 4 as to what may be considered a “reasonable” interval in the context of periodic judicial review vary from one domain to another, depending on the type of deprivation of liberty in question (see, for a summary of the Court’s case‑law in the context of detention for the purposes set out in sub‑paragraphs (a), (c), (e) and (f) of Article 5 § 1, Abdulkhakov v. Russia, §§ 212-14, cited above). Long intervals in the context of automatic periodic review may give rise to a violation of Article 5 § 4 (see, among other authorities, Herczegfalvy v. Austria, 24 September 1992, § 77, Series A no. 244).” (b) Application of these principles to the present case 85. Looking at the intervals between the review proceedings, the Court notes that the 2011/12 review was initiated following the applicant’s application of 8 September 2011, hence less than eight months after the previous review decision by the Court of Appeal of 25 January 2011.", "The 2013 review period was initiated following the applicant’s application of 26 March 2013, also less than eight months after the previous decision by the Court of Appeal of 30 July 2012. The Court is therefore satisfied that the domestic courts met the deadlines in accordance with domestic case-law and initiated review proceedings on a yearly basis (see paragraph 33 above). 86. Next, the Court will examine the respective duration of the review proceedings in question. Taking as the starting point the date on which the applicant applied for release, and as the end point the final decision by the appellate court (see Sanchez-Reisse v. Switzerland, 21 October 1986, § 54, Series A no.", "107), the Court reiterates that in the yearly review proceedings of 2010/11 it took the domestic courts little more than five months to decide; in the review proceedings of 2011/12 it took them almost eleven months; and in the 2013 proceedings less than four months. In the course of the 2011/12 proceedings the Regional Court held two oral hearings and tried to obtain an expert opinion. In the review proceedings of 2010/11 and 2013 the courts neither held oral hearings nor sought an expert opinion, which explains the relatively short duration of those two sets of proceedings. 87. The Court considers that the duration of neither the 2010/11 review proceedings nor the 2013 review proceedings raises issues concerning the speediness of the domestic courts’ decisions (see Abdulkharov, cited above, § 212, with further references) and hence finds no violation of Article 5 § 4 of the Convention in that respect.", "88. The Court notes, however, that the duration of the 2011/12 review proceedings was considerably longer and therefore requires a more in-depth examination. After the applicant had lodged his application for release on 8 September 2011, the Regional Court took more than four and a half months before holding an oral hearing, namely until 23 January 2012. It is noted in that context that under domestic law, it was a legal requirement to hold an oral hearing in the course of those review proceedings (see paragraph 39 above). The Regional Court then appointed an expert to draw up an opinion.", "However, the applicant refused to be examined by the expert. The Regional Court therefore held another hearing and finally dismissed the applicant’s application for release on 23 April 2012. It is not evident from the documents at hand why the Regional Court did not decide more promptly on the applicant’s application, given that it was clear that it would not have to wait for a psychiatric expert opinion, and also given that the applicant had lodged his application in September of the previous year. The Court of Appeal did not dismiss the applicant’s appeal against that decision until 30 July 2012, more than four months later, giving barely any reasoning of its own, but referring largely to its decisions in previous review proceedings (see paragraph 26 above). There is therefore no indication from the documents at hand as to why the 2011/12 review period took almost eleven months.", "The Court takes the view that this duration cannot be explained by the complexity of the case or by the applicant’s conduct. The Government have not adduced any relevant arguments in that respect either. 89. The foregoing considerations are sufficient to enable the Court to conclude that the 2011/12 review proceedings were not conducted with the necessary expediency. There has accordingly been a violation of the “speediness” requirement under Article 5 § 4 of the Convention in respect of these proceedings.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 90. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the 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 91. The applicant claimed 29,200 euros (EUR) in respect of pecuniary damage, namely for loss of earnings he could have generated had he been released in 2010 and taken up his lawyer’s offer of employment.", "He further claimed non-pecuniary damages of EUR 32,000 in relation to the alleged violation of Article 5 § 1 of the Convention, and EUR 3,600 in relation to the alleged violation of Article 5 § 4 of the Convention. 92. The Government contested those claims. As regards the claim for non-pecuniary damage, it noted that the finding of a violation of a Convention right often constituted sufficient reparation in itself. Moreover, it could not be assumed that the outcome of the proceedings in question would have been any different had the domestic authorities or courts acted in conformity with the provisions of the Convention.", "Turning to the applicant’s claim for pecuniary damage, the Government submitted that there was no causal link between the damage claimed and the alleged violation of the Convention, in addition to the fact that the claim was not sufficiently detailed. 93. 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 applicant has suffered certain non-pecuniary damage, which is not sufficiently compensated for by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 3,000 under this head.", "B. Costs and expenses 94. The applicant also claimed EUR 3,155.16 for the costs and expenses incurred before the Court. 95. The Government considered these claims to be excessive.", "They argued that according to the General Remuneration Criteria (Allgemeine Honorarkriterien) of the Austrian Bar Association (Österreichische Rechtsanwaltskammer) read in conjunction with the Lawyers’ Remuneration Act (Rechtsanwaltstarifgesetz), the applicant could only claim EUR 650.30 for the proceedings before the Court. 96. 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 for the proceedings before it. As the applicant has not made a claim for the costs and expenses incurred in the domestic proceedings, no award is made under that head.", "C. Default interest 97. 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 have been violations of Article 5 § 1 of the Convention, as (i) in the review proceedings in question the courts failed to examine the question of the applicant’s transfer to the Vienna-Mittersteig Prison; and (ii) in the 2011/12 and 2013 review proceedings the domestic courts did not have a sufficient factual basis to decide on the applicant’s requests for release; 3.", "Holds that there has been no violation of Article 5 § 4 of the Convention in respect of the 2010/11 and 2013 review proceedings, and a violation of Article 5 § 4 of the Convention in respect of the 2011/12 review proceedings; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 20 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoAngelika NußbergerDeputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF BOLAT v. RUSSIA (Application no. 14139/03) 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 Bolat 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 14 September 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 14139/03) 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 Turkish national, Mr Hacı Bayram Bolat, on 14 April 2003. 2. The applicant was represented before the Court by Mr I. Kuchukov, a lawyer practising in Nalchik.", "The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicant complained, in particular, about a violation of his right to liberty of movement and the domestic authorities' failure to respect the procedural safeguards during his deportation from Russia. 4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court).", "Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5. By a decision of 8 July 2004, the Court declared the application partly admissible. 6. By letter of 1 September 2004, the Turkish Government informed the Court that they did not wish to exercise their right under Article 36 § 1 of the Convention to intervene in the proceedings.", "7. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1). 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 1974 and lives in Kapaklı, Turkey. 10.", "From 1998 to 2003 the applicant, an ethnic Kabardinian, lived in the Kabardino-Balkarian Republic of the Russian Federation on the basis of a long-term residence permit (vid na zhitelstvo). A. Extension of the residence permit 11. In early 2000 the applicant's residence permit was lost or stolen. On 22 February 2000 he asked the Passports and Visas Department of the Ministry of the Interior of the Kabardino-Balkarian Republic (passportno-vizovaya sluzhba MVD KBR) to replace the permit and to extend it until 5 August 2003.", "12. After a few months' delay the applicant was issued with a new residence permit valid until 9 July 2000. The shortened term of validity was explained by reference to a recommendation of the Federal Security Service of the Russian Federation, which considered a longer extension “inappropriate” because the circumstances surrounding the loss of the first permit had not been clear enough. 13. The applicant complained to a court.", "On 1 June 2000 the Nalchik Town Court allowed the applicant's complaint and ordered the Passports and Visas Department to extend his residence permit until 4 August 2003. B. The applicant found guilty of a violation of the residence regulations 14. On 7 June 2002 the applicant was fined for having breached the residence regulations. He did not contest the fine before a court.", "15. After 5 December 2002 the applicant's registered place of residence was a flat on Kulieva avenue in Nalchik. His residence registration at that address was valid until 4 August 2003. Department of the Interior No. 1 of Nalchik (Pervyi otdel vnutrennikh del g. Nalchika) placed a stamp to that effect in the applicant's residence permit.", "16. On 11 December 2002 the applicant was at a friend's flat in Furmanova street in Nalchik where he had stayed overnight. At 9 a.m. a man and a woman entered the flat. The woman introduced herself as a police inspector of Department of the Interior No. 2 of Nalchik; the man did not identify himself.", "The man and woman claimed that they were conducting a “check-up of identity documents”. The applicant's friend, Mr Kh., refused them entry to the flat, but they entered nevertheless. They proceeded to the room where the applicant was and asked him to produce identity documents. On seeing a different address in his residence permit, the woman asked the applicant why he did not live at home. The woman invited the applicant to come with them to the police station, which the applicant did.", "The applicant stayed at the station while a report was being drawn up. 17. On the same day Inspector A. drew up a report of an administrative offence and issued a decision to fine the applicant RUR 500 (approximately EUR 20) for “residing in Furmanova street without registering his place of stay” which was an offence under Article 18.8 of the Administrative Offences Code. Inspector A. asked the applicant to pay the fine on the spot. The applicant refused and complained to a court.", "18. On 24 December 2002 the Nalchik Town Court heard the applicant's complaint. The court reiterated that the Russian Constitution guaranteed to anyone who lawfully resided in its territory the freedom to move freely and choose his or her place of residence and stay and that that provision also applied to foreign nationals. The court took statements from the applicant, his friend Mr Kh. and another person who had been in the flat in Furmanova street on 11 December 2002; they all maintained that the applicant had paid a visit to his friend and had not been living in Mr Kh.", "'s flat. Furthermore, Ms Sh., the owner of the flat on Kulieva avenue, confirmed that she had made her flat available to the applicant for residential purposes and that he had been duly registered at her address. The Town Court came to the conclusion that no administrative offence had been committed and annulled the decision of 11 December 2002. The police lodged an appeal. 19.", "On 20 January 2003 the Supreme Court of the Kabardino-Balkarian Republic quashed the judgment of 24 December 2002 on procedural grounds and remitted the case for examination by a different formation. 20. On 26 February 2003 the Nalchik Town Court dismissed the applicant's complaint, finding as follows: “The administrative proceedings against [the applicant] were initiated, and a fine in the amount of 500 roubles was imposed on him, not only on the basis of the obvious fact, established by Inspector A., that [the applicant] had been outside his place of residence but also on the basis of the report drawn up by O. and Sh., district police officers of Department of the Interior No. 3 of Nalchik, on [the applicant's] residence in the Furmanova street flat from 20 November to 11 December 2002... [These police officers] gave statements as witnesses and stated that they had learnt from operational sources that a foreigner, named Bolat Haci-Bayram, was secretly living in Kh. 's flat... At the same time the complainant and the witnesses Mr Kh.", "and Ms Sh. failed to satisfy the court that [the applicant] had only stayed overnight at Kh. 's on the night of 10-11 December 2002 because of heavy frost outside and the need to avoid returning to a remote district of the town. In particular, Ms Sh. did not inform the court on what date she had visited [the applicant] on Kulieva avenue and how many days before the administrative offence report was drawn up he might have been staying at Mr Kh.'s...", "Besides, the court takes into account that the witnesses examined on behalf of the complainant are his relatives or friends and might have an interest in the outcome of the case. Additionally, the court has examined a report by [the police officer Kha.] which stated that during checks he could not verify the applicant's residence either at the old or at the new address.” 21. The applicant appealed against the judgment. In the grounds of appeal the applicant's lawyer alleged, in particular, that the fine had been imposed in the applicant's absence by a police officer who had not been competent to do so, that the report of an administrative offence had not been corroborated by any evidence and that the sanction had not been imposed in accordance with law.", "The lawyer also submitted that the first-instance court had erred in its assessment of statements by the police officers O. and Sh. who had denied that they had known the applicant, and that the court had admitted in evidence a report by the officer Kha. who had not been examined before or at the hearing. 22. On 19 March 2003 the Supreme Court of the Kabardino-Balkarian Republic upheld the judgment of 26 February 2003.", "It rejected the applicant's arguments that he had been unlawfully fined, on the ground that he had allegedly failed to raise these issues before the Town Court. The Supreme Court did not address the applicant's inability to question the officer Kha. Instead, it found that “on 30 November 2002 Mr Af., district inspector of the first department of the interior of Nalchik, reported to his superior that the flat on Kulieva avenue was empty”. The remainder of the Supreme Court's reasoning was similar to that of the Town Court. 23.", "On 31 March 2003 the applicant and his lawyer asked the Presidium of the Supreme Court of Kabardino-Balkaria to lodge an application for supervisory review. On 6 June 2003 the request was refused. C. Annulment of the applicant's residence permit 24. On 4 February 2003 the applicant applied by mail for an extension of his residence permit to 30 July 2007. On 6 March 2003 the Passports and Visas Department informed him that he had to apply for an extension in person.", "The applicant responded in writing that there was no such requirement in the domestic law. 25. On 29 May 2003 the town prosecutor of Nalchik sent a request to remedy a violation of Russian laws (predstavlenie ob ustranenii narushenii zakonov RF) to the head of the Passports and Visas Department. The prosecutor requested that the applicant's residence permit be annulled and that he be expelled because he had been found guilty of two administrative offences in the previous year. 26.", "On 30 May 2003 Inspector Sh. of the Passports and Visas Department annulled the applicant's residence permit on the ground of repeated violations of residence regulations in the Russian Federation. The order was approved by the Minister of the Interior of Kabardino-Balkaria. The applicant was ordered to leave Russia within fifteen days. 27.", "On 9 June 2003 the Nalchik Town Court stayed the execution of the order of 30 May 2003 pending the Supreme Court's decision on a request by the applicant for supervisory review. D. The applicant's deportation 28. On 7 August 2003 at about 10 a.m. several officers of the Ministry of the Interior and the Federal Security Service entered the applicant's flat on the Kulieva prospect. Some of them wore face masks. They did not identify themselves and they did not present any search or deportation warrant.", "The applicant was handcuffed and taken by car to Nalchik Airport where he was placed on a flight to Istanbul, Turkey. E. Quashing of certain judgments and decisions 29. On 8 October 2003 the Supreme Court of Kabardino-Balkaria, giving a ruling in the supervisory-review procedure, quashed the decision on an administrative offence of 11 December 2002 and the judgment of the Nalchik Town Court of 26 February 2003, finding that there had been no admissible evidence showing that the applicant had lived outside the place of his residence registration. It noted that the reports by police officers O. and Sh. had been based on hearsay and that officer Kha.", "'s report had not confirmed the applicant's residence in Furmanova street either. Furthermore, it pointed out that the Town Court's requirement of proof that the applicant had only been a guest in Furmanova street ran contrary to the presumption of innocence enunciated in Article 1.5 of the Administrative Offences Code. Finally, it noted that the administrative charge against the applicant had been examined by an officer of the police station having no territorial jurisdiction over Furmanova street and that this fact alone had rendered the sanction unlawful. The Supreme Court discontinued the administrative proceedings against the applicant. 30.", "On 28 October 2003 the Nalchik Town Court heard the applicant's complaint against the order of 30 May 2003 annulling his residence permit. The court noted that a residence permit could only be annulled in case of repeated violations of residence regulations, but that this provision was no longer applicable as the administrative proceedings against the applicant had been terminated by the decision of 8 October 2003. The court declared the order of 30 May 2003 void and ordered that the Passports and Visas Department extend the applicant's residence permit for five years, starting from 4 August 2003. The judgment was not appealed against and became enforceable on 10 November 2003. 31.", "In a separate set of proceedings, the applicant's representative attempted to bring criminal charges against the officials who had deported the applicant by force. On 25 August 2003 he complained to the Nalchik town prosecutor's office about the allegedly unlawful search at the applicant's home and his deportation to Turkey. On 30 August 2003 his complaint was rejected because no evidence of a criminal offence had been adduced. On 20 November 2003 the head of the investigations department of the Kabardino-Balkaria prosecutor's office annulled the decision of 30 August and remitted the complaint for additional investigation. On 3 December 2003 the Nalchik town prosecutor's office again refused to prefer criminal charges on the ground that no evidence of a criminal offence had been adduced.", "This decision was subsequently quashed, but on 11 December 2003 and 1 February 2004 further orders discontinuing criminal proceedings were issued. F. The applicant's attempt to return to Russia 32. On 9 April 2004 the Passports and Visas Department informed the applicant that it would extend his residence permit in implementation of the Town Court's judgment of 28 October 2003. The Department invited the applicant to appear in person in order to collect the permit. 33.", "On 6 July 2004 the applicant's representative, Mr Kuchukov, received the documents for extension of the applicant's residence permit and forwarded them to the applicant in Turkey. 34. At 6.30 p.m. on 23 August 2004 the applicant arrived in Nalchik on board a flight from Istanbul. On arrival he was detained by officers of the Border Control and the Federal Security Service and locked in an isolated room in the Nalchik airport building. The applicant was not allowed to consult his lawyer, Mr Kuchukov.", "35. On 23 and 24 August 2004 Mr Kuchukov sent complaints about the applicant's unlawful detention to prosecutor's offices of various levels, to the Border Control, to the Federal Security Service and to the Representative of the Russian Federation at the European Court of Human Rights. 36. At 10 a.m. on 25 August 2004 Mr Kuchukov asked Major D., the head of the Border Control, to see the applicant. His request was refused by reference to an order of the Federal Security Service.", "Major D. then called Captain G. from the Kabardino-Balkaria Department of the Federal Security Service who confirmed that the applicant's contacts with lawyers had indeed been banned. 37. At 1.10 p.m. on 25 August 2004 the applicant was put on a scheduled flight to Turkey. It can be seen from the “deportation record” of the same date, drawn up on the letterhead of the Nalchik airport border control point of the Federal Security Service, that the applicant was deported for having been in breach of section 27 § 1 of the Law on the Procedure for Entering and Leaving the Russian Federation. 38.", "According to the Government, the ban on the applicant's re-entry into Russia was imposed by the Federal Security Service some time in December 2002 on the basis of Section 25.10 of the Law on the Procedure for Entering and Leaving the Russian Federation. The Government claimed that they could not produce a copy of that decision because it contained “State secrets”. They submitted, however, that the Prosecutor-General's Office had found no reason to challenge that decision before a court as it had been issued in accordance with the requirements of the above law. 39. In response to the applicant's lawyer's complaints, on 26 August 2004 a senior investigator with the military prosecutor's office of the Border Control of the Federal Security Service refused to initiate a criminal investigation into the applicant's deprivation of liberty at Nalchik Airport.", "He found that the ban had been imposed by Directorate “I” of the Federal Security Service and that the applicant had awaited the next flight to Turkey in the international zone of Nalchik Airport under the surveillance of the Border Control officers. The room had been equipped with a toilet, ventilation, lighting, a TV set, a bench and a chair. As the Border Control officials had acted in accordance with the applicable regulations, the applicant's stay in the transit area could not be interpreted as a “deprivation of liberty”. 40. The Government indicated that the Federal Security Service was examining the issue of annulment of the applicant's residence permit in accordance with section 9 (1) of the Foreign Nationals Law.", "II. RELEVANT DOMESTIC LAW A. Constitutional guarantees 41. Everyone lawfully within the territory of the Russian Federation shall have the right to move freely and choose his or her place of stay or residence (Article 27 of the Russian Constitution). Foreign nationals in the Russian Federation shall have the same rights and obligations as Russian nationals subject to exceptions set out in a federal law or an international treaty to which Russia is a party (Article 62 § 3).", "B. Residence regulations applicable to foreign nationals 42. A foreign national must register his or her residence within three days of his or her arrival in Russia (section 20 § 1 of the Law on Legal Status of Foreign Nationals in the Russian Federation, no. 115-FZ of 25 July 2002 – “the Foreign Nationals Law”). Foreign nationals must obtain residence registration at the address where they stay in the Russian Federation. Should their address change, such change is to be re-registered with the police within three days (section 21 § 3).", "C. Penalties for violations of the residence regulations and the procedure for determination of an administrative charge 43. A foreign national who violates the residence regulations of the Russian Federation, including by non-compliance with the established procedure for residence registration or choice of a place of residence, shall be liable to an administrative fine of RUR 500 to 1000 and possible expulsion from Russia (Article 18.8 of the Administrative Offences Code). A report of the offence described in Article 18.8 may be drawn up by officials of the State migration authorities (Article 28.3 § 2 (15)). This report must be forwarded within one day to a judge or an officer competent to adjudicate administrative matters (Article 28.8). The determination of an administrative charge that may result in expulsion from Russia shall be made by a judge of a court of general jurisdiction (Article 23.1 § 3).", "A right of appeal against a decision on an administrative offence lies to a court or to a higher court (Article 30.1 § 1). 44. A residence permit may be annulled if a foreign national has been charged two or more times within the last year with violations of residence regulations (section 9 (7) of the Foreign Nationals Law). D. Residence permits for foreign nationals 45. A foreign national's residence permit shall be issued for five years.", "Upon expiry it may be extended for a further five years at the holder's request. The number of extensions is not limited (section 8 (3) of the Foreign Nationals Law). 46. A residence permit may be annulled, particularly if the foreign national advocates a violent change of the constitutional foundations of the Russian Federation or otherwise creates a threat to security of the Russian Federation or its citizens (section 9 (1) of the Foreign Nationals Law). E. Expulsion from, or refusal of entry into, the Russian Federation 47.", "Administrative expulsion of a foreign national from the Russian Federation must be ordered by a judge (Articles 3.10 § 2 and 23.1 § 3 of the Administrative Offences Code). 48. A foreign national may be refused entry into the Russian Federation if such refusal is necessary for the purpose of ensuring the defensive capacity or security of the State, or for the protection of public order or public health (section 27 § 1(1) of the Law on the Procedure for Entering and Leaving the Russian Federation, no. 114-FZ of 15 August 1996). 49.", "On 10 January 2003 the Law on the Procedure for Entering and Leaving the Russian Federation was amended. In particular, a new section 25.10 was added. It provided that a competent authority, such as the Ministry of Foreign Affairs or the Federal Security Service, could issue a decision that a foreign national's presence on Russian territory was undesirable, even if his or her presence was lawful, if it created a real threat to the defensive capacity or security of the State, to public order or health, etc. If such a decision was made, the foreign national had to leave Russia or else be deported. That decision also formed the legal basis for subsequent refusal of re-entry into Russia.", "III. RELEVANT COUNCIL OF EUROPE DOCUMENTS A. System of residence registration in Russia 50. Resolution 1277 (2002) on honouring of obligations and commitments by the Russian Federation, adopted by the Parliamentary Assembly of the Council of Europe on 23 April 2002, noted in the relevant part as follows: “8. However, the Assembly is concerned about a number of obligations and major commitments with which progress remains insufficient, and the honouring of which requires further action by the Russian authorities: ... xii.", "whilst noting that the Russian federal authorities have achieved notable progress in abolishing the remains of the old propiska (internal registration) system, the Assembly regrets that restrictive registration requirements continue to be enforced, often in a discriminatory manner, against ethnic minorities. Therefore, the Assembly reiterates its call made in Recommendation 1544 (2001), in which it urged member states concerned 'to undertake a thorough review of national laws and policies with a view to eliminating any provisions which might impede the right to freedom of movement and choice of place of residence within internal borders'...” B. Explanatory Report to Protocol No. 7 (ETS No. 117) 51. The Explanatory Report defines the scope of application of Article 1 of Protocol No.", "7 in the following manner: “9. The word 'resident' is intended to exclude from the application of the article any alien who has arrived at a port or other point of entry but has not yet passed through the immigration control or who has been admitted to the territory for the purpose only of transit or for a limited period for a non-residential purpose... The word lawfully refers to the domestic law of the State concerned. It is therefore for domestic law to determine the conditions which must be fulfilled for a person's presence in the territory to be considered 'lawful'. [A]n alien whose admission and stay were subject to certain conditions, for example a fixed period, and who no longer complies with these conditions cannot be regarded as being still 'lawfully' present.” 52.", "The Report further cites definitions of the notion of “lawful residence” contained in other international instruments: Article 11 of the European Convention on Social and Medical Assistance (1953) “a. Residence by an alien in the territory of any of the Contracting Parties shall be considered lawful within the meaning of this Convention so long as there is in force in his case a permit or such other permission as is required by the laws and regulations of the country concerned to reside therein... b. Lawful residence shall become unlawful from the date of any deportation order made out against the person concerned, unless a stay of execution is granted.” Section II of the Protocol to the European Convention on Establishment (1955) “a. Regulations governing the admission, residence and movement of aliens and also their right to engage in gainful occupations shall be unaffected by this Convention insofar as they are not inconsistent with it; b. Nationals of a Contracting Party shall be considered as lawfully residing in the territory of another Party if they have conformed to the said regulations.” 53. The Report clarifies the notion of “expulsion” as follows: “10. The concept of expulsion is used in a generic sense as meaning any measure compelling the departure of an alien from the territory but does not include extradition.", "Expulsion in this sense is an autonomous concept which is independent of any definition contained in domestic legislation. Nevertheless, for the reasons explained in paragraph 9 above, it does not apply to the refoulement of aliens who have entered the territory unlawfully, unless their position has been subsequently regularised. 11 . Paragraph 1 of this article provides first that the person concerned may be expelled only 'in pursuance of a decision reached in accordance with law'. No exceptions may be made to this rule.", "However, again, 'law' refers to the domestic law of the State concerned. The decision must therefore be taken by the competent authority in accordance with the provisions of substantive law and with the relevant procedural rules.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 4 54. The applicant alleged a violation of his right to liberty of movement under Article 2 of Protocol No.", "4, which provides as follows: “1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. ... 3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4.", "The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.” A. The Government's objection to the applicant's status as a “victim” of the alleged violation 55. The Government claimed that the applicant was no longer a “victim” of the alleged violation because the Passports and Visas Department had apologised to him and issued him with a new residence permit. On 6 July 2004 the permit had been handed over to the applicant's representative. The Government maintained that on 23 August 2004 the applicant had been refused entry into Russia on grounds that fell outside the scope of the Town Court's judgment of 28 October 2003.", "His admission had been refused on the basis of Article 55 of the Russian Constitution with a view to protecting constitutional principles, public morals and health, the rights and lawful interests of others, and ensuring the defence and security of the State. 56. The applicant pointed out that on 23 August 2004 he had not been allowed to enter Russia despite having been in possession of a valid residence permit issued by the Russian authorities. When the Federal Security Service issued a decision in December 2002 banning his re-entry into Russia, the ground for that decision must have been the breach of residence regulations he had allegedly committed on 11 December 2002. However, after the Town and Supreme Courts determined that that breach had never occurred and ordered that the Passports and Visas Department issue him with a residence permit, there had been no lawful basis for his detention at Nalchik Airport and deportation from Russia in August 2004.", "The applicant considered that the developments in the case should be considered in their entirety, for his deportation in August 2004 had been a consequence of previous violations of his rights. 57. The Court reiterates that an applicant will only cease to have standing as a victim within the meaning of Article 34 if the national authorities have acknowledged the alleged violations either expressly or in substance and then afforded redress (see Guisset v. France, no. 33933/96, §§ 66-67, ECHR 2000-IX). A decision or measure favourable to the applicant is in principle not sufficient to deprive him of his status as a “victim” in the absence of such acknowledgement and redress (see Constantinescu v. Romania, no.", "28871/95, § 40, ECHR 2000-VIII). 58. In its decision as to the admissibility of the present application of 8 July 2004, the Court noted the Supreme Court's acknowledgement of the fact that the decision of 11 November 2002, by which the applicant had been fined for a breach of residence regulations, had lacked a sufficient evidentiary basis and had also been procedurally defective (see paragraph 29 above). The Court was not satisfied, however, that the applicant had been afforded adequate redress for the acknowledged violation of his right to liberty of movement. In particular, no compensation had been awarded and his residence permit had not been extended and made available to him.", "In those circumstances, the Court dismissed the Government's challenge to the applicant's status as a “victim” of the alleged violations. 59. Since the admissibility decision was given, the situation has evolved. The Town Court acknowledged that the decision annulling the applicant's residence permit had been unlawful and the domestic authorities issued the applicant with a new permit valid for five years (see paragraphs 30 and 32-33 above). That permit would normally have been sufficient for the applicant to return to Russia and to continue his lawful residence on its territory.", "That did not happen, however, because in August 2004 the Border Control prevented the applicant from crossing the Russian border and put him on the next outbound flight. 60. The Government invited the Court to consider that there existed two distinct grounds for the applicant's exclusion from Russia. The first ground was his alleged violation(s) of the regulations on residence registration, which ultimately led to the annulment of his residence permit. As regards that ground, the domestic authorities had done their utmost to have the consequences of an unlawful interference effaced: they had quashed the unlawful decisions and supplied the applicant with a new residence permit.", "The second ground was the decision by the Federal Security Service to ban the applicant from re-entering Russia because he posed a threat to the defensive capacity and security of the State. On the basis of that decision the applicant had been forbidden from crossing the Russian border in August 2004. 61. The Court is not convinced by the distinction drawn by the Government. Firstly, it is impossible to establish the factual grounds on which the Federal Security Service's decision was founded because the Government have refused to provide a copy of it, citing security considerations (see paragraph 38 above).", "They have not furnished any information concerning the factual grounds for the decision. Secondly, as regards the legal grounds, the Court considers it anomalous that the decision of December 2002 should have been founded on a legal provision (section 25.10) that only became effective in January 2003 (see paragraphs 38 and 49 above). Thirdly, the exact date of the decision has not been indicated and no explanation has been given as to why its existence was mentioned for the first time on 25 October 2004, in the Government's observations on the merits, almost two years after it had allegedly been issued. No reference to that decision was made in the domestic proceedings concerning the applicant's deportation on 7 August 2003 or in the “deportation record” of 25 August 2004. It has never been notified to the applicant or his representative.", "In these circumstances, the Court considers that the accuracy of the Government's submissions, in so far as they sought to rely on that decision by the Federal Security Service, is open to doubt. Even assuming that the decision of December 2002 did exist, the Government's refusal to furnish a copy of it prevents the Court from formulating its own conclusions regarding its contents. The applicant's contention that the grounds for that decision were the same as those on which his residence permit had been revoked might appear plausible. The Court will therefore assume that the refusal of entry to the applicant in August 2004 was connected with the preceding events and was relevant for the determination of his status as a “victim” of the alleged violation. 62.", "The Court points out that the applicant's residence permit was withdrawn as a penalty for a second violation of the residence regulations (see paragraph 26 above). There is no indication that the applicant was ever suspected or convicted of any other offence, whether criminal or administrative. As noted above, it appears probable that the decision of the Federal Security Service barring the applicant's re-entry into Russia might have been issued in connection with his repeated failure to abide by the residence regulations. Although the domestic courts subsequently established that the applicant had not committed the administrative offence imputed to him and the residence permit was re-issued, the decision by the Federal Security Service was never revoked. On the contrary, the Government stated, in their submissions, that the possibility of revoking the residence permit on the basis of that decision was being examined (see paragraph 40 above).", "As a consequence, the legal obstacles to the applicant's lawful residence have not been removed, which has rendered the implementation of his right to liberty of movement merely theoretical rather than practical and effective as required by the Convention (see Artico v. Italy, judgment of 13 May 1980, Series A no. 37, § 33). 63. Accordingly, the Court finds that the negative consequences stemming from the original violation of the applicant's right to liberty of movement have not been redressed. In these circumstances, even though the Russian authorities have acknowledged the violation, having regard to the absence of adequate redress the Court is unable to conclude that the applicant has lost his status a “victim” within the meaning of Article 34 of the Convention.", "The Government's objection is dismissed. B. Existence of an interference 64. The applicant claimed that, by imposing a fine on him for having stayed overnight at his friend's flat, the domestic authorities had interfered with his right to liberty of movement and freedom to choose his residence. 65.", "The Court reiterates that in a recent case the requirement to report to the police every time the applicants wished to change their place of residence or visit family friends was found to disclose an interference with their right to liberty of movement (see Denizci and Others v. Cyprus, nos. 25316-25321/94 and 27207/95, §§ 346-47 and 403-04, ECHR 2001‑V). 66. In the present case the applicant was required by law to have a change of his place of residence registered by the police within three days of the move (see paragraph 42 above). A failure to do so exposed him to administrative sanctions, such as the one imposed on him on 11 December 2002 after a police inspector had discovered him staying outside his registered place of residence.", "Accordingly, the Court considers that there has been an interference with the applicant's right to liberty of movement under Article 2 of Protocol No. 4. C. Justification for the interference 67. The Court has next to determine whether the interference complained about was justified. In this connection it observes that the Parliamentary Assembly of the Council of Europe expressed concern over the existing restrictive system of residence registration in Russia (see paragraph 50 above).", "It reiterates, however, that it is not the Court's task to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied in a particular case gave rise to a violation (see Hauschildt v. Denmark, judgment of 24 May 1989, Series A no. 154, § 45). Accordingly, in the present case the Court has to ascertain whether the interference with the applicant's right to liberty of movement was “in accordance with the law”, pursued one or more of the legitimate aims set out in paragraph 3 of Article 2 of Protocol No. 4 and was “necessary in a democratic society” or, where it applies to particular areas only, was “justified by the public interest in a democratic society” as established in paragraph 4 (see Timishev v. Russia, nos. 55762/00 and 55974/00, § 45, ECHR 2005‑...).", "68. In their observations on the admissibility and merits, the Government, referring to the findings of an inquiry carried out by the Prosecutor-General's Office, accepted that there had been a violation of the applicant's rights under Article 2 § 1 of Protocol No. 4. 69. The Court observes that the Supreme Court, using an extraordinary remedy, quashed the contested administrative decision of 11 December 2002 and the subsequent judgments on the grounds that the matter had been examined by a police officer acting in excess of his powers and that the courts had shifted the burden of proof onto the applicant in breach of the principle of the presumption of innocence.", "It has thus been acknowledged that the impugned measure 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). 70. There has therefore been a violation of Article 2 of Protocol No.", "4. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 7 71. The applicant complained that he had been deported by force from Russia and that his deportation had not been accompanied by the procedural safeguards required under Article 1 of Protocol No.", "7: “1. An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed: (a) to submit reasons against his expulsion, (b) to have his case reviewed, and (c) to be represented for these purposes before the competent authority or a person or persons designated by that authority. 2. An alien may be expelled before the exercise of his rights under paragraph 1 (a), (b) and (c) of this Article, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security.” 72. In their observations on the admissibility and merits, the Government accepted that there had been a violation of Article 1 of Protocol No.", "7 in that the applicant's expulsion had not complied with the procedural requirements and that it had not been necessary. 73. In their observations following the Court's admissibility decision of 8 July 2004, the Government submitted that the applicant had not exhausted domestic remedies. Firstly, he had not challenged before a court the investigator's decision of 1 February 2004 refusing to open a criminal investigation into the actions of the police officers during the applicant's deportation. Secondly, he had not lodged a civil claim for damages on the basis of the Town Court's judgment of 28 October 2003 ruling that the actions of the Passports and Visas Department had been unlawful.", "A. The Government's preliminary objection as to the exhaustion of domestic remedies 74. 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 (see Prokopovich v. Russia, no. 58255/00, § 29, ECHR 2004‑..., with further references). In the present case both the judgment of 28 October 2003 and the decision of 1 February 2004 had been delivered before the Court's decision as to the admissibility of the application was made on 8 July 2004.", "At the admissibility stage the Government did not raise any objection concerning the exhaustion of the domestic remedies. Nor did the Government point to any exceptional circumstances which would have absolved them from the obligation to raise their objection or prevented them from raising it in good time. 75. Consequently, the Government are estopped from raising a preliminary objection of non-exhaustion of domestic remedies at the present stage of the proceedings (see Prokopovich, cited above, § 30). The Government's objection must therefore be dismissed.", "B. Applicability of Article 1 of Protocol No. 7 76. The scope of application of Article 1 of Protocol No. 7 extends to aliens “lawfully resident” in the territory of the State in question. In a case of two persons who had arrived in Sweden on one-day tourist visas and unsuccessfully sought political asylum there, the Commission expressed the view that “an alien whose visa or residence permit has expired cannot, at least normally, be regarded as being 'lawfully resident' in the country” (see Voulfovitch and Oulianova v. Sweden, no.", "19373/92, Commission decision of 13 January 1993). It is therefore necessary to ascertain that the applicant was lawfully resident in Russia at the time of his deportation. 77. The Court notes the definitions of the notion of “lawful residence” contained in the Explanatory Report to Protocol No. 7 and other international instruments (see paragraphs 51 and 52 above).", "It observes that, by contrast with Mr Voulfovitch and Ms Oulianova in the above-mentioned case, who had had no legitimate expectation that they would be permitted to stay once their asylum application had been turned down, the applicant in the present case had been lawfully admitted onto Russian territory for residence purposes. He was issued with a residence permit, which was subsequently extended, pursuant to a judicial decision in his favour (see paragraphs 10 et seq. above). He was eligible for further extensions of the residence permit for five years (see paragraph 45 above). The applicant had applied for an extension before the expiry of his valid residence permit but his application was not processed under various formal pretexts (see paragraph 24 above).", "78. Although the Ministry of the Interior had annulled the applicant's residence permit on 30 May 2003, implementation of the order was suspended by the Town Court pending a review of the lawfulness of that measure. Having regard to the fact that on 7 August 2003 the suspensive effect of the measure was still in force, the Court is unable to find that the applicant was not lawfully resident in Russia on that date. Nor did the Government claim that the applicant's residence was unlawful. It follows that the applicant was “lawfully resident” in the Russian Federation at the material time.", "79. The Court further emphasises that the notion of “expulsion” is an autonomous concept which is independent of any definition contained in domestic legislation. With the exception of extradition, any measure compelling the alien's departure from the territory where he was lawfully resident, constitutes “expulsion” for the purposes of Article 1 of Protocol No. 7 (see point 10 of the Explanatory Report, cited in paragraph 53 above). There is no doubt that by removing the applicant from his home and placing him on board an aircraft bound for Turkey, the domestic authorities expelled him from Russia.", "80. In the light of the above considerations, the Court finds that Article 1 of Protocol No. 7 was applicable in the present case. C. Compliance with Article 1 of Protocol No. 7 81.", "The Court reiterates that the High Contracting Parties have a discretionary power to decide whether to expel an alien present in their territory but this power must be exercised in such a way as not to infringe the rights under the Convention of the person concerned (see Agee v. the United Kingdom, no. 7729/76, Commission decision of 17 December 1976, Decisions and Reports 7, p. 164). Paragraph 1 of this Article establishes as the basic guarantee that the person concerned may be expelled only “in pursuance of a decision reached in accordance with law”. No exceptions to this rule may be made. According to the Explanatory Report to Protocol No.", "7, the term “law” here again refers to the domestic law of the State concerned. The decision must therefore be taken by the competent authority in accordance with the provisions of substantive law and with the relevant procedural rules (point 11). 82. The Court notes that Russian law requires a judicial decision for expulsion of a foreign national (see paragraph 47 above). However, in the present case no judicial order for the applicant's expulsion was issued.", "The Government did not point to any legal provisions that would permit a person's explusion in the absence of a judicial decision. It follows that there has been no “decision reached in accordance with law” which is the sine qua non condition for compliance with Article 1 of Protocol No. 7. Indeed, the applicant was expelled at the time when his complaint about the annulment of his residence permit was being reviewed and the interim measure indicated by the Town Court for the period necessary for the review was effective. 83.", "There has been therefore a violation of Article 1 of Protocol No. 7. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 84. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 85. The applicant claimed 50,000 euros (EUR) in respect of compensation for non-pecuniary damage. 86. The Government considered that amount excessive. 87.", "The Court considers that the applicant has suffered non-pecuniary damage, resulting from the actions and decisions of the domestic authorities that have been found to be incompatible with the Convention and its Protocols, which is not sufficiently compensated by the finding of a violation. However, it considers that the amount claimed by the applicant is excessive. Making its assessment on an equitable basis, the Court awards the applicant EUR 8,000 under this head, plus any tax that may be chargeable on that amount. B. Costs and expenses 88.", "The applicant did not claim any costs and expenses and, accordingly, there is no call to award him anything under this head. C. Default interest 89. 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 2 of Protocol No.", "4; 2. Holds that there has been a violation of Article 1 of Protocol No. 7; 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 8,000 (eight 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 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 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FIRST SECTION CASE OF RADANOVIĆ v. CROATIA (Application no. 9056/02) JUDGMENT STRASBOURG 21 December 2006 FINAL 21/03/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Radanović v. Croatia, 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 30 November 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 9056/02) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian and Canadian national, Mrs Seka Radanović (“the applicant”), on 14 December 2001. 2. The applicant, who had been granted legal aid, was represented by Mr T. Vukičević, a lawyer practising in Split.", "The Croatian Government (“the Government”) were represented by their Agents, first Mrs L. Lukina-Karajković and subsequently Mrs Š. Stažnik. 3. The applicant alleged that her rights to property and to an effective remedy had been violated. She relied on Article 1 of Protocol No. 1 to the Convention and Article 13 thereof.", "4. By a decision of 19 May 2005 the Court declared the application admissible. 5. The applicant and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1939 in Croatia. She currently lives in Burlington, Canada. 7. The applicant is the owner of a flat in Karlovac where she lived until October 1991, when she left for Germany to join her son.", "Later on both of them went to Canada. 8. On 27 September 1995 the Temporary Takeover and Managing of Certain Property Act (“the Takeover Act”) entered into force. It provided that property belonging to persons who had left Croatia after 17 October 1990 was to be taken into the care of, and controlled, by the State. It also authorised local authorities (takeover commissions) to temporarily accommodate other persons in such property.", "9. After realising that her flat had been occupied by third persons, on 24 September 1996 the applicant brought a civil action against a certain family U. in the Karlovac Municipal Court (Općinski sud u Karlovcu) seeking their eviction. 10. On 27 September 1996 the Commission for Temporary Takeover and Use of Property of the Municipality of Karlovac (Komisija za privremeno preuzimanje i korištenje imovine Općine Karlovac – “the Takeover Commission”) issued a decision authorising a certain M.V. to use the applicant's flat temporarily.", "11. On 16 November 1996 the Municipal Court invited the applicant to designate the proper respondent. On 31 November 1996 the applicant did so by designating M.V. as the respondent. 12.", "On 13 June 1997 the respondent submitted to the Municipal Court the decision of the Takeover Commission. 13. In June 1998 Parliament adopted the Programme for the Return of Refugees and Displaced Persons (“the Programme for Return”), regulating the principles for their return and repossession of their property. 14. In August 1998 the Act on Termination of the Takeover Act (“the Termination Act”) entered into force.", "It incorporated and gave legal force to the provisions of the Programme for Return providing that those persons, whose property had during their absence from Croatia been given for accommodation of others, had to apply for repossession of their property with the competent local authorities – the housing commissions. 15. At the hearing held on 15 September 1999 the court enquired with the Housing Commission of the Municipality of Karlovac (Stambena Komisija Karlovac – “the Housing Commission”) whether it had set aside the Takeover Commission's decision of 27 September 1996. On 22 February 2000 the Housing Commission replied to the court in the negative. 16.", "On 10 March 2000 the Municipal Court declared the applicant's action inadmissible for lack of jurisdiction. The court found that the Termination Act was lex specialis in relation to the Act on Ownership and Other Rights In Rem (“the Property Act”). Accordingly, instead of bringing a civil action the applicant should have applied for repossession of her property to the competent housing commission, as provided by the Termination Act. 17. As neither party appealed against the decision, it became final on 31 March 2000.", "On the same day the applicant applied for repossession of her property to the Housing Commission. 18. On 16 October 2000 the Housing Commission decided to set aside the Takeover Commission's decision by which M.V. had obtained the right to use the applicant's property. It also ordered M.V.", "to vacate the flat within 15 days. M.V. unsuccessfully appealed against that decision to the Karlovac Municipal Court. 19. On 4 June 2001 the Housing Commission issued a warrant ordering M.V.", "to vacate the flat within 15 days following the receipt of the warrant and indicated that otherwise it would bring a civil action against him in the competent municipal court. 20. M.V. failed to comply with that warrant. However, the Housing Commission brought no action against him.", "21. On 1 October 2002 the Amendments to the Act on Areas of Special State Concern (“the 2002 Amendments”) entered into force. They transferred the jurisdiction in the matter from the housing commissions (which were abolished) to the Ministry of Public Works, Reconstruction and Construction (Ministarstvo za javne radove, obnovu i graditeljstvo – “the Ministry”). 22. On 21 February 2003 the Ministry invited the applicant to contact its competent regional office in order to repossess her flat and/or receive compensation for the prolonged inability to use it, in accordance with the 2002 Amendments.", "23. One day later the Ministry issued a decision by which it established that M.V. had a right to housing which was to be satisfied by providing him with construction material, in line with the 2002 Amendments. Pursuant to that decision M.V. was obliged to vacate the flat within 90 days of the final shipment of the construction material.", "The date on which M.V. received the final shipment is unknown. 24. On 2 April 2003 the applicant contacted the Ministry and requested compensation. She also reiterated her request for repossession.", "25. On 23 June 2003 the Ministry made an offer for a settlement according to which the State was to pay compensation to the applicant. However, the applicant declined the offer as unsatisfactory. She submitted that the amount of compensation offered had covered only the period from 1 November 2002 onwards. Moreover, the compensation had amounted to only 314 Croatian kunas (HRK) per month while the amount of the rent for the flat of that size (45 m²) should have been assessed at HRK 2,500.", "26. In December 2003 M.V. delivered the flat to the Ministry and the applicant repossessed it on 13 January 2004. She submitted that the flat had been looted and rendered uninhabitable. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. The relevant legislation 1. The Takeover Act 27. The Takeover Act (Zakon o privremenom preuzimanju i upravljanju određenom imovinom, Official Gazette nos. 73/1995 and 7/1996) in its relevant part provided as follows: Section 2(2) provided that property belonging to persons who had left Croatia after 17 October 1990, was to be taken into the care of, and controlled, by the State.", "Section 5, inter alia, authorised the takeover commissions to entrust the property under Section 2 for temporary use by refugees, displaced persons or persons whose property had been destroyed in the war. Section 7 obliged temporary occupants to use the property with the care of a prudent administrator (bonus paterfamilias) and prohibited them from selling it or from creating any charges on such property. 2. The Property Act 28. The Property Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette nos.", "91/1996, 73/2000 and 114/2001) in its relevant part provides as follows: Section 161(1) entitles the owner of property to recover it from anyone who possesses it. Section 163(1) provides that the possessor may refuse to deliver the property to its owner if he is entitled to retain possession of it (i.e. if he has a right of possession). Section 164(1) provides that a bona fide possessor, who is not actually entitled to possess the property, must deliver it to its owner but is not obliged to compensate the owner for its use, the benefit derived from it, or the damage resulting from its loss or deterioration. 3.", "The Programme for Return and the Termination Act 29. Section 9 of the Programme for Return (Program povratka i zbrinjavanja prognanika, izbjeglica i raseljenih osoba, Official Gazette no. 92/1998) provided as follows: “Persons with Croatian [citizenship] documents who are owners of property in Croatia in which other persons are temporarily accommodated may apply to the municipal housing commission and seek repossession of their property. The commission shall inform the owner within five days about the status of his property. Relying on proof of ownership, the commission shall set aside any previous decision allowing the temporary accommodation of other persons and order the temporary occupant to vacate the premises.", "The commission shall serve a written decision on the owner and on the temporary occupant within seven days. The decision shall contain a time-limit for eviction and an offer of alternative accommodation for the temporary occupant in a house or flat under state ownership. ... If a temporary occupant fails to vacate the premises within the fixed time-limit, the commission shall institute eviction proceedings in the competent municipal court within seven days. The court shall apply the provisions concerning summary procedure in civil matters.", "The court's decision shall be immediately enforceable. An appeal shall not interfere with the enforcement proceedings or the repossession of the property by the owner.” Section 2(3) and 2(4) of the Termination Act (Zakon o prestanku važenja Zakona o privremenom preuzimanju i upravljanu određenom imovinom, Official Gazette no. 101/1998) provided that the Programme for Return applied to proceedings concerning the temporary use, management and control of the property of persons who had left Croatia and that such proceedings were to be conducted by housing commissions in the first instance and by municipal courts in the second instance. They were required to apply the Administrative Procedure Act. 4.", "The Act on Areas of Special State Concern and related subordinate legislation 30. Sections 8, 9 and 17 of the Act on Areas of Special State Concern (Zakon o područjima od posebne državne skrbi, Official Gazette nos. 44/1996, 57/1996 (errata), 124/1997, 73/2000, 87/2000 (errata), 69/2001, 94/2001, 88/2002, 26/2003 (consolidated text), 42/2005), as amended by the 2002 Amendments, provide that a temporary occupant has a right to housing. Section 18(1) provides that a temporary occupant whose right to housing is to be satisfied by providing him with construction material, must vacate the house or flat entrusted for his temporary use within 90 days of the final shipment of such material. Section 18(2) provides that if a temporary occupant fails to observe the above time-limit, the State Attorney will, within the 15 days following the expiry of the time-limit, institute civil proceedings for his eviction.", "Section 18(5) provides that, regardless of whether the State Attorney has brought a civil action for eviction, the owner has an independent right to bring such an action for the protection of his ownership. Section 27 provides that the Ministry shall pay compensation for the damage sustained by an owner who applied for repossession of his or her property prior to 30 October 2002 but to whom the property was not returned by that date. 31. The Decision on the Level of Compensation Due to Owners for Damage Sustained (Odluka o visini naknade vlasnicima za pretrpljenu štetu, Official Gazette no. 68/2003) establishes the amount of that compensation at seven Croatian kunas (HRK) per square metre.", "B. The Supreme Court's practice 32. In a series of decisions (for example, in cases nos. Rev-291/1999-2 of 11 September 2002, Rev-1157/02-2 of 21 November 2002 and Rev‑1289/00-02 of 6 November 2003), starting with decision no. Rev‑574/02-2 of 23 April 2002 the Supreme Court interpreted the relationship between the Property Act and the Termination Act as follows: “The jurisdiction to decide on an owner's application for repossession conferred on the administrative authorities under the Termination Act does not exclude ordinary court jurisdiction in such matters under the Property Act.", "Therefore, a civil action for repossession, based on section 161(1) of the Property Act and brought in a court against a temporary occupant by an owner whose property had been taken over under the Takeover Act, should be decided on its merits rather than declared inadmissible for lack of jurisdiction.” 33. In its decisions nos. Rev-967/00-2 of 30 September 2004 and Rev‑1444/02-2 of 29 June 2004 the Supreme Court gave further interpretation of the relationship between the Property Act and the Termination Act as well as of the Programme for Return: “The temporary occupant's right to use the owner's property does not cease merely for the reason that a housing commission has set aside the decision allowing him or her to do so. This is because the duty to return the property to its owner is conditional upon the duty of the State to provide alternative accommodation for the temporary occupant. It follows that the temporary occupant is not obliged to compensate the owner for the use of his or her property since, before being provided with alternative accommodation, he or she remains a bona fide possessor.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION A. The parties' submissions 1. The applicant 34. The applicant complained that she was prevented from using her property for a prolonged period of time, contrary to 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.” 35. The applicant submitted that M.V. was neither a refugee nor a displaced person.", "In her view, the local authorities had tolerated his occupation of her flat with the sole purpose of preventing her return. This was illustrated by the fact that they had issued a decision to justify that occupation immediately after she had instituted civil proceedings for his eviction thereby effectively preventing the otherwise competent court to rule on the merits of her action. 36. She further argued that, by letting her flat to be used by a person who was not entitled to do so under the laws in force, the State had violated her right to property. Moreover, once the decision to give her flat for use to M.V.", "had been set aside and a warrant had been issued to vacate it, M.V. became an illegal occupant. The failure of the domestic authorities to evict him had been contrary to the law and amounted to a breach of her property rights. In any event, by preventing her to use her flat for a long period of time, and by not providing compensation which would correspond to the market rent for that period, the domestic authorities imposed on her a disproportionate and excessive burden. 2.", "The Government 37. The Government admitted that there had been an interference with the applicant's right to peaceful enjoyment of her possessions when the local authorities had placed another person in the applicant's flat. However, they repudiated the applicant's contention that, by issuing a decision allowing M.V. to use her flat shortly after she had instituted civil proceedings to evict him, those authorities had acted in bad faith. In the Government's view, it was highly unlikely that the local authorities had been aware of the pending civil proceedings instituted only three days before they had given the impugned decision.", "38. The Government further argued that entitling M.V. to use the applicant's flat had been a measure to control the use of property. The resultant interference had been based on law, namely section 5 of the Takeover Act and, later on, the Termination Act and the 2002 Amendments. Moreover, the impugned measure had been in accordance with the general interest as it had pursued a legitimate aim.", "The aim of these statutes and the ensuing measure had been: (a) to protect from deterioration and devastation the property which had been abandoned by its owners, (b) to enable the persons whose homes had been destroyed in the war to solve temporarily their housing needs, (c) to secure repossession of property of persons who had left Croatia but were subsequently returning, and, at the same time, (d) to protect those refugees and displaced persons who had been placed in the abandoned houses and flats. 39. As to the proportionality of the measure, the Government firstly observed that, when establishing whether a fair balance between the general interest of the community and the protection of the individual's fundamental rights had been struck, any special circumstances and the wide margin of appreciation afforded to States in assessing what had been in the general interest, were to be taken into consideration. They argued that the measure had been proportional since it had been only of a temporary character, necessary to meet a pressing social need (to provide adequate temporary accommodation for a large number of displaced persons and refugees) and narrowly tailored (the users had been under duty to use the property with the care of a prudent administrator and had been prohibited from selling it or creating any charges on it). 40.", "Moreover, following the applicant's request for repossession, the State had taken appropriate measures to satisfy this request in accordance with the laws in force and within the framework of the post-war social situation. 41. Consequently, the Government concluded that to grant M.V. temporary use of the applicant's abandoned flat had not represented an immediate excessive individual burden for the applicant. A fair balance had been struck between the applicant's fundamental right to property and the general interest of the community.", "B. The Court's assessment 42. In the Court's view, there has indisputably been an interference with the applicant's right to property as her flat was allocated for use to another person and she was unable to use it for a prolonged period of time. 43. The Court further notes that the applicant was not deprived of her title.", "Therefore, the interference complained of constituted a control of use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1 (see, mutatis mutandis, Immobiliare Saffi v. Italy [GC], no. 22774/93, § 46 and 48, ECHR 1999‑V; and Scollo v. Italy, judgment of 28 September 1995, Series A no. 315‑C, p. 52, § 27). 44.", "The Court considers that it does not have to decide whether the very fact of giving the applicant's flat for use to a third person was justified under Article 1 of Protocol No.1 to the Convention. Even assuming so, the situation became significantly different once the applicant instituted relevant proceedings for repossession of her flat. 45. In those proceedings the domestic authorities recognised the applicant's right to repossession and issued a warrant to the occupant to vacate the flat. However, under the relevant legislation (see paragraphs 29-30 above) the authorities had to provide the temporary occupant with alternative accommodation.", "Moreover, according to the case-law of the Supreme Court, he could not have been evicted before being secured a place to stay (see paragraph 33 above). 46. It would appear that in the present case the domestic authorities were unable to provide alternative accommodation for M.V. before December 2003. They were therefore reluctant and never brought a civil action for his eviction knowing that in the circumstances such an action would be doomed to fail.", "As a result, M.V. was permitted to remain in the applicant's flat, effectively preventing her from using it, for more than six years. 47. Therefore, the issue to be examined is whether the domestic authorities breached Article 1 of Protocol No. 1 of the Convention by making the applicant's right to repossess her flat contingent on their own duty – which they were unable to fulfil for several years – to provide alternative accommodation for the temporary occupant.", "48. Assuming that the interference complained of was lawful and in the general interest, it must be examined whether it struck the requisite fair balance between the demands of the general interest of the public and the requirements of the protection of the individual's fundamental rights, and whether it imposed a disproportionate and excessive burden on the applicant (see, for example, Immobiliare Saffi v. Italy [GC], cited above, § 49). 49. The Court recognises that the Croatian authorities faced an exceptionally difficult task in having to balance the rights of owners against those of temporary occupants in the context of the return of refugees and displaced persons, as this involved dealing with socially sensitive issues. Those authorities had, on the one hand, to secure the protection of the property rights of the former and, on the other, to respect the social rights of the latter, both of them often being socially vulnerable individuals.", "The Court therefore accepts that a wide margin of appreciation should be accorded to the respondent State. However, the exercise of the State's discretion cannot entail consequences which are at variance with Convention standards (see Broniowski v. Poland [GC], no. 31443/96, § 182, ECHR 2004‑V). In this connection the Court reiterates that a situation as the one in the present case calls for a fair distribution of the social and financial burden involved. This burden cannot be placed on a particular social group or a private individual alone, irrespective of how important the interests of the other group or the community as a whole may be (see, mutatis mutandis, Hutten-Czapska v. Poland [GC], no.", "35014/97, § 225, to be published in ECHR 2006). However, in the instant case the applicant was forced to bear a burden – which should have been borne by the State – of providing the temporary occupant with a place to stay, a weight she eventually had to carry for more than six years. 50. Notwithstanding the State's margin of appreciation, and in the absence of adequate compensation (see paragraph 25 above), the Court considers that the Croatian authorities failed to strike the requisite fair balance between the general interest of the community and the protection of the applicant's right to property. As a result thereof the applicant had to bear an excessive individual burden; therefore the interference with her right to property cannot be considered proportionate to the legitimate aim pursued.", "There has accordingly been a breach of Article 1 of Protocol No. 1. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION A. The parties' submissions 1.", "The applicant 51. The applicant further complained that she had not had an effective remedy for her Convention complaint under Article 1 of Protocol No. 1. She relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 52. The applicant argued that she had not appealed against the Karlovac Municipal Court's decision of 10 March 2000 because at the material time such an appeal would have lacked any prospects of success.", "In support of her argument she referred to the Municipal Court's reasoning (see paragraph 16 above) and the provisions of the Termination Act which, in her view, had clearly excluded ordinary court jurisdiction in such matters. 53. The applicant further argued that bringing a new civil action after the entry into force of the 2002 Amendments would not have had any prospects of success either. Even though the courts would have examined the merits of such an action, they would have still ruled against her. This was so because a favourable outcome of her civil action would have depended on the availability of alternative accommodation for the temporary occupant and, in particular, after 22 February 2003 (see paragraph 23 above), on the receipt of the final shipment of the construction material.", "Only when the temporary occupant's housing needs had been satisfied the courts could have ordered his eviction. Once this had occurred in December 2003, to bring a civil action had become obsolete as M.V. had left her flat of his own accord. 2. The Government 54.", "The Government maintained that there had been no violation of the applicant's right to an effective remedy. They firstly submitted that under the case-law of the Supreme Court the courts had always had jurisdiction to decide on the civil action for repossession brought by an owner against a temporary occupant. Contrary to the applicant's view, the 2002 Amendments had not (re)established but merely confirmed the existence of that jurisdiction and the right of owners to sue for repossession of their property. In spite of that, the Government conceded that to lodge an appeal against the Karlovac Municipal Court's decision of 10 March 2000 – by which that court declined jurisdiction in the case – would have been futile. The appeal would have ultimately resulted only in a negative decision on the merits instead of a negative procedural decision because at the material time the decision allowing M.V.", "to use the applicant's flat had not yet been set aside in the administrative proceedings. However, once the Housing Commission had done so on 16 October 2000 (see paragraph 18 above), the situation became completely different and from then on to bring a (second) civil action would have resulted in a decision favourable to the applicant. Accordingly, the Government argued that at the time she introduced her application with the Court the applicant had at her disposal an effective domestic remedy for the alleged violation of her right to property. B. The Court's assessment 55.", "The Court observes that the applicant had at her disposal remedies to seek repossession of her flat: a civil action and an application to the local (administrative) authorities. She availed herself of these remedies. However, Article 13 requires a remedy to be “effective”, and the question arises whether this was the case in the specific circumstances having regard to the fact that it took more than six years for the applicant to repossess her flat. The gist of the applicant's complaint under that Article thus concerns the ineffectiveness rather than the lack of the available remedies. 56.", "The Court therefore has to determine whether the remedies to which the applicant had recourse, or which were otherwise available, were “effective” in the sense of either preventing the alleged violation of her right to property or its continuation, or of providing adequate redress for any violation that had already occurred (see, mutatis mutandis, Kudła v. Poland [GC], no. 30210/96, § 158, ECHR 2000‑XI). 57. The Court notes that, initially, the domestic authorities recognised the applicant's right to repossession and issued a warrant to the temporary occupant to vacate her flat. However, as already noted above (see paragraph 45), prior to his eviction the authorities had to provide him with alternative accommodation.", "As they were unable to do so before December 2003, for the applicant to bring another civil action for his eviction, as suggested by the Government, would have had no prospects of success. Given that the remedies to which the applicant previously resorted proved equally ineffective, the Court concludes that she had no effective remedy for the protection of her Convention right to property. Accordingly, there has been a breach of Article 13. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 58.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 1. The parties' submissions 59. The applicant claimed 43,363 euros (EUR) in respect of pecuniary damage, of which EUR 33,363 was for the loss of rent, and EUR 10,000 for the value of her property left in the flat, which had been lost. She submitted that the amount of the lost rent was calculated according to the monthly market rent, which amounted to approximately EUR 5 per square metre. In support of her claim, the applicant submitted an advertisement from a local newspaper of 29 May 2006 offering for rent a furnished flat in Karlovac of the same size (45 m²) for 1,200 Croatian kunas (HRK) per month.", "60. The Government contested these claims. They submitted information collected by the fiscal authorities according to which the average monthly rent for the flats in Karlovac in the period between 1997 and 2004 ranged between HRK 3.13 and 8.57 per square metre. That being so, the Government reiterated that, in June 2003, the applicant had been offered compensation amounting to HRK 7 per square metre but she had refused it (see paragraph 25 above). 61.", "The applicant considered derisory the amounts the Government alleged to have corresponded to the market rent in the relevant period. She explained that those amounts represented, in fact, the lowest amounts of rent tolerated by the fiscal authorities for the purposes of taxation, whereas the average rent had in reality been substantially higher. The Government, for their part, agreed that the advertisement submitted by the applicant could serve as an indicator of the average rent for flats in Karlovac in the year 2006. However, in their view, it could by no means indicate the average rent in the period for which the applicant was seeking compensation, that is, the period before 13 January 2004. 2.", "The Court's assessment 62. The Court considers that the applicant must have suffered pecuniary damage as a result of her lack of control over her flat from 5 November 1997 (being the date of the entry into force of the Convention in respect of Croatia) until 13 January 2004 (see, mutatis mutandis, Prodan v. Moldova, no. 49806/99, § 71, ECHR 2004‑III (extracts)). 63. As regards the loss of rent, the Court firstly notes that the applicant already had accommodation and therefore it is reasonable to assume that she would have attempted to let the flat (see Prodan v. Moldova, cited above, § 72; and Popov v. Moldova (no.", "1) (just satisfaction), no. 74153/01, § 11, 17 January 2006). 64. Having examined the parties' submissions, the Court will take the amount set forth in the newspaper advertisement submitted by the applicant as a reference point for assessing the loss suffered. 65.", "In making its assessment, the Court takes into account the fact that the applicant would inevitably have experienced certain delays in finding suitable tenants and would have incurred certain maintenance expenses in connection with the flat. She would have also been subjected to taxation (see Prodan v. Moldova, cited above, § 74; and Popov v. Moldova (no. 1) (just satisfaction), cited above, § 13). The Court also takes note of the Government's argument that the applicant refused to accept compensation that would have amounted to some EUR 615. 66.", "Having regard to the foregoing, and deciding on an equitable basis, the Court awards the applicant EUR 6,000 on account of the loss of rent, plus any tax that may be chargeable on that amount. 67. As regards the loss of the applicant's personal belongings in the flat, the Court does not discern any causal link between the violation found and the pecuniary damage alleged. It therefore rejects this claim. B. Non-pecuniary damage 68.", "The applicant claimed EUR 4,000 in respect of non-pecuniary damage. 69. The Government contested the claim. 70. The Court finds that the applicant must have sustained non-pecuniary damage.", "Ruling on an equitable basis, it awards her EUR 2,500 under that head, plus any tax that may be chargeable on that amount. C. Costs and expenses 71. The applicant also claimed EUR 100 for the costs and expenses incurred before the domestic courts. 72. The Government contested the claim.", "73. According to the Court's case-law, an applicant is entitled to reimbursement of his or her costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers that the sum claimed for costs and expenses in the domestic proceedings should be awarded in full, plus any tax that may be chargeable on that amount. D. Default interest 74. 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 13 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 6,000 (six thousand euros) in respect of pecuniary damage; (ii) EUR 2,500 (two thousand five hundred euros) in respect of non-pecuniary damage; (iii) EUR 100 (one hundred euros) in respect of 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 21 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FOURTH SECTION CASE OF JUSSI UOTI v. FINLAND (Application no. 20388/02) JUDGMENT STRASBOURG 23 October 2007 FINAL 23/01/2008 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 Jussi Uoti v. Finland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrG. Bonello,MrK.", "Traja,MrL. Garlicki,MsL. Mijović,MrJ. Šikuta,MrsP. Hirvelä, judges,and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 2 October 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 20388/02) 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 Jussi Uoti (“the applicant”), on 17 May 2002. 2. The applicant, who had been granted legal aid, was represented by Mr J. Hakanen, a lawyer practising in Turku.", "The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The applicant alleged a violation of the rights of the defence in respect of witnesses and the presumption of innocence. 4. By a decision of 7 November 2006, the Court declared the remainder of the application admissible.", "5. The applicant and the Government each filed further written observations (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6.", "The applicant was born in 1964 and lives in Turku. 7. At the end of 1995 the applicant was questioned by the police about suspected dishonesty as a debtor. Subsequently, charges were brought against him. The trial before the Helsinki District Court (käräjäoikeus, tingsrätten) involved 47 days of hearings.", "The court received testimony from the defendants, the complainants and over 40 witnesses. On 29 May and 10 June 1998 the prosecution presented documentary evidence, including some documents drawn up by a Mr G., who was working off-shore for a bank and who, in answer to a letter rogatory sent by the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen) to the Guernsey authorities, had produced documents (including “notes for archives” pertaining to meetings on 3 and 22 June 1993 and charts) related to a plan to transfer funds. 8. On 29 January 1999 the applicant was convicted of four counts of dishonesty as a debtor and four counts of aggravated tax fraud. He was sentenced to four years and two months' imprisonment.", "The District Court judgment ran to 163 pages. In short and in so far as relevant, the court found on the basis of, inter alia, the testimonies of J.S., S., the applicant and his brother and the documentary material, including the documents obtained from the Guernsey authorities, that the applicant and his brother had discussed the planned transfers of assets with G. It also found that the documentary evidence pertaining to the off-shore companies and the transfer of moneys proved that the assets acquired from the sale of the “bank group I.” had been transferred via companies specified in G.'s charts to trusts, the beneficiaries of which the brothers had appointed. As both brothers had been present during the negotiations with G. on 3 June 1993 and the plan to transfer funds had been proved to have materialised, the court found that they had acted together in, inter alia, removing the funds from Finland. 9. The applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten).", "In his grounds of appeal he submitted, inter alia, that the documents drawn up by G., resident in Guernsey, who had not been questioned during the pre-trial investigations or heard as a witness before the District Court, should not have been taken into account as he had not had a possibility to respond to that important evidence. 10. In its decisions of 23 and 24 October 2000 the Court of Appeal refused, as being unnecessary, the request of the applicant's co-accused brother that G. be heard as a witness. It stated that it would provide further reasons in its judgment. 11.", "On 31 October 2000 the Court of Appeal held a preparatory hearing. The applicant's brother unsuccessfully renewed the request for G. to be heard as a witness. 12. The first hearing took place on 8 November 2000. The parties and altogether 22 witnesses gave oral evidence, of whom three were fresh witnesses.", "The hearing of 27 other proposed witnesses had been rejected. 13. On 30 March 2001 the Court of Appeal convicted the applicant of six counts of dishonesty as a debtor, four counts of aggravated tax fraud and five counts of aiding and abetting accounting offences. It sentenced him to five years and eight months' imprisonment and ordered his immediate detention. He also lost his military rank.", "14. As regarded the reasons for not hearing G. as a witness, the court held, inter alia, that: “The Court of Appeal notes that no request to hear G. as a witness was made in the District Court although the documents relating to the plan to transfer moneys from the “bank group I.”, had been presented at the hearings of 29 May and 10 June 1998 ... Also [the applicant's brother, who was a co-defendant] relied, as written evidence, on [some] documents drawn up by G. without requesting that G. be heard as a witness ... The documents allegedly drawn up by G. have not been drawn up for the purposes of the pending proceedings. The import of the documents can be assessed without hearing him as a witness. The question whether it is necessary to hear him as a witness depends solely on whether such a hearing could produce relevant new information.", "In assessing this question the Court of Appeal takes into account the fact that in the District Court G. was not proposed as a witness and the fact that the parties have been provided with an opportunity to put forward all their opinions concerning the content and reliability of the documents during the trial. The Court of Appeal notes that the documents in question have been requested by the public prosecutor and the National Bureau of Investigation by sending letters rogatory to the Guernsey authorities. The Court of Appeal does not have any reason to suspect that the documents were drawn up by someone other than G. ... The documents clearly indicate that there has been a deliberate conspiracy to transfer the assets acquired from the sale of the “bank group I.” to companies established abroad and to invest the moneys. The transfer of assets has been conducted, as later explained in detail in chapter 6.2.2, by order of ... [the applicant and his co-accused brother].", "The question whether G. himself thought that he was involved only in legal investment activities is therefore not relevant. The documents drawn up by G. are however relevant in assessing ... [the applicant's and his co-accused brother's] possible guilt of the offence of dishonesty as a debtor ... As becomes manifest in the reasons given in considering the charges, the Court of Appeal has not however decided the matter basing itself entirely on the documents in question. The court has instead assessed the value of the documents in an overall context, [in Finnish kokonaisyhteydessä] in which G. cannot have anything relevant to say. The Court of Appeal has heard witness S., as requested ... about the events relating to the documents. The testimony of S., which in [the applicant's brother's] opinion proves the content of the discussions with G., has thus been taken into account ...", "The Court of Appeal holds that the requirements of a fair trial do not require that G. be heard as a witness either.” 15. The Court of Appeal judgment ran to 325 pages. In so far as relevant, the court principally endorsed the District Court's evaluation of the evidence. 16. The applicant sought leave to appeal.", "On 5 December 2001 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE 17. If an item of evidence that a party wishes to present pertains to a fact that is not material to the case or has already been proved, or if the fact can be proved in another manner with considerably less inconvenience or cost, the court may refuse to admit it (Chapter 17, Article 7 (as amended by Act no. 571/1948) of the Code of Judicial Procedure).", "18. Chapter 17, Article 11 of the Code of Judicial Procedure, as in force at the relevant time, provided that a written statement drawn up for a pending or imminent trial, could not be used as evidence, unless specifically provided for by law or unless the court so decided for particular reasons. 19. Chapter 26, Article 7 of the Code of Judicial Procedure (as amended by Act no. 661/1978), as in force at the relevant time, provided that the Court of Appeal was to hold an oral hearing when necessary.", "Chapter 26, Article 8 (as amended by Act no. 661/1978), as in force at the relevant time, provided that the Court of Appeal could not change a lower court's conviction based on the evaluation of evidence without holding an oral hearing, unless the case concerned an offence punishable by fines only or unless an oral hearing was manifestly unnecessary, in particular taking into account the defendant's need for legal protection. 20. The provisions concerning the Court of Appeal's duty to hold an oral hearing were amended (Act no. 165/1998) with effect from 1 May 1998.", "The new provisions did not apply to criminal proceedings which had commenced prior to the entry into force of the new Code on Criminal Procedure (laki oikeudenkäynnistä rikosasioissa, lagen om rättegång i brottmål; Act no. 689/1997; in force from 1 October 1997). The afore-mentioned former provisions applied therefore to the instant case. The new Chapter 26, Article 15 (Act no. 165/1998) provides that the Court of Appeal is to hold a hearing, regardless of whether one has been requested, if the decision in the matter turns on the credibility of the testimony received in the District Court or on new testimony to be received in the Court of Appeal.", "In this event, the evidence admitted in the District Court proceedings is to be readmitted in the principal hearing, unless there is an impediment to this. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3(d) OF THE CONVENTION 21. The applicant complained about a violation of the rights of the defence in respect of witnesses. Article 6 §§ 1 and 3(d) read in relevant part: “1.", "In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” A. The parties' submissions 22. The applicant argued that the refusal of the Court of Appeal to hear G. as a witness had deprived him of his right to obtain the attendance and examination of witnesses on his behalf. G. had been of crucial importance to his case as the documents allegedly drawn up by him had been decisive in leading the Court of Appeal to conclude that there had been an intentional plan or conspiracy to commit the offences.", "G. had managed all the companies which had allegedly transferred assets abroad illegally and could have provided crucial information. G. had not even been heard in the pre-trial investigations, which had made it impossible to verify the content of the documents allegedly drawn up by him. 23. The applicant pointed out that the court had based itself on the documents allegedly drawn up by G. although he had not been heard as a witness at any stage of the proceedings and despite the explicit request of the applicant's co-defendants that G. be heard as a witness in the Court of Appeal. What was at issue was not only the rights of the defence to obtain the attendance of witnesses against him in order to put questions to and examine the reliability of that person, but also the fact that the prosecution had presented and the court had admitted as evidence against the applicant documents allegedly drawn up by a person who had not been heard at any stage of the proceedings, even though the origin of the documents and their contents were disputed.", "It had been for the prosecution to call G. as a witness since it had relied on the documents in question. It had certainly not been the responsibility of the defendant to call a witness against himself. No attempt had been made by the prosecution to call G. as a witness. The documentary evidence in question should therefore have been declared inadmissible by the courts. 24.", "The applicant maintained that the Court of Appeal's refusal to hear G. as a witness prior to the principal hearing had also violated the presumption of innocence and had shown that the court had prejudged his guilt. He had been given to understand that the court was not going to admit the documents in question to the case file. However, the Court of Appeal's judgment had taken him by surprise in that the court had based its judgment on those very documents. 25. Lastly, the applicant maintained that the documentary evidence in question had per se been decisive for the outcome of the case.", "26. The Government contested the allegations. The applicant had never requested that G. be heard as a witness whereas two other defendants had done so. They had not however requested that G. be heard during the pre-trial investigation or in the District Court. The fact that the applicant and his brother had controlled some companies had been unknown to the prosecution until documents had been obtained from the Guernsey authorities by a letter rogatory.", "The District Court found that G. had a business relationship with the applicant and his brother, and that it was in this framework that the documents in question had been drawn up containing a plan of transferring the brothers' assets to a number of destinations. In his appeal against the lower court's judgment the applicant had criticised the court for not having heard G. as a witness, but he had not however identified him as his witness. He had not denied the documents in question having been drawn up by G., but he had requested that S. be heard as a witness regarding the contents of the negotiations with G., a request which was granted by the appellate court. In his appeal the applicant stated, inter alia, the following: “The District Court has, therefore, considered proven that [the applicant] and [his brother] had made a plan together of 'emptying' their companies and that they had also carried it out by common agreement. The conclusion drawn that they had done this by common agreement has been based on documentary evidence obtained from abroad by means of a letter rogatory, in particular a memorandum drawn up by G. 'New business - [the applicant and his brother]'.", "What does, then, the assessment of the documents in the judgment of the District Court actually prove? It proves that a company represented by [the applicant] and [his brother] had received considerable profits from selling the stock ... and that [the applicant] and [his brother] were considering investing the assets in countries with more lenient taxation than in Finland. For carrying this out, G.'s memorandum and the correspondence between him and [the applicant's brother] contains plans for the practical measures for carrying out the transaction. Some of these plans have actually been carried out in practice, in some respects along the same lines as had been planned in the documents mentioned. ... What was really discussed with G., namely the investing of net assets, was testified by S., but the District Court apparently did not consider his testimony credible, whereas it did consider the memorandum G. had drawn up for his own purposes fully credible in all of its aspects.", "The evidence has been assessed erroneously. On this count, [the applicant] identifies S. and himself as his witnesses in the Court of Appeal.” 27. The Court of Appeal extensively reasoned its decision not to hear G. as a witness, finding that the documents were normal written evidence, which could be assessed on their own without obtaining oral evidence from their author. The court thus assessed, within its discretionary power, the importance of the documents for the case and whether it was necessary or advisable to hear G. as a witness. The parties were able to comment on the documents in question both with regard to their contents and their credibility.", "G.'s testimony would not have produced any new decisive evidence since the question whether he believed that he was involved in legal investment activities did not have any particular bearing on the outcome of the case. 28. The Government pointed out that the reasons provided in the Court of Appeal's judgment described, inter alia, the oral evidence concerning the contacts between the applicant, his co-accused brother and G. It also set out how the court assessed the applicant's activity when it deemed him guilty of the offences. It closely scrutinised the transactions between the different companies controlled by the applicant and his brother. The documents drawn up by G. had clarified certain matters as they portrayed the transactions between different companies controlled by the brothers but they had not been decisive.", "The court had compared the documents with the transactions and had found them to be coherent. It had found it significant that it had been proved that the transfer of the assets had been conducted according to the plan in the documents and that the assets had ended up under the control of the brothers, so that these activities had constituted the crimes they had been charged with. The outcome of the case would not have been any different if G., too, had been called to testify on the same matters (i.e. on the contents of the negotiations with G.) on which S. had been heard as a witness. B.", "The Court's assessment 29. The basis of the applicant's complaint was the use as evidence of documents drawn up by a business partner without hearing his testimony. They had been requested by the public prosecutor and the National Bureau of Investigation by sending letters rogatory to the Guernsey authorities. On the request of the prosecution they were admitted to the case file. G. was not heard himself before the courts, although the applicant's co-accused brother requested that he be heard before the Court of Appeal.", "30. As the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1, the Court will consider the complaint under the two provisions taken together (see, among other authorities, Asch v. Austria, judgment of 26 April 1991, Series A no. 203, § 25). Even though G. had not testified at a hearing he should, for the purposes of Article 6 § 3 (d), be regarded as a witness – a term to be given an autonomous interpretation – because documents drawn up by him, as referred to by the prosecution, were in fact before the court, which took account of them. 31.", "The Court recalls that the admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them. The Court's task is to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair. 32. It is a fundamental aspect of the right to a fair trial that criminal proceedings should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and evidence adduced by the other party (see Rowe and Davis v. the United Kingdom [GC], no.", "28901/95, § 60, ECHR 2000-II). 33. All the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. As a rule, a conviction should not be based on the testimony of a witness whom the accused has not had an opportunity to challenge and question. However, Article 6 § 3 (d) does not grant the accused an unlimited right to secure the appearance of witnesses in court.", "It is normally for the national courts to decide whether it is necessary or advisable to hear a particular witness. 34. Applying these principles to the present case, the Court first notes that the defence did not propose that G., who had produced written evidence relied on by the prosecution, be heard in the District Court. Nor was he heard before the Court of Appeal. 35.", "The possible disadvantages thereby caused to the applicant were, however, alleviated by the fact that he had the opportunity to comment on and challenge, both in writing and in a hearing at two court levels, the documentary evidence in question with a view to influencing the courts' decisions. The request of the applicant's co-accused brother to hear G.'s testimony was rejected for the reasons set out in paragraph 14 above. The courts based the applicant's conviction not only on the documents drawn up by G. but also on other evidence presented in the case, such as the documentary evidence concerning the money transactions and S.'s testimony as regards the content of the discussions with G. (see paragraphs 8 and 15 above). 36. In these circumstances the Court cannot conclude that the adversarial nature of the proceedings was not respected or that the national courts exceeded the margin of appreciation they have in the admission and assessment of evidence.", "37. In sum, any limitations which may have been imposed on the rights of the defence were not such as to deprive the applicant of a fair trial. It follows that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention, examined together. II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 38.", "The applicant also complained that the refusal to hear G. as a witness had violated the presumption of innocence. Article 6 § 2 reads: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 39. The Government contested the allegation, arguing that prior to the main hearing the Court of Appeal had, on the occasion of assessing the necessity of evidence offered, to establish which matters were material to the outcome of the case. This naturally did not imply that the Court of Appeal would have violated the presumption of innocence by deciding not to hear G.'s testimony. 40.", "The Court agrees with the Government. The fact that the Court of Appeal refused to hear G. as a witness cannot be construed as indicating that the court had at that stage prejudged the question of the applicant's guilt. The Court of Appeal's decision was taken in the exercise of its discretionary power to admit or disallow evidence including witness testimony in accordance with its own perception of relevancy. This conclusion is not affected by the fact that the Court of Appeal only provided detailed reasons for its refusal in its final judgment (see paragraph 10 above). 41.", "It follows that there has been no violation of Article 6 § 2 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention taken together; 2. Holds that there has been no violation of Article 6 § 2 of the Convention. Done in English, and notified in writing on 23 October 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "T.L. EarlyNicolas BratzaRegistrarPresident" ]

[ "FIFTH SECTION CASE OF SPAS TODOROV v. BULGARIA (Application no. 38299/05) JUDGMENT STRASBOURG 5 November 2009 FINAL 05/02/2010 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Spas Todorov v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Renate Jaeger,Karel Jungwiert,Rait Maruste,Mark Villiger,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 13 October 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "38299/05) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Spas Dimitrov Todorov (“the applicant”), on 13 October 2005. 2. The applicant was represented by Mrs S. Stefanova and Mr K. Bakov, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs M. Kotzeva, of the Ministry of Justice. 3.", "On 12 December 2005 the Court decided to communicate the complaints concerning the length of the proceedings and alleged lack of effective remedies in this respect to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3). THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1970 and lives in Belozem. 5.", "On 12 November 1997 the applicant, who had previous convictions for rape and other offences, was arrested, charged with rape and sexual assault and remanded in custody. The charges on which the applicant was later convicted concerned a gang rape by three persons who entered the home of a woman who lived with her two minor daughters, forced her to leave the house and raped the girls, aged thirteen and sixteen. 6. The preliminary investigation was completed in July 1998. During that stage of the proceedings the investigator held more than twenty interviews with witnesses and the accused, commissioned medical reports and a psychiatric report, conducted searches and collected other evidence.", "7. On 31 July 1998 an indictment was submitted to the Plovdiv District Court. 8. In the following two years and two months the District Court invited the parties to ten or twelve hearings, five or six of which were adjourned. Three adjournments were caused by the fact that one of the jurors was absent.", "That caused a delay of approximately six months. One adjournment was the result of the absence of the lawyer of one of the accused and another adjournment was occasioned by the absence of the civil plaintiff. The authorities also encountered difficulties in locating and summoning some of the witnesses. 9. By judgment of 25 September 2000, the District Court found the applicant guilty as charged and sentenced him to six years' imprisonment.", "The applicant and the other accused appealed. 10. By judgment of 28 March 2001 the Plovdiv Regional Court quashed the lower court's judgment and remitted the case on the ground that on 26 May and 28 September 1999 the District Court had ruled on the accused persons' appeals against detention in a composition different from that in which it had sat in the criminal case against them. That was considered to be a “significant breach of procedure” that automatically required the quashing of the District Court's judgment in the criminal case and a fresh trial. In reaching that conclusion, the Regional Court referred to the practice of the Supreme Court of Cassation on the matter (see paragraph 30 below).", "11. In April 2001 the prosecutor rectified two minor omissions in the indictment. 12. The new trial started with a hearing on 16 July 2001 which was, however, adjourned, because the victims had not been summoned. 13.", "The hearing listed for 25 January 2002 was adjourned as two of the accused did not appear. One of them had fallen ill and the other had left the country. 14. The hearing listed for 20 February 2002 was adjourned as one of the jurors did not appear. 15.", "The hearing listed for 9 May 2002 could not proceed because the applicant's lawyer was attending to other business and the applicant had not had the time to seek assistance from other counsel. 16. The hearing listed for 19 June 2002 was adjourned because the applicant's lawyer did not appear and the applicant had not retained counsel. The court appointed counsel for the applicant itself and adjourned the hearing. 17.", "The court held hearings on 16 and 17 September 2002, 21 and 22 November 2002 and 21 and 24 March 2003. It heard witnesses and the parties' pleadings and admitted other evidence. 18. Throughout the proceedings delays occurred as a result of the fact that the victims and witnesses could not be found at their registered addresses. 19.", "By judgment of 24 March 2003 the applicant and the other accused were found guilty as charged. The applicant was sentenced to six and a half years' imprisonment. 20. The applicant appealed to the Regional Court. 21.", "The hearing before the Regional Court listed for 2 October 2003 was adjourned as the civil plaintiff, the victim, was absent. 22. The hearing listed for 2 December 2003 could not proceed as the applicant had fallen ill. 23. On 13 January 2004 the Regional Court held a hearing at which it heard the parties' pleadings. 24.", "By judgment of 28 May 2004 the Regional Court upheld the District Court's judgment of 24 March 2003. 25. The applicant filed a cassation appeal. 26. The Supreme Court of Cassation heard the case on 25 January 2005.", "By judgment of 9 May 2005 the Supreme Court of Cassation upheld the lower courts' judgments. 2. The applicant's deprivation of liberty 27. The applicant was arrested and remanded in custody on 12 November 1997. On 25 September 2000 he was convicted and sentenced to a term of imprisonment.", "His conviction and sentence were quashed on 28 March 2001 and the trial recommenced. The applicant remained in pre-trial custody. In the fresh trial, on 24 March 2003 the applicant was convicted and sentenced to a term of imprisonment. 28. The applicant remained in custody until 2 December 2003, when he was placed under house arrest.", "He remained under house arrest until the end of the criminal proceedings on 9 May 2005. B. Relevant domestic law and practice 29. Article 257 § 1 of the Code of Criminal Procedure 1974, as in force at the relevant time, provided that the composition of the trial court must remain unchanged throughout the proceedings. In accordance with the second paragraph of Article 257, if one of the judges or jurors was prevented from sitting, the trial had to recommence.", "30. It follows from Article 304 § 1 of the same Code that at the trial stage of the criminal proceedings the detainee's requests for release are examined by the trial court. 31. In a 1998 decision (реш. № 45, 2.02.1998, н.д.. № 732/1997, II н.о.", "), the Supreme Court of Cassation stated as follows: “The modification of the measure of judicial control [(pre-trial detention, house arrest, surety, etc)] in the course of the trial is a procedural act and has to be undertaken by the same composition of the court which had started the examination of the criminal case. The decision to modify the measure must be taken by the court on the basis of a careful assessment of the behaviour of the accused person during the trial ... Since the jurors [who decided to modify the measure of control in the case at hand] did not participate in the examination of the criminal case, [and were not present] when the accused person and most of the witnesses were heard, they could not form an objective opinion as to the necessity to modify the measure... [It follows that there has been a substantial breach of procedure in that Article 257 § 1 CCP has been violated ...]” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 32. 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 ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 33.", "The Government contested that argument. 34. The period to be taken into consideration began on 12 November 1997 and ended on 9 May 2005. It thus lasted seven years and almost six months for the preliminary investigation and three levels of jurisdiction. 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 36.", "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, in particular, to 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) 37. 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, Valentin Ivanov v. Bulgaria, no. 76942/01, 26 March 2009 and Nalbantova v. Bulgaria, no. 38106/02, 27 September 2007).", "38. 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 that the period of seven years and six months was reasonable in the circumstances of the present case. 39. The Court notes, in particular, that in March 2001 the Plovdiv Regional Court undid the fruit of more than two years of trial proceedings (see paragraphs 7-9 above) and ordered a fresh trial. The Court must determine whether the ensuing delay of more than two years was imputable to the authorities.", "40. It observes that the District Court's judgment was quashed on the sole ground that it had ruled on the accused persons' appeals against detention in a composition different from that in which it had sat in the criminal case against them. According to the Supreme Court of Cassation's practice, this was considered to be a “significant breach of procedure” that automatically required the quashing of the District Court's judgment in the criminal case and a fresh trial (see paragraphs 10 and 31 above). This practice was apparently based on the provisions of the Code of Criminal Procedure, which require that the same trial court which examines the merits of the criminal charges must also deal with the requests for release submitted by the accused (see paragraphs 30 and 31 above). 41.", "In the present case, the Regional Court did not notice any change of composition of the District Court at hearings dealing with the criminal charges against the accused. In such circumstances, the fact that the District Court's composition changed unlawfully when it dealt with the appeals against pre-trial detention – a matter unrelated to the admissibility or merits of the criminal charges – could have possibly justified the quashing of the District Court's decisions on pre-trial detention, but not of its judgment on the merits of the criminal charges. Indeed, according to the Bulgarian Supreme Court of Cassation, the reason underlying the rule that the trial court should deal with appeals against detention in the same composition in which it examines the merits of the criminal charge is that changes in the composition would adversely affect the judges' capacity to appraise the need to detain or release the accused (see paragraph 31 above). It has not been stated that the judges' capacity to appraise the merits of the criminal charges would be affected if other judges considered appeals against detention. 42.", "In spite of these obvious distinctions, the relevant law and established practice, and the Regional Court in the applicant's case, applied a formalistic approach which ascribed automatic consequences to certain types of procedural omissions, without regard to their effect on the proceedings and without consideration of less onerous and less time-consuming possibilities to remedy the omissions. 43. It is incumbent on the respondent State to choose and devise the procedural means most appropriate to secure the enjoyment of all Convention rights, including the right under Article 6 § 1 to a trial within a reasonable time. The Court's task is limited to examining whether the delay of more than two years caused by the fact that the applicant's trial recommenced from the very beginning was imputable to the authorities. In the light of the considerations set out above, the Court finds that that was so, this delay having been unnecessary.", "44. Indeed, the Court has already noted in previous cases against Bulgaria that inordinate delays in criminal proceedings were brought about by the unnecessary remittal of cases on excessively formalistic grounds (see Kitov v. Bulgaria, no. 37104/97, § 73, 3 April 2003, Vasilev v. Bulgaria, no. 59913/00, § 93, 2 February 2006, Kalpachka v. Bulgaria, no. 49163/99, § 73, 2 November 2006 and Karov v. Bulgaria, no.", "45964/99, §§ 62 and 63, 16 November 2006). The present case is another example of this unjustified approach of the Bulgarian courts. 45. The Court further notes that other delays, totalling at least ten months, were also imputable to the authorities (see paragraphs 8 (second and third sentence), 12 and 14 above). 46.", "Having regard to the above and taking into consideration all other relevant facts, including the overall length of the proceedings and the fact that only very short delays may be considered as imputable to the applicant (see paragraphs 15 and 16 above), the Court considers that in the instant case the length of the criminal proceedings was excessive and failed to meet the “reasonable time” requirement. 47. There has accordingly been a breach of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 48.", "The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI). In the present case, having regard to its conclusion with regard to the excessive length of the proceedings, the Court considers that the applicant had an arguable claim of a violation of Article 6 § 1. 49. Remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective”, within the meaning of Article 13, if they prevent the alleged violation or its continuation, or provide adequate redress for any violation that has already occurred (see Kudła, cited above, § 158).", "50. The Court notes that in similar cases against Bulgaria it has found that at the relevant time there was no formal remedy under Bulgarian law that could have prevented the alleged violation or its continuation, or provided adequate redress for any violation that had already occurred (see Valentin Ivanov v. Bulgaria, cited above, §§ 34-37, Osmanov and Yuseinov v. Bulgaria, nos. 54178/00 and 59901/00, §§ 31-42, 23 September 2004; Sidjimov v. Bulgaria, no. 55057/00, §§ 37-43, 27 January 2005; and Nalbantova, cited above, §§ 32-36). The Court sees no reason to reach a different conclusion in the present case.", "51. Accordingly, there has been a violation of Article 13, in conjunction with Article 6 § 1 of the Convention, on account of the lack of an effective remedy for the excessive length of the criminal proceedings. III. REMAINING COMPLAINTS 52. The applicant complained under Article 5 §§ 3 and 5 of the Convention that his pre-trial detention and house arrest had been excessively lengthy and that he did not have an enforceable right to compensation in this respect.", "53. The Court reiterates that the period to be considered under Article 5 § 3 of the Convention ends on the day on which the charges brought against the applicant were determined by a first-instance court (see, for a detailed explanation of the Court's case-law on the issue, Solmaz v. Turkey, no. 27561/02, §§ 23-37, ECHR 2007‑... (extracts)). 54. In the present case, the application was introduced with the Court in October 2005, more than six months after 24 March 2003, the date of the applicant's conviction in his second trial, which is the date marking the end of his pre-trial deprivation of liberty falling under Article 5 §§ 1(c ) and 3 of the Convention.", "The complaint under Article 5 § 3 must be rejected, therefore, for failure to observe the six-month time-limit under Article 35 § 1 of the Convention. 55. Furthermore, there not having been a finding by a domestic court or by this Court that the applicant's deprivation of liberty was contrary to one or more of the requirements of Article 5 of the Convention, the Court finds that Article 5 § 5 was not applicable. This part of the application is thus incompatible ratione materiae with the provisions of the Convention and must be rejected under its Article 35 §§ 3 and 4. 56.", "The applicant's complaints under Article 5 §§ 3 and 5 of the Convention must therefore be declared inadmissible. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 57. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 58.", "The applicant claimed 12,000 euros (EUR) in respect of non-pecuniary damage allegedly resulting from the violations of his rights under Articles 6 and 13 of the Convention. 59. The Government did not express an opinion on the matter. 60. The Court considers that the applicant must have sustained non-pecuniary damage.", "Ruling on an equitable basis, it awards award him EUR 1,200. B. Costs and expenses 61. The applicant also claimed EUR 3,010 in respect of legal fees for 43 hours of legal work on the case before the Court at the hourly rate of EUR 70. He also claimed EUR 60 in respect of postage and stationary expenses.", "In support of these claims the applicant submitted a time sheet and a legal fees agreement between him and his lawyers. The applicant requested that the amounts awarded in respect of costs and expenses should be paid directly into the bank account of his legal representatives. 62. The Government did not express an opinion on the matter. 63.", "According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court, taking into consideration in particular the fact that part of the complaints were rejected and the relatively low level of complexity of this case, the Court considers it reasonable to award the sum of EUR 500 covering costs under all heads. C. Default interest 64. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaints concerning the excessive length of the proceedings and lack of effective remedies in this respect admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,200 (one thousand and two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage and EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, both amounts to be converted into Bulgarian levs at the rate applicable at the date of settlement; (b) that the sum awarded in respect of costs and expenses, namely EUR 500 (five hundred euros) be paid directly into the bank account of the applicant's representatives; (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 5 November 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]

[ "FIFTH SECTION CASE OF SIKORSKA v. UKRAINE (Application no. 34339/03) JUDGMENT STRASBOURG 6 September 2007 FINAL 06/12/2007 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 Sikorska v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: MrP. Lorenzen, President,MrK.", "Jungwiert,MrV. Butkevych,MrsM. Tsatsa-Nikolovska,MrJ. Borrego Borrego,MrsR. Jaeger,MrM.", "Villiger, judges,and Mr J.S. Phillips, Deputy Section Registrar, Having deliberated in private on 10 July 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 34339/03) 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, Mrs Olga Stepanivna Sikorska (“the applicant”), on 29 August 2003. 2.", "The Ukrainian Government (“the Government”) were represented by their Agent, Mrs Valeriya Lutkovska. 3. On 8 April 2005 the Court decided to communicate the complaint concerning the non-enforcement of the judgment in the applicant's favour to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1952 and lives in the city of Zhytomyr. 1. Non-enforcement of the judgment in the applicant's favour 5. From 1988 to 2001 the applicant worked as a teacher at the Zhytomyr Orphanage (Житомирський обласний будинок дитини; hereafter “the Orphanage”).", "6. On 27 September 2001 the Bogunsky District Court of Zhytomir (hereinafter “the Bogunsky Court”) ordered the Orphanage to pay the applicant a total of UAH 3,483.60 (an equivalent of EUR 508.25) in compensation for salary and social benefits arrears (see, in this respect, Kechko v. Ukraine, no. 63134/00, §§ 9-11, 8 November 2005). 7. In a letter of 10 October 2003, the Zhytomyr Regional Department of Justice informed the applicant that the judgment in her favour could not be enforced due to the debtor's lack of funds.", "It also pointed out that the 2003 State Budget did not preview the expenditure for teachers' social benefits and that the Zhytomyr Regional State Administration applied to the Ministry of Finance for a loan for the payment of the debt to the applicant. 8. The judgment of 27 September 2001 remains unenforced. 2. Reinstatement proceedings 9.", "In November 2001 the applicant instituted proceedings against the Orphanage seeking her reinstatement and compensation for the loss of salary. On 31 May 2002 the Bogunsky Court rejected this claim as unsubstantiated. On 12 September 2002 the Zhytomyr Regional Court of Appeal upheld this judgment. On 12 February 2003 the Supreme Court rejected the applicant's cassation appeal. II.", "RELEVANT DOMESTIC LAW 10. The relevant domestic law is summarised in the judgments of Romashov v. Ukraine (no. 67534/01, §§ 16-19) and Kechko v. Ukraine (cited above, §§ 16-18). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 11.", "Relying on Article 6 § 1 of the Convention, the applicant complained about the non-enforcement of the judgment given in her favour. This provision reads, insofar as relevant, as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” A. Admissibility 12. The Government raised objections, contested by the applicant, similar to those already dismissed in a number of the Court's judgments regarding non-enforcement against the State institutions (see Voytenko v. Ukraine, no. 18966/02, § 27-31, 29 June 2004 and Romashov v. Ukraine, cited above, §§ 28-32).", "The Court considers that these objections must be rejected for the same reasons. 13. The Court concludes that the applicant's complaint under Article 6 § 1 of the Convention raises issues of fact and law under the Convention, the determination of which requires an examination of the merits. It finds no ground for declaring this complaint inadmissible. The Court must therefore declare it admissible.", "B. Merits 14. The Government acknowledged the need to enforce the judgment given in favour of the applicant. They stated that the judgment of 27 September 2001 had remained unenforced due to a lack of budget funding, which, in turn, was caused by the State's critical financial situation. 15.", "The applicant disagreed. 16. The Court notes that in the present case the enforcement of the judgment in the applicant's favour was delayed for five years and nine months due to the State's failure to foresee the relevant expenditure in the State Budget. 17. The Court accepts that appropriations for the payment of State debts may cause some delay in the enforcement of judgments from the Government's budget.", "Nevertheless, the Court considers that, by failing to make such appropriations for several consecutive years, the respondent State fell short of its obligations under Article 6 § 1 of the Convention (see Voytenko v. Ukraine, cited above, § 42, 29 June 2004). Moreover the State's lack of funds cannot justify the non-enforcement of a court judgment against it. 18. The foregoing considerations lead the Court to conclude that the enforcement of the judgment given in favour of the applicant was not carried out within a reasonable time. 19.", "There has accordingly been a violation of Article 6 § 1 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 20. The applicant also complained under Articles 1 and 6 § 1 of the Convention about the unfairness and outcome of the reinstatement proceedings. 21.", "However, in the light of all the materials in its possession, 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 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 23.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 24. The applicant claimed EUR 5,000 in respect of pecuniary and non-pecuniary damage. 25. The Government found the applicant's claims excessive and unjustified.", "26. In so far as the debt under the judgment of 27 September 2001 in the applicant's favour has not been paid (paragraph 6 above), the Court notes that the State's outstanding obligation to enforce this judgment is not in dispute. Accordingly, the Court considers that, if the Government were to pay the remaining debt owed to the applicant, it would constitute full and final settlement of the case. 27. As regards the remainder of the applicant's claims for pecuniary and non-pecuniary damage, the Court, making its assessment on equitable basis, as required by Article 41 of the Convention, considers it reasonable to award the applicant EUR 2,600 in respect of her non-pecuniary damage.", "B. Costs and expenses 28. The applicant also claimed UAH 300 for the costs and expenses incurred before the domestic courts and before the Court. 29. The Government contested the claim.", "30. The Court notes that the applicant failed to substantiate her claim and provide necessary documents to support it. Regard being had to the information in its possession, the Court makes no award. C. Default interest 31. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the non-enforcement of the judgment in the applicant's favour admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2600 (two thousand and six 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 6 September 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsPeer LorenzenDeputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF KÁNTOR v. HUNGARY (Application no. 458/03) JUDGMENT STRASBOURG 22 November 2005 FINAL 22/02/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kántor v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrR.", "Türmen,MrK. Jungwiert,MrM. Ugrekhelidze,MsD. Jočienė,MrD. Popović, judges, and Mrs S. Dollé, Section Registrar, Having deliberated in private on 3 November 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 458/03) 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 Ferenc Kántor (“the applicant”), on 19 November 2002. 2. The Hungarian Government (“the Government”) were represented by their Agent, Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice. 3.", "On 8 October 2004 the Court decided to communicate the application. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1940 and lives in Balatonkenese. 5.", "The applicant brought an action against a building society for repossession of real property. He also claimed compensation. On 15 May 1992 the Budapest Regional Court awarded him 624,986 Hungarian forints (HUF) in compensation. 6. On 28 October 1994 the applicant, being dissatisfied with the award, brought another action for compensation against the building society on partly modified legal grounds.", "After having held a hearing on 23 February 1995, the Buda Central District Court dismissed his action on 12 March 1995. The applicant appealed. 7. On 11 October 1995 the Budapest Regional Court upheld the District Court’s judgment. The applicant filed a petition for review on 19 January 1996.", "8. On 30 May 1997 the Supreme Court quashed both decisions and remitted the case to the first-instance court. 9. In the resumed proceedings, on 1 December 1997 the case was given priority. Hearings took place on 17 December 1997 and 19 March 1998.", "On 12 May 1998 a real-estate expert was appointed. Following a warning, the latter presented his opinion 30 September 1998. 10. On 13 October 1998 the Buda Central District Court held a hearing and, on 21 October 1998, dismissed the applicant’s action. The applicant appealed.", "11. On 26 May 1999 the Budapest Regional Court dismissed his motion for bias. 12. On 2 June 1999 the Regional Court held a hearing and, on 9 July 1999, partly changed the first-instance judgment and awarded the applicant HUF 152,204 in compensation. The applicant filed a petition for review on 7 January 2000.", "13. On 27 February 2002 the Supreme Court upheld the Regional Court’s decision. This judgment was served on 23 May 2002. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 14.", "The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 15. The Government contested that argument. 16. The period to be taken into consideration began on 28 October 1994 and ended on 23 May 2002 with the service of the Supreme Court’s decision. It thus lasted nearly seven years and seven months for three levels of jurisdiction.", "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 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). 19. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).", "20. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers, in particular in view of the protracted nature of the review proceedings, 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.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 21. Relying on Articles 6 and 7 of the Convention, the applicant complained that the proceedings were unfair and their outcome was wrong. 22. In so far as the applicant’s complaint may be understood to concern the assessment of the evidence and the result of the proceedings before the domestic courts, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention.", "Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (García Ruiz v. Spain [GC], no. 30544/96, § 28). In the present case, there is no appearance that the courts lacked impartiality or that the proceedings were otherwise unfair. Moreover, the applicant’s submissions do not raise any issue under Article 7 of the Convention. 23.", "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 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 80 million Hungarian forints in respect of pecuniary and non-pecuniary damage. 26. The Government contested these claims. 27. 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 applicant must have sustained some non-pecuniary damage. Ruling on an equitable basis, it awards award him 3,500 euros (EUR) under that head. B. Costs and expenses 28. The applicant made no claim under this head.", "C. Default interest 29. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the 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 in accordance with Article 44 § 2 of the Convention, EUR 3,500 (three 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 22 November 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléJ.-P. CostaRegistrarPresident" ]

[ "THIRD SECTION CASE OF STEPANOV AND OTHERS v. RUSSIA (Application no. 27015/12 and 6 others - see appended list) JUDGMENT STRASBOURG 11 January 2018 This judgment is final but it may be subject to editorial revision. In the case of Stepanov 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 7 December 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention.", "Some applicants also raised other complaints under the provisions of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 6.", "The applicants complained principally of the inadequate conditions of their detention. They relied on Article 3 of the Convention, which reads as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 7. The Court notes that the applicants were kept in detention in poor conditions. The details of the applicants’ detention are indicated in the appended table. The Court refers to the principles established in its case‑law regarding inadequate conditions of detention (see, for instance, 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). 8. In the leading case of Ananyev and Others v. Russia, cited above, 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. Some applicants submitted complaints under Article 13 of the Convention, in accordance with the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible.", "Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Ananyev and Others, cited above, §§ 100-119, related to the lack of an effective domestic remedy to complain about inadequate conditions of detention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 12. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 13. Regard being had to the documents in its possession and to its case‑law (see, in particular, Ananyev and Others v. Russia, cited above, § 172), the Court considers it reasonable to award the sums indicated in the appended table.", "14. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the applications admissible; 3.", "Holds that these applications disclose a breach of Article 3 of the Convention concerning the inadequate conditions of detention; 4. Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table); 5. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 11 January 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 Representative name and location Facility Start and end date Duration Inmates per brigade Sq. m. per inmate Number of toilets per brigade Specific grievances Other complaints under well-established case-law Amount awarded for pecuniary and non‑pecuniary damage and costs and expenses per applicant (in euros)[1] 27015/12 05/01/2013 Andriyan Nikolayevich Stepanov 15/01/1976 IZ-66/1 Yekaterinburg 11/12/2011 to 13/12/2012 1 year(s) and 3 day(s) 0.97 m² not provided with an individual sleeping place and had to share one with inmates, inadequate separation of toilet from living area, dim electric light, no hot water, inadequate condition of bedding and bed linen, poor food quality, roofed walking yards of about 15 sq.m. for 7-24 inmates, irregular walks for 30-60 min., shower once in 10 days for 15 min. in a room of 5-6 sq.m.", "with 2-3 shower heads for 12-15 inmates, shower walls covered with mould Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 5,300 35210/16 06/06/2016 Vladimir Faukatovich Zaynullin 06/10/1986 IK-13 (PFRSI), Nizhny Tagil; IVS in Ekaterinburg 22/04/2013 to 19/12/2015 2 year(s) and 7 month(s) and 28 day(s) overcrowding, passive smoking, insufficient natural light, mouldy or dirty cell, sharing cells with inmates infected with contagious disease, poor quality of food, constant electric light, lack of or insufficient physical exercise in fresh air, lack of privacy for toilet, no or restricted access to warm water Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 10,000 40467/16 27/06/2016 Viktor Valeryevich Sablin 11/03/1976 IK-2, Zbaykalskiy Region (ЯГ-14/2), ward-type premises 04/11/2015 to 31/03/2016 4 month(s) and 28 day(s) 6 inmate(s) 2.5 m² 1 toilet(s) overcrowding, lack of or insufficient natural light, constant electric light, lack of fresh air Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 2,500 48141/16 08/08/2016 Vladislav Olegovich Saburov 06/07/1992 IZ-1 Ivanovo 23/12/2015 to 13/07/2016 6 month(s) and 21 day(s) 0,2-2,9 m² 1 toilet(s) overcrowding, passive smoking, lack of fresh air, lack or inadequate furniture, lack of or insufficient electric light, lack of or insufficient natural light, inadequate temperature, no or restricted access to warm water, infestation of cell with insects/rodents, no or restricted access to shower, mouldy or dirty cell, lack of or insufficient physical exercise in fresh air, lack of or restricted access to leisure or educational activities, insufficient number of sleeping places, lack of or inadequate hygienic facilities, no or restricted access to toilet, lack of or poor quality of bedding and bed linen Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 3,200 78007/16 28/11/2016 Mikhail Aleksandrovich Barantsev 29/10/1980 SIZO-1 Nizhniy Novgorod Region 08/04/2016 to 25/07/2016 3 month(s) and 18 day(s) 12 inmate(s) 2.1 m² lack of privacy for toilet, infestation of cell with insects/rodents, no or restricted access to shower, inadequate temperature, passive smoking, no or restricted access to warm water 2,100 5883/17 04/01/2017 Aleksey Viktorovich Nikitin 04/02/1989 IZ-1 Primorsky Region 22/03/2015 to 28/07/2016 1 year(s) and 4 month(s) and 7 day(s) 2-3.6 m² inadequate temperature, lack of privacy for toilet, no or restricted access to running water, lack of fresh air, lack of or insufficient natural light, lack of or insufficient electric light, infestation of cell with insects/rodents, mouldy or dirty cell, sharing cells with inmates infected with contagious disease, lack of or insufficient physical exercise in fresh air, poor quality of food 6,300 7590/17 12/01/2017 Mavlud Ibadulayevich Kerimov 10/08/1994 Preobrazhenskaya Oksana Vladimirovna Strasbourg IZ-1 Stavropol Region 07/03/2015 to 22/02/2016 11 month(s) and 16 day(s) IZ-1 Rostov-on-Don Region 22/02/2016 pending More than 1 year(s) and 8 month(s) and 28 day(s) 1.2 - 3 m² 1.1 m² overcrowding, lack of fresh air, passive smoking, constant electric light, lack of or insufficient natural light, lack of privacy for toilet, no or restricted access to shower, lack of or insufficient physical exercise in fresh air, no or restricted access to potable water, poor quality of food overcrowding, insufficient number of sleeping places, lack of fresh air, passive smoking, no or restricted access to shower, lack of privacy for toilet, lack of or insufficient physical exercise in fresh air Art.", "13 - lack of any effective remedy in respect of inadequate conditions of detention - 10,300 [1] Plus any tax that may be chargeable to the applicants" ]

[ "THIRD SECTION CASE OF PARENIUC v. THE REPUBLIC OF MOLDOVA (Application no. 17953/08) JUDGMENT STRASBOURG 1 July 2014 FINAL 01/10/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Pareniuc v. the Republic of Moldova, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Alvina Gyulumyan,Ján Šikuta,Dragoljub Popović,Luis López Guerra,Johannes Silvis,Valeriu Griţco, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 10 June 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "17953/08) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mrs Vera Pareniuc (“the applicant”), on 11 March 2008. 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 L. Apostol. 3.", "The applicant alleged, in particular, that she had been the victim of entrapment, as a result of which she had committed a criminal offence. 4. On 24 May 2012 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1955 and lives in Edineț. At the time of the events the applicant was working as a tax inspector at the Edineț tax authority. 6. On 17 February 2004 Z., the owner of a small shop, lodged a criminal complaint against the applicant. He stated that on an unspecified date he had visited the applicant for the purpose of de-registering his till and closing down his shop.", "When the applicant compared data in the till’s memory with the shop owner’s books, she found a discrepancy in the figures and told him that he risked incurring a fine. According to Z., the applicant implied to him that the matter could be resolved if he agreed to pay her an amount of money which she wrote on a piece of paper. Z. understood that the applicant was asking for a bribe. 7. On 17 February 2004, the police organised an undercover operation.", "They fitted Z. with a wire and instructed him to meet the applicant in her office and give her banknotes marked with special powder. 8. According to the transcript of the conversation between Z. and the applicant during the police operation, Z. was grateful to the applicant for helping him and offered her a reward, but the applicant refused to accept it. He insisted and asked the applicant “How much?” to which she answered “Nothing”. Z. continued to insist, and said “I do not want you to worry about this.", "How much?” The applicant did not answer. Z. insisted: “One, two hundred?” but the applicant refused again. Z. then said “At least fifty, please”. The applicant conceded, saying “It’s up to you”. Z. said “If it’s up to me, then at least fifty more”.", "The applicant said “A painting would be nice”. Z. asked “What painting?” The rest of the conversation is not clear because only Z.’s words are recorded in the transcript, while there is a blank space in respect of the applicant. However, it would appear from Z.’s statements that the applicant finally agreed to accept the money offered by him in order to buy a painting. 9. Immediately after that, police officers entered and arrested the applicant.", "They found 200 lei (MDL) (the equivalent of approximately 11 euros (EUR)) marked with special powder in the pocket of her coat, which was hanging in the next office. 10. In her statements to the police the applicant submitted that on 13 February 2004 Z. had gone to her office for the purpose of de-registering his till. She noted that the last entry in the till’s memory had not been reflected in the shop owner’s books and helped him solve the problem by asking a technician to remove the last entry from the till’s memory. On 17 February 2004 Z. went to her office and offered to pay for her help.", "She refused but as he kept insisting she eventually agreed to accept from him a painting for the office. After he left she saw MDL 200 on her table and ran after him to give them back; however, she could not find him. She returned to the office to call him on his mobile phone when police officers entered and arrested her. Subsequently, she changed her statements to the effect that after she had refused to take money from Z., on his way out Z. had placed the money in the pocket of her coat, which had been hanging in the next office. She also argued that she had been set up by the police.", "11. In his statements to the police, Z. submitted that he had had a problem with his accounting because he had forgotten to reflect the last entry in the till in the books. Z. told the applicant that he was prepared to reward her for her help, to which she replied that she was afraid of accepting payment because she had already been suspected of bribe taking. Nevertheless, she accepted to help him. Z. left the till with her and sometime later a technician solved the problem.", "On 17 February 2004 Z. complained to the police and an undercover operation was organised. He then went to the applicant’s office wearing a wire and offered her money. At first she declined his proposal but eventually she accepted to receive a painting for her new office. Z. put MDL 200 on her table but she returned MDL 100 to him. Z. then told her to buy a nice painting and gave her back the MDL 100.", "She took the money and asked him to accompany her to the market to buy the painting. However, he refused to do so, claiming that he was busy, and left the office. Subsequently, Z. changed his statement to the effect that he had placed the money in the pocket of the applicant’s coat, which had been hanging in another office, and that he did not know whether she had been aware that he had placed the money there. 12. Four more counts of bribe taking, which had allegedly taken place between 1999 and 2003, were added to the criminal charge against the applicant.", "They were all based solely on statements of the alleged victims made after the undercover operation of 17 February 2004. 13. On 28 January 2005 the prosecutor in charge of the criminal case against her stated in an interview to a newspaper that the applicant had accepted a bribe. 14. During the court proceedings the applicant argued, inter alia, that she had been a victim of police entrapment.", "15. On 9 March 2005 the Edinet District Court convicted the applicant of bribe taking in respect of the incident of 17 February 2004 and fined her some EUR 300. In convicting the applicant the court found that Z. had visited her in her office and had placed money in the pocket of her coat, which had been hanging on a coat rack, in exchange for services concerning a till. The court did not examine the applicant’s allegation that she had been the victim of incitement. At the same time the court acquitted the applicant of the other counts of alleged bribe taking.", "The court found the incriminating statements in respect of those incidents unfounded and/or that they had been extracted by way of pressure by the prosecuting authorities. 16. The applicant appealed against that judgment and argued, inter alia, that she had been a victim of entrapment. She also argued that the transcript of the conversation between her and Z. had been tampered with because the last part of the recording in which Z. told a police officer that he had planted the money did not appear in the transcript. The prosecutor also appealed, claiming that the penalty was too mild.", "17. On 1 July 2005 the Balti Court of Appeal dismissed the applicant’s appeal without considering her allegation of entrapment. At the same time the court allowed the appeal lodged by the prosecutor’s office and changed the penalty to a criminal fine of EUR 1,200 and a three-year suspended sentence. 18. The applicant lodged an appeal on points of law with the Supreme Court of Justice, arguing, inter alia, that she had been the victim of entrapment.", "19. On 6 December 2005 the Supreme Court of Justice dismissed the applicant’s appeal. The applicant then lodged an extraordinary appeal, which was allowed by the Supreme Court on 3 April 2006. The Supreme Court of Justice found that no confrontation had been carried out between the applicant and Z. during the proceedings. It therefore set aside its decision of 6 December 2005, quashed the decision of the Balti Court of Appeal of 1 July 2005 and ordered a fresh hearing of the case by the Balti Court of Appeal.", "20. On 20 September 2006 the Balti Court of Appeal allowed the applicant’s appeal against the judgment of the Edineț District Court of 9 March 2005 and acquitted her on the grounds, inter alia, that there were inconsistencies in Z.’s statements and that there was no evidence to support the allegation that she had been aware that money had been placed in her coat pocket. The court also referred to the transcript of the recording of the encounter between the applicant and Z. and found that the latter had acted as an agent provocateur. 21. On 16 January 2007 the Supreme Court of Justice allowed an appeal on points of law lodged by the prosecutor, quashed the decision of the Balti Court of Appeal of 20 September 2006 and ordered it to re-examine the appeals against the judgment of 9 March 2005.", "22. On 21 March 2007 the Balti Court of Appeal dismissed the applicant’s appeal against the judgment of 9 March 2005 and allowed the appeal lodged by the prosecutor. The court considered that the evidence in its possession indicated the applicant’s guilt “even if the applicant had been provoked by Z”. In particular, the court dismissed the applicant’s contention that she had not been aware that Z. had put money in her coat pocket by referring to the fact that traces of special powder had been found on her hands. The court increased the penalty to a fine of EUR 1,200 and a suspended sentence of three years’ imprisonment.", "The applicant was also banned from working for the tax authority for a period of three years. 23. The applicant lodged an appeal on points of law, arguing, inter alia, that Z. had acted as an agent provocateur and that she had been the victim of entrapment. She also argued that the transcript of her conversation with Z. had been tampered with and submitted that, in view of the absence of the original recording, her conviction could not be based on it. 24.", "On 12 September 2007 the Supreme Court of Justice dismissed the applicant’s appeal on points of law without considering her claim of entrapment. II. RELEVANT DOMESTIC LAW 25. Until 2012 the Moldovan Code of Criminal Procedure did not contain any formal ban on the use of evidence obtained by way of entrapment or incitement. 26.", "The offence of which the applicant was found guilty is provided by by Article 330 of the Criminal Code, is called “unlawful enrichment” and is punished with fine of up to 7,000 Moldovan lei or to imprisonment of up to seven years. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 27. The applicant complained that she had been incited to commit the crime of accepting a bribe and that the domestic courts had not given sufficient reasons in their decisions. She also complained that her right to be presumed innocent had been breached by the prosecutor in charge of the case, who had stated in an interview that she had accepted a bribe.", "She relied on Article 6 of the Convention, the relevant parts of which read as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 28. The Court notes that 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 29. The applicant alleged that she had been a victim of entrapment by the police and that Z. had acted on instructions received from them. Z. did not confine himself to observing criminal activity in a passive manner but exerted direct influence on her so as to incite her to commit an offence. The transcript of her conversation with Z. proved that he had incited her.", "Moreover, the transcript did not prove that the applicant had accepted the money offered by Z. 30. The applicant further submitted that she had pleaded before the domestic courts that she had been a victim of incitement, but that the courts had failed to examine her plea. Only the Balti Court of Appeal took account of that argument in its decision of 20 September 2006 and concluded that the applicant had been incited to commit the imputed offence. However, that decision was later quashed.", "31. Lastly, the applicant submitted that the courts had failed to address her arguments during the proceedings and had issued unreasoned judgments. 32. The Government contended that the applicant had not been a victim of incitement and that she had failed to prove her allegations of incitement in the proceedings before both the domestic courts and the Court. In the Government’s view, the applicant had failed properly to substantiate her allegations of incitement before the domestic courts.", "She merely stated that she had been incited by Z., without giving any details. As a result, the domestic courts had not been obliged to examine her allegation. Moreover, the domestic courts addressed all the important arguments raised by the applicant in her defence. 2. The Court’s assessment 33.", "The Court reiterates that as a general rule the admissibility and assessment of evidence is a matter for regulation by national law and appreciation by the domestic courts (see, among other authorities, Van Mechelen and Others v. the Netherlands, 23 April 1997, § 50, Reports of Judgments and Decisions 1997-III). Nevertheless, the admission of some evidence can render a trial unfair. Such has been found to be the case, for instance, of evidence obtained as a result of ill-treatment with the aim of extracting a confession (see Jalloh v. Germany [GC], no. 54810/00, § 99, ECHR 2006‑IX) or of evidence obtained by way of police incitement or entrapment (see Teixeira de Castro v. Portugal, 9 June 1998, Reports, § 38, 1998-IV). 34.", "In so far as police incitement is concerned, the Court held in Teixeira de Castro (cited above) that the right to a fair trial would be violated where police officers had stepped beyond an essentially passive investigation of a suspect’s criminal activities and had exercised an influence such as to incite the commission of an offence that would otherwise not have been committed. In Vanyan v. Russia (no. 53203/99, §§ 45-50, 15 December 2005) the Court went further and considered that the issue of entrapment or incitement could be relevant even where the operation was carried out by a private individual acting as an undercover agent, when it had actually been organised and supervised by the police. 35. In view of the importance of the above principles, the Court held in Ramanauskas v. Lithuania ([GC], no.", "74420/01, § 60, ECHR 2008) that where an accused asserted that he had been incited to commit an offence, the criminal courts must carry out a careful examination of the material in the file, since for the trial to be fair within the meaning of Article 6 § 1 of the Convention, all evidence obtained as a result of police entrapment must be excluded. This was especially true where the police operation had taken place without a sufficient legal framework or adequate safeguards. 36. Lastly, where the information disclosed by the prosecution authorities does not enable the Court to conclude whether the applicant was subjected to police incitement, it is essential that the Court examine the procedure whereby the plea of incitement was determined in each case in order to ensure that the rights of the defence were adequately protected, in particular the right to adversarial proceedings and to equality of arms (see Edwards and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98, §§ 46-48, ECHR 2004‑X).", "For more general principles concerning the problem of entrapment see Bannikova v. Russia (no. 18757/06, §§ 33-65, 4 November 2010). 37. Turning to the facts of the present case, the Court notes that the applicant was convicted on the strength of evidence obtained during the undercover operation of 17 February 2004, when Z., after having been wired by the police, gave her money. 38.", "It does not appear from the materials of the case that before 17 February 2004 the authorities had knowledge of or any objective evidence that the applicant had previously been involved in taking bribes. It is true that several other counts of bribe taking were added later to the charge against her (see paragraph 12 above); however, there is no indication in the case materials, and the Government have not argued, that information or evidence about those incidents had been obtained by the police prior to the commencement of the criminal investigation against the applicant. 39. In his complaint to the police of 17 February 2004, Z. alleged that the applicant had asked him for a specific sum of money. However, the transcript of the discussion between him and the applicant, during the undercover operation, indicates the contrary.", "Z. asked the applicant how much money to give her and, after receiving several clear refusals, insisted on giving her the money until she conceded (see paragraph 8 above). This, in the Court’s opinion, clearly demonstrates that the applicant was subjected to blatant prompting and incitement to engage in the criminal activity of which she was convicted, in the absence of any indication that the offence would have been committed without such intervention. 40. Against this background the Court notes that throughout the proceedings the applicant maintained that she had been a victim of police entrapment. The Government argued that she had not been sufficiently explicit in her submissions; however, the Court does not share that point of view.", "Not only did the applicant clearly indicate the allegation of incitement in her submissions, but also some of the courts clearly heard her contention. The Balti Court of Appeal acquitted the applicant in its decision of 20 September 2006 precisely on the ground of incitement, whereas in its final decision of 21 March 2007 it considered the allegation of incitement raised by her as irrelevant (see paragraphs 20 and 22). The Supreme Court of Justice chose not to take into account the argument raised by the applicant in her defence. 41. In the light of the above, the Court considers that the criminal proceedings against the applicant were not fair and that there has been a violation of Article 6 § 1.", "In the circumstances, it does not consider it necessary to examine, additionally, whether other aspects of the proceedings complied with that provision. 42. There has therefore been a violation of Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 43.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 44. The applicant claimed 15,000 euros (EUR) for non-pecuniary damage resulting from the anguish and humiliation of being unlawfully convicted for a criminal offence which she had not committed. 45. The Government disagreed and asked the Court to reject this claim as unsubstantiated.", "46. The Court considers that the applicant must have been caused a certain amount of stress and frustration as a result of the breach of her right to a fair trial. Making its assessment on an equitable basis, it awards the applicant EUR 3,500 for non-pecuniary damage. B. Costs and expenses 47.", "The applicant also claimed EUR 2,440 for the costs and expenses incurred before the Court. She submitted a detailed time-sheet. 48. The Government contested this amount and argued that it was excessive and unsubstantiated. 49.", "The Court awards the entire amount claimed for costs and expenses. 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 application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the complaint concerning incitement; 3. Holds that there is no need to examine the remainder of the complaints under Article 6 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 3,500 (three thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 2,440 (two thousand four hundred and forty 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 1 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident" ]

[ "THIRD SECTION CASE OF SHATOKHIN v. RUSSIA (Application no. 50236/06) JUDGMENT This judgment was revised in accordance with Rule 80 of the Rules of Court in a judgment of 16 October 2018 STRASBOURG 27 February 2018 This judgment is final but it may be subject to editorial revision In the case of Shatokhin 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 Fatoş Aracı, 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. 50236/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Konstantin Yuryevich Shatokhin (“the applicant”), on 16 November 2006. 2.", "The applicant, who had been granted legal aid, was represented by Mr I. Kuptsov, a lawyer practising in the Altay region. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3. On 18 March 2011 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1982 and lives in the Altay region. 5. At the material time the applicant was serving a sentence for robbery in correctional colony no. LIU-8 in the Altay region.", "6. On 22 June, 12 July and 20 December 2004 he attempted suicide by opening his veins. 7. On 12 July 2004 a prison psychiatrist diagnosed the applicant as suffering from a slight mental retardation, psychopathy and claustrophobia with elements of self-aggression. An entry was made in his medical records that solitary confinement was contraindicated for mental health reasons.", "The correctional colony authorities were informed accordingly. The applicant was prescribed treatment. Since that time he had been examined by the prison psychiatrist at regular intervals. The prison psychiatrist’s diagnosis and recommendations were confirmed by the psychiatric unit of prison hospital no. 12 where the applicant was treated from 2 to 26 April 2005.", "8. On 3 May 2005 the governor of the correctional colony ordered the applicant’s placement in a punishment cell for thirteen days as a punishment for the disorderly state of his bed and bedside table. 9. On 5 May 2005 the applicant was examined by the prison doctor on duty who found that his state of health permitted his placement in a punishment cell, provided that he was not held in solitary confinement. 10.", "The applicant was then placed in punishment cell no. 32 designed to accommodate two inmates. He was left alone in the cell, but the door was kept open. 11. On the same day the applicant went on a hunger strike in protest against his placement in solitary confinement.", "12. At 8 p.m. on 8 May 2005 the applicant was visited by the prison doctor on duty who examined him and found that his health was satisfactory. He reiterated the recommendation that given the applicant’s mental condition solitary confinement was contraindicated. 13. After the doctor left, the door of the applicant’s cell was shut.", "About an hour later the applicant had a panic attack and attempted to open his veins with his teeth. The doctor was called back. He noted numerous lacerated wounds on the applicant’s forearms and made bandages. 14. By letters of 15 June, 8 August and 1 November 2005 the applicant asked the prosecutor’s office of the Altay Region to initiate criminal proceedings against the warders on duty.", "15. On 15 December 2005 a deputy prosecutor of Barnaul refused to open criminal proceedings. He referred to statements by a warder, Mr Sh., that the applicant had himself asked him to shut the door. Moreover, the applicant’s health had not been seriously damaged as a result of the incident. 16.", "It follows from the letter of 16 December 2005 from the prosecutor of Barnaul that the prosecutor’s office had found that the applicant had been lawfully placed in a punishment cell. At the same time, the warders had disrespected the doctor’s recommendation by leaving the applicant alone in a closed cell. The governor of correctional colony no. LIU-8 had been warned against “permitting similar incidents to occur in future”. 17.", "Following to further complaints by the applicant, in which he stated in particular that he had never asked the warders to close the door, the prosecutor of Barnaul conducted an additional inquiry. He questioned the applicant and Mr Sh. He also questioned warders Mr K. and Mr S. who testified that the door to the applicant’s cell had been temporarily closed to prevent his communication with other inmates who were at that time receiving clean bedding in the storage room opposite to the applicant’s cell. 18. On 27 January 2006 the prosecutor of Baranaul refused to open criminal proceedings against the warders.", "He found that the warders had acted in compliance with the internal regulations and had had no intention of provoking the applicant to self-injury. 19. The applicant challenged the prosecutor’s decisions of 15 December 2005 and 27 January 2006 before the Tsentralniy District Court of Barnaul. 20. On 27 September 2006 the Tsentralniy District Court upheld the prosecutor’s decisions, finding that the inquiry had been thorough and the refusals to open criminal proceedings had been lawful and justified.", "21. The applicant appealed. He submitted, in particular, that the warders had known that he suffered from claustrophobia and had closed the door to take vengeance on him for going on a hunger strike. 22. On 2 November 2006 the Altay Regional Court upheld the decision of 27 September 2006 on appeal.", "II. RELEVANT DOMESTIC LAW 23. The 1997 Penitentiary Code provides that a convict in detention who has breached penitentiary rules may be subjected to the following punishment measures: (i) a reprimand; (ii) a fine; (iii) placement in a punishment cell for up to fifteen days, applicable to convicts in a correctional colony or a prison; (iv) placement in cell-type quarters for up to one year for men or up to three months for women, applicable to convicts declared “habitual breakers of penitentiary rules”; (v) placement in solitary confinement for up to six months, applicable to male convicts in a maximum-security correctional colony who have been declared “habitual breakers of penitentiary rules” (Article 115 § 1). 24. Convicts placed in a punishment call may not have visits or telephone calls, buy food or receive parcels from outside.", "They are entitled to a one-hour outdoor activity per day (Article 118 § 1 of the Penitentiary Code). LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 25. The applicant complained that his placement in solitary confinement in a punishment cell, despite his condition, had amounted to treatment in breach of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 26. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 27. The applicant complained that he had been placed in solitary confinement despite his diagnosis and the doctors’ clear injunction that he should not be held in solitary confinement.", "After he had spent three days alone in his cell and after the door had been kept closed for quite a long time, he had had a panic attack and had inflicted injuries on himself. The applicant argued that the prison authorities had known about the risk of self‑injury as he had earlier inflicted injuries on himself in similar circumstances, that is to say while he was held in solitary confinement in a punishment cell. 28. The Government submitted that the applicant was a “habitual breaker of penitentiary rules”. During his detention he had committed thirty‑eight breaches of penitentiary rules, had been reprimanded six times, placed in a punishment cell twenty-seven times and in cell-type quarters five times.", "His placement in a punishment cell in May 2005 had been justified by his unruly behaviour. The punishment had been sanctioned by the prison doctor who had confirmed that the applicant’s health permitted his detention in a punishment cell, provided that he was not placed in solitary confinement. The conditions of the applicant’s detention in the punishment cell had been satisfactory. He had been provided with food. His cell had lavatory facilities, a window and all necessary furniture.", "It was heated, ventilated and adequately lit. 29. The Government further submitted that punishment cells were designed to accommodate two inmates, but the applicant had been left alone in the punishment cell to exclude a bad influence on other inmates. The door had been however kept open and his psychological state was regularly monitored by the prison doctor. On 8 May 2005 the door to the applicant’s cell had been temporarily closed while the warders were distributing bedding to other inmates.", "The warders had acted lawfully as it was prohibited by the internal rules to have several doors open at the same time. It was at that moment that the applicant had inflicted injuries to himself. He had been immediately given first aid by the doctor on duty. An inquiry had been conducted into the incident which had found that there were no reasons to open criminal proceedings. Given that the applicant had committed numerous breaches of the penitentiary rules, that the authorities had taken measures to protect him from his suicidal tendencies and had provided him with medical assistance immediately after the incident, the Government argued that the applicant’s placement in solitary confinement had not breached Article 3.", "30. The Court reiterates that the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment (see, among other authorities, Öcalan v. Turkey [GC], no. 46221/99, § 191, ECHR 2005‑IV). Whilst prolonged removal from association with others is undesirable, the question of whether or not such a measure falls within the ambit of Article 3 of the Convention depends on the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned (see Rohde v. Denmark, no. 69332/01, § 93, 21 July 2005).", "Solitary confinement is one of the most serious measures which can be imposed within a prison. In view of the gravity of the measure, the domestic authorities are under an obligation to assess all the relevant factors in an inmate’s case before placing him in solitary confinement (see Ramishvili and Kokhreidze v. Georgia, no. 1704/06, § 83, 27 January 2009, and Onoufriou v. Cyprus, no. 24407/04, § 71, 7 January 2010). In order to avoid any risk of arbitrariness resulting from a decision to place a prisoner in solitary confinement, the decision must be accompanied by procedural safeguards guaranteeing the prisoner’s welfare and the proportionality of the measure (see Ramirez Sanchez v. France [GC], no.", "59450/00, § 139, ECHR 2006‑IX; Onoufriou, cited above, § 70; and A.L. (X.W.) v. Russia, no. 44095/14, § 76, 29 October 2015). 31.", "The Court further reiterates that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them (see Keenan v. the United Kingdom, no. 27229/95, § 91, ECHR 2001‑III, and Trubnikov v. Russia, no. 49790/99, § 68, 5 July 2005). In the case of mentally ill persons, regard must be had to their particular vulnerability (see Aerts v. Belgium, 30 July 1998, § 66, Reports of Judgments and Decisions 1998‑V; Keenan, cited above, § 111; Rivière v. France, no. 33834/03, § 63, 11 July 2006).", "There are general measures and precautions which will be available to diminish the opportunities for self-harm, without infringing personal autonomy. Whether any more stringent measures are necessary in respect of a prisoner and whether it is reasonable to apply them will depend on the circumstances of the case (see Keenan, cited above, § 92, and Trubnikov, cited above, § 70). 32. Prisoners known to be suffering from serious mental disturbance and to pose a suicide risk require special measures geared to their condition in order to ensure compatibility with the requirements of humane treatment (see Rivière, cited above, § 75). In the Keenan case, the Court found that the imposition on the applicant – who suffered from a chronic mental disorder, presented a suicide risk and did not receive adequate medical monitoring and treatment – of a disciplinary punishment of seven days’ segregation in the punishment block amounted to treatment in breach of Article 3 of the Convention (see Keenan, cited above, § 116).", "Similarly, in the case of Renolde v. France, a penalty of forty-five days’ detention in a punishment cell accompanied by a prohibition of visits and of contact with other prisoners imposed on a person with a history of suicide attempts was not compatible with the standard of treatment required in respect of a mentally ill person and constituted inhuman and degrading treatment and punishment (see Renolde v. France, no. 5608/05, § 129, ECHR 2008 (extracts)). In the case of Ketreb v. France the placement of the applicant – who had not been diagnosed with any psychiatric disorder but who had previously made two suicide attempts – in a punishment cell for fifteen days without previous consultation with a psychiatrist or adequate monitoring during his stay there also amounted to inhuman and degrading treatment and punishment (see Ketreb v. France, no. 38447/09, §§ 114 and 115, 19 July 2012). 33.", "Turning to the circumstances of the present case, the Court notes that the applicant suffered from a psychiatric disorder with elements of claustrophobia and self-aggression. He had already made three suicide attempts before the incident in question in the present application. In view of his condition and his history of suicide attempts, the psychiatrist who treated him recommended that he should not be placed in solitary confinement. That recommendation was reiterated by the prison doctor on 5 May 2005 immediately before the applicant’s placement in a punishment cell for thirteen days, and then again on 8 May 2005 about an hour before the applicant made a new suicide attempt and injured himself. Despite these unequivocal and consistent medical recommendations, the applicant was left in the punishment cell alone.", "The Court is particularly concerned by the fact that on 8 May 2005, that is to say three days after the commencement of his solitary confinement and immediately after the doctor repeated his recommendation that the applicant should not be left alone, the door to his cell was shut in order to avoid any communication between the applicant and other inmates. 34. It appears that no formal decision to place the applicant in solitary confinement, stating the legal basis and the reasons for that measure, was ever issued. The decision of 3 May 2005 ordered his placement in a punishment cell (punishment cells are designed to accommodate two inmates), without mentioning solitary confinement. The Court therefore finds that the applicant was placed in a de facto solitary confinement without any objective assessment as to whether or not the measure in question was necessary and appropriate and in disregard to his psychiatrist’s recommendation that such measure should not be applied to him.", "The applicant’s solitary confinement in a punishment cell therefore amounted to inhuman and degrading treatment contrary to Article 3 of the Convention. 35. There has accordingly been a violation of Article 3 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 36.", "Lastly, the Court has examined the other complaints submitted by the applicant and, having regard to all the material in its possession and in so far as the complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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 100,000 euros (EUR) in respect of non‑pecuniary damage. 39. The Government submitted that the amount claimed was excessive. 40.", "The Court awards the applicant EUR 15,000 in respect of non‑pecuniary damage. B. Costs and expenses 41. The applicant did not claim costs and expenses. Accordingly, there is no call to make an award under this head.", "C. Default interest 42. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaints concerning the applicant’s placement in solitary confinement in a punishment cell admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months, EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 27 February 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıLuis López GuerraDeputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF LĂUTARU v. ROMANIA (Application no. 13099/04) JUDGMENT STRASBOURG 18 October 2011 FINAL 18/01/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Lăutaru v. Romania, 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 27 September 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "13099/04) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Iulian Lăutaru (“the applicant”), on 9 February 2004. 2. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu. The applicant was granted leave to represent himself in the proceedings before the Court. 3.", "The applicant alleged, in particular, that the material conditions of detention in Colibaşi Prison, lack of adequate medical care, constant psychological pressure from the authorities to withdraw his complaints concerning the conditions of detention, and failure of the prison authorities to provide him with stamps for his letters to the Court, breached his rights guaranteed by Articles 3, 8 and 34 of the Convention. 4. On 15 September 2009 the President of the Third 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 1968 and lives in Băbeni, Vâlcea. 6. On 1 March 1999 the applicant was detained pending trial in Colibaşi Prison. 7.", "By a decision of 9 June 1999 the Vîlcea County Court convicted the applicant of murder and sentenced him to seventeen years’ imprisonment. The decision became final on 4 February 2000 by a judgment of the Court of Cassation. The applicant served out his sentence in Colibaşi Prison. 1. The material conditions of detention (a) The applicant 8.", "The applicant stated that the cells were squalid and overcrowded and the smell was unbearable because of the dirty sanitary facilities. 9. His clothes and bedding were full of lice, which caused him blisters and wounds because he had to scratch constantly. 10. Between January and March 2002 he shared cell 316 with six other detainees and no heating was provided in the cell.", "11. During the summer the water was cut off between 7 a.m. and 11 p.m. although the temperature in the cell was above 40 degrees Celsius. Also, the detainees were supplied with water from insanitary plastic containers. 12. The window grille was fitted with a net which prevented proper ventilation and made breathing in the cell extremely difficult as a result of the overcrowded conditions.", "Also, the electricity was cut off between 9 a.m. and 4 p.m. 13. At unspecified times in 2005 the applicant shared a cell with T.I., a fellow inmate who was HIV-positive and who cut his fingers several times. However, in spite of the increased danger of infection the cell and the food receptacles were not disinfected. 14. Lastly, the food contained impurities and waste and he also complains that there were no activities.", "(b) The Government 15. Between February 2001 and May 2003 the Colibaşi Prison authorities initiated a general reconstruction and maintenance programme for detention Sections II, III and IV of the prison. Because of these works the detainees were relocated from one section to another, which might have caused overcrowding in the cells. 16. The reconstruction and maintenance programme resulted in the building of two new prison Sections, no.", "6 and no.7. They included cells 612 and 711. Each of the cells was equipped with eight beds, two sinks with mirrors and shelves, a bathtub and a separate toilet. Each cell measured 17.2 sq. m. The rooms were 3.05 metres high.", "The lavatory measured 5.77 sq. m, the toilet room 1.57 sq. m. and the storage room 1.65 sq. m. The window of each of the rooms was 1.20 x 1.20 metres with panes of glass, hermetically sealed. The storage and the toilet room were each equipped with a 0.6 x 0.6-metre window.", "17. Cells 203 and 205 located in Section II of the prison are identical and are each equipped with thirty-six beds, six sinks fitted with mirrors and shelves, six shower baths and four separate toilets. Each cell was 57.85 sq. m in area and 4.2 m high, the lavatory was 8.55 sq. m., the toilet room was 1.02 sq.", "m and the storage room was 10.83 sq. m. The shower baths and toilets were located in a 7.83 sq. m. separate room. The cells each had three windows of 1 x 1.5 m, hermetically sealed. The shower, toilet and lavatory rooms each had 0.6 x 0.6 m windows.", "18. Cell 423, in which the applicant was also detained, was renovated to European standards and was not overcrowded, according to prison records. Nor did the records indicate that any of the other prison cells were overcrowded. 19. No information could be provided in respect of the number of detainees sharing cells with the applicant or whether the applicant had had to share a room with an HIV-positive detainee, on the ground that the relevant documents had been removed from the archives and destroyed following the expiry of the statutory time-limit for archiving such information.", "20. The cells, the sanitary facilities and the main rooms of the prison underwent maintenance work at least once a year. The metal beds and the windows were repaired at the same time. Drinking water was continuously available: it was cut off only when maintenance work had to be done, and hot water for bathing was available twice a week. 21.", "Heating was supplied for six and a half hours a day. After this hot air was circulated by pumps for another four to five hours. 22. The quality of the ingredients used to prepare food was checked daily by the prison warden, the prison doctor and a designated prisoner, and the applicant was provided with a special diet appropriate to his medical condition. 23.", "According to the documents available in the applicant’s prison file he was involved in a number of social reintegration activities with positive results, and was rewarded fifty-five times with extended visitation rights, packages and revocation of disciplinary sanctions. He took part in poetry, logic, football, chess and table tennis contests and had poems and essays published in the prison paper. 24. On 15 March 2006 the applicant’s right to daily exercise was extended by one hour to a total of three hours on a psychiatrist’s advice. 25.", "During his detention he was repeatedly given other responsibilities, such as editing material for the prison newspaper, acting as representative for cells 316 and 610, keeping attendance records, and distributing newspapers and magazines. He was rewarded four times for dedication. 2. The right to correspondence with the Court 26. On 24 November 2003 the applicant addressed a request to the authorities of Colibaşi Prison for a stamp to be put on a letter which he intended to send to the European Court of Human Rights (“the Court”) and which contained his application.", "27. On 26 November 2003 the authorities refused to stamp the applicant’s letter, on the ground that the applicant had had the necessary amount of money in his account but had spent it all before the date of his request for a stamp. 28. The written refusal of the prison authorities reads as follows: “I propose not to approve the detainee’s request, because he had the necessary amount of money but spent it on shopping. The last remaining money in the account was spent four days before he made the request”.", "29. On 4 December 2003, the applicant requested a copy of his written application for a stamp. 30. On 13 December 2003 the authorities of Colibaşi Prison dismissed his request as unsubstantiated, on the ground that an application could have been lodged with the Court only after exhaustion of the available domestic remedies and within six months of the final court decision. Also, if the applicant brought proceedings before the Court they would provide it with all the pertinent documents.", "31. On 3, 19 and 27 May and 9 June 2004 the applicant addressed requests to the Colibaşi Prison authorities for photocopies of documents, including various complaints and court judgments; the requests were refused. He asked to be informed in writing of the reason for the refusal but did not receive any answer. After repeated requests and complaints he was provided with the requested photocopies on 25 June 2004. 32.", "The applicant’s requests for stamps and envelopes, made on 22 July, 18 September and 28 October 2003, 26 January, 12 October and 9 November 2004, and 23 February, 15 June and 3 October 2007, were granted and the applicant was provided with the requested items. Also, the applicant’s requests lodged with the prison authorities on 19 December 2006, 15 February and 3 October 2007, and 21 January 2008, for copies of documents to be posted to the Court, were approved and the documents were mailed. 33. From September 2006 to date the applicant lodged twenty requests with the prison authorities for copies of various documents. They were all granted.", "3. Medical treatment 34. The applicant stated that while in detention he developed a liver and stomach condition, kidney failure and chronic laryngitis as a result of the conditions of detention, bad food and impure drinking water. He acknowledges that he received some treatment for his condition, however the treatment lacked consistency and eventually it was stopped. He stated that although his family helped him finance the required treatment his health was permanently damaged.", "He also stated that his requests for medication had been refused, the reason given being lack of funds. 35. On 24 January 2003 the applicant brought proceedings before the Argeş County Court seeking to be released from his sentence on medical grounds. 36. By a judgment of 25 March 2003 the Argeş County Court dismissed the applicant’s action on the ground that according to the medical expert report in the file the applicant’s medical condition, including his liver condition, could be treated in a prison hospital.", "There is no evidence in the file that the applicant appealed against this decision. 37. According to the applicant’s medical file, from the date of his imprisonment he was regularly examined by doctors, his health was monitored and he was prescribed and administered medication during the course of his detention. 38. On 11 May 2004 the Colibaşi Prison authorities drafted a medical report concerning the applicant’s general state of health.", "According to the report the applicant was suffering from a liver and kidney condition, although he had been declared clinically healthy at the time of his imprisonment on 1 March 1999. His illness could however be treated in the prison hospital and the applicant had been provided with treatment prescribed by specialist doctors. From March 2003, when he was diagnosed with the liver condition, he was provided with adequate food for his illness. The report stated that, although the applicant’s disease was discovered after he had been detained, the exact moment he contracted it could not be established. According to the report the applicant was suffering from chronic diseases which were continuing to progress, often without symptoms.", "Diagnosis would have been possible only by thorough medical examination, which had not been done at the time of his imprisonment. Lastly, the report concluded that the applicant’s illness had been caused by a number of external factors, including lack of adequate nourishment and alcohol consumption prior to his imprisonment and was not connected with the food he received in detention. 39. In view of his state of health, on 25 February 2004 the applicant lodged a request with B.G., the judge responsible for the execution of sentences, for a water heater so that he could prepare herbal teas in his cell. His request was dismissed on 26 February 2004 on the ground that the specialist doctor had not recommended that the applicant use herbal tea as part of his treatment.", "40. On 25 May 2006 the Argeş Commission for People with Disabilities diagnosed the applicant with a Category 2 disability on account of his pulmonary fibrosis. 41. On 26 May 2006 the applicant brought proceedings before the Argeş County Court seeking release from his prison sentence on medical grounds. 42.", "By a judgment of 28 November 2006 the Argeş County Court dismissed the applicant’s action, on the ground that he had twice refused to have a medical expert assessment and afterwards he had withdrawn his request. There is no evidence in the file that the applicant appealed against the judgment. 43. According to a medical expert report of 23 July 2007 carried out by the Argeş Pension Rights Office, the applicant was diagnosed with pulmonary fibrosis and a personality disorder. According to the medical report the applicant had been an employee of the Oltchim Chemical Plant in Râmnicu-Vâlcea and had repeatedly been exposed to toxic fumes.", "For two years prior to the date of the report the applicant had been experiencing several symptoms of pulmonary fibrosis, including, inter alia, the sensation of a constricted thorax and physical anaemia. 44. On 29 August 2007 the Argeş Pension Rights Office issued a decision concerning the applicant’s ability to work on the basis of the findings of the medical expert report of 23 July 2007. According to the decision the applicant was suffering from a Category 2 work disability. 45.", "A medical examination was carried out on 9 December 2009. Between 17 May 2007 and 9 June 2009 the applicant was hospitalised five times in Colibaşi Prison Hospital and he received treatment for his medical problems. Also, at the time of the examination he had been prescribed neuroleptic treatment, which he was refusing to take. He was also suffering from a Category 3 work disability. 4.", "Complaints against the prison administration concerning the material conditions of detention and the refusal of a stamp 46. During 2004 and 2006 the applicant made numerous complaints concerning conditions of detention, including allegations of poor medical treatment. 47. On 4 February 2004 the applicant brought proceedings against the authorities of Colibaşi Prison as a result of the prison authorities’ refusal to issue him with a stamp for an envelope addressed to the Court, the quality of the food, overcrowding, lack of proper diet and lack of treatment for his medical conditions. He relied on Government Emergency Ordinance 56/2003 on the execution of prison sentences.", "48. On 26 February 2004 the National Prison Authority investigated the applicant’s complaints lodged on 4 February 2004 and found, inter alia, that the applicant’s requests from 24 November and 4 December 2003 had been dismissed by reasoned decisions. Moreover, from 12 April 2002 the applicant had been detained in the new Section IV of the prison, which had been opened in April 2002 and built in accordance with European norms. Furthermore, from 6 June 2002 the applicant had been detained in cell 423 and the available statistical data showed that no overcrowding had been recorded in that cell since 2 March 2003. The report does not contain details of the number of detainees housed in cell 423, the size of the cell or the conditions in it prior to 2 March 2003.", "49. On 15 April 2004 the applicant was allegedly told to report to General B. of the former General Prisons Authority and forced to state that he would withdraw his complaint against the Colibaşi Prison authorities on the ground that the applicant was now requesting to be transferred to another prison in order to work. 50. The applicant’s statement reads as follows: “ state that before the Piteşti District Court I have a case against the Colibaşi Prison authorities concerning ill-treatment, illness caused by very poor food and refusal to provide me with a stamp for a letter addressed to the Court, on the ground that I had money. I withdraw my complaints for the following reasons: the food has improved and I want to be transferred to Mărgineni Prison in order to work in the factory, as I have a long sentence and I want to earn money”.", "In July, October and December 2004 the applicant was transferred three times to Mărgineni Prison to attend hearings in proceedings he was a party to. 51. On 29 April 2004 the Piteşti District Court acknowledged that the applicant had withdrawn his complaint. 52. On 26 April 2004 the applicant was informed, following a letter addressed by him to the Romanian President, that his complaint about the conditions of his detention had been forwarded to the National Prisons Authority for investigation.", "The latter informed the applicant that his complaints had not been upheld. 53. The applicant stated that he was constantly under threat and psychological pressure from the prison administration. In particular, Captain C.A. (head of Section IV of the prison) and Lieutenant N.A.", "(head of the re-education department) repeatedly threatened him with serious consequences if he continued to lodge complaints about the conditions of his detention. There is no evidence in the file that the applicant lodged any complaints against C.A. and N.A. 54. On 22 March 2006 the applicant lodged a criminal complaint with the Argeş Prosecutor’s Office against the Colibaşi Prison authorities, alleging torture and inhuman treatment on account of the conditions of detention.", "He argued that the food was inadequate for his medical condition; the cells were overcrowded, poorly lit and cold, with no running water during the summer, and that the transport conditions were inadequate. After evidence was heard from him the Argeş Prosecutor’s Office informed the applicant on 18 April 2006 that his complaint had been referred to the National Prisons Authority. 55. On 23 May 2006 the National Prisons Authority informed the applicant that his complaints had not been upheld. Nevertheless, the applicant stated that the National Prisons Authority had failed to hear him and to carry out an inspection of his cell and of the prison wing.", "56. Numerous similar complaints were also sent to various other authorities, such as the Romanian Parliament and the Human Rights Committee of the Romanian Chamber of Deputies; several letters were sent to members of the above-mentioned committee and the Delegation of the European Commission in Romania. The applicant’s complaints were referred to the National Prisons Authority, which did not uphold any of the allegations. 57. On 18 June 2006 the applicant lodged a complaint with the Piteşti County Court against the Colibaşi Prison authorities about inhuman and degrading conditions of detention.", "The applicant complained that the overcrowded conditions, inappropriate food, lack of appropriate medical treatment, lack of drinking water during the day, extreme heat in his cell, overcrowded conditions of transport to court hearings and lack of exercise had damaged his health. Further, he argued that he had been forced to abandon his Christian Orthodox religion on the ground that he was not allowed to attend religious services in the prison’s Orthodox church. 58. By a final judgment of 27 September 2007 the Piteşti District Court decided, on the basis of the provisions of Law no. 275/2006 (“the Execution of Sentences Act 2006”), to refer the applicant’s case to the judge responsible for the execution of sentences attached to Colibaşi Prison.", "59. On 26 September 2007 the prison authorities proceeded to investigate the applicant’s complaints of 18 June 2006 in respect of the conditions of detention. They visited cell 204, where the applicant was detained, and according to the record of the visit drafted on the same day they found that the cell measured 10.02 m long by 5.65 m wide and 4.23 m high. The room had forty-five beds and housed thirty-six detainees. The authorities also found that eight detainees had attested to the quality of the food between January and September 2007.", "60. On 6 November 2007 the applicant was heard by the judge responsible for the execution of sentences attached to Colibaşi Prison. At the hearing the applicant signed a declaration stating that he would like to withdraw his complaint of his own free will and without being pressured to do so. 61. In his letter of 25 January 2008, the applicant informed the Court that prior to his hearing before the judge responsible for the execution of sentences he had been contacted by the prison warden and threatened with serious consequences if he failed to withdraw the complaint.", "Lastly, at the hearing before the judge he was allegedly under psychological pressure from the judge himself, to state in writing that he wished to withdraw the complaint. There is no evidence in the file that the applicant lodged any complaints against the prison warden or the judges responsible for the execution of sentences. 62. On 18 March 2008 the applicant lodged a complaint with the judge responsible for the execution of sentences attached to the Colibaşi Prison concerning the detention conditions in cell 205, where he was detained at the time. He claimed that the room did not have the necessary facilities for the detainees to store their food and personal belongings, the volume of air for each detainee was insufficient and the room was infested with cockroaches as a result of the poor state of hygiene.", "63. On 19 March 2008 the applicant was summoned before the judge responsible for the execution of sentences attached to Colibaşi Prison for a hearing in respect of his complaints. In a written statement submitted to the judge the same day, the applicant withdrew his complaint without giving any reasons. 64. On 24 March 2010 the National Prisons Authority dismissed the applicant’s complaint concerning his inability to work addressed to the President of Romania and referred it to the National Prisons Authority for investigation.", "The National Prisons Authority grounded their decision on the medical report of 8 December 2009 classifying the applicant as unfit to work on account of his medical condition. 65. In a letter of 20 May 2011 the applicant informed the Court that he has been released from Colibaşi Prison on 14 May 2011. 5. Other proceedings 66.", "By a final judgment of 12 November 2004 the Vâlcea County Court dismissed as ill-founded the action brought by the applicant against third parties seeking to contest the enforcement of the award of civil damages granted by the domestic courts to third parties following the applicant’s conviction for murder. The court held that the enforcement proceedings had been lawful. 67. By a final judgment of 13 July 2005 the Court of Cassation dismissed as ill-founded the applicant’s action seeking a stay of execution of his sentence for family reasons, citing a need to supervise one of his daughters, as she was exhibiting inappropriate social behaviour and had dropped out of school. On the basis of a social investigation and expert reports the court found that the applicant’s daughters had been placed under the care and supervision of the applicant’s parents, where they were being properly looked after.", "The court ruled that continuing with the execution of the applicant’s sentence would not have any consequences for his family, as the applicant had abandoned his daughters in 1997 after the death of their mother and had moved in with another woman, whom he later murdered. The Court ruled that the applicant had neither the child-rearing skills nor the moral authority to contribute to the improvement of his daughter’s upbringing. 68. On an unspecified date in 2005 the applicant brought a second set of proceedings seeking a stay of execution for family reasons. 69.", "By a judgment of 21 February 2006 the Piteşti Court of Appeal dismissed the applicant’s action on the ground that according to the social assessment carried out by the authorities the applicant’s family did not have any material or health-related problems, his daughters were being properly cared for by the applicant’s mother, and his younger daughter had started going to school again and was a good student. There is no evidence in the file that the applicant appealed against the judgment. 70. By a final judgment of 18 January 2006 the Vâlcea County Court dismissed as ill-founded the applicant’s criminal complaint with civil claims brought against the journalist M.D. for insult following a press article written by the third party reporting the murder committed by the applicant.", "The domestic court held that the third party had informed the general public in an objective and professional way about the crime committed by the applicant and had relied on the evidence produced by the preliminary investigation carried out by the police, without referring to any false or compromising statements. Also, the applicant had been convicted of the crime reported in the article, and sentenced by a final court judgment after a public criminal trial. Furthermore, the third party exercised her right to freedom of speech understood in the context of the freedom of the press and observed the citizens’ constitutional right to be informed about events with a major social impact. II. RELEVANT DOMESTIC LAW AND PRACTICE 71.", "The relevant provisions of Law no. 23/1969 on the execution of sentences (“the Execution of Sentences Act 1969”) are described in Năstase-Silivestru v. Romania, (no. 74785/01, §§ 23-25, 4 October 2007). 72. The Government’s Emergency Ordinance.", "56 of 25 June 2003 regarding the rights of prisoners states, in section 3, that prisoners have the right to bring legal proceedings before a court concerning measures taken by prison authorities in connection with their rights. Ordinance 56/2003 has been repealed and replaced by Law no. 275 of 20 July 2006 (“the Execution of Sentences Act 2006”), which has restated the content of section 3 mentioned above in its Article 38, which provides that a judge shall have jurisdiction over complaints by convicted prisoners against measures taken by prison authorities (see also Petrea v. Romania, no. 4792/03, §§ 21-23, 29 April 2008). 1.", "Civil Code 73. Articles 998 and 999 of the Civil Code provide that any person who has suffered damage can seek redress by bringing a civil action against the person who has intentionally or negligently caused that damage. 2. Case-law of the domestic courts 74. The Government submitted three final judgments (of 31 January 2006 and 21 March and 31 July 2007) delivered by the Bucharest District Court, one final judgment (of 12 April 2005) delivered by the Arad District Court, and one judgment (of 31 March 2005) delivered by the Giurgiu District Court, concerning proceedings brought by detainees against Rahova, Arad and Giurgiu Prisons on the basis of Emergency Ordinance 56/2003, seeking court orders for adequate medical treatment, treatment during transfer to courts, for accommodation with non-smoking detainees, visiting rights and stomatological treatment.", "There is nothing in the file to indicate whether the judgment of 31 March 2005 of the Giurgiu District Court was final. 75. Relying on the provisions of the domestic legislation concerning the execution of prison sentences and the evidence available in the files, the domestic courts allowed the detainees’ claims. III. REPORTS ON THE CONDITIONS OF DETENTION IN ROMANIAN PRISONS 76.", "The relevant findings and recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) are described in Bragadireanu v. Romania (no. 22088/04, §§ 73-76, 6 December 2007), and Artimenc v. Romania (no. 12535/04, §§ 22-23, 30 June 2009). 77. The CPT report published on 11 December 2008, following a visit to different police detention facilities and prisons in Romania conducted from 8 to 19 June 2006, indicated overcrowding as a persistent problem.", "The same report concluded that in the light of the deplorable material conditions of detention in some of the cells of the establishments visited, the conditions of detention could be qualified as inhuman and degrading. In the same report, the CPT declared itself gravely concerned by the fact that a lack of beds remained a constant problem, not only in the establishments visited but at national level, and that this had remained the case since its first visit to Romania in 1999. The CPT also welcomed the changes introduced in domestic legislation providing for personal space of 4 sq. m for each prisoner. The CPT therefore recommended that the Romanian authorities take the necessary measures to ensure compliance with this requirement, as well as to ensure that each detainee had his or her own bed.", "78. There is no CPT report concerning Colibaşi Prison. However, a Romanian NGO, APADOR-CH (Association for the Defence of Human Rights in Romania – the Helsinki Committee) visited this establishment on 26 April 2007. The report prepared following this visit indicated that, on the basis of the information submitted by the authorities, it could be ascertained that the total cell area was 1,170 sq. m., a quarter of the minimum area recommended by the European Committee for the Prevention of Torture and Inhumane or Degrading Treatment (CPT), which is 4 sq.", "m per detainee. As regards the prison’s lavatories they were in rather poor condition in the areas visited – in a bad state of repair, unhygienic, not working properly, and so on. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 79. The applicant complained about the physical conditions of his detention and of a lack of adequate medical treatment in Colibaşi Prison.", "He alleged, in particular, overcrowding, unhygienic sanitary facilities, lice, extreme cold during winter, lack of running water and lack of activities. Moreover, he complained that at the time he was imprisoned he had been clinically healthy but that during detention he had been diagnosed with various conditions and with a Category 2 disability. Furthermore, he stated that he had not been treated adequately and his repeated requests for medicines had been refused, with lack of funds given as the reason. 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. Complaint concerning the material conditions of detention 1.", "Admissibility (a) The parties’ submissions 80. The Government raised a preliminary objection of non-exhaustion of domestic remedies, in so far as the applicant had not complained to the authorities of the conditions of his detention on the basis of Emergency Ordinance no. 56/2003 and subsequently on the basis of the Execution of Sentences Act 2006, or he had repeatedly withdrawn his complaints. They argued that the remedy was effective having regard to the five domestic court judgments submitted before the Court (see Relevant domestic law and practice, §§ 74-75). In addition, they submitted that the applicant could have lodged a general tort law action on the basis of Articles 998-999 of the Romanian Civil Code seeking to establish the prison authorities’ liability for the difficult conditions of detention.", "They argued that the latter remedy was also efficient, sufficient and accessible. 81. The applicant disagreed. (b) The Court’s assessment 82. The Court notes that the applicant’s complaint concerns the material conditions of his detention, in particular, inter alia, overcrowding and poor sanitary facilities.", "In this respect, it notes that in recent applications lodged against Romania and concerning similar complaints it has already found that, given the specific nature of this type of complaint, the legal actions suggested by the Government, including a general tort law action, do not constitute effective remedies (see Petrea, cited above, § 37; Eugen Gabriel Radu v. Romania, no. 3036/04, § 23, 13 October 2009; Iamandi v. Romania, no. 25867/03, § 49, 1 June 2010; Cucolaş v. Romania, no. 17044/03, § 67, 26 October 2010; Ogică v. Romania, no. 24708/03, § 35, 27 May 2010; and Dimakos v. Romania, no.", "10675/03, § 38, 6 July 2010). 83. The Court further notes that the five domestic decisions submitted by the Government in support of its plea of non-exhaustion, of which only four are final, relate to specific rights of prisoners, such as the right to medical assistance or the right to receive visits, but that they do not relate to structural issues, such as overcrowding. Moreover, the Government have not submitted any domestic court judgments supporting their argument that a general tort law action on the basis of Articles 998-99 of the Romanian Civil Code seeking to establish the prison authorities’ liability for the difficult conditions of detention would have been effective. 84.", "The Court therefore concludes that the judgments submitted by the Government do not indicate how the legal actions proposed by them could have afforded the applicant immediate and effective redress for the purposes of his complaint (see, mutatis mutandis, Marian Stoicescu v. Romania, no. 12934/02, § 19, 16 July 2009, and Ogică v. Romania, cited above, § 35). 85. It therefore rejects the Government’s plea of non-exhaustion of domestic remedies in respect of the applicant’s complaint concerning the material conditions of detention in Colibaşi Prison. 86.", "Finally, the Court notes that the applicants’ complaint concerning the material conditions of detention is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) The parties’ submissions 87.", "The Government, referring to their description of the detention conditions submitted before the Court (paragraphs 15-25 above), contended that the domestic authorities had taken all necessary measures to ensure adequate conditions of detention and that the applicant’s complaint was groundless. They further stressed that there was no evidence in the file that the applicant had been pressured by the prison authorities to withdraw his complaints, and that in any event he had failed to lodge any complaints against the prison authorities in this regard. Lastly, they argued that the applicant did not submit any relevant evidence to support his assertion that he was subjected to physical or mental ill-treatment during his detention. 88. The applicant disagreed.", "He argued that the Romanian Government had failed to submit to the Court any information with regard to the cells where he had been detained, the period of time he had spent in each cell and the number of detainees occupying the cells he was in. Moreover, they also failed to submit any copies of their daily report on the quality and quantity of the food, or of their reports concerning the disinfection of the detention cells. (b) The Court’s assessment 89. The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic societies. The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim’s conduct (see Labita v. Italy [GC], no.", "26772/95, § 119, ECHR 2000-IV). 90. Measures depriving a person of his liberty may often involve an inevitable element of suffering or humiliation. Nevertheless, the suffering and humiliation involved must not go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. 91.", "In the context of prisoners, the Court has already emphasised in previous cases that a detained person does not, by the mere fact of his incarceration, lose the protection of his rights guaranteed by the Convention. On the contrary, 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 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 Valašinas v. Lithuania, no. 44558/98, § 102, ECHR 2001‑VIII, and Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI).", "92. When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). The length of the period during which a person is detained in the particular conditions also has to be considered (see, among others, Alver v. Estonia, no. 64812/01, 8 November 2005).", "93. 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 detention conditions described are “degrading” from the point of view of Article 3 (see Karalevičius v. Lithuania, no. 53254/99, 7 April 2005). 94. In previous cases where applicants had at their disposal less than 3 sq.", "m of personal space, the Court has found that the overcrowding was so severe as to justify of itself a finding of a violation of Article 3 of the Convention (see, among many others, Lind v. Russia, no. 25664/05, § 59, 6 December 2007; Kantyrev v. Russia, no. 37213/02, § 50-51, 21 June 2007 and Brânduşe v. Romania, no. 6586/03, § 50, CEDH 2009 (extracts)). 95.", "By contrast, in other cases where the overcrowding was not so severe as to raise in itself an issue under Article 3 of the Convention, the Court has noted other aspects of the physical conditions of detention as relevant for its assessment of compliance with that provision. Such elements have included, in particular, the availability of ventilation, access to natural light or air, adequacy of heating arrangements, compliance with basic sanitary requirements and ability to use the toilet in private. Thus, even in cases where a larger prison cell was at issue – measuring in the range of 3 to 4 sq. m per inmate – the Court has found a violation of Article 3 because the space factor was coupled with an established lack of ventilation, lighting or appropriate hygiene conditions (see, for example, Babushkin v. Russia, no. 67253/01, § 44, 18 October 2007; Ostrovar v. Moldova, no.", "35207/03, § 89, 13 September 2005; Peers v. Greece, no. 28524/95, §§ 70-72, ECHR 2001-III; Flamînzeanu v. Romania, no. 56664/08, § 98, 12 April 2011, not final and Iamandi v. Romania, no. 25867/03, §§ 59-61, 1 June 2010), or lack of basic privacy in a prisoner’s everyday life (see, mutatis mutandis, Belevitskiy v. Russia, no. 2967/01, §§ 73-79, 1 March 007; Valašinas, cited above, § 04; Khudoyorov v. Russia, no.", "847/02, §§ 06 and 107, ECHR 2005‑X (extracts); and Novoselov v. Russia, no. 66460/01, §§ 32, 40-43, 2 June 2005 and Iamandi, cited above, § 61). 96. The Court observes that Convention proceedings, such as the present application, do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation) because in certain instances the respondent Government alone have access to information capable of corroborating or refuting these allegations. A failure on a Government’s part to submit such information without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see Kokoshkina v. Russia, no.", "2052/08, § 59, 28 May 2009). 97. The focal point in the case at hand is the assessment by the Court of the living space afforded to the applicant in Colibaşi Prison, where the applicant spent most of his sentence. 98. The Court notes that the applicant did not contradict the Government’s submissions on the size of the cells.", "What is contested between the parties is the real occupancy of those cells: while the Government submitted that the cells were not overcrowded, the applicant disagreed. 99. However, even at the occupancy rate put forward by the Government, the applicant’s living space for the approximately eleven years he spent in Colibaşi Prison seems to have been consistently below 3 sq. m and sometimes even below 1.6 sq. m (see paragraph 59 above), which falls short of the standards imposed by the Court’s case-law (see Kokoshkina, cited above, § 62, and Orchowski v. Poland, no.", "17885/04, § 122, ECHR 2009 (extracts)). The Court further underlines that, in reality, these figures are even lower, taking into account that the cells also contained various items of furniture. The amount of outdoor exercise claimed by the Government to have been available to the applicant, cannot compensate, in this case, for the severe lack of personal space (see, a contrario, Sulejmanovic v. Italy, no. 22635/03, §§ 8-49, 16 July 2009). 100.", "Moreover, the applicant’s description of the overcrowded conditions corresponds to the general findings by the CPT in respect of Romanian prisons (see paragraphs 76-77 above). 101. Furthermore, the Court considers that, in comparing each party’s claims regarding the sanitary conditions with the findings of the CPT reports in respect of overcrowded prison facilities and the findings of the report of the national branch of the Helsinki Committee in respect of Colibaşi Prison (see paragraph 78 above), it can only conclude that the applicant was also deprived of the ability to maintain adequate bodily hygiene in prison. 102. The Court has frequently found a violation of Article 3 of the Convention on account of lack of personal space afforded to detainees and unsatisfactory sanitary conditions (see, in particular, Ciorap v. Moldova, no.", "12066/02, § 70, 19 June 2007; Kalashnikov v. Russia, no. 47095/99, §§ 97 et seq., ECHR 2002-VI; Petrea, cited above, §§ 49-50; Răcăreanu v. Romania, no. 14262/03, §§ 49-52, 1 June 2010 and Ali v. Romania, no. 20307/02, § 83, 9 November 2010). In the case at hand, the Government failed to put forward any argument that would allow the Court to reach a different conclusion.", "103. Even though in the present case there is no indication that there was a positive intention to humiliate or debase the applicant, the Court concludes that the conditions of his detention caused him suffering that exceeded the unavoidable level of suffering inherent in detention and that attained the threshold of degrading treatment proscribed by Article 3. There has accordingly been a violation of Article 3 of the Convention. 104. Taking into account this finding, the Court does not consider it necessary to examine further the remaining issues of his complaint concerning the material conditions of detention.", "B. Complaint concerning the alleged lack of medical treatment 105. The Government raised a preliminary objection of non-exhaustion of domestic remedies, in so far as the applicant had not complained or pursued his complaints before domestic courts in respect of the lack of adequate medical treatment in Colibaşi Prison on the basis of Emergency Ordinance no. 56/2003 and subsequently on the basis of the Execution of Sentences Act 2006. 106.", "The applicant disagreed and argued that he had been constantly pressured by the prison authorities to withdraw his complaints. 107. The Court has already had the opportunity to examine a similar objection raised by the Government in the case of Petrea, cited above. It concluded that before the entry into force of Emergency Ordinance no. 56/2003, on 25 June 2003, there had been no effective remedy for the situation complained of by the applicant.", "However, after that date, those in the applicant’s situation had had an effective remedy for their complaints of lack of medical treatment, even if their applications were already pending with the Court at the relevant date (see Petrea, cited above, §§ 35-36). 108. The Court sees no reason to depart in the present case from the conclusions it reached in Petrea. 109. It therefore considers that after the entry into force of Emergency Ordinance 56/2003, the applicant should have lodged or continued his complaints with the domestic courts about the alleged lack of medical treatment.", "His two requests for early release, which in any event the applicant did not appear to have appealed against, do not satisfy these conditions. 110. Moreover, the Court notes that, in spite of the applicant’s allegations, it does not transpire from the available material that the applicant was pressured by the domestic authorities to withdraw any of his complaints concerning lack of adequate medical treatment, nor that he was denied medication on account of lack of funding. It appears that, although he was a party to numerous sets of proceedings, the applicant did not bring court proceedings against any of the members of the prison administration who allegedly pressured him into withdrawing his complaints. Furthermore, according to the applicant’s medical file, he was examined regularly by doctors, his condition was monitored and he was prescribed and administered medication during his detention.", "111. Further, the Court finds no evidence in the file of a potential breach of the applicant’s right to receive medical treatment during detention for the period before the entry into force of Emergency Ordinance no. 56/2003. 112. It follows that the applicant’s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLES 8 AND 34 OF THE CONVENTION 113. The applicant complained that his right to correspondence and his right to individual petition with the Court had been infringed, in so far as between November and December 2003 the prison authorities refused his request for a stamp and a copy of a document he wanted to submit to the Court. Moreover, he was allegedly threatened by the prison authorities to induce him to withdraw his complaint brought before domestic courts on the basis of Emergency Ordinance no. 56/2003.", "He relied in substance on Articles 8 and 34 of the Convention taken alone or together. 114. Having regard to the applicant’s submissions and the circumstances of the present case, the Court considers that the applicant’s complaint must be examined under Article 34 of the Convention, taken alone, which reads as follows: Article 34 “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.” 115. The Government raised a preliminary objection of non-exhaustion of domestic remedies in so far as although the applicant complained before domestic courts on the basis of Emergency Ordinance no.", "56/2003 in respect of the failure of the domestic authorities to provide him with a stamp, he eventually withdrew his complaint. 116. The applicant disagreed, and argued that he was pressured by the prison authorities to withdraw his complaint. 117. The Court notes that from the outset the applicant was able to obtain copies of documents in support of his application and submit them to the Court at the early stages of his application (paragraphs 31-32, above).", "Moreover, the Court notes that the domestic authorities refused the applicant’s requests for a stamp and for a copy of his request for a stamp on 26 November and 13 December 2003, after the entry into force of Emergency Ordinance 56/2003 on 25 June 2003. 118. Even assuming that the prison authorities had an obligation to provide the applicant with free stamps, the Court reiterates that in the case of Petrea, cited above, it has already held that after the entry into force of Emergency Ordinance no. 56/2003 those in the applicant’s situation had an effective remedy to complain about alleged interference with their right to correspondence with the Court (see Petrea, cited above, § 36, and Măciucă v. Romania, no. 25763/03, § 31, 26 May 2009).", "The Court notes that although the applicant brought proceedings before the domestic courts complaining about the refusal of the authorities to provide him with a stamp, he eventually withdrew his complaint. 119. In respect of the applicant’s allegation that he had been pressured by the prison authorities to withdraw his complaint, the Court sees no reason on the basis of the evidence available in the file to depart from its finding (see paragraph 110 above) concerning the applicant’s identical allegation in respect of his complaint of lack of medical treatment. 120. It follows that the applicant’s complaint should be rejected as manifestly ill-founded on the basis of Articles 35 §§ 3 and 4 of the Convention.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 121. The applicant complained under Article 5 § 1 (c) of the Convention that an arrest warrant issued against him during the criminal proceedings which ended on 4 February 2000 was unlawful. Furthermore, he complained under Articles 6 § 1 of the Convention that the criminal proceedings which ended on 4 February 2000 had been unfair, as had been the outcome of the proceedings which had ended with the final judgments of 12 November 2004, 13 July 2005 and 18 January 2006. Lastly, the applicant complained under Article 13 of the Convention that the Vâlcea County Court had allegedly failed to consider his appeal during the course of the proceedings which ended with the final judgment of 12 November 2004.", "122. The Court has examined these complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as they fall within its jurisdiction, the Court finds that 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 manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 123. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the 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 124. The applicant claimed 50,000 euros (EUR) in respect of damage. 125.", "The Government considered the sum claimed by the applicant to be excessive and argued that there was no causal link between the alleged violations and the damages sought. They submitted that that a finding of a violation would constitute sufficient just satisfaction in the case. 126. The Court notes that it has found a violation of Article 3 in the present case. In these circumstances, the Court considers that the applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation.", "Making its assessment on an equitable basis, the Court awards the applicant EUR 16,000 in respect of non-pecuniary damage. B. Costs and expenses 127. The applicant did not submit a claim for costs and expenses. C. Default interest 128.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning Article 3, in so far as it concerns the material conditions of detention in Colibaşi Prison, admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 16,000 (sixteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the respondent State’s 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 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 October 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident" ]

[ "SECOND SECTION CASE OF MĂTĂSARU AND SAVIȚCHI v. THE REPUBLIC OF MOLDOVA (Application no. 43038/13) JUDGMENT STRASBOURG 10 July 2018 This judgment is final but it may be subject to editorial revision. In the case of Mătăsaru and Savițchi v. the Republic of Moldova, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Paul Lemmens, President,Valeriu Griţco,Stéphanie Mourou-Vikström, judges,and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 19 June 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 43038/13) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Moldovan nationals, Mr Anatol Mătăsaru and Ms Djulieta Savițchi (“the applicants”), on 10 June 2013.", "2. The applicants were represented by Mr V. Gribincea, a lawyer practising in Chișinău. The Moldovan Government (“the Government”) were represented initially by their Agent ad-interim at the time Ms R. Revencu and later by their Agent O. Rotari. 3. The applicants alleged, in particular, a breach of their rights guaranteed by Article 5 § 1 and Article 11 of the Convention.", "4. On 30 March 2017 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants, who are husband and wife, were born in 1970 and live in Chișinău.", "6. On 29 January 2008 the applicants were involved in a street protest as a result of which they were arrested and detained for six hours and forty‑five minutes. On 18 December 2008 the first applicant was again involved in a street protest, as a result of which he was arrested and detained for approximately four hours and a half. Later both applicants were acquitted and the actions of the police were found to be unlawful. The facts concerning those protests were described in detail in Mătăsaru and Saviţchi v. Moldova, no.", "38281/08, §§ 6-58, 2 November 2010. 7. On 29 January 2009 the first applicant organised again a street protest and was arrested again and detained for some six hours. Later the applicant was acquitted and the actions of the police were found to be unlawful. 8.", "On 2 November 2010 the Court adopted a judgment in the case of Mătăsaru and Saviţchi (cited above), in which it declared inadmissible the applicants’ complaints concerning the alleged breaches of their rights guaranteed by Articles 5 and 11 of the Convention on the ground of their failure to exhaust domestic remedies (see Mătăsaru and Saviţchi (cited above, § 75). 9. After that, the applicants brought a civil action under Law 1545 (on compensation for damage caused by illegal acts of the criminal investigation bodies, the prosecution authorities or the courts) seeking compensation in respect of the breach of their rights guaranteed by Articles 5 and 11 of the Convention in regard to all three street protests of 2008 and 2009. 10. By a final judgment of 6 February 2013 the Supreme Court of Justice acknowledged the breach of the applicnts’ rights guaranteed by Articles 5 and 11 of the Convention and awarded them the equivalent of 900 and 270 euros (EUR), respectively.", "THE LAW I. ALLEGED VIOLATION OF ARTICLES 5 § 1 AND 11 OF THE CONVENTION 11. The applicants alleged that their right to liberty guaranteed by Article 5 § 1 of the Convention had been breached because they had been detained without any legal grounds. 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;” 12. The applicants also complained that their arrest and detention had violated their 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.” A. Admissibility 13. The Government submitted that the applicants had lost their victim status as a result of being compensated in the domestic civil proceedings. The applicants disagreed and argued that the amounts of compensation awarded to them by the domestic courts had been too small. 14. The Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive him or her of victim status unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996‑III).", "15. In the instant case it is true that the Supreme Court of Justice held that there had been a violation of the applicants’ rights guaranteed by Articles 5 and 11 of the Convention and that it awarded them compensation. That said, the Court finds that the question of the applicants’ victim status as regards redress for the violation of their rights is inextricably linked to the merits of the complaints. Therefore, it considers that both questions should be joined and examined together. 16.", "The Court further notes that the 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 must therefore be declared admissible. B. Merits 17.", "The applicants argued that the compensation awarded by the Supreme Court of Justice in respect of the breaches of Articles 5 and 11 of the Convention had not been adequate and proportionate to the severity of the breaches of their rights. In support of this contention the applicants cited cases in which the Court had found breaches of Articles 5 and 11 of the Convention and the awards had been considerably higher than that made by the Supreme Court of Justice in their case. In their view, as a result of the insufficient amount of compensation awarded by the Supreme Court of Justice, they still had victim status under Articles 5 § 1 and 11 of the Convention. 18. The Government contested the applicants’ submissions and argued that they lost their victim status.", "19. There is no doubt and it is undisputed among the parties that the applicants suffered a breach of their rights under Articles 5 § 1 and 11 of the Convention. In this respect the Court sees no reason to depart from the conclusion of the national courts, which acknowledged the violation of these Articles. The Court shares this opinion and does not consider it necessary to re-examine the merits of this complaint. The Court also notes that the domestic courts awarded the applicants compensation for non‑pecuniary damage.", "It thus considers that the principal issue is whether the award made was proportionate to the damage the applicants sustained. It recalls in this latter respect that the level of compensation must not be unreasonable in comparison with the awards made by the Court in similar cases (see Burdov v. Russia (no. 2), no. 33509/04, § 99, ECHR 2009). Where, as in the present case, the victim status and therefore, the existence of a violation, is linked with the monetary redress afforded at domestic level, the Court’s assessment necessarily involves comparison between the actual award and the amount that the Court would award in similar cases (see, mutatis mutandis, Scordino v. Italy (no.", "1) [GC], no. 36813/97, §§ 181 and 202, ECHR 2006‑V, and Holzinger v. Austria (no. 1), no. 23459/94, § 21, ECHR 2001‑I). 20.", "The Court notes that the Supreme Court awarded the applicants the equivalent of EUR 900 and EUR 270 respectively in respect of non‑pecuniary damage. These amounts are considerably below the amounts awarded by the Court in cases in which it has found a violation of Articles 5 § 1 and 11 of the Convention (see, for example, Brega and Others v. Moldova, no. 61485/08, 24 January 2012, where the Court awarded one of the applicants EUR 10,000 in respect of four distinct instances of breach of Articles 5 and 11 in similar circumstances). 21. In the light of the foregoing, the Court considers that the applicants can still claim to be victims of a violation of Articles 5 § 1 and 11 of the Convention.", "It therefore dismisses the Government’s objection. 22. It also finds that there has been a violation of Articles 5 § 1 and 11 of the Convention, which arises from the hindering of their peaceful demonstrations and unlawful detentions. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 23.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 24. The applicants claimed 15,000 euros (EUR) and EUR 7,000 respectively in respect of non-pecuniary damage. 25. The Government considered those amounts to be excessive.", "26. In the light of all the circumstances, the Court awards the applicants jointly EUR 8,000 in respect of non‑pecuniary damage. B. Costs and expenses 27. The applicants also claimed EUR 8,053 for the costs and expenses incurred before the domestic courts and the Court.", "28. The Government considered that amount to be excessive. 29. Regard being had to the documents in its possession, the Court considers it reasonable to award the sum of EUR 4,000 for costs and expenses. C. Default interest 30.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Joins to the merits the Government’s preliminary objection concerning the applicants’ victim status, rejects it and declares the application admissible; 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 11 of the Convention; 4.", "Holds (a) that the respondent State is to pay the applicants jointly, 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 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 10 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıPaul LemmensDeputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF ŠUNDOV v. CROATIA (Application no. 13876/03) JUDGMENT STRASBOURG 13 April 2006 FINAL 13/07/2006 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 Šundov v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL.", "Loucaides,MrsF. Tulkens,MrP. Lorenzen,MrsN. Vajić,MrD. Spielmann,MrS.E.", "Jebens, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 23 March 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 13876/03) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Zvonko Šundov (“the applicant”), on 7 April 2003. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.", "3. On 19 October 2004 the Court decided to communicate the application to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1952 and lives in Križevci.", "5. The applicant was dismissed from work on 15 November 1991. Even though that decision of the employer was subsequently quashed by the Zagreb Municipal Court (Općinski sud u Zagrebu) on 10 October 1994, the applicant has never been reinstated. 6. On 18 December 1995 the applicant instituted civil proceedings against the employer, seeking compensation for his salary.", "7. On 4 June 1997 the court obtained the opinion of an expert accountant. At the hearing held on 22 September 1997 the applicant objected to the expert opinion; and the court requested additional observations from the expert. 8. On 16 April 1998 the court held a hearing at which the applicant objected to the expert opinion and requested additional written observations from the expert witness.", "On 15 June 1998 the applicant requested another expert opinion. On 9 February 1999 the court obtained another opinion from a different expert. 9. On 2 March 1999 the applicant requested a fresh expert opinion. A new one was obtained on 17 January 2000.", "The applicant objected to that opinion as well. 10. In his rush notes of 20 October 2000 and 8 February 2001, the applicant urged the court to schedule a hearing. 11. The court obtained an additional expert opinion on 10 March 2001 and heard the expert on 19 March 2001.", "The applicant again objected to the opinion. On 18 September 2001 he requested that the appointed expert withdraw and a new opinion be obtained. He also requested withdrawal of the trial judge. On 21 September 2001 the court transferred the case-file to another judge and appointed a new expert. 12.", "On 4 October 2001 the court ordered the applicant to give better particulars of his claim. At the hearing on 20 November 2001 the expert replied to the objections of the applicant; and the employer was ordered to submit additional documents. 13. On 16 January 2002 the applicant urged the court to continue the proceedings, as the employer had failed to provide the requested documents. 14.", "On 15 February 2002 the court decided to hear the financial expert witness. 15. On 18 August 2002 the applicant filed a constitutional complaint under section 63 of the Constitutional Act on the Constitutional Court, complaining about the length of the proceedings. 16. On 12 February 2003 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s complaint.", "It found that the Municipal Court had proceeded with due diligence. It also concluded that the applicant contributed to the length of the proceedings by asking seven times for an additional expert opinion. In those circumstances, the Constitutional Court found that the proceedings had not lasted unreasonably long. 17. Subsequently, on 31 January 2003 the main hearing was closed.", "On 7 May 2003 the court gave judgment dismissing the applicant’s claim. On appeal, on 11 May 2004 the Zagreb County Court (Županijski sud u Zagrebu) upheld the first-instance judgment. 18. The applicant filed an appeal on points of law and the proceedings are currently pending before the Supreme Court (Vrhovni sud Republike Hrvatske). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 19. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 20. The Court notes that the proceedings started on 18 December 1995, when the applicant lodged his civil action, and are still pending. By this date, they have thus lasted more than ten years. 21.", "The period to be taken into consideration began on 6 November 1997, after the Convention had entered into force in respect of Croatia, and has not yet ended. It has thus lasted approximately eight years and three months for three levels of jurisdiction. 22. However, in order to determine the reasonableness of the length of time in question, regard must be had to the state of the case on 5 November 1997 (see, among other authorities, Styranowski v. Poland, judgment of 30 October 1998, Reports of Judgments and Decisions 1998‑VIII, p. 3376, § 46). A. Admissibility 23.", "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. 24. 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, and that the Constitutional Court on 12 February 2003 dismissed it. Having regard to the fact that the proceedings are still pending, lodging another constitutional complaint would have had reasonable prospects of success since it would have enabled the Constitutional Court to examine the overall length of the proceedings taking into consideration their duration after its previous decision.", "25. The applicant contested that argument. He argued that it was not justified to demand from him to lodge another constitutional complaint when his previous complaint had been dismissed. 26. The Court notes that the arguments put forward by the Government have already been rejected in earlier case (see Antonić-Tomasović v. Croatia, no.", "5208/03, § 34, 10 November 2005) and sees no reason to reach a different conclusion in the present case. It follows that the Government’s objection must be dismissed. 27. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 28. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "The Court reiterates that special diligence is necessary in employment disputes (see Ruotolo v. Italy, judgment of 27 February 1992, Series A no. 230-D, p. 39, § 17). 29. The Government submitted that the proceedings were not complex. The Court sees no reason to hold otherwise.", "30. The Government further argued that the applicant himself significantly contributed to the length of the proceedings, having requested additional expert opinions as many as seven times during the first-instance proceedings. The Court accepts that the applicant contributed to the protraction of the proceedings, but notes, on the other hand, that the domestic court did not have to grant additional expert opinion every time the applicant had requested it; the court itself has the authority to decide how to conduct the proceedings, and in particular, which evidence to take. The Court therefore considers the period between 22 September 1997 (when the applicant objected to the expert opinion for the first time) and 20 November 2001 (after which date the applicant filed no further objections to the expert opinions) as a period of shared responsibility for the length of the proceedings. Furthermore, the Court observes certain periods of inactivity attributable to the domestic authorities.", "In particular, between 20 November 2001 and the adoption of a judgment on 7 May 2003, the first-instance court held only one hearing on 31 January 2003. 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 case (see Frydlender, cited above). 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 the fact that the proceedings have been pending for over eight years before three instances, 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. APPLICATION OF ARTICLE 41 OF THE CONVENTION 32. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 33.", "The applicant claimed 20,000 EUR (twenty thousand euros) in respect of pecuniary and non-pecuniary damage. 34. The Government contested this claim. 35. 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 1,800 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount. B. Costs and expenses 36. The applicant did not claim any costs or expenses incurred before the Court. Accordingly, no award is made under this head.", "C. Default interest 37. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 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 1,800 (one thousand and eight hundred euros) in respect of non-pecuniary damage; and (ii) 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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 13 April 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FIRST SECTION CASE OF COORPLAN-JENNI GMBH AND HASCIC v. AUSTRIA (Application no. 10523/02) JUDGMENT STRASBOURG 27 July 2006 FINAL 11/12/2006 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 Coorplan-Jenni GmbH and Hascic v. Austria, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrsF.", "Tulkens,MrsN. Vajić,MrA. Kovler,MrsE. Steiner,MrK. Hajiyev,MrD.", "Spielmann, judges, and Mr S. Nielsen, Section Registrar, Having deliberated in private on 6 July 2006, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 10523/02) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Coorplan-Jenni GmbH (“the applicant company”) and a national of Bosnia and Herzegovina Mr Elvir Hascic (“the second applicant”) on 7 August 2001. 2. The applicants were represented by Mr W.L.", "Weh, a lawyer practising in Bregenz. The Austrian Government (“the Government”) were represented first by their Agent, Mr Hans Winkler and subsequently by their Agent Mr Ferdinand Trauttmansdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs. 3. Both applicants complained under Article 6 of the Convention that there had been no oral hearing before the Administrative Court in the proceedings concerning the applicant company’s request for an employment permit. The second applicant further complained under Article 6 of the Convention that he had been denied access to a court as he was not a party to the proceedings.", "4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1).", "This case was assigned to the newly composed First Section (Rule 52 § 1). The Government of Bosnia-Herzegovina did not wish to intervene under Article 36 of the Convention. 6. A hearing took place in public in the Human Rights Building, Strasbourg, on 24 February 2005 (Rule 54 § 3). 7.", "There appeared before the Court: (a) for the GovernmentMrH.Winkler, Ambassador, Agent,MrsI. Nowotny, Ministry of Economics and Labour,MrsJ. Höller, Chancellery/Constitutional Service, Advisers; (b) for the applicantsMrW. Weh, a lawyer, MrR. Kolb, a lawyer, Counsel.", "8. The Court heard addresses by Mr Winkler for the Government and Mr Weh for the applicants. 9. By a decision of 24 February 2005 following the hearing the Court declared the application partly admissible. 10.", "The applicants but not the Government filed observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 11. In April 1991 the second applicant entered Austria on a tourist visa. He made two unsuccessful requests for a residence permit (Aufenthaltserlaubnis) in February 1992 and April 1994 respectively.", "In May 1996 he made a new request for a residence permit, which was granted in July 1996 for a period of two years for the purpose of family reunification with his wife and baby daughter, both of whom lived in Austria. His leave to remain was subsequently extended for successive two-year periods. 12. From 1991 onwards the second applicant worked for the applicant company. 13.", "After the Labour Market Service had advised that an employment permit was required for the second applicant, the applicants lodged a request with the Feldkirch Labour Market Service (Arbeitsmarktservice) on 23 April 1998 for the grant of an employment permit to the applicant company. 14. On 4 June 1998 the Labour Market Service refused the request in accordance with s. 4(6) of the Employment of Aliens Act (Ausländerbeschäftigungsgesetz). It found that the maximum quota fixed for the employment of foreign workers that year in Vorarlberg had been exceeded and none of the exceptional conditions of s. 4(6) of the above Act were met. 15.", "On 18 June 1998 the applicants appealed. They submitted that the second applicant had been living in Austria since 1991 and was a shareholder in the Jenni Montagen OEG company. They claimed that the second applicant had a right to employment in Austria and referred in that connection to the Geneva Refugee Convention, the European Social Charter and the International Covenant on Economic, Social and Cultural Rights. They further referred to the Association Agreement between the European Union and Turkey and submitted that that treaty had to be applied by analogy to their case. 16.", "On 22 July 1998 the Vorarlberg Labour Market Service dismissed the applicant company’s complaint and rejected the second applicant’s complaint. It noted that only the applicant company as the proposed employer, not the second applicant, had the right to lodge a request for the grant of an employment permit. According to s. 21 of the Employment of Aliens Act an alien only became a party to proceedings concerning the issue of a work permit if his personal circumstances were relevant to the decision or if there was no employer. In the present case, however, neither of these conditions applied. In particular, the Bregenz Labour Market Service had based its decision exclusively on the situation of the labour market, and in particular the fact that the maximum quota for the employment of foreign workers had been exceeded.", "For that reason, the second applicant was not a party to the proceedings. 17. As regards the applicant company’s complaint, it noted that only certain refugees – namely, those who had indefinite leave to remain, were married to an Austrian national or had a child of Austrian nationality – were exempted from the regulations of the Employment of Aliens Act. However, throughout the proceedings it had been common ground that the second applicant was not a refugee. The Association Agreement between the European Union and Turkey was not applicable in the present case as the second applicant was not a Turkish national.", "18. On 3 September 1998 the applicants filed a complaint with the Administrative Court and requested an oral hearing. They contested the lawfulness of the fixed maximum quota system and the accuracy of the official statistics according to which the maximum quota had been exceeded. They submitted in that connection that, in view of the number of foreign workers in employment that had been given in the official statistics some months before, the number that was now being quoted could not be correct. They further complained that the Labour Market Service had failed to establish objectively in adversarial proceedings that the maximum quota for Vorarlberg had been exceeded.", "19. They further submitted that the second applicant had a right to take up employment in Austria and had standing to join the proceedings. The applicant had been living with his wife in Austria since 1991 and they had a daughter who was born in 1995. The applicant was in possession of a settlement permit (Niederlassungsbewilligung) limited in time while his wife and his daughter had been granted indefinite residence permits (Aufenthaltsbewilligung). The applicants referred to Article 17 of the Geneva Refugee Convention and submitted that it should be applied by analogy to nationals of Bosnia and Herzegovina who had come to Austria before the civil war.", "They further referred to Article 23 of the Universal Declaration of Human Rights, Article 6 of the International Covenant on Economic, Social and Cultural Rights and the European Social Charter. They also relied on Article 6 and Article 8 of the Convention and Article 1 of Protocol No. 1. 20. On 12 October 1998 the Vorarlberg Labour Market Service submitted its comments.", "21. On 19 December 2000 the Administrative Court dismissed the applicant company’s complaint and rejected the second applicant’s complaint. 22. As regards the second applicant it found that none of his rights had been violated, as it was in principle for the employer to request the issue of an employment permit. It further referred to the case-law of the Constitutional Court according to which a decision whether or not to issue an employment permit did not concern a “civil right” within the meaning of Article 6 of the Convention.", "23. As regards the applicant company’s complaint, the Administrative Court noted that the official statistics showing that the maximum quota had been exceeded constituted documentary evidence which it had been open to the company to contest by adducing proof to the contrary. The company had, however, failed to make any valid objection to the Labour Market Service to the statistical evidence that the maximum quota had been exceeded. The complaint now made before the Administrative Court that the Labour Market Service had failed to establish objectively in adversarial proceedings that the maximum quota for Vorarlberg had been exceeded was unsubstantiated and, in any event, inadmissible, as it had not previously been raised before the Labour Market Service. 24.", "As regards the reference to the Geneva Refugee Convention and the Association Agreement between the European Union and Turkey the Administrative Court noted that those treaties were not applicable to the present case as the second applicant had never claimed to be a refugee within the meaning of the Geneva Refugee Convention and was not Turkish. It further noted that no right for the second applicant to take up employment could be deduced from the Universal Declaration of Human Rights or the International Covenant for Economic, Social and Cultural Rights. 25. In accordance with s. 39(2) of the Administrative Court Act (Verwaltungsgerichtshofgesetz), the Administrative Court dismissed the applicants’ request for a hearing as it found that an oral hearing was not likely to contribute to the clarification of the case. Referring to its case-law it found that the proceedings did not concern a “civil right” within the meaning of Article 6 of the Convention.", "This decision was served on the applicants’ counsel on 7 February 2001. 26. Meanwhile, on 23 October 2000, the second applicant’s wife acquired Austrian citizenship. Consequently, the Employment of Aliens Act is no longer applicable to the second applicant. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 27. The Employment of Aliens Act (Ausländerbeschäftigungsgesetz) regulates foreign workers’ access to the Austrian labour market. The relevant parts of the Act at the material time were as follows: 28. Section 1 of the Act stated that it was not applicable inter alia to: - certain refugees who had indefinite leave to remain in Austria, who were married to an Austrian national or who had a child of Austrian nationality (s. 1(2)(a)); - aliens married to an Austrian national if they were in possession of a residence document (Aufenthaltstitel) within the meaning of the Act (s.1(2)(1)); under the Aliens Act (Fremdengesetz) there are two types of residence document: residence permits (Aufenthaltsbewilligung) and settlement permits (Niederlassungsbewilligung). The relevant provisions of the Aliens Act make it easier for aliens married to an Austrian national to obtain a settlement permit.", "Under s. 3(8) of the Employment of Aliens Act the competent Regional Labour Office had to certify that the alien concerned fulfilled the requirements of s. 1(2) (l) before he could take up employment. 29. S. 3(1) and (2) of the Act laid down the principle that a proposed employer required an employment permit (Beschäftigungsbewilligung) if he wished to take on a foreign employee. Without such a permit the contract of employment between the employer and the foreign employee was null and void. However, while he was actually employed an alien hired without an employment permit had the same rights against his employer as he would have had if the contract of employment had been valid.", "If the lack of an employment permit was due to the employer’s negligence, the foreign employee further enjoyed all the rights to which he would have been entitled upon the termination of a valid employment relationship (s. 29). 30. S. 15 of the Act provided that a request could be made for an “exemption certificate” (Befreiungsschein) in respect of aliens who had been continuously legally employed within the meaning of the Act in Austria for at least five years during the previous eight, and for aliens who had been married to an Austrian national for at least five years and had their residence (Wohnsitz) in Austria. The exemption certificate subsequently relieved the alien or potential employer from the obligation to apply for an employment permit. S. 19 provided that the alien concerned could apply for an exemption certificate to the competent Regional Labour Market Service.", "31. If an alien had been continuously legally employed within the meaning of the Act for at least 52 weeks in the previous 14 months, he was entitled to request a personal work permit (Arbeitserlaubnis) which was normally valid for one region only and could be restricted to certain kinds of employment (s. 14(a)). 32. S. 19 provided that in order to obtain an employment permit the employer had to submit details of the proposed employment of the individual employee to the Regional Labour Market Service concerned. The application could be made by the alien only if there was no employer.", "33. According to s. 4(1) an employment permit could only be granted if the situation and evolution of the labour market so allowed and important public or economic interests would not be harmed. Furthermore, specific conditions listed in s. 4(3) had to be fulfilled. 34. S. 4(b)(1) laid down that the situation and evolution of the labour market only allowed an employment permit to be granted in respect of a proposed foreign employee if there were no prior-ranking foreign job applicants.", "Prior-ranking foreign job applicants included aliens who were in possession of an exemption certificate within the meaning of s. 15 of the Act or who were in receipt of unemployment insurance payments (Arbeitslosenversicherung) (s. 4(b)(2) and (3)). 35. S. 4(c) provided that an employment permit had to be issued ex officio in respect of Turkish nationals falling within the relevant provisions of the Association Agreement between the European Union and Turkey. 36. Under s. 13(a) the Minister for Labour and Social Affairs could fix maximum quotas for the employment of aliens in a specific region (Landeshöchstzahl) for the following year.", "S. 4(6) provided that once the maximum quota had been exhausted, no further employment permits could be issued unless there were certain exceptional circumstances. 37. S. 21 provided that, in principle, the foreign job applicant was not a party to the proceedings concerning the issue of the employment permit. Exceptions were made where the personal circumstances of the alien were relevant to the decision or where there was no employer. 38.", "According to the settled case-law of the Constitutional Court and the Administrative Court a refusal to issue an employment permit under S. 4(1) and (6) of the Employment of Aliens Act could not violate a proposed foreign employee’s rights because he had no legal entitlement to the grant under that Act (see VfSlg 14.347/1995, VfSlg 13617/1993; and the Administrative Court’s decision of 16 November 1995, 94/09/0330). 39. The Constitutional Court and the Administrative Court have further held that the refusal of an employment permit to a proposed employer is not a decision concerning the employer’s “civil rights” (see, for example, VfSlg 13617/1993 and Administrative Court’s decision of 29 October 1997, 95/09/0254 with further references). 40. According to s. 39(1) of the Administrative Court Act, the Administrative Court must hold a hearing after its preliminary investigation of the case if a complainant so requests within the time-limit.", "S. 39(2) and (6) provides, however, that, notwithstanding such a request, the Administrative Court may decide not to hold a hearing if it is apparent from the written pleadings of the parties and the files relating to the previous proceedings that an oral hearing is unlikely to help clarify the case and that the lack of a hearing will not violate Article 6 of the Convention. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 41. Both applicants complained that there had been no oral hearing before the Administrative Court in the proceedings concerning the issue of an employment permit. The second applicant further complained that he had been denied access to a court as he was not a party to the proceedings.", "The applicants relied on Article 6 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 fair ... hearing ... by [a] ... tribunal...” A. The parties’ submissions 1. The applicants 42. The applicants submitted that the second applicant was integrated in Austria and had a right to an employment permit under Article 8 of the Convention. They submitted in this regard that the second applicant had been legally residing in Austria since 1991 and had a wife and a daughter in Austria who, in the interim, had become Austrian nationals.", "He had already worked for the applicant company for seven years. The applicants submitted that a claim to work by a foreign worker permanently established with his family in the host country was, at the very least, an arguable right. The right of a foreign employee to an employment permit was furthermore indirectly recognised by the case-law of the Constitutional Court according to which an alien was not to be discriminated against by another alien. Further, the competent authorities did not have an unfettered discretion to decide whether or not an employment permit should be granted but were bound by the conditions laid down in the Employment of Aliens Act. The applicants argued that the second applicant’s right to employment in Austria could be deduced from the Geneva Refugee Convention, the International Covenant on Economic, Social and Cultural Rights, the Association Agreement between Austria and Turkey and the European Social Charter.", "43. The applicants submitted that an employment permit was a condition precedent to the validity of the contract of employment between the employer and the foreign employee and was therefore a decisive factor in a civil-law relationship. Even if a foreign worker employed under an invalid employment contract had the same rights to a salary from his employer as he would have had under a valid employment contract, he did not have protection against dismissal, health insurance, pension rights or a right to representation by the Workers’ Committee. Moreover, a worker who was illegally employed risked being prohibited from residing in Austria. The proceedings at issue were comparable to administrative proceedings concerning the approval of a transaction under the Real Property Transactions Act to which the Court had found that Article 6 was applicable (Ringeisen v. Austria, judgment of 16 July 1971 Series A no.", "13, and Sramek v. Austria, judgment of 22 October 1984, Series A, no. 84), or to proceedings concerning a guardianship court’s approval of a contract concerning a minor. The applicants further pointed out that the Labour Market Service could not change a civil employment contract but could refuse to grant a permit if the salary did not correspond to the minimum wage set out in the relevant collective bargaining agreement. 44. They maintained that the lack of an oral hearing before the Administrative Court and the fact that the second applicant had been denied access to a court constituted violations of Article 6 of the Convention.", "2. The Government 45. The Government submitted that Article 6 was not applicable to the proceedings at issue. In respect of the second applicant they argued that he could not claim a right within the meaning of Article 6 as under domestic law he had neither a right to apply for an employment permit nor a right to the issue of such a permit. They referred in that connection to the decision of B. v. the Netherlands (no.", "12074/86, Commission decision of 14 July 1988, unreported), in which the Commission found that, in the absence of an independent right of an alien to apply for a work permit under Dutch law, Article 6 was not applicable to the proceedings relating to such an application. The Government further stressed that the refusal to issue an employment permit affected the foreign worker’s legal position only to a limited extent as, in the absence of an employment permit a foreign worker who was actually employed had the same rights against his employer as if the contract of employment was valid. Furthermore, if the lack of an employment permit was due to the employer’s negligence, the foreign employee enjoyed all the rights to which he would have been entitled upon the termination of a valid employment relationship. 46. The Government also argued that the proceedings did not involve the determination of a “civil” right of either the applicant company or the second applicant.", "They argued in this respect that the requirement of an employment permit for foreign workers served to regulate the Austrian labour market and social policy. Although a decision concerning such a permit had certain effects on relationships under the civil law, its primary purpose was public. In the present case, the refusal to grant an employment permit was exclusively based on considerations concerning the public interest. The Employment of Aliens Act provided for the gradual integration of foreign workers into the Austrian labour market. The decision concerning the alien’s initial entry into the Austrian labour market, namely the issue of an employment permit, was exclusively based on public interests and the alien concerned therefore had no right to such a permit.", "As the alien became further integrated into the labour market, however, public interests became less decisive and he acquired a legal right to a work permit and, subsequently, to an exemption certificate granting him full access to the Austrian labour market. 47. The Government further argued that the applicant company had been free to employ someone else. There had not, therefore, been any restriction on the manner in which it exercised its economic activities and property rights or in the scope of those activities and rights. 48.", "The Government submitted that, even if the Court were to find that Article 6 was applicable, there had been no violation of the applicant company’s right to an oral hearing before a tribunal as the special features of the proceedings constituted “exceptional circumstances” which justified the absence of a hearing. The Government noted in that connection that in their submissions to the Administrative Court the applicants had not substantiated their complaint relating to the maximum quota or their request for an oral hearing. The Administrative Court had, therefore, been in a position in which it could decide the case on the basis of the case-file. 49. The Government admitted that, if the Court found that Article 6 was applicable to the proceedings at issue, the second applicant’s right of access to a court had been violated.", "B. The Court’s assessment 1. Applicability of Article 6 § 1 of the Convention 50. The Court reiterates that, according to the principles laid down in its case-law, it must first ascertain whether there was a “dispute” (“contestation”) over a “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 actual existence of a right but also to its scope and the manner of its exercise.", "The outcome of the proceedings must be directly decisive for the right in question. Lastly, the right must be a “civil” right (see, amongst many other authorities, Mennitto v. Italy [GC], no. 33804/96, § 23, ECHR 2000‑X, with further references). 51. Turning to the circumstances of the present case, the Court finds that the applicants’ situations must be examined separately.", "1. The applicant company 52. The Court notes at the outset that the Government did not deny that, following the Labour Market’s Services’ refusal to grant an employment permit, a dispute had arisen between the applicant company and that authority. The dispute, in which the applicant company inter alia argued that the Vorarlberg Labour Market Service had relied on inaccurate figures, was genuine and serious. It remains to be determined whether the dispute related to a civil right of the applicant company.", "53. In this regard, the Court notes that under the Employment of Aliens Act an employment permit for a specific foreign employee is granted to the employer upon request, provided that specified conditions are met, important public or economic interests are not harmed and the situation and evolution of the labour market allow. It follows that the applicant company as the proposed employer could, at least on arguable grounds, claim the right to an employment permit. 54. The Court finally notes that the validity of an employment contract concluded between an employer and a foreign employee is in principle dependent on the grant of an employment permit.", "Therefore, the outcome of the proceedings at issue has to be considered directly decisive for the applicant company’s relations in civil law and thus concerned the applicant company’s “civil” rights (see mutatis mutandis Ringeisen v. Austria, cited above; Fehr and Others v. Austria, no. 28866/95, Commission decision of 2 July 1997, unreported). 55. It follows that Article 6 of the Convention applies to the proceedings concerning the applicant company’s request for an employment permit. 2.", "The second applicant 56. The Court notes that as the proposed foreign employee the second applicant had no locus standi in the proceedings concerning the employment permit. The Court will examine whether this restriction delimited the substantive content properly speaking of the second applicant’s right (so that the guarantees of Article 6 § 1 do not apply) or amounted to a procedural bar preventing the bringing of a potential claim to court, to which Article 6 could have some application (see mutatis mutandis Roche v. the United Kingdom [GC], no. 32555/96, §§ 118,119, 19 October 2005). 57.", "The Court observes that the applicants agreed on the second applicant’s employment by the applicant company and jointly applied for an employment permit. In this important aspect the present case differs from the case of B. v. the Netherlands (cited above), in which the employer refused to join the applicant in his application for a work permit and the Commission found that, in the absence of an independent right to such a permit by the applicant, Article 6 did not apply. 58. Thus, the present case does not concern the second applicant’s right to employment as such, but rather his right to the necessary public approval of his concrete employment plans with the applicant company. Considering that the applicant company could and actually did claim a right to the issue of an employment permit, the Court finds that the second applicant must be taken to have also had a right, derived from the applicant company’s right, to adjudication on his request for an employment permit.", "The fact that the domestic legislation precluded him from making the request for an employment permit to the domestic authorities personally does not affect the existence of that right but is only a procedural bar. The Court is comforted in this view by the fact that the relevant domestic legislation does not unconditionally prevent a foreign employee from applying for an employment permit but provides exceptional circumstances in which a foreign worker can institute such proceedings personally (see § 37 above). 59. Having regard to its findings above (see §§ 53, 54), the Court further considers that the second applicant’s right to conclude a valid employment contract was arguable, and that the dispute he wished to bring before the domestic tribunals was directly decisive for this “civil” right and genuine and serious. 60.", "It follows that Article 6 § of the Convention also applies in respect of the second applicant. 2. Compliance with Article 6 § 1 of the Convention 1. The applicant company 61 The applicant company complained under Article 6 § 1 of the Convention that there had been no oral hearing before the Administrative Court. 62.", "The Court notes that the applicant company’s case was considered by the Bregenz Labour Market Service and the Vorarlberg Labour Market Service, both purely administrative authorities, and subsequently by the Administrative Court. The applicant company did not contest that the Administrative Court qualified as a tribunal, and there is no indication in the file that the Administrative Court’s scope of review was insufficient in the circumstances of the case. Thus, the Administrative Court was the first and only tribunal to examine the applicant’s case (see mutatis mutandis Schelling v. Austria, no. 55193/00, § 29, 10 November 2005). 63.", "The applicant company was thus in principle entitled to a public oral hearing before the first and only tribunal to examine its case, unless there were exceptional circumstances which justified dispensing with such a hearing. The Court has accepted such exceptional circumstances in cases where proceedings concerned exclusively legal or highly technical questions (see Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, Series A no. 263, p. 19-20, § 58; Varela Assalino v. Portugal (dec.), no. 64336/01, 25 April 2002; Speil v. Austria (dec.) no. 42057/98, 5 September 2002).", "64. However, the Court does not consider that the subject matter of the proceedings before the Administrative Court in the present case was of such a highly technical or exclusively legal nature as to justify dispensing with the obligation to hold a hearing. 65. There has accordingly been a violation of Article 6 § 1 of the Convention. 2.", "The second applicant 66. The second applicant complained under Article 6 § 1 of the Convention that he had been denied access to a court as he was not a party to the proceedings concerning the issue of an employment permit. He further complained under Article 6 § 1 of the Convention that there had been no oral hearing before the Administrative Court. 67. The Court reiterates that Article 6 § 1 embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect.", "While this right may be subject to limitations; it must be satisfied that the limitations applied 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 sought to be achieved (see, among many other authorities, Osman v. the United Kingdom, judgment of 28 October 1998, Reports of Judgments and Decisions 1998‑VIII, § 174). 68. In the present case, the Employment of Aliens Act prevented the second applicant from bringing his claim for an employment permit before the domestic authorities. 69.", "The Government admitted that if the Court found that Article 6 was applicable to the proceedings at issue the second applicant’s right of access to a court had been violated. 70. In the light of the foregoing and its conclusion that Article 6 of the Convention is applicable to the second applicant’s case, the Court finds that there has been a violation of the second applicant’s right of access to a court, as guaranteed by Article 6 § 1 of the Convention. 71. In view of this finding, the Court does not find it necessary to examine the second applicant’s complaint about the lack of an oral hearing before the Administrative Court.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 72. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 73. The applicants claimed reimbursement of their costs in the domestic proceedings and before the Court under the head of pecuniary damage.", "74. The Court will examine these claims under the head of costs and expenses. B. Costs and expenses 75. The applicants claimed a total of 2,175.36 euros (EUR) including VAT for the costs they had incurred before the domestic authorities, namely before the Vorarlberg Labour Market Service and the Administrative Court.", "They further claimed EUR 11,744.78 including VAT for the costs incurred in the proceedings before the Court. 76. The Government argued that these claims were excessive. 77. According to the Court’s established case-law, an award can be made in respect of costs and expenses incurred by the applicants only in so far as they have been actually and necessarily incurred and are reasonable as to quantum (see inter alia, Belziuk v. Poland, judgment of 25 March 1998, Reports 1998-II, p. 573, § 49, and Craxi v. Italy, no.", "34896/97, § 115, 5 December 2002). 78. As to the costs claim concerning the domestic proceedings, the Court considers that the applicants’ claims meet the above-mentioned conditions. It therefore awards the full sum claimed, namely EUR 2,175.36. This sum includes any taxes chargeable on this amount.", "79. As regards the Convention proceedings, the Court notes the applicants, who did not have the benefit of legal aid, were represented before the Court. However, the application was only partly successful and was brought by the same lawyer and is similar to the application brought in the case of Jurisic and Collegium Mehrerau v. Austria. Making its assessment on an overall basis, the Court awards EUR 7,000 under this head. This sum includes any taxes chargeable on this amount.", "80. Thus, a total of EUR 9,175.36 is awarded in respect of cost and expenses. C. Default interest 81. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1.", "Holds unanimously that Article 6 § 1 of the Convention is applicable to the proceedings in respect of the applicant company; 2. Holds by five votes to two that Article 6 § 1 of the Convention is applicable to the proceedings in respect of the second applicant; 3. Holds by six votes to one that there has been a violation of Article 6 § 1 of the Convention in respect of the applicant company’s right to a public oral hearing before the Administrative Court; 4. Holds by five votes to two that there has been a violation of Article 6 § 1 of the Convention in respect of the second applicant’s right of access to a court; 5. Holds unanimously that it is unnecessary to examine the second applicant’s further complaint about the lack of an oral hearing under Article 6 § 1 of the Convention; 6.", "Holds by six votes to one (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 9,175.36 (nine thousand one hundred and seventy-five euros and thirty-six cents) in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount[s] at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses unanimously the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 27 July 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following dissenting opinions are annexed to this judgment: (a) Partly dissenting opinion of Mrs Steiner joined by Mrs Vajić; (b) Partly dissenting opinion of Mrs Vajić. C.L.R.S.N.", "PARTLY DISSENTING OPINION OF JUDGE STEINER JOINED BY JUDGE VAJIĆ I do not agree with the majority that Article 6 of the Convention is applicable in respect of the second applicant for the following reasons. It has been the Court’s consistent case-law that Article 6 applies only to disputes over “rights” which can be said, at least on arguable grounds, to be recognised under domestic law (see, amongst many other authorities, James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, Z and Others, at § 81 and the authorities cited therein together with McElhinney v. Ireland [GC], no. 31253/96, § 23, ECHR 2001‑XI (extracts)) It was the applicants’ contention that the second applicant had a right recognised under Austrian law for an employment permit. They did not claim that such a right could be derived from the provisions of the Employment Act but rather argued that such a right can be based on other provisions which are part of Austrian law.", "I will take these provisions in turn. The first argument is that he can rely on Article 8 of the Convention. I would, however, point out that in the admissibility decision of this very case, the Court found that the facts complained of did not fall within the ambit of Article 8 of the Convention. The applicants next argue that the second applicant can rely on the Constitutional Court’s case-law prohibiting all kinds of discrimination including discrimination between foreigners. However, this case-law merely refers to an equal enjoyment of legal positions guaranteed by law and cannot guarantee a substantive right to employment itself.", "Next the applicants suggest that a right to an employment permit might be inferred from the Geneva Refugee Convention. However, it has not been submitted that the second applicant has been recognised as a refugee or that any such application had been made before the domestic authorities. Further, the applicants refer to the International Covenant on Economic, Social and Cultural rights and the European Social Charta. However, these international instruments are not self executing at the domestic level and for this reason cannot confer any subjective right at the domestic level on the applicants. I would only add that the wording of the relevant provisions does not give the impression that they actually give an unconditional right of employment to foreigners.", "Lastly the applicants propose that the Association Agreement concluded between the European Union and the Republic of Turkey be extended to them. I do not think this is possible. By concluding such an agreement the parties have consented to enter into a special relation and it cannot be claimed that they had had the intention to extend this special treatment to thirds who are not party to that agreement. I will now turn to the majority’s finding that the fact that the second applicant had no locus standi in the proceedings concerning the issuing of an employment permit did not delimit the substantive content properly speaking of his right, but amounted merely to a procedural bar and that Article 6 of the Convention was therefore applicable (§§ 56, 58). They cite the case Roche v. the United Kingdom.", "This case refers in fact to previous case-law concerning otherwise well-founded claims in domestic law subsequently prevented from being entertained before a domestic court because subsequently issued legal acts or the grant of State immunity. In these cases Article 6 was held applicable (see Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom, judgment of 10 July 1998, Reports of Judgments and Decisions 1998‑IV; Al-Adsani v. the United Kingdom [GC], no. 35763/97, ECHR 2001‑XI; Fogarty v. the United Kingdom [GC], no. 37112/97, ECHR 2001‑XI and McElhinney v. Ireland [GC], no. 31253/96, ECHR 2001‑XI (extracts)).", "However, I cannot find that the present case is in any aspect comparable to these cases. Looking at the relevant provisions of the domestic legislation, the Employment of Aliens Act, and its interpretation by the domestic courts, I cannot discern any provision granting a foreigner the right to an employment permit and, consequently, general locus standi in such proceedings. Only in very exceptional situations, which the applicants have never even alleged to exist in their case, a foreigner may be party to the proceedings (see § 37 above). I finally note that in the very case Roche v. United Kingdom the Court stressed that, in assessing whether there is a civil “right” and in determining the substantive or procedural characterisation to be given to an impugned restriction, the starting point must be the provisions of the relevant domestic law and their interpretation by the domestic courts (see § 120) and, having carefully examined these elements, considered that Mr Roche had no (civil) “right” recognised under domestic law which would attract the application of Article 6 § 1 of the Convention (§ 124) I regret that the majority disregarded these principles in the present case. Thereby, the Court distorted the domestic legislation and its accepted interpretation by substituting them by its own understanding.", "PARTLY DISSENTING OPINION OF JUDGE VAJIĆ 1. I regret that I am unable to agree with the majority’s finding that Article 6 of the Convention is applicable to the second applicant. On that point I join the dissenting opinion of Judge Steiner. 2. I have voted with the majority as to the applicability of Article 6 in respect of the first applicant.", "However, I cannot agree with the finding that there was also a violation of Article 6 in respect of the applicant company’s rights to an oral hearing in the present case. In rejecting the request for an oral hearing the Administrative Court based itself, inter alia, on section 39(2) of the Administrative Court Act according to which it may decide not to hold a hearing if such a hearing is unlikely to help clarify the case (§ 25). The dispute between the parties in the instant case related basically to the maximum quota fixed for the employment of foreign workers in Vorarlberg as the applicant contested the accuracy of the official statistics due to which the quota had been exceeded. The majority has concluded, without any further explanation and following a somewhat mechanical approach, that the subject matter of the proceedings before the Administrative Court in the present case was not of such a “highly technical or exclusively legal nature” as to justify dispensing with the obligation to hold a hearing (§ 64). With due respect, I do not share that opinion.", "In my opinion the applicant’s submissions to the Administrative Court were not of a kind to raise issues of fact or law which were of such a nature as to require an oral hearing for their disposition (see among others Pitkänen v. Sweden (dec.), no. 52793/99, 26 August 2003; Pursiheimo v. Finland (dec.), no. 57795/00, 25 November 2003; Varela Assalino v. Portugal (dec.), no. 64336/01,25 April 2002; Döry v. Sweden, judgment of 12 November 2002, § 44; Strömblad v. Sweden (dec.), no. 45935/99, 11 February 2003; Allan Jacobsson v. Sweden (No.", "2), judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, § 49). Having regard to the facts of the case, the main question the Administrative Court had to determine related to the finding of the Labour Market Services that the maximum quota has been exceeded and the application of the quota to the applicant, thus leaving no discretionary powers to the court to decide. In my opinion that question could have been adequately resolved on the basis of the case file and the written submissions and did not require a debate. I therefore fail to see why written submissions challenging the findings on the maximum quota and containing information and possible data trying to prove the contrary would not have sufficed. The applicant has not submitted any elements of a nature to convince me that only an oral hearing subsequent to the written submissions would have assured the fair character of the proceedings.", "Moreover, it is understandable that in this sphere relating to employment quotas for foreign workers the national authorities should have regard to the demands of efficiency and economy. Systematically holding hearings could be an obstacle to the particular diligence required in such cases (see mutatis mutandis Speil v. Austria (dec.), no. 42057/98, 5 September 2002; Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, Series A no. 263, § 58). For these reasons I am of the opinion that there were circumstances which justified dispensing with an oral hearing before the Administrative Court in the present case.", "Finally, I am of the opinion that the Court should have a more flexible approach, than the one adopted by the majority in the instant case, when evaluating whether decisions of domestic authorities not to hold an oral hearing in civil cases amounted to a violation of Article 6 § 1 of the Convention. In other words, it should examine the need for the hearing (i.e., whether it would serve any purpose and/or bring new elements to the courts’ reasoning) on the particular facts of each case and also having special regard to the reasoning of the domestic courts. The Court should, of course, always emphasize the need for an oral hearing in really important cases, but at the same time it should avoid unnecessarily burdening domestic courts from whom we repeatedly demand particular diligence, especially in the kind of cases as the present one." ]

[ "THIRD SECTION CASE OF FADIN v. RUSSIA (Application no. 58079/00) JUDGMENT STRASBOURG 27 July 2006 FINAL 27/10/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Fadin v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President,MrL.", "Caflisch,MrC. Bîrsan,MrA. Kovler,MrV. Zagrebelsky,MrsA. Gyulumyan,MrDavid Thór Björgvinsson, judges,and Mr R. Liddell, Section Registrar, Having deliberated in private on 8 September 2005 and 6 July 2006, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1.", "The case originated in an application (no. 58079/00) 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 a Russian national, Mr Aleksandr Nikolayevich Fadin (“the applicant”), on 6 January 2000. 2. The Russian Government (“the Government”) were represented by Mr Pavel Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicant alleged, in particular, that the criminal proceedings against him had been unreasonably long and that the supervisory review as conducted in the present case had violated his rights under Article 6 of the Convention and Article 4 of Protocol No. 7. 4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.", "5. By a decision of 8 September 2005, the Court declared the application partly admissible. 6. 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 7. The applicant was born in 1954 and lives in Tula. 8. On 7 May 1996 the applicant was arrested on suspicion of the attempted rape of his flatmate.", "He was subsequently also charged with attempted murder. 9. On 5 August 1996 the Tula Regional Court convicted the applicant of attempted rape and attempted murder (Articles 15, 103 and 117 of the Russian Soviet Federative Socialist Republic (“RSFSR”) Criminal Code). 10. On 31 October 1996, on appeal, the Supreme Court of Russia quashed the conviction and remitted the case for a fresh examination.", "The Supreme Court instructed the Tula Regional Court to examine certain evidence. 11. On 14 March 1997 the Tula Regional Court ordered a psychiatric expert examination of the applicant. 12. On 5 January 1998 the applicant was diagnosed with schizophrenia.", "13. On 24 March 1998 the Tula Regional Court reclassified the charges as attempted rape and attempted murder with aggravating circumstances (Articles 15, 103 and 117 of the RSFSR Criminal Code). It held that, on account of his mental disorder, the applicant was not responsible for the acts he had committed and ordered his compulsory treatment in a psychiatric hospital. The applicant did not appeal. 14.", "The applicant remained in hospital from 20 April 1998 to 30 January 1999. After being discharged from hospital, he travelled to Belarus. 15. On 20 September 1999 the applicant applied to the Prosecutor-General requesting supervisory review of his criminal case. It appears that it was not his first request for supervisory review.", "The applicant stated, inter alia: “...I repeat my request to you: 1. That the case ... against me be fully re-examined by a court...”. 16. On 12 November 1999 the Deputy Prosecutor-General lodged an application for supervisory review of the Tula Regional Court’s decision of 24 March 1998. 17.", "On 7 December 1999 the Supreme Court of Russia quashed the decision of 24 March 1998 under the supervisory-review procedure and remitted the case for a fresh examination. The Supreme Court found that in the trial of 24 March 1998 the Tula Regional Court had failed to comply with the instructions the Supreme Court had given in its decision of 31 October 1996. Furthermore, it had unlawfully held that the applicant had committed more serious acts than those of which he had initially been convicted on 5 August 1996. 18. On an unspecified date the case was set down for a hearing on the merits on 13 July 2000.", "It appears that the applicant was duly summoned. However, in a telegram addressed to the court he stated that he could not attend the hearing since he had no money to pay for the journey from Belarus to Russia. 19. On 20 July 2000 the Tula Regional Court found the applicant’s failure to appear at the hearing unjustified as he had not appended any evidence of his alleged financial hardship to his telegram. It ordered his arrest.", "20. On 26 April 2001 the applicant was arrested in Belarus pursuant to a request of the Russian investigative authorities. He was subsequently extradited to Russia. On 24 August 2001 he was placed in the Tula Remand Prison no. IZ-71/1.", "21. On 4 September 2001 the Tula Regional Court ordered a psychiatric expert examination of the applicant. 22. According to the expert report, dated 27 September 2001, an in-patient psychiatric expert examination was required. The examination was ordered on 2 October 2001.", "23. On 22 October 2001 a written obligation not to leave his place of residence without permission was imposed on the applicant as a preventive measure. 24. On 28 May 2002 the Tula Regional Court reclassified the charges of attempted rape as charges of disorderly behaviour (Article 213 of the RSFSR Criminal Code) and discontinued the criminal proceedings against the applicant on account of the expiry of the statutory time-limit. It acquitted the applicant of the murder charges.", "25. On 2 October 2002 the Supreme Court of Russia upheld the judgment. II. RELEVANT DOMESTIC LAW 26. Section VI, Chapter 30, of the 1960 Code of Criminal Procedure (Уголовно-процессуальный кодекс РСФСР), as applicable at the material time, allowed certain officials to challenge a judgment which had become final and to have the case reviewed on points of law and procedure.", "The supervisory-review procedure (Articles 371-383) was distinct from proceedings in which a case was reviewed in the light of newly established facts (Articles 384-390). However, similar rules applied to both procedures (Article 388). (a) Date on which a judgment becomes final Article 356 of the Code of Criminal Procedure provided that a judgment took effect and became enforceable from the date on which the appellate court delivered its judgment or, if it was not appealed against, once the time-limit for appealing had expired. (b) Grounds for supervisory review and reopening of a case Article 379 Grounds for setting aside judgments which have become final “The grounds for quashing or varying a judgment [on supervisory review] are the same as [those for setting aside judgments (which have not become final) on appeal] ...” Article 342 Grounds for quashing or varying judgments [on appeal] “The grounds for quashing or varying a judgment on appeal are as follows: (i) prejudicial or incomplete investigation or pre-trial or court examination; (ii) inconsistency between the facts of the case and the conclusions reached by the court; (iii) a grave violation of procedural law; (iv) misapplication of [substantive] law; (v) discrepancy between the sentence and the seriousness of the offence or the convicted person’s personality.” (c) Authorised officials Article 371 of the Code of Criminal Procedure provided that the power to lodge a request for a supervisory review could be exercised by the Procurator-General, the President of the Supreme Court of the Russian Federation or their respective deputies in relation to any judgment other than those of the Presidium of the Supreme Court, and by the presidents of the regional courts in respect of any judgment of a regional or subordinate court. A party to criminal or civil proceedings could seek the intervention of those officials to apply for such a review.", "(d) Limitation period Article 373 of the Code of Criminal Procedure set a limitation period of one year during which an application for a supervisory review that might be detrimental to a convicted person could be submitted by an authorised official. The period ran from the date on which the impugned judgment became enforceable. (e) The effect of a supervisory review Under Articles 374, 378 and 380 of the Code of Criminal Procedure, a request for supervisory review was to be considered by the judicial board (the Presidium) of the appropriate court. The court could examine the case on the merits, was not bound by the scope and grounds of the request for supervisory review and was obliged to conduct a full review of the evidence. The Presidium could dismiss or grant the request.", "If the request was dismissed, the earlier judgment remained operative. If it granted the request, the Presidium could decide to quash the judgment and terminate the criminal proceedings, remit the case for a new investigation, order reconsideration by a court at any instance, uphold a first-instance judgment reversed on appeal, or vary or uphold any of the earlier judgments. Article 380 §§ 2 and 3 provided that the Presidium could, in the same proceedings, reduce a sentence or amend the legal classification of a conviction or sentence to the defendant’s advantage. If it found a sentence or legal classification to be too lenient, it was obliged to remit the case for reconsideration. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 4 OF PROTOCOL NO. 7 IN RESPECT OF THE SUPERVISORY REVIEW OF THE TULA REGIONAL COURT’S DECISION OF 24 MARCH 1998 27. The applicant complained under Article 6 of the Convention and Article 4 of Protocol No. 7 that he had been tried twice for the same offence. He also complained under Article 6 about the outcome of the criminal proceedings.", "Article 6 reads, in so far as relevant, as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal...” Article 4 of Protocol No. 7 reads, in so far as relevant, as follows: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2.", "The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.” A. The parties’ submissions 1. The Government 28. The Government submitted that the applicant had himself requested the supervisory review and asked for a full re-examination of his criminal case. Accordingly, the supervisory review had been conducted entirely in accordance with the applicant’s own request and had significantly improved his situation.", "The applicant had been acquitted of the murder charges, the charges of attempted rape had been reclassified as charges of disorderly behaviour – a less severe offence – and the criminal proceedings in that regard had been discontinued on account of the expiry of the statutory time-limit. The Government concluded that the applicant could not claim to be a victim of the alleged violation. 2. The applicant 29. The applicant argued that he could still claim to be a victim of the alleged violation irrespective of his requests for supervisory review.", "Furthermore, he contended that the courts had erred in their findings of fact and law in both phases of the proceedings, that is, before and after the supervisory review. B. The Court’s assessment 30. The Court has previously examined cases raising similar complaints under the Convention in relation to the quashing of a final judicial decision (see Nikitin v. Russia, no. 50178/99, ECHR 2004‑VIII, and Bratyakin v. Russia (dec.), no.", "72776/01, 9 March 2006). 31. As regards the applicability of Article 4 of Protocol No. 7 to supervisory review in the Nikitin case cited above, the Court found as follows: “46. The Court notes that the Russian legislation in force at the material time permitted a criminal case in which a final decision had been given to be reopened on the grounds of new or newly discovered evidence or a fundamental defect (Articles 384-390 of the Code of Criminal Procedure).", "This procedure obviously falls within the scope of Article 4 § 2 of Protocol No. 7. However, the Court notes that, in addition, a system also existed which allowed the review of a case on the grounds of a judicial error concerning points of law and procedure (supervisory review, Articles 371-383 of the Code of Criminal Procedure). The subject matter of such proceedings remained the same criminal charge and the validity of its previous determination. If the request was granted and the proceedings were resumed for further consideration, the ultimate effect of supervisory review would be to annul all decisions previously taken by courts and to determine the criminal charge in a new decision.", "To this extent, the effect of supervisory review is the same as reopening, because both constitute a form of continuation of the previous proceedings. The Court therefore concludes that for the purposes of the ne bis in idem principle supervisory review may be regarded as a special type of reopening falling within the scope of Article 4 § 2 of Protocol No. 7.” 32. The Court observes that in the present case a final judicial decision had been quashed on the grounds of serious procedural defects and that the case was reconsidered by two judicial instances, which delivered the final judgment. As in the Nikitin case cited above, the subject matter of the new proceedings consisted of the same criminal charge and the validity of its previous determination.", "Having regard to the above findings, the Court concludes that the supervisory review in the instant case constituted a reopening of the case owing to a fundamental defect in the previous proceedings, within the meaning of Article 4 § 2 of Protocol No. 7. Accordingly, the complaint raises no issues under Article 4 § 1 of Protocol No. 7 and falls to be examined solely under Article 6 of the Convention (see Bratyakin, cited above, and Savinskiy v. Ukraine (dec.), no. 6965/02, 31 May 2005).", "33. The Court reiterates that the mere possibility of reopening a criminal case is prima facie compatible with the Convention, including the guarantees of Article 6. However, the actual manner in which it is used must not impair the very essence of a fair trial. In other words, the power to reopen criminal proceedings must be exercised by the authorities so as to strike, to the maximum extent possible, a fair balance between the interests of the individual and the need to ensure the effectiveness of the system of criminal justice (see Nikitin, cited above, §§ 54-61). In the specific context of supervisory review, the Convention requires that the authorities respect the binding nature of a final judicial decision and allow the resumption of criminal proceedings only if serious legitimate considerations outweigh the principle of legal certainty (see Bratyakin, cited above).", "34. Turning to the circumstances of the present case, the Court observes that it was the applicant himself who had solicited the supervisory review of the Tula Regional Court’s decision of 24 March 1998. In particular, he asked for his criminal case to be “fully re-examined by a court”. It is not disputed between the parties that the application for supervisory review was lodged by the Deputy Prosecutor-General on 12 November 1999, and the decision in issue was quashed by the Supreme Court of Russia on 7 December 1999 in accordance with the applicant’s request. Furthermore, the scope of the subsequent re-examination entirely corresponded to the one requested, that is the case was fully re-examined.", "The Court considers that, being the initiator of the supervisory review, the applicant cannot claim to be a victim of the alleged breach of the principle of legal certainty. 35. As regards the applicant’s complaint about the outcome of the proceedings before the domestic courts, the Court notes firstly that only the resumed proceedings fall within its competence ratione temporis, the Convention having entered into force in respect of Russia on 5 May 1998. Furthermore, in so far as this complaint concerns the assessment of the evidence and results of the proceedings before the domestic courts, the Court reiterates that it is not its task to review alleged errors of fact and law committed by the domestic judicial authorities and that, as a general rule, it is for the national courts to assess the evidence before them and to apply domestic law. The Court’s task is to ascertain whether the proceedings as a whole were fair (see, inter alia, Bernard v. France, judgment of 23 April 1998, no.", "22885/93, § 37, ECHR 1998-II). 36. The Court finds that in the present case the domestic courts at two levels of jurisdiction carefully examined the materials in their possession and reached reasoned conclusions concerning the charges against the applicant. The applicant had ample opportunity to state his case and contest any evidence he considered false. There is no evidence of any unfairness within the meaning of Article 6 in this respect.", "37. Therefore, the Court finds no violation of Article 4 of Protocol No. 7 and Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION IN RESPECT OF THE LENGTH OF CRIMINAL PROCEEDINGS AGAINST THE APPLICANT 38.", "The applicant complained under Article 6 of the Convention about the length of the criminal proceedings against him. 39. The Court notes that only the proceedings following the supervisory review fall within its jurisdiction ratione temporis. Thus the period to be taken into consideration began on 7 December 1999, when the criminal proceedings against the applicant were resumed and his case was transmitted for a fresh examination, and ended on 2 October 2002 with a final judgment of the Supreme Court of Russia. They lasted 2 years, 9 months and 26 days for two levels of jurisdiction.", "The Court observes, however, that it may take into account the period preceding the entry into force of the Convention (see Ventura v. Italy, no. 7438/76, Commission decision of 9 March 1978, Decisions and Reports (DR) 12, p. 38). A. The parties’ submissions 1. The Government 40.", "The Government submitted that the duration of the proceedings had been reasonable, the occasional delays having been caused by the need to conduct psychiatric expert examinations and to ensure the applicant’s presence at the hearing of the Tula Regional Court after the supervisory- review procedure. 2. The applicant 41. The applicant maintained that the length of the proceedings had been unreasonable and that the delays had been attributable to the domestic authorities. B.", "The Court’s assessment 42. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case and the conduct of the applicant and of the relevant authorities (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 124, ECHR 2000‑XI). 43. The Court notes that between December 1999 and August 2000 hearings on the merits were adjourned a number of times because the applicant was outside Russia and did not appear before the court.", "Furthermore, the proceedings involved a psychiatric expert examination. Taking that into account and having regard to the material in its possession, the Court considers that the period in question did not exceed a “reasonable time” within the meaning of Article 6 § 1 and does not find that the conduct of the domestic authorities led to any significant delays in the proceedings. 44. Accordingly, there has been no violation of Article 6 § 1 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Holds that there has been no violation of Article 6 of the Convention and Article 4 of Protocol No. 7 as regards the supervisory review of the Tula Regional Court’s decision of 24 March 1998 and the outcome of the criminal proceedings; 2. Holds that there has been no violation of Article 6 of the Convention as regards the length of the criminal proceedings. Done in English, and notified in writing on 27 July 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Roderick LiddellBoštjan M. ZupančičRegistrarPresident" ]

[ "FOURTH SECTION CASE OF KNASTER v. FINLAND (Application no. 7790/05) JUDGMENT STRASBOURG 22 September 2009 FINAL 22/12/2009 This judgment may be subject to editorial revision. In the case of Knaster 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 Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 1 September 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 7790/05) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Finnish national, Ms Riitta Knaster (“the applicant”), on 2 March 2005.", "2. The applicant was represented by Mr Heikki Salo, 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. On 28 April 2008 the President of the Fourth Section decided to give notice of the application to the Government as concerned the length of the criminal proceedings.", "It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS 4. The applicant was born in 1939 and lives in Helsinki. THE CIRCUMSTANCES OF THE CASE 5. On 28 August 1992 the applicant opened a joint bank account with her husband, S.K., in Luxembourg.", "At the beginning of 1994 S.K. fell ill with an incurable disease. He decided that the joint bank account should be closed and the money deposited therein, 132,655.16 U.S. dollars (USD), transferred to a new account, which was to be opened in the applicant’s name at the same bank. The transaction was carried out on 28 April 1994. 6.", "On 4 August 1994 S.K. died. An inventory of his estate was conducted on 1 November 1994. The applicant did not report in the inventory the money which was still in her account in Luxembourg. On 20 January 1995 she confirmed the inventory of the estate on oath before a court.", "She did not mention the money in her Luxembourg account. On 31 March 1995 she transferred the money to another bank account in her name in Switzerland. Criminal proceedings 7. On 3 July 1995 S.K.’s children from his previous marriage filed a criminal complaint with the police alleging that the applicant had embezzled from S.K.’s foreign bank accounts money belonging to his estate. On 16 August 1995 the applicant was questioned by the police for the first time.", "8. In August 1995 requests for international legal assistance were sent to the Luxembourg and Swiss authorities. The former replied in either August or September 1997 and the latter did not reply at all. 9. On 24 September 1997 the Helsinki District Court (käräjäoikeus, tingsrätten) confiscated the applicant’s property in the amount of USD 477,609 (equivalent to 2,551,731 Finnish marks (FIM)) as security for the total sum allegedly embezzled by her.", "Apparently, the applicant’s appeal against that decision was dismissed by the Helsinki Court of Appeal (hovioikeus, hovrätten) on 4 December 1997. 10. The pre-trial investigation was completed on 5 December 1997. Subsequently, the public prosecutor sought several extensions to the time-limit for pressing charges. On 24 May 1999 the prosecutor filed an application for a summons with the Helsinki District Court.", "According to the indictment the applicant had appropriated assets in the amount of USD 132,655.16 in her possession but belonging to S.K.’s estate by failing to report the money in the estate inventory. 11. On an unspecified date the prosecutor filed a request to reduce the amount of the above-mentioned security. It appears that the District Court granted this request on 4 June 1999. On 11 October 1999 the Court of Appeal dismissed the applicant’s appeal in this connection, upholding the security measure as amended by the District Court.", "12. In the criminal proceedings before the District Court the applicant denied the charge of aggravated embezzlement claiming that she had not been engaged in any transactions regarding the money allegedly appropriated by her. She also contended that S.K. had told her that the money had belonged to a Russian businessman and she had not therefore been obliged to report it at the time of drawing up the estate inventory. 13.", "On 13 September 1999, having obtained the testimony of the applicant and four other persons as well as written evidence, the court found the applicant guilty as charged and sentenced her to a suspended term of one year and four months’ imprisonment. She was also ordered to compensate S.K.’s estate in the amount of USD 132,655.16. The court ordered the security measure to remain in force until the compensation had been paid or levied or until it had been decided otherwise. In its reasons the court stated, inter alia, that there was no evidence to support the applicant’s allegation that the money had belonged to a Russian businessman. The court did not find the applicant’s own testimony reliable as she had given different accounts about the money on different occasions.", "The court concluded that she had been obliged to report the existence of the money at the time of drawing up the inventory of S.K.’s estate and that she had intentionally failed to fulfil this obligation. 14. The applicant appealed against the judgment to the Court of Appeal maintaining that S.K. had voluntarily transferred the money to her account and that she had not been under an obligation to mention it in the estate inventory given that the money did not belong to it. In the applicant’s view, her conduct did not constitute the offence of which she was convicted.", "15. On 15 August 2000 the prosecutor requested the court to postpone its oral hearing, scheduled for 7 September 2000, in order to conduct a supplementary investigation into the applicant’s allegation that the money had belonged to a Russian businessman. She filed a request with the police to that end on the same date. The investigation was conducted in connection with a request for international legal assistance previously received from Russia and related to S.K.’s accounts abroad. Fresh requests for international legal assistance were sent to the Luxembourg and Swiss authorities.", "Several attempts to speed up the proceedings were then made by the Finnish police. On 19 February 2003 it was decided that the information obtained thus far would be compiled in an investigation report and used as evidence in the applicant’s case, without waiting for the completion of the investigation. 16. On 10 and 11 November 2003 an oral hearing was held in the Court of Appeal. 17.", "On 19 December 2003 that court dismissed the applicant’s appeal and upheld the District Court’s judgment. The court found that the evidence produced before it did not support the allegation that the money had belonged to a Russian businessman. It did show, however, that the applicant had intended to distribute the money unofficially among the parties to the estate, namely without the knowledge of the tax authorities. 18. On 2 September 2004 the Supreme Court refused the applicant leave to appeal.", "Taxation proceedings 19. On 2 December 1997 the local tax authorities imposed a gift tax on the applicant amounting to FIM 327,940, based on an alleged gift from S.K. in the amount of FIM 2,551,731. A tax surcharge of FIM 65,588 was also imposed on her in this connection. The applicant’s claim for rectification was rejected by the Tax Rectification Board (verotuksen oikaisulautakunta, skatterättelsenämnd) on 20 April 1998.", "20. The applicant appealed to the County Administrative Court of Uusimaa (lääninoikeus, länsrätt) requesting that the gift tax and the related tax surcharge be quashed. She maintained that only a sum of USD 132,407 (approximately FIM 730,000) had been transferred to her bank account. She also claimed that the said money was not a gift and did not belong to her. She further pointed out that she was suspected of having embezzled the money in question and it could not be considered by the State both as a gift and as the proceeds of the alleged offence.", "She also contended that the tax decision was based on information obtained from the authorities in Luxembourg which, given its nature, could not be used for the purpose of taxation. 21. On 28 May 1999 the court found for the applicant and ordered the local tax authorities to refund her the tax and tax surcharge already paid. In its reasons the court stated that, as regarded the money transferred to the applicant’s bank account in Luxembourg, the tax authorities should not have used the information obtained from the foreign authorities in connection with international legal assistance in criminal matters. As to the rest, the court noted that there was no proof of whether the applicant had in fact received the money in the first place.", "22. On 21 November 2000 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) dismissed the tax authority’s appeal upholding the lower court’s decision. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION CONCERNING LENGTH OF PROCEEDINGS 23. The applicant 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, which reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 24.", "The Government contested that argument. A. Admissibility 25. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 26. The period to be taken into consideration began on 16 August 1995, when the applicant was first questioned by the police, and ended on 2 September 2004, when the Supreme Court refused her leave to appeal. The proceedings thus lasted nine years and twenty days for three levels of jurisdiction. 27.", "The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). 28. The Government argued that the time elapsed during the pre-trial investigation and the consideration of charges, some three years and nine months, was not unusual in the case of a comprehensive economic offence. The investigation had included requests for international legal assistance.", "The applicant had also changed and supplemented her statement several times during the pre-trial investigation, which added to its length. The proceedings before the District Court had been completed speedily. The proceedings before the Court of Appeal, lasting over four years, had been delayed due to the supplementary investigation requested by the prosecutor. The purpose of that investigation had been to look into the applicant’s contention about the money belonging to a Russian businessman. It was therefore conducted in her interest.", "The request was dated 15 August 2000 and the investigation reports were dated 13 and 25 March and 2 September 2003. The investigation measures had comprised requests for international legal assistance and the police had been active in the conduct of the investigation. The leave to appeal proceedings in the Supreme Court had lasted less than seven months. In the Government’s view, the case had been complex. 29.", "The applicant contested those arguments. Contrary to the Government’s view, she considered the time taken for the consideration of charges, some one and a half years, particularly lengthy in a case where the suspect’s assets had been confiscated. The supplementary investigation at the appellate stage had been conducted solely at the request of the prosecutor and in connection with some other previously instituted investigation. In the applicant’s view, the case against her had not been particularly complex. The long duration of the criminal proceedings and the confiscation of her assets had caused her considerable damage.", "30. The Court notes that the case concerned proceedings of some complexity including requests for international legal assistance at two instances. The total length of the criminal proceedings was in large part due to those requests. However, they were made in the interest of establishing the facts underlying the charge against the applicant. The Court finds that the delay thus caused, some four and a half years, was not solely the Finnish authorities’ responsibility.", "At least during the supplementary investigation at the appellate stage, the domestic authorities made efforts to speed up the proceedings at the international level. Apart from those periods during which the proceedings were stayed pending replies from the foreign authorities, the only stage entailing unnecessary delay seems to have been the consideration of charges, which lasted almost one and a half years. However, even taking into account the delay caused by the requests for international legal assistance, the Court finds the total length of the criminal proceedings, some nine years, problematic. 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 case (see Pélissier and Sassi, cited above).", "32. Having examined all the material submitted to it, the Court considers that the Government have not put forward sufficient facts or arguments capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a violation of Article 6 § 1 of the Convention concerning the length of the proceedings. II.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 33. The applicant complained under Article 6 § 1 of the Convention that the security measure imposed on her was unfounded and excessive and remained in force too long. In fact, it had still not been lifted on the date of lodging her application. 34. It does not transpire from the case file whether the applicant sought leave to appeal to the Supreme Court against the Court of Appeal’s decisions of 4 December 1997 and 11 October 1999, concerning the security measure imposed.", "She has submitted two Supreme Court decisions from 1999 concerning the prosecutor’s requests for extension of the time-limit for pressing charges. As far as the applicant can be considered to have exhausted all domestic remedies she has, nevertheless, failed to show that she has lodged the complaint concerning the imposition of the security measure within the six months’ time-limit. This complaint must thus be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. As to the allegedly excessive period of time during which the security measure remained in force, the complaint rather falls to be examined under Article 1 of Protocol No. 1 to the Convention.", "The applicant’s complaints under that Article will be addressed in paragraphs 39-40 below. 35. The applicant also complained under Article 6 § 1 of the Convention that the proceedings were unfair in that she had to defend herself against contradictory allegations made by the prosecution on the one hand and the tax authorities on the other. 36. The Court considers that such contradictory allegations by the State authorities do not amount to a breach of the Article invoked, as the applicant was able to defend herself against both allegations separately.", "It should also be noted that, subsequently, three persons working for the tax authority were charged with breach of official duty in this connection. The documents do not disclose any unfairness in the criminal proceedings concerning the applicant. This complaint is thus manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 37. The applicant further complained under Article 7 of the Convention that the conduct leading to her conviction did not constitute a criminal offence under national law as S.K.", "had voluntarily transferred the money to her account. From that moment on the money had no longer formed a part of his, and subsequently his estate’s, possessions. She had, therefore, not been obliged to report the money in the estate inventory. She further complained that the unlawful conviction even constituted a breach of Article 6 § 2 of the Convention, as the presumption of innocence had not been respected by the courts. 38.", "The Court notes that under the Finnish Penal Code a person may be convicted of embezzlement if he or she, inter alia, appropriates another person’s assets which are in his or her possession. The conduct with which the applicant was charged clearly meets the description of the relevant provision of the Penal Code. The Court observes that the applicant did not claim the money as her own property. The question of whether the money belonged to a Russian businessman, as the applicant contended, was part of the assessment of evidence produced before the domestic courts. Having regard to its subsidiary role in that respect, the Court cannot make a re-assessment of that evidence.", "The applicant’s complaints under Articles 7 and 6 § 2 are thus manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 39. Lastly, the applicant complained under Article 1 of Protocol No. 1 to the Convention that by ordering her to pay compensation for the damage caused to S.K.’s estate, imposing the security measure on her and executing the tax decision before the final decision in the taxation proceedings had been taken on appeal, the State had violated her right to the peaceful enjoyment of her possessions. 40.", "The Court observes that compensation for damages was ordered in connection with the above criminal proceedings in which the applicant was found guilty of an offence. The security measure was imposed in order to secure the payment of the said compensation. The measure was provided by law, pursued a legitimate aim and at all times complied with the requirement of proportionality. These complaints are thus manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 41.", "As to the execution of the tax decision, which was subsequently quashed, the complaint has been lodged out of time as the final decision in the taxation proceedings was given on 21 November 2000. This complaint is therefore rejected in accordance with Article 35 §§ 1 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 42. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 43. The applicant claimed 225,956.87 euros (EUR) in respect of pecuniary damage. This sum includes firstly the damages which the applicant was ordered to pay to the estate, with interest. The applicant argued that, had the proceedings lasted a shorter time, the amount of interest would have been considerably lower. The applicant also pointed out that her assets had remained confiscated up until January 2006, when the executor of the estate gave his decision.", "Until that time she had been unable to pay the damages. Secondly, the pecuniary damage comprises legal costs of the complainants, for which the applicant was found liable. She further claimed EUR 8,000 in respect of non-pecuniary damage for suffering. 44. The Government contested those claims.", "They argued that the pecuniary damage claimed was not related to the complaint communicated to the Government. The Government further considered that the applicant’s claim for non-pecuniary damage was excessive as to quantum. Any compensation under that head should not exceed EUR 3,500. 45. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.", "The Court considers, however, that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, and having regard to its considerations set out in paragraph 30, the Court awards her EUR 1,500 under that head. B. Costs and expenses 46. The applicant also claimed EUR 13,521.26 for the costs and expenses incurred before the domestic authorities and EUR 2,867 (inclusive of value-added tax) for those incurred before the Court.", "47. The Government contested those claims. No costs and expenses had been incurred by the applicant at the domestic level in respect of the complaint communicated. Were the Court to have a different opinion, any compensation under that head should not exceed EUR 1,000. As to the costs and expenses incurred before the Strasbourg Court, any compensation should not exceed EUR 2,000.", "48. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 2,000 (inclusive of value-added tax) for the proceedings before the Court. In this connection the Court notes that only one of the applicant’s several complaints was communicated to the Government for observations. C. Default interest 49.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the length of the criminal proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention concerning the length of the criminal proceedings; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 1,500 (one thousand five hundred euros), 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; 4.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 22 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıNicolas BratzaDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF LUNTRE AND OTHERS v. MOLDOVA (Applications nos. 2916/02, 21960/02, 21951/02, 21941/02, 21933/02, 20491/02, 2676/02, 23594/02, 21956/02, 21953/02, 21943/02, 21947/02, and 21945/02) JUDGMENT STRASBOURG 15 June 2004 FINAL 15/09/2004 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 Luntre and others and others v. Moldova, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrM. Pellonpää,MrJ.", "Casadevall,MrS. Pavlovschi,MrJ. Borrego Borrego,MrsE. Fura-Sandström,MsL. Mijović, judges,and Mr M. O’Boyle, Section Registrar, Having deliberated in private on 25 May 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in thirteen applications (nos. 2916/02, 21960/02, 21951/02, 21941/02, 21933/02, 20491/02, 2676/02, 23594/02, 21956/02, 21953/02, 21943/02, 21947/02, and 21945/02) 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 fifteen Moldovan nationals, Mr Gheorghe Luntre, Ms Nina Voit, Mr Pavel Maloman, Mr Dumitru Tcacenco, Mr Mihail Zverev, Ms Lidia Abramov, Ms Eudochia Volcov, Ms Ianina Atnealov, Ms Nina Ceaica, Mr Dumitru Grişin, Ms Tatiana Grişin, Mr Pavel Epifanov, Ms Nadejda Cleauşev, Ms Ecaterina Bobîlev and Mr Ivan Prozor (“the applicants”), on 31 October 2001, 25 February 2002, 25 February 2002, 25 February 2002, 25 February 2002, 11 March 2002, 30 October 2001, 25 May 2002, 25 May 2002, 25 February 2002, 25 February 2002, 25 February 2002, 25 February 2002, 25 February 2002 and 25 February 2002 respectively. 2. The applicants were represented by Mr Vitalie Iordachi, acting on behalf of the “Lawyers for Human Rights”, a non-governmental organisation based in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr Vitalie Pârlog.", "3. The applicants complained under Article 6 § 1 of the Convention that, because of the non-enforcement of the judgments of 17 September 2000, 10 July 2000, 10 May 2000, 25 August 2000, 10 May 2000, 3 May 2001, 15 March 2001, 30 November 2000, 30 November 2000, 18 October 1999, 18 October 1999, 14 December 2000, 30 November 2000, 10 May 2000 and 10 May 2000, their right to have their civil rights determined by a court had been violated and that they had been unable to enjoy their possessions, and thus their right to protection of property under Article 1 of Protocol No. 1 to the Convention was violated. 4. The applications were allocated to the Fourth Section.", "On 4 February 2003 a Chamber of that Section decided to communicate the applications 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 25 Many 2004 the Chamber decided to join the applications in accordance with Rule 42 (1) of the Rules of the Court. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 6. The applicants, all of whom are Moldovan citizens, live in the Republic of Moldova. They were born in 1932, 1920, 1928, 1919, 1925, 1927, 1923, 1969, 1930, 1919, 1923, 1929, 1928, 1923 and 1922 respectively. 7. On 29 July 1994 and on 16 February 1995 the Government and the Parliament passed two decisions according to which the deposits of certain categories of persons at the Savings Bank have to be index-linked.", "According to the decisions, the Ministry of Finance was supposed to allocate the necessary funds to the Savings Bank. However it failed to do so and the Savings Bank could not carry out the decisions of the Parliament and of the Government. 8. In 1999-2001 the applicants lodged with the Râşcani District Court civil actions against the Ministry of Finance in which they sought compensation. 9.", "By a final judgment of 17 September 2000 the court awarded Mr Gheorghe Luntre compensation of MDL 2,936[1]. 10. By a final judgment of 10 July 2000 the court awarded Ms Nina Voit compensation of MDL 2,934[2]. 11. By a final judgment of 10 May 2000 the court awarded Mr Pavel Maloman compensation of MDL 733[3].", "12. By a final judgment of 25 August 2000 the court awarded Mr Dumitru Tcacenco compensation of MDL 734.50[4]. 13. By a final judgment of 10 May 2000 the court awarded Mr Mihail Zverev compensation of MDL 733[5]. 14.", "By a final judgment of 3 May 2001 the court awarded Ms Lidia Abramov compensation of MDL 2,934[6]. 15. By a final judgment of 15 March 2001 the court awarded Ms Eudochia Volcov compensation of MDL 3,667.50[7]. 16. By a final judgment of 30 November 2000 the court awarded Ms Ianina Atnealov compensation of MDL 1,468[8].", "17. By a final judgment of 30 November 2000 the court awarded Ms Nina Ceaica compensation of MDL 734[9]. 18. By a final judgment of 18 October 1999 the court awarded Mr Dumitru Grişin compensation of MDL 1,446.76[10]. 19.", "By a final judgment of 18 October 1999 the court awarded Ms Tatiana Grişin compensation of MDL 1,301.76[11]. 20. By a final judgment of 14 December 2000 the court awarded Mr Pavel Epifanov compensation of MDL 2,130.69[12]. 21. By a final judgment of 30 November 2000 the court awarded Ms Nadejda Cleauşev compensation of MDL 733.50[13].", "22. By a final judgment of 10 May 2000 the court awarded Ms Ecaterina Bobîlev compensation of MDL 733[14]. 23. By a final judgment of 10 May 2000 the court awarded Mr Ivan Prozor compensation of MDL 733[15]. 24.", "On unspecified dates the applicants lodged complaints about the non-enforcement of the judgments with the Ministry of Justice and the Enforcement Authority. In its replies, the Ministry of Justice and the Enforcement Authority informed them that the judgments could not be enforced, as no funds had been provided for the enforcement of judgments by the relevant legislation within the annual State budget. 25. On 22-30 April 2003, after the cases were communicated to the Government, the judgments were executed by the Ministry of Finance. II.", "RELEVANT DOMESTIC LAW 26. The relevant provisions of the Code of Civil Procedure, in force at the material time, stated: Article 336. The decisions of the courts and other authorities susceptible to enforcement The following are the acts which have to be enforced in accordance with the provisions of the present Code: 1) Civil law judgments, orders and decisions adopted by the courts... Article 338. The issuance of the enforcement warrant The enforcement warrant is issued by the court to the creditor, after the judgment has become final, except for cases of immediate enforcement, when the enforcement warrant is issued immediately after the delivery of the judgment.", "Article 343. The request to start the enforcement procedure The bailiff starts the enforcement procedure at the request of the persons enumerated in Article 5 of the present Code. In cases provided for in the second paragraph of this article, the bailiff starts the enforcement procedure following the judge’s order. Article 349. The supervision of enforcement of judgments The supervision of the correct and prompt enforcement of judgments is conducted by the Department of Judgment Enforcement of the Ministry of Justice.", "THE LAW 27. The applicants complained that their right to have their civil rights determined by a court had been violated by the authorities’ failure to enforce the judgments of 17 September 2000, 10 July 2000, 10 May 2000, 25 August 2000, 10 May 2000, 3 May 2001, 15 March 2001, 30 November 2000, 30 November 2000, 18 October 1999, 18 October 1999, 14 December 2000, 30 November 2000, 10 May 2000 and 10 May 2000. They relied on Article 6 § 1 of the Convention, which in so far as relevant, reads as follows: “1. In the determination of his civil rights and obligations ... everyone is entitled to a fair hearing ... by a tribunal ...” 28. The applicants further complained that because of the non-enforcement of the judgments in their favour they were unable to enjoy their possessions, and thus that their right to protection of property under Article 1 of Protocol No.", "1 to the Convention had been violated. Article 1 of Protocol No. 1 reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” I. ADMISSIBILITY OF THE COMPLAINTS 29.", "The Court considers that the applicants’ complaints under Articles 6 § 1 and under Article 1 of Protocol No. 1 to the Convention raise questions of law which are sufficiently serious that their determination should depend on an examination of the merits, and no other grounds for declaring them inadmissible have been established. The Court therefore declares these complaints admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 4 above), the Court will immediately consider the merits of these complaints. II.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 30. Under Article 6 § 1 of the Convention, the applicants complained about the failure of the authorities to execute the judgments of 17 September 2000, 10 July 2000, 10 May 2000, 25 August 2000, 10 May 2000, 3 May 2001, 15 March 2001, 30 November 2000, 30 November 2000, 18 October 1999, 18 October 1999, 14 December 2000, 30 November 2000, 10 May 2000 and 10 May 2000. 31. The Government did not deny that the failure to enforce the judgments constituted a breach of Article 6 § 1 of the Convention. 32.", "The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his or her 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, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see the Hornsby v. Greece judgment of 19 March 1997, Reports 1997-II, p. 510, § 40). 33.", "It is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment. 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 of the Convention (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 74, ECHR 1999-V). In the instant case, the applicants should not have been prevented from benefiting from the success of the litigation, which concerned the payment of compensation.", "34. The Court notes that the judgments favourable to the applicants remained unenforced for periods varying between forty-two and twenty-four months (until after the cases had been communicated to the Government by the Court, on 22-30 April 2003). 35. By failing for years to take the necessary measures to comply with the final judgments in the instant case, the Moldovan authorities deprived the provisions of Article 6 § 1 of the Convention of all useful effect. 36.", "There has accordingly been a violation of Article 6 § 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 37. The applicants further complained that because of the non-enforcement of the judgments in their favour they were unable to enjoy their possessions, and thus their right to protection of property under Article 1 of Protocol No.", "1 to the Convention was violated. 38. The Government did not deny that the failure to enforce the judgments constituted a breach of Article 1 of Protocol No. 1 to the Convention. 39.", "The Court reiterates that a “claim” can constitute a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention if it is sufficiently established to be enforceable (see the Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301-B, § 59). 40. The Court notes that the applicants have enforceable claims deriving from the judgments of 17 September 2000, 10 July 2000, 10 May 2000, 25 August 2000, 10 May 2000, 3 May 2001, 15 March 2001, 30 November 2000, 30 November 2000, 18 October 1999, 18 October 1999, 14 December 2000, 30 November 2000, 10 May 2000 and 10 May 2000.", "It follows that the impossibility for the applicants to obtain the execution of the judgments until 22-30 April 2003, constituted an interference with their right to peaceful enjoyment of their possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 to the Convention. 41. By failing to comply with the final judgments the national authorities prevented the applicants from having their compensation paid and from enjoying the possession of their money. The Government have not advanced any justification for this interference and the Court considers that lack of funds cannot justify such an omission (see, mutatis mutandis, Ambruosi v. Italy, no.", "31227/96, §§ 28-34, 19 October 2000). 42. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 43. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 44. The applicants claimed the following amounts for the pecuniary damage suffered as a result of the failure of the authorities to enforce the judgments: Mr Gheorghe Luntre – EUR 101, Ms Nina Voit – EUR 105, Mr Pavel Maloman – EUR 25, Mr Dumitru Tcacenco – EUR 25, Mr Mihail Zverev – EUR 25, Ms Lidia Abramov – EUR 63, Ms Eudochia Volcov – EUR 102, Ms Ianina Atnealov – EUR 35, Ms Nina Ceaica – EUR 23, Mr Dumitru Grişin – EUR 69, Ms Tatiana Grişin – EUR 64, Mr Pavel Epifanov – EUR 64, Ms Nadejda Cleauşev – EUR 23, Ms Ecaterina Bobîlev – EUR 25 and Mr Ivan Prozor – EUR 36. 45. The Government considered excessive the amounts claimed and left the appreciation of the pecuniary damage at the Court’s discretion.", "46. The Court considers that the applicants must have suffered pecuniary damage as a result of the non-execution of the judgments of 17 September 2000, 10 July 2000, 10 May 2000, 25 August 2000, 10 May 2000, 3 May 2001, 15 March 2001, 30 November 2000, 30 November 2000, 18 October 1999, 18 October 1999, 14 December 2000, 30 November 2000, 10 May 2000 and 10 May 2000 respectively. The Court awards Mr Gheorghe Luntre – EUR 101, Ms Nina Voit – EUR 105, Mr Pavel Maloman – EUR 25, Mr Dumitru Tcacenco – EUR 25, Mr Mihail Zverev – EUR 25, Ms Lidia Abramov – EUR 63, Ms Eudochia Volcov – EUR 102, Ms Ianina Atnealov – EUR 35, Ms Nina Ceaica – EUR 23, Mr Dumitru Grişin – EUR 69, Ms Tatiana Grişin – EUR 64, Mr Pavel Epifanov – EUR 64, Ms Nadejda Cleauşev – EUR 23, Ms Ecaterina Bobîlev – EUR 25 and Mr Ivan Prozor – EUR 36. B. Non-pecuniary damage 47. The applicants claimed the following amounts for the non-pecuniary damage suffered as a result of the failure of the authorities to enforce the judgments: Mr Gheorghe Luntre – EUR 35,000, Ms Nina Voit – EUR 30,000, Mr Pavel Maloman – EUR 30,000, Mr Dumitru Tcacenco – EUR 30,000, Mr Mihail Zverev – EUR 30,000, Ms Lidia Abramov – EUR 35,000, Ms Eudochia Volcov – EUR 30,000, Ms Ianina Atnealov – EUR 25,000, Ms Nina Ceaica – EUR 25,000, Mr Dumitru Grişin – EUR 25,000, Ms Tatiana Grişin – EUR 25,000, Mr Pavel Epifanov – EUR 30,000, Ms Nadejda Cleauşev – EUR 30,000, Ms Ecaterina Bobîlev – EUR 30,000 and Mr Ivan Prozor – EUR 30,000.", "48. The Government disagreed with the amounts claimed by the applicants, arguing that they were excessive in light of the case-law of the Court. They stated that in some cases the mere fact of finding a violation was considered to be just satisfaction. The Government further cited the case of Burdov v. Russia, no. 59498/00, ECHR 2002-III, where the applicant was awarded EUR 3,000 for non-pecuniary damage.", "49. The Court considers that the applicants must have been caused a certain amount of stress and frustration as a result of the non-enforcement of the judgments, the more so given their advanced age and the fact that their only income was the state pension. In making awards for the non-pecuniary damage suffered by each applicant, the Court takes into consideration such factors as the applicant’s age, personal income, the length of the enforcement proceedings and other relevant aspects. It awards Mr Gheorghe Luntre – EUR 1,000, Ms Nina Voit – EUR 1,000, Mr Pavel Maloman – EUR 1,000, Mr Dumitru Tcacenco – EUR 1,000, Mr Mihail Zverev – EUR 1,00, Ms Lidia Abramov – EUR 1,000, Ms Eudochia Volcov – EUR 500, Ms Ianina Atnealov – EUR 700, Ms Nina Ceaica – EUR 900, Mr Dumitru Grişin – EUR 1,000, Ms Tatiana Grişin – EUR 1,000, Mr Pavel Epifanov – EUR 900, Ms Nadejda Cleauşev – EUR 900, Ms Ecaterina Bobîlev – EUR 1,000 and Mr Ivan Prozor – EUR 1,000. C. Costs and expenses 50.", "Mr Gheorghe Luntre, Mr Pavel Maloman, Mr Mihail Zverev and Mr Ivan Prozor claimed EUR 1,000 each for representation fees. They relied on contracts concluded with their lawyer, according to which the fees would be paid only in case of success. 51. Ms Nina Voit, Mr Dumitru Tcacenco, Ms Lidia Abramov, Ms Eudochia Volcov, Mr Pavel Epifanov, Ms Nadejda Cleauşev and Ms Ecaterina Bobîlev claimed EUR 50 each, while Ms Ianina Atnealov, Ms Nina Ceaica, Mr Dumitru Grişin and Ms Tatiana Grişin claimed EUR 25 each for secretarial expenses incurred before the Court. 52.", "The Government did not agree with the amounts claimed, stating that they were excessive and that the applicants had failed to prove the alleged representation expenses. 53. The Court recalls that in order for costs and expenses to be included in an award under Article 41, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII). 54.", "According to Rule 60 § 2 of the Rules of Court, itemised particulars of all claims made, are to be submitted, failing which the Chamber may reject the claim in whole or in part. 55. The Court may take as a basis for its assessment such elements as the number of hours of work together with the hourly rate sought. However, since the applicants did not submit such information, the Court decides not to make any award for costs and expenses (see Amihalachioaie v. Moldova, no. 60115/00, § 48).", "D. Default interest 56. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the applications admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 4. Holds (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention: - to Mr Gheorghe Luntre – EUR 101 for pecuniary damage and EUR 1,000 for non-pecuniary damage, - to Ms Nina Voit – EUR 105 for pecuniary damage and EUR 1,000 for non-pecuniary damage, - to Mr Pavel Maloman – EUR 25 for pecuniary damage and EUR 1,000 for non-pecuniary damage, - to Mr Dumitru Tcacenco – EUR 25 for pecuniary damage and EUR 1,000 for non-pecuniary damage, - to Mr Mihail Zverev – EUR 25 for pecuniary damage and EUR 1,000 for non-pecuniary damage, - to Ms Lidia Abramov – EUR 63 for pecuniary damage and EUR 800 for non-pecuniary damage, - to Ms Eudochia Volcov – EUR 102 for pecuniary damage and EUR 800 for non-pecuniary damage, - to Ms Ianina Atnealov – EUR 35 for pecuniary damage and EUR 700 for non-pecuniary damage, - to Ms Nina Ceaica – EUR 23 for pecuniary damage and EUR 900 for non-pecuniary damage, - to Mr Dumitru Grişin – EUR 69 for pecuniary damage and EUR 1,000 for non-pecuniary damage, - to Ms Tatiana Grişin – EUR 64 for pecuniary damage and EUR 1,000 for non-pecuniary damage, - to Mr Pavel Epifanov – EUR 64 for pecuniary damage and EUR 900 for non-pecuniary damage, - to Ms Nadejda Cleauşev – EUR 23 for pecuniary damage and EUR 900 for non-pecuniary damage, - to Ms Ecaterina Bobîlev – EUR 25 for pecuniary damage and EUR 1,000 for non-pecuniary damage, - to Mr Ivan Prozor – EUR 36 for pecuniary damage and EUR 1,000 for non-pecuniary damage; (b) that the above amounts shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount[s] at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses unanimously the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 15 June 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Michael O’BoyleNicolas BratzaRegistrarPresident [1] EUR 275 [2] EUR 248 [3] EUR 65 [4] EUR 66 [5] EUR 65 [6] EUR 254 [7] EUR 313 [8] EUR 138 [9] EUR 69 [10] EUR 122 [11] EUR 109 [12] EUR 197 [13] EUR 69 [14] EUR 65 [15] EUR 65" ]

[ "THIRD SECTION CASE OF MANDIR v. SLOVENIA (Application no. 40125/02) JUDGMENT STRASBOURG 27 April 2006 FINAL 27/07/2006 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 Mandir 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 6 April 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 40125/02) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Jozo Mandir (“the applicant”), on 25 October 2002. 2. The applicant was represented by the Verstovšek lawyers. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General.", "3. The applicant alleged under Article 6 § 1 of the Convention that the length of the proceedings before the domestic courts to which he was a party was excessive. In substance, he also complained about the lack of an effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention). 4. On 15 September 2004 the Court decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect to the Government.", "Applying Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS 5. The applicant was born in 1949 and lives in Celje. 6. On 24 June 1995 the applicant was injured in a car accident.", "The perpetrator of the accident had taken out insurance with the insurance company ZM 7. On 6 April 1998 the applicant instituted civil proceedings against ZM in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 2,031,322 Slovenian tolars (approximately 8,470 euros) for the injuries sustained. Between 28 October 1998 and 17 May 2004 the applicant lodged several written submissions and/or adduced evidence. Between 19 March 1999 and 23 January 2003 he made three requests that a date be set for a hearing. Of the six hearings held between 15 March 2001 and 8 June 2004, none was adjourned at the request of the applicant.", "During the proceedings, the court appointed two medical experts and a traffic 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 4 October 2004. 8.", "On 18 October 2004 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). The case is still pending before the Celje Higher Court. THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 9. 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...” 10. 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 11. The Government pleaded non-exhaustion of domestic remedies. 12.", "The applicant contested that argument, claiming that the remedies available were not effective. 13. 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. 14. 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. 15.", "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 16. The period to be taken into consideration began on 6 April 1998, the day the applicant instituted proceedings with the Celje District Court, and has not yet ended. The relevant period has therefore lasted about eight years for two levels of jurisdiction. 17. 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). 18. Having examined all the material submitted to it, and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable-time” requirement. There has accordingly been a breach of Article 6 § 1. 2.", "Article 13 19. 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. 20.", "Accordingly, the Court considers that in the present case there has been a violation of Article 13 on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding his right to have his case heard within a reasonable time, as set forth in Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 21. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 22.", "The applicant claimed 6,000 euros (EUR) in respect of non-pecuniary damage. 23. The Government contested the claim. 24. The Court considers that the applicant must have sustained non-pecuniary damage.", "Ruling on an equitable basis, it awards him EUR 5,600 under that head. B. Costs and expenses 25. The applicant also claimed approximately EUR 1,120 for the costs and expenses incurred before the Court. 26.", "The Government argued that the claim was too high. 27. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. 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 28. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds that there has been a violation of Article 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 5,600 (five thousand six 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 point; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 27 April 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerJohn HediganRegistrarPresident" ]

[ "FOURTH SECTION CASE OF SARBAN v. MOLDOVA (Application no. 3456/05) JUDGMENT STRASBOURG 4 October 2005 FINAL 04/01/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sarban v. Moldova, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrM.", "Pellonpää,MrR. Maruste,MrS. Pavlovschi,MrJ. Borrego Borrego,MrJ. Šikuta, judges, and Mr M. O’Boyle, Section Registrar, Having deliberated in private on 13 September 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 3456/05) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Vladimir Sarban (“the applicant”), on 19 January 2005. 2. The applicant was represented by Mr A. Tănase, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Pârlog.", "3. The applicant complained about his detention on remand and about various alleged violations in that connection: violations of Article 3 (lack of access to medical assistance); Article 5 § 3 (insufficient reasons given by the courts for the detention on remand and decisions taken by a judge not competent to order his release); Article 5 § 4 (length of time taken to respond to a habeas corpus request and refusal to hear a witness); and Article 8 of the Convention (privacy of communications with his lawyer). 4. The application was allocated to the Fourth Section of the Court. On 1 February 2005 a Chamber of that Section decided to communicate the application to the Government.", "Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 5. In a letter of 19 January 2005 the applicant also asked for the application of Rule 39 of the Rules of Court, requesting his immediate release from detention on remand in order to undergo medical treatment. On 23 February 2005 he withdrew that request after he was given access to his doctor and wife. In his observations of 15 April 2005 the applicant informed the Court about the withdrawal of his complaint under Article 5 § 4 of the Convention regarding the refusal of the courts to examine a witness and the part of his complaint under Article 8 of the Convention regarding the alleged interference with his telephone conversations with his lawyer.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1957 and lives in Chişinău. He worked as the secretary of the Chişinău Municipal Council. A.", "The applicant’s detention on remand 7. On 8 October 2004 the Prosecutor General initiated criminal proceedings against the applicant for alleged abuse of power under Article 327 § 2 of the Criminal Code, in relation to a purchase of 40 ambulances by the Chişinău Mayoralty. 8. On 12 November 2004 the applicant was arrested by officer G.G. from the Centre for Fighting Economic Crime and Corruption (CFECC).", "On 15 November 2004 the Buiucani District Court issued a warrant for his remand in custody for 10 days. The reasons given by the court for issuing the warrant were that: “The criminal file was opened in accordance with the law in force. [The applicant] is suspected of having committed a serious offence for which the law provides imprisonment for more than two years; the evidence submitted to the court was obtained lawfully; the isolation of the suspect from society is necessary; he could abscond from law enforcement authorities or the court; he could obstruct the finding of truth in the criminal investigation or re-offend”. 9. On 18 November 2004 the Chişinău Court of Appeal partly quashed that decision and adopted a new one, ordering the applicant’s house arrest.", "The court found that: “The [lower] court did not commit any procedural mistakes, but taking into account that [the applicant] has a permanent place of residence, has no criminal record, is ill and requires treatment in conditions of non-isolation from society and that there is no specific information about the probability of his absconding from the law-enforcement authorities, the [court] considers that in the present case the normal flow of the criminal investigation will be ensured if the accused is subjected to the preventive measure of house arrest. The [court] also notes that the criminal file was opened on 8 October 2004 and that on 13 and 16 November 2004 the applicant was summonsed by the [law-enforcement authorities] as a witness, but on 12 November 2004 he was taken into custody, and no newly discovered circumstances requiring his detention were submitted. Besides, it is necessary to take into account the presumption of innocence, guaranteed by Article 8 of the Code of Criminal Procedure and that the offence with which the applicant is charged is also punishable with a fine.” 10. On 19 November 2004 the applicant was again arrested on suspicion of having committed the offence of exceeding the limits of his powers in exercising a public function, contrary to Article 328 § 1 of the Criminal Code, in relation to the same purchase of ambulances referred to in paragraph 7 above. The reason given for the arrest was that “eye witnesses can testify that this person has committed a crime”.", "11. On 22 November 2004 the President of the Buiucani District Court issued a warrant for his detention for 10 days. The reasons given by the court for issuing the warrant were that: “[the applicant] is suspected of having committed a serious offence, for which the law provides imprisonment for more than two years; the evidence submitted to the court was obtained lawfully; the isolation of the suspect from society is necessary; he could abscond from law enforcement authorities or the court; he could obstruct the finding of the truth in the criminal investigation or re-offend”. 12. The applicant submitted arguments against the necessity of applying the preventive measure of detention and focused on his bad state of health.", "He referred to concrete facts, such as that since his first arrest he had never obstructed in any way the investigation and had appeared before the authorities whenever summonsed. His conduct regarding the investigation had always been irreproachable. He had a family, had property in Moldova and none abroad, and several newspapers were ready to guarantee his freedom in accordance with the provisions of the Code of Criminal Procedure. The applicant was ready to give up his passport as an assurance that he would not leave the country. 13.", "On 25 November 2004 the Chişinău Court of Appeal upheld the decision of the Buiucani District Court of 22 November 2004. The court gave no specific reasons for its decision other than to confirm the lawfulness of the lower court’s decision. 14. On 26 November 2004 the President of the Buiucani District Court prolonged the applicant’s detention on remand for another 30 days until 29 December 2004. The court reasoned that detention was necessary because: “[the applicant] is suspected of having committed a serious offence; there is a risk that he may put pressure on witnesses or put himself out of the reach of law enforcement authorities; and there is a continuing need to isolate him from society”.", "15. On 2 December 2004 the Chişinău Court of Appeal dismissed the applicant’s appeal without relying on any new arguments. 16. On 14 December 2004 the President of the Buiucani District Court rejected a habeas corpus request made by the applicant, stating that: “according to the criminal file, [the applicant] is accused of having committed a less serious offence, for which the law provides the punishment of deprivation of liberty for more than two years.” 17. On 20 December 2004 the Chişinău Court of Appeal dismissed the applicant’s appeal against the judgment of 14 December 2004.", "18. Also on 20 December 2004 officer G.G., the investigator who had arrested the applicant and who had been in charge of the case since 10 September 2004, made a declaration during a press conference. He essentially stated that the case against the Mr Urecheanu and other accused in the “ambulances case” was fabricated for political reasons in order to remove political opponents. There was nothing in the file, according to G.G., which would warrant the initiation of the criminal proceedings or the arrest of the applicant. 19.", "On 21 December 2004 the investigation ended and the criminal file was referred to the Centru District Court. According to the domestic law, no prolongation of detention on remand was necessary after that and the applicant remained in custody pending a final judgment favourable to him or a court decision to end his detention. 20. On 13 January 2005, during the first hearing on the merits of the criminal case, the applicant submitted another habeas corpus request and expressed his readiness to present further guarantees against absconding. He based his request, inter alia, on his weak state of health and on the declarations made by the investigator G.G.", "on 20 December 2004. At the prosecutor’s request, the court postponed the hearing until 20 January 2005 in order to decide on joining the applicant’s case with that of other suspects. 21. On 20 January 2005 the court accepted a prosecutor’s request to join the applicant’s case with three other criminal cases of persons who worked in the Chişinău Mayoralty. In reply to the applicant’s habeas corpus request, the court held that it would be for the court examining the joined cases to decide whether the continuing detention was necessary.", "He complained about the court’s failure to properly respond to his request. 22. On 27 January 2005 the hearing was postponed. 23. On 2 February 2005 the court rejected, by a final judgment, the applicant’s habeas corpus request, finding that: “[the applicant was remanded] because he is suspected of having committed a serious offence; he may abscond from the law enforcement authorities; and he may obstruct the finding of truth in the criminal process.", "The grounds on which the detention on remand was ordered remain valid.” 24. On 16 February 2005 the Centru District Court rejected another habeas corpus request made by the applicant, finding that “the grounds for detaining the applicant on remand still hold”. B. Medical assistance provided to the applicant during detention 25. The applicant has a medical condition called “progressive cervical osteoarthritis[1] (mielopatie) with displacement of vertebrae C5-C6-C7, with pain disorder” and has to wear permanently a device immobilizing his neck to minimize risk of fatal injuries to his spinal cord.", "He also suffers from gout and from arterial hypertension of second degree with increased risk of cardio-vascular complications, all confirmed by medical certificates. 26. His complaint about the lack of sufficient medical assistance refers to the period of his detention in the CFECC remand centre between 12 November 2004 and 18 January 2005. 27. Between 12 and 29 November 2004 (between 19 and 29 November according to the Government) the applicant held a hunger strike.", "On 19 November 2004 (the day of his second arrest) he was consulted by Doctor A. E., who noted the applicant’s complaints about pain in his back and diagnosed him with serious arterial hypertension (hipertensiune arterială esenţială), giving him medication to decrease his blood pressure. 28. According to the applicant, neither his family doctor, doctor G., nor any other doctor had been allowed to examine him while in detention until after communication of his application to the Government. He submitted copies of two requests lodged by his family doctor on 22 and 29 November 2004 by which he asked permission to examine the applicant or to have him examined by any other qualified doctor. Neither of the requests was allowed or even acknowledged.", "29. According to the Government, the applicant did not personally make any request to see doctor G. at any time during his detention. 30. On 29 November 2004 the applicant fainted during a court hearing and was rushed to a detainee hospital, where he was treated until 20 December 2004. 31.", "According to the applicant, he was not examined by any neurologist while in the hospital. His personal medical file shows that he complained on numerous occasions of pain in the cervical region of his spine and numbness in his fingers and arms (on 2, 7, 13 and 15 December 2004). Only on 15 December 2004 was he visited by a neurologist who concluded that: “an examination by a neurosurgeon is recommended in order to determine the appropriate treatment”. No such further examination took place. 32.", "On 20 December 2004 he was released from hospital and taken back to the remand centre. According to his release form, he was “in a satisfactory condition with the recommendation of supervision by a general practitioner and a neurologist, checks of arterial blood pressure and administration of tablets....” 33. On 20 December 2004 a prosecutor allowed a request by the applicant’s wife to have the applicant examined by a neurologist at the remand centre. However, the doctor did not have access to the applicant due to the CFECC administration’s refusal to allow that. 34.", "According to the applicant there were no medical personnel in the remand centre. 35. According to the Government, there was a doctor, R.V., who was a general practitioner and who had provided regular medical assistance to the applicant throughout his detention. In case of an emergency, detainees could have been transported to a nearby hospital. 36.", "According to the applicant, due to the lack of medical assistance, he had had to use the opportunity to have his blood pressure measured through the bars of the cage in which he was held during court hearings. 37. The Government did not dispute that, but rather stated that the general practitioner at the remand centre had provided the applicant with medical assistance whenever he requested it. 38. According to the Medical Register of the remand centre, submitted by the Government, during the period with which the complaint is concerned the applicant was examined only on 19 November 2004.", "The next record regarding the applicant is on 19 January 2005. Doctor R.V.’s name appears for the first time, in all the documents submitted by the Government, on 11 February 2005. 39. The applicant’s wife made numerous unsuccessful attempts (on 16, 17, 20, 22, 26, 27 November 2004, as well as on 20 and 21 December 2004) to obtain permission to check on his state of health and to bring him various items. Both the applicant and his wife requested that an arterial blood monitor should be brought and, that instructions should be sought from doctor G. on how properly to use it.", "She was eventually allowed to give the items to the applicant. C. Medical reports drawn after 18 January 2005 40. On 19 January 2005 the Centru District Court allowed the applicant’s request to be examined by a doctor. On the same day he was examined by the Head of the Therapy Section of the Pruncul Hospital, who noted in the Medical Register (see paragraph 38 above) that the applicant did not complain about his health. 41.", "Doctor G., who examined the applicant on 26 January 2005, concluded that his condition had substantially worsened due to the combination of the three diseases (see paragraph 25 above). In the event of lack of medical treatment, the applicant ran serious risks for his life and health. Failure permanently and correctly to monitor and react to changes in his arterial pressure, level of uric acid and other signs could lead to serious effects including myocardium infarct and cerebral-vascular accidents and even sudden death. 42. Professor Z., the Head of the Neurology Chair of the “Nicolae Testimiteanu” hospital, was allowed to see the applicant in prison on 25 January 2005.", "The applicant complained of pain and numbness in his hands, of headaches and of the lack of constant supervision by a specialized doctor. In his report, professor Z. referred only to the applicant’s cervical osteoarthritis and did not recommend hospitalisation. He recommended treatment with symptomatic medication, limitation of physical movement and the permanent wearing of the neck-fixing device. While he found no major risk to the patient’s life due to osteoarthritis, he admitted that there was a constant risk of worsening of the condition of his nervous system. He considered that in case of aggravation of the applicant’s state of health, he would need neurosurgical treatment in a specialised clinic.", "43. Two other doctors, doctor S.G. and doctor M.G., who examined the applicant’s medical files in late January 2005, while referring to the applicant’s cervical osteoarthritis, submitted that this disease could ultimately lead to permanent loss of movement and to negative effects for the cardio-vascular system. Doctor S.G. recommended medication, special gymnastics and consultation by a neurosurgeon in order to determine the necessity of undergoing micro-neurosurgery. He also recommended the wearing of a neck immobilisation device. Doctor M.G.", "submitted that there was a serious risk for the applicant’s health linked to his osteoarthritis, including tetraparesis[2]. He recommended hospitalisation. 44. A State Medical Commission created after the communication of the case to the Government found that cervical osteoarthritis presented a risk to the applicant’s health and that there was a possibility of an eventual increase in the pain suffered. The patient needed “a regime of adequate medical supervision and treatment on an out-patient basis (at home, at work, in prison)”.", "In a letter of 9 February 2005 to the Government Agent the Ministry of Health declared that high arterial blood pressure and gout required “an adequate psycho-emotional regime and the administration of medication prescribed by a doctor”. D. Other issues relating to the applicant’s detention 45. According to the applicant, except for one occasion, he was always brought to the court in handcuffs and placed in a metal cage during the hearings. The Government did not dispute that. 46.", "According to the applicant the cell in which he was detained in the remand centre was overcrowded since it had 11 m2 for 4 persons and was too hot. 47. According to the Government the applicant had been detained with only one more person in the cell and the temperature and other conditions were within acceptable limits. In support of their submissions the Government sent the Court a copy of a report of 11 February 2005, drafted by a sanitary-epidemiological inspection and pictures and a video showing the applicant’s cell. E. Alleged interference with the applicant’s consultation with his lawyer 48.", "The room for meetings between lawyers and detainees in the remand centre had a double glass partition with holes which only partly coincided and which were covered with a thick net, to keep them separated. According to the applicant they had to shout in order to hear each other and could not exchange documents for signature. 49. The Government did not dispute the existence of a glass partition and sent the Court a video with its images. 50.", "On 15 February 2005 the applicant requested the Centru District Court to order the CFECC administration to provide a room for confidential meetings with his lawyer. On 16 February 2005 the court rejected the request on the ground that according to the CFECC administration, there were no recording devices installed in the meeting room and that the glass partition was necessary for the security of detainees and lawyers. II. RELEVANT DOMESTIC LAW 51. The relevant provisions of the Constitution read as follows: “Article 53 The right of a person whose rights are violated by a public authority (1) A person whose rights are violated by a public authority through an administrative act or through the failure to examine a request within the statutory period, is entitled to obtain the recognition of the right claimed, the annulment of the act and compensation for damage.", "(2) The State bears pecuniary liability, according to the law, for harm caused through errors committed in criminal proceedings by the investigating authorities and courts.” 52. The relevant provisions of the Code of Criminal Procedure (‘the CPP’) read as follows: “Article 29 Courts which deliver criminal justice (3) Within the courts, at the criminal prosecution phase, investigating judges act as judicial organs with their own powers in the course of the criminal process. Article 41 Competence of the investigating judge The investigating judge ensures judicial control during the criminal prosecution by: 1) ordering, replacing, terminating or revoking detention on remand or house arrest, 2) ordering the provisional release of the person detained or arrested, ... Article 176 “(1) Preventive measures may be applied by the prosecuting authority or by the court only in those cases where there are serious grounds for believing that an accused ... will abscond, obstruct the establishment of the truth during the criminal proceedings or re-offend, or they can be applied by the court in order to ensure the enforcement of a sentence. (2) Detention on remand and alternative preventive measures may be imposed only in cases concerning offences in respect of which the law provides for a custodial sentence exceeding two years.", "In cases concerning offences in respect of which the law provides for a custodial sentence of less than two years, they may be applied if ... the accused has already committed the acts mentioned in § (1). (3) In deciding on the necessity of applying preventive measures, the prosecuting authority and the court will take into consideration the following additional criteria: 1) the character and degree of harm caused by the offence, 2) the character of the ... accused, 3) his/her age and state of health, 4) his/her occupation, 5) his/her family status and existence of any dependants, 6) his/her economic status, 7) the existence of a permanent place of abode, 8) other essential circumstances. ... Article 190 A person detained on remand under the provisions of Article 185 may request, at any time during the criminal investigation, his provisional release under judicial control or on bail. Article 195 § 1 A preventive measure applied may be replaced by a harsher one, if the need for it is proved by evidence, or by a lighter one, if by applying it the proper behaviour of ... the accused is ensured, with the aim of ensuring the normal course of the criminal investigation and of enforcing the sentence imposed.", "Article 308 Examination of requests for detention on remand or house arrest ... (2) A request for the application of a measure of detention on remand or house arrest is to be examined without delay by the investigating judge, in camera, with the participation of the representative of the prosecuting authority, of the defender and of the accused. ... (4) After examining the request, the investigating judge shall make a reasoned decision, ordering detention on remand or house arrest or rejecting the request. On the basis of the decision, the investigating judge shall issue a warrant of arrest which is given to the representative of the prosecuting authority and to the accused and which is executed immediately. ... (6) The investigating judge has the right to decide whether a less restrictive preventive measure should be applied. ...", "Article 310 Admissibility of a request for provisional release and the court’s decision (1) The investigating judge shall verify if the request for provisional release corresponds to the provisions of Articles 191 and 192. If the request does not correspond to those requirements, the investigating judge shall adopt a decision to reject the request, without summonsing the parties. (2) If the request corresponds to the requirements provided for in § 1 and was submitted by the accused, the investigating judge shall decide on the admissibility of the request and set a date for deciding on the request, summonsing the parties. ... (5) On the established date, the investigating judge shall decide on the request for provisional release with the participation of the prosecutor, the accused, his defender or guardian, as well as the person who made the request. The decision shall be taken after hearing all those present.", "(6) If the request is well based and conforms to the requirements of the law, the investigating judge shall adopt a reasoned decision provisionally to release the accused, setting conditions if necessary.” 53. The relevant provisions of the Civil Code read as follows: “Article 1405. Liability of the State for damage caused by the actions of the criminal investigation organs, prosecution and courts (1) Damage caused to a natural person through illegal conviction, illegal prosecution, illegal application of preventive measures in the form of detention on remand or of a written undertaking not to leave the city, and illegal subjection to the administrative sanction of arrest or of non-remunerated community work, is to be fully compensated by the State, whether or not officers in the criminal investigation organs, the prosecution or judges were at fault. ...” 54. The relevant provisions of the Law No.", "1545 on compensation for damage caused by the illegal acts of the criminal investigation organs, prosecution and courts read as follows: “Article 1 (1) In accordance with the present law, individuals and legal entities are entitled to compensation for the moral and pecuniary damage caused as a result of: a) illegal detention, illegal arrest, illegal indictment, illegal conviction; b) illegal search carried out during the investigation phase or during trial, confiscation, levy of a distraint upon property, illegal dismissal from employment, as well as other procedural acts that limit the person’s rights; c) illegal administrative arrest or order to work for the community, illegal confiscation of the property, illegal fine; d) carrying out of unlawful investigative measures; e) illegal seizure of accounting documents, other documents, money or stamps as well as blocking of banking accounts. (2) The damage caused shall be fully compensated, irrespective of the degree of fault of the criminal investigation organs, prosecution and courts. Article 4 A person shall be entitled to compensation in accordance with the present law when one of the following conditions is met: a) pronouncement of an acquittal judgment; b) dropping of charges or discontinuation of investigation on the ground of rehabilitation; c) adoption of a decision by which an administrative arrest is cancelled on the grounds of rehabilitation; d) adoption by the European Court of Human Rights or by the Committee of Ministers of the Council of Europe of a decision in respect of damages or in respect of a friendly settlement agreement between the victim and the representative of the Government of the Republic of Moldova before the European Court of Human Rights. The friendly settlement agreement shall be approved by the Government of the Republic of Moldova; ...” 55. The relevant provisions of the Law on Remand (No.", "1226-XIII) read as follows: “Article 32 Measures applied to detainees refusing to take food ... (4) A detainee who refuses to take food is detained, when possible, apart from other detainees and must be monitored by a doctor. Ambulatory and emergency medical assistance to such a person is to be given in the cell where (s)he is detained...”. 56. The relevant provisions of the Law on Judicial Organisation (No. 514-XIII) read as follows: “Article 27.", "President of the Court (1) The President of the Court: ... h) in case of a reasoned absence of the investigating judge, may appoint an experienced judge to exercise the functions of the investigating judge.” THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS A. Non-exhaustion of domestic remedies 57. The Government submitted that the applicant did not exhaust all the domestic remedies available to him. In particular he could have, but did not, make use of the provisions of Article 53 of the Constitution, Article 1405 of the Civil Code and of Law 1545 (see paragraphs 51, 53 and 54 above) and gave the example of the case of Duca (no. 1579/02), who had received compensation at the domestic level on the basis of Law 1545.", "58. The applicant recalled that he had applied for judicial review of the various alleged violations on a number of occasions, and that each time his claims had been rejected. 59. As regards Law No. 1545 invoked by the Government, the Court notes that Mrs Duca was indeed awarded compensation on the basis of that law.", "The Court also notes that according to its Article 4, the law is applicable only to persons who have been acquitted or in respect of whom the criminal investigation has been discontinued (see paragraph 54 above), which is not the case of the applicant. Consequently, the Court is not satisfied that the remedy under Law No. 1545 would have been effective in connection with the applicant’s complaints (see, Ostrovar v. Moldova, 35207/03, (dec.), 22 March 2005). 60. The Court notes that Articles 53 of the Constitution and 1405 of the Civil Code enunciate the principle according to which any victim of errors of justice and illegal acts of investigators, prosecutors or courts, can claim compensation.", "61. It is noted that the applicant addressed the domestic courts on a number of occasions, complaining about each of the violations alleged before this Court and claiming the breach of his rights by the investigating authorities (see paragraphs 12, 16, 20, 21 and 50 above). However, the domestic courts rejected all the complaints while finding that there was no appearance of any violation. In such circumstances the Court is not convinced that the remedies suggested by the Government would offer any prospect of success. Consequently, the Court is not satisfied that the remedies under Article 53 of the Constitution and Article 1405 of the Civil Code were effective in the applicant’s case.", "62. In view of the above, the Court concludes that the application cannot be declared inadmissible for non-exhaustion of domestic remedies. Accordingly the Government’s objection must be dismissed. B. Alleged abuse of the right of petition by the applicant 63.", "In his observations on the merits, the applicant argued that his criminal case had a political background and that some of the arguments used by the Government in defence of their position resembled those used by the Stalinist regime. 64. The Government considered the applicant’s statements abusive and requested that the application be struck out of the list of cases. 65. The Court recalls that an application would not generally be rejected as abusive under Article 35 § 3 of the Convention on the basis that it was “offensive” or “defamatory” unless it was knowingly based on untrue facts.", "(see Popov v. Moldova, no. 74153/01, § 49, 18 January 2005). 66. Having regard to the statements made by the applicant in the present case and to the language used by him, the Court does not consider that they amount to an abuse of the right of petition. Accordingly this objection is also dismissed.", "C. Conclusion on admissibility 67. The Court considers that the applicant’s complaints under Article 3, Article 5 §§ 3 and 4 and Article 8 of the Convention raise questions of law which are sufficiently serious that their determination should depend on an examination of the merits, and no other grounds for declaring them inadmissible have been established. The Court therefore declares these complaints admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 4 above), the Court will immediately consider the merits of these complaints. II.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 68. The applicant complained that the lack of medical assistance in the remand centre of the CFECC between 12 November 2004 and 19 January 2005, amounted to inhuman and degrading treatment contrary to Article 3 of the Convention, which provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Arguments of the parties 1. The applicant 69. The applicant submitted that his state of health had been serious enough to be incompatible with prolonged detention in the remand centre, which did not have any medical personnel.", "While the authorities were fully aware of his medical condition, they did not allow his examination by his family doctor or by any other qualified doctor until after the introduction of his application with the Court. He complained in particular that while in a critical state with his neck immobilised, he was not examined by a neurologist for more than two months, between 12 November 2004 and 25 January 2005. He stressed that the lack of medical care was also contrary to Article 32 § 4 of the Law on Remand, which required that persons on hunger strike be monitored by medical personnel. 70. He argued that the Government had failed to provide evidence that there was a doctor employed at the remand centre before 11 February 2005 (such as payroll lists or lists of personnel employed at the remand centre).", "71. According to him, his cell was overcrowded and he was publicly humiliated by being handcuffed and placed in a cage during court hearings. He submitted newspaper articles in support of his submission about the publicity of his trial. 2. The Government 72.", "The Government submitted that the treatment to which the applicant had been subjected did not reach the minimum threshold under Article 3 of the Convention. Any suffering he may have experienced did not exceed what was inherent in detention. The conditions in the remand centre were appropriate, as was clear from documents submitted to the Court (see paragraph 47 above). In case of an emergency, he could be transported to a nearby hospital. 73.", "They stressed that during his detention the applicant had been treated in hospital following his hunger strike (29 November to 20 December 2004) and had been visited by doctors on 19 and 25 January 2005 (by a neurosurgeon on the latter date and thereafter), on 4 and 9 February 2005 and on a regular basis afterwards. Having just been released from hospital in a satisfactory state of health on 20 December 2004, it had not been unreasonable to prevent his examination by a doctor the following day. 74. A State Medical Commission had determined that the applicant could be treated in prison. Doctor G.’s access to the applicant needed to be restricted since they were friends and the doctor could have helped the applicant to harm his health with the aim of later claiming a violation of Article 3.", "B. The Court’s assessment 1. General principles 75. The Court recalls 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 is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Kudła v. Poland [GC], no.", "30210/96, § 91, ECHR 2000-XI, and Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III). Although the purpose of such treatment is a factor to be taken into account, in particular whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3 (see Peers, cited above, § 74). 76. Moreover, it cannot be ruled out that the detention of a person who is ill may raise issues under Article 3 of the Convention (see Mouisel v. France no.", "67263/01, § 37, ECHR 2002‑IX). 77. Although Article 3 of the Convention cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see Hurtado v. Switzerland, judgment of 28 January 1994, Series A no. 280-A, opinion of the Commission, pp. 15-16, § 79).", "The Court has also emphasised the right of all prisoners to conditions of detention which are compatible with human dignity, so as to ensure that the manner and method of execution of the measures imposed do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention; in addition, besides the health of prisoners, their well-being also has to be adequately secured, given the practical demands of imprisonment (see Kudła, cited above, § 94). 2. Application of these principles to the present case 78. In view of the parties’ submissions concerning the applicant’s material conditions of detention (see paragraphs 46 and 47 above), the Court is not convinced that they exceeded the level of severity required for an issue to arise under Article 3 of the Convention. It remains to be determined whether the applicant needed regular medical assistance, whether he had been deprived of it as he claims and, if so, whether this amounted to inhuman or degrading treatment contrary to Article 3 of the Convention (cf.", "Farbtuhs v. Latvia, no. 4672/02, § 53, 2 December 2004). 79. The evidence from various medical sources submitted by both parties confirms that the applicant had three serious medical conditions which required regular medical care (see paragraphs 27 and 41-44 above). 80.", "The Court notes that, according to the Medical Register submitted by the Government, during the period of his detention in the remand centre with which the complaint is concerned, that is between 12 November and 29 November 2004 and between 20 December 2004 and 19 January 2005, the applicant was examined only once by a doctor at the remand centre, on the day of his second arrest - 19 November 2004 (see paragraph 38 above). 81. The Government’s argument that doctor R.V. provided daily medical assistance to the applicant while in detention cannot be accepted because the Medical Register does not contain any indication to that effect. Moreover, doctor R.V.’s name appeared for the first time in the documents submitted by the Government only on 11 February 2005, which is consistent with the applicant’s submission that he was employed only after the communication of the case to the Government.", "82. The Court further notes that not only was the applicant refused appropriate medical assistance by the remand centre authorities, but he was also denied the possibility to receive it from other sources, such as his family doctor or other qualified doctors (see paragraphs 28 and 33 above). The Government argued that the restriction on visits by doctor G. was justified by security reasons. The Court notes that this reason was invoked for the first time during the proceedings before it, and must therefore be treated with caution especially in the absence of any form of substantiation (see Nikolov v. Bulgaria, no. 38884/97, § 74 et seq., 30 January 2003).", "However, no explanation was given in respect of the refusal to allow visits from doctors other than doctor G. (see paragraphs 28 and 29 above). 83. Accordingly, the Court considers that the applicant was not provided with sufficient medical assistance and the Government have not provided a plausible explanation for the lack of basic medical assistance in the remand centre and for the refusal to allow external medical assistance. It concludes that the applicant did not receive sufficient medical assistance while in the remand centre. 84.", "It is noted that the applicant spent three weeks in a detainee hospital between 29 November and 20 December 2004. During his stay in hospital he complained on numerous occasions of pain in the cervical region of his spine and numbness in his fingers and arms (see paragraph 31 above). However, he was seen by a neurologist only on one occasion (on 15 December 2004), and the neurologist’s recommendation of a consultation by a neurosurgeon was not followed up. 85. It therefore follows that the applicant was not provided with sufficient medical assistance in hospital also.", "86. No claim was made that during the relevant period the applicant had any medical emergency or was otherwise exposed to severe or prolonged pain due to lack of adequate medical assistance. Accordingly, the Court finds that the suffering he may have endured did not amount to inhuman treatment. It will however determine whether it amounted to degrading treatment within the meaning of Article 3 of the Convention. 87.", "The applicant clearly suffered from the effects of his medical condition, even while in hospital (see paragraph 31 above). From the beginning he was well informed about his medical condition and the risks associated with it, as well as about the need to maintain a level of psychological stability, already affected by the accusation of a serious crime. He must have known that he risked at any moment a medical emergency with very serious results and that no immediate medical assistance was available. This must have given rise to considerable anxiety on his part. The fact that he could be transported to a hospital does not affect this finding, since in order for a call for an ambulance to be made the CFECC administration had first to give permission, a difficult decision to take in the absence of professional medical advice.", "88. The Court notes several additional factors. He was brought in handcuffs to court and held in a cage during the hearings, even though he was under guard and was wearing a surgical collar around his neck. His doctor had to measure his blood pressure through the bars of the cage in front of the public (see paragraphs 36, 37 and 45 above). 89.", "It further notes the absence of any criminal record or other evidence giving serious grounds to fear that he might resort to violence during the court hearings (see paragraph 9 above). It would appear to the Court that the above safety measures were not justified by the circumstances of the case, and they contributed to the humiliation of the applicant. Due account is also taken of the fact that (see paragraph 71 above) the case was of a high-profile nature and the above mentioned acts were – predictably – in full view of the public and the media (Mouisel v. France, no. 67263/01, § 47, ECHR 2002‑IX). 90.", "In the Court’s view, the failure to provide basic medical assistance to the applicant when he clearly needed and had requested it, as well as the refusal to allow independent specialised medical assistance, together with other forms of humiliation as noted in paragraph 88 above, amounted to degrading treatment within the meaning of Article 3 of the Convention (see Kudła v. Poland, cited above, § 94; Farbtuhs v. Latvia, cited above, § 51; Nevmerzhitsky v. Ukraine, no. 54825/00, § 106, 5 April 2005). 91. There has accordingly been a violation of Article 3 of the Convention in this respect. III.", "ALLEGED VIOLATIONS OF ARTICLE 5 § 3 OF THE CONVENTION 92. The applicant alleged several different breaches of Article 5 § 3 of the Convention, the relevant part of which provides: “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.” A. Insufficient reasons for decisions 1. Arguments of the parties 93. The applicant complained that the decisions ordering his detention on remand on 22 November 2004 and prolonging it on 26 November 2004, as well as the decisions of 14 and 20 December 2004 on his habeas corpus requests, were not based on relevant and sufficient reasons.", "The courts supported their decisions essentially by citing the provisions of the law. In his submissions both to the domestic courts and to this Court the applicant put forward arguments against each of the grounds of detention on remand. He emphasized that the courts gave no detailed reasons as to why they considered any of the grounds cited to be well-founded in his case. 94. The Government argued that the domestic courts gave sufficiently detailed reasons for their decisions.", "In particular, the Government claimed that the courts based their decisions on the evidence in the criminal file, for example witness statements, decisions of the Chişinău Municipal Council, a contract, the results of a company audit and other evidence. 2. The Court’s assessment 95. The Court recalls 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 (Yağcı and Sargın v. Turkey, judgment of 8 June 1995, Series A no. 319‑A, § 52).", "96. 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” (Letellier v. France, judgment of 26 June 1991, Series A no. 207, § 35). 97. Article 5 § 3 of the Convention cannot be seen as authorising pre‑trial detention unconditionally provided that it lasts no longer than a certain period.", "Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (Belchev v. Bulgaria, no. 39270/98, § 82, 8 April 2004). 98. 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 (Suominen v. Finland, no. 37801/97, § 37, 1 July 2003). 99. While Article 5 of the Convention “does not impose an obligation on a judge examining an appeal against detention to address every argument contained in the appellant’s submissions, its guarantees would be deprived of their substance if the judge, relying on domestic law and practice, could treat as irrelevant, or disregard, concrete facts invoked by the detainee and capable of putting in doubt the existence of the conditions essential for the “lawfulness”, in the sense of the Convention, of the deprivation of liberty.” (Nikolova v. Bulgaria [GC], no. 31195/96, § 61, ECHR 1999‑II).", "In this context, “[a]rguments for and against release must not be ‘general and abstract’” (Smirnova v. Russia, nos. 46133/99 and 48183/99, § 63, ECHR 2003‑IX (extracts)). 100. The Court notes that the applicant advanced before the national courts substantial arguments questioning each of the grounds for his detention. He referred to the fact, for example, that since the first arrest warrant was issued he had never obstructed in any way the investigation and had appeared before the relevant authorities whenever summonsed.", "His conduct regarding the investigation had always been irreproachable. He had a family, had property in Moldova and none abroad, and several newspapers were prepared to offer guarantees for his release in accordance with the provisions of the Code of Criminal Procedure. The applicant was also ready to give up his passport as an assurance that he would not leave the country (see paragraph 12 above). 101. The Court further notes that the domestic courts devoted no consideration to any of these arguments in their relevant decisions, apparently treating them as irrelevant to the question of the lawfulness of the applicant’s detention on remand, even though they were obliged to consider such factors under Article 176 § 3 of the Code of Criminal Procedure (see paragraph 52 above).", "This is striking, given the fact that on 18 November 2004 the Court of Appeal had found that a number of those factors militated against the applicant’s detention. The other courts either did not make any record of the arguments submitted by the applicant or made a short note of them and did not deal with them. They limited themselves to repeating in their decisions in an abstract and stereotyped way the formal grounds for detention provided by law. These grounds were cited without any attempt to show how they applied to the applicant’s case. 102.", "In their observations of March 2005 the Government made an attempt to justify the need for the applicant’s detention by invoking new reasons which were not relied upon by the domestic courts (see paragraph 94 above). The Court reiterates that it is not its task to take the place of the national authorities who ruled on the applicant’s detention. It falls to them to examine all the facts arguing for or against detention and set them out in their decisions. Accordingly, the Government’s new reasons, which were raised for the first time in the proceedings before the Court, are irrelevant (Nikolov v. Bulgaria, no. 38884/97, § 74 et seq., 30 January 2003).", "103. In the light of the above, the Court considers that the reasons relied upon by the Buiucani District Court and by the Chişinău Court of Appeal, in their decisions concerning the applicant’s detention on remand and its prolongation, were not “relevant and sufficient”. 104. There has accordingly been a violation of Article 5 § 3 of the Convention in this respect. B.", "Alleged lack of competence of the relevant judges to order the applicant’s release 1. Arguments of the parties 105. The applicant further complained under Article 5 § 3 of the Convention that the judges who ordered (on 15 and 22 November 2004) and then prolonged (on 26 November 2004 and 14 December 2004) his detention on remand and rejected his habeas corpus requests (on 14 December 2004) were not “investigating judges” (judecător de instrucţie) as required by the law and were not competent to order his release. 106. The applicant pointed to the fact that the Government did not submit any evidence of the fact that the investigating judge was absent on the relevant dates and that the President of the Buiucani District Court had not taken any formal decision to replace the investigating judge.", "107. The Government noted that all the relevant decisions had been taken by judges vested with full competence and corresponding to the requirements of independence and impartiality. In taking their decisions, those judges personally heard the applicant. Finally, those judges had the power to order the applicant’s release pending trial. In this latter respect, the Government submitted that according to Article 27 § 1 h) of the Law on Judicial Organisation the President of the Court could, as an exception in the case of the reasoned absence of the investigating judge, appoint another experienced judge to perform the same functions (see paragraph 56 above).", "Because Mr T., the investigating judge of the Buiucani District Court, was absent on 22 and 25 November 2004, the President acted in accordance with the law and examined the case himself. The Government submitted evidence that on 3 December 2004 the Buiucani District Court’s investigating judge was transferred to another court and therefore the President had to examine the case himself. 2. The Court’s assessment 108. The Court recalls that the role of the officer referred to in Article 5 § 3 is to review the circumstances militating for and against detention and to decide, by reference to legal criteria, whether there are reasons to justify detention and to order release if there are no such reasons.", "Before an ‘officer’ can be said to exercise “judicial power” within the meaning of this provision, he or she must satisfy certain conditions providing a guarantee to the person detained against any arbitrary or unjustified deprivation of liberty (see the Schiesser v. Switzerland judgment of 4 December 1979, Series A no. 34, pp. 13-14, § 31). 109. Thus, the “officer” must be independent of the executive and of the parties.", "The “officer” must hear the individual brought before him in person and review whether or not the detention is justified. If it is not justified, the “officer” must have the power to make a binding order for the detainee’s release (see the above-mentioned Schiesser judgment, pp. 13-14, § 31, and the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 75-76, § 199)” (Niedbała v. Poland, no.", "27915/95, §§ 49-50, 4 July 2000). 110. The Court first observes that it was presented with no evidence to support the view that any of the judges who took the relevant decisions was not independent or was personally biased. The judges heard the applicant in person and took their decisions after hearing the arguments of both parties. 111.", "While the domestic law requires that decisions on detention be taken by an investigating judge, it also allows for the replacement of that judge by another judge in the case of an absence. Admittedly, the procedures were not as transparent as they could have been (e.g., copies of the decisions of the President of the Buiucani District Court authorising the replacement and proof of the absence of the investigating judge could have been submitted). However, in such matters of internal court administration, domestic authorities are given a certain margin of appreciation and the role of the Court is limited to verifying whether the resulting arrangements offer sufficient guarantees against arbitrary detention. 112. The Court therefore finds that in the present case the judges who decided to order the applicant’s detention on remand can be considered to be judges competent to order the applicant’s release pending trial.", "113. There has, therefore, been no violation of Article 5 § 3 in this respect. C. Alleged refusal to hear a witness 114. In his initial application the applicant submitted a complaint under Article 5 of the Convention about the alleged refusal of the domestic courts to hear a witness in the remand proceedings. However, in his observations of 15 April 2005 he expressed his wish to withdraw this complaint.", "Accordingly the Court will not examine it. IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 115. The applicant also asserted that because of the length of time taken to examine his habeas corpus request, the respondent State had breached Article 5 § 4 of the Convention, which reads: “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. Arguments of the parties 116.", "The applicant complained that his second habeas corpus request lodged on 13 January 2005 was not examined by the Centru District Court at its hearings on 13, 20 and 27 January 2005 because the court each time postponed the hearing without examining his request. This extended the length of review of the lawfulness of his continued detention beyond what could be considered prompt review under Article 5 § 4 of the Convention. 117. The Government argued that it had been impossible for the court to examine the habeas corpus request earlier than it did. The judge had first to decide whether to join the applicant’s case with other cases and needed to study all the case files.", "Another judge in charge of the joined cases would then examine the request. On 24 January 2005 that judge was selected. The applicant’s challenge to the judge was rejected on 27 January 2005 but the court could not examine the habeas corpus request due to personal circumstances (the judge’s mother had died) and the request was examined at the earliest possible date, 2 February 2005. The length of review was thus partly determined by the exceptional circumstances of the case and partly by the applicant’s own conduct. The Government also argued that the applicant’s detention on remand was incorporated in the previous judicial decision and there was no need for an additional examination of the request (referring to the case of De Wilde, Ooms and Versyp v. Belgium, judgment of 18 June 1971, Series A no.", "12). B. The Court’s assessment 118. The Court reiterates that Article 5 § 4, in guaranteeing to detained persons a right to institute proceedings to challenge the lawfulness of their deprivation of liberty, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and ordering its termination if it proves unlawful (see Musiał v. Poland [GC], no. 24557/94, § 43, ECHR 1999-II).", "The question whether a person’s right under Article 5 § 4 has been respected has to be determined in the light of the circumstances of each case (see, mutatis mutandis, the R.M.D. v. Switzerland judgment of 26 September 1997, Reports 1997-VI, p. 2013, § 42). 119. In the present case the habeas corpus request was made on 13 January 2005 and it was rejected on 2 February 2005. The court held three hearings in the meantime on 13, 20 and 27 January 2005.", "120. The Court considers that the period of 21 days which elapsed before the courts examined the applicant’s habeas corpus request of 13 January 2005 did not correspond to the requirement of a speedy judicial decision within the meaning of Article 5 § 4 of the Convention (Kadem v. Malta, no. 55263/00, § 45, 9 January 2003 and Rehbock v. Slovenia, no. 29462/95, § 82 et seq., ECHR 2000‑XII). 121.", "Note is taken of the fact that the courts had to decide on administrative issues such as the joining of related cases and forming a new court composition to deal with the joined cases, as well as to examine the challenge to a judge. However, such considerations should not have taken priority over reviewing the lawfulness of the applicant’s detention, in view of what was at stake for the applicant. 122. The Court attaches particular importance to the fact that the applicant had based his habeas corpus request on such circumstances as his poor state of health and absence of medical care in the remand centre, circumstances which the Court found to be true (see paragraphs 78-91 above). He also referred to a new and relevant fact, namely the statement of his former investigator G.G.", "(see paragraph 18 above). These two elements added urgency to the request which should have been taken into account by the domestic court. This was also the first opportunity for the trial court to examine the applicant’s habeas corpus request after it received the entirety of the prosecution’s case and was in the position to form a more informed opinion than earlier on both the lawfulness of the detention and on any alleged danger posed by releasing the applicant pending trial. However, the court waited for three weeks before making use of that opportunity. 123.", "As to the Government’s argument that the applicant’s detention on remand was incorporated in the previous judicial decision, the Court notes that the applicant’s detention has been prolonged for the last time until 29 December 2004 and had not been renewed (see paragraphs 14 and 19 above). It follows that the challenge to the lawfulness of the detention made on 13 January 2005 was not incorporated in any judicial decision. Insofar as the reasons adduced by the Government concerning the personal circumstances which prevented the court from ruling on the applicant’s habeas corpus request on 27 January 2005, the Court notes that this reason was first invoked in the proceedings before it and cannot justify the failure to comply with the requirements of Article 5 § 4 of the Convention (see paragraphs 102 and 117 above). 124. There has accordingly been a violation of Article 5 § 4 of the Convention.", "V. ALLEGED VIOLATION OF ARTICLE 8 § 1 OF THE CONVENTION 125. The applicant also claimed that conversations with his lawyer were being overheard or recorded and that the authorities had failed to provide proper conditions for private discussions with his lawyer in breach of Article 8 § 1 of the Convention, which reads: “Everyone has the right to respect for his private and family life, his home and his correspondence.” A. Arguments of the parties 126. The applicant complained, under Article 8 of the Convention, about the interference by the prison authorities with his right to communicate in private with his lawyer. He was only able to talk to him through a glass partition with holes which prevented normal discussion.", "In his opinion, there were no guarantees that their conversations were not overheard or recorded by the remand centre authorities, which he suspected they were. Moreover, he and his lawyer could not work together on any documents or exchange them. He argued that his application to this Court was signed by his lawyer and he later signed the powers of attorney for the lawyer during a court hearing. The applicant submitted a decision of the Moldovan Bar Association to hold a strike on 1-3 December 2004, refusing to attend any procedural hearings regarding persons detained in the remand centre of the CFECC until the administration agreed to provide lawyers with rooms for confidential meetings with their clients. 127.", "The Government argued that domestic law ensured the right to confidential meetings with the lawyer without any limitation of their number and duration, as well as the safety of the applicant and his lawyer. Due to the dangerous character of the crimes dealt with by CFECC, its remand centre had to be equipped with a room for meetings where lawyers and their clients were separated by a glass partition with holes allowing normal discussion. The Government emphasized that the room was never equipped with any technical means of recording or listening, as shown in the video and photographs of that room submitted to the Court. Moreover, the Chişinău Regional Court confirmed this in its decision of 3 December 2004. B.", "The Court’s assessment 128. The Court recalls that confidential communication with one’s lawyer is protected by the Convention as an important safeguard of an accused’s right to defence, failing which the assistance of the lawyer would lose much of its usefulness (see Öcalan v. Turkey [GC], no. 46221/99, §§ 132 and 133, ECHR 2005‑...). While such a complaint would normally be examined under Articles 5 or 6 of the Convention - which have not been raised by the applicant in this context -, it cannot be excluded that an issue could arise under Article 8, especially where it is being alleged that the authorities were listening in to their conversations. 129.", "However in the present case, the applicant has not furnished any evidence that supports his allegations. This part of the complaint is thus unsubstantiated. 130. The applicant also claimed that the glass partition constituted a hindrance in preparing his defence with his lawyer. While the partition may well have created certain obstacles to effective communication with his lawyer (as suggested by the strike held by the Moldovan Bar Association), it appears that those difficulties, in the present case, did not impede the applicant from mounting an effective defence before the domestic authorities.", "131. In light of the above, the Court finds that there has been no violation of Article 8 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 132. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Non-pecuniary damage 133.", "The applicant claimed 55,000 euros (EUR) for the non-pecuniary damage suffered as a result of the violation of his rights under the Convention: EUR 20,000 for the violation of Article 3, EUR 30,000 for the violation of Article 5 and EUR 5,000 for the violation of Article 8 of the Convention. He cited the Court’s case-law to prove that comparable amounts had been awarded for violations of these Articles. 134. The Government disagreed with the amount claimed by the applicant, arguing that it was excessive in light of the case-law of the Court. They submitted that the case-law cited by the applicant in respect of Article 3 violations dealt with situations which had nothing in common with his case in terms of the nature and seriousness of the alleged violations, the effects on the applicant and the attitude of the State authorities.", "The authorities had taken all the measures to accommodate the applicant’s health condition and his treatment did not reach the minimum threshold under Article 3 of the Convention. Any finding of a violation of Article 5 of the Convention should in itself constitute sufficient just satisfaction since there was no evidence that the applicant would have been released had the violation not occurred. Any finding of a violation of Article 8 of the Convention should have a similar result, particularly in view of the applicant’s withdrawal of a part of his claims under that Article and of his failure to give any details or cite case-law in this respect. 135. The Court considers that the applicant must have been caused a certain amount of stress and anxiety, notably because of the manifest disregard of his medical needs by the authorities and the insufficiency of reasons for ordering his detention.", "It awards the applicant the total sum of EUR 4,000 for non-pecuniary damage. B. Costs and expenses 136. The applicant claimed a further EUR 7,808 for legal costs and expenses. He submitted a contract of legal assistance concluded with his lawyer, according to which the latter would be paid “according to a EUR 60‑100 fee per hour, based on a schedule of effectively worked hours”.", "He also annexed a list of hours worked in preparing the case (amounting to 69 hours) and the hourly fee for each type of activity. He invoked the fact that his lawyer had extensive experience in the field of human rights, having won extremely complex cases before this Court such as Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, ECHR 2004‑...). He included postal expenses for rapid mail in his request. 137.", "The Government considered these claims to be unjustified. They argued that the applicant’s representative had not provided any detailed explanation as to the nature of services to his client or the cost of each service. While conceding that the case “raised complex factual and legal issues”, they questioned the need for researching the Court’s case law during 15 hours and the number of hours spent in drafting the applicant’s observations. They also showed that the cost of sending documents by rapid mail was less than what the applicant had requested and that he had withdrawn his request for interim measures, which made a part of the work hours claimed irrelevant. The Government asked the Court to reject the applicant’s request for reimbursement of costs and expenses, as had been done in a number of earlier cases.", "138. The Court recalls 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 (Croitoru v. Moldova, no. 18882/02, § 35, 20 July 2004). According to Rule 60 § 2 of the Rules of Court, itemised particulars of all claims made are to be submitted, failing which the Chamber may reject the claim in whole or in part. 139.", "In the present case, regard being had to the itemised list submitted by the applicant and the number and complexity of issues dealt with, but also to the finding of no violation in respect of two allegations, the Court awards the applicant EUR 3,000 for legal costs and expenses. C. Default interest 140. 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 objections; 2.", "Holds that there has been a violation of Article 3 of the Convention; 3. Holds that there has been a violation of Article 5 § 3 of the Convention in respect of insufficient reasons for detention; 4. Holds that there has been no violation of Article 5 § 3 of the Convention in respect of decisions taken by judges competent to order the applicant’s release pending trial; 5. Holds that there has been a violation of Article 5 § 4 of the Convention in respect of the length of reviewing the applicant’s habeas corpus request; 6. Holds that there has been no violation of Article 8 of the Convention in respect of the lack of confidentiality of lawyer-to-client communication; 7.", "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 4,000 (four thousand euros) for non-pecuniary damage and EUR 3,000 (three thousand euros) for costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 8. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 4 October 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O’BoyleNicolas BratzaRegistrarPresident [1] Disorder caused by abnormal wear on the cartilage and bones of the neck with degeneration and mineral deposits in the cushions between the vertebrae. [2] Muscular weakness affecting all four limbs." ]

[ "FIFTH SECTION CASE OF RUSLAN YAKOVENKO v. UKRAINE (Application no. 5425/11) JUDGMENT STRASBOURG 4 June 2015 FINAL 04/09/2015 This judgment is final. In the case of Ruslan Yakovenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President,Angelika Nußberger,Boštjan M. Zupančič,Ganna Yudkivska,Vincent A. De Gaetano,André Potocki,Aleš Pejchal, judges,and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 21 April 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "5425/11) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Ruslan Anatoliyovych Yakovenko (“the applicant”), on 17 January 2011. 2. The applicant was represented by Mr O.V. Levytskyy, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their then Agent, Mr N. Kulchytskyy.", "3. The applicant complained of the unlawfulness of his detention and of a violation of his right of appeal in criminal proceedings. 4. On 12 December 2012 notice of the application was given to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1979 and lives in Korolivka, in the Kyiv Region. 6. On 12 July 2010 the Bila Tserkva Town Court (“the Bila Tserkva Court”) found the applicant guilty of inflicting grievous bodily injuries on a certain Mr N. on 12 May 2006. Although this type of crime was punishable with five to eight years’ imprisonment, the court considered it possible to apply a more lenient sanction to the applicant.", "It had regard, in particular, to the fact that he had pleaded guilty and had shown remorse. Accordingly, the Bila Tserkva Court sentenced the applicant to four years and seven months’ imprisonment. It also decided to include in the served part of the applicant’s sentence the period from 20 October 2005 to 3 May 2006 (six months and fourteen days), during which he had been detained in the context of another criminal case. Lastly, in fixing the applicant’s sentence the court had regard to the fact that he “had spent more than four years in [pre-trial] detention facilities in which the detention conditions were considerably harsher than in a post-conviction prison, and the previous judgments in respect of him had been quashed”. No further information is available regarding the earlier detention of the applicant, the other criminal cases involving him, or the judgments that had been quashed.", "7. In the operative part of its judgment, the Bila Tserkva Court also ruled that the applicant should remain in a pre-trial detention centre (“SIZO”) as a preventive measure until the judgment became final. It further noted that the judgment was amenable to appeal within fifteen days of the date of its delivery. 8. On 15 July 2010 the term of the applicant’s sentence expired, and he asked the SIZO administration to release him.", "His request was rejected. On the same day the SIZO administration, however, applied to the Bila Tserkva Court for permission to release the applicant subject to an undertaking not to abscond, given that he had served his prison sentence in full. No reply was received. 9. On 19 July 2010 the applicant’s lawyer applied once again to the SIZO administration for the applicant’s immediate release.", "He submitted, in particular, that there were no grounds for his client’s continued detention. A copy of that letter was also sent to the Kyiv Region Prosecutor’s Office. 10. On 27 July 2010 the fifteen-day time-limit for lodging an appeal against the judgment of 12 July 2010 expired and, in the absence of an appeal, it became final. 11.", "On the same day the SIZO administration wrote to the applicant’s lawyer stating that it could not release the applicant until either the preventive measure in respect of him was changed or the judgment became final. It was noted in the letter that, in any event, it was for the Bila Tserkva Court to authorise the applicant’s release. 12. On 29 July 2010 the SIZO received the court’s order to enforce the final judgment and the applicant was released. 13.", "On 5 August 2010 the State Prisons Department wrote to the applicant’s lawyer in reply to his complaints regarding the delayed release of the applicant, stating that there had been no violation of the Code of Criminal Procedure. II. RELEVANT DOMESTIC LAW AT THE MATERIAL TIME A. Code of Criminal Procedure (1960) 14. Article 148 specified the purpose and grounds for the application of preventive measures.", "It stated, in particular, that a preventive measure was to be imposed where there were sufficient grounds to believe that a suspect, an accused, a defendant or a convicted person would attempt to abscond, fail to comply with procedural decisions, obstruct the establishment of the truth in the case, or pursue criminal activities. 15. At the stage of judicial proceedings a detainee could be released only on the basis of a decision of the judge or the court to that effect (Article 165). As also provided in Article 165, a preventive measure could be lifted or changed if the measure applied previously was no longer necessary. 16.", "Although during the pre-trial investigation a detainee was to be released immediately by the administration of the detention facility if the term of his or her detention had expired and if no court ruling on its extension had been received by that time (Article 156 in fine), no such provision existed in respect of the procedure for releasing a detainee at the stage of judicial proceedings. 17. Article 274 concerned the application, lifting or change of a preventive measure by a trial court. It obliged the court to be guided by the relevant provisions of Chapter 13 (“Preventive measures” – Articles 148 to 165-3). 18.", "Article 324 required the sentencing court to decide, in particular, on the preventive measure to be applied to a convicted person until the judgment became final. 19. Article 343 reiterated in substance the above provision and further specified that the court could remand a convicted person in custody as a preventive measure only on the grounds provided for in the relevant provisions of Chapter 13. 20. Article 358 listed the issues which the appellate court could consider at a preparatory hearing.", "It could decide, in particular, to change, lift or apply a preventive measure in respect of a convicted person. 21. Under Article 401, a judgment would become final if it was not challenged on appeal before the statutory deadline (within fifteen days of the date of its delivery – Article 349). If an appeal was lodged, a judgment would become final after the examination of the case by the appellate court (unless it was quashed). An acquittal judgment, or a judgment lifting the punishment, was to be enforced immediately, whereas a judgment involving a guilty verdict was to be enforced once it had become final.", "Article 404 provided that the court that delivered the judgment had to send the case for enforcement no later than three days after the judgment became final. B. Civil Code (2003) 22. Article 1176 imposed on the State an obligation to “fully compensate an individual for the damage caused to him or her by unlawful conviction, unlawful imposition of criminal liability, unlawful application of a preventive measure [or] arrest ... regardless of the guilt of officials of the bodies of inquiry, pre-trial investigation authorities, prosecutors’ offices or courts” (first paragraph). It further specified that “the right to compensation for damage caused to an individual by unlawful actions of the bodies of inquiry, pre-trial investigation authorities, prosecutors’ offices or courts [would] arise in cases envisaged by law” (second paragraph).", "C. 1994 Law of Ukraine on the procedure for compensation for damage caused to citizens by the unlawful acts of bodies of inquiry, pre-trial investigation authorities, prosecutors’ offices and courts (“the Compensation Act”) 23. Under section 1, a person was entitled to compensation for damage caused, in particular, by an unlawful conviction, unlawful indictment, unlawful arrest or remand in custody. In the listed cases, damage was to be compensated for regardless of whether the officials from the bodies of inquiry, pre-trial investigation authorities, prosecutors’ offices or courts were guilty. 24. Section 2 listed the cases in which the right to compensation arose.", "They included the following: (1) an acquittal judgment; (1-1) a judicial decision acknowledging, in particular, that the detention was unlawful; and (2) discontinuation of the criminal proceedings on the grounds of a lack of corpus delicti or of proof of guilt of an accused. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 25. The applicant complained that his detention from 15 to 29 July 2010 had been unlawful. He relied on Article 5 § 1 of the Convention, the relevant part of which reads as follows: “1.", "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...” A. Admissibility 1. Exhaustion of domestic remedies (a) The parties’ submissions 26. The Government argued that the applicant had not complied with the rule of exhaustion of domestic remedies. They conceded that his detention from 15 to 29 July 2010 had indeed been groundless.", "Relying on Article 1176 of the Civil Code (see paragraph 22 above), they maintained that it had been open to the applicant to seek damages but that he had failed to avail himself of that remedy. 27. The applicant disagreed. He submitted, in particular, that in order for a remedy to be effective in his case, it should have been able to ensure his immediate release once the term of his prison sentence had expired. He had applied for release to the SIZO administration and to the prosecution authorities.", "However, the SIZO administration had considered his release impossible until the judgment became final. As to the prosecutor’s office, it had not found it necessary to intervene at all. (b) The Court’s assessment (i) General case-law principles 28. The Court notes that the rule of exhaustion of domestic remedies is based on the assumption, reflected in Article 13 of the Convention, with which it has close affinity, that the domestic legal system provides an effective remedy which can deal with the substance of an arguable complaint under the Convention and grant appropriate relief. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Ananyev and Others v. Russia, nos.", "42525/07 and 60800/08, § 93, 10 January 2012, with further references). 29. An applicant is normally only required to have recourse to domestic remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of these remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness. It is incumbent on the Government claiming non-exhaustion to satisfy the Court on these points, that is to say, that the remedy to which they refer was accessible and capable of providing redress in respect of the applicant’s complaints, and offered a reasonable prospect of success.", "However, once the question of this burden of proof has been satisfied it falls to applicants to establish that the remedy advanced by the Government had in fact been used or was for some reason inadequate and ineffective in their case, or that there existed special circumstances exempting them from the requirement to have recourse to it (see, for example, Melnik v. Ukraine, no. 72286/01, § 67, 28 March 2006). 30. The Court further notes that, where a violation of Article 5 § 1 is in issue, Article 5 §§ 4 and 5 of the Convention constitutes lex specialis in relation to the more general requirements of Article 13 (see Dimitrov v. Bulgaria (dec.), no. 55861/00, 9 May 2006).", "Accordingly, in order to decide whether an applicant was required to make use of a particular domestic remedy in respect of his or her complaint under Article 5 § 1 of the Convention, the Court must evaluate the effectiveness of that remedy from the standpoint of the above-mentioned provisions. (ii) Existence of a preventive remedy in compliance with Article 5 § 4 31. The Court observes that from the day when a charge is determined, even if only by a court of first instance, the defendant is detained “after conviction by a competent court” within the meaning of Article 5 § 1 (a) (see paragraphs 46-51 below for a more detailed review of the relevant principles established in the Court’s case-law). 32. The Court has held in its case-law that in such circumstances the judicial supervision of the deprivation of liberty required under Article 5 § 4 is considered to be already incorporated into the initial conviction and sentence.", "However, whenever fresh issues affecting the lawfulness of such detention arise, Article 5 § 4 comes back into play (see, as a recent authority, Stoichkov v. Bulgaria, no. 9808/02, §§ 64-65, 24 March 2005, with further references). 33. The Court is prepared to accept that in the present case a fresh issue concerning the lawfulness of the applicant’s detention arose for him once his prison sentence had expired but he had not been released. At that stage he had no possibility of bringing judicial proceedings, by which the lawfulness of his continued detention thereafter would have been decided speedily and his release would have been ordered.", "Thus, the case was no longer before the first-instance court. As to an ordinary appeal, its examination would have been likely to last longer than the detention of which the applicant complained (twelve days). Moreover, it is not improbable that lodging an appeal would have entailed further extension of his detention as a preventive measure until the judgment became final. The Court will, however, analyse this issue in more detail. 34.", "As regards the applicant’s applications to the SIZO administration and the prosecution, those authorities were not “a court” within the meaning of Article 5 § 4 of the Convention. 35. It follows that there were no effective domestic remedies for the applicant to exhaust with a view to putting an end to the alleged violation of Article 5 § 1. (iii) Existence of a compensatory remedy in compliance with Article 5 § 5 36. The Court reiterates that Article 5 § 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1 to 4 of Article 5 where that deprivation has been established, either by a domestic authority or by the Court.", "The effective enjoyment of the right to compensation guaranteed by Article 5 § 5 must be ensured with a sufficient degree of certainty (see Lobanov v. Russia, no. 16159/03, § 54, 16 October 2008, with further references). 37. The Court observes that in the present case the Government confined their objection to a statement that the applicant’s detention had been without basis and that he could claim damages under Article 1176 of the Civil Code. The Court notes, however, that that provision is worded in quite general terms: it neither establishes legal preconditions for claiming compensation nor provides for specific mechanisms or procedures.", "Instead, Article 1176 refers to a separate law regulating those issues. It appears that it is the special law on compensation which should be applicable (see paragraphs 23­24 above). The Government did not refer to that law in their observations. Nor did they specify which provision of the domestic law the applicant’s detention had in fact violated. The Government also failed to cite any relevant domestic case-law in this regard.", "It therefore remains unclear on what grounds and using which mechanisms the applicant could have obtained a judicial finding at the domestic level that his detention had been unlawful and could have claimed compensation for damages in that regard. 38. In such circumstances, the Court is not persuaded by the Government’s argument that the remedy advanced by them was effective and had to be pursued by the applicant. (iv) Conclusion 39. In the light of the foregoing considerations, the Court concludes that the applicant did not have at his disposal any effective domestic remedy to pursue in respect of his complaint under Article 5 § 1 of the Convention.", "The Court therefore rejects the Government’s objection in this regard. 2. Other considerations as to admissibility 40. The Court notes that this 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 must therefore be declared admissible. B. Merits 1. The parties’ submissions 41. The applicant submitted that his detention from 15 to 29 July 2010 had been without basis and was thus contrary to Article 5 § 1 of the Convention.", "42. In their observations on the admissibility of this complaint (see paragraph 26 above), the Government agreed with the applicant on this point. They did not, however, submit any observations on the merits of the complaint. 2. The Court’s assessment 43.", "The Court considers that for the purposes of its analysis the applicant’s detention should be divided into two distinct periods: (a) from 15 to 27 July 2010, that is after the delivery of the judgment by the first-instance court and before it became final; and (b) during the subsequent two days, from 27 to 29 July 2010, the time the authorities took to complete all the administrative formalities with a view to implementing the applicant’s release after the judgment of the trial court had become final. 44. The Court will examine each period of the applicant’s detention separately to see whether they complied with Article 5 § 1 of the Convention. (a) The applicant’s detention from 15 to 27 July 2010 (i) Grounds for the applicant’s deprivation of liberty (α) General case-law principles 45. The Court reiterates that Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty.", "Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which individuals may be deprived of their liberty, and no deprivation of liberty will be compatible with Article 5 § 1 unless it falls within one of those grounds (see, among other authorities, Austin and Others v. the United Kingdom [GC], nos. 39692/09 and 2 others, § 60, ECHR 2012). 46. The Court notes that a defendant is considered to be detained “after conviction by a competent court” within the meaning of Article 5 § 1 (a) once the judgment has been delivered at first instance, even where it is not yet enforceable and remains amenable to appeal. The Court has held in this connection that the phrase “after conviction” cannot be interpreted as being restricted to the case of a final conviction, for this would exclude the arrest at the hearing of convicted persons who appeared for trial while still at liberty, whatever remedies are still open to them (see Wemhoff v. Germany, 27 June 1968, p. 23, § 9, Series A no.", "7). Furthermore, a person convicted at first instance and detained pending appeal cannot be considered to be detained for the purpose of bringing him or her before the competent legal authority on reasonable suspicion of having committed an offence under Article 5 § 1 (c) (see, in particular, Solmaz v. Turkey, no. 27561/02, § 25, 16 January 2007). 47. The Court has consistently stated in its case-law that it is mindful of significant differences among the Contracting States on the question whether a person convicted at first instance has started serving a prison sentence while an appeal is still pending.", "However, the Court reiterates that the important guarantees of Article 5 of the Convention are not dependent on national legislation (see B. v. Austria, 28 March 1990, § 39, Series A no. 175, and Solmaz, cited above, § 26). Thus, even if the domestic law of a member State provides that a sentence only becomes final on completion of all appeals, pre-trial detention comes to an end for the purposes of the Convention with the finding of guilt and the sentence imposed at first instance (see Solmaz, cited above, § 26). 48. For example, in Grubić v. Croatia (no.", "5384/11, §§ 30­45, 30 October 2012) the applicant, who had been convicted and sentenced to thirty years’ imprisonment by a first-instance court, complained of the unlawfulness of several months of his detention after the delivery of the judgment at first instance. His deprivation of liberty during that period was still considered “pre-trial detention” under the domestic legislation. The Court examined his complaint from the standpoint of Article 5 § 1 (a) of the Convention and found no indication of arbitrariness. 49. The Court has also held in its case-law that the word “conviction” for the purposes of Article 5 § 1 (a), having regard to the French text (“condamnation”), has to be understood as signifying both a finding of guilt after it has been established in accordance with the law that there has been an offence, and the imposition of a penalty or other measure involving the deprivation of liberty (see Guzzardi v. Italy, 6 November 1980, § 100, Series A no.", "39; Van Droogenbroeck v. Belgium, 24 June 1982, § 35, Series A no. 50; and, for more recent case-law, Del Río Prada v. Spain [GC], no. 42750/09, § 123, ECHR 2013). 50. Furthermore, the word “after” in sub-paragraph (a) of Article 5 § 1 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.", "In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty in issue (see Murray v. the Netherlands, no. 10511/10, § 77, 10 December 2013, with further references). 51. Thus, the Court has previously found that various forms of preventive detention beyond the prison sentence constituted an applicant’s detention “after conviction by a competent court” (see, for example, Van Droogenbroeck, cited above, §§ 33-42; M. v. Germany, no. 19359/04, § 96, ECHR 2009; and James, Wells and Lee v. the United Kingdom, nos.", "25119/09 and 2 others, §§ 197-99, 18 September 2012). The detention in issue was not part of a penalty in such circumstances, but rather ensued from another “measure involving the deprivation of liberty”, as noted in paragraph 49 above. (β) Application of the above principles to the present case 52. The Court notes that the applicant’s detention during this period took place after the delivery of the judgment in his criminal case, but was still considered “pre-trial detention” under the domestic legislation. 53.", "Regardless of the classification at the domestic level, the Court notes that this period of the applicant’s detention no longer fell under Article 5 § 1 (c) (see, in particular, paragraph 46 above). It remains to be seen whether it was justified under sub-paragraph (a) of Article 5 § 1 of the Convention, since no other sub-paragraph of this provision is in principle applicable to the situation at hand. 54. The Court observes that the judgment of 12 July 2010 provided for two separate measures involving the applicant’s deprivation of liberty: firstly, a prison sentence, and, secondly, the applicant’s detention as a preventive measure until the judgment became final. Although the penalty imposed was to expire three days later, the second measure was to last for at least twelve days longer, given the fifteen-day time-limit for lodging appeals.", "Had the applicant lodged an appeal, the duration of his detention would have been even longer and would have depended on the time taken by the appellate court to examine his case. 55. Accordingly, the Court considers that, even though the detention of which the applicant complained took place after the prison sentence imposed on him had been served in full, it could be regarded as another “measure involving the deprivation of liberty”, which took place “after conviction” within the meaning of Article 5 § 1 (a). 56. In sum, the Court concludes that this period of the applicant’s detention falls within the exception set out in sub-paragraph (a) of Article 5 § 1 of the Convention.", "It remains to be seen, however, whether this provision has been complied with. (ii) Lawfulness of the applicant’s detention during the period from 15 to 27 July 2010 (α) General case-law principles 57. The Court reiterates that 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 of Judgments and Decisions 1998‑VI, and Baranowski v. Poland, no. 28358/95, § 50, ECHR 2000‑III).", "58. In assessing whether detention is lawful, the Court must also ascertain whether the domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. The “quality of the law” implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application to avoid all risk of arbitrariness. The standard of “lawfulness” set by the Convention requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Where deprivation of liberty is concerned, it is essential that the domestic law define clearly the conditions for detention (see Del Río Prada, cited above, § 125, with further references).", "59. Furthermore, arbitrary detention cannot be compatible with Article 5 § 1, as the notion of “arbitrariness” in this context extends beyond the lack of conformity with national law. As a consequence, a deprivation of liberty that is lawful under domestic law can still be arbitrary and thus contrary to the Convention (see Mooren v. Germany [GC], no. 11364/03, § 77, 9 July 2009). 60.", "The Court has not previously formulated a general definition of what types of conduct on the part of the authorities might constitute “arbitrariness” for the purposes of Article 5 § 1. However, key principles that have been developed on a case-by-case basis demonstrate that the notion of arbitrariness in the context of Article 5 varies to a certain extent depending on the type of detention involved (see Saadi v. the United Kingdom [GC], no. 13229/03, § 68, ECHR 2008, and Plesó v. Hungary, no. 41242/08, § 57, 2 October 2012). One general principle established in the Court’s case-law is that detention will be “arbitrary” where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities or where the domestic authorities neglected to attempt to apply the relevant legislation correctly (see Mooren, cited above, § 78).", "61. Furthermore, the requirement that detention must not be arbitrary implies the need for a relationship of proportionality between the ground of detention relied upon and the detention in question (see James, Wells and Lee, cited above, § 195). The scope of the proportionality test to be applied in a given case varies depending on the type of detention involved. In the context of detention pursuant to Article 5 § 1 (a), the Court has generally been satisfied that the decision to impose a sentence of detention and the length of that sentence are matters for the national authorities rather than for this Court (see T. v. the United Kingdom [GC], no. 24724/94, § 103, 16 December 1999, and Saadi, cited above, § 71).", "At the same time, in assessing whether there were indications of arbitrariness in the applicants’ preventive detention not constituting a part of the sentence but still falling under Article 5 § 1 (a), the Court has found it necessary to identify the purpose of their detention under Article 5 § 1 (a) and has pursued the proportionality test (see James, Wells and Lee, cited above, § 205). (β) Application of the above principles to the present case 62. The Court sees no indication that the decision of the Bila Tserkva Court to keep the applicant in detention until the judgment became final was contrary to the domestic law. Furthermore, the applicable legal provisions appear clear and foreseeable in their application. Thus, the Code of Criminal Procedure of Ukraine explicitly states that the sentencing court must decide which preventive measure should be applied to the convicted person until the judgment becomes final (see paragraph 18 above).", "It also appears from the domestic legislation that the duration of the preventive measure does not depend on the duration of the prison sentence imposed, and can therefore be longer than that sentence. 63. The Court still has to satisfy itself that the applicant’s detention during the period in issue, despite its compliance with domestic law, was not arbitrary and thus contrary to the Convention. 64. The Court does not consider that there was any bad faith on the part of the Bila Tserkva Court in its decision on the applicant’s continued detention as a preventive measure.", "At the same time, the Court observes that the judgment contained no reasoning in that regard, apart from a general statement in the operative part on the application of the measure. The sentencing court’s reasons for maintaining the applicant’s detention as a preventive measure therefore remain unclear, particularly given that it meant that the detention would exceed the duration of the prison sentence imposed. 65. The Court accepts that there might be special considerations warranting, irrespective of the duration of the prison sentence, a convicted person’s deprivation of liberty as a preventive measure aimed at ensuring his or her availability for the judicial proceedings at the appellate level in the event that the first-instance court’s judgment is challenged on appeal. However, no such considerations were mentioned in, or can be inferred from, the judgment of the Bila Tserkva Court of 12 July 2010.", "On the contrary, the court noted the applicant’s cooperation with the investigation and decided, on that ground, to apply a milder sanction than provided for in the relevant legislation (see paragraph 6 above). Accordingly, the applicant’s continued detention beyond the duration of his prison sentence was unjustified. The Court notes in this connection that the Government admitted this in their observations (see paragraph 26 above). 66. In view of the above considerations, the Court concludes that the applicant’s detention from 15 to 27 July 2010 was in breach of Article 5 § 1 of the Convention.", "(b) The applicant’s detention from 27 to 29 July 2010 67. The Court notes that the judgment of the Bila Tserkva Court of 12 July 2010 became final on 27 July 2010. Accordingly, the grounds for the applicant’s detention, which had been ordered as a preventive measure until that judgment became final, ceased to exist. Moreover, that period of the applicant’s detention was not related to the enforcement of the prison sentence imposed on him, because it had already expired. 68.", "The Court reiterates that some delay in implementing a decision to release a detainee is understandable, and often inevitable, in view of practical considerations relating to the running of the courts and the observance of particular formalities. However, the national authorities must attempt to keep this to a minimum (see Quinn v. France, 22 March 1995, § 42, Series A no. 311; Giulia Manzoni v. Italy, 1 July 1997, § 25 in fine, Reports 1997‑IV; K.-F. v. Germany, 27 November 1997, § 71, Reports 1997‑VII; and Mancini v. Italy, no. 44955/98, § 24, ECHR 2001‑IX). Administrative formalities connected with release cannot justify a delay of more than a few hours (see Nikolov v. Bulgaria, no.", "38884/97, § 82, 30 January 2003). It is for the Contracting States to organise their legal system in such a way that their law-enforcement authorities can meet the obligation to avoid unjustified deprivations of liberty (see, for example, Shukhardin v. Russia, no. 65734/01, § 93, 28 June 2007, and Mokallal v. Ukraine, no. 19246/10, § 44, 10 November 2011). 69.", "In the present case it took the domestic authorities two days to arrange for the applicant’s release once the grounds for his detention had ceased to exist after the judgment of 12 July 2010 became final. Given the prominent place which the right to liberty holds in a democratic society, the respondent State should have deployed all modern means of communication to minimise the delay in implementing the decision to release the applicant, as required by the relevant case-law (see Mokallal, cited above, § 44). The Court is not satisfied that the Ukrainian authorities complied with that requirement in the present case. 70. It follows that the applicant’s detention during this period was not justified under Article 5 § 1 of the Convention.", "(c) Conclusion 71. In the light of all the foregoing considerations, the Court concludes that there has been a violation of Article 5 § 1 of the Convention in respect of the entire period of the applicant’s detention complained of (15­29 July 2010). II. ALLEGED VIOLATION OF Article 2 § 1 of Protocol No. 7 72.", "The applicant also complained under Article 2 of Protocol No. 7 that he had been effectively deprived of the right to appeal against the judgment in his criminal case. The provision relied on reads as follows: “1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.", "2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.” A. Admissibility 73. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 74. The applicant submitted that he had effectively been obliged to choose between exercising his right to appeal against the judgment in his criminal case, on the one hand, and his liberty, on the other. In other words, had he decided to appeal, this would have considerably delayed his release. 75.", "The Government did not comment on the applicant’s argument. They observed that, under the domestic legislation, he had had the right to lodge an appeal against the judgment of 12 July 2010, but that he had chosen not to do so. Accordingly, the Government submitted that the applicant’s rights under Article 2 of Protocol No. 7 had not been violated. 76.", "The Court notes that the Contracting States in principle enjoy a wide margin of appreciation in determining how the right secured by Article 2 of Protocol No. 7 to the Convention is to be exercised (see Krombach v. France, no. 29731/96, § 96, ECHR 2001‑II). 77. As is apparent from the Court’s case-law, this provision mostly regulates institutional matters, such as accessibility of the court of appeal or the scope of review in appellate proceedings (see, for example, Pesti and Frodl v. Austria (dec.), nos.", "27618/95 and 27619/95, ECHR 2000-I). 78. In so far as the accessibility issue is concerned, the Court has considered it acceptable that in certain countries a defendant wishing to appeal may sometimes be required to seek permission to do so. However, it is a well-established case-law principle that any restrictions contained in domestic legislation on the right to a review secured in Article 2 of Protocol No. 7 must, by analogy with the right of access to a court embodied in Article 6 § 1 of the Convention, pursue a legitimate aim and not infringe the very essence of that right (see Krombach, cited above, § 96; Gurepka v. Ukraine, no.", "61406/00, § 59, 6 September 2005; and Galstyan v. Armenia, no. 26986/03, § 125, 15 November 2007). 79. The Court reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly so of the right of access to a court in view of the prominent place held in a democratic society by the right to a fair trial (see Airey v. Ireland, 9 October 1979, § 24, Series A no.", "32, and García Manibardo v. Spain, no. 38695/97, § 43, ECHR 2000‑II). Bearing the above principle in mind, the Court has also held in its case-law that hindrance in fact can contravene the Convention just like a legal impediment (see Golder v. the United Kingdom, 21 February 1975, § 26, Series A no. 18, and, for a more recent reference, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 113, ECHR 2014).", "80. Turning to the present case, the Court observes that there was a clear procedure envisaged in the Ukrainian legislation for appealing against a judgment in criminal proceedings. The Court will assess whether the applicant was, however, hindered in his right to lodge an appeal and, if so, whether that hindrance could be regarded as having infringed the very essence of his right embodied in Article 2 of Protocol No. 7. 81.", "The Court notes that the domestic courts considered it necessary to keep the applicant in detention as a preventive measure until the first-instance court’s judgment became final, even after the prison sentence imposed on him by that judgment had already expired. In the absence of an appeal, the period in question lasted for twelve days. Had the applicant decided to appeal, this would have delayed for an unspecified period of time the point at which the judgment became final. 82. Accordingly, the Court agrees with the applicant’s argument that the exercise of his right to appeal would have been at the price of his liberty, especially given that the length of his detention would have been uncertain.", "The Court therefore finds that this circumstance infringed the very essence of his right under Article 2 of Protocol No. 7. 83. There has therefore been a violation of this provision. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 84. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 85. The applicant claimed 3,000 euros (EUR) in respect of non-pecuniary damage. 86.", "The Government contested that claim as unsubstantiated and excessive. 87. Having regard to all the circumstances of the present case, the Court accepts that the applicant suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant’s claim in full. B.", "Costs and expenses 88. The applicant also claimed EUR 1,330 for the costs and expenses incurred before the Court. He requested the Court to transfer this amount to his representative’s bank account. 89. The Government contested the above claim as excessive.", "90. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court allows the applicant’s claim in full and awards him EUR 1,330 for costs and expenses. C. Default interest 91. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 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 2 of Protocol No. 7; 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 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,330 (one thousand three hundred and thirty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be transferred to his representative’s bank account; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 4 June 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoMark Villiger Deputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Zupančič is annexed to this judgment. M.V.M.B. CONCURRING OPINION OF JUDGE ZUPANČIČ This case presents us with a genuine “prisoner’s dilemma”.", "Due to the peculiar nature of Ukrainian criminal procedure, the applicant spent his entire time in prison in “pre-trial detention” although that detention had de facto been post-trial and pre-sentencing. In the end, the trial court calculated the sentence by including all the “pre-trial” time spent in detention. Accordingly, the applicant was due to be released immediately after the subsequent pronouncement of the sentence. A dilemma thus arose for the applicant. If he accepted the judgment and sentence as final, he was free to walk out of prison.", "However, if he chose to exercise his right of appeal guaranteed by the Convention, the Constitution and the criminal procedure, he was destined to remain in what was dubbed “pre-trial” detention. In other words, by a quirk of the system he was prevented, or at the very least seriously discouraged, from exercising his right of appeal as per Article 2, paragraph 1, of Protocol No. 7: Right of appeal in criminal matters “1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.", "... ” I agree with the outcome in this case, of course, but propose to draw an analogy here with the well-known precept of criminal procedure concerning the so-called “prohibition of reformatio in peius”. Some legal authors maintain that this is a right of constitutional rank, namely, that the defendant, where he is the sole appellant, must have the assurance that his sentence on appeal will not be harsher than the sentence pronounced by the lower-instance court. [1] However, no such guarantee is enshrined in the Convention or its Protocols; neither do we believe that the prohibition of reformatio in peius is per se of constitutional importance. What is of constitutional importance, on the other hand, is the defendant’s right of appeal. The latter is, as per H.L.A.", "Hart, a prescriptive norm, whereas the prohibition of reformatio in peius is an instrumental rule vis-à-vis the prescriptive norm. On the other hand, the immediate ratio legis of the prohibition of reformatio in peius is also very pragmatic. If the appellate courts are to have access to certain kinds of cases in order to be able to streamline the criminal case-law, appellants convicted in the lower-instance courts are not to be discouraged from lodging their appeals. Nevertheless, even from this down-to-earth perspective, the prohibition of reformatio in peius is perceived as a traditional right of defendants who have been convicted in a non-final judgment in continental criminal proceedings; it is a legitimate appendage to their post-trial procedural position, irrespective of the narrower ratio legis enunciated above. Even if only tangentially, therefore, these defendants are supposed to benefit from this guarantee.", "Thus, from their own point of view, as well as from the point of view of the rule of law, criminal defendants must not be seriously discouraged from appealing against their convictions. However, this is precisely what happened in the case before us. If the defendant had appealed against his conviction, his “pre-trial” detention would have been extended for the period it would have taken the appellate court to decide the case. Thus, he was barred from appealing against the judgment of the first-instance court. Accordingly, his right of appeal guaranteed under Article 2, paragraph 1, of Protocol No.", "7 (supra) was in fact violated. If we were to consider in abstracto the prohibition of reformatio in peius as a procedural right appended to the right of appeal, the discouragement inherent in this case regarding the defendant’s right to appeal would have been deemed to infringe the same ratio legis. For this reason, his case never reached the appellate court. It would, however, unquestionably have been in his interest as well as in the interest of the rule of law for the appellate court to have had the opportunity to adjudicate the case. However, the Convention does not yet directly recognise the prohibition of reformatio in peius as a right of the defendant.", "Moreover, there is no case-law of the European Court of Human Rights on the matter. But the idea of not discouraging appellants does apply even within the Strasbourg system. As was pointed out by Judge Wojtyczek in paragraph 11 of his separate opinion in Janowiec and Others v. Russia ([GC], nos. 55508/07 and 29520/09, ECHR 2013), “[it] should be noted that the instant case was referred to the Grand Chamber at the request of the applicants. While the Convention does not set out a prohibition of reformatio in peius, the situation is paradoxical, in that a remedy provided for by Article 43 of the Convention and used by the applicants with a view to ensuring protection of [their] human rights has ultimately led to a Grand Chamber judgment which is much less favourable to them than the Chamber judgment.” [1]1.", "See, for example, C. Herke and D. Tóth, “Theoretical and Practical Issues of the Prohibition of Reformatio in Peius in Hungary”, Issues of Business and Law, Volume 3 (2011), at www.herke.hu/tan/11litv.pdf." ]

[ "FOURTH SECTION CASE OF RADVÁK AND RADVÁKOVÁ v. SLOVAKIA (Application no. 25657/08) JUDGMENT STRASBOURG 11 January 2011 FINAL 11/04/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Radvák and Radváková v. Slovakia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,David Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä,Ledi Bianku,Nebojša Vučinić,Vincent A. de Gaetano, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 7 December 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "25657/08) 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 Ivan Radvák and Mrs Vladimíra Radváková (“the applicants”), on 23 May 2008. 2. The applicants were represented by Mrs I. Rajtáková, a lawyer practising in Košice. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková. 3.", "On 15 March 2010 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicants are siblings. They were born in 1984 and 1983 respectively and live in Košice.", "1. Civil proceedings 5. On 29 March 2000 the applicants claimed payment of an amount then equivalent to 428 euros (EUR) from three defendants before the Košice II District Court. 6. On 19 March 2007 the applicants informed the district court about their intention to withdraw their action and requested the district court to discontinue the proceedings.", "They did so after they had learned that it was impossible to verify a signature on a relevant document. 7. On 7 June 2007 the district court discontinued the proceedings and obliged the applicants to pay the court fees. 8. On 31 August 2007 the Košice Regional Court, upon the applicants' appeal in respect of the court fees, upheld the first-instance decision.", "The proceedings finally ended on 24 October 2007. 2. Constitutional proceedings 9. On 19 March 2007 the applicants complained to the Constitutional Court about the length of the proceedings before the district court. On 24 May 2007 the Constitutional Court declared their complaint admissible.", "10. On 11 October 2007 the Constitutional Court dismissed the applicants' complaint. It stated that it could examine complaints concerning length of proceedings only where the proceedings were still pending and the applicants had a genuine legal interest in their continuation. The Constitutional Court held that there had been no legal uncertainty in the case following the applicants' withdrawal of the action and therefore their lodging of the constitutional complaint had been formalistic and unfounded. B.", "Relevant domestic law and practice 1. The Constitutional Court Act 1993 (Law no. 38/1993 Coll., as amended) 11. Section 53 (3) provides that a constitutional complaint can be lodged within a period of two months from the date on which the decision in question has become final and binding or on which a measure has been notified or on which notice of other interference has been given. As regards measures and other interferences, the above period commences when the complainant could have become aware of them.", "2. Practice of the Constitutional Court 12. It has been the practice of the Constitutional Court to entertain complaints about excessive length of proceedings only where the proceedings complained of are pending before the authority liable for the alleged violation at the moment when such complaints are lodged (III. ÚS 150/03). 13.", "In two judgments (I. ÚS 182/06, I. ÚS 23/06) submitted by the applicants, the Constitutional Court, contrary to the above practice, examined alleged delays notwithstanding that the proceedings had ended prior to the filing of a constitutional complaint. The Constitutional Court found a violation of the complainants' right to a hearing within a reasonable time. 14. The Constitutional Court has held that the aim of the right to a hearing without unjustified delays is to eliminate legal uncertainty in which a person, who requests delivery of a decision by a State authority, is placed. Such legal certainty is normally brought about as a result of a final decision (I. ÚS 175/06).", "15. In a number of cases the Constitutional Court held that a constitutional complaint was manifestly ill-founded where the impugned conduct of a public authority could not have violated the fundamental right as alleged by the plaintiff for lack of a causal link. Such was also the case where a procedural situation or the state of the proceedings before a public authority objectively excluded the possibility that such an authority (ordinary court) violates the afore-mentioned fundamental right (IV. ÚS 16/04, II. ÚS 1/05, II.", "ÚS 20/05, IV. ÚS 55/05, IV. ÚS 288/05). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 16.", "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 17. The Government argued that the applicants had not exhausted domestic remedies as they had failed to seek redress before the Constitutional Court in accordance with the statutory requirements and the Constitutional Court's practice. They reiterated the reasoning of the Constitutional Court's decision and considered the latter to be in accordance with the Court's case-law (see Mazurek v. Slovakia (dec.), no. 16970/05, 3 March 2009). 18.", "As to the two judgments of the Constitutional Court (I. ÚS 182/06, I. ÚS 23/06) invoked by the applicants, the Government stated that, unlike in the present case, the applicants in the judgments quoted had had a genuine legal interest in the continuation of the proceedings. 19. The applicants contested the above arguments. They stated that the purpose of an effective remedy was to obtain relief – either preventive or compensatory - for an alleged violation of one's Convention rights. The applicants further argued that they had exhausted domestic remedies by lodging their constitutional complaint before the district court had decided on the case.", "20. The Court first reiterates that, in respect of the alleged violation of the applicants' right to a hearing within a reasonable time, it is irrelevant that the applicants withdrew their claim and that, as a result, the ordinary court did not ultimately determine the merits of the case (see Číž v. Slovakia, no. 66142/01, § 61, 14 October 2003). 21. As regards applications against Slovakia concerning the length of proceedings the Court has held that a complaint under Article 127 of the Constitution is, in principle, an effective remedy which applicants are required to use for the purpose of Article 35 of the Convention (see Andrášik and Others v. Slovakia (dec.), nos.", "57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002). It has also held that applicants should formulate their complaints in a manner permitting the Constitutional Court to examine the overall duration of the proceedings (see Obluk v. Slovakia, no. 69484/01, § 62, 20 June 2006). 22. Domestic law stipulates a two-month time-limit for submitting complaints under Article 127 of the Constitution.", "However, the practice of the Constitutional Court has been not to apply this time-limit to length of proceedings complaints and to examine only those complaints which were lodged before the proceedings complained of had ended. This practice has been accepted by the Court (see Mazurek, cited above). 23. In the case of Mazurek (cited above), the applicant lodged his constitutional complaint after the proceedings had been terminated by a final decision. This is not the case in the present application.", "The applicants lodged their complaint with the Constitutional Court before the district court had delivered a decision to discontinue the proceedings and before that decision became final. The subsequent developments in the proceedings showed that an appeal had been lodged against the first‑instance decision in respect of court fees. Although the district court was not dealing with the merits of the case after the withdrawal of the action by the applicants, it still had to carry out several procedural steps. 24. Even though the Constitutional Court, when rejecting the applicants' complaint, relied on the principle of legal certainty, the Court is of the opinion that the state of legal uncertainty in the context of judicial or administrative proceedings can be eliminated only when such proceedings have ended.", "Accordingly, it has been the Court's practice to examine the duration of proceedings as a whole, that is up until the time they have ended by a final decision. 25. In these circumstances, the manner in which the applicants' complaint was dealt with by the Constitutional Court failed to meet the purpose of protection of their right under Article 6 § 1 of the Convention to a hearing within a reasonable time in the manner as interpreted and applied by the Court. 26. The Government's objection relating to the applicants' failure to exhaust domestic remedies must therefore be dismissed.", "27. The overall proceedings lasted 7 years and 7 months at two levels of jurisdiction. During this period, the proceedings were pending 7 years and 3 months before the district court. 28. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 29. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the 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). 30. 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). 31. 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. 32. There has accordingly been a breach of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 33.", "Lastly the applicants complained that they had no effective remedy at their disposal within the meaning of Article 13 of the Convention, which reads: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 34. The Government argued that the applicants had an effective remedy at their disposal, namely a complaint under Article 127 of the Constitution. 35. The applicants contested the above argument and argued that although they had turned to the Constitutional Court, the latter's decision had not provided them with any redress. Pointing to the quoted judgments of the Constitutional Court (see paragraph 13 above) the applicants argued that termination of the proceedings in those two cases had not been an obstacle to finding a violation of those applicants' right to a hearing within a reasonable time.", "36. The Court notes that the complaint concerning absence of an effective remedy for the alleged breach of the applicants' right to a hearing within a reasonable time 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. 37.", "The Court reiterates that the remedy under Article 127 of the Constitution is likely to provide appropriate and sufficient redress to applicants where it allows for examination of the length of the proceedings complained of (see Kudła v. Poland [GC], no. 30210/96, §§ 158 and 159, ECHR 2000‑XI, and Andrášik and Others cited above). 38. The applicants lodged a complaint with the Constitutional Court. Although they did so at the time when the proceedings had not yet been concluded by a final decision, the Constitutional Court refused to examine it.", "As established in paragraph 25 above, the manner in which the applicants' complaint was dealt with by the Constitutional Court failed to meet the purpose of protection of their right under Article 6 § 1 of the Convention to a hearing within a reasonable time as interpreted and applied by the Court. The Court, therefore, considers that the applicants' right to an effective remedy has not been respected (see mutatis mutandis, A. R., spol. s r. o. v. Slovakia, no. 13960/06, §§ 59-60, 9 February 2010). 39.", "There has therefore been a violation of Article 13 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 40. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 41.", "The applicants claimed EUR 8,000 each in respect of non-pecuniary damage. 42. The Government considered the claim exaggerated. 43. Having regard to its case-law on the subject and to the relatively low amount claimed by the applicants in the domestic proceedings, the Court awards EUR 2,000 to each of the applicants in respect of non-pecuniary damage.", "B. Costs and expenses 44. The applicants also claimed EUR 595 for the costs and expenses incurred before the Constitutional Court and EUR 714 for those incurred before the Court. 45. The Government pointed to the Court's case-law stating that there was a need for human rights lawyers to be moderate in the fees they charged to applicants.", "The Government underlined the fact that the applicants had not supported their claims by any evidence. They requested the Court to grant the applicants compensation for only reasonably incurred costs and expenses and to dismiss the rest of their claims. 46. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the absence of any documents supporting the applicants' claims, the Court makes no award under this head.", "C. Default interest 47. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the 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 applicants, 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) each 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 applicants' claim for just satisfaction. Done in English, and notified in writing on 11 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıNicolas Bratza Deputy Registrar President" ]

[ "FIRST SECTION CASE OF FEGATELLI v. ITALY (Application no. 39735/98) JUDGMENT STRASBOURG 3 April 2003 FINAL 03/07/2003 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 Fegatelli v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrsF.", "Tulkens,MrP. Lorenzen,MrsN. Vajić,MrsS. Botoucharova, MrA. Kovler, judges,MrL.", "Ferrari Bravo, ad hoc judge,and Mr S. Nielsen, Deputy Section Registrar, Having deliberated in private on 13 March 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 39735/98) against the Italian Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mrs Oriana Fegatelli (“the applicant”), on 14 July 1997. 2. The applicant was represented by Mrs G. Mazza Ricci, a lawyer practising in Rome.", "The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza, and by their successive co-Agents, respectively Mr V. Esposito and Mr F. Crisafulli. 3. The applicant complained under Article 1 of Protocol No. 1 that she had been unable to recover possession of her flat within a reasonable time. Invoking Article 6 § 1 of the Convention, she further complained about the length of the eviction proceedings.", "4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5.", "The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. Mr V. Zagrebelsky, the judge elected in respect of Italy, withdrew from sitting in the case (Rule 28). The Government appointed Mr L. Ferrari Bravo as ad hoc judge to sit in his place (Article 27 § 2 of the Convention and Rule 29 § 2). 6.", "On 4 October 2001 the Court declared the application admissible. 7. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1945 and lives in Rome. 9. A.G.D. was the owner of an apartment in Rome, which she had let to V.P.", "10. A.G.D. informed the tenant that she intended to terminate the lease on expiry of the term on 31 December 1983, and asked him to vacate the premises by that date. 11. By a decision of 21 October 1986, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 April 1987.", "12. On 13 November 1986, the applicant became the owner of the apartment and pursued the enforcement proceedings. 13. On 8 May 1987, she served a notice to quit on the tenant, but he refused to leave. 14.", "On 20 May 1987 she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 7 July 1987. 15. On 3 April 1989, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself. 16. Between 7 July 1987 and 1 December 1999, the bailiff made forty-nine attempts to recover possession.", "17. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession. 18. After reaching an agreement with the tenant, on 18 December 1999 the applicant recovered possession of her apartment. II.", "RELEVANT DOMESTIC LAW 19. The relevant domestic law is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.", "1 AND OF ARTICLE 6 § 1 OF THE CONVENTION 20. The applicant complained that she had been unable to recover possession of her flat within a reasonable time owing to the lack of police assistance. She alleged a violation of 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.” 21. 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...” 22. The Court has on several previous occasions decided cases raising similar issues as 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, §§ 46-66; Lunari v. Italy, no. 21463/93, 11 January 2001, §§ 34-46; Palumbo v. Italy, no.", "15919/89, 30 November 2000, §§ 33-47). 23. 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 case. The Court refers to its detailed reasons in the judgments cited above and notes that in this case the applicants have had to wait for twelve years and five months from the first attempt of the bailiff before recovering the flat. 24.", "Consequently there has been a violation of Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 25. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 26.", "The applicant sought reimbursement of the costs of executing the possession order that she had sustained, which she put at ITL 1,422,035 [EUR 734,42]. 27. The Government argued that the costs of the proceedings on the merits were not related to the alleged violations and that the costs incurred during the enforcement stage were due only for the period that was regarded as being a disproportionate interference with the applicant's right of property. 28. As regards the costs of the enforcement proceedings, the Court considers that they must be reimbursed (see the Scollo v. Italy judgment of 28 September 1995, Series A no.", "315-C, p. 56, § 50). The Court finds the sum requested reasonable and decides to award EUR 734.42 for pecuniary damage. B. Non-pecuniary damage 29. The applicant claimed a sum between ITL 15,000,000 [EUR 7,746.85] and ITL 30,000,000 [EUR 15,493.71] for non-pecuniary damage. 30.", "The Government stressed that the applicant had failed to adduce evidence of non-pecuniary damage sustained as a result of the alleged violation. 31. The Court considers that the applicant must have sustained some non-pecuniary damage, which the mere finding of a violation cannot adequately compensate. Therefore the Court decides, on an equitable basis, to award EUR 10,000 under this head. C. Costs and expenses 32.", "The applicant sought reimbursement of legal fees, which she put at ITL 540,000 [EUR 247.90], and a sum between ITL 1,980,000 [EUR 1,022.58] and ITL 22,060,000 [EUR 11,393.04] for barrister's fees before the Court. 33. According to the Court's case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum (see, for example, Bottazzi v. Italy [GC], no. 34884/97, ECHR 1999-V, § 30). In the present case, on the basis of the information in its possession and the above-mentioned criteria, the Court considers that EUR 2,000 is a reasonable sum and awards the applicant that amount.", "D. Default interest 34. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. 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) 734.42 EUR (seven hundred thirty-four euros forty-two cents) for pecuniary damage; (ii) 10,000 EUR (ten thousand euros) for non-pecuniary damage; (iii) 2,000 EUR (two thousand euros) for legal 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 3 April 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos Rozakis Deputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF ZHECHEV v. BULGARIA (Application no. 57045/00) JUDGMENT STRASBOURG 21 June 2007 FINAL 21/09/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zhechev v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: MrP. Lorenzen, President,MrsS.", "Botoucharova,MrK. Jungwiert,MrV. Butkevych,MrsM. Tsatsa-Nikolovska,MrR. Maruste,MrM.", "Villiger, judges,and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 29 May 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 57045/00) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Petar Zhechev Zhechev, a Bulgarian national who was born in 1928 and lives in Plovdiv. 2. The applicant was represented by Mr by Mr M. Ekimdzhiev, a lawyer practising in Plovdiv.", "The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Kotseva, of the Ministry of Justice. 3. The applicant complained, in particular, about the refusal of the domestic courts to register an association chaired by him. 4. By a decision of 2 May 2006 the Court declared the application partly admissible.", "5. Neither the applicant, nor the Government filed written observations on the merits. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant is the chairman of the association “Civil Society for Bulgarian Interests, National Dignity, Union and Integration – for Bulgaria” („Гражданско общество за български интереси, национално достойнство, единение и обединение – за България“ – “the association”).", "7. The association was founded on 19 December 1996 in Plovdiv. At a meeting on that date the founders adopted its articles and elected its management bodies. The applicant was elected as its chairman. 8.", "The association's articles read, as relevant: “1. [The association] is a Bulgarian patriotic non‑profit organisation. It shall be DEMOCRATIC in form and NATIONAL in content. OBJECT: mass, historically and morally enlightening, societal and political, cultural and educational, scientific and research, sport and technical, publishing, advertising, charitable and all other types of activities and services which are allowed (not prohibited) under the [Persons and Family Act of 1949] in respect of non‑profit associations. 2.", "[The association] is founded with the aims of: uplifting the Bulgarian spirit; protecting the Bulgarian interests and creating a wealthy, prosperous and patriotic nation; elevating, developing and preserving the Bulgarian national dignity; uniting the Bulgarian identity within and outside the boundaries of the promised Bulgarian land, under the flag of historical truth; protecting and restoring the coat of arms of the Bulgarian Kingdom as a coat of arms of Bulgaria. 3. [The association] is for the creation of a people's court to judge those responsible for the gravest economic, spiritual, moral and demographic crisis of the Bulgarian society, Bulgarian banking and Bulgarian statehood since 9 September 1944, in particular the period 1994, 1995, 1996 and the following years. ... 4. [The association] is for a wide discussion ... of the illegal trampling and repealing of our first constitution after our liberation in 1878, the most democratic Constitution of Tarnovo and the imposition of the present [Constitution]... [The association] is for the reinstatement (possibly with amendments) of the unlawfully abolished 'CONSTITUTION OF TARNOVO'... [The association] is for ... changing the form of government of Bulgaria, for the returning of H.M. KING SIMEON II to the motherland and the throne.", "... 8. ... The core of the [association's] activity shall be the spiritual unification of all Bulgarians, contacts with and consolidation of the Bulgarian Diaspora, establishment of sincere relations with ... all Bulgarians outside Bulgaria, and, in the international relations – point one shall be: abolition (opening) of the border between Bulgaria and Macedonia...” 9. On an unspecified later date the association submitted to the Plovdiv Regional Court an application for registration. 10.", "The Plovdiv Regional Court refused the application in a judgment of 6 June 1997. It held: “[According to] clause 2 of [its articles], [the association] intends to protect and restore the coat of arms of the Bulgarian Kingdom as a coat of arms of Bulgaria. According to clause 3 of the articles, the association is for the establishment of a 'people's court to judge those responsible for the gravest economic, spiritual, moral and demographic crisis of the Bulgarian society, Bulgarian banking and Bulgarian statehood since 9 September 1944, in particular the period 1994, 1995, 1996 and the following years'. Clause 4 of the articles provides for a debate on the repealing of the Constitution of Tarnovo and the adoption of the [C]onstitution [of 1991] which is presently in force. The goals which have been enumerated thus far are sufficient to refuse the association's registration.", "They are clearly political in nature and are characteristic of a political party, whose registration is to be carried out under the Political Parties Act [of 1990].” 11. The applicant, acting in his capacity of chairman of the association, appealed to the Supreme Court of Cassation. He argued, inter alia, that the association's aims were not political, but goals which could be pursued by every citizen. 12. Following an amendment to the Code of Civil Procedure of 1952 providing that the judgments of the regional courts were no longer appealable before the Supreme Court of Cassation, but before the newly established courts of appeals, on 1 April 1998 the Supreme Court of Cassation forwarded the applicant's appeal to the newly created Plovdiv Court of Appeals.", "13. On 10 March 1999 the Plovdiv Court of Appeals upheld the lower court's judgment. It held as follows: “The articles of [the association] contain provisions which are contrary to the ... Constitution of the Republic of Bulgaria. For instance, clause 2 of the articles provides for the restoration of the coat of arms of the Bulgarian Kingdom as the country's coat of arms. Clause 4 provides for a change of the form of government from republic to monarchy and for the restoration of the Constitution of Tarnovo [of 1879].", "Clause 8 of the articles – abolition of the border between Bulgaria and [the former Yugoslav Republic of] Macedonia. These goals, as formulated in the above-cited clauses, run counter to Articles 1, 2 § 2 and 164 of the Constitution. Moreover, the association indeed has political goals, whereas by Article 12 § 2 of the Constitution associations may not pursue political goals and carry out political activities that are characteristic solely of political parties.” 14. The applicant appealed on points of law to the Supreme Court of Cassation. He argued that the lower court had incorrectly held that the association's aims were contrary to the Constitution.", "Furthermore, the association did not pursue political aims, because it was not aspiring to accede to power. The courts' refusal to register it was an infringement of its founders' freedom of expression. 15. On 17 May 1999 the Supreme Court of Cassation directed the applicant to specify the grounds on which he sought the quashing of the judgment below. In line with these instructions, the applicant submitted additional observations.", "He reiterated his contention that the association's aims were not political, because it was not seeking to accede to power through elections or otherwise, or exercise it. Its aims were characteristic of the civil society and were to be achieved through other, non‑political means. Furthermore, the association's articles did not provide for the creation of a people's court, it did not in fact object to the new coat of arms of Bulgaria and was not seeking to change the form of government from republic to monarchy. These were erroneous findings of the lower court. Finally, the association was seeking to achieve the spiritual union of all Bulgarians, not the abolition of the border between Bulgaria and the former Yugoslav Republic of Macedonia.", "16. On 11 October 1999 the Supreme Court of Cassation upheld the Plovdiv Court of Appeals' judgment in the following terms: “The [lower court] correctly found that the goals set out in clauses 2, 3 and 4 of the association's articles have a certain political tenor and are characteristic of a political party, whose registration is to be carried out under the Political Parties Act [of 1990]. These goals are contrary to Articles 1, 2 § 2 and 12 § 2 [of the Constitution of 1991].” II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution of 1991 17.", "The relevant provisions of the Constitution of 1991 read as follows: Article 1 § 1 “Bulgaria is a republic with a parliamentary form of government.” Article 2 § 2 “The territorial integrity of the Republic of Bulgaria shall be inviolable.” Article 11 “... 3. Parties shall facilitate the formation of the citizens' political will. The manner of forming and dissolving political parties, as well as the conditions pertaining to their activity, shall be established by law. 4. No political parties shall be formed on ethnic, racial, or religious basis, nor parties which seek to accede to power by force.” Article 12 “1.", "The citizens' associations shall serve to further and safeguard their interests. 2. Associations ... may not pursue political goals or carry out political activities that are characteristic solely of political parties.” Article 44 “1. Citizens may freely associate. 2.", "Organisations whose activity is directed against the sovereignty [or] the territorial integrity of the country and the unity of the nation, towards the incitement of racial, national, ethnical or religious enmity ... as well as organisations which seek to achieve their goals through violence are prohibited. 3. The law shall specify the organisations which are subject to registration, the manner of their dissolution, as well as their relations with the State.” Article 164 “The Coat of Arms of the Republic of Bulgaria shall depict a gold lion rampant on a dark gules shield.” B. The Persons and Family Act of 1949 18. At the material time this Act („Закон за лицата и семейството“), the relevant provisions of which were superseded by new legislation in 2001, regulated the formation, status and dissolution of non‑profit legal entities, i.e.", "associations and foundations. Its pertinent provisions were: Section 134 “An association shall acquire legal personality after its entry in the register [kept by] the Regional Court.” Section 136(1) “An association shall be registered pursuant to an application by [its] management committee [to which shall be enclosed] a resolution for its founding and its articles of association, signed by the founders...” Section 138 “Associations shall be managed in accordance with [their] articles of association, which must contain provisions in respect of [their] name, aims, means...” C. The Political Parties Act of 1990 19. At the material time this Act („Закон за политическите партии“), which was superseded by new legislation in 2001, regulated the formation, registration, functioning and dissolution of political parties. Its relevant provisions read as follows: Section 1 “1. Citizens may freely associate in political parties to influence the formation and expression of the political will of the people through elections or other democratic means.", "... 3. Other organisations and movements may also carry out political activities within the bounds set by the Constitution and the laws.” Section 7 “A political party may be formed [by] not less than fifty enfranchised citizens.” Section 13 “1. A public organisation which has not been registered as a political party may not carry out the activity of a political party. 2. A [public organisation] which has not been registered as a political party may not carry out organised political activities [on the premises of] enterprises, government agencies and organisations.", "3. 'Organised political activities' shall mean the holding of meetings, demonstrations, assemblies and other forms of campaigning in favour of or against a political party or an election candidate. 4. If a public organisation ... clearly carries out the activity of a political party, the regional prosecutor shall propose that it be dissolved or [re‑]register as a political party within one month. 5.", "If the organisation under the foregoing subsection does not cease its political activity or [re‑]register as a political party, it shall be dissolved...” 20. The Act also regulated the manner in which political parties were financed, providing for certain upper limits on the donations that they could receive and prohibiting their receiving anonymous donations and donations from foreign states and organisations (section 17). D. Other relevant statutory provisions 21. Only political parties (and coalitions of such parties), and not associations, may participate in parliamentary, presidential, local and European elections and nominate candidates (section 41(2), (3) and (4) of the Electing of Members of Parliament, Municipal Councillors and Mayors Act of 1991 („Закон за избиране на народни представители, общински съветници и кметове“), section 43(1) of the Electing of Members of Parliament Act of 2001 („Закон за избиране на народни представители“), section 3(1) and (2) of the Electing of a President and a Vice‑President of the Republic Act of 1991 („Закон за избиране на президент и вицепрезидент на републиката“), section 35(1) of the Local Elections Act of 1995 („Закон за местните избори“), and section 48(1) and (3) of the Electing of Members of the European Parliament Act from the Republic of Bulgaria of 2007 („Закон за избиране на членове на Европейския парламент от Република България“)). E. Relevant case‑law of the Constitutional Court 22.", "In a judgment of 21 April 1992 (реш. № 4 от 21 април 1992 г. по к.д. № 1 от 1991 г., обн., ДВ, бр. 35 от 28 април 1992 г.) the Constitutional Court stated, inter alia, that “political activities that are characteristic solely of political parties”, within the meaning of Article 12 § 2 of the Constitution of 1991, were defined by Article 11 § 3 thereof as those which facilitate “the formation of the citizens' political will” through “elections or other democratic means”, as specified by section 1(1) of the Political Parties Act of 1990.", "The court also stated that “what was essential for this type of political activity [was] the direct participation in the process of forming the bodies through which, according to the Constitution, the people exercise[d] its power”. Of course, the activities of a party in connection with upcoming elections embraced the holding of meetings, assemblies and other forms of public campaigning in support of the party and the candidates nominated by it, which were also activities aimed at “forming” the citizens' political will. F. The Constitution of 1879 23. The Constitution of 1879 was the first written constitution of Bulgaria, adopted by a Constituent National Assembly on 16 April 1879, shortly after the creation of Bulgaria as an independent State in 1878. It was repealed in 1947.", "It provided for constitutional monarchy (Articles 4, 5, 9, 10 and 12), with a directly elected parliament and universal suffrage (Article 86), a government accountable to the parliament (Article 153), and separation of powers (Articles 9, 12 and 13). It prohibited torture (Article 75 § 2) and punishment without law and due process (Articles 73 and 75 § 1), enshrined the right to property (Articles 67 and 68), the right to respect for one's home and correspondence (Articles 74 and 77), and the freedoms of the press and of assembly and association (Articles 79, 81, 82 and 83). THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 10 AND 11 OF THE CONVENTION 24. The applicant complained about the refusal of the courts to register the association chaired by him.", "In his initial application he alleged a breach of Article 10 of the Convention, whereas in his observations in reply to those of the Government he additionally relied on its Article 11. 25. Article 10 provides, as relevant: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.", "... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 26. Article 11 provides, as relevant: “1. Everyone has the right to ... freedom of association with others... 2. No restrictions shall be placed on the exercise of [this right] other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.", "...” A. The parties' submissions 27. The applicant submitted that as the association's registration had been denied on account of the contents of its articles, which had in a way constituted a “penalty” for the views expressed therein, the complaint fell to be examined under both Articles 10 and 11 of the Convention. 28. He further argued that the interference with his rights had not been prescribed by law.", "The Plovdiv Regional Court had not relied on a specific provision of the Political Parties Act of 1990 to justify its refusal to register the association, which was only natural in view of the text of section 1(3) of that Act. That court's proposition that only political parties could pursue political goals showed a fundamental lack of understanding of the role of non-governmental organisations in a democratic society. These were frequently founded in order to promote various causes and influence public policies. Their goals were thus often political. The fundamental difference between them and political parties, however, were not these goals, but the means to achieve them.", "Political parties participated in elections and in the government, whereas associations did not. They merely influenced public opinion on various issues, thus indirectly shaping the government's policies. Likewise, the Plovdiv Court of Appeals' holding that the association's aims fell under the proscription of Article 12 § 2 of the Constitution of 1991 was erroneous. The association's aims, as was apparent from the wording of its articles, consisted of various reform ideas, but did not amount to a concrete and coherent political programme and ideology. There was no reason why such ideas could not be backed by various entities in a pluralistic society.", "It was important to underscore that the association's articles contained no language pointing to an intention to participate in elections or in the government, which were indeed goals solely characteristic of political parties. On the other hand, Article 12 § 2 of the Constitution of 1991 was not framed with sufficient precision, as it could be read as prohibiting to associations all types of political goals. Nor did it make clear what was exactly prohibited: political goals or also political activities. The interference had also been arbitrary, as evidenced by the lack of genuine reasons for the Supreme Court of Cassation's judgment, whose holding was packed in just four lines. 29.", "The applicant additionally submitted that the interference had not been necessary in a democratic society. He referred to the principles developed in Court's case‑law on this issue and argued that he had been penalised solely for the ideas expressed in the association's articles. The association had not engaged in any action which could characterise it as propagating violence or undemocratic principles. The idea of a monarchy and the related insignia were not undemocratic or violent, as evidenced in particular by the fact that the name of the coalition which had ruled the country as between 2001 and 2005 had been “National Movement Simeon II”, after the former heir to the throne Simeon Saxe-Coburggotski, who had become prime minister. Even before his starting into office in 2001 Bulgaria's coat of arms had featured a crown, whereas the public debate over the form of government – republic or monarchy – continued.", "While the Constitution indeed needed stability, it was by no means carved into stone. Its amendment could be envisaged for the purpose of bringing it in line with the dominant public views on the form of government, whereas suppressing any ideas in this respect could harm democracy and constituted unfettered majority rule. 30. The Government argued that the applicant's complaint was solely under Article 10 of the Convention. He had not relied on Article 11 thereof in his initial application and this complaint was therefore out of the scope of the case and was not to be examined by the Court.", "31. The Government were further of the view that the interference with the applicant's rights had been prescribed by law, namely the Constitution of 1991, the Persons and Family Act of 1949 and the Political Parties Act of 1990. It had been intended to safeguard a wide range of public interests. All three levels of court had lawfully and justifiably refused to register the association. 32.", "In the Government's submission, the founders of an association were in principle free to determine the contents of its articles, but always subject to the requirements of the law. Under Bulgarian law, associations and trade unions were formed with a view to vindicating non‑political interests. All three levels of court had found that certain clauses in the association's articles, which could not be construed otherwise, had been contrary to the Constitution of 1991 (Articles 1, 2 § 2 and 164) and the laws of Bulgaria, and that its aims had been political, contrary to the principle spelled out in Article 12 § 2 of the Constitution of 1991. They were at odds with Bulgaria's current form of government and thus irreconcilable with the principles of democracy and the commands of the Constitution of 1991. The association's founders could always amend the contentious clauses in its articles and reapply for registration.", "B. The Court's assessment 1. Legal characterisation of the applicant's complaint 33. The Court notes that it is free to attribute to the facts of the case a characterisation in law different from that given by the parties (see, among many other authorities, Foti and Others v. Italy, judgment of 10 December 1982, Series A no. 56, pp.", "15‑16, § 44; Camenzind v. Switzerland, judgment of 16 December 1997, Reports of Judgments and Decisions 1997‑VIII, pp. 2895‑96, § 50; and K.-H.W v. Germany [GC], no. 37201/97, § 107, ECHR 2001‑II (extracts)). It notes that it has consistently stressed in its case‑law that the protection of opinions and the freedom to express them is one of the objectives of the freedom of association (see, among many other authorities, Gorzelik and Others v. Poland [GC], no. 44158/98, § 91, ECHR 2004‑I; Partidul Comunistilor (Nepeceristi) and Ungureanu v. Romania, no.", "46626/99, § 44, 3 February 2005; The United Macedonian Organisation Ilinden and Others v. Bulgaria, no. 59491/00, § 59, 19 January 2006; and Tsonev v. Bulgaria, no. 45963/99, § 49, 13 April 2006). The Court therefore considers that the applicant's complaint should be examined under Article 11 considered in the light of Article 10 (see APEH Üldözötteinek Szövetsége and Others v. Hungary (dec.), no. 32367/96, 31 August 1999; and, mutatis mutandis, Maestri v. Italy [GC], no.", "39748/98, §§ 23 and 24, ECHR 2004‑I; and The Moscow Branch of the Salvation Army v. Russia, no. 72881/01, §§ 71‑75, ECHR 2006‑...). 2. General principles in the Court's case-law on freedom of association 34. The right to form an association is an inherent part of the right set forth in Article 11 of the Convention.", "The ability to form a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association, without which that right would be deprived of any meaning. The way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned. Certainly States have a right to satisfy themselves that an association's aim and activities are in conformity with the rules laid down in legislation, but they must do so in a manner compatible with their obligations under the Convention and subject to review by the Convention institutions (see Sidiropoulos and Others v. Greece, judgment of 10 July 1998, Reports of Judgments and Decisions 1998-IV, pp. 1614‑15, § 40; The United Macedonian Organisation Ilinden and Others, cited above, § 57; The Moscow Branch of the Salvation Army, cited above, § 59; and Ramazanova and Others v. Azerbaijan, no. 44363/02, § 54, 1 February 2007).", "35. 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 the genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs, 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, § 92; and The Moscow Branch of the Salvation Army, § 61, both cited above).", "36. Given that the implementation of the principle of pluralism is impossible without an association being able to express freely its ideas and opinions, the Court has also recognised that the protection of opinions and the freedom of expression within the meaning of Article 10 of the Convention is one of the objectives of the freedom of association (see paragraph 33 above and Gorzelik and Others, cited above, § 91, with further references). Such a link is particularly relevant where – as here – the authorities' stance towards an association was in reaction to its views and statements (see The United Macedonian Organisation Ilinden and Others, cited above, § 59, citing Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 85 in fine, ECHR 2001‑IX). 2.", "Was there an interference? 37. The Court considers that the domestic courts' refusal to register the association chaired by the applicant amounted to an interference with the exercise of his right to freedom of association (see Sidiropoulos and Others, p. 1612, § 31; Gorzelik and Others, § 52; Partidul Comunistilor (Nepeceristi) and Ungureanu, § 27; The United Macedonian Organisation Ilinden and Others, § 53; Tsonev, § 43; The Moscow Branch of the Salvation Army, § 71; and Ramazanova and Others, § 60, all cited above). 38. The Court must therefore examine whether the interference was “prescribed by law”, pursued one or more of the legitimate aims set out in paragraph 2 of Article 11 and was “necessary in a democratic society” for the achievement of those aims.", "3. Was the interference “prescribed by law”? 39. On this point, the Court notes that to refuse registration the domestic courts relied on several articles of the Constitution of 1991 (see paragraphs 10, 13 and 16 above). The applicant argued that these courts had erred in the interpretation and application of these legal provisions.", "However, the Court notes that it is primarily for the national courts to interpret and apply domestic law (see The United Macedonian Organisation Ilinden and Others, § 55; and Tsonev, § 45, both cited above). Firstly, it is prepared to accept that their holding that the aims of the association were contrary to the Constitution of 1991 did not go so far as to become arbitrary. Secondly, it is true that their categorization of these aims as “political” within the meaning of Article 12 § 2 of the Constitution of 1991 and their holding that the association could not pursue them without being a political party may appear questionable in view of the construction of this Article by the Constitutional Court and the tenor of the other relevant provisions of domestic law (see paragraphs 17, 19 and 22 above). However, the Court is mindful that legal opinions on the exact purport of such a wide notion open to largely diverse interpretations – “political” – may differ. It is therefore likewise prepared to accept that these holdings were not as patently unreasonable as to become arbitrary.", "Moreover, while the reasoning of the national courts, and especially that of the Supreme Court of Cassation, was indeed very scant, it was not altogether lacking, as claimed by the applicant. 40. The Court does not furthermore perceive a problem in the alleged vagueness of Article 12 § 2 of the Constitution of 1991. It is not possible to attain absolute rigidity in the framing of laws, and many of them – especially a national constitution – are inevitably couched in terms which, to a greater or lesser extent, are vague. The level of precision required of domestic legislation depends to a considerable degree on the content of the instrument in question and the field it is designed to cover (see Maestri, cited above, § 30 in fine).", "It must also be borne in mind that, however clearly drafted a legal provision may be, its application involves an inevitable element of judicial interpretation, since there will always be a need for clarification of doubtful points and for adaptation to particular circumstances. The mere fact that such a provision is capable of more than one construction does not mean that it fails to meet the requirement of “foreseeability” for the purposes of the Convention. The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain, taking into account the changes in everyday practice (see Gorzelik and Others, cited above, § 65). 41. The Court is thus satisfied that the interference was “prescribed by law”.", "4. Did the interference pursue a legitimate aim? 42. While the Government were not specific on this point, the Court is prepared to accept that the interference aimed at protecting national security, preventing disorder and protecting the rights and freedoms of others. 5.", "Was the interference “necessary in a democratic society”? (a) General principles in the Court's case‑law 43. The exceptions set out in Article 11 are to be construed strictly; only convincing and compelling reasons can justify restrictions on freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts (see, among many other authorities, Sidiropoulos and Others, cited above, pp. 1614‑15, § 40; The United Macedonian Organisation Ilinden and Others, § 61; Tsonev, § 51; and The Moscow Branch of the Salvation Army, § 76, all cited above).", "44. When the Court carries out its scrutiny, its 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 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 were “relevant and sufficient”. In so doing, the Court has to satisfy itself that these 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 Sidiropoulos and Others, pp. 1614-15, § 40; Partidul Comunistilor (Nepeceristi) and Ungureanu, § 49; The United Macedonian Organisation Ilinden and Others, § 62; Tsonev, § 52; and The Moscow Branch of the Salvation Army, § 77, all cited above).", "(b) Application of these principles to the present case 45. The Court must now, in light of the principles set out above, scrutinise the grounds relied on to justify the interference and the significance of that interference. (i) Grounds relied on to justify the interference 46. The Court notes that the domestic courts in their judgments and the Government in their pleadings relied on two groups of arguments justifying the interference (see paragraphs 10, 13, 16 and 32 above). That being so, the Court will examine these groups in turn.", "(α) Alleged incompatibility of the association's aims with the Constitution of 1991 47. Regarding the alleged incompatibility of the association's aims with the Constitution of 1991, the Court considers that even if it may be assumed that what the association was trying to achieve – repealing that Constitution, reinstating the Constitution of 1879, and restoring the ancient coat of arms and the monarchy – was indeed contrary to Articles 1 § 1 and 164 of the Constitution of 1991, that does not mean that the interference was justified. An organisation may campaign for a change in the legal and constitutional structures of the State if the means used to that end are in every respect legal and democratic and if the change proposed is itself compatible with fundamental democratic principles (see Yazar and Others v. Turkey, nos. 22723/93, 22724/93 and 22725/93, § 49, ECHR 2002‑II; Refah Partisi (The Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 98, ECHR 2003‑II; and The United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria, no.", "59489/00, § 59, 20 October 2005). There is no indication that these conditions were not present. Monarchy is not incompatible in itself with the principles of democracy, as shown by the example of a number of member States of the Council of Europe. Nor has it been argued that the Constitution of 1879 was undemocratic. It provided for a parliamentary monarchy, separation of powers, universal suffrage, and enshrined a number of fundamental rights (see paragraph 23 above).", "48. Moreover, it does not seem that the proposed “abolition” or “opening” of the border between the former Yugoslav Republic of Macedonia and Bulgaria, found to be contrary to Article 2 § 2 of the Constitution of 1991, could jeopardise in any conceivable way those countries' territorial integrity or national security. Firstly, it does not appear that it truly amounted to a request for territorial changes. Secondly, even if it was so, the mere fact that an organisation demands such changes cannot automatically justify interferences with its members' freedoms of association and assembly (see The United Macedonian Organisation Ilinden – PIRIN and Others, cited above, § 61, citing Stankov and the United Macedonian Organisation Ilinden, cited above, § 97). 49.", "There is furthermore no indication, and it has not been suggested by the domestic courts or the Government, that the association would use violent or undemocratic means to achieve its aims. 50. Finally, it does not appear that the association had any real chance of bringing about changes which would not meet with the approval of everyone on the political stage (see Yazar and Others, § 58 in fine; and The United Macedonian Organisation Ilinden – PIRIN and Others, § 61, both cited above). It appears that its public influence was negligible (see, as an example to the contrary, Refah Partisi (The Welfare Party) and Others, cited above, §§ 107‑10). 51.", "In sum, the Court considers that the aims of the association were not as such a sufficient ground to refuse its registration. (β) Alleged “political” character of the association's aims 52. The national courts found that some of the aims of the association – the restoration of the Constitution of 1879 and of the monarchy – were “political goals” within the meaning of Article 12 § 2 of the Constitution of 1991 and could hence be pursued solely by a political party. 53. The Court has already expressed certain misgivings in relation to these holdings (see paragraph 39 above).", "However, it is not for it to give an authoritative opinion on the correct interpretation of domestic law, that task being reserved for the national courts. It will therefore proceed on the assumption that this law was construed correctly and will examine whether its application with regard to the applicant led to results compatible with the Convention (see Gorzelik and Others, cited above, § 100). 54. The Court must therefore verify whether it is necessary in a democratic society to prohibit organisations, unless registered as political parties, from pursuing “political goals”. In so doing it must examine whether this ban corresponds to a “pressing social need” and whether it is proportionate to the aims sought to be achieved (ibid., §§ 94‑105).", "55. The first thing which needs to be noted in this connection is the uncertainty surrounding the term “political”, as used in Article 12 § 2 of the Constitution of 1991 and as interpreted by the domestic courts. For instance, in the present case these courts deemed that a campaign for changes in the constitution and the form of government fell within that category. In another recent case these same courts had, more questionably, stated that the “holding of meetings, demonstrations, assemblies and other forms of public campaigning” by an association campaigning for regional autonomy and alleged minority rights also amounted to political goals and activities within the meaning of Article 12 § 2 of the Constitution of 1991. The Court found this holding unwarranted (see The United Macedonian Organisation Ilinden and Others, cited above, §§ 17, 19, 21 and 73).", "The Constitutional Court has, for its part, adopted a different definition of “political”, which was centred on “participation in the process of forming the bodies through which ... the people exercise[d] its power” (see paragraph 22 above). Against this background and bearing in mind that this term is inherently vague and could be subject to largely diverse interpretations, it is quite conceivable that the Bulgarian courts could label any goals which are in some way related to the normal functioning of a democratic society as “political” and accordingly direct the founders of legal entities wishing to pursue such goals to register them as political parties instead of “ordinary” associations. A classification based on this criterion is therefore liable to produce incoherent results and engender considerable uncertainty among those wishing to apply for registration of such entities. 56. If associations in Bulgaria could, when registered as such, participate in elections and accede to power, as was the case in Gorzelik and Others (cited above), it might be necessary to require some of them to register as political parties, so as to make them subject to, for instance, stricter rules concerning party financing, public control and transparency (see paragraph 20 above).", "However, under Bulgarian law, as it stood at the material time and as it stands at present, associations may not participate in national, local or European elections (see paragraph 21 above). There is therefore no “pressing social need” to require every association deemed by the courts to pursue “political” goals to register as a political party, especially in view of the fact that, as noted above, the exact meaning of that term under Bulgarian law appears to be quite vague. That would mean forcing the association to take a legal shape which its founders did not seek. It would also mean subjecting it to a number of additional requirements and restrictions, such as for instance the rule that a political party cannot be formed by less than fifty enfranchised citizens (see paragraph 19 above), which may in some cases prove an insurmountable obstacle for its founders. Moreover, such an approach runs counter to freedom of association, because, in case it is adopted, the liberty of action which will remain available to the founders of an association may become either non‑existent or so reduced as to be of no practical value (see, mutatis mutandis, Young, James and Webster v. the United Kingdom, judgment of 13 August 1981, Series A no.", "44, p. 23, § 56; Sigurður A. Sigurjónsson v. Iceland, judgment of 30 June 1993, Series A no. 264, pp. 15‑16, § 35; and Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 114 in fine, ECHR 1999‑III). 57.", "The Court therefore considers that alleged “political” character of the association's aims was also not a sufficient ground to refuse its registration. (ii) The significance of the interference 58. The Court notes that, in its impact on the applicant, the impugned measure was radical: it went so far as to prevent the association from even commencing any activity (see Gorzelik and Others, § 105; The United Macedonian Organisation Ilinden and Others, § 80; and Tsonev, § 63, all cited above). (iii) The Court's conclusion 59. In the light of the foregoing, the Court concludes that the reasons invoked by the respondent State to refuse the registration of the association chaired by the applicant were not relevant and sufficient.", "That being so, the interference with the applicant's freedom of association cannot be deemed necessary in a democratic society. It follows that there has been a violation of Article 11 of the Convention. II. 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 claimed 5,000 euros (EUR) for the non‑pecuniary damage resulting from the refusal of the domestic courts to register the association chaired by him. 62. The Government did not express an opinion on the matter. 63.", "The Court accepts that the applicant sustained non-pecuniary damage from the domestic courts' refusal to register the association chaired by him. It holds, however, that the finding of a violation of Article 11 constitutes sufficient compensation for it (see Partidul Comunistilor (Nepeceristi) and Ungureanu, § 70; and Tsonev, § 70, both cited above). B. Costs and expenses 64. The applicant sought the reimbursement of EUR 1,802.50 incurred in legal fees and EUR 35 for expenses for the proceedings before the Court.", "He submitted a fees agreement between him and his lawyer and a time‑sheet, and requested that any amount awarded by the Court under this head be paid into the bank account of his lawyer. 65. The Government did not express an opinion on the matter. 66. The Court accepts that the applicant incurred costs and expenses for the proceedings.", "His claim is supported with relevant materials. The Court notes that part of the application was declared inadmissible (see paragraph 4 above), but, taking into account the complexity of the complaint which was examined on the merits, does not consider that this warrants a reduction in the award. Having regard to the elements in its possession and the above considerations, and deducting EUR 715 received in legal aid from the Council of Europe, the Court awards the applicant the full amount of his claim (EUR 1,087.50), plus any tax that may be chargeable, to be paid into the bank account of his representative, Mr M. Ekimdzhiev. C. Default interest 67. 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 11 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 in accordance with Article 44 § 2 of the Convention, EUR 1,087.50 (one thousand eighty-seven euros and fifty cents) in respect of costs and expenses, to be converted into Bulgarian levs at the rate applicable at the date of settlement, plus any tax that may be chargeable, to be paid into the bank account of the applicant's representative, Mr M. Ekimdzhiev; (b) that from the expiry of the above‑mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 3. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 21 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Claudia WesterdiekPeer LorenzenRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following opinions are annexed to this judgment: (a) Concurring opinion of Ms Tsatsa-Nikolovska; (b) Concurring opinion of Mr Maruste. P.L.C.W. CONCURRING OPINION OF JUDGE TSATSA‑NIKOLOVSKA I was able to vote that there had been a violation in this case as the operative part of the judgment is a very general one, but I would like to explain my position. In paragraphs 48, 49 and 50 of the judgment, the Court assessed the association's aim concerning “abolition” of the border between Bulgaria and Macedonia, which was indicated in clause 8 of its articles of association. The applicant, when directed by the Supreme Court of Cassation to state the grounds for appeal, said that the association did not seek the abolition of the border.", "The Supreme Court of Cassation delivered judgment after holding a hearing and upheld the Plovdiv Court of Appeals' judgment only as regards clauses 2, 3 and 4 of the association's articles, without making any assessment on clause 8. As the applicant expressed in the clarification he gave to the Supreme Court of Cassation, the association had abandoned the aim in clause 8 – the abolition of the border and since the final interference with the applicant's rights came with the Supreme Court of Cassation's judgment, in which abolition was not the subject of assessment, I consider that there is no place for the Court to consider that aim as well, or to assess whether or not there were sufficient grounds to refuse registration. The aim indicated in clause 8 – abolition of the border, as explained by the applicant, simply does not exist any more. CONCURRING OPINION OF JUDGE MARUSTE While being in agreement with the majority in finding a violation of Article 11 of the Convention, I would like to add some more considerations in this respect. My first and main point is that the problem of registration or non‑registration of associations stems at least in part from the insufficient and somewhat contradictory provisions governing associations other than political parties in the Bulgarian legal system.", "Article 12 § 2 of the Constitution stipulates that “associations ... may not pursue political goals or carry out political activities that are characteristic solely of political parties”. A simple reading of that provision would imply that all other political goals are accepted. This is exactly what one would expect in a normal democratic order. The question is: on what basis, by whom and in what manner can this be decided? Article 44 § 3 of the Constitution stipulates that “the law shall specify the organisations which are subject to registration, the manner of their dissolution, as well as their relations with the State”.", "Fine. But if we look at the lex specialis in that respect – the Persons and Family Act of 1949 –, we see that it does not cover all these aspects. I would specifically point to the lack of clearly listed legal grounds for non‑registration or dissolution and of a procedure for challenging and making decisions in disputes of this kind. Maybe this is the reason why the courts have had to rely only on the general provisions of the Constitution. This in itself is acceptable, but leaves the courts to decide on rather abstract and even speculative grounds and allows them rather broad powers of discretion.", "My second point is that freedom of association is closely linked to freedom of speech and opinion. Very often an association is created to express certain views and opinions. Therefore, the statutes of the association inevitably reflect certain views and goals which might also be regarded as political; all this depends very much on interpretation. Because of the close link between freedom of expression and freedom of association, the most appropriate and best way of assessing the nature of the association and its conformity with the Constitution and the Convention is to conduct an assessment based not just on a formal reading of the association's goals as set down in the statutes, but also on the means the association intends to employ and, especially, its actions and activities in real life. Hence, an assessment of the legality of an association in abstracto, such as has been conducted here, confers an undue degree of discretion on the authorities." ]

[ "FOURTH SECTION CASE OF VRIONI AND OTHERS v. ALBANIA AND ITALY (Applications nos. 35720/04 and 42832/06) JUDGMENT (merits) STRASBOURG (29 September 2009) FINAL 29/12/2009 This judgment may be subject to editorial revision. In the case of Vrioni and Others v. Albania and Italy, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,David Thór Björgvinsson,Ledi Bianku,Mihai Poalelungi, judges, and Lawrence Early, Section Registrar, Having deliberated in private on 8 September 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications against the Republics of Albania and Italy lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) as follows: application no. 35720/04, Vrioni, on 8 April 1999; application no.", "42832/06, Vrioni and Others, on 15 August 2006. 2. The applicants were represented by Ms L. Sula and Ms. E. Qirjako, lawyers practising in Tirana. The Albanian Government (“the Government”) were represented by their then Agent, Ms S. Meneri. 3.", "The applicants alleged that there had been violations of Article 6 § 1 of the Convention, Article 1 of Protocol No. 1 to the Convention and Article 13 taken in conjunction with Article 1 of Protocol No. 1. 4. On 9 February 2006 and 8 January 2007 the President of the Fourth Section of the Court decided to give notice of application no.", "35720/04 and application no. 42832/06 respectively to the Government of Albania. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the applications at the same time as their admissibility. 5. The applicants and the Government each filed further written observations (Rule 59 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. Mr Shahin Vrioni, the applicant in application no. 35720/04, is an Albanian national who was born in 1925 and lives in Albania. Mr Gherardo La Francesca, Mr Dario La Francesca and Mr Oliver Vrioni, the applicants in application no.", "42832/06, are Albanian and Italian nationals who were born in 1946, 1950 and 1974 respectively and live in Italy. Mr Shahin Vrioni represented himself and the other applicants in the domestic courts’ proceedings. A. Background to the case 7. In 1950 a plot of land measuring 1,637 sq.", "m belonging to the applicants’ ancestor, was confiscated by the then Albanian authorities without compensation. 8. On 1 July 1991 the Italian Embassy in Albania purchased two buildings in Tirana bordering on the property confiscated from the applicants’ grandfather. The transaction was concluded through an inter-State agreement validated by means of note verbale exchanges between the two governments. The note verbale did not contain any information as to the transfer of title to the surrounding or adjacent plots of land.", "The relevant property titles were not entered in the Tirana Property Register. 9. The Albanian Government subsequently used the income from the transaction to purchase the premises of the Albanian Embassy in Rome. 10. Under the Property Restitution and Compensation Act (“the Property Act”), the applicants lodged two applications in 1996 and 1999, respectively, with the Tirana Property Restitution and Compensation Commission (Komisioni i Kthimit dhe Kompensimit të Pronave – “the Commission”), claiming title to their deceased grandfather’s property.", "11. On 18 March 1996 and 14 December 1999 the Commission recognised the applicants’ title to two plots of land measuring 1,100 sq. m. and 537 sq. m. respectively. The Commission held that it was impossible for the applicants to have the whole original plot of land allocated to them.", "It decided to restore to the applicants a vacant plot of land (një truall i lirë) measuring 1,456 sq. m., which was situated within the occupied grounds of the Italian Embassy, and ordered the authorities to pay compensation in respect of a plot of land measuring 181 sq. m. Moreover, it ordered that the applicants’ title to the property be entered in the Tirana Property Register. 12. The applicants were also issued with two certificates of property registration by the Registry Office: registration no.", "4373, dated 1 June 1996, and registration no. 420, dated 28 December 1999. 13. On an unspecified date in 1996, having regard to the fact that, according to the note verbale of 1991, the Italian Embassy had title to one of the buildings only, but not to the occupied plot of land, the applicants requested the Embassy to return their property which it was occupying without title. 14.", "On 27 November 1996 the Albanian Ministry of Foreign Affairs, having regard to the applicants’ property claims to the plot of land adjacent to the Embassy’s buildings, offered mediation to the Italian Embassy with a view to entering into civil agreements with the applicants. 15. On 16 August 1997 the Italian Embassy in Albania, in reply to the applicants’ request for recovery of their property, informed them that their property claims to the plot of land situated within its premises had to be settled with the Albanian authorities. 16. On 1 October 1997, following a request by the applicants, the Italian Ministry of Foreign Affairs informed them that by virtue of the note verbale exchanges of 1991 the Italian Embassy in Albania had full ownership of the buildings and adjacent land.", "Moreover, it referred the applicants to the Albanian authorities as competent to determine any claims for compensation that the applicants might submit. B. Judicial proceedings for recovery of property and compensation 17. On 2 May 1997, following a civil action brought by the applicants against the Ministry of Foreign Affairs, the Tirana District Court (“the District Court”) found that the Italian Embassy was occupying the applicants’ property without title and, being unable to take action against a diplomatic mission, ordered the Ministry of Foreign Affairs to facilitate the applicants’ recovery of their property and also to pay them compensation amounting to 21,607.50 United States dollars. 18.", "On 27 January 1998 the Tirana Court of Appeal, (“the Court of Appeal”), quashed the District Court’s judgment and remitted the case to a different bench of the District Court for fresh consideration. According to the Court of Appeal, the Ministry of Foreign Affairs, which had represented the Albanian State in the agreement relating to the transfer of the property to the Italian Embassy, could not be the defendant party in the proceedings in so far as the Ministry of Finance was the competent body to represent State interests in domestic proceedings. The applicants appealed against the Court of Appeal’s judgment to the then Court of Cassation. 19. On 17 June 1998 the Court of Cassation quashed the Court of Appeal’s judgment and remitted the case to that court for a fresh examination.", "20. On 29 January 1999 the Court of Appeal, re-examining the case, found that the Ministry of Foreign Affairs could not be held liable in this connection and designated the Italian Embassy, which was occupying the applicants’ property without title, as the liable entity in relation to the property. It quashed the District Court’s judgment of 2 May 1997 and remitted the case to the same court for fresh consideration. 21. On 20 June 2000 the District Court dismissed the applicants’ grounds of appeal, finding that the Commission’s decisions of 18 March 1996 and 14 December 1999 had been unlawful, as they were in breach of section 4 of the Property Act.", "22. The District Court found that the applicants’ disputed plot of land, even though there were no buildings on it, constituted an integral part of the Italian Embassy’s premises. Thus, the District Court declared null and void the Commission’s decisions and held that the applicants were entitled to receive compensation for the original properties in one of the forms laid down in section 16 of the Property Act. 23. On 31 October 2001 the Court of Appeal quashed the District Court’s judgment and remitted the case to a different bench of the Court of Appeal, in accordance with Article 467/a of the Code of Civil Procedure, as it had noted irregularities in the proceedings in the lower courts.", "24. On 29 October 2002 the Court of Appeal, having duly given notice of the hearings to the opposing parties, namely the Ministry of Foreign Affairs, the Tirana Commission, the Ministry of Finance and the Italian Embassy in Albania, declared null and void the Commission’s decisions of 18 March 1996 and 14 December 1999. It held that all applicants were entitled to receive compensation in lieu of the original property in one of the forms provided for by law in respect of the plot of land measuring 1,456 sq. m. Consequently, all applicants were to receive compensation in accordance with the Property Act for the totality of the 1,637 sq. m. of land.", "Moreover, the Court of Appeal found that, in so far as the property was an integral part of the Italian Embassy’s premises, it could not be considered a vacant plot of land within the meaning of section 4 of the Property Act (see paragraph 31 below). 25. On 15 June 2004 the Supreme Court, which had replaced the Court of Cassation after the Albanian Constitution’s entry into force on 28 November 1998, following an appeal by the applicants, upheld the reasoning of the Court of Appeal’s judgment of 29 October 2002. 26. On an unspecified date in 2004 the applicants lodged an appeal with the Constitutional Court under Article 131 (f) of the Constitution, arguing that the Tirana Court of Appeal’s judgment of 29 October 2002 and the Supreme Court’s judgment of 15 June 2004 were unconstitutional.", "27. The appeal was declared inadmissible by the Constitutional Court on 13 January 2005 by a bench of three judges. It found that the applicants’ constitutional complaint concerned the assessment of evidence, which fell within the jurisdiction of the lower courts, but was outside its own jurisdiction. II. RELEVANT INTERNATIONAL AND DOMESTIC LAW A.", "Relevant international law 28. The relevant international provisions have been set out in Treska v. Albania and Italy (dec.), no. 26937/04, ECHR 2006‑... (extracts) and Manoilescu and Dobrescu v. Romania and Russia (dec.), no. 60861/00, §§ 38-39, ECHR 2005‑VI. B.", "Relevant domestic law 1. The Constitution 29. The relevant provisions of the Albanian Constitution read as follows: Article 41 “1. The right of private property is protected by law. 2.", "Property may be acquired by gift, inheritance, purchase, or any other ordinary means provided for by the Civil Code. 3. The law may provide for expropriations or limitations in the exercise of a property right only in the public interest. 4. Expropriations, or limitations of a property right that are equivalent to expropriation, shall be permitted only in return for fair compensation.", "5. A complaint may be lodged with a court to resolve disputes regarding the amount or extent of the compensation due.” Article 42 § 2 “In the protection of his constitutional and legal rights, freedoms and interests, and in defending a criminal charge, everyone is entitled to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.” Article 142 § 3 “State bodies shall comply with judicial decisions.” Article 131 “The Constitutional Court shall decide on: ... (f) final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.” Article 181 “1. Within two to three years from the date when this Constitution enters into force, the Assembly, guided by the provisions of Article 41, shall enact laws for the just resolution of different issues related to expropriations and confiscations carried out before the approval of this Constitution. 2. Laws and other normative acts that relate to expropriations and confiscations carried out before the entry into force of this Constitution shall be applied provided they are compatible with the latter.” 2.", "Property Restitution and Compensation Act (Law no. 7698 of 15 April 1993, as amended by Laws nos. 7736 and 7765 of 1993, Laws nos. 7808 and 7879 of 1994, Law no. 7916 of 1995, Law no.", "8084 of 1996 and abrogated by Law no. 9235 dated 29 July 2004 and recently amended by Law. no. 9388 of 2005 and Law no. 9583 of 2006) 30.", "The relevant sections of the Property (Restitution and Compensation) Act have been described in Beshiri and Others v. Albania (no. 7352/03, §§ 21-29, 22 August 2006), Driza v. Albania (no. 33771/02, §§ 36-43, ECHR 2007‑...) and Ramadhi and Others v. Albania (no. 38222/02, §§ 23-30, 13 November 2007). 31.", "Section 4 of the 1993 Property Act, as amended and as stood in force at the material time, provided that vacant plots of land were to be allocated and restored to the former landlords or their heirs, save as provided otherwise. 3. Code of Civil Procedure 32. The relevant provision of the Code of Civil Procedure reads as follows: Article 39 “Members of consular and diplomatic representations residing in the Republic of Albania are not subject to the jurisdiction of Albanian courts, except: (a) where they accept voluntarily; (b) in the cases and conditions envisaged in the Vienna Convention on Diplomatic Relations.” THE LAW I. JOINDER OF THE APPLICATIONS 33. Given that the two applications concern the same facts, complaints and domestic courts’ proceedings, the Court decides that they shall be joined pursuant to Rule 42 § 1 of the Rules of Court.", "II. ADMISSIBILITY A. Compatibility ratione personae 34. The applicants complained against Italy about a violation under Article 1 of Protocol No. 1 to the Convention in so far as the possession sine titulo by the Italian Embassy in Albania of the property allocated to them by virtue of the Property Act amounted to an interference with the peaceful enjoyment of their possessions.", "35. The Court must determine whether the facts complained of by the applicants are such as to engage the responsibility of Italy under the Convention. As it has consistently held, the responsibility of a State is engaged if a violation of one of the rights and freedoms defined in the Convention is the result of a breach of Article 1, by which “[t]he High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention” (see Costello-Roberts v. the United Kingdom, judgment of 25 March 1993, Series A no. 247-C, p. 57, §§ 25-26). 36.", "The Court must therefore determine whether the applicants were “within the jurisdiction” of Italy within the meaning of that provision. In other words, it must be established whether, despite the fact that the proceedings in issue did not take place on that State’s soil, Italy may still be held responsible for their outcome and for the alleged impossibility of enforcing the Albanian authorities’ decisions in the applicants’ favour. 37. The Court refers to its case-law on the exercise of territorial and extraterritorial jurisdiction by a Contracting State (see, for example, Drozd and Janousek v. France and Spain, judgment of 26 June 1992, Series A no. 240; Banković and Others v. Belgium and 16 Other Contracting States (dec.) [GC], no.", "52207/99, ECHR 2001‑XII; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004‑VII; McElhinney v. Ireland and the United Kingdom (dec.) [GC], no. 31253/96, 9 February 2000). 38. The proceedings in issue were conducted exclusively on Albanian territory.", "The Albanian courts had sovereign authority in the applicants’ case and the Italian authorities had no direct or indirect influence over decisions and judgments delivered in Albania. The obligation to comply with the Supreme Court’s judgment of 15 June 2004, which ultimately decided on the award of compensation in respect of the applicants, lay with the Albanian authorities. 39. It is clear from the circumstances of the present case that the applicants were not within the jurisdiction of Italy. That State did not exercise jurisdiction over the applicants.", "There is no justifying factor to bring the applications within the jurisdiction of Italy for the purposes of Article 1 of the Convention (see Treska, cited above; Manoilescu and Dobrescu, cited above, §§ 104–105). 40. It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. B. Compliance with the six-month rule 41.", "On 6 June 2006 the applicant in respect of application no. 35720/04 submitted a new complaint to the Court about the lack of reasoning in the Constitutional Court’s decision of 13 January 2005. 42. The Court reiterates that, as regards complaints not included in the initial application, the running of the six-month time-limit is not interrupted until the date when the complaint is first submitted to a Convention organ (see Allan v. the United Kingdom (dec.), no. 48539/99, decision of 28 August 2001).", "43. It follows that the complaint about lack of reasons was introduced more than six months after the date of the Constitutional Court’s decision of 13 January 2005 and should therefore be rejected pursuant to Article 35 §§ 1 and 4. C. Other issues 44. The applicants complained of a denial of access to a court on account of their inability to take proceedings against a diplomatic mission, namely the Embassy of the Republic of Italy in Albania. 45.", "Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court (see Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, § 36). The right of access to a court is not, however, absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State (see Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, § 57). 46.", "The Court reiterates that generally recognised rules of international law on State immunity cannot be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6 § 1 of the Convention. As the right of access to a court is an inherent part of the fair-trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity (see McElhinney v. Ireland [GC], no. 31253/96, § 37, ECHR 2001‑XI; Manoilescu and Dobrescu, (dec.), cited above, § 80, ECHR 2005‑VI; and, Treska, cited above). 47. There is nothing in the present case to warrant departing from those conclusions.", "In these circumstances, the facts complained of do not disclose an unjustified restriction on the applicants’ right of access to a court. The complaint is therefore inadmissible as being manifestly ill-founded and must be rejected under Article 35 §§ 3 and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 48. The applicants alleged that there had been several violations under Article 6 § 1 of the Convention, mainly on account of the excessive length of the domestic proceedings and the failure to enforce the Supreme Court’s judgment of 15 June 2004.", "Article 6 of the Convention, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 1. Admissibility 49. The applicants complained about the authorities’ failure to enforce in practice the Supreme Court’s judgment of 15 June 2004 that ordered the payment of compensation to them in respect of their ancestor’s plot of land. 50. The Government maintained that the applicants had not exhausted the new domestic remedies introduced by the Property Act 2004 with respect to this complaint.", "51. The Court reiterates the principle enunciated in Driza (cited above, § 57), and considers that the question of the effectiveness of the remedies offered by the Property Acts is central to the merits of the applicants’ complaint under Article 13 in conjunction with Article 1 of Protocol No. 1. It holds that both questions should be examined together on the merits. Moreover, this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It finds that no other grounds for declaring this complaint inadmissible have been established and therefore declares it admissible. 2. Merits (a) The parties’ submissions 52. The Government repeated that the authorities could not be held responsible for the non-enforcement of the Supreme Court’s judgment of 15 June 2004 since its execution depended upon the applicants’ taking the appropriate steps, namely bringing an action seeking its enforcement. The Government referred to their earlier arguments on exhaustion of domestic remedies.", "53. The applicants contested the Government’s argument. (b) The Court’s assessment 54. The right of access to a tribunal guaranteed by Article 6 § 1 of the Convention would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see, inter alia, Beshiri and Others, cited above, § 60).", "55. The Convention cannot be interpreted as imposing any general obligation on the Contracting States to restore property which was transferred to them before they had ratified the Convention (see Kopecký v. Slovakia [GC], no. 44912/98, § 35, and von Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01, 71917/01 and 10260/02, § 74, ECHR 2005-V). Nor is there any general obligation under the Convention to establish legal procedures in which restitution of property may be sought.", "However, once a Contracting State decides to establish legal procedures of such a kind, it cannot be exempted from the obligation to honour all relevant guarantees provided for by the Convention, in particular in Article 6 § 1. 56. The Court recalls its finding in paragraph 38 above. The Supreme Court’s judgment of 15 June 2004, which upheld the Court of Appeal’s judgment of 29 October 2002, can be interpreted as ordering the authorities to offer the applicants a form of compensation which would indemnify them in lieu of the restitution of their original property. 57.", "The Court observes that following the delivery of the judgment in 2004 the authorities failed to offer the applicants the option of obtaining appropriate compensation (contrast Užkurėlienė and Others v. Lithuania, no. 62988/00, § 36, 7 April 2005). Thus, the applicants did not even have the possibility of considering an offer of compensation in lieu of the restitution of the property that had previously been allocated to them (see Driza, cited above, § 90.) 58. Moreover, the Government have not provided any explanation as to why the judgment of 15 June 2004 has still not been enforced more than five years after it was delivered.", "It does not appear that the administrative authorities have taken any measures to execute the judgment. 59. Consequently, the Court considers that the problem persists and remains unresolved, notwithstanding the indications it gave in Beshiri and Others that “in the execution of judgments in which the State was ordered to make a payment, a person who had obtained a judgment debt against the State should not be required to bring enforcement proceedings in order to recover the sum due” (see § 108). 60. The foregoing considerations are sufficient to enable the Court to conclude that, by failing to take the necessary measures to comply with the judgment of 15 June 2004, the Albanian authorities deprived the provisions of Article 6 § 1 of the Convention of all useful effect.", "61. There has accordingly been a violation of Article 6 § 1 of the Convention in this respect. 1. Admissibility 62. The Court considers that the complaint under this head is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It moreover finds that no other grounds for declaring this part of the complaint inadmissible have been established and therefore declares it admissible. 2. Merits (a) The parties’ submissions 63. The applicants complained about the unreasonable length of the domestic proceedings, which had lasted almost eight years for nine levels of jurisdiction. They attributed this delay to the domestic authorities, which had drawn different conclusions at various levels of jurisdiction, and to the position maintained by the Albanian Ministry of Foreign Affairs concerning his right of property.", "64. The Government submitted that the proceedings had been complex owing to the changes in and assessment of property rights in different periods and because of the fact that a diplomatic mission accredited in Albania was involved. They added that the complexity of the facts combined with the lack of case-law had resulted in frequent remittals of the case for fresh examination. They contended that the length of the proceedings did not directly influence the applicants’ right as they had never effectively possessed their property. (b) The Court’s assessment 65.", "The Court notes that all the proceedings at issue concerned the question of the applicants’ property rights. The period to be taken into account should cover the entire length of proceedings, which started on an unspecified date in 1997 and ended with the Constitutional Court’s decision of 13 January 2005. Moreover, the Supreme Court’s judgment of 15 June 2004 has not yet been enforced. To date, the proceedings have lasted for more than eleven years. 66.", "However, the Court considers that in the light of its finding of a violation under Article 6 § 1 of the Convention about the non-enforcement of the Supreme Court’s judgment of 15 June 2004, it does not have to rule separately on the merits of the length of proceedings complaint (see Lizanets v. Ukraine, no. 6725/03, § 48, 31 May 2007). IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 67.", "The applicants complained that the failure to grant them compensation, by virtue of the final judgment of 15 June 2004, had entailed a breach of 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.” 68. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It moreover finds that no other grounds for declaring it inadmissible have been established and therefore declares it admissible. 69. The Government submitted that the applicants’ right to property had not been breached since the Supreme Court’s judgment of 15 June 2004 had upheld their right to compensation in one of the forms under the law. They contended that the applicants had not yet complied with the rules set forth in the Property Act in order to establish the form of that compensation. They added that the compensation process had been hampered by its prolonged duration, which had also been the result of objective circumstances such as lack of funds and the general interests of the community.", "70. The applicants maintained that there had been a breach of their right to property. 71. The Court reiterates the principles established in its case-law under Article 1 of Protocol No. 1 (see, among other authorities, Kopecký v. Slovakia [GC], no.", "44912/98, § 35; von Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01, 71917/01 and 10260/02, § 74, ECHR 2005-V; and Beshiri and Others, cited above). 72. “Possessions” can be “existing possessions” or assets, including, in certain well-defined situations, claims. For a claim to be capable of being considered an “asset” falling within the scope of Article 1 of Protocol No.", "1, the claimant must establish that it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it, or where there is a final court judgment in the claimant’s favour. Where that has been done, the concept of “legitimate expectation” can come into play (see Draon v. France [GC], no. 1513/03, § 68, 6 October 2005, ECHR 2005-IX, and Burdov v. Russia, no. 59498/00, § 40, ECHR 2002-III). 73.", "The Court observes that the applicants were recognised as having a right to compensation by virtue of the Supreme Court’s final judgment of 15 June 2004 (see paragraph 25 above). Therefore, the applicants had enforceable claims deriving from the judgment in question. 74. It notes that this complaint is linked to the one examined under Article 6 § 1 in relation to the failure to enforce a final decision (see paragraphs 54–61 above). 75.", "The Court considers that the failure of the authorities to enforce the judgment of 15 June 2004 for such a prolonged time amounts to an interference with their right to the peaceful enjoyment of their possessions within the meaning of Article 1 of Protocol No. 1 to the Convention. 76. As to the justification advanced by the Government for this interference, the Court reiterates that a lack of funds cannot justify a failure to enforce payment of a final and binding judgment debt owed by the State (see Driza, cited above, § 108; Pasteli and Others v. Moldova, nos. 9898/02, 9863/02, 6255/02 and 10425/02, § 30, 15 June 2004; Voytenko v. Ukraine, no.", "18966/02, § 55, 29 June 2004; and Shmalko v. Ukraine, no. 60750/00, § 57, 20 July 2004). 77. Accordingly, there has been a violation of Article 1 of Protocol No. 1 to the Convention in this regard.", "V. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 78. The applicants complained of the lack of effective remedies by which to obtain a final determination of their property rights. They relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 79. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It moreover finds that no other grounds for declaring it inadmissible have been established and therefore declares it admissible. 80. The applicants submitted that there was no effective remedy by which to claim compensation in lieu of restitution of property. They argued that owing to the Government’s observations about the lack of funds and unavailability of vacant plots of land, they could not obtain any compensation pursuant to the Supreme Court’s judgment of 15 June 2004. 81.", "The Government raised the same objections concerning the alleged failure to exhaust domestic remedies (see paragraph 52 above). They pointed to the remedies introduced by the Property Act 2004, which were to be considered effective for the purposes of Article 13. 82. The Court notes that the applicants’ complaint under Article 1 of Protocol 1 to the Convention was indisputably “arguable”. The applicant was therefore entitled to an effective domestic remedy within the meaning of Article 13 of the Convention.", "83. Moreover, the “authority” referred to in Article 13 may not necessarily in all instances be a judicial authority in the strict sense. Nevertheless, the powers and procedural guarantees an authority possesses are relevant in determining whether the remedy before it is effective (see Klass and Others v. Germany, judgment of 6 September 1978, Series A no. 28, p. 30, § 67). The remedy required by Article 13 must be “effective” in practice as well as in law, in particular, in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2286, § 95 in fine).", "84. The Court refers to its findings in Driza, cited above, §§ 117-120. The Government did not provide any information as to whether there had been any particular measures adopted or actions taken since the delivery of the Driza judgment. There is nothing in the present case to warrant a departure from those findings. It follows that there has been a violation of Article 13 of the Convention in conjunction with Article 1 of Protocol No.", "1. 85. On that account, the Government’s preliminary objection based on non-exhaustion of domestic remedies must be dismissed. VI. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION A.", "Article 46 of the Convention 86. 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.” 87.", "The Court reiterates its findings in Driza (cited above, §§ 122 – 126) in respect of Article 46 of the Convention. It urges the respondent State to adopt general measures as indicated in paragraph 126 of the said judgment. B. 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.” 89.", "The applicants claimed a total of 2,719,500 euros (EUR) in respect of pecuniary damage and of EUR 200,000 in respect of non-pecuniary damage. As regards the claim in respect of pecuniary damage, the applicants submitted an expert valuation of the property, which assessed its value at EUR 2,184,000, and estimated the loss of profits between 1996 and 2006 at EUR 535,500. 90. The Government did not submit any comments. 91.", "The Court considers that the question of the application of Article 41 is not ready for decision. The question must accordingly be reserved and the further procedure fixed with due regard to the possibility of agreement being reached between the Albanian Government and the applicants. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join the applications; 2. Declares the applicants’ complaints under Article 6 § 1 of the Convention concerning the denial of access to a court and the lack of reasoning in the Constitutional Court’s decision of 13 January 2005 inadmissible; 3.", "Declares the applicants’ complaint under Article 1 of Protocol No. 1 to the Convention in so far as it was directed against Italy incompatible ratione personae; 4. Joins to the merits the Government’s preliminary objection regarding the applicants’ failure to exhaust domestic remedies and declares admissible the remainder of the applications; 5. Holds that there has been a violation of Article 6 § 1 of the Convention as regards the non-enforcement of the Supreme Court’s judgment of 15 June 2004; 6. Holds that it does not consider it necessary to examine the complaint about the length of the proceedings under Article 6 § 1 of the Convention; 7.", "Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 8. Holds that there has been a violation of Article 13 in conjunction with Article 1 of Protocol No. 1 to the Convention and dismisses in consequence the Government’s preliminary objection; 9. Holds that the question of the application of Article 41 is not ready for decision; accordingly, (a) reserves the said question in whole; (b) invites the Government and the applicants to submit, within the forthcoming three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach; (c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be.", "Done in English, and notified in writing on 29 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident" ]

[ "FOURTH SECTION CASE OF TERESZCZENKO v. POLAND (Application no. 37326/04) JUDGMENT STRASBOURG 3 April 2007 FINAL 03/07/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Tereszczenko v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG.", "Bonello,MrK. Traja,MrS. Pavlovschi,MrL. Garlicki,MsL. Mijović, judges,and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 13 March 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 37326/04) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 15 September 2004 by Mr W. Tereszczenko (“the applicant”). 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.", "3. On 9 September 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1956 and lives in Warszawa. 5. On 19 November 2002 the applicant was placed in police custody on suspicion of drug trafficking. On 20 November 2002 the Częstochowa District Court ordered that the applicant be detained on remand. 6.", "The court based its detention order on a reasonable suspicion that the applicant had committed the offence of drug trafficking and the severity of the likely penalty, which gave rise to a fear that the applicant would obstruct the proceedings. Moreover, the court took into account that other suspects had remained at large, which would pose a risk of collusion if the applicant were released. 7. Subsequent decisions on the extension of the applicant's pre-trial detention were taken on 11 February 2003, 8 May 2003, 3 October 2003, 31 December 2003, 29 March 2004 and 29 June 2004. 8.", "The courts referred to the complexity of the case, the need to conduct further investigations, the probability of collusion between the applicant and other suspects and exertion of unlawful pressure on witnesses by the applicant. They stressed that the fact that the applicant had not pleaded guilty posed an additional risk of his influencing other persons involved in the proceedings. In their opinion no other preventive measure could ensure the proper conduct of the proceedings. 9. The applicant appealed on several occasions against the decisions extending his detention and requested release from detention or the imposition of a more lenient preventive measure, drawing the court's attention to his poor state of health.", "10. On 27 November 2002 a telephone company was requested to provide an itemised bill of the applicant's telephone calls to other suspects. 11. On 18 December 2002 and 29 January 2003 confrontations of witnesses and suspects took place. 12.", "On 19 December 2002 the prosecutor ordered an expert opinion of a heart specialist with a view to establishing the applicant's state of health. No grounds for the applicant's release from detention were found. 13. On 19 March 2003 an expert opinion was ordered with a view to determining whether the substance found in the course of police operations had been an illegal drug. The opinion was submitted on 15 May 2003.", "14. On 30 April 2003 and 8 June 2003 expert opinions concerning a weapon which had been found by the police were submitted. 15. On 5 May 2003 another expert opinion of a heart specialist was ordered. Again, the applicant was found to be fit for detention.", "16. On 25 June 2003 a bill of indictment against the applicant and ten other co-accused was lodged with the court. The applicant did not plead guilty. 17. On 15 September 2003 the court decided to transfer the case file to the Prosecutor's Office so that shortcomings in the investigation could be corrected.", "18. On 24 December 2003 two expert opinions were ordered with a view to establishing the applicant's mental health. 19. On 9 February 2004 expert opinions on cardiology and diabetology were ordered. The experts did not find any grounds for the applicant's release.", "20. Hearings were held on the following dates: 27 November 2003, 25 March 2004, 15 April 2004, 13 May 2004, 17 June 2004, 8 July 2004, 12 August 2004, 9 September 2004 and 27 September 2004. Over thirty-five witnesses were examined by the court. 21. On 17 June 2004 the court ordered that witnesses who had previously failed to appear at hearings be escorted to the court.", "22. On 5 July 2004 an expert opinion on neurology was submitted. No grounds for the applicant's release were found, although it was stated in this opinion that his prolonged detention might pose some future risk to his health and he was referred to a prison hospital for observation. The date of his admission to hospital was fixed for 1 July 2004. 23.", "On 30 September 2004 the Częstochowa District Court gave a judgment. The applicant was found guilty of drug trafficking and sentenced to three years' imprisonment. The court ordered that the applicant remain in custody until the prison sentence could be enforced. 24. On 1 October 2004 the applicant appealed against the decision of 30 September 2004 on the extension of his detention.", "25. On 21 October 2004 the Częstochowa Regional Court allowed the applicant's appeal of 1 October 2004 and on the same day he was released from detention. 26. On 6 December 2004 two appeals against the judgment of 30 September 2004 were lodged by the applicant's lawyers. 27.", "On 22 June 2005 the Częstochowa Regional Court quashed the judgment and remitted the case. The proceedings are pending. II. RELEVANT DOMESTIC LAW 28. The relevant domestic law concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other so-called “preventive measures” (środki zapobiegawcze) is set out in the Court's judgments in the cases of Gołek v. Poland (no.", "31330/02, §§ 27-33, 25 April 2006) and Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 August 2006). 29. The relevant domestic provisions and practice concerning the State's liability for a tort committed by its official, in connection with a right to a trial within a reasonable time, have already been cited in previous cases against Poland (see, for example, Rybczyńscy v. Poland, no. 3501/02, 3 October 2006, and Białas v. Poland, no.", "69129/01, 10 October 2006). THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 30. The applicant complained that the length of his pre-trial detention was in breach of Article 5 § 3, which provides: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 31.", "The Government accepted that the applicant had exhausted domestic remedies. 32. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. Arguments before the Court 33. The Government observed that the applicant's pre-trial detention had lasted from 19 November 2002 to 30 September 2004 (one year, ten months and twelve days). 34.", "The Government maintained that the whole period of the applicant's detention had been justified by the existence of a genuine public interest, which had outweighed the presumption of innocence. 35. They stressed that the domestic courts dealing with the applicant's case had found his detention to be compatible with the provisions of Article 258 of the Code of Criminal Procedure and that no grounds warranting the applicant's release from detention as provided for by Article 259 of the Code had been established. 36. The Government maintained that the evidence obtained in the proceedings had indicated that there had been a reasonable suspicion that the applicant had committed the offence of drug trafficking.", "They emphasised the serious nature of the charge and the fact that the applicant had been sentenced to three years' imprisonment by the first-instance court. 37. They also submitted that the applicant's detention had been aimed at securing the proper conduct of the investigations, as there had been a risk that he would obstruct the proceedings and influence witnesses and other co-accused. 38. The Government drew the Court's attention to the fact that the applicant had been a recidivist offender.", "He had already been convicted of robbery on three occasions (in 1983, 1986 and 1989) and sentenced to five, two and two years' imprisonment, respectively. 39. With regard to the review of the applicant's detention, the Government pointed out that it had been subject to regular supervision by the courts and on each occasion the decisions had been reasoned in a relevant and sufficient manner. 40. With regard to the proceedings on the merits, the Government highlighted their complexity.", "They submitted that several co-accused had been involved in the proceedings. They further submitted that nine hearings had been held at regular and brief intervals and the court had taken disciplinary measures to expedite the proceedings (e.g. it had ordered that witnesses who had previously failed to appear be escorted to a hearing). They also pointed out that the court had encountered some difficulties as a number of witnesses had changed their addresses and could not easily be contacted. 41.", "The applicant maintained that his detention had lasted two years. He contested the Government's arguments and stated that the grounds for his detention had ceased to exist with the passage of time and that his poor health had constituted grounds for his release. He specified the illnesses from which he suffered, inter alia, heart problems and diabetes. 2. The Court's assessment (a) Principles established under the Court's case-law 42.", "Under the Court's case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, the W. v. Switzerland judgment of 26 January 1993, Series A no. 254-A, p. 15, § 30). 43.", "It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and of the established facts 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 of the Convention (see the Contrada v. Italy, judgment of 24 August 1998, Reports 1998-V, p. 2185, § 54; McKay v. the United Kingdom [GC], no. 543/03, § 43, ECHR 2006- ). 44.", "The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, ECHR 2000‑IV, § 153). (b) Application of those principles to the circumstances of the present case 45.", "The Court notes that the applicant's pre-trial detention lasted from 19 November 2002 to 30 September 2004, when the applicant was convicted by the first-instance court, which amounted to one year, ten months and twelve days. 46. The Court is of the opinion that the case was rather complex. The charge was of a serious character as the applicant risked up to ten years' imprisonment, there were eleven accused involved in the proceedings and over thirty-five witnesses were examined. Moreover, the domestic courts had had regard to the fact that the applicant was a recidivist offender.", "He had been convicted of robbery on three occasions. 47. The Court observes that the investigative phase of the proceedings was conducted very speedily, bearing in mind that numerous expert opinions were ordered, including expert opinions on whether the applicant's state of health allowed for his detention. Many other measures were taken by the authorities in this phase of the proceedings such as the organisation of two confrontations of witnesses and suspects. 48.", "Furthermore, the applicant's detention was supervised by the courts at regular intervals. In their decisions extending his detention the domestic authorities relied on a reasonable suspicion that the applicant had committed the offence in question, the severity of the likely penalty and the risk that the applicant would obstruct the proper conduct of the proceedings, in particular by influencing witnesses and other co-accused. They also noted that the applicant had pleaded not guilty, which posed an additional risk of his influencing other persons involved in the proceedings. They considered that no other preventive measure could ensure the proper conduct of the proceedings. The need to conduct further investigations also constituted a ground for the applicant's detention.", "The courts took into account new elements that emerged in the course of the proceedings and the applicant's state of health, which, however, was not such as to constitute a ground for his release. 49. In fact, numerous expert opinions concerning the applicant's health were ordered in the course of the proceedings, namely expert opinions on cardiology (the prosecutor's decisions of 19 December 2002, 5 May 2003 and 9 February 2004), an expert opinion on diabetology (the prosecutor's decision of 9 February 2004) and an expert opinion on neurology (ordered by the court and submitted on 5 July 2004). On 24 December 2003 two expert opinions were ordered with a view to establishing the applicant's mental health. It transpires from the case file that the applicant was found to be fit for detention and his medical treatment in the detention centre did not raise any issue.", "In the opinion of the neurologist submitted on 5 July 2004 it was stated that the applicant's continued detention had not posed any risk to his health. As it was also stated in the expert's opinion, that the applicant's extended detention might have negative consequences for his future state of health, arrangements were made to admit the applicant to a prison hospital. It should be stressed that soon afterwards the applicant's request for release was allowed and he was released on 21 October 2004 (after the first-instance judgment had been given on 30 September 2004). 50. The Court also notes that hearings were held regularly and at brief intervals, notwithstanding the fact that some witnesses had failed to appear at hearings or changed their addresses.", "Disciplinary measures were taken by the court in order to expedite the proceedings. 51. The Court therefore considers that, in the particular circumstances of the instant case, the grounds given by the judicial authorities for the applicant's detention satisfied the requirement of being “relevant” and “sufficient”. 52. There has, accordingly, been no violation of Article 5 § 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 53. The applicant complained, relying on Article 5 § 4 of the Convention, that the grounds for his detention had ceased to exist with the lapse of time and that the state of his health militated in favour of his immediate release. 54. The Court observes that the applicant's complaint should be examined under Article 5 §§ 1 (in so far as it concerns his initial detention) and 3 (in so far as it concerns extensions of his detention) and not under Article 5 § 4.", "55. In so far as the complaint falls to be examined under Article 5 § 1, the Court observes that the applicant did not show that he lodged an appeal against the first detention order. 56. Therefore, his complaint under Article 5 § 1 must be declared inadmissible for non-exhaustion of domestic remedies according to Article 35 §§ 1 and 4 of the Convention. 57.", "In so far as the applicant complained in substance under Article 5 § 3, the Court notes that the applicant's complaint under this Article has already been extensively considered. The Court does not find any new elements to be added to its reasoning in paragraphs 40-50 above. 58. The complaint is therefore manifestly ill-founded and must be dismissed in accordance with Article 35 §§ 3 and 4 of the Convention. III.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 59. The applicant further complained under Article 3 about the fact that he had been subjected to inhuman treatment as his state of health had not allowed for his prolonged detention. 60. It transpires from the case file that the applicant was given regular medical examinations while detained and medical treatment if needed. It was established by experts that the applicant's detention did not cause any risk to his health (see paragraph 48 above).", "Therefore, the applicant was not subjected to any inhuman treatment within the meaning of Article 3 of the Convention. 61. In view of the above, this part of the application is manifestly ill-founded and must be declared inadmissible according to Article 35 §§ 3 and 4 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 62.", "The applicant further complained under Article 6 that the length of the proceedings was unreasonable. That Article provides, in so far as relevant: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 63. The applicant failed to avail himself of any remedy provided for by Polish law. He had several remedies at his disposal, namely a complaint under sections 5 and 18 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time as well as a civil action under Article 417 of the Civil Code read together with section 16 of the above-mentioned Law (as to the effectiveness of the latter remedy, see Krasuski v. Poland, judgment of 14 June 2005, no. 61444/00, § 72, ECHR 2005‑V (extracts).", "64. Therefore, he did not exhaust domestic remedies and his complaint must be declared inadmissible according to Article 35 §§ 1 and 4 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the length of the applicant's pre-trial detention admissible and the remainder of the application inadmissible; 2. Holds that there has been no violation of Article 5 § 3 of the Convention.", "Done in English, and notified in writing on 3 April 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyNicolas BratzaRegistrarPresident" ]

[ "Case of Sommerfeld v. Germany (Application no. 31871/96) Judgment Strasbourg, 8 July 2003 CASE OF SOMMERFELD v. GERMANY (Application no. 31871/96) JUDGMENT STRASBOURG 8 July 2003 This judgment is final but may be subject to editorial revision. In the case of Sommerfeld v. Germany, The European Court of Human Rights, sitting as a Grand Chamber composed of: MrL. Wildhaber, President,MrC.L.", "Rozakis,MrG. Ress,SirNicolas Bratza,MrA. Pastor Ridruejo,MrsE. Palm,MrP. Kūris,MrR.", "Türmen,MrsF. Tulkens,MrP. Lorenzen,MrK. Jungwiert,MrJ. Casadevall,MrsH.S.", "Greve,MrR. Maruste,MrE. Levits,MrM. Ugrekhelidze,MrsA. Mularoni, judges,and Mr P.J.", "Mahoney, Registrar, Having deliberated in private on 20 November 2002 and on 11 June 2003, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 31871/96) against the Federal Republic of Germany lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Manfred Sommerfeld (“the applicant”), on 7 June 1995. 2. The applicant, who had been granted legal aid, was represented before the Court by Mrs S. Hierstetter, a lawyer practising in Munich.", "The German Government (“the Government”) were represented by their Agents, Mrs H. Voelskow-Thies, Ministerialdirigentin, of the Federal Ministry of Justice, at the initial stage of the proceedings, and subsequently by Mr K. Stoltenberg, Ministerialdirigent, also of the Federal Ministry of Justice. 3. The applicant alleged, in particular, that the German court decisions dismissing his request for access to his daughter, born out of wedlock, amounted to a breach of his right to respect for his family life and that he was a victim of discriminatory treatment in this respect. He also complained about a breach of his right to a fair hearing. He relied on Articles 6, 8 and 14 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 Fourth Section of the Court (Rule 52 § 1). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1, composed of: Mr A. Pastor Ridruejo, President, Mr G. Ress, Mr L. Caflisch, Mr I. Cabral Barreto, Mr V. Butkevych, Mrs N. Vajić, Mr M. Pellonpää, judges, and Mr V. Berger, Section Registrar. On 12 December 2000 the application was declared partly admissible as regards the applicant’s complaints that the German court decisions dismissing his request for access to his daughter, born out of wedlock, amounted to a breach of his right to respect for his family life and that he was a victim of discriminatory treatment in this respect. 6. On 11 October 2001 the Chamber delivered its judgment in which it held, by five votes to two, that there had been a violation of Article 8 of the Convention.", "It also held, by five votes to two, that there had been a violation of Article 14 of the Convention, taken together with Article 8. The Chamber further held by six votes to one that there had been a violation of Article 6 of the Convention. The Chamber finally held, by five votes to two, that the respondent State was to pay the applicant (i) 55,000 (fifty-five thousand) German marks in respect of non-pecuniary damage and (ii) 2,500 (two thousand five hundred) German marks in respect of costs and expenses. The separate opinions of Mrs Vajić and Mr Pellonpää were annexed to the judgment. 7.", "On 9 January 2002 the Government requested, pursuant to Article 43 of the Convention and Rule 73 of the Rules of Court, that the case be referred to the Grand Chamber, contending that the Chamber should not have found violations of Article 8 and 14 of the Convention. They maintained that the Chamber had erred in its approach to the margin of appreciation left to the national courts. Referring to the Elsholz case (Elsholz v. Germany [GC], no. 25735/94, ECHR 2000-VIII), they further considered that, in the present case, the application of the former German legislation, namely section 1711 § 2 of the Civil Code, had not led to discrimination between fathers of children born out of wedlock and divorced fathers. 8.", "On 27 March 2002 the panel of the Grand Chamber decided to refer the case to the Grand Chamber. 9. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court. Judge Costa being unable to participate in the final deliberations, he was replaced by Judge Kūris pursuant to Rule 24 § 3. 10.", "The applicant and the Government each filed a memorial. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 11. The applicant, born in 1953, is the father of the child M., born out of wedlock on 25 January 1981. The applicant acknowledged paternity of M. 12.", "The applicant and the child’s mother lived together at the time of the child’s birth. They separated in September 1986. The child’s mother prohibited any contact between the applicant and the child. The applicant still met M. several times at school until such contact was no longer possible. Subsequently the child’s mother married Mr W., the father of her child A., born in August 1985, W. being the common family name.", "A.The first request for visiting arrangements 13. On 2 October 1990 the applicant applied to the Rostock District Court for a decision granting him a right of access to his daughter. Having heard the persons concerned, the Rostock Youth Office, in comments dated 11 April 1991, advised against a right of access. The Youth Office submitted that M. had established a close relationship with Mr. W., which would be adversely affected by contact between M. and her natural father. It also stated that M., when heard in the absence of her mother, had indicated that she was not keen to see the applicant and was suffering as a result of his continuing efforts to obtain access.", "14. On 27 June 1991 M., then ten years old, was heard by a judge of the District Court. She stated that the fact that the applicant was always standing at the fence of the schoolyard disturbed her and that she did not wish to visit the applicant even if access should be ordered by the court. 15. At a court hearing on 31 July 1991, the applicant and the child’s mother declared that they would attempt to settle the question of a visiting arrangement with the assistance of the Youth Office.", "On 30 September 1991 the Youth Office informed the District Court that no agreement had been achieved and that M. had stated that she did not wish to see the applicant. 16. On 12 December 1991 the court ordered that a psychological expert opinion be prepared. On 9 April 1992, in one-page submissions, the psychologist of the Rostock Health Services stated that, as contact between the applicant and M. had been disrupted for six years, no diagnosis of their current relationship appeared possible. The psychologist considered that the views which the applicant and M. had expressed on the question of future contact were very different.", "M. was growing up in a family unit and, unlike the applicant, was not suffering from any deficits in that respect, and did not wish to have any personal contact with the applicant. He should give her the necessary time to take up contact of her own motion. The psychologist noted that she had arranged a meeting between the applicant and M. which, however, had been cancelled by M.’s stepfather. 17. On 24 June 1992 the District Court judge heard the applicant and M. in the presence of the psychological expert.", "M. having repeatedly stated that she did not wish to have contact with the applicant, the latter affirmed that he would withdraw his request for a right of access. 18. The applicant withdrew his request on 1 July 1992. B.The second request for a right of access 19. On 13 September 1993 the applicant again applied to the District Court for a right of access to his daughter.", "20. On 15 February 1994 the District Court judge heard the thirteen-year-old M., who stated that she did not wish to talk to the applicant or accept presents from him and that he should no longer bother her. She also said that she had a father whom she loved, though it was not her natural father. The court held a hearing with the applicant and the child’s mother on 26 April 1994. 21.", "On 1 June 1994 the District Court dismissed the applicant’s application. 22. The District Court noted the comments filed by the Rostock Youth Office on 6 January 1994 as well as the parents’ and the child’s statements in court. The Court also had regard to the comments filed by the Youth Office in April 1991 and to the statement submitted by the psychologist in April 1992, both in the context of the first set of access proceedings. 23.", "The District Court found that the applicant could not be granted access to the child. Referring to section 1711 of the Civil Code, the Court observed that the mother, having sole custody, determined the father’s access and the guardianship court could only decide to grant the father access if this was in the child’s best interest. In this respect, the court found as follows: “On the basis of its extensive investigations, and especially its conversations with [M.] in 1992 and February 1994, this court has decided that, in the present case, access by the father to his child is by no means in her best interest. At the age of thirteen, [M.] is certainly able to make up her own mind and has clearly rejected the idea of establishing contact with her biological father. In the court’s opinion, forcing her to see him against her will cannot be justified, since this would seriously disturb her emotional and psychological balance.", "Such a decision would on no account be in her best interest. This court cannot accept the [applicant’s] sweeping statement that access is always in the child’s interest. The extent to which this is true invariably depends on circumstances. In this case, the only justifiable decision is that set out in the operative part of the judgment. ...” 24.", "On 17 June 1994 the Rostock Regional Court dismissed the applicant’s appeal on the following grounds: “The appeal is admissible under section 20 of the Act on Non-Contentious Proceedings, but is unfounded. The District Court was right to refuse the applicant all access to [M.], since this is not in the child’s best interest (sections 1711 and 1634 of the Civil Code). This court also takes the view that the District Court had no cause to permit exceptions for any specific area of life. It considers that the arguments advanced in the contested decision are correct. It regards it as important that the girl [M.] – who is, after all, thirteen years old – has stated clearly and for a long time that she wants no contact with her father.", "The applicant should accept this clearly expressed wish in his adolescent daughter’s interest and also his own. Only if he ceased to exert pressure on her might it one day be possible for them to resume contact. The court would also point out that access to [M.] on the strength of a court order could hardly be enforced against the child’s will.” 25. On 22 July 1994 the applicant filed a constitutional complaint with the Federal Constitutional Court. 26.", "On 19 January 1996 a panel of three judges of the Federal Constitutional Court refused to entertain the applicant’s complaint. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW A. Legislation on family matters currently in force 27. The statutory provisions on custody and access are to be found in the German Civil Code.", "They have been amended on several occasions and many were repealed by the amended Law on Family Matters (Reform zum Kindschaftsrecht) of 16 December 1997 (Federal Gazette 1997, p. 2942), which came into force on 1 July 1998. 28. Section 1626 § 1 reads as follows: “The father and the mother have the right and the duty to exercise parental authority (elterliche Sorge) over a minor child. The parental authority includes the custody (Personensorge) and the care of property (Vermögenssorge) of the child.” 29. Pursuant to section 1626a § 1, as amended, the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect (declaration on joint custody) or if they marry.", "According to section 1684, as amended, a child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child. Moreover, the parents must not do anything that would harm the child’s relationship with the other parent or seriously interfere with the child’s upbringing. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties; and they may order the parties to fulfil their obligations towards the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if the child’s well-being would otherwise be endangered.", "The family courts may order that the right of access be exercised in the presence of a third party, such as a Youth Office authority or an association. B. Legislation on family matters in force at the material time 30. Before the entry into force of the amended Law on Family Matters, the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows: Section 1634 “1. A parent not having custody has the right to personal contact with the child.", "The parent not having custody and the person having custody must not do anything that would harm the child’s relationship with others or seriously interfere with the child’s upbringing. 2. The family court can determine the scope of that right and can prescribe more specific rules for its exercise, also with regard to third parties; as long as no decision is made, the right, under section 1632 § 2, of the parent not having custody may be exercised throughout the period of contact. The family court can restrict or suspend that right if such a measure is necessary for the child’s welfare. 3.", "A parent not having custody who has a legitimate interest in obtaining information about the child’s personal circumstances may request such information from the person having custody in so far as this is in keeping with the child’s interests. The guardianship court shall rule on any dispute over the right to information. 4. Where both parents have custody and are separated not merely temporarily, the foregoing provisions shall apply mutatis mutandis.” Section 1632 § 2 concerned the right to determine third persons’ rights of access to the child. 31.", "The relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows: Section 1705 “Custody over a minor child born out of wedlock is exercised by the child’s mother...” Section 1711 “1. The person having custody of the child shall determine the father’s right of access to the child. Section 1634 § 1, second sentence, applies by analogy. 2. If it is in the child’s interests to have personal contact with the father, the guardianship court can decide that the father has a right to personal contact.", "Section 1634 § 2 applies by analogy. The guardianship court can change its decision at any time. 3. The right to request information about the child’s personal circumstances is set out in section 1634 § 3. 4.", "Where appropriate, the youth office shall mediate between the father and the person who exercises the right of custody.” C. The Act on Non-Contentious Proceedings 32. Like proceedings in other family matters, proceedings under former section 1711 § 2 of the Civil Code were governed by the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit). 33. According to section 12 of that Act, the court shall, ex officio, take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate. 34.", "In proceedings regarding access, the competent youth office has to be heard prior to the decision (section 49 § 1 (k)). 35. As regards the hearing of parents in custody proceedings, section 50a § 1 stipulates that the court shall hear the parents in proceedings concerning custody or the administration of the child’s assets. In matters relating to custody, the court shall, as a rule, hear the parents personally. In cases concerning placement into public care, the parents shall always be heard.", "According to paragraph 2 of section 50a, a parent not having custody shall be heard except where it appears that such a hearing would not contribute to the clarification of the matter. 36. Section 63 provides for the right to lodge a further appeal challenging the first appeal decision. Section 63a of the Act as in force at the material time excluded this right in proceedings concerning a natural father’s access to his child born out of wedlock. That provision has been repealed by the Law on Family Matters of 1997.", "D. The Convention on the Rights of the Child 37. The human rights of children and the standards to which all governments must aspire in realising these rights for all children, are set out in the Convention on the Rights of the Child. The Convention entered into force on 2 September 1990 and has been ratified by 191 countries, including Germany. 38. The Convention spells out the basic human rights that children everywhere – without discrimination – have: the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and social life.", "It further protects children’s rights by setting standards in health care, education and legal, civil and social services. 39. States Parties to the Convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child (Article 3). Moreover, States Parties have to ensure that a child is not separated from his or her parents against their will unless such separation is necessary for the best interests of the child; and that a 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 (Article 9). THE LAW I.PRELIMINARY ISSUE: THE SCOPE OF THE CASE BEFORE THE COURT 40.", "In his memorial dated 20 June 2002, the applicant invited the Grand Chamber to re-examine the Chamber’s decision of 12 December 2000, whereby the Chamber had declared inadmissible his complaints about German court proceedings in relation to the adoption of his by then adult daughter. 41. The Court reiterates that the scope of a case referred to the Grand Chamber under Article 43 of the Convention is determined by the Chamber’s decision on admissibility (see K. and T. v. Finland [GC], no. 25702/94, §§ 139-141, ECHR 2001-VII). The Chamber declared admissible the complaints that the German court decisions dismissing his request for access to his daughter, born out of wedlock, amounted to a breach of his right to respect for his family life and that he was a victim of discriminatory treatment in this respect.", "It follows that the scope of the present case before the Grand Chamber is limited exclusively to those complaints and does not extend to the complaint concerning the adoption proceedings. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 42. As before the Chamber, the applicant complained that the German court decisions dismissing his second request for access to his child, born out of wedlock, amounted to a breach of Article 8 of the Convention, the relevant part of which provides: “1. Everyone has the right to respect for his ... family life ... .", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of health or morals, or for the protection of the rights and freedoms of others.” 43. The Government requested the Court to find no violation of this provision. A.Whether there was an interference 44. The parties agreed that the decisions refusing the applicant access to his child amounted to an interference with his right to respect for his family life, as guaranteed by Article 8 § 1.", "The Court takes the same view. 45. Any such interference will constitute a violation of this Article unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as “necessary in a democratic society”. B. Whether the interference was justified 46.", "The parties did not question the Chamber’s findings that the decisions at issue had a basis in national law, namely section 1711 § 2 of the Civil Code as in force at the relevant time, and that they were aimed at protecting the “health or morals” and the “rights and freedoms” of the child, which are legitimate aims within the meaning of paragraph 2 of Article 8. 47. It therefore remains to be examined whether the refusal of access can be considered “necessary in a democratic society”. 1. The Chamber’s judgment 48.", "In its judgment of 11 October 2001, the Chamber held that the competent national courts, when refusing the applicant’s request for a visiting arrangement, had relied on relevant reasons in finding that contact was not in the child’s interest (paragraphs 41-42). 49. Turning to the procedural requirements inherent in Article 8, the Chamber considered the evidence before the German courts, in particular the statements made by the child in court. It found that the failure to order a psychological report on the possibilities of establishing contact between the child and her father, the applicant, had entailed insufficient protection of the applicant’s interests in the access proceedings (paragraphs 42-44). The Chamber concluded that in these circumstances, the national authorities had overstepped their margin of appreciation, thereby violating the applicant’s rights under Article 8 of the Convention (paragraph 45).", "2. The parties’ submissions (a)The applicant 50. The applicant contended that, having regard to all the circumstances and to the strict scrutiny required in cases concerning restrictions of access, the Chamber had not unduly encroached on the margin of appreciation left to the domestic courts. 51. In his submission, the German courts had not sufficiently established whether the conditions for refusing access were met.", "Taking into account that the child had lived for five years with the applicant, there remained at least a suspicion that the wishes expressed by her resulted from her mother’s influence. 52. In this connection, the applicant submitted that the Chamber had examined in detail the taking of evidence by the District Court in 1994, in particular its recourse to a rather vague expert opinion filed in earlier proceedings, and the Regional Court’s failure to take fresh evidence. 53. The applicant further stressed that the child’s attitude resulted from subliminal influence by the other parent.", "In these circumstances it was for the German courts to ensure, of their own motion and irrespective of any request made by the applicant, that psychological expert evidence was obtained. 54. Accordingly, the Chamber had not substituted its view for that of the national courts, but had limited itself to reviewing, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation. (b)The Government 55. The Government maintained that the Chamber, in applying the necessity test under Article 8 of the Convention, had exceeded its power of review and had substituted its own evaluation for that of the domestic courts.", "Although stricter scrutiny was called for as regards restrictions placed by those authorities on parental rights of access, it was nevertheless for them to establish the relevant facts, that is to take and assess the evidence, as they had the benefit of direct contact with all the persons concerned. 56. In the present case, the German courts had not failed to involve the applicant in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests, nor had their assessment of the evidence been arbitrary. 57. In this connection, the Government pointed out that the German courts had acted on the understanding that the child’s wishes were only relevant to the extent that they were the expression of her own free will.", "The courts were entitled to assess the question of whether the child was capable of forming her own free will without having recourse to an expert opinion. 58. Their decision not to obtain an expert opinion could not be regarded as arbitrary as, in their assessment, they had been able to rely not only on the age of the child, who had been thirteen at the relevant time, but also on a broad factual basis relating to several years. Since her first interview by the Youth Office at the age of nine, the child had stated that she was suffering as a result of the applicant’s efforts to obtain access and that she did not wish to meet the applicant. In the first set of proceedings concerning the request for visiting arrangements, the applicant himself had apparently accepted the child’s wish not to see him and withdrawn his request for a right of access.", "In the course of the proceedings relating to the second request, the child had repeated her refusal to have any contact. In these circumstances, there was no reason for the Regional Court to doubt that the child had expressed her own free will. 59. Moreover, the Government considered that the Chamber had not explained why ordering a psychological expert opinion was the only correct way of action. Thus, the Chamber had described the comments submitted by a psychologist of the local health services in 1992 as “rather superficial”.", "However, this psychologist had already stated that, as contact between the applicant and the child had been disrupted for six years, no diagnosis of their current relationship appeared possible. Because of the further lapse of time, a psychological examination would have been even more difficult. There was no indication that the child’s wishes were only “seemingly firm”, as assumed by the Chamber. 60. The Government added that the applicant himself had not asked for an expert opinion.", "61. In these circumstances it had been reasonable for the Regional Court to refrain from conducting an oral hearing. 3. The Court’s assessment 62. In determining whether the refusal of access was “necessary in a democratic society”, the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention.", "Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55, and Kutzner v. Germany, no. 46544/99, §§ 65-66, ECHR 2002-I; see also Article 3 of the Convention on the Rights of the Child, paragraphs 39-41 above).", "63. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Thus, the Court has recognised that the authorities enjoy a wide margin of appreciation, in particular when deciding on custody. However, a stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, and as regards any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed (see Elsholz v. Germany [GC], no.", "25735/94, § 49, ECHR 2000-VIII; and Kutzner, cited above, § 67). 64. Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parents. In particular, a parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child’s health and development (see Elsholz, cited above, § 50; and T.P. and K.M.", "v. the United Kingdom [GC], no. 28945/95, § 71, ECHR 2001-V; see also Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I, and Nuutinen v. Finland, no. 32842/96, § 128, ECHR 2000-VIII). 65.", "In the present case, the competent German courts adduced relevant reasons to justify their decisions refusing access, namely that the then thirteen-year-old girl had expressed the clear wish not to see her father, the applicant, and had done so for several years, so that forcing her to see him would seriously disturb her emotional and psychological balance (see paragraphs 23-24 above). In those circumstances the decisions can be taken to have been made in the interest of the child (see Buscemi v. Italy, no. 29569/95, § 55, ECHR 1999-VI). On this point, the Grand Chamber shares the view of the Chamber (see paragraph 41 of the Chamber’s judgment). 66.", "The Court considers that it cannot satisfactorily assess whether those reasons were “sufficient” for the purposes of Article 8 § 2 without at the same time determining whether the decision-making process, seen as a whole, provided the applicant with the requisite protection of his interests (see W. v. the United Kingdom, judgment of 8 July 1987, Series A no. 121, p. 29, § 64; Elsholz, cited above, § 52; and T.P. and K.M. v. the United Kingdom cited above, § 72). 67.", "The Chamber concluded that the national authorities had overstepped their margin of appreciation, thereby violating the applicant’s rights under Article 8 of the Convention. In its judgment, the Chamber reasoned: “43. The Court notes that the District Court heard the child and the parents and had regard to material obtained in a first set of access proceedings, inter alia, comments filed by a psychologist of the local health services of April 1992. The Court considers that, given the psychologist’s rather superficial submissions in the first set of proceedings, the lapse of time and bearing in mind what was at stake in the proceedings, namely, the relations between a father and his child, the District Court should not have been satisfied with hearing only the child as to her wishes on the matter without having at its disposal psychological expert evidence in order to evaluate the child’s seemingly firm wishes. Correct and complete information on the child’s relationship with the applicant as the parent seeking access to the child is an indispensable prerequisite for establishing a child’s true wishes and thereby striking a fair balance between the interests at stake.", "The Court further recalls that the Regional Court, which had full power to review all issues relating to the request for access, endorsed the District Court findings on the basis of the file. 44. In the Court’s opinion, the German courts’ failure to order a psychological report on the possibilities of establishing contact between the child and the applicant reveals an insufficient involvement of the applicant in the decision-making process. ...” 68. The Grand Chamber, for its part, observes that whether the decision-making process sufficiently protected a parent’s interests depends on the particular circumstances of each case.", "69. In the proceedings before the District Court and the Regional Court, the applicant was placed in a position enabling him to put forward all arguments in favour of obtaining a visiting arrangement and he also had access to all relevant information which was relied on by the courts (see, mutatis mutandis, T.P. and K.M. v. the United Kingdom, cited above, §§ 78‑83, and P., C. and S. v. the United Kingdom, no. 56547/00, §§ 136‑138, ECHR 2002-VI).", "70. The evidential basis for the District Court’s decision included the child’s statements in court, the parents’ submissions and comments filed by the competent Youth Office. The District Court also relied on evidence submitted in the context of the first set of access proceedings, i.e. comments filed by the Youth Office in April 1991, and a statement submitted by a psychologist in April 1992 (see paragraph 22 above). The Regional Court endorsed the District Court’s findings made on that basis (see paragraph 24 above).", "71. As regards the issue of ordering a psychological report on the possibilities of establishing contact between the child and the applicant, the Court observes that as a general rule it is for the national courts to assess the evidence before them, including the means to ascertain the relevant facts (see Vidal v. Belgium, judgment of 22 April 1992, Series A no. 235-B, p. 32, § 33). It would be going too far to say that domestic courts are always required to involve a psychological expert on the issue of access to a parent not having custody, but this issue depends on the specific circumstances of each case, having due regard to the age and maturity of the child concerned. 72.", "In this connection, the Court notes that the girl was thirteen years old when she was heard by the District Court judge on the question of access (see paragraphs 22-23 above). The same judge had already questioned her, at the ages of ten and eleven, in the context of the first set of proceedings (see paragraphs 14, 17 and 23 above). Having had the benefit of direct contact with the girl, the District Court was well placed to evaluate her statements and to establish whether or not she was able to make up her own mind. On that basis the District Court could reasonably reach the conclusion that it was not justified to force the girl to see her father, the applicant, against her will. That decision was endorsed by the Regional Court (see paragraph 24 above).", "73. In these circumstances the Court is not persuaded that the failure to obtain a psychological expert opinion on the relations between the applicant and the child constituted a flaw in the proceedings. 74. Having regard to the foregoing and to the respondent State’s margin of appreciation, the Court is satisfied that the German courts’ procedural approach was reasonable in the circumstances and provided sufficient material to reach a reasoned decision on the question of access in the particular case. The Court can therefore accept that the procedural requirements implicit in Article 8 of the Convention were complied with.", "75. Accordingly, there has been no violation of Article 8 of the Convention in the present case. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN TOGETHER WITH ARTICLE 8 76. The applicant further complained that he had been a victim of discriminatory treatment in breach of Article 14 of the Convention read in conjunction with Article 8.", "Article 14 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 Chamber’s judgment 77. The Chamber, turning to the particular features of the present case, held that the approach taken by the German courts reflected the underlying legislation which put fathers of children born out of wedlock in a different, less favourable position than divorced fathers. In this connection, the Chamber observed that unlike the latter, natural fathers had no right of access to their children and the mother’s refusal of access could only be overridden by a court when access was “in the interest of the child”. For the Chamber, the crucial point was that the courts had not regarded contact between a child and the natural father prima facie as in the child’s interest.", "The Chamber considered that even though the District Court’s decision had contained the formulation that there would be a risk to the child’s mental and psychological well-being had she to take up contact with the applicant against her wish, the mother’s initial prohibition on further contact and her influence on the child had remained decisive (paragraphs 50-52). 78. As regards the justification of that difference in treatment, the Chamber, considering the particular circumstances of the instant case, was not persuaded by the Government’s argument that in general, fathers of children born out of wedlock lacked interest in contact with their children and might leave a non-marital relationship at any time, and concluded that there had been a breach of Article 14 of the Convention, taken together with Article 8 (paragraphs 53-58). 2. The parties’ submissions (a)The applicant 79.", "The applicant considered that a difference in treatment between fathers of children born in wedlock and fathers of children born out of wedlock could not be justified. In his submission, the general and abstract argument that fathers of children born out of wedlock often showed no interest in contact with their children did not apply to him and, in any event, given the growing number of unmarried partnerships, it no longer corresponded to present-day conditions. 80. As regards the exclusion of the possibility of a further appeal, the decisive issue was the difference in treatment between fathers of children born in wedlock and fathers of children born out of wedlock. In the applicant’s submission, the Federal Constitutional Court’s decision referred to by the Government was outdated and did not accord with the currently recognised constitutional obligation to create for children born out of wedlock the same conditions for their physical and mental development in society as for children born in wedlock.", "(b)The Government 81. The Government argued that, in the past, fathers of children born out of wedlock had frequently shown no interest in their children. Section 1711 § 2 of the Civil Code had not therefore been regarded as discriminatory (Glaichauf v. Germany, application no. 9530/81, Commission decision of 14 May 1984, unreported). The German legislature had reacted to recent changes in social attitudes with the Law of December 1997 on Family Matters.", "Notwithstanding this reform, section 1711 of the Civil Code had been compatible with the Convention. 82. In any event, as in the Elsholz case (Elsholz, cited above, §§ 59-61), the application of section 1711 in the applicant’s case had not amounted to discrimination. In this connection, the Government referred to the District Court’s reasoning, as endorsed by the Regional Court, that an enforceable right of access was not in the child’s interest, if she was opposed to contact and her mental and psychological well-being would be endangered thereby. Accordingly, the German courts had based their decisions not only on the ground that access would not serve the child’s well-being, but on the much stronger reason that it was incompatible with the child’s well-being.", "83. The Government further considered that the exclusion of the possibility of a further appeal in access proceedings concerning a child born out of wedlock was justified (former section 63a of the Act on Non-Contentious Proceedings). They referred to the reasoning of the Federal Constitutional Court in a decision of 27 April 1989 (1 BvR 718/88), according to which the factual and legal situations of children born in wedlock and children born out of wedlock and those of their fathers were not comparable, as children born in wedlock were, as a rule, covered by the constitutional protection of existing marriages from the moment of their birth, which was not the case for children born out of wedlock. Accordingly, the legislature could reasonably give the family courts special jurisdiction in all disputes relating to marriage. In any event the differences were negligible, two levels of jurisdiction being available in both cases and the further appeal constituting the exception in access proceedings, which should be determined speedily.", "3.The Court’s assessment (a) Main principles 84. Article 14 only 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 that 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, Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 35, § 71, and Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no.", "291-B, p. 32, § 22). The Court finds that the facts of the instant case fall within the scope of Article 8 of the Convention (see paragraph 44 above) and that, accordingly, Article 14 is applicable. (b)Section 1711 § 2 of the German Civil Code 85. As to the situation of divorced fathers of children born in wedlock in comparison with that of fathers of children born out of wedlock, the Court observes at the outset that, at the material time, the relevant provisions of the German Civil Code, namely section 1634 § 1 regarding parents not having custody of children born in wedlock and section 1711 § 2 regarding fathers of children born out of wedlock, contained different standards (see paragraphs 30-31 above). The former category of parent had a legal right to access which could be restricted or suspended if necessary in the child’s interest, whereas the latter’s personal contact depended on a favourable decision by the child’s mother or on a court ruling finding such contact to be in the child’s interest.", "86. In cases arising from individual applications it is, however, not the Court’s task to examine the domestic legislation in the abstract, but it must examine the manner in which that legislation was applied to the applicant in the particular circumstances. The Court therefore does not find it necessary to consider whether the former German legislation as such, namely, section 1711 § 2 of the Civil Code, made an unjustifiable distinction between fathers of children born out of wedlock and divorced fathers, such as to be discriminatory within the meaning of Article 14 of the Convention. The question to be decided by the Court is whether the application of section 1711 § 2 of the Civil Code in the present case led to an unjustified difference in the treatment of the applicant in comparison with the case of a divorced couple (see Elsholz, cited above, § 59). 87.", "The conclusion of the Chamber was that the German courts had discriminated against the applicant. It reasoned as follows: “51. The approach taken by the German courts in the present case reflects the underlying legislation which put fathers of children born out of wedlock in a different, less favourable position than divorced fathers. Unlike the latter, natural fathers had no right of access to their children and the mother’s refusal of access could only be overridden by a court when access was ‘in the interest of the child’. Under such rules and circumstances, there was evidently a heavy burden of proof on the side of a father of a child born out of wedlock.", "The crucial point is that the courts did not regard contact between child and natural father prima facie as in the child’s interest, a court decision granting access being the exception to the general statutory rule that the mother determined the child’s relations with the father. Even if the District Court’s decision contains the formulation that there was a risk to the child’s mental and psychological well-being if she had to take up contact with the applicant against her wish, the mother’s initial prohibition of further contact and her influence on the child remained decisive. Accordingly, there is sufficient reason to conclude that the applicant as a natural father was treated less favourably than a divorced father in proceedings to suspend his existing right of access. 52. In this context, the Court has also considered the applicant’s argument as to a procedural difference, namely, the exclusion of a further appeal under the Act on Non-Contentious Proceedings in the version in force at the relevant time.", "53. For the purposes of Article 14 a difference in treatment is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Moreover, the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Camp and Bourimi v. the Netherlands, no. 28369/95, § 37, ECHR 2000-X). 54.", "According to the Court’s case-law, very weighty reasons need to be put forward before a difference in treatment on the ground of birth out of wedlock can be regarded as compatible with the Convention (see Camp and Bourimi v. the Netherlands, cited above, § 38). 55. In the present case, the Court is not persuaded by the Government’s arguments, which are based on general considerations that fathers of children born out of wedlock lack interest in contact with their children and might leave a non-marital relationship at any time. 56. Such considerations did not apply in the applicant’s case.", "He had acknowledged paternity and had in fact been living with the mother at the child’s birth in 1981. Their relationship only broke up several years later when the child was more than five years old. More important, he had continued to show concrete interest in contact with her for sincere motives. 57. As the Government rightly pointed out, the number of non-marital families had increased.", "When deciding the applicant’s case, the Regional Court stated the urgent need for legislative reform. Complaints challenging the constitutionality of this legislation were pending before the Federal Constitutional Court. The amended Law on Family Matters eventually entered into force in July 1998. The Court wishes to make it clear that these amendments cannot in themselves be taken as demonstrating that the previous rules were contrary to the Convention. They do however show that the aim of the legislation in question, namely the protection of the interests of children and their parents, could also have been achieved without distinction on the ground of birth (see, mutatis mutandis, Inze v. Austria, judgment of 28 October 1987, Series A no.", "126, p. 18, § 44).” 88. The Grand Chamber has found above, under Article 8 of the Convention, that the German court decisions refusing access were taken in the child’s interest. In this connection the Court noted the courts’ reasoning that the then thirteen-year-old girl had expressed the clear wish not to see the applicant and had done so for several years, so that forcing her to see him would seriously disturb her emotional and psychological balance. The Court also accepted that the decision-making process provided the applicant with the requisite protection of his interests. 89.", "The Court must therefore determine whether the interference with the applicant’s right to family life, which was in itself permissible under paragraph 2 of Article 8, occurred in a discriminatory manner (see the case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), judgment of 23 July 1968, Series A no. 6, pp. 33-34, § 9; National Union of Belgian Police v. Belgium, judgment of 27 October 1975, Series A no. 19, p. 19, § 44; Rekvényi v. Hungary [GC], no. 25390/94, ECHR 1999-III, § 67; see also East African Asians v. the United Kingdom, no.", "4626/70 et al., Commission’s report of 14 December 1973, Decisions and Reports 78, p. 67, § 226). 90. The Court agrees with the Chamber that there are elements distinguishing the present case from the Elsholz case (cited above, §§ 60‑61). In the Elsholz case the Court noted that it could not be said on the facts of that case that a divorced father would have been treated more favourably. In that connection it observed that the German courts’ decisions were clearly based on the danger to the child’s development if he had to resume contact with his father, the applicant, contrary to the will of the mother, and on the finding that contact would negatively affect the child.", "Moreover, the Federal Constitutional Court had confirmed that the ordinary courts had applied the same test as would have been applied to a divorced father. 91. In the present case the German courts rejected the applicant’s argument that access was always in the child’s interest and held that a court ruling under section 1711 § 2 of the Civil Code depended on the circumstances. In examining the relevant facts, the courts, having regard to the statements made by the then thirteen-year-old child in court, held that she had been able to make up her own mind and had clearly rejected the idea of establishing contact with the applicant father. When reaching the conclusion that forcing her to see him against her will could not be justified, as her emotional and psychological balance would be seriously disturbed, the courts prima facie appeared to apply a test similar to that which would have been applied to a divorced father.", "Nevertheless, they explicitly adhered to the standard of whether access was “in the best interest of the child”. In doing so, they gave decisive weight to the mother’s initial prohibition on access and placed a burden on the applicant father which was heavier than the one on divorced fathers under section 1634 § 1 of the Civil Code. 92. As is well established in the Court’s case-law, a difference in treatment is discriminatory for the purposes of Article 14 if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Abdulaziz, Cabales and Balkandali, cited above, pp.", "35-36, § 72). 93. The Court has already held that very weighty reasons need to be put forward before a difference in treatment on the ground of birth out of or within wedlock can be regarded as compatible with the Convention (see Mazurek v. France, no. 34406/97, § 49, ECHR 2000-II, and Camp and Bourimi v. the Netherlands, no. 28369/95, §§ 37-38, ECHR 2000-X).", "The same is true for a difference in the treatment of the father of a child born of a relationship where the parties were living together out of wedlock as compared with the father of a child born of a marriage-based relationship. The Court discerns no such reason in the instant case. 94. There has accordingly been a violation of Article 14 of the Convention, taken together with Article 8, in respect of the application of section 1711 § 2 of the Civil Code in the instant case. (c).Section 63a of the Act on Non-Contentious Proceedings 95.", "In finding a breach of Article 14, taken together with Article 8 of the Convention, the Chamber also considered the procedural difference, namely the exclusion of the possibility of filing a further appeal under the Act on Non-Contentious Proceedings in the version in force at the relevant time (see paragraph 87 above, and § 52 of the Chamber’s judgment). 96. The Grand Chamber, like the Chamber, notes that, in the instant case, the applicant was deprived by law of the possibility of lodging a further appeal against the Regional Court’s decision refusing access to his daughter. The possibility of a further appeal, to which a father not having custody of a child born in wedlock would have been entitled, was excluded on account of the applicant’s status as the father of a child born out of wedlock, and this difference in treatment was expressly provided for in former section 63a of the Act on Non-Contentious Proceedings (see paragraph 36 above). 97.", "For the same reasons as those set out above in respect of the application of section 1711 § 2 of the Civil Code in the instant case, this difference in treatment cannot be regarded as compatible with the Convention. 98. Accordingly, there has also been a violation of Article 14 of the Convention, taken together with Article 8, in that the possibility of a further appeal in the access proceedings was excluded under section 63a of the Act on Non-Contentious Proceedings. IV.ALLEGED VIOLATION OF ARTICLE 6 ALONE AND TAKEN TOGETHER WITH ARTICLE 14 OF THE CONVENTION 99. In relation to his above complaints about the German court proceedings concerning his request for access to M. and the alleged discrimination against him, the applicant also relied on Article 6 § 1 of the Convention.", "In so far as relevant, Article 6 § 1 reads: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair hearing ... by an independent and impartial tribunal ...”. 100. In the light of its above findings under Article 8 alone and taken together with Article 14 (see paragraphs 74-75, 94 and 98 above), the Court does not find it necessary to examine separately the applicant’s complaints under Articles 6 and 14 of the Convention. V. 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 originally claimed 65,000 German marks (DEM - about EUR 32,500) for non-pecuniary damage. 103. The Chamber awarded DEM 55,000 (about EUR 28,120) by way of compensation for non-pecuniary damage in respect of the violations it found of Articles 8 and 14, as he had at least lost the opportunity to ensure his interests in the access proceedings and had been the victim of procedural defects and discrimination. 104.", "In the present proceedings the Government submitted that the Chamber, in assessing the non-pecuniary damage sustained by the applicant, had overlooked the fact that the interruption of contact prior to his second request for access had not been attributable to the Federal Republic of Germany. In the applicant’s submission, the Chamber’s reasoning related solely to the second set of access proceedings. In any event, he had not voluntarily withdrawn his request for access in the first set of proceedings. 105. The Grand Chamber has found a violation of Article 14 of the Convention, in conjunction with Article 8, but no violation of the substantive right to respect for family life under Article 8 itself.", "The discrimination in the enjoyment of the application’s right to respect for his family life must have caused him some distress and frustration, which the finding of a violation cannot on its own adequately compensate. Making an assessment on an equitable basis, the Court awards the applicant the sum of EUR 20,000 by way of compensation. B. Costs and expenses 106. The applicant originally claimed DEM 5,000 (about EUR 2,556) for costs and expenses incurred before the German courts.", "Having been granted legal aid, he did not claim additional costs and expenses in respect of the proceedings before the Convention institutions. 107. The Chamber, in the absence of any receipts or other supporting documents, was not persuaded that the applicant had incurred costs and expenses in the amount claimed and awarded him DEM 2,500 (about EUR 1,278). 108. The parties have not addressed this matter in the present proceedings.", "The grant of legal aid continued to apply for the purposes of the Article 43 proceedings. 109. Costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, necessarily incurred and also reasonable as to quantum (see Sunday Times v. the United Kingdom (Article 50), judgment of 6 November 1980, Series A no. 38, p. 13, § 23). Furthermore, legal costs are only recoverable in so far as they relate to the violation found (Beyeler v. Italy (Just satisfaction) [GC], no.", "33202/96, § 27, 28 May 2002). 110. The Court has found a violation of Article 14 in relation to the applicant’s claim under Article 8, considering that the German court proceedings were discriminatory. Deciding on an equitable basis, it awards the applicant the sum of EUR 2,500. C. Default interest 111.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Holds by fourteen votes to three that there has been no violation of Article 8 of the Convention; 2. Holds by ten votes to seven that there has been a violation of Article 14 of the Convention, taken together with Article 8, in respect of the application of section 1711 § 2 of the Civil Code in the instant case; 3. Holds unanimously that there has been a violation of Article 14 of the Convention, taken together with Article 8, in that the possibility of a further appeal in the access proceedings was excluded under section 63a of the Act on Non-Contentious Proceedings; 4.", "Holds unanimously that it is not necessary to examine separately the applicant’s complaint under Article 6 of the Convention, whether taken alone or in conjunction with Article 14; 5. Holds by thirteen votes to four (a) that the respondent State is to pay the applicant, within three months, the following amounts plus any tax that may be chargeable: (i) EUR 20,000 (twenty thousand euros) in respect of non-pecuniary damage; (ii) EUR 2,500 (two thousand five hundred euros) in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 8 July 2003. Luzius WildhaberPresidentPaul MahoneyRegistrar In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following opinions are annexed to this judgment: (a) Joint partly dissenting opinion of Mr Wildhaber, Mrs Palm, Mr Lorenzen, Mr Jungwiert, Mrs Greve, Mr Levits and Mrs Mularoni.", "(b) Partly dissenting opinion of Mr Ress joined by Mr Pastor Ridruejo and Mr Türmen; L. W.P.J.M. JOINT PARTLY DISSENTING OPINION OF JUDGES WILDHABER, PALM, LORENZEN, JUNGWIERT, GREVE, LEVITS AND MULARONI 1.To our regret we are unable to join the majority in their finding of a violation of Article 14 in conjunction with Article 8. We see no reason to depart from the Court’s findings in the Elsholz case, where the Court found no violation of Article 14 in conjunction with Article 8. 2.We have a different understanding of the findings of the national courts. As a basic point we agree with the majority that the national courts when reaching their conclusions appeared to apply a test similar to that which would have been applied to a divorced father (see paragraph 91 of the judgment).", "3.The majority then cite the reference in the national courts’ judgments to section 1711 § 2 of the Civil Code and their recourse to the formula of “in the child’s interest” as it appears in that provision. In our view that is an overly formalistic approach. The Court’s task is not to examine the domestic legislation in the abstract but to examine the manner in which the legislation was applied to the applicant in the particular circumstances (see paragraph 86 of the judgment). That means that the formal reference to a particular provision of the Civil Code and the particular formulas used in the domestic judgments are not decisive. What is decisive is the substance of the national court judgment – namely, whether the treatment of the applicant as the father of a child born out of wedlock was different in comparison with that of a divorced father.", "4.In the present case, the German courts found that forcing a thirteen-year-old girl to see the applicant against her will, which had been stated clearly and for a long time, would “seriously disturb her emotional and psychological balance” (paragraph 23). The courts, having regard to the child’s best interest, concluded that the only justifiable decision was not to grant access. In such circumstances, we are not persuaded that those courts placed a burden on the applicant which was heavier than the one on divorced fathers under section 1634 § 1 of the Civil Code. In both cases access would not be granted. This means that there was no difference in treatment between the applicant and a divorced father.", "5.Having regard to the above considerations, we find that the application of section 1711 § 2 of the Civil Code in the instant case did not give rise to a breach of Article 14 of the Convention, taken together with Article 8. 6.On the other hand we agree with the majority that the exclusion of the possibility of a further appeal under section 63a of the Act on Non-Contentious Proceedings amounted to discrimination against the applicant and was therefore in breach of Article 14, taken together with Article 8 (see paragraphs 95-98 of the judgment). PARTLY DISSENTING OPINION OF JUDGE RESS JOINED BY JUDGES PASTOR RIDRUEJO AND TÜRMEN 1. As in the case of Sahin v. Germany, we regret that we cannot agree with the majority’s opinion that there has been no violation of Article 8 in relation to the procedural requirements implicit in this Article of the Convention. On the other hand, we share the opinion of the Grand Chamber which endorsed the view of the Fourth Section that there was no substantive violation of Article 8.", "The reasons given by the German courts to justify their decisions refusing access, namely that the then thirteen-year-old girl had expressed the clear wish not to see her father, the applicant, and had done so for several years, so that forcing her to see him would seriously disturb her emotional and psychological balance, are convincing and not arbitrary and, as we agree, the relevant decisions were indeed taken in the interest of the child. It is not for this Court to supervise the national courts’ findings in relation to the interests of a child except in cases where their reasoning is clearly arbitrary and would in the end harm the child’s health and development. We fully agree with the reasoning of the Grand Chamber in paragraphs 57 to 60 of the judgment and we would like to stress that it is completely wrong to assume that the Court has increasingly entered into the material elements of the best interests of children in the field of parental rights of access. 2. The fundamental issue raised by this case under Article 8 concerns the procedural requirements implicit in this Article, requirements which the Court has already developed and clarified on many occasions.", "It is one of the basic requirements in relation to parents’ rights of access to their children that there exist legal safeguards designed to secure the effective protection of the rights of parents and children to respect for their family life (see Elsholz v. Germany [GC], no. 25735/94, § 49, ECHR 2000-VIII; Kutzner v. Germany, no. 46544/99, §§ 65-66, ECHR 2002-I; and Covezzi and Morselli v. Italy, no. 52763/99, 9 May 2003). A decisive element of these “parental rights of access” resides in the question whether the level of involvement of the applicant in the decision-making process, seen as a whole, provided him with the requisite protection of his interests.", "The procedural rule should be that first established in Elsholz (cited above), namely that the domestic courts should assess the difficult question of the child’s best interest on the basis of a reasoned and up-to-date psychological report, and that the child, if possible, should be “heard” by the psychological expert and the court. 3. As the Chamber rightly stated, the District Court which heard the child and the parents had only the psychologist’s rather superficial submissions to hand, which had been prepared in the context of the first set of proceedings two years previously; it did not have at its disposal any new psychological expert evidence in order to evaluate the child’s seemingly firm wishes. The procedural requirement to have up-to-date psychological expert evidence in order to obtain correct and complete information on the child’s relationship with the applicant as the parent seeking access to the child would seem an indispensable prerequisite for establishing a child’s true wishes and thereby striking a fair balance between the interests at stake. This procedural requirement is endorsed even more by recent research on the so-called parental alienation syndrome (“PAS”), which has been described by Richard A. Gardner in the American Journal of Forensic Psychology (2001, pp.", "61-106) under the title “Should courts order PAS children to visit/reside with the alienated parent? A follow-up study”, and which has received an increasing amount of attention. Courts should therefore address the question whether parental alienation syndrome is present and what specific consequences such a syndrome could have on the child’s development and – as the Chamber put it – on the establishment of “a child’s true wishes”. It is also noteworthy that the psychologist who was heard by the District Court in the first set of proceedings in 1992 had tried to arrange a meeting between the applicant and his child, which, however, had been cancelled by the child’s stepfather (paragraph 16 of the judgment). It is true that the District Court judge, in the second set of proceedings, heard the thirteen-year-old M., who stated that she did not wish to talk to or see the applicant.", "However, since the last and only psychological expert opinion (a one-page submission) was submitted in April 1992, there was no other opinion about the truthfulness of the wishes expressed by the child and the question how far and how strongly she was influenced by her mother and her stepfather. To give the applicant the chance of effective participation in the proceedings, we would prefer to have adhered to the normal rule taken from Elsholz that an up-to-date psychological expert opinion is necessary to evaluate the child’s statements and to establish whether she is able to make up her own mind. The statements of a ten- or thirteen-year-old girl, whether she is heard in court or not, cannot always be decisive or even indicative of her true wishes. In such a complex situation, where the alienation of the child from her natural father by the strong influence of her mother and her stepfather can be perceived, a more thorough approach has to be taken and an effective and genuine chance of participation has to be given to the natural father. 4.", "As can be seen from the reasoning of the District Court in its judgment of 1 June 1994 and the Rostock Regional Court’s judgment of 17 June 1994, the law in force in the material time – that is, section 1711 (1) and (2) – strongly influenced the whole reasoning and procedure. Under German law it was the mother, having sole custody, who determined the father’s access. Only if it was in the child’s interest to have personal contact with the father could the guardianship court decide that the father had the right to such contact. It seems that this led both courts, the District Court and the Regional Court, to place substantial, if not decisive, emphasis from the very beginning on the wishes expressed by the child. This application of section 1711 of the Civil Code placed the whole burden of proof on the applicant, requiring him to show that even against the clearly stated will of his daughter, personal contact with her biological father would be in her interest.", "Such proof could only be established by a thorough psychological expert opinion, which would have to include the questions whether the child had really expressed her own wishes or more or less those of her mother and her stepfather, and whether a meeting with her biological father, such as the one that the psychologist had tried to arrange in 1992, would be useful for the development of relations between the child and her biological father. The absence of a new psychological expert opinion was a clear result of the disadvantages of the legal situation of children born out of wedlock at the material time. We agree that this legislation violated Article 8 in conjunction with Article 14 of the Convention and we furthermore conclude that this violation had a direct impact on the denial of the applicant’s procedural rights inherent in Article 8 of the Convention itself." ]

[ "SECOND SECTION CASE OF MEHMET ŞENTÜRK AND BEKİR ŞENTÜRK v. TURKEY (Application no. 13423/09) JUDGMENT STRASBOURG 9 April 2013 FINAL 09/07/2013 This judgment has become final under Article 44 § 2 of the Convention. In the case of Mehmet Şentürk and Bekir Şentürk v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Danutė Jočienė,Peer Lorenzen,András Sajó,Işıl Karakaş,Nebojša Vučinić,Helen Keller, judges,and Stanley Naismith, Deputy Section Registrar, Having deliberated in private on 19 March 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 13423/09) 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 two Turkish nationals, Mr Mehmet Şentürk and Mr Bekir Şentürk (“the applicants”), on 17 February 2009.", "2. The applicants, who had been granted legal aid, were represented by Mr S. Cengiz and Mr H.Ç. Akbulut, lawyers practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent. 3.", "The applicants alleged, in particular, that there had been a substantive and procedural violation of Article 2 of the Convention on account of the death of their mother and wife, and of the child she was carrying. They claimed to have suffered psychologically on account of her death, and also complained about the suffering endured by the deceased throughout the period when she did not receive treatment (Article 3). They also complained about the excessive length of the proceedings (Article 6) and the absence of an effective remedy (Article 13). Finally, they relied on Article 1 of Protocol No. 1.", "4. On 8 July 2010 the Government were given notice of the application. Under the provisions of Article 29 § 1 of the Convention, it was also decided that the Chamber would examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicants were born in 1966 and 1993 respectively, and live in Bayraklı/İzmir. A. The circumstances surrounding the death of Mrs Menekşe Şentürk 6. On Saturday 11 March 2000, at about 10.30 a.m., Mrs Menekşe Şentürk, wife of Mehmet Şentürk (“the first applicant”) and mother of Bekir Şentürk, who was then thirty-four weeks pregnant, went to the Karşıyaka Public Hospital with her husband because she was experiencing pain. She was examined by a midwife, G.E., who decided that Mrs Şentürk was not yet at the end of her term and that there was no point calling a duty doctor to examine her.", "7. The first applicant then drove his wife to the İzmir Public Hospital Nevval Salih Alsancak İşgören (“Alsancak Public Hospital”), where they arrived between 11 and 11.30 a.m. Mrs Şentürk was examined by a midwife, A.Y., who, noting that the applicant’s wife was not yet at the end of her term and that there were no complications, did not call the duty gynaecologist for an examination. 8. In view of his wife’s continued pain, the first applicant drove her to the Atatürk Research and Teaching Hospital, where they arrived at about 2 p.m. Mrs Şentürk was examined by Dr F.B., an assistant doctor in the emergency department, then transferred to the urology department, where she was examined by Dr Ö.Ç., a urologist. He diagnosed renal colic, prescribed medication, decided to administer an analgesic and advised her to come back for a consultation after she had given birth.", "9. As his wife’s pain did not lessen on returning home, the first applicant drove her that evening to the Ege University Medical Faculty Hospital. There, she was initially examined by Dr S.A.A., an emergency doctor, then transferred to the gynaecology and obstetrics department, where she was placed in the care of a team of doctors. After conducting an ultrasound scan, they established that the child she was carrying had died and that immediate surgery was necessary to remove the child. She was then informed that hospitalisation and surgery had to be paid for, and that a deposit of 600 or 700 million Turkish lira was to be paid into the hospital’s operating fund.", "As the first applicant stated that he did not have the requested sum, his wife could not be hospitalised. The emergency doctor, Dr S.A.A., arranged for the first applicant’s wife to be transferred to the İzmir (Konak) Gynaecology and Obstetrics Hospital in a private ambulance in which no medical staff were present. 10. Mrs Şentürk died at about 11 p.m. while being transferred by ambulance. B.", "The investigation by the Ministry of Health 11. Between 26 October and 23 November 2000, the investigation committee at the Ministry of Health conducted an investigation into the circumstances of Mrs Şentürk’s death, in the course of which the following persons were questioned: the first applicant, the individuals who had accompanied Mrs Şentürk to the hospitals, the members of the medical teams (midwives and doctors) in the various hospitals to which the deceased woman had been taken, and the ambulance driver who had driven her to the İzmir (Konak) Gynaecology and Obstetrics Hospital. 12. On 30 October 2000 statements were taken, inter alia, from two midwives working at the Karşıyaka district medical centre where Mrs Şentürk was monitored throughout her pregnancy. Their witness statements indicated that Mrs Şentürk had gone to the centre on 3 March 2000 for a check-up; the child’s heartbeat had not been heard, as a result of which the midwives advised her to go to a hospital as soon as possible for an ultrasound scan.", "13. On 31 October 2000 a statement was taken from G.E., the midwife at Karşıyaka Public Hospital who had examined Mrs Şentürk. Evidence taken on that occasion indicates that she had heard the child’s heartbeat and that the child was alive when she examined the mother. In this connection, she specified that she had listened to the child’s heartbeat with a Doppler foetal monitor, so that it would have been impossible to miss the sound, as this machine provided information on the number of heartbeats per minute. Having decided that Mrs Şentürk’s condition was normal, she had not seen the point of carrying out an ultrasound or having her examined by the duty doctor.", "14. On 1 November 2000 a statement was taken from A.Y., midwife at the Alsancak Public Hospital, who stated that she had heard the child’s heartbeat when examining the mother, that the child had been alive at that point and that, having found no complications, she had not requested the on-call duty gynaecologist. 15. On 9 November 2000 statements were taken from T.K., S.A. and Ö.Ö., doctors in the gynaecology and obstetrics department at the Ege University Medical Faculty Hospital, who stated that they had informed the first applicant of the need to remove the child by Caesarean section. They denied having told the patient or her husband that they had to pay 600 or 700 million Turkish lira into the operating fund and said that they did not know who could have done so.", "They also claimed that they had explained the patient’s situation to the duty specialist, S.Ö., who had not examined her but had seen her, and who had available to him all of the information on her case. Each of them also stated, in particular, that: “... it was explained to the patient’s husband that the baby was dead and that it was necessary to remove him or her by Caesarean section ... I never said to the patient that she had to pay 600-700 million Turkish lira into the operating fund for this surgery ... I don’t know who said that ... The signature under the note [stating that] hospitalisation was not accepted is that of the patient Menekşe Şentürk ...", "I never said to the patient and her relative that if they did not pay into the operating fund ... we could not operate on her ... It was the patient herself who refused to be hospitalised, who said that she could not pay this sum and who signed the papers. Her husband took the patient away, saying that he could not accept this cost, that he refused hospitalisation and that he was going to take her to the Konak maternity unit ... My colleagues and I, as a team, explained ... to the husband that it was absolutely essential to remove the baby and that he should not take the patient away, but we were unable to persuade him ...” In a statement taken on the same date, S.Ö., a gynaecology and obstetrics specialist at the Ege University Medical Faculty Hospital, who had been the duty doctor on the evening in question, said that he had been informed by T.K. about the patient’s situation and had recommended that she be admitted to hospital. He also claimed not to have spoken with the patient’s husband, not to have instructed him to make a contribution to the operating fund, and to have been informed by the team which had examined the patient that hospitalisation had been recommended but refused by her husband.", "16. On 23 November 2000 a committee of medical experts issued a report with the following conclusions: “1. Nurse G.E. examined Menekşe Şentürk and stated that her condition did not necessitate calling the duty doctor. Although this should have been done, the nurse did not feel the need to do so.", "In such a case, the principle is that patients are to be examined by a specialist doctor, since a nurse does not have a [sufficient] level of knowledge to assess the seriousness of the situation. The nurse should call the specialist for every patient [who comes to the hospital]. 2. The midwife and nurse A.Y. did not have sufficient knowledge to make a diagnosis as to the patient’s [condition].", "She should have been examined by a specialist. In fact, for a correct diagnosis to be made, all patients who come to a polyclinic should be examined by a specialist. The duty doctor in the emergency department, F.B., ought to have asked for a KHD [Kadın Hastalıkları ve Doğum – gynaecology and obstetrics] consultation. Only a doctor who examined the patient in this way would have been able to determine whether her symptoms at that time indicated a complication of pregnancy. The duty urologist, Ö.Ç., examined the patient from a purely urological perspective.", "However ... he ought to have conducted a general examination and asked for a KHD consultation. Only a doctor who examined the patient in this way would have been able to determine whether her symptoms at that time indicated a complication of pregnancy. 3. In the light of the patient’s clinical symptoms, the specialist duty doctors at the Ege University Medical Faculty Hospital ought to have insisted that she be hospitalised. 4.", "The presence of medical staff in the ambulance would have made no difference to the outcome. In the light of the information available to date, the causes of death cannot be truly determined. [This will be possible] in a definite manner after the autopsy, the results of which will enable the [possible] liabilities for negligence of the above-mentioned members of staff to be established with certitude ... Causes of death: 1. Rupture of the uterus.", "2. Embolism of the mesoderm. 3. Detached placenta. 4.", "Low probability of aggravated pre-eclampsia.” 17. On 24 November 2000, in the light of this expert report and the statements given by the various parties involved, the head inspector of the Ministry of Health drew up a report concluding that the midwives G.E. and A.Y., employed in the Karşıyaka Public Hospital and the Alsancak Public Hospital respectively, had failed in the duties attached to their functions, in that they had sent the patient home in spite of her continuing pain and without having had her examined by a duty doctor. He also considered that doctors F.B. and Ö.Ç., employed at the Atatürk Teaching and Research Hospital, had failed in the duties attached to their functions, in that they had not requested a consultation with a gynaecology and obstetrics specialist, nor indicated to the patient that she should seek such a consultation.", "Furthermore, the investigation concluded that a complaint report had been drawn up concerning the issue of the liability of T.K., H.V., S.A. and Ö.Ö., doctors in the gynaecology and obstetrics department at the Ege University Medical Faculty Hospital, so that it was not necessary to rule again in their respect. The head inspector reached the same conclusion as to the liability of the impugned ambulance company, and a separate report had been transmitted on this matter to the İzmir Directorate of Health. The investigation report noted, however, that doctors T.K., H.V., S.A., and Ö.Ö. had failed in their obligations and thus caused, by their negligence, imprudence and lack of experience, the death of Mrs Şentürk. Finally, the committee considered that Dr S.A.A.", "from the Ege University Medical Faculty Hospital had committed no error in transferring Mrs Şentürk to the gynaecology and obstetrics department. The report on the findings of the investigation into the events which occurred at the Ege University Medical Faculty Hospital include the following points: “After her examination in the emergency department ..., Menekşe Şentürk was transferred to the obstetrics department ... Menekşe Şentürk, who was 34 weeks pregnant, was examined by the duty team at the obstetrics department. During the ultrasound carried out by the duty team ..., the child’s heartbeat was not heard and it was ascertained that he or she was dead ... The patient’s relatives [were informed] that it was necessary to remove the child, for the sake of the mother’s health ... However, as the patient’s relatives had stated that they did not have the resources to pay hospital fees ... the duty team did not admit the patient to hospital and transferred her to the İzmir gynaecology and obstetrics hospital in this condition, after obtaining her signature attesting that she was refusing hospitalisation ...", "Although by law they ought to have dealt with the procedures concerning costs [only] after admitting the patient to hospital, examining her, reaching a diagnosis and providing care [to the patient], it is understood that the doctors failed in their duty by transferring her without treatment, [although she] was in an emergency situation and suffering persistent pain, and thus caused her death.” Various witness statements were cited in this investigation report. In particular, some of them read as follows: “Statement by Mehmet Şentürk: ... on Saturday 11 March 2000, at about 10 a.m., I drove my wife ..., who was eight months pregnant, to the emergency department at the Karşıyaka Public Hospital because of the violent pain she was feeling. Our neighbour N.S. was with us ... My wife was examined at the Karşıyaka Public Hospital ... they told me that they could not do anything, that the ultrasound machine was turned off ... [and] that it would be preferable that I drive [her] to the Alsancak Public Hospital ... I drove my wife to the emergency department at the Alsancak Public Hospital at about 11.15 a.m.", "There, the people in charge of the emergency department ... told me that they were short of staff and that the ultrasound machine was turned off ... the staff on duty then told me to take [her] to another hospital. On hearing that, I took my wife to the Atatürk Yeşilyurt Teaching and Research Hospital ... It was about midday when I accompanied her to the obstetrics department ... The doctor told me to take her to the urology department ... I took her to the urology department.", "They asked for urological examinations and a renal USG test ... [My wife] waited three or four hours on a stretcher in the emergency department at Atatürk Teaching and Research Hospital. Her pains had become even stronger. On seeing this, I went to see the head of the emergency department. I told him that my wife was feeling very unwell and I asked that she be examined by a doctor from the urology department ... the urologist examined her ... After examining her, he said: “there is still time before the birth, at the moment there is nothing we can do, tell the emergency department to give her painkillers and take her home”, and he issued a prescription ... I said to the doctor that my wife was eight months pregnant and asked him whether the medicines were harmful.", "He said that it was not necessary to take them all the time, but only if the pain got worse ... Painkillers were administered, but I don’t know what type ... the pain did not go away ... I took [my wife] back home ... it was about 6.30 p.m. when I took her home ... In the evening, at about 8.30 p.m., I saw that my wife’s condition had worsened and, accompanied by Ö.A.G. ..., I drove her to the Ege University Hospital ... The doctor who examined my wife ... told me that the baby had died ...", "I told him to save my wife ... The doctor told me that I had to pay 600-700 million lira into the operating fund to have the baby removed from the mother by surgery ... I replied that I did not have that amount at that time, but to operate [on my wife] and I would sign a paper [undertaking] to pay. The doctor told me that I had to pay the money ... I asked him to tell me what to do ...", "They then told me to take her immediately to the Konak maternity hospital ... We called an ambulance ... I asked a woman who was present whether a nurse should accompany [my wife]. She replied “they haven’t sent a nurse” ... We started driving ... We arrived at the Konak Hospital ... the duty staff told me that my wife was dead ... My wife was not cared for with diligence in the hospitals I took her to. If at least an ultrasound had been carried out at the Karşıyaka Public Hospital, the Alsancak Public Hospital or the Atatürk Teaching and Research Hospital, and had I been told that the child was dead, then, given that it was still daytime, I could have got the money together for the operation and saved my wife. I was not informed that my wife had been examined on 3 March 2000 at the Bayraklı medical clinic and that the child’s heartbeat had not been heard ... A day or two before 3 March 2000, she told me that she had twisted her ankle on the last two steps of the staircase and had hit the banister ... but that she was not in pain and did not need to go to the doctor ...", "Statement by Ö.A.G. : ... we drove the patient to the emergency department at the Ege Hospital ... One of the doctors told me that her condition was serious. He said to go and pay 700 million lira into the operating fund ... I don’t know the name of that doctor. It was about 10 p.m. at that stage.", "I had 150 million lira with me. I told the doctor that I had that amount, that I [could] pay it and [could] sign a paper for the remainder ... He said that this would not do, that he could not operate. I insisted that he operate. He refused again.", "I then asked what [we] should do ... He told us to take her to the Konak maternity hospital. At the same time, he asked us, under duress, to sign a document certifying that we were taking the patient out of hospital of our own free will ... Statement by Ahmet Y.: ... We took Menekşe Şentürk to the Ege University Hospital at about 9 p.m. They admitted us immediately to the emergency department.", "A woman doctor examined her ... she told us that the baby was dead ... The doctor told us that the baby had to be removed by emergency surgery ... The doctor said that we had to pay the hospital about 700 million [lira] for the operation. The patient’s husband said that he could not pay the entire amount immediately, that he could pay some of it but would sign a paper and pay later. The doctor said to talk to the cashier’s desk [vezne].", "The people at the cashier’s desk told us that we had to pay the entire amount. We then spoke again with the doctor who had examined the patient. We told her that we had not been able to pay all of the money and asked her what we should do. She told us to take the patient immediately to the Konak maternity hospital ... Statement by S.A.A.", ": ... Menekşe Şentürk came to the emergency department on 11 March 2000, complaining about stomach pains ... I met the patient ..., [and] carried out an examination ... I sent her to the gynaecology and obstetrics department. About half an hour after being examined in the obstetrics department, the patient came back to the emergency department ... The patient’s husband told me that the obstetrics doctors had informed him that the baby was dead ... and that she had to be hospitalised.", "I asked why they had not hospitalised her instead of taking her back to the emergency department. The patient’s husband told me that they had been asked to pay fees ... and as he could not pay that amount he wanted to take his wife to the Konak maternity hospital. At this point he was in a state of panic and emotional. I told him calmly that the baby had to be removed immediately from the mother’s stomach, [that he had] to take her back and have the patient hospitalised immediately ... [so that] the child could be removed, otherwise the mother’s life could be in danger ... In spite of what I said, the patient’s husband wrote on the patient’s examination form: “In spite of the doctor’s advice, we have refused hospitalisation” and signed it.", "I exerted no pressure ... to have this statement written ... The patient’s husband told me that the doctors in the [gynaecology and obstetrics department] had told him that he had to pay a deposit, if my memory serves me correctly, of 400 million lira ... Statement by M.D., driver from the private ambulance company: ... at about 10.30 p.m. on 11 March 2000 I collected the patient from the obstetrics department and drove her to the emergency department. There, I told the head nurse, S.T., to assign a nurse for the ambulance. She said that that was impossible.", "Later, I asked the doctor in the emergency department which was transferring the patient if I could have a nurse for the ambulance. But she too said that it was impossible, that the baby was dead in the mother’s stomach and that I had to drive her immediately to the Konak Hospital ... I put the patient in the ambulance ... The patient’s husband got in beside her ... There was no nursing staff in the ambulance ... Before we put her in the ambulance, in front of the Ege Hospital emergency department ..., the patient told me not to take her away ... That must have been about 10.40 p.m.", "When we arrived at Konak ... I saw that the patient had died ... As I had explained [to her] ..., the reason that there was no nursing staff in our ambulance ... was because our duty nurse was occupied with the transfer of another patient ... The doctors and a nurse at the hospital told me that the patient had been dead on arrival. They told me that they had no morgue and that we ought to take her back to the Ege University morgue ...” According to the statements as recorded, four doctors from the Ege University Medical Faculty Hospital, namely T.K., S.A., Ö.Ö. and S.Ö., denied having told the applicant or the deceased woman that they would have to pay a sum of money in order for the surgical procedure in question to be carried out.", "C. The criminal proceedings brought against the medical staff 1. The proceedings against doctors T.K., H.V., S.A. and Ö.Ö. 18. On 26 February 2001 the management of the Ege University medical faculty opened an investigation in respect of the doctors T.K., H.V., S.A. and Ö.Ö. 19.", "On 10 September 2001 it decided that there were no grounds for bringing proceedings against those doctors. 20. On 26 August 2002 a committee of investigation, composed of doctors, issued a report concluding that the doctors in question had not committed any error and that, accordingly, there were no grounds for bringing proceedings against them. 21. On 24 October 2002, on the basis of Article 2 of the Convention, Article 3 of the Universal Declaration of Human Rights and Article 17 of the Turkish Constitution, provisions which concern the right to life, the first applicant lodged an objection against that decision.", "He alleged, inter alia, that the committee ought to have verified the legislation in force and Ege University’s practice in cases requiring emergency hospitalisation where hospital fees could not be paid. 22. On 22 January 2003 the Supreme Administrative Court set aside the conclusions contained in the investigation report. It noted that the committee had not examined which criteria had to be met in hospitals in order to begin treating a patient whose life was in danger and whose condition required urgent medical intervention. It also noted that the committee had not asked for the investigation to be widened to include Dr S.Ö., gynaecology and obstetrics specialist at the Ege University Medical Faculty Hospital, who had been on duty on the night in question, in order to determine his responsibility with regard to the disputed events.", "It considered that those shortcomings should be addressed. 23. On 23 January 2004, considering that there had been neither negligence nor carelessness on the part of the doctors in question, the investigation committee adopted a new report, concluding that there was no case to answer. It specified that the case file did not make it possible to determine what should be done in medical emergencies requiring hospitalisation where the corresponding fees were not paid. 24.", "On 25 February 2004, relying on Article 2 of the Convention, Article 3 of the Universal Declaration of Human Rights and Article 17 of the Constitution, provisions concerning the right to life, the first applicant again lodged an objection against those conclusions. He alleged, in particular, that the fact of not including S.Ö. in the investigation proceedings amounted to a failing in that investigation, and asked that Dr S.Ö. be included in the proceedings. 25.", "On 14 April 2004 the Supreme Administrative Court sent the case back to the Ege University Rector’s Office. 26. On 16 May 2005 the investigation committee adopted a new report, which again concluded that there was no case to answer, in the absence of negligence or carelessness that was imputable to the doctors T.K., H.V., S.A., Ö.Ö. and S.Ö. 27.", "On 13 June 2005 the first applicant submitted an appeal against those conclusions to the Supreme Administrative Court. 28. On 27 September 2005 the Supreme Administrative Court upheld that appeal, considering that there was sufficient evidence that the accused doctors had committed the acts for which they were criticised. It based this finding on the report drawn up on 20 and 21 May 2004 by the General Medical Council (Yüksek Sağlık Şurası, see paragraph 45 below), stating that the named doctors were four-eighths liable for Mrs Şentürk’s death. It therefore held that they should be subjected to criminal proceedings and transmitted the file to the prosecution service.", "29. On 17 November 2005 the İzmir Criminal Court noted that the Supreme Administrative Court had transmitted the case to it directly in the absence of an indictment from the prosecution service, and consequently decided to discontinue the proceedings brought against T.K., H.V., S.A., Ö.Ö. and S.Ö., since the opening of proceedings was subject to the issue of an indictment. 30. On 21 April 2006 the İzmir public prosecutor issued an indictment against doctors T.K., H.V., S.A. and Ö.Ö., calling for their conviction for unintentional homicide (Article 455 § 1 of the Criminal Code).", "31. On 11 September 2006 the first applicant applied to intervene in the proceedings, a request which the İzmir Criminal Court granted on the same date. 2. The proceedings against the midwife G.E. 32.", "By a decision of 1 March 2001, the Karşıyaka District Governor authorised the opening of criminal proceedings against the midwife G.E. for breach of her professional duties. 33. On 25 April 2001 the Karşıyaka public prosecutor indicted the defendant for breach of her professional duties (Article 230 § 1 of the Criminal Code) and called for her conviction. 34.", "On 23 October 2001 the Karşıyaka Criminal Court acquitted the defendant on the ground that another midwife had also been on duty on the day of the events, and that it had not been established that it was the defendant who had examined the deceased and had sent her home without first calling for a specialist to examine her. The court added that, moreover, even supposing that the defendant was the midwife who had examined Mrs Şentürk and sent her home, the breach in her duties had not been intentional, so that the constituent elements of the offence had not been made out. 35. This judgment became final on 31 October 2001. 36.", "On 14 June 2005, on the basis of the conclusions in the report by the General Medical Council finding that G.E. was two-eighths liable for his wife’s death (see paragraph 45 below), the first applicant asked that the criminal proceedings against that midwife be reopened. 37. On 12 October 2005 the first applicant applied to join the proceedings against G.E. as a civil party.", "38. On 9 March 2006 the Karşıyaka Criminal Court granted the request for reopening of the proceedings and announced the joinder of this case and the proceedings pending before the İzmir Criminal Court (see paragraphs 51 et seq. below). It also decided to submit to the Criminal Division of the Court of Cassation the dispute as to jurisdiction between those two courts. 39.", "On 12 June 2006 the Court of Cassation decided to join the criminal proceedings in question and named the Karşıyaka Criminal Court as the court with jurisdiction for examining the remainder of the proceedings. 3. The criminal proceedings against A.Y., F.B. and Ö.Ç. 40.", "On 14 March 2001 the Governor of Konak authorised the opening of proceedings against the midwife A.Y. and the doctors F.B and Ö.Ç. 41. On 12 October 2001 the İzmir public prosecutor charged those individuals with breach of duty (Article 230 § 1 of the Criminal Code) and called for their conviction. 42.", "On 12 April 2002 the first applicant asked to join the criminal proceedings before the İzmir Criminal Court as a civil party. The court granted that request at the close of a hearing on the same date. 43. On 13 November 2002 the first applicant called for the ambit of the proceedings to be widened, asking in particular for a forensic examination to determine how much time had elapsed between the deaths of the child and of his wife. 44.", "On 24 February 2003 the İzmir Criminal Court transferred the case file to the General Medical Council, for a decision by it on the defendants’ liability and its extent. 45. On 20 and 21 May 2004 the General Medical Council (Yüksek Sağlık Şurası) adopted a decision, the relevant extracts of which read as follows: “After examining the case file, documents and evidence, the commission has concluded: – that midwives G.E. and A.Y., who failed to evaluate correctly the situation after examining the patient and did not call the duty gynaecologist in spite of the patient’s complaints, are two-eighths liable; – that doctors Ö.Ç. and F.B., who examined the patient solely from the perspective of their area of expertise, although she was 34 weeks pregnant on arrival at the hospital, hypertensive and complaining of severe pain, and who failed to have her examined by an obstetrician, are three-eighths liable; – that the duty doctors T.K., H.V., S.A. and Ö.Ö., from the Ege University Medical Faculty Hospital, are four-eighths liable for the patient’s death, by having had her transferred, without assistance, to the centre for persons insured with the social security system, on the ground that she had no money, although her condition was not compatible with such a transfer.” 46.", "On 1 February 2005 the court received the report by the General Medical Council and noted that the defendants’ liability had been established, but not to the extent of eight-eighths. 47. On 14 March 2005 the first applicant referred to the report by the General Medical Council, which had concluded that, in addition to the persons accused in the context of the ongoing proceedings, other doctors working in the Ege University Medical Faculty Hospital had been found to be liable, and asked, in consequence, that indictments be issued in respect of those persons. 48. At the close of the hearing on 17 March 2005, the İzmir Criminal Court transferred the case file to the public prosecutor with a view to the adoption of a supplementary indictment against the defendants on the basis of Article 455 of the Criminal Code.", "49. On 25 March 2005 the İzmir public prosecutor issued a supplementary indictment with a view to charging the defendants with unintentional homicide (Article 455 § 1 of the Criminal Code), and called for their conviction in that respect. 50. On 4 July 2006 the first applicant asked the İzmir Criminal Court to complete the proceedings as soon as possible. Relying on Article 6 of the Convention, he emphasised that the length of the proceedings breached his right to a fair hearing within a reasonable time.", "He also stressed that their continued duration raised the risk of statutory limitation and infringement of his right of property, given that he might find himself deprived of any possibility of obtaining compensation for pecuniary and non-pecuniary damage. 51. On 30 January 2007 the İzmir Criminal Court decided to join the proceedings before it to those being conducted against the doctors T.K., H.V., S.A. and Ö.Ö. for unintentional homicide. 4.", "The criminal proceedings subsequent to the joinder of the cases 52. On 7 May 2007 the first applicant’s lawyer, on behalf of the first applicant’s under-age son, submitted a request to join the proceedings as a civil party. He also complained about the length of the proceedings, emphasising the risk that they would become time-barred. He further submitted a claim for compensation in respect of the damage caused to his client on account of his wife’s death and claimed 60,000 Turkish lira (TRY) in respect of the non-pecuniary damage sustained by the first applicant and TRY 50,000 for the non-pecuniary damage sustained by the latter’s son, together with a claim for TRY 30,000, jointly, in respect of pecuniary damage. 53.", "At the close of the hearing of 8 May 2007 the Karşıyaka Criminal Court noted that the indictment contained no mention of Dr S.Ö., although the latter’s name had appeared alongside those of the defendants in the proceedings before the İzmir Criminal Court. Consequently, it asked for clarification as to whether, after the decision terminating the proceedings (see paragraph 29 above), charges had been dropped against S.Ö. or whether there had been an error. It added that, in the latter case, the omission ought to be rectified. 54.", "At the hearing of 27 November 2007, the Karşıyaka Criminal Court noted that the prosecutor had replied that charges had not been dropped against S.Ö. and that there may have been an error. The court asked that measures be taken in this regard. 55. On 11 February and 18 March 2008 the applicant’s lawyer lodged a memorial with the court, complaining about the length of the proceedings.", "56. At the hearing of 12 February 2008, the court noted that the opening of proceedings against S.Ö. had not been such as to influence the ongoing proceedings but could protract the case. Consequently, it decided not to wait for those proceedings to be opened. 57.", "On 18 March 2008 the criminal court found A.Y., Ö.Ç., F.B., T.K., H.V., Ö.Ö. and S.A. guilty of unintentional homicide and sentenced them to two years’ imprisonment and a fine of TRY 91. In application of the provisions of the Criminal Code on the remission of sentences, it commuted A.Y.’s sentence to a fine of TRY 468; that of Ö.Ç. and F.B. to a fine of TRY 703; and that of T.K., H.V., S.A. and Ö.Ö.", "to a fine of TRY 937. In addition, all of the sentences were suspended. The court dismissed the request for conviction of defendant G.E., noting that, although the report by the General Medical Council had established that she was two-eighths liable, that circumstance did not amount to a ground for reopening the criminal proceedings against her under Article 314 of the Code of Criminal Procedure. In consequence, it upheld her acquittal as pronounced at the close of the first criminal proceedings. The relevant part of the criminal court’s reasoning reads as follows: “... [I]t emerges from the case file as a whole that: – Menekşe Şentürk, who was eight months pregnant, was driven to the Karşıyaka Public Hospital in İzmir by her husband on Saturday 11 March 2000 on account of severe pain; – she was examined there by midwife G.E.", "..., the doctor was not informed, no measure was taken and, since labour had not begun, the patient was sent home; – she was then driven to the emergency department at the Alsancak Public Hospital, where she was examined by midwife A.Y., and she was sent home because labour had not begun; – towards 2 p.m., she was taken to the emergency department at the Yeşilyurt Atatürk Hospital, where she was examined by doctor F.B. ; on account of pain on her left side she was sent to the urology department, where she was examined by doctor Ö.Ç. who diagnosed renal colic, administered painkillers and sent her home; – as the pain persisted after the patient’s [husband] had taken her home, ... she was taken to the Ege University Medical Faculty Hospital; she was transferred by the emergency doctor ... to the maternity unit; there, it was established that the patient was eight months pregnant but that the [child’s] heartbeat could not be heard; although the doctor advised that the baby be removed, hospitalisation was not accepted, in the absence of financial resources; – the patient was then transferred to the İzmir gynaecology and obstetrics hospital, but died during the journey; – on account of this event [and] as was established by the General Medical Council, midwives G.E. and A.Y. were two-eighths liable, doctors Ö.Ç.", "and F.B. were three-eighths liable, doctors T.K., H.V., S.A. and Ö.Ö. were four-eighths liable; – in those circumstances, the defendants [ought] to be punished for the offences with which they are charged ...” 58. On 21 May 2008 the applicants lodged an appeal on points of law. In their pleadings they emphasised that the criminal court had not responded to the request, submitted on behalf of the applicant’s son, to join the proceedings as a civil party, nor to the claim for compensation submitted by them.", "They also challenged G.E.’s acquittal, given that her liability in the death had been established, and the fact that the prison terms imposed on the defendants had been suspended and commuted to fines. Furthermore, relying on Article 2 of the Convention, they alleged that there had been a breach of the right to life and that the State had failed in its positive obligations in this respect; they considered that the fact that the first applicant and his wife had been obliged to go from one hospital to another amounted to treatment contrary to Article 3. Relying on Articles 6 and 13, they complained about the length of the proceedings and the lack of any remedy to end the related damage. Finally, they submitted that the judgment had breached their right of property. 59.", "On 21 January 2009 the Principal Public Prosecutor at the Court of Cassation submitted his observations and asked that court to uphold the first-instance judgment in so far as it concerned G.E., to set it aside in respect of the other defendants on the ground that the offence was time-barred, and to end the proceedings. 60. On 7 October 2010 the Court of Cassation upheld the first-instance judgment in so far as it concerned G.E. It set aside the part of the judgment concerning the other defendants on the ground that the offence provided for in sections 102(4) and 104(2) of Law no. 765 had become time-barred.", "It thus terminated the proceedings on the ground that they were time-barred, in accordance with Article 322 of the Code of Criminal Procedure. 5. Proceedings brought against S.Ö. 61. On 4 January 2008 the İzmir public prosecutor dropped the charges against S.Ö.", "noting, in particular, that in its report of 20 and 21 May 2004 the health committee had not identified responsibilities attributable to him, that there was insufficient evidence against him and that the events for which he was criticised were now time-barred. 62. The first applicant lodged an objection against that decision. 63. On 14 January 2009 his objection was dismissed by the Karşıyaka Assize Court.", "II. RELEVANT DOMESTIC LAW 64. The relevant domestic law is described in Sevim Güngör v. Turkey ((dec.), no. 75173/01, 14 April 2009). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 65. The applicants alleged that there had been a breach of the right to life of their wife and mother, and of the child she was carrying, in violation of Article 2 of the Convention, the relevant part of which is worded as follows: “1. Everyone’s right to life shall be protected by law ...” 66. The Government contested that allegation. A. Admissibility 67.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The applicants’ submissions (a) The alleged substantive violation of Article 2 on account of the death of Mrs Menekşe Şentürk 68.", "The applicants alleged that Mrs Şentürk lost her life on account of serious negligence by the doctors and midwives involved. They considered that this death could easily have been prevented if the doctors and/or midwives had acted in accordance with their duties and their professional code. On the contrary, they had been in grave breach of their duties. In this respect, the applicants also submitted that the events in question should not be classified as mere negligence, but as homicide. 69.", "According to the applicants, the deceased person was transferred under duress to the Konak Hospital maternity unit, despite the fact that the doctors at the Ege University Medical Faculty Hospital had established that her condition was critical. Thus, the first applicant was told to transfer his wife to another hospital because he was unable to pay a sum of about 1,000 euros (EUR) for her operation. Referring to the Court’s finding in Oyal v. Turkey (no. 4864/05, §§ 53-54, 23 March 2010), the applicants pointed out that the State had an obligation to provide the necessary medical care, since it managed and/or controlled the health-protection system. 70.", "The applicants also submitted that the doctors had been aware of the patient’s critical condition. Referring to the case of Jasinskis v. Latvia (no. 45744/08, §§ 67-68, 21 December 2010), they argued that the Government were responsible for her death, in that the necessary care had not been provided, and had therefore breached Article 2 of the Convention in its substantive aspect. (b) The alleged procedural violation on account of the death of Mrs Menekşe Şentürk 71. The applicants pointed out that the Court of Cassation had discontinued the criminal proceedings brought against the defendants as being time-barred, so that the latter had remained unpunished, and alleged that this illustrated the ineffectiveness and inadequate nature of the proceedings.", "It was evident that the domestic system protected medical staff rather than patients. The applicants observed, in particular, that they had had to wait until 2005, that is, five years after the events, for proceedings to be brought against the four accused doctors from the Ege University Medical Faculty Hospital, and then only through the intervention of the Supreme Administrative Court. The university committee, made up of medical personnel working in the same medical faculty, had proved highly reluctant to authorise criminal proceedings. In fact, that committee had done its best to hinder the investigations, without which the criminal proceedings against the defendants in question would be null and void. 72.", "In addition to the ineffectiveness of the criminal investigation in respect of the university staff, the main file of the case had been constantly transferred between several criminal courts. Yet, according to the applicants, there was no rational basis for those postponements and transfers. (c) The alleged violation of Article 2 of the Convention on account of the death of the unborn child 73. The applicants pointed out that the child carried by the deceased woman died on 11 March 2000. They referred to the statements made by the various doctors and midwives, finding that he or she had died prior to birth as a result of a failure by the health system to identify possible problems.", "They alleged that the Government were responsible for the death of this child, given that the mother had not been provided, in a timely fashion, with the treatment required by her condition. Although a child who died before birth was not considered a person under the domestic criminal law, other countries, notably the United States of America, considered a child who died before birth as a person under criminal law. 74. As to the procedural aspect of the violation of Article 2 with regard to the death of the unborn child, the applicants alleged that no investigation had been conducted for the purpose of determining the time of death. Their requests concerning that death had been completely ignored by the domestic authorities.", "In this connection, the applicants criticised the authorities for acting as though that child had never existed. They alleged, however, that a child who died before birth had legal personality under civil law, so that the authorities ought to have opened an investigation and proceedings with a view to determining the time and cause of his or her death. In this respect, the applicants referred to the cases of Calvelli and Ciglio v. Italy ([GC], no. 32967/96, § 49, ECHR 2002‑I), and Öneryıldız v. Turkey ([GC], no. 48939/99, ECHR 2004‑XII).", "75. In addition, according to the applicants, Turkish criminal law did not contain any provision allowing for proceedings on account of the death of an unborn child, except in cases of a deliberately caused miscarriage. That being said, under civil law, an unborn child had rights while in the mother’s womb, subject to the proviso that he or she was born alive. The applicants alleged in this respect that the current structure of domestic law was inconsistent with international standards in this area and the common approach of member States of the Council of Europe. 2.", "The Government’s submissions 76. The Government submitted that the events and the responsibilities of all the persons involved in the disputed circumstances had been examined by the relevant judicial bodies at all levels in an independent manner, on the basis of numerous scientific reports, and that, in consequence, those responsible had been convicted and punished appropriately, in accordance with the legal provisions in force. 77. As to the hospital fees, the Government stated that patients arriving in an emergency condition were not obliged to pay hospital fees in advance, even if they were not insured with the social security system. They explained that once the necessary treatment had been given, those patients had to pay hospital fees if they had no social security cover.", "However, if the patient had neither social security cover nor the resources to pay the hospital fees, he or she was required, according to the Government, to obtain a certificate of poverty from the local solidarity foundations, in order to be exempted from paying hospital fees. 78. As to the legal status of the unborn child, the Government stated that, under Article 28 of the Civil Code, legal personality was attributed to children who were born alive and viable. 3. The Court’s assessment as to Mrs Menekşe Şentürk’s right to life (a) The general principles 79.", "The Court reiterates that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. These principles apply also to the area of public health (see, inter alia, Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000‑V, and Calvelli and Ciglio, cited above, § 48). It cannot be excluded that the acts and omissions of the authorities in the context of public-health policies may, in certain circumstances, engage their responsibility under the substantive limb of Article 2 (see Powell, cited above). 80.", "However, where a Contracting State has made adequate provision to secure high professional standards among health professionals and to protect the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life (ibid.). 81. That being so, the Court reiterates that the positive obligations imposed on the State by Article 2 of the Convention imply that a regulatory structure be set up, requiring that hospitals, be they private or public, take appropriate steps to ensure that patients’ lives are protected. They also imply the obligation to put in place an efficient and independent judicial system by which the cause of death of an individual under the responsibility of health professionals can be established, whether they are working in the public sector or employed in private structures, and, as the case may be, to ensure their accountability for their actions (see, in particular, Calvelli and Ciglio, cited above, § 49). 82.", "A requirement of promptness and reasonable expedition is implicit within this context. Rapid examination of such cases is important for the safety of users of all health services (see Byrzykowski v. Poland, no. 11562/05, § 117, 27 June 2006). The State’s obligation under Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice, and that requires a prompt examination of the case without unnecessary delays (see Šilih v. Slovenia [GC], no. 71463/01, § 195, 9 April 2009).", "83. Moreover, even if the Convention does not as such guarantee a right to have criminal proceedings instituted against third parties, the Court has stated on many occasions that the effective judicial system required by Article 2 may, and under certain circumstances must, include recourse to the criminal law (see Calvelli and Ciglio, cited above, § 51). However, if the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged (ibid., § 51).", "(b) Application of those principles to this case (i) The alleged violation of the substantive limb of Article 2 of the Convention 84. In the instant case, the applicants do not allege that Mrs Şentürk’s death was intentional. They submit, however, that the events for which the medical staff in question were criticised ought not to be classified as mere negligence, but ought to be considered as amounting to homicide. Under the substantive limb of Article 2, they thus allege that the members of the medical staff were in breach of their professional duties on account of the serious negligence ascribed to them, but also on account of the failure to provide medical treatment to Mrs Şentürk because the deceased woman and her husband did not have the necessary financial resources (see paragraphs 68-70 above). 85.", "The Court notes at the outset that the facts complained of by the applicants differ considerably from those it had occasion to examine in the above-cited cases (see paragraphs 79-83 above). Accordingly, it considers that the criteria and principles developed in the above-mentioned case-law, drawn up as they were in a substantially different context from the present case, cannot be transposed per se to the present case, but must, however, guide it in assessing the circumstances of the case. 86. Firstly, the Court considers it necessary to point out that the interpretation of the domestic-law provisions, in this case the issue of the criminal classification of the alleged offences, comes within the sole province of the domestic courts (see Prado Bugallo v. Spain (dec.), no. 21218/09, 18 October 2011).", "Moreover, in the circumstances of the present case, it notes that the conduct of certain of the medical staff accused by the applicants was classified in domestic law as unintentional homicide, as defined in Article 455 of the Criminal Code (see paragraphs 30, 49 and 57 above). 87. The Court also observes that a record of the successive instances of medical negligence to which the applicants’ wife and mother was subjected, and also the incompetence of certain members of the medical staff who examined her, was set out in the investigation and expert reports. It further notes that the responsibility of the accused medical staff was clearly established by those reports (see paragraphs 16, 17 and 45 above). Equally, the Supreme Administrative Court, when asked to determine whether proceedings could be brought against the doctors in the Ege University Medical Faculty Hospital, considered that the conduct of those doctors was a matter for criminal prosecution and called for proceedings to be brought against them (see paragraph 28 above).", "Finally, the responsibility of part of the accused medical personnel in Mrs Şentürk’s death was recognised by the first-instance criminal court (see paragraph 57 above). 88. In this connection, the Court points out that an issue may arise under Article 2 where it is shown that the authorities of a Contracting State put an individual’s life at risk through the denial of health care they have undertaken to make available to the population in general (see Cyprus v. Turkey [GC], no. 25781/94, § 219, ECHR 2001‑IV, and Nitecki v. Poland (dec.), no. 65653/01, 21 March 2002).", "89. In the circumstances of this case, the Court is therefore required to determine whether the domestic authorities did what could reasonably be expected of them and whether, in particular, they fulfilled, as a matter of principle, their obligation to protect the patient’s physical integrity, particularly through the administration of appropriate medical treatment. In so doing, the Court attaches weight to the sequence of the events which led to Mrs Şentürk’s tragic death as set out in the case file, and to the deceased’s medical files. It also considers that a distinction must be made in this respect between the care provided to her prior to her arrival at the Ege University Medical Faculty and the events which occurred subsequent to her arrival at that hospital. 90.", "The investigation conducted at the domestic level established that Mrs Şentürk’s death had been due not only to the errors of judgment made by health professionals – this was particularly the case prior to the deceased’s arrival at the Ege University Medical Faculty Hospital – but also to a failure to provide treatment to the deceased woman on account of her inability to pay the hospital fees in advance (see paragraphs 16, 17, 45 and 57 above). 91. In this connection, the Court notes, in the light of the material in the file and particularly the findings of 24 November 2000 as set out in the report from the Ministry of Health’s investigation, that it is established that the doctors at the Ege University Medical Faculty Hospital caused their patient’s death by having her transferred without treatment and failed in their duties in that they had concerned themselves with payment of the fees for medical care (see paragraph 17 above). 92. Equally, duty doctors T.K., H.V., S.A. and Ö.Ö.", "from the obstetrics department at the Ege University Medical Faculty Hospital were found by a committee of experts to be four-eighths liable for the death of the first applicant’s wife “by having had her transferred, without assistance, to the centre for persons insured with the social security system, on the ground that she had no money, although her condition was not compatible with such a transfer” (see paragraph 45 above). 93. The Court also notes, having read the criminal court’s reasoning of 18 March 2008 and on the basis of the material in the file, that the first applicant and his wife refused the hospitalisation recommended by the doctors in that hospital “in the absence of financial resources” (see paragraph 57 above). 94. Finally, it notes the investigation committee’s conclusions, dated 23 January 2004, on the appropriateness of bringing criminal proceedings against that hospital’s medical staff, conclusions which stated that the file did not enable the committee to determine what should be done in medical emergencies requiring hospitalisation where the corresponding fees were not paid (see paragraph 23 above).", "95. According to the Government, emergency medical treatment is provided without a requirement for advance payment (see paragraph 77 above). In this regard, the Court considers it useful to specify that it is by no means its task in the present case to rule in abstracto on the State’s public-health policy on access to treatment at the relevant time. It is sufficient for the Court to note, in the light of the findings of the various national bodies regarding the circumstances of Mrs Şentürk’s death, that the provision of treatment at the Ege University Medical Faculty Hospital was subordinated to a prior financial obligation. This dissuasive obligation resulted in the patient’s decision to decline treatment within that hospital.", "However, in view of the investigation report of 24 November 2000 (see paragraph 17 above) and the various statements included in the investigation file, particularly those of S.A.A. and the ambulance driver who transferred the deceased woman (see paragraph 17 above), the Court is of the opinion that this decision to decline treatment cannot in any way be considered as having been made in an informed manner or as being such as to exonerate the national bodies from their responsibility with regard to the treatment which ought to have been provided to the deceased woman. 96. Indeed, the Court emphasises that there was no doubt as to the seriousness of the patient’s condition when she arrived at the Ege University hospital, nor as to the need for immediate surgery, the absence of which was likely to have extremely serious consequences. While in no way speculating as to Mrs Şentürk’s chances of survival had she received medical treatment within the Ege University Medical Faculty Hospital, the Court notes that the medical staff at that hospital were perfectly aware of the risk to the patient’s health were she to be transferred to another hospital (see paragraph 17 above).", "In addition, it appears that the case file did not enable the committee which refused to authorise proceedings against those members of staff to assess what should be done in situations of medical emergency when the fees due could not be paid (see paragraphs 23 and 94 above). It appears that the domestic law did not have provisions in this area capable of preventing the failure in this case to provide the medical treatment required by the deceased woman’s condition. 97. Thus, the deceased woman, victim of a flagrant malfunctioning of the hospital departments, was deprived of the possibility of access to appropriate emergency care. This finding is sufficient for the Court to conclude that the State failed in its obligation to protect her physical integrity.", "Consequently, it concludes that there has been a violation of the substantive limb of Article 2 of the Convention. (ii) Alleged violation of the procedural limb of Article 2 of the Convention 98. The Court emphasises that the applicants’ complaints also concern the fact that the doctors and midwives who were accused and found to be criminally responsible for Mrs Şentürk’s death at first instance had not received criminal sanctions, since the prosecution had been discontinued as being time-barred (see paragraph 71 above). In this connection, it notes, having regard to the evidence in the file, that there had indeed been no final conviction of those presumably responsible for Mrs Şentürk’s death as a result of the offence in question becoming time-barred. 99.", "In the light of the information submitted by the parties, the Court notes that the applicants had used only a domestic criminal-law remedy to complain about the failings of the doctors and midwives responsible for caring for the deceased woman. It is therefore required to examine whether the investigations conducted by the authorities following the applicants’ criminal complaint satisfied the requirements of promptness, effectiveness and reasonable diligence arising from the procedural limb of Article 2 (for a similar approach, see Eugenia Lazăr v. Romania, no. 32146/05, § 72, 16 February 2010). 100. In this connection, the Court notes that the administrative phase of prior authorisation for proceedings, essential in order to have criminal proceedings opened against doctors T.K., H.V., S.A. and Ö.Ö., who had been involved in the impugned events, lasted almost three years, until the Supreme Administrative Court – faced with the relevant investigation committee’s systematic refusal [to act] – decided to send, of its own motion, the case before the criminal courts so that proceedings could be brought (see paragraph 28 above).", "It further notes that on 7 October 2010, after more than nine years of proceedings, all of the proceedings brought against the medical staff in question were discontinued as being time-barred – with the exception of those concerning G.E., whose acquittal was upheld. 101. The Court reiterates that while there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities is vital 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 Šilih, cited above, § 196). In the present case, the Court can only note that the length of the disputed proceedings failed completely to satisfy the requirement of a prompt examination of the case without unnecessary delays (see, for a similar conclusion, Eugenia Lazăr, cited above, § 75). 102.", "Furthermore, the Court notes that the criminal proceedings appear to have been characterised by an initial omission, namely the failure to commence prosecution of S.Ö., and that this situation persisted until 2008, when charges were dropped (see paragraphs 24, 53-54 and 61-63 above). 103. Admittedly, the Court has already held that, in cases of death through medical negligence, the Turkish legal system affords injured parties, on the one hand, criminal proceedings and, on the other, the possibility of bringing an action in the relevant civil court, together with the possibility of disciplinary proceedings if civil liability is established. It has thus concluded that the Turkish legal system offers litigants remedies which, in theory, meet the requirements of Article 2 (see Sevim Güngör v. Turkey (dec.), no. 75173/01, 14 April 2009; Pak v. Turkey (dec.), no.", "39855/02, 22 January 2008; and Alhan v. Turkey (dec.), no. 8163/07, 14 September 2010). 104. The Court sees no reason to call into question those findings, which remain valid in the context of the case currently before it, given that the various forms of negligence and medical error to which the victim was subjected prior to her arrival at the Ege University Medical Faculty Hospital are in issue. Nonetheless, it reiterates that it has found, in the particular light of the conclusions of the investigations conducted by the domestic authorities, that in the circumstances of this case the negligence attributable to that hospital’s medical staff went beyond a mere error or medical negligence, in so far as the doctors working there, in full awareness of the facts and in breach of their professional obligations, did not take all the emergency measures necessary to attempt to keep their patient alive.", "105. It reiterates, moreover, that the fact that those responsible for endangering life have not been charged with a criminal offence or prosecuted may entail a violation of Article 2, irrespective of any other types of remedy which individuals may exercise on their own initiative (see, mutatis mutandis, Öneryıldız, cited above, § 93 in fine, and Kalender v. Turkey, no. 4314/02, § 52, 15 December 2009). The Court considers that the same applies where a patient is confronted with a failure by a hospital department to provide medical treatment and this results in the patient’s life being put in danger. 106.", "Consequently, and in view of the findings concerning the shortcomings in the criminal proceedings in question (see paragraphs 100‑02 above), the Court concludes that there has been a procedural violation of Article 2 of the Convention. 4. The Court’s assessment as to the foetus’s right to life 107. The Court reiterates that in its judgment in Vo v. France ([GC], no. 53924/00, § 82, ECHR 2004‑VIII) the Grand Chamber held that, in the absence of any European consensus on the scientific and legal definition of the beginning of life, the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere.", "The Grand Chamber thus found that “it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention” (ibid., § 85). 108. Since then, the Grand Chamber has had an opportunity to reaffirm the importance of this principle in A, B and C v. Ireland ([GC], no. 25579/05, § 237, ECHR 2010), in which it pointed out that the rights claimed on behalf of the foetus and those of the mother are inextricably interconnected (see, to the same effect, the review of the Convention case-law at paragraphs 75-80 in the above-cited Vo judgment). 109.", "In the circumstances of the present case, the Court sees no reason to depart from the approach adopted in those cases, and considers it unnecessary to examine whether the applicants’ complaint as regards the foetus falls within the scope of Article 2 of the Convention. It considers that the life of the foetus in question was intimately connected with that of Mrs Şentürk and depended on the care provided to her. That circumstance has been examined in the light of the infringement of the deceased woman’s right to life (see paragraphs 87-97 above). Accordingly, the Court considers that the applicants’ complaint in this connection does not require a separate examination. II.", "ALLEGED VIOLATION OF ARTICLES 3, 6 AND 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 110. Relying on Article 3 of the Convention, the applicants allege that they themselves suffered psychologically as a result of the death of their wife and mother, and complain about the suffering endured by the deceased woman throughout the entire period in which she did not receive treatment. Under Article 6 of the Convention, they also complain about the excessive length of the proceedings and the absence of reasoning in the judgment issued by the criminal court. On the basis of Article 13 of the Convention, the applicants also complain about the ineffectiveness of the medical and legal system in responding to complaints such as theirs.", "In this respect, they explain that they had to wait five years in order to obtain administrative authorisation for prosecution of the doctors from Ege University. They further allege that no domestic remedy was available that would have enabled them to obtain compensation for the damage arising from the excessive length of the judicial proceedings. Finally, the applicants claimed that the criminal courts at first instance had failed to rule on their claims for damages, and allege, under Article 1 of Protocol No. 1, that the fact that the proceedings became time-barred had deprived them of the possibility of pursuing an action for compensation. 111.", "Having regard to its finding under Article 2 of the Convention (see paragraphs 97 and 106 above), the Court considers that it has examined the legal question raised by the present application. Having regard to the facts of the case and the parties’ arguments, it considers that it is no longer necessary to examine separately the other complaints under Articles 3, 6 and 13 of the Convention and Article 1 of Protocol No. 1 (for a similar approach, see Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007). III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 112. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 113. The first applicant, Mehmet Şentürk, claimed 542.20 euros (EUR) in respect of the pecuniary damage which he claimed to have sustained, and submitted as evidence a breakdown assessing the loss of financial support caused by his wife’s death at 1,172.35 Turkish lira. He also claimed EUR 100,000 in respect of non-pecuniary damage; Bekir Şentürk claimed EUR 200,000 under this head.", "114. The Government contested these claims. With regard to the amounts claimed in respect of pecuniary damage, they alleged that these had not been substantiated in any way, so that they found it impossible to understand what tangible criteria had been used in calculating the alleged loss. 115. The Court reiterates that there must be a clear causal link between the damage claimed and the violation of the Convention and that the award of just satisfaction may, in an appropriate case, include compensation for loss of financial support (see, among many other authorities, Kavak v. Turkey, no.", "53489/99, § 109, 6 July 2006). In the present case, it has found (see paragraph 97 above) that the domestic authorities were responsible under Article 2 of the Convention in that they had not protected the life of Mrs Şentürk. It emphasises, however, that the calculation submitted by the applicant specifies that the deceased woman had no independent source of income. In those circumstances, it considers that the alleged pecuniary damage has not been sufficiently proved. It therefore rejects the applicant’s request under this head.", "116. The Court further considers it appropriate to award the applicants jointly the sum of EUR 65,000 in respect of non-pecuniary damage. B. Costs and expenses 117. The applicants also claimed EUR 1,931.25 in respect of the costs and expenses incurred before the domestic courts, EUR 11,562.50 in respect of lawyer’s fees for the proceedings before the Court, and EUR 216 in respect of the costs incurred before the Court.", "They produced as evidence an hourly breakdown of the work carried out by their lawyer, and receipts. 118. The Government contested these claims. 119. According to the Court’s case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum.", "In the instant case, and having regard to the documents available to it and to its case-law, the Court considers it reasonable to award the applicants jointly EUR 4,000 for costs and expenses, less the EUR 850 received by way of legal aid, for the proceedings before it. C. Default interest 120. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible as to the complaint under Article 2 of the Convention concerning Mrs Menekşe Şentürk’s death; 2.", "Holds that there has been a substantive violation of Article 2 of the Convention on account of the death of Mrs Menekşe Şentürk; 3. Holds that there has been a procedural violation of Article 2 of the Convention; 4. Holds that there is no need to examine separately the remainder of the complaints; 5. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into Turkish lira at the rate applicable on the date of settlement: (i) EUR 65,000 (sixty-five thousand euros) jointly to the two applicants, plus any tax that may be chargeable to the applicants, in respect of non-pecuniary damage; (ii) EUR 4,000 (four thousand euros) jointly to the two applicants, less the EUR 850 (eight hundred and fifty euros) received by way of legal aid, plus any tax that may be chargeable to the applicants, for costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicants’ claim for just satisfaction.", "Done in French, and notified in writing on 9 April 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithGuido RaimondiRegistrarPresident" ]

[ "FIFTH SECTION CASE OF BERGER v. GERMANY (Application no. 55809/00) JUDGMENT (Friendly settlement) STRASBOURG 14 June 2007 This judgment is final but it may be subject to editorial revision. In the case of Berger v. Germany, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: MrP. Lorenzen, President,MrK. Jungwiert,MrV.", "Butkevych,MrsM. Tsatsa-Nikolovska,MrJ. Borrego Borrego,MrsR. Jaeger,MrM. Villiger, judges,and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 22 May 2007 Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 55809/00) 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, Karl Berger (“the applicant”), on 7 March 2000. 2. The applicant was represented by J. Berger, a lawyer practising in Coburg. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling‑Vogel, Ministerialdirigentin, Federal Ministry of Justice.", "3. The applicant complained, inter alia, under Article 6 § 1 of the Convention about the length of the proceedings before the Federal Constitutional Court. 4. On 8 January 2007, after obtaining the parties' observations, the Court declared the application admissible in so far as this complaint is concerned. Further complaints of the applicant were declared inadmissible on the same date.", "5. On 27 March 2007, 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 23 April 2007 and on 30 April 2007 the Government and the applicant respectively submitted formal declarations accepting a friendly settlement of the case. THE FACTS 6. The applicant was born in 1949 and lives in Reischach.", "7. After the entry into force of the Bavarian Roads and Tracks Act (Bayerisches Straßen- und Wegegesetz) in 1958 the Municipality of Reischach registered a track running over the land of the applicant's mother as a public field and forest track. His mother had not been informed of this measure. When she learned about the registration of her track, she seized without success the competent German courts. 8.", "On 16 November 1991 the applicant's mother filed a constitutional complaint with the Federal Constitutional Court (Bundesverfassungsgericht) against the previous decisions. After his mother's death on 12 September 1996, the applicant continued the proceedings before the Federal Constitutional Court. On 17 September 1999 the Federal Constitutional Court, sitting as a bench of three judges, refused to accept the constitutional complaint for adjudication. THE LAW 9. On 23 April 2004 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 8,000 euros to Karl Berger 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, and free of any taxes that may be applicable, 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.” 10. On 3 May 2007 the Court received the following declaration signed by the applicant's representative: “I, Josef Berger, legal counsel, note that the Government of Germany are prepared to pay ex gratia the sum of 8,000 euros to Mr Karl Berger 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 , and free of any taxes that may be applicable, 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.” 11. 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). 12. Accordingly, the case should be struck out of the list.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to strike the application out of its list of cases; 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 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]

[ "THIRD SECTION CASE OF KNEŽEVIĆ AND OTHERS v. SERBIA (Applications nos. 54787/16 and 6 others – see appended list) JUDGMENT STRASBOURG 9 October 2018 This judgment is final but it may be subject to editorial revision. In the case of Knežević and Others 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 18 September 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in seven separate applications (nos. 54787/16, 55000/16, 55009/16, 55034/16, 55203/16, 58557/16, and 60159/16) against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).", "2. The applicants are all Serbian nationals. Additional personal information and other relevant details, as well as the dates of introduction of their complaints before the Court, are set out in the appendix to this judgment. 3. The applicants were all represented by Ms D. Janković, a lawyer practising in Čačak.", "The Serbian Government (“the Government”) were represented by their Agent, Ms N. Plavšić. 4. On 27 April 2017 the applicants’ complaints concerning the length of the enforcement proceedings were communicated to the Government and the remainders of their applications were declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 5. The Government objected to the examination of the applications by a Committee.", "After having considered the Government’s objection, the Court rejects it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. Under Article 6 § 1 of the Convention the applicants complained of the excessive length of enforcement proceedings. 7.", "The circumstances of the cases as presented by the parties may be summarized as follows. A. Proceedings before the civil courts 1. As regards the first, second, third and fourth applicant 8. Between 18 December 2000 and 16 April 2003, the first, second, third and fourth applicants lodged separate civil complaints with the Čačak Municipal Court (Opštinski sud u Čačku) against the same socially owned‑company, Akcionarsko društvo Fabrika reznog alata Čačak, requesting the payment of salary related damages.", "9. On 26 December 2007, the Čačak Municipal Court ruled in favour of the applicants. 10. On 30 July 2008 Čačak District Court (Okružni sud u Čačku) upheld this judgment on appeal. 11.", "On 31 March 2009 the applicants lodged a joined enforcement request which was accepted by Čačak Municipal Court on 2 April 2009. 2. As regards the fifth applicant 12. On 22 June 2005 the fifth applicant lodged her civil complaint with the Čačak Municipal Court against Akcionarsko društvo Fabrika reznog alata Čačak requesting the payment of an allowance. 13.", "On 21 April 2008 the Čačak Municipal Court ruled in favour of the fifth applicant. In the absence of an appeal, this judgment subsequently became final. 14. On 27 October 2009 the fifth applicant lodged an enforcement request which was accepted by Čačak Municipal Court on 28 October 2009. 3.", "As regards the sixth applicant 15. On 27 August 2003 the sixth applicant lodged her civil complaint with the Čačak Municipal Court against Akcionarsko društvo Fabrika reznog alata Čačak requesting the payment of salary related damages. 16. On 24 April 2008 the Čačak Municipal Court ruled in favour of the sixth applicant. 17.", "On 29 October 2008 the Čačak District Court upheld this judgment on appeal. 18. On 31 December 2008 the sixth applicant lodged an enforcement request which was accepted by Čačak Municipal Court on 08 January 2009. 4. As regards the seventh applicant 19.", "On 22 April 2003 the seventh applicant lodged his civil complaint with the Čačak Municipal Court against Akcionarsko društvo Fabrika reznog alata Čačak requesting the payment of salary related damages. 20. On 11 November 2008 the Čačak Municipal Court ruled in favour of the seventh applicant. In the absence of an appeal, this judgment subsequently became final. 21.", "On 9 April 2009 the seventh applicant lodged an enforcement request which was accepted by Čačak Municipal Court on 4 February 2010. B. First set of proceedings before the Constitutional Court 22. Since the judgment rendered in favour of the applicants remained unenforced, on 24 February 2014, the sixth and the seventh applicants and on 19 May 2014, the first, second, third, fourth and fifth applicants, lodged their appeals with the Constitutional Court. 23.", "In so doing, the applicants complained about the length of enforcement proceedings in question and the ultimate non-enforcement. 24. Pursuant to the Amendments to Court Organization Act (Zakon o izmenama i dopunama Zakona o uređenju sudova; published in the Official Gazette of the Republic of Serbia, no. 101/13) the complaint concerning the length of proceedings was transmitted to the Kragujevac Court of Appeal which then itself forwarded the matter to the Čačak High Court (Viši sud u Čačku), i.e. the former Čačak District Court.", "C. Proceedings concerning the complaints about the excessive length of enforcement proceedings 1. As regards the first, second, third and fourth applicants 25. On 27 January 2015 the Čačak High Court found that the first, second, third and fourth applicants’ right to a trial within a reasonable time had been violated and awarded them 200 euros (EUR) each in respect of the non-pecuniary damage suffered due to the length of the enforcement proceedings. It, further, ordered the Čačak Court of First Instance (Osnovni sud u Čačku), i.e. the former Čačak Municipal Court, to speed up the enforcement proceedings and enforce the judgment rendered in the applicants’ favour.", "26. On 11 February 2015 the applicants complained to the Supreme Court of Cassation claiming that the compensation awarded was too low and, accordingly, inadequate for the violation found. On 26 March 2015 the Supreme Court of Cassation rejected the applicants’ appeals. 2. As regards the fifth applicant 27.", "On 14 January 2015 the Čačak High Court found that the fifth applicant’s right to a trial within a reasonable time had been violated and awarded her EUR 100 in respect of the non-pecuniary damage suffered due to the length of the enforcement proceedings. It also ordered to the Čačak Court of First Instance to speed up the proceedings and enforce the judgment. 28. On 2 February 2015 the fifth applicant complained to the Supreme Court of Cassation of the insufficient redress. Her appeal, however, was rejected on 22 April 2015.", "3. As regards the sixth applicant 29. On 2 December 2014 the Čačak High Court found that the sixth applicant’s right to a trial within a reasonable time had been violated and awarded her EUR 300 in respect of the non-pecuniary damage suffered due to the length of the enforcement proceedings. Her appeal to the Supreme Court of Cassation concerning the amount of the compensation awarded was rejected on 6 May 2015. 4.", "As regards the seventh applicant 30. On 20 February 2015 the Čačak High Court found that the seventh applicant’s right to a trial within a reasonable time had been violated and awarded him EUR 80 in respect of the non-pecuniary damage suffered due to the length of the enforcement proceedings. His appeal to the Supreme Court of Cassation concerning the amount of the compensation awarded was rejected on 19 May 2015. D. Second set of proceeding before the Constitutional Court 31. Between 3 August 2015 and 30 December 2015 all applicants lodged new appeals with the Constitutional Court.", "32. They complained, inter alia, about the failure of domestic authorities to enforce the final judgments rendered in their favour, and that the amount of compensation awarded by the competent courts in respect of the breach of their right to a trial within a reasonable time had been too low. 33. Between 12 May 2016 and 9 June 2016 the Constitutional Court found that due to the failure of domestic authorities to enforce the judgments rendered in the applicants’ favour their right to the peaceful enjoyment of possessions had, indeed, also been violated. The Constitutional Court, accordingly, awarded the applicants with pecuniary damages in the amounts granted by the judgments that had remained unenforced.", "34. However, the Constitutional Court rejected the applicants’ complaints concerning the insufficient redress as regards the violation of their right to a hearing within a reasonable time since it considered the awards given by the domestic courts as reasonable compensation for the violations found. 35. The Constitutional Court lastly emphasized that, in any event and due to the changes in legislation, it could not have assessed the specific reasons for the amounts awarded by other courts in this respect. II.", "RELEVANT DOMESTIC LAW 36. The Amendments to the Court Organization Act (Zakon o izmenama i dopunama Zakona o uređenju sudova; published in the Official Gazette of the Republic of Serbia no. 101/13), being an Act relevant to the present case, had been in force between 1 January 2014 and 1 January 2016 when the entirely new Trial within a Reasonable Time Act (Zakon o zaštiti prava na suđenje u razumnom roku, published in Official Gazette of the Republic of Serbia, no. 40/2015) entered into force. In accordance with the said Amendments, competence to deal with the alleged breaches of the right to a trial within a reasonable time in cases where the impugned proceedings were still ongoing was given directly to higher courts.", "Where a violation of a right to a trial within a reasonable time was found, these higher courts could award compensation for the non‑pecuniary damage suffered and order lower courts to expedite and bring to a conclusion the impugned proceedings within a certain period of time. These decisions could be appealed before the Supreme Court of Cassation. The Constitutional Court was, in accordance with the Amendments, left with the competence to deal with the alleged violations of the right to a trial within a reasonable time in cases where the proceedings before regular courts had already ended. THE LAW I. JOINDER OF THE APPLICATIONS 37. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 38. The applicants 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 ...” A. Admissibility 1. The parties’ submissions 39. Relying on the case of Vidaković v. Serbia (dec.) (no.", "16231/07, 24 May 2011) the Government maintained that the applicants could no longer claim to be victims within the meaning of Article 34 of the Convention given that the redress afforded by domestic courts had been adequate and sufficient. In the alternative, they claimed that in view of the grave socio-economic situation of the country and the limited budgetary resources it could not have been expected of domestic courts to award the applicants with higher sums than they did in respect of the non-pecuniary damage suffered. 40. In this connection, the Government further noted the changes in legislation (see paragraph 36 above) which precluded the Constitutional Court from re-examining the amounts of compensation awarded to the applicants. 41.", "The applicants contested these arguments and claimed that they are still victims within the meaning of Article 34 of the Convention. 2. The Court assessment 42. The Court considers that the above objections raised by the Government fall to be examined under the issue of the applicants’ victim status (see, mutatis mutandis, Vidaković v. Serbia (dec.), cited above). 43.", "Having said that, the Court recalls that an applicant’s status as a “victim” within the meaning of Article 34 of the Convention depends on the fact whether the domestic authorities acknowledged, either expressly or in substance, the alleged infringement of the Convention and, if necessary, provided appropriate redress in relation thereto. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Cocchiarella v. Italy [GC], no. 64886/01, § 71, ECHR 2006‑V; and Cataldo v. Italy (dec.), no. 45656/99, 3 June 2004). 44.", "The Court, in this respect, notes that the domestic authorities expressly acknowledged the breach of applicants’ right to obtain the enforcement of final domestic court’s decisions rendered in their favour within a reasonable time (see paragraphs 25 - 30 above). Accordingly, the first condition laid down in the Court’s case law is satisfied. 45. The applicants’ victim status then depends on whether the redress afforded in respect of the breach found was adequate and sufficient having regard to just satisfaction as provided for under Article 41 of the Convention (see Dubjaková v. Slovakia (dec.), no. 67299/01, 19 October 2004).", "46. In this connection, the Court recalls that for a person to lose the victim status compensation has to be sufficient and reasonable in comparison with the awards made by the Court in similar cases. 47. The Court notes that compensations offered by domestic authorities in the present cases are significantly lower compared with the sums awarded for the non-enforcement of judgments rendered against companies predominantly comprised of socially-owned capital (see, for example, Stošić v. Serbia, no. 64931/10, §§ 66 and 67, 1 October 2013, and Riđić and Others v. Serbia, nos.", "53736/08 and 5 others, § 84, 1 July 2014). 48. In the light of the material in the files and having regard to the particular circumstances of the cases, the Court considers that the sums offered to the applicants cannot be considered sufficient and therefore amount to appropriate redress for the violations suffered. 49. The Court therefore concludes that the applicants did not lose their status as victims within the meaning of Article 34 of the Convention.", "The Government’s objection in this regard must therefore be rejected. 50. The Court otherwise considers that the applicants’ 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 51. The applicants reaffirmed their complaints, while the Government made no comment. 52. The Court recalls that the execution of a judgment given by a court must be regarded as an integral part of the “trial” for the purposes of Article 6 (see Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, p. 510, § 40).", "A delay in the execution of a judgment may be justified in particular circumstances. It may not, however, be such as to impair the essence of the right protected under Article 6 § 1 (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 74, ECHR 1999-V). 53. The Court has also already held that the respondent State is responsible for the debts of companies predominantly comprised of socially/State owned capital, which is why neither the lack of its own funds nor the indigence of the debtor can be cited as a valid excuse for any excessive delays in this particular enforcement context (see, among many other authorities, R. Kačapor and Others v. Serbia, nos.", "2269/06 and 5 others, § 114, 15 January 2008; and Crnišanin and Others v. Serbia, nos. 35835/05 and 3 others, § 124, 13 January 2009). 54. Besides, the Court notes that the Serbian authorities have advanced no reasons for their failure to take all necessary measures in order to enforce the judgments at issue (see, mutatis mutandis, Riđić and Others v. Serbia, cited above, §§ 78 and 79) where a final judgment rendered against a socially owned company had been enforced following a five to seven years delay. 55.", "In view of the above and in particular the Court’s finding regarding the victim status of the applicants (see paragraph 49 above), the Court concludes that in the present case the length of the enforcement proceedings in question was excessive and failed to meet the “reasonable time” requirement. 56. There has accordingly been a violation of Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 57.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage, costs and expenses 58. The applicants claimed 2,000 euros (EUR) each in respect of the non-pecuniary damages suffered. They also claimed EUR 2,000 jointly for the costs and expenses incurred before the Court. 59.", "The Government considered the sums requested to be excessive. 60. In view of its case-law (see Stošić v. Serbia, cited above, and Riđić and Others v. Serbia, cited above), the Court considers it reasonable and equitable to award EUR 2,000 to each applicant, less any amount which may have already been paid in that regard at the national level, which sum is to cover all non-pecuniary damage as well as costs and expenses. B. Default interest 61.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the applications admissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4.", "Holds (a) that the respondent State is to pay each applicant, within three months, EUR 2,000 (two thousand euros), less any amount which may have already been paid in that regard at the national level, in respect of non-pecuniary damage, costs and expenses, plus any tax that may be chargeable on this amount, which is to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (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 9 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıPere Pastor VilanovaDeputy RegistrarPresident APPENDIX No.", "Application number and date of introduction Applicant name date of birth place of residence nationality Represented by Final domestic decision (issuing authority / case no., adopted on) Enforcement order (enforcement authority, case no., date of order) Constitutional Court decision details Amounts awarded domestically for non-pecuniary damage and costs and expenses per applicant in euros 54787/16 10/09/2016 Vinko KNEŽEVIĆ 01/01/1955 Čačak Serbian Dragana JANKOVIĆ Municipal Court in Čačak P1.br.1232/2002 26 December 2007 Municipal Court in Čačak I.br. 468/09 2 April 2009 Už-5478/2015 (Už-4544/2014) 12 May 2016 200 euros 55000/16 10/09/2016 Srećko JOVIČIĆ 01/11/1963 Čačak Serbian Dragana JANKOVIĆ Municipal Court in Čačak P1.br.1232/2002 26 December 2007 Municipal Court in Čačak I.br. 468/09 2 April 2009 Už-5478/2015 (Už-4544/2014) 12 May 2016 200 euros 55009/16 10/09/2016 Dragutin STANČIĆ 25/1 1/1952 Čačak Serbian Dragana JANKOVIĆ Municipal Court in Čačak P1.br.1232/2002 26 December 2007 Municipal Court in Čačak I.br. 468/09 2 April 2009 Už-5478/2015 (Už-4544/2014) 12 May 2016 200 euros 55034/16 10/09/2016 Svetlana MILOJEVIĆ 13/08/1960 Čačak Serbian Dragana JANKOVIĆ Municipal Court in Čačak P1.br.1232/2002 26 December 2007 Municipal Court in Čačak I.br. 468/09 2 April 2009 Už-5478/2015 (Už-4544/2014) 12 May 2016 200 euros No.", "Application number and date of introduction Applicant name date of birth place of residence nationality Represented by Final domestic decision (issuing authority / case no., adopted on) Enforcement order (enforcement authority, case no., date of order) Constitutional Court decision details Amounts awarded domestically for non-pecuniary damage and costs and expenses per applicant in euros 55203/16 16/09/2016 Zagorka ŠKILJEVIĆ 05/10/1958 Čačak Serbian Dragana JANKOVIĆ Municipal Court in Čačak P1.br.858/05 21 April 2008 Municipal Court in Čačak I.br. 1438/08 28 October 2008 Už-4358/2015 (Už-4535/2014) 19 May 2016 100 euros 58557/16 23/09/2016 Vera KOTLAJIĆ 03/03/1951 Čačak Serbian Dragana JANKOVIĆ Municipal Court in Čačak P1.br.1534/03 24 April 2008 Municipal Court in Čačak I.br.1820/08 8 January 2009 Už-4356/2015 (Už-1683/2014) 26 May 2016 300 euros 60159/16 07/10/2016 Prvoslav RAKOVIĆ 07/02/1946 Čačak Serbian Dragana JANKOVIĆ Municipal Court in Čačak P1.br.886/05 11 November 2008 Municipal Court in Čačak I.br. 9441/10 4 February 2010 Už-7856/2015 (Už-1682/2014) 9 June 2016 80 euros" ]

[ "SECOND SECTION CASE OF HUNVALD v. HUNGARY (Applications no. 68435/10) JUDGMENT STRASBOURG 10 December 2013 FINAL 10/03/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Hunvald v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Işıl Karakaş,Peer Lorenzen,András Sajó,Nebojša Vučinić,Paulo Pinto de Albuquerque,Egidijus Kūris, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 19 November 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "68435/10) 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 Gy. Hunvald, on 15 October 2010. 2. The applicant was represented by Mr P. Sebes, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice.", "3. The applicant alleged, relying on Article 5 §§ 1 (c), 3 and 4 of the Convention, that – while in detention on remand – his motions of evidence had been neglected or not dealt with in due time, therefore his detention had been unduly protracted. He also complained that his right to a fair trial had not been respected, in breach of Article 6 § 1, since he was not informed promptly and in adequate time about the reasons for the prosecution against him. Moreover, relying on Article 8, he complained of a restriction on maintaining contact with his family members. Furthermore, relying on Article 13, he submitted that there had been a violation of his right to an effective remedy since his appeal against the decision of 23 July 2010 had been rejected before he had introduced his detailed written appeal.", "Lastly, relying on Article 3 of Protocol No. 1, the applicant challenged the denial of his right to vote in municipal elections. 4. On 5 July 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1965 and lives in Budapest. 6. On 10 February 2009 the applicant, former Mayor of the Budapest 7th District Municipality, was arrested on charges of aggravated fraud and other crimes.", "Previously, criminal proceedings had been initiated against some of the close colleagues and acquaintances of the applicant in the same context. 7. In the prosecution’s ensuing motion to have the applicant detained on remand, the dangers of absconding, collusion and recidivism were referred to. 8. The defence argued that the applicant, as soon as he had become aware that the police wanted him, had voluntarily reported to the police and also indicated to the authorities his willingness to cooperate, without having any intention to abscond.", "9. The defence moreover submitted that the applicant’s pre-trial detention was not justified and should be substituted with a less coercive measure if any was needed at all. 10. On 12 February 2009 the Pest Central District Court ordered the applicant’s detention on remand, despite the defence’s request to have the applicant released, or that, if a coercive measure was inevitable, house arrest be considered instead. The court held that an element had occurred in the investigation according to which the applicant intended to influence the investigative authority, namely the prosecutor’s office, with the help of his rather wide circle of acquaintances; however, this element was not specified.", "The court also noted that several further steps of investigation were still outstanding, and therefore the risk of collusion or interference was real. It moreover held that the risk of repetition of crime would also be a real one if the applicant were released. After the announcement of the decision, the applicant’s lawyer immediately appealed, again proposing the application of less stringent measures if any were needed. 11. On 20 February 2009 the Budapest Regional Court upheld the first-instance decision but expanded the reasoning to include the risk of absconding.", "It noted the applicant’s settled family circumstances, but held that the detention was necessary, “for other reasons” (más okból), to pre-empt his absconding, without specifying the underlying reasons. 12. The defence’s ensuing request lodged with the Central Investigation Prosecutor’s Office to have further evidence gathered, namely expert opinions (in particular, a real estate valuer), was rejected. 13. On 10 and 12 February 2009 the Central Investigation Prosecutor’s Office restricted, for fear of collusion, the applicant’s personal contacts, that is, correspondence and contacts in person with his family members were allowed only under the supervision of the Public Prosecutor’s Office.", "He was authorised to maintain phone contacts only with his lawyer. In the context of the death of his father, the applicant was granted two meetings with relatives in May and June 2009. 14. The applicant’s pre-trial detention was repeatedly prolonged at the statutory intervals. In these proceedings, the arguments of the defence remained largely the same, supplemented by the fact that some concerns had emerged as to the applicant’s health condition.", "In reply to the applicant’s respective appeals, the second-instance court was satisfied that the lower court had assessed, in an individualised manner, the applicant’s personal circumstances as such. The defence raised the argument that the applicant, an influential former politician, had never attempted to conceal evidence or connive with witnesses, so that any fears of collusion were unfounded. However, the courts were not persuaded by this submission. 15. The applicant’s further requests for release or for a less coercive measure were to no avail.", "The defence repeatedly stressed the absence of concrete elements underlying the detention and the disregard for the applicant’s personal circumstances, most importantly his health problems. The courts rejected these submissions, mainly arguing that the risks of collusion or interference as well as that of repetition of crime were real and, moreover, a severe sentence was impending, rendering likely the applicant’s absconding. 16. As of 3 December 2009 the Central Investigation Prosecutor’s Office charged the prison detaining the applicant (Fővárosi BV. Intézet) with the responsibility to determine the length and frequency of family contacts.", "It instructed the penitentiary to grant, in particular, a family visit also in December. From 4 December 2009 onwards no specific restrictions were applied to the applicant, by virtue of a complaint accepted by the Attorney General’s Office. He could receive visits, maintain phone contacts and correspond with his family according to the general, statutory rules. 17. The defence’s requests for the applicant’s release on bail were rejected with the reasoning that bail was excluded by law in cases where reasons other than only the risk of absconding existed for the pre-trial detention.", "18. According to the courts’ reasoning given on 22 November 2010, when a preliminary session was held to prepare the trial, the applicant’s pre-trial detention was upheld only upon the risk of absconding, and the risk of collusion no longer existed. However, after this date, no request for release on bail was introduced afresh. 19. In the meantime, on 23 July 2010 a court session was held, at which the detention was again prolonged.", "Both the applicant and his lawyer appealed, orally, immediately after the pronouncement of the decision. Moreover, the applicant’s lawyer lodged a written elaboration of the appeal. This submission reached the court on 28 July 2010. The written version of the applicant’s own appeal was also dated 28 July (but was introduced to the court only on 30 July 2010). In the possession solely of the lawyer’s appeal, the second-instance court adopted a decision endorsing the prolongation on 28 July 2010.", "20. On 3 October 2010 municipal elections were held but the applicant was not allowed to participate, on account of his status as a detainee. 21. The file relating to the proceedings conducted against the applicant contained a 121-page indictment and investigatory files of some ten thousand pages. The case against altogether twenty-five defendants was lodged with the Budapest Regional Court on 9 November 2010.", "22. Meanwhile, the applicant underwent medical examinations by specialists at the Central Prison Hospital but no acute medical intervention was proposed. He expressly refused, in case of necessity, not only any surgical intervention within the institution but also any after-treatment of any potential surgery. 23. On 23 February 2011 the lawyer submitted medical documentation about the applicant’s state of health and requested the courts to terminate the pre-trial detention and order house arrest instead.", "24. On 11 March 2011 the court rejected the request, referring to the fact that the applicant had refused any medical treatment. It noted that the surgery in question could be carried out at the Central Prison Hospital or, if necessary, at a civilian hospital. 25. On 13 May 2011 the applicant was released by an order of the first-instance court and placed under house arrest.", "However, on the prosecution’s appeal, he was detained again as of 17 June 2011. The applicant’s detention was finally terminated on 29 October 2011. After a first-instance partial conviction, on 10 October 2013 the Szeged Court of Appeal gave a second-instance judgment. The applicant’s appeal is pending before the Kúria. II.", "RELEVANT DOMESTIC LAW 26. Act no. XIX of 1998 on the Code of Criminal Procedure provides as follows: Section 43(3) “A detainee shall be entitled to ... b) have contact with his relative or ... any other person [by telephone] or in person under supervision, or in writing under control. Contact with a relative may be restricted or banned exclusively in the interest of the success of the criminal proceedings.” Section 129 “(2) Pre-trial detention of a defendant may take place in a procedure related to a criminal offence punishable by imprisonment, and only under the following conditions: ... b) if, owing to the risk of escaping or absconding, or for other reasons, there is reasonable cause to believe that the presence of the defendant in procedural actions cannot be otherwise ensured, c) if there is reasonable cause to believe that if left at liberty, the defendant would frustrate, obstruct or jeopardise the taking of evidence, especially by means of influencing or intimidating witnesses, or by the destruction, falsification or secretion of physical evidence or documents, ... d) if there is reasonable cause to believe that if left at liberty, the defendant would accomplish the attempted or planned criminal offence or commit another criminal offence punishable by imprisonment.” Section 131 “(1) Pre-trial detention ordered prior to filing the indictment may continue up to the decision of the court of first instance during the preparations for the trial, but may never be longer than one month. The pre-trial detention may be extended by the investigating judge by three months at the most on each occasion, but the overall period may still not exceed one year after the order of pre-trial detention.", "Thereafter, pre-trial detention may be extended by the county court acting as a single judge by two months at the most on each occasion, in compliance with the procedural rules pertaining to investigating judges.” Section 186 “(1) Any person having the right to be present at an investigatory action may forthwith inspect the minutes taken. (2) The suspect, counsel for the defence and the victim may inspect the expert opinion during the investigation as well, but may only inspect other documents if this does not injure the interests of the investigation. (3) The suspect and counsel for the defence shall be entitled to receive a copy of the documents they may inspect. (4) The copy of the documents produced, obtained, filed or attached in the course of the investigation and containing the testimony or personal data of the victim or the witness shall not indicate the personal data of either the victim or the witness. No copy may be issued of the draft decisions of the prosecutor or the investigating authority.", "No copy may be issued of the documents created in the course of communications between the prosecutor and the investigating authority pursuant to sections 165 and 165/A, except for the documents that contain the legal standpoint of the prosecutor and the investigating authority in relation to the case – including particularly the document containing the prosecutor’s instruction concerning the conduct of the investigation, provided that the specific investigation was conducted – provided that this does not interfere with the interests of the investigation.” Section 195 “(1) Anyone affected directly by the dispositions contained in the prosecutor’s or investigating authority’s decision on the rejection of a complaint [...about] coercive measures ... may file a complaint within eight days following communication of the decision. (4) ... The complaint against the decision of the prosecutor shall be adjudged by the superior prosecutor, while the complaint against the decision of the investigating authority shall be judged by the prosecutor, within fifteen days of receipt... (5) [A] the decision admitting or rejecting the complaint is not subject to any further remedy.” Section 211 “(3) At the [court] session, the [prosecution] having submitted the motion [on ordering or prolonging pre-trial detention] shall present the evidence substantiating the motion in writing or orally. Those present shall be granted the opportunity to examine – within the limits set forth in section 186 – the evidence ... . If a notified party does not attend the session but submitted observations in writing, this document shall be presented by the investigating judge.” Section 215 “(1) A decision of the investigating judge may be appealed by all those parties who have been notified thereof.", "Any appeal against a decision notified by way of oral pronouncement shall be lodged [orally] immediately after the pronouncement. (5) Regardless of an appeal, the order for a coercive measure entailing the restriction on deprivation of personal freedom may be executed [at once].” 27. Law-Decree no. 11 of 1979 on the Execution of Punishments and Measures provides as follows: Section 118 “(1) A pre-trial detainee ... d) may have correspondence with his relatives and – with the approval of the public prosecutor, or after the filing of the bill of indictment, with the approval of the court – with other persons; he may receive one visitor and one parcel at least once a month. (2) The pre-trial detainee’s right of correspondence and right to receive visitors and parcels may – except for contact with his defence counsel – be limited in the interests of the successful completion of the criminal proceedings.” 28.", "Decree no. 6 of 1996 (VII.12.) of the Minister of Justice on the Rules of Enforcement of Imprisonment and Detention on Remand provides as follows: Section 6 “(1) ... In matters related to his detention, the inmate may ... request the head of the organisational unit concerned or the prison governor to hear him in person, or may address them in writing. (2) The inmate may file a complaint to the prison governor against a ruling (measure, decision) taken or omitted under subsection (1).", "Where the decision has been taken by the prison governor ... the complaint shall be adjudged by the National Commander of the Prison Administration.” Section 7 “In matters related to his detention, the inmate may, in addition to the remedies provided under section 6, turn directly to: a) the penitentiary supervisory public prosecutor, requesting him to hear him in person; ... b) the Ombudsman, in regard to any alleged violation of human rights sustained during the incarceration; ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 29. The applicant complained that his detention and its prolongations had been unjustified since the courts had failed to produce any concrete elements underlying the necessity of this measure. He relied on Article 5 § 1 of the Convention. The Court considers that this complaint falls to be examined under Article 5 § 3, which reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial.", "Release may be conditioned by guarantees to appear for trial.” 30. The Government contested the applicant’s argument. 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 applicant complained that the decisions prolonging his detention had not been individualised or taken into account his health condition, nor had they substantiated the risk of his absconding, collusion or re-offending.", "Moreover, they had not involved an assessment of the possibility of applying less stringent measures. The arguments of the defence (see paragraphs 10 and 11 above) had largely remained unanswered. 33. The Government submitted that the applicant’s pre-trial detention had been based on specific facts related to his case in accordance with section 129(2) b), c) and d) of the Code of Criminal Procedure. Pre-trial detention could be ordered if there was a risk of collusion or repetition of crime or a danger of the defendant’s absconding or for other reasons if it could be assumed that the defendant’s presence at the procedural acts could not be secured otherwise.", "34. The Government went on to argue that, as a precondition for detention on remand, the existence of reasonable suspicion against the applicant had been examined by the judicial authorities ordering detention. A reasonable suspicion of a crime indeed persisted throughout his pre-trial detention. Throughout the initial stages of the investigation, the charges against the applicant had gradually developed; the facts and the characterisation of the offences had been modified as the investigation had progressed. The judicial authorities had been satisfied that all the charges were supported by solid evidence, corroborating the reasonable suspicion against the applicant When, in consecutive decisions, identical reasoning had been applied in regard to the detention, this had been justified by the courts’ finding that there had been no change in the relevant circumstances since the previous decision.", "35. As to the particular grounds of detention on remand, the Government asserted that the danger of collusion had been supported by information obtained through secret surveillance to the effect that the applicant had intended to influence the investigation authorities via his political connections. The risk of reoffending had been found to be supported by the fact that the offences which the applicant was suspected of had been committed during a long period of time and in an organised manner. As regards the risk of absconding, the judicial authorities had been aware of the applicant’s settled family circumstances; nonetheless, “for other reasons”, the courts had assumed that the applicant’s availability for justice could not be secured otherwise. This “other reason” had related to the complex personal and material correlations, the organised commission of the applicant’s alleged offences involving large sums of money, and the fact that the unravelling of the network in question had been against the interests of criminal organisations.", "36. Likewise, the possibility of applying less stringent measures had also been examined by the courts. The restriction on the applicant’s contacts with others had been of paramount importance in order to prevent collusion. House arrest had not been adequate because it would not have prevented those contacts. Release on bail, when requested, had been excluded by law; and when this was no longer the case, it had not been requested again.", "2. The Court’s assessment 37. The Court reiterates that under its case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, W. v. Switzerland, 26 January 1993, § 30, Series A no.", "254-A). 38. It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention.", "The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, §§ 152-153, ECHR 2000–IV). 39.", "In the present case, the Court observes that the applicant was kept in detention on remand for over thirty-one months. He was considered by the domestic courts to pose a potential risk of absconding and collusion; moreover, it was also considered that he might potentially re-offend. The risk of absconding was corroborated in the eyes of the authorities, as was repeated by almost all court instances prolonging the detention, in essence by the gravity of the charges and the related severity of the impending sentence, as well as by a certain ‘element’ of evidence (see paragraph 11 above) pointing to the applicant’s intention to abscond, which however was never specified or revealed to the defence. Moreover, those authorities held that the organised character of the alleged crime and the magnitude of the sums involved amounted to establishing the risks of collusion and reoffending – and this without embarking on any particular analysis as to the manner in which those findings and assumptions interrelated. 40.", "Assuming that the suspicion that the applicant had committed a serious offence initially justified his detention, the Court considers that the gravity of the charges, although “relevant”, could not itself constitute a “sufficient” ground for his being held in custody for the entire period. Moreover, as to the remaining two grounds, the Court observes that the findings of the courts prolonging the applicant’s detention under those heads were reproduced in rather stereotyped decisions, whereby the applicant’s substantive arguments were not duly considered. 41. The Court notes that the defence’s arguments also included health issues. In this respect the Court finds that Article 5 § 3 cannot be read as obliging the national authorities to release a detainee on account of his state of health.", "The question of whether or not the condition of the person in custody is compatible with his continued detention should primarily be determined by the national courts and they are in general not obliged to release the detainee on health grounds or to place him in a civil hospital to enable him to receive a particular kind of medical treatment (see Kudła v. Poland [GC], no. 30210/96, § 93, ECHR 2000–XI). In the present case, the Court does not attach much weight to this issue, observing that the requisite treatment was available to the applicant while in detention (see paragraph 22 above), and it was the applicant who expressly refused those options. 42. Moreover, the Court notes that over the period of thirty-one months in pre-trial detention, no genuine consideration appears to have been given to the possibility of imposing on the applicant other, less stringent measures, such as prohibition on leaving his residence or house arrest.", "43. In sum, the Court is of the opinion that the applicant’s prolonged detention could not be considered “necessary” from the point of view of ensuring the due course of the proceedings. 44. The Court accordingly concludes that the reasons relied on by the courts in their decisions were not sufficient to justify the applicant’s being held in custody for the period in question. There has accordingly been a violation of Article 5 § 3 of the Convention.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 45. The applicant complained that his health condition had not been duly considered by the authorities and his request for external medical examination and treatment was rejected, which decision indirectly endangered his life in breach of Article 2 of the Convention. The Court observes that there is no indication whatsoever that the applicant’s ailment could not be treated within the penitentiary health care. The applicant was examined within the penitentiary institution and no acute medical intervention was proposed.", "Moreover, it is to be noted that it was the applicant who refused to accept any further therapy to be provided by the penitentiary health service (see paragraph 22 above). His submissions do not disclose any appearance of a violation of his rights under Article 2 or 3 of the Convention. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention. 46. Relying on the Article 6 § 1, the applicant also stated that in spite of his various submissions and complaints – which were repeatedly rejected – the authorities did not dismiss outright the charges against him, which resulted in a significant delay in respect of the whole procedure.", "Ignoring his arguments, the Public Prosecutor’s Office did not re-characterise some of the crimes he had been charged with as an attempt, rather than an accomplished offence. In so far as this complaint may be understood to relate to the fairness of the proceedings, the Court observes that the trial is still pending, a fact rendering this complaint premature. Inasmuch these submissions concern the length of the proceedings, the case has been pending for some four years and nine months so far. During this period, two court instances have dealt with the case, which is rather complicated. The Court considers that, in the face of the complexity of the case and the number of suspects, the overall length of the proceedings has not yet exceeded a reasonable time, and no particular delay or inactivity imputable to the authorities can be observed throughout the proceedings.", "This complaint is likewise manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention. 47. The applicant further complained that the restrictions on visits, correspondence and phone calls from his family from the beginning of his detention until December 2009 amounted to a breach of his right to respect for family life, enshrined in Article 8 of the Convention. The Government argued that the applicant should have complained about this to the competent prosecution authority under section 195 of the Code of Criminal Procedure, a remedy potentially capable of redressing the impugned situation. The applicant submitted that he had done so, but in vain.", "The Court considers that it is not necessary to decide on the efficiency and exhaustion of the remedy referred to by the Government, since this complaint is in any event inadmissible for the following reasons. The Court observes that from his arrest until December 2009, that is, for some ten months, the applicant’s correspondence and visits were subject to supervision by the prosecution authorities and that he could maintain phone contacts only with his lawyer. These measures were justified domestically by the risk of collusion. The Court considers that the impugned restrictions, whose lawfulness has not been in dispute, pursued the legitimate aim of prevention of crime, and were necessary in democratic society in order to secure, in an uncorrupted form, outstanding evidence potentially incriminating the applicant. At that time, the investigation into this serious fraud case was still underway, the bill of indictment not having been preferred yet.", "The Court is satisfied that the measures were not disproportionate, since the applicant was allowed to receive visits and letters from his family, albeit under prosecutorial supervision. This complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention. 48. The applicant also complained that he had not had an effective remedy, as required by Article 13 of the Convention, concerning his detention – in that, on 28 July 2010, the competent second-instance court had decided on the prolongation before the written version of his own appeal reached the bench. The Government submitted that, when deciding on the prolongation, the court had had at its disposal the written appeal of the applicant’s lawyer which had enabled it to adopt a well-founded decision, having regard to the expedited character of these proceedings.", "The Court observes that any appeal against a decision about the pre-trial detention communicated by way of a pronouncement shall be lodged immediately after the pronouncement (see section 215 (1) of the Code of Criminal Procedure, quoted in paragraph 26 above), that is, in oral proceedings. In the particular case, both the applicant and his lawyer made an oral appeal in application of this rule. Moreover, the written version of the lawyer’s appeal reached the competent second-instance court on the day when it adopted its decision (see paragraph 19 above) and was available to it. In these circumstances, the Court finds it immaterial that the written version of the applicant’s own appeal was received by that court only belatedly – and this without taking a position on the appropriateness of the requirement to appeal immediately after the decision in question. The Court is satisfied that the elements of this procedure do not disclose any appearance of violation of Article 5 § 4 of the Convention, this provision being lex specialis in this field.", "Therefore, this complaint is also manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention. 49. Moreover, the applicant complained that there had been a violation of Article 3 of Protocol No. 1 to the Convention when the penitentiary institution rejected his request for participation in the municipal elections. The Court finds that this complaint is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 (a), since Article 3 of Protocol No.", "1 to the Convention only covers legislative, rather than municipal, elections. 50. Lastly, the applicant complained, in rather general terms, that the investigative authorities had continuously communicated particulars of his case to the public in an unlawful manner, this being discriminatory in breach of Protocol No. 12 of the Convention. The Court observes that this complaint is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3 (a), since Hungary has not ratified Protocol No.", "12 to the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 51. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the 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 52.", "The applicant claimed 22,105,103 Hungarian forints (HUF) (approximately 81,000 euros (EUR)) in respect of pecuniary damage and HUF 10,000,000 in respect of non-pecuniary damage. This amount also corresponds to income lost during his detention. 53. The Government contested these claims. 54.", "The Court finds no causal relation between the pecuniary damage claimed and the violation found; therefore it rejects this claim. On the other hand, it considers that the applicant must have suffered some non-pecuniary damage, and awards him, on the basis of equity, EUR 2,700 under this head. B. Costs and expenses 55. The applicant also claimed HUF 1,000,000 Hungarian forints (approximately EUR 3,400) for the costs and expenses incurred before the Court.", "This amount would correspond to the legal work billable by his lawyer. To support his claim, he submitted an invoice of HUF 600,000 (approximately EUR 2,000), dated 28 April 2009. 56. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and 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 57. 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 applicant’s 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 applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 2,700 (two thousand seven 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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 December 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithGuido RaimondiRegistrarPresident" ]

[ "SECOND SECTION CASE OF ARAZ v. TURKEY (Application no. 44319/04) JUDGMENT STRASBOURG 20 May 2010 FINAL 20/08/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Araz v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Danutė Jočienė,Dragoljub Popović,András Sajó,Nona Tsotsoria,Işıl Karakaş, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 29 April 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "44319/04) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr İbrahim Araz (“the applicant”), on 8 November 2004. 2. The applicant was represented by Mr M. Filorinalı and Ms Y. Başara, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3.", "On 31 March 2009 the Court declared the application partly inadmissible and decided to communicate to the Government the complaints concerning the applicant's right to be released pending trial under Article 5 § 3 of the Convention, his right to compensation under Article 5 § 5 of the Convention and his right to a fair hearing within a reasonable time under Article 6 § 1 of the Convention. 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 4. The applicant was born in 1981 and lives in Istanbul.", "5. On 3 July 1999 the applicant, who was seventeen years old at the material time, was taken into police custody by police officers from the anti‑terrorist branch of the Istanbul police headquarters. 6. On 12 July 1999 the public prosecutor at the Istanbul State Security Court filed a bill of indictment, charging the applicant under Article 168 § 2 of the former Criminal Code with membership of an illegal armed organisation. 7.", "On 5 November 2001 the Istanbul State Security Court found the applicant guilty as charged, along with ten other persons. 8. On 25 June 2002 the Court of Cassation quashed the judgment of the first-instance court. The case was thus remitted to the Istanbul State Security Court and registered under case no. 2002/220.", "9. On 25 September 2003 the Istanbul State Security Court decided to separate the case against the applicant from case no. 2002/220, since he was under the age of eighteen at the time of committing the alleged offences. The Istanbul State Security Court accordingly declared its lack of jurisdiction and referred the case to the Istanbul Juvenile Court. 10.", "On 21 October 2003 the Istanbul Juvenile Court decided that it would be to the applicant's benefit to be tried alongside the other defendants before the Istanbul State Security Court. The Istanbul Juvenile Court accordingly declared non-jurisdiction and referred the case back to the Istanbul State Security Court. 11. On 10 December 2003 the Istanbul State Security Court accepted the Istanbul Juvenile Court's decision and re-joined the applicant's case to no. 2002/220.", "12. On 11 May 2004 the Istanbul State Security Court ordered the applicant's release pending trial. 13. By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished.", "The case against the applicant was transferred to the Istanbul Assize Court which, on 27 February 2007, convicted him. 14. According to the information in the case file, the case is currently pending before the Court of Cassation. II. RELEVANT DOMESTIC LAW 15.", "Section 1 (d) of Article 141 of the new Code of Criminal Procedure (CCP) (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 a legal authority 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.” 16. Section 1 of Article 142 of the same Law provides: “Compensation may be demanded [from the State] within three months from the date of service of the final ... judgment and, in any case, within one year following the date on which the ... judgment becomes final.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 17. The applicant complained under Article 5 § 3 of the Convention that the length of his pre-trial detention had been excessive.", "He further maintained under Article 5 § 5 of the Convention that he had no right to compensation in domestic law for the alleged violation of Article 5 § 3 of the Convention. A. Admissibility 18. The Government asked the Court to dismiss the complaint under Article 5 § 5 of the Convention for failure to exhaust domestic remedies, as required by Article 35 § 1 of the Convention. They submitted that the applicant could have sought compensation pursuant to Article 141 § 1 (d) of the new CCP. 19.", "The Court notes that the Government's preliminary objection is inextricably linked to the merits of the applicant's complaint under Article 5 § 5 of the Convention. It follows that this issue should be joined to the merits. 20. The Court considers that this part of the application is not manifestly ill­-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. Article 5 § 3 of the Convention 21. The Government maintained that the length of the applicant's pre‑trial detention had been reasonable.", "In particular, they submitted that the seriousness of the crime, coupled with the risk of escape or the committal of a further crime had justified his continued detention pending trial. 22. The Court notes that, after deducting the period when the applicant was detained after conviction under Article 5 § 1 (a) of the Convention, namely the period between 5 November 2001 and 25 June 2002, from the total time that he was remanded in detention pending trial, the period to be taken into consideration in the instant case is over four years and two months (see Solmaz v. Turkey, no. 27561/02, §§ 36-37, ECHR 2007-II (extracts)). 23.", "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, Gökçe and Demirel v. Turkey, no. 51839/99, § 45, 22 June 2006; Bayam v. Turkey, no. 26896/02, § 20, 31 July 2007). 24. 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 finds that in the instant case the length of the applicant's pre-trial detention was excessive. 25. There has accordingly been a violation of Article 5 § 3 of the Convention. 2. Article 5 § 5 of the Convention 26.", "The Court reiterates that paragraph 5 of Article 5 requires a remedy in compensation for a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (Wassink v. the Netherlands, 27 September 1990, § 38, Series A no. 185‑A). This right to compensation presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court. 27. In this connection, the Court notes that it has found that the applicant's right to be released pending trial was infringed (see paragraph 25 above) in the present case.", "It follows that Article 5 § 5 of the Convention is applicable. The Court must therefore establish whether or not Turkish law afforded the applicant an enforceable right to compensation for the breach of Article 5 in this case. 28. The Court notes, as indicated by the Government, that Article 141 § 1(d) of the new CCP introduces a mechanism whereby a person who has been lawfully detained but whose pre-trial detention exceeds a reasonable time may demand compensation from the State. The Court also notes, however, that according to Article 142 § 1 of the same Code, such demand may only be made after the relevant criminal proceedings have come to an end.", "This remedy is therefore not available in circumstances where the domestic proceedings are still pending, as in the instant case (see Kürüm v. Turkey, no. 56493/07, §§ 18-21, 26 January 2010[1]). 29. It follows that the new CCP does not provide for an enforceable right to compensation for the applicant's deprivation of liberty in breach of Article 5 § 3 of the Convention, as required by Article 5 § 5. 30.", "The Court therefore rejects the Government's preliminary objection and concludes that there has been a violation of Article 5 § 5 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 31. The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against him had not been concluded within a reasonable time. 32.", "The Government considered that the domestic courts' handling of the applicant's case had complied with the “reasonable time” requirement. 33. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "34. As regards the merits, the Court notes that the proceedings in question began on 3 July 1999 and, according to the information in the case file, are still pending before the Court of Cassation. They have thus already lasted over ten years and eight months before two levels of jurisdiction. 35. 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 (Hasan Döner v. Turkey, no.", "53546/99, § 54, 20 November 2007; Uysal and Osal v. Turkey, no. 1206/03, § 33, 13 December 2007; Can and Gümüş v. Turkey, nos. 16777/06 and 2090/07, § 19, 31 March 2009). It finds no reason to reach a different conclusion in the present circumstances. Consequently, there has been a breach of Article 6 § 1 of the Convention on account of the excessive length of the criminal proceedings against the applicant.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION A. Damages and costs and expenses 36. The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage and EUR 4,900 for his costs and expenses before the Court, including various translation expenses. In this latter connection he submitted a time sheet indicating eighteen and a half hours of legal work carried out by his legal representative.", "37. The Government contested these claims. 38. The Court accepts that the applicant must have suffered non‑pecuniary damage which cannot be sufficiently compensated by the finding of a violation alone. Ruling on an equitable basis, the Court awards the applicant EUR 6,900 in respect of non-pecuniary damage.", "39. As for costs and expenses, the Court reiterates that 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 limited documentation in its possession and the above criteria, the Court finds it reasonable to award to the applicant the sum of EUR 1,000 for his costs and expenses. 40. Furthermore, according to the information submitted by the parties, the criminal proceedings against the applicant are still pending.", "In these circumstances, the Court considers that an appropriate means for putting an end to the violation which it has found would be to conclude the criminal proceedings in issue as speedily as possible, while taking into account the requirements of the proper administration of justice (see, mutatis mutandis, Yakışan v. Turkey, no. 11339/03, § 49, 6 March 2007; Batmaz v. Turkey (dec.), no. 34997/06, 1 April 2008). B. 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 remainder of the application admissible; 2. Holds that there have been violations of Article 5 §§ 3 and 5 and 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 Turkish liras at the rate applicable at the date of settlement: i) EUR 6,900 (six thousand nine 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 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 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 May 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise TulkensRegistrarPresident [1]. This judgment is not yet final." ]

[ "FOURTH SECTION CASE OF ČAVAJDA v. SLOVAKIA (Application no. 65416/01) JUDGMENT STRASBOURG 14 October 2008 FINAL 14/01/2009 This judgment may be subject to editorial revision. In the case of Čavajda v. Slovakia, 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 23 September 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 65416/01) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovakian national, Mr Ivan Čavajda (“the applicant”), on 16 November 2000.", "2. On 27 June 2007 the applicant appointed Mr Š. Schnelly, a lawyer practising in Žilina, to represent him in the proceedings before the Court. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková. 3. On 7 October 2005 the President of the Fourth Section decided to give notice of the applicant’s complaint concerning the length of the proceedings for protection of his personal rights to the Government.", "It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3). On 12 June 2007 the Chamber decided to give notice of the other set of proceedings complained of by the applicant to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1955 and lives in Nesluša. 1.", "Proceedings concerning the termination of the applicant’s service in the police 5. The applicant served as a member of the Police Corps of the Slovak Republic. As he intended to engage in political life, he requested that he should be released from service in the police. In an order of 5 August 1993 the applicant’s superior acceded to the request and released the applicant with effect from 31 December 1993. 6.", "On 13 August 1993 the applicant’s superior issued a new order dismissing the applicant from the police. Reference was made to a negative assessment of the applicant’s performance and behaviour. The order stated that the applicant had been found incapable of carrying out any service within the police within the meaning of section 110(1)(d) of the Police Corps Service Act 1991. The applicant and his superior subsequently agreed that the applicant would leave the police by 31 August 1993. 7.", "On 30 September 1993 the President of the Police Corps dismissed the applicant’s appeal against the order of 13 August 1993. On 22 December 1993 the Minister of the Interior dismissed an extraordinary representation made by the applicant holding that the applicant’s service in the police had been terminated in accordance with the law in force. 8. On 22 May 1995 the applicant sued the Ministry of the Interior before the Bratislava I District Court. He claimed that his dismissal from the police was void and that the allowance related to his departure from the police should be increased.", "In parallel, he claimed protection of his personal rights with reference to his dismissal and the assessment of his performance made in that context. The District Court processed the latter claim (see paragraphs 20 et seq. below). It started dealing with the claim concerning the termination of the applicant’s service and the payment of an allowance in a separate set of proceedings on 2 December 1996. 9.", "On 18 April 1997 the District Court found that it lacked jurisdiction in the case. It established that the applicant sought a review of the assessment of his service in the police and of the decision on his dismissal. 10. On 14 July 1997 the Supreme Court returned the case to the District Court as the latter had not clearly established what the applicant claimed. 11.", "Subsequently the District Court requested the applicant to specify his action. The applicant replied on 5 December 1997 and 9 March 1998. The file was transmitted to the Supreme Court. 12. On 29 September 1998 the Supreme Court returned the file to the District Court.", "The accompanying letter stated that the former lacked jurisdiction in the case as the applicant had not sought judicial review of the decision on his dismissal from the police. The District Court judge disagreed. On 21 December 1998 the Supreme Court decided that the action fell to be determined by the Bratislava I District Court. 13. The District Court held the first hearing on 31 March 1999.", "On 10 July 2000 it discontinued the proceedings. It noted that the applicant had claimed that his service in the police had ended with his release at his own request and that the allowance to which he was entitled upon his departure from the police should be increased accordingly. The court found that the applicant’s service in the police was not governed by labour law. The relevant issues were to be determined by the Ministry of the Interior to which the District Court decided to transfer the case. 14.", "On 13 September 2000 the Bratislava Regional Court upheld that decision. The court of appeal noted that the applicant had not sought judicial review of a decision given by an administrative authority. Had he done so, the ordinary courts would have been entitled to deal with the matter under the provisions of the Code of Civil Procedure governing the administrative judiciary. The decision to discontinue the proceedings became final on 21 November 2000. 15.", "On 23 August 2004 the Ministry of the Interior informed the applicant that the decision on his dismissal from the police had been issued in 1993. The applicant’s appeal had been dismissed by the President of the Police Corps. The Minister of the Interior had dismissed the applicant’s extraordinary remedy on 22 December 1993. The ministry’s letter stated that the decision on the applicant’s dismissal was final. No further steps could be taken in the case.", "16. In reply to further requests by the applicant the Ministry of the Interior reiterated its above position on 29 September 2004, 2 November 2004 and 10 October 2006. The ministry informed the applicant that the courts’ decision to discontinue the proceedings was of a procedural nature. It did not oblige the ministry to review the case as the law did not allow that. 17.", "On 24 October 2006 the applicant brought an action against the Ministry of the Interior. With reference to the District Court’s decision of 10 July 2000 he requested the District Court to require the Ministry of the Interior to issue a decision stating that the termination of his service in the police was void and that his lost salary should be paid to him. 18. On 30 March 2007 the Bratislava I District Court discontinued the proceedings as under the relevant law issues related to a person’s service in the police were to be determined by the Minister of the Interior. That decision became final on 26 May 2007.", "On 27 June 2007 the District Court transferred the case to the Ministry of the Interior. 19. On 2 April 2008 the applicant requested the District Court to require the Ministry of the Interior to proceed with the case on the basis of the decision of 30 March 2007. 2. Proceedings concerning the protection of the applicant’s personal rights 20.", "As stated above, the applicant brought an action for protection of his personal rights against the Ministry of the Interior on 22 May 1995. He alleged, inter alia, that his dismissal and the assessment of his performance in that context interfered with his personal rights. He claimed compensation for non-pecuniary damage. 21. On 4 September 1995 the Bratislava I District Court transferred the case to the Bratislava II District Court for reasons of jurisdiction.", "On 11 October 1995 the applicant was requested to pay court fees. On 6 December 1995 he asked to be exempted from the obligation to pay court fees. 22. On 30 January 1996 the Bratislava City Court decided that the case fell within the jurisdiction of the Bratislava I District Court. The file was transferred to the latter on 1 April 1996.", "23. In the course of April 1996 the Bratislava I District Court asked the applicant to submit information about his situation. It also forwarded the applicant’s action to the defendant for comments. 24. On 12 August 1996 the Bratislava I District Court transferred the file to the Čadca District Court with the request for the applicant to be heard before that court.", "On 26 August 1996 the applicant stated before the court in Čadca that he insisted on a hearing being held before the Bratislava I District Court. 25. On 13 January 1997 the Bratislava I District Court adjourned the case as it was established that the defendant had not been duly summoned. The second hearing, scheduled for 17 February 1997, had to be adjourned for the same reason. 26.", "At the third hearing, held on 22 September 1997, the court heard the parties. 27. In July 1998 the District Court asked the applicant for information about the proceedings concerning the termination of his service in the police. Between July and September 1998 the District Court inquired whether the proceedings concerning the applicant’s dismissal were pending before the Supreme Court. 28.", "Between January and April 1999 the file was examined by the Constitutional Court. 29. On 28 June 2000 the Bratislava Regional Court rejected the applicant’s request for exclusion of the Bratislava I District Court judge from dealing with the case. 30. On 28 December 2000 the Bratislava I District Court discontinued the proceedings in respect of claims which the applicant had withdrawn.", "The court further stayed the proceedings in respect of the applicant’s claim for compensation for damage of a non-pecuniary nature pending a final decision on the applicant’s above claim concerning his dismissal from the police. 31. On 24 October 2001 the District Court asked the applicant to inform it whether a final decision had been given on his claim concerning termination of his service in the police. 32. In October 2001 the case was assigned to a different judge.", "33. On 14 October 2002 the District Court judge made an inquiry as to whether a final decision had been given in the proceedings concerning the termination of the applicant’s service in the police. On 20 January 2003 the applicant replied that no final decision had been given yet in the other set of proceedings. On 13 February 2003 the judge adjourned the case for six months on that ground. The case was adjourned for a further six months on 26 August 2003.", "34. On 19 January 2004 the District Court held a hearing. The applicant could not attend as he was ill. 35. A further hearing was held on 17 March 2004 in the absence of the defendants. 36.", "On 28 April 2004 and 2 June 2004 the District Court heard the parties. In a judgment delivered orally on the latter date the District Court dismissed the applicant’s action. 37. On 2 July 2004 the judgment was prepared in writing. The judgment with reasons was served on the applicant on 26 July 2004.", "The applicant appealed on 26 August 2004. 38. After receiving the defendant’s comments, the District Court submitted the file to the Bratislava Regional Court on 20 October 2004. 39. The Regional Court scheduled a hearing for 1 December 2005.", "On 25 November 2005 the applicant informed the court that he was unable to attend due to health problems. 40. On 1 December 2005 the Bratislava Regional Court upheld the first-instance judgment of 2 June 2004. 3. Constitutional proceedings a) Case no.", "I. ÚS 75/98 41. On 27 October 1999 the Constitutional Court found that the Bratislava I District Court had violated the applicant’s right to a hearing without unjustified delay in both sets of proceedings concerning the claims of 22 May 1995. 42. As regards the proceedings for protection of the applicant’s personal rights in particular, the decision stated that the District Court had failed to deal with the case in an appropriate manner. As a result, several substantial delays had occurred and the action had not been determined within one year as was then required by the relevant provision of the Code of Civil Procedure.", "The Constitutional Court further noted that the case was not complex and that the length of the proceedings could not be imputed to the applicant’s behaviour. b) Case no. III. ÚS 155/06 43. On 11 January 2005 the applicant complained to the Constitutional Court about delays in the above two sets of proceedings.", "He also claimed that his dismissal from the police was null and void. 44. On 17 May 2006 the Constitutional Court declared admissible the complaint about the length of the proceedings concerning the protection of the applicant’s personal rights. It rejected the remaining complaints for the following reasons. 45.", "The Constitutional Court noted that it had been open to the applicant to seek judicial review of the decision on his dismissal from the police within thirty days of its finally taking effect. The applicant had not used that remedy. 46. The Bratislava I District Court’s decision to discontinue the proceedings concerning the validity of his dismissal from the police had become final on 21 November 2000. The complaint about the length of those proceedings had been lodged after the expiry of the two-month time-limit laid down in the Constitutional Court Act 1993.", "47. In its judgment of 12 September 2006 the Constitutional Court found that the District Court had violated the applicant’s right to a hearing without unjustified delay in the proceedings for protection of his personal rights. 48. The Constitutional Court noted that it had already found in its judgment of 27 October 1999 that the District Court had not respected the applicant’s right in issue. In the subsequent period the District Court had failed to deal with the case in an appropriate manner.", "As a result, delays totalling nearly three years had occurred. The case was not complex and the length of the proceedings could not be imputed to the applicant’s behaviour. As the applicant had exclusively complained of delays imputable to the Bratislava I District Court, the Constitutional Court did not examine the period during which the court of appeal had been dealing with the case. 49. The Constitutional Court awarded the applicant 50,000 Slovakian korunas (SKK) (the equivalent of 1,330 euros (EUR) at that time) in compensation for non-pecuniary damage.", "It also ordered the District Court to reimburse the applicant’s costs. c) Case no. III. ÚS 47/08 50. On 7 September 2007 the applicant complained to the Constitutional Court that the Bratislava I District Court had failed to determine his action of 24 October 2006 and that the Ministry of the Interior had not determined the lawfulness of his dismissal either.", "51. On 7 February 2008 the Constitutional Court declared the complaint inadmissible. The proceedings concerning the applicant’s action in issue had ended on 30 March 2007 (final effect on 26 May 2007). In that respect the applicant had not respected the statutory two-month time-limit. As to the validity of the applicant’s dismissal from the police, the Constitutional Court referred to its above conclusion in case no.", "III. ÚS 155/06. In any event, it lacked jurisdiction to examine the issue. B. Relevant domestic law and practice 1.", "Constitutional provisions 52. Prior to 1 January 2002 when the amended Article 127 of the Constitution entered into force the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner’s rights to a hearing without unjustified delay. It could neither grant compensation to the person concerned nor impose a sanction on the public authority liable for the violation found. The relevant provisions of the Constitution as well as the practice of the Constitutional Court are described in detail in, for example, Jakub v. Slovakia, no. 2015/02, §§ 25-38, 28 February 2006, and Savka v. Slovakia (dec.), no.", "77936/01, 30 May 2006. 2. The Police Corps Service Act 1991 53. At the relevant time the following provisions of Act no. 410/1991 Coll.", "on Service in the Police Corps of the Slovak Republic were in force. 54. Under section 110(1)(d) a policeman could be dismissed where it was concluded that he or she was incapable of carrying out any service within the police. 55. Pursuant to section 135(1) and (2), a policeman could appeal against his superior’s decision and challenge the assessment of his or her aptitude to serve in the police within fifteen days.", "56. Section 139(1) entitled the Minister of the Interior to quash a final decision where it was established that such a decision had been issued contrary to the law. Paragraph 2 of section 139 limited the minister’s power to do so to a period of three years after the decision had become final. 57. Section 141(1)(a) entitled policemen who were dismissed for reasons set out, inter alia, in section 110(1)(d) to bring an action for judicial review of their superior’s decision.", "Pursuant to paragraph 2 of section 141, an action for review could be brought within thirty days of the contested decision’s becoming final. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 58. The applicant complained that his right to a fair hearing within a reasonable time had been violated in the above two sets of proceedings. He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 1.", "Proceedings concerning the termination of the applicant’s service in the police 59. The Government maintained that the proceedings concerning the termination of the applicant’s service in the police did not attract the guarantees of Article 6 § 1 of the Convention. 60. The applicant disagreed. 61.", "The Court notes that the applicant’s superior put an end to the applicant’s service in the police with reference to section 110(1)(d) of the Police Corps Service Act 1991 by an order issued on 13 August 1993. The applicant’s appeal against that decision was dismissed on 30 September 1993. The decision on the applicant’s dismissal thus became final. In accordance with section 141 of the Police Corps Service Act 1991 it was open to the applicant to seek judicial review of the decision within thirty days of its becoming final. The applicant did not use that remedy.", "62. Instead, the applicant lodged an action, on 22 May 1995, seeking a ruling that his service in the police had ended at his request, which had earlier been accepted by his superior. Ordinary courts at two levels held that the action as introduced by the applicant fell outside their jurisdiction as issues relating to service in the police fell primarily to be determined by the Ministry of the Interior and its relevant decisions were reviewable by the administrative courts. That view was upheld by the Constitutional Court. The Ministry of the Interior refused to re-examine the case, holding that the relevant law prevented it from doing so.", "The Court finds no reason to disagree with this assessment of the legal position in the applicant’s case. 63. Thus, by lodging the action of 22 May 1995 the applicant had recourse to a legal avenue which, from the outset, was not capable of producing the effect expected by him, namely to modify the decision on his dismissal from the police which had become final in 1993. There is no indication that he had been unable to use the remedy available, namely to seek a judicial review of the decision which had put an end to his service in the police. 64.", "In these circumstances, and assuming that a “civil right” held by the applicant was at stake (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007‑...), the Court finds that the outcome of the proceedings complained of could have no effect on it (for recapitulation of the relevant case-law see Sultana v. Malta (dec.), no. 970/04, 11 December 2007, with further references). 65. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.", "2. Proceedings concerning the protection of the applicant’s personal rights a) Alleged unfairness of the proceedings 66. The applicant complained that the proceedings concerning his action for protection of his personal rights had been unfair. 67. It does not appear from the documents submitted that the applicant submitted this complaint, after having used the other remedies available, to the Constitutional Court in accordance with Article 127 of the Constitution.", "68. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. b) Duration of the proceedings 69. The Government referred to the Constitutional Court’s judgment of 12 September 2006 and maintained that the applicant could no longer claim to be a victim in respect of the period during which the Bratislava I District Court had dealt with the case. As to the appeal proceedings, the applicant had not exhausted domestic remedies as he had not complained about their length to the Constitutional Court.", "70. The period to be taken into consideration began on 22 May 1995 and ended on 20 October 2004 when the District Court submitted the case to the Bratislava Regional Court for a decision on the applicant’s appeal. The examination of the merits thus lasted nine years and five months for one level of jurisdiction. During that period the court of appeal decided on which court had jurisdiction in the case at first instance and on the applicant’s request for exclusion of a judge. 71.", "The Court concurs with the Government that the applicant’s failure to complain to the Constitutional Court of the duration of the proceedings before the court of appeal prevents it from examining the period after 20 October 2004 (see Eliáš v. Slovakia, no. 21326/07, § 25, 18 March 2008). 72. The just satisfaction awarded by the Constitutional Court corresponds to approximately 14% of the Court’s likely award under Article 41 of the Convention in respect of the period under consideration. It therefore cannot be regarded as adequate in the circumstances of the case (see the principles established under the Court’s case-law in Cocchiarella v. Italy [GC], no.", "64886/01, §§ 65-107, ECHR 2006‑..., and Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213, ECHR 2006 - ...). In these circumstances, the applicant has not lost his status as a victim within the meaning of Article 34 of the Convention. 73.", "The Court notes that the applicant’s 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 74.", "The Government, with reference to the Constitutional Court’s judgments of 27 October 1999 and 12 September 2006, admitted that undue delays had occurred in the proceedings. 75. 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). 76.", "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). 77. Having examined all the material submitted to it and having regard to its case-law on the subject as well as the above admission by the Government, the Court concurs with the conclusions reached by the Constitutional Court 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 ARTICLES 10, 14 AND 17 OF THE CONVENTION 78. The applicant alleged that the facts of his case gave rise to a violation of Articles 10, 14 and 17 of the Convention. 79. The Court has examined these complaints but finds, in the light of all the material in its possession and in so far as the matters complained of are within its competence, that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 80.", "It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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.", "The applicant claimed SKK 5,000,000 in respect of non-pecuniary damage. 83. The Government contested the claim. 84. The Court considers that the applicant must have sustained non-pecuniary damage.", "Having regard to the partial redress which the applicant obtained at domestic level (see paragraph 49 above) it awards him EUR 3,000 under that head. B. Costs and expenses 85. The applicant also claimed SKK 54,263 (equivalent to approximately EUR 1,800) for costs and expenses. 86.", "The Government contested the claim. 87. 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. 88. In the present case, regard being had to information in its possession and the above criteria, the Court considers it reasonable to award the applicant, who was represented by a lawyer only from 27 June 2007 and who was only partly successful in the proceedings before it, the sum of EUR 400 under this head.", "C. Default interest 89. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint about the excessive length of the proceedings concerning the protection of the applicant’s personal rights admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts (to be converted into Slovakian korunas at the rate applicable at the date of settlement in case of payment prior to 1 January 2009): (i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 400 (four hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 14 October 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident" ]

[ "FIRST SECTION CASE OF KNYAZHICHENKO v. RUSSIA (Application no. 30685/03) 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 Knyazhichenko 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. 30685/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vasiliy Stepanovich Knyazhichenko (“the applicant”), on 25 August 2003. 2. The applicant was represented by Mrs O. Suprunova, a lawyer practising in Bataysk.", "The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3. Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No.1, the applicant complained about the quashing of the judgment in his favour by way of supervisory review and the non-enforcement of that judgment. 4. On 10 February 2004 the Court decided to communicate the application to the Government.", "Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 5. The applicant and the Government each filed observations on the admissibility and merits (Rule 54A § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 1.", "Background 6. The applicant was born in 1952 and lives in the town of Bataysk of the Rostov Region. 7. In 1986 the applicant took part in the emergency operation at the Chernobyl nuclear plant. As a result he suffered from extensive exposure to radioactive emissions.", "The applicant underwent medical examinations which established the link between his poor health and his involvement in the Chernobyl events. He was consequently granted status of a disabled person and awarded a monthly pension and a special allowance from the State, to be adjusted once a year in line with the minimum subsistence amount (величина прожиточного минимума). 8. At a certain moment in 2001 the social security authorities ceased to increase regularly the amounts of pension and allowance, paid to the applicant in connection with his disability. Instead, he started to receive his pension in a fixed amount (3,100 Roubles), which was less than he expected.", "Presuming that this practice was illegal, the applicant brought proceedings against the regional social security office (“the defendant”) claiming the increase of the monthly allowance and pension in line with the increase of the minimum subsistence amount during the relevant period. 2. First round of court proceedings 9. On 21 January 2003 the Bataysk Town Court of the Rostov Region (“the Town Court”) rendered a judgment ordering the increase of the monthly allowance due to the applicant in line with the increase of the minimal subsistence amount in the Rostov region. In re-calculating the amount of the applicant's pension the court applied the multiplier of 1.92 based on the data provided by the regional committee on statistics.", "As a result, the monthly pension of the applicant increased to 5,952 Roubles. The court ordered the defendant to pay the applicant the recalculated amount as from 1 January 2002 less the sums already paid. 10. The defendant appealed challenging, among other things, the multiplier of 1.92 applied by the first-instance court. 11.", "On 16 April 2003 the Rostov Regional Court (“the Regional Court”) upheld the judgment of 21 January 2003 in full. The enforcement proceedings were opened. 3. Supervisory review proceedings 12. On 13 May 2003 the defendant appealed to the Regional Court by way of supervisory review seeking to quash the judgment of 21 January 2003, as upheld on 16 Aril 2003.", "13. On 30 June 2003 the judge rapporteur refused to initiate the supervisory review proceedings and to remit the case for examination on the merits to the Presidium of the Rostov Regional Court (“the Presidium”). 14. On 14 July 2003 the defendant complained to the President of the Regional Court about the judgment of 21 January 2003, as upheld on appeal, and the judge rapporteur's decision of 30 June 2003 rejecting their previous application for supervisory review. They also requested that the enforcement proceedings be suspended pending the examination of the new supervisory review appeal.", "15. On 6 August 2003 a judge of the Regional Court requested the case-file from the court of first instance. On 24 October 2003 judge B. of the Regional Court initiated the review of the judgment of 21 January 2003, as upheld on 16 April 2003. The decision of 24 October 2003 referred in detail to the arguments adduced by the defendant but offered no explanation as to the grounds for overruling the judge rapporteur's decision of 30 June 2003. The case was transferred to the Presidium for the examination on the merits.", "16. On 4 November 2003 the applicant was informed about the date and venue of the hearing of his case by the Presidium. 17. On 4 December 2003 the Presidium quashed the judgment of 21 January 2003, as upheld on appeal, stating that the first instance court's calculation of the minimum subsistence amount, based on the multiplier of 1.92, had been insufficiently supported by evidence. The Presidium also noted that the first instance court had misinterpreted the domestic law.", "The case was remitted to the first instance court for a fresh examination. 4. Second round of court proceedings 18. On 22 April 2004 the Town Court examined the case anew. In the course of the proceedings the court established that the allowance should have been multiplied by 1.25 in 2002 and by 1.26 for 2003.", "The applicant maintained that he accepted that multiplier. 19. As a result, the court held that the amount of pension due to the applicant for 2002 was 3,125 Roubles per month. In 2003 the pension of the applicant should have amounted to 3,937.5 Roubles per month. The court ordered the social security authorities to compensate the applicant for previous underpayments and, starting from 2004, pay him 4,567.5 Roubles monthly, with subsequent readjustment.", "20. The judgment of the Town Court was not appealed against and became final. II. RELEVANT DOMESTIC LAW 21. On 1 February 2003 the Code of Civil Procedure of the Russian Federation (“the CCivP”) entered into force introducing, in particular, an amended system of supervisory review.", "22. The CCivP, in the relevant part, provides as follows: Article 376. Right to apply to a court exercising supervisory review “1. Judicial decisions that have become legally binding ... may be appealed against... to a court exercising supervisory review by parties to the case and by other persons whose rights and legal interests had been adversely affected by these judicial decisions. 2.", "Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...” Article 379. Proceedings in a supervisory review court after an application for supervisory review was lodged “A President or Deputy President of the respective court transfers the application for supervisory review ... to a judge of this court for examination.” Article 381. Examination of an application for supervisory review “2. Having examined an application for supervisory review, the judge issues an interim decision on – (1) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision; (2) refusing to obtain the case file if the arguments in the application for supervisory review may not, in accordance with the federal law, result in quashing of the judicial decision. ... 6.", "The President of the...regional...court... may disagree with the judge's decision refusing to obtain the case file. In such case the President issues his own decision on obtaining the case file.” Article 382. Examination of case files obtained by the supervisory review court “2. Having examined the case file obtained by the supervisory review court, the judge issues an interim decision on – – refusing to remit the case for examination on the merits by the supervisory review court; – remitting the case for examination of the application for supervisory review on the merits by the supervisory review court.” Article 383. Interim decision refusing to remit the case for examination on the merits by the supervisory review court “2.", "The President of the...regional...court...may disagree with the judge's decision refusing to remit the case for examination on the merits by the supervisory-review court. In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory review court.” Article 387. Grounds for quashing or varying judicial decisions by way of supervisory review “The grounds for quashing or varying the judicial decisions of the lower courts by way of supervisory review are serious violations of the substantive and procedural laws” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF THE QUASHING OF THE JUDGMENT IN THE APPLICANT'S FAVOUR 23.", "The applicant complained that the quashing of the judgment of 21 January 2003 in his favour, as upheld on appeal, violated his rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which, insofar as relevant, provide as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 24.", "The Government argued that the new system of supervisory review, introduced by the CCivP of 2003, differed from the old one. In particular, it was a judge who decided whether to obtain the case-file following a supervisory review complaint and to remit the case to the supervisory review court. They considered that the time-limits for examination of applications for supervisory review represented an additional safeguard of the applicant's rights. They further submitted that supervisory review of the judgment in the applicant's favour had been initiated and carried out in full compliance with the applicable procedure. The Government emphasised that the Presidium had reversed the judgment in the applicant's favour because of serious violations of substantive and procedural laws.", "In particular, the case-file contained no evidence to support the first instance court findings about the multiplier of 1.92 which was, moreover, never provided for by either local or regional legislation. Furthermore, the mentioned multiplier was overestimated and did not correspond to the level of inflation. According to the Government, the Town Court in its judgment of 22 April 2004 referred to correct multipliers of 1.25 and 1.26 for the years 2001 and 2002 respectively and reached lawful, just and reasoned conclusions. Accordingly, the Government submitted that a balance between the State interests and the legal requirements on the one hand and the applicant's interests on the other hand had been preserved. 25.", "The Government finally stressed that the applicant's acceptance of the multiplier in the new proceedings before the Town Court and the fact that he had chosen not to appeal against the judgment of 22 April 2004 showed that he himself considered the initial multiplier incorrect. 26. The applicant maintained his complaints and submitted that the Town Court in its judgment of 22 April 2004 had applied underestimated multipliers which he had to accept in order to obtain at least some increase in his pension. A. Admissibility 27. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits.", "The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. B. Merits 1. Alleged violation of Article 6 § 1 of the Convention 28.", "The Court reiterates that the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which declares, in its relevant part, the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania, judgment of 28 October 1999, Reports of Judgments and Decisions 1999-VII, § 61). 29. In a number of previous cases the Court examined the Russian system of supervisory review under the “old” Code of Civil Procedure. That system allowed a final and binding judicial decision to be quashed by a higher court on an application made by a State official whose power to lodge such an application was not subject to any time-limit, with the result that the judgments were liable to challenge indefinitely (see, among other authorities, see Ryabykh v. Russia, no.", "52854/99, § 52, ECHR 2003-X, §§ 54-56; see also Roseltrans v. Russia, no. 60974/00, §§ 27-28, 21 July 2005; Volkova v. Russia, no. 48758/99, §§ 34-36, 5 April 2005). In the opinion of the Court, such system was incompatible with the “legal certainty” principle and the applicant's “right to a court” enshrined in Article 6 § 1. 30.", "The Court also stressed in the above cases that the “old” supervisory review mechanism was used for the purpose of obtaining a rehearing of a settled judicial dispute (see Ryabykh v. Russia, mentioned above; see also, mutatis mutandis, Pravednaya v. Russia, no. 69529/01, § 25, 18 November 2004). However, the mere possibility of two views on the subject is not a ground for re-examination. Higher courts' power to quash or alter binding and enforceable judicial decisions should be exercised only for correction of fundamental defects. 31.", "In 2003 the “old” system of supervisory review was replaced with the “new” one (see the “Relevant domestic law” part above). In the opinion of the Government, the new system guarantees better stability of court judgments. The Court observes that the supervisory review of the judgment in the applicant's favour was made under the new rules, so the Court has now to determine on the facts of the case whether or not the review was compatible with Article 6 § 1. 32. The Court does not find sustainable the Government's argument that the applicant's rights had been adequately secured by the time-limits set in the new Code of Civil Procedure.", "It is true that the new CCivP established a one-year time-limit for introducing a supervisory review appeal. However, under the new CCivP the president's power to overrule decisions of other judges refusing to initiate supervisory-review proceedings is not subject to any time-limits (see Denisov v. Russia (dec.), no. 33408/03, 6 May 2004). Furthermore, it is unclear on what grounds the president may decide to overrule the decision of the judge rapporteur (see the “Relevant domestic law” part above). 33.", "In the present case the Court notes that on 30 June 2003 the judge rapporteur of the Regional Court examined the defendant's first application for supervisory review of the final judgment in the applicant's favour and refused to initiate the supervisory-review proceedings. Dissatisfied with the refusal, the defendant lodged a repeated supervisory review complaint, now with the President of the Regional Court, challenging the final judgment of 21 January 2003, as upheld on appeal, and the judge rapporteur's decision of 30 June 2003. Four months later, judge B. of the Regional Court, apparently acting within the President's powers provided by Article 383 of the CCivP (on behalf of the President), overruled the decision of 30 June 2003 and remitted the case to the Presidium for the examination on the merits. Thus, having disagreed with the judge rapporteur's previous decision and without giving any reasons for his disagreement, the President made use of his unfettered discretion to launch supervisory review proceedings. 34.", "The Court further notes that the judgment of 21 January 2003 in the applicant's favour, as upheld on 16 April 2003, was set aside because the first-instance and appeal courts' findings had been insufficiently supported by evidence and they had misinterpreted the law. In other words, the reason for quashing the final judgment in the applicant's favour was the Presidium's disagreement with the way in which the lower courts had assessed the evidence before them and had applied the domestic law. Examining the Government's argument that the mentioned shortcomings constituted “serious violations of substantive and procedural laws”, the Court is nevertheless unable to conclude that they amounted to fundamental defects or circumstances of a substantial and compelling character which could have required departure from the principle of legal certainty secured by the Convention (see mutatis mutandis, Ryabykh v. Russia, cited above, and Pravednaya v. Russia, cited above). 35. Thus, the Court considers that the quashing of the judgment of 21 January 2003 in the applicant's favour, as upheld on appeal on 16 April 2003, by way of supervisory review proceedings infringed the principle of legal certainty and the applicant's “right to a court”.", "There has been, accordingly, a violation of Article 6 § 1 of the Convention. 2. Alleged violation of Article 1 of Protocol No. 1 36. The Court reiterates that the existence of a debt confirmed by a binding and enforceable judgment furnishes the judgment beneficiary with a “legitimate expectation” that the debt would be paid and constitutes the beneficiary's “possessions” within the meaning of Article 1 of Protocol No.", "1. Quashing of such a judgment amounts to an interference with his or her right to peaceful enjoyment of possessions (see, among other authorities, Brumărescu, cited above, § 74). 37. Insofar as the Government submitted that the applicant had failed to appeal against the Town Court judgment of 22 April 2004, the Court observes that the core issue before it is the quashing of the final and binding judgment given in the applicant's favour, an instantaneous act (see Sitokhova v. Russia (dec.), no. 55609/00, 2 September 2004).", "Thus, the eventual outcome of the post-quashing proceedings is not directly relevant for the Court's analysis of the complaint about the annulment of the judgment in the applicant's favour (see Ivanova v. Ukraine, no. 74104/01, §§ 35-38, 13 September 2005), unless, as a result of the subsequent proceedings, the applicant obtained more than he had had before the supervisory review which is clearly not the case. 38. Having regard to its case-law (see §§ 78-80 in the Brumărescu judgment cited above) and the conclusions under Article 6 above, the Court considers that the quashing of the judgment by way of supervisory review, even though it pursued a legitimate aim, imposed a disproportionate and excessive burden on the applicant and was therefore incompatible with Article 1 of Protocol No. 1 to the Convention.", "39. There has accordingly been a violation of that Article. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF THE NON-ENFORCEMENT 40.", "The applicant also complained about the non-enforcement of the judgment of 21 January 2003, as upheld on 16 April 2003. He relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, both cited above. 41. The Court observes that the principles insisting that a final judicial decision must not be called into question and should be enforced represent two aspects of the same general concept, namely the “right to a court” (see Ryabykh v. Russia, cited above, §§ 55-57; Burdov v. Russia, no.", "59498/00, § 34, ECHR 2002‑III). 42. In the present case the non-enforcement was due, to a large extent, to the fact that the judgment to be enforced was twice challenged by the defendant by way of supervisory review and then quashed by the Presidium in course of the supervisory review proceedings. Having regard to this consideration and the findings above concerning violation of the applicant's rights on account of the quashing of the judgment in his favour, the Court does not consider it necessary, in the circumstances, to examine the applicant's complaint concerning the non-enforcement of that judgment separately and therefore rejects this part of the application under Article 35 § 4 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 43. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 44. The Court points out that under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, “failing which the Chamber may reject the claim in whole or in part”. 45. In the instant case the applicant was invited to submit, by 31 May 2006, his claims for just satisfaction but failed to do so within the required time-limits.", "46. In these circumstances, the Court makes no award under Article 41 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the quashing of the judgment of 21 January 2003, as upheld on appeal on 16 April 2003, by way of supervisory review admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1 on account of the quashing of the judgment of 21 January 2003, as upheld on appeal on 16 April 2003, by way of supervisory review; 3. Decides to make no award under Article 41. Done in English, and notified in writing on 15 February 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenLoukis LoucaidesRegistrarPresident" ]

[ "FIRST SECTION CASE OF BERARDI AND MULARONI v. SAN MARINO (Applications nos. 24705/16 and 24818/16) JUDGMENT STRASBOURG 10 January 2019 FINAL 10/04/2019 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Berardi and Mularoni v. San Marino, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Linos-Alexandre Sicilianos, President,Aleš Pejchal,Krzysztof Wojtyczek,Armen Harutyunyan,Tim Eicke,Jovan Ilievski,Gilberto Felici, judges,and Abel Campos, Section Registrar, Having deliberated in private on 4 December 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos.", "24705/16 and 24818/16) against the Republic of San Marino lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two nationals of San Marino, Mr Paolo Berardi and Mr Davide Mularoni (“the applicants”), on 26 April 2016 and 27 April 2016 respectively. 2. The applicants were represented by Mr A.F. Petrillo, a lawyer practising in Rimini. The Government of San Marino (“the Government”) were represented by their Agent, Mr L. Daniele.", "3. The applicants alleged that the law had been applied retroactively to their disadvantage, as they had been found guilty of bribery in accordance with the wording of a criminal provision that had not yet been in force at the time of the facts. 4. By a decision of 1 June 2017 the Chamber decided to join the applications, to give notice of the complaint under Article 7 of the Convention to the respondent Government and to declare inadmissible the remainder of the applications. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The first applicant was born in 1963 and the second applicant was born in 1965. They live in Dogana and Faetano, respectively. 6. When the applicants lodged their applications they were serving their prison sentences in San Marino.", "At the time of the facts the first and the second applicant were officials responsible for the supervision of safety on construction sites (Sicurezza Antinfortunistica). A. Background of the case Parliamentary commission on organised crime 7. By Law No. 107 of 22 July 2011, the parliament of San Marino (Consiglio Grande e Generale) established a commission of inquiry (“the commission”) to investigate organised crime in the country (Commissione consigliare sul fenomeno delle infiltrazioni della criminalità organizzata).", "On 27 September 2011 Parliament gave the commission the specific task of investigating the existence of any collusion between politicians and company F., a fiduciary company which had been traced back to B. (a notary and lawyer by profession). 8. The commission produced a report, chapter two of which was devoted entirely to criminal collusion between company F. and various officials. It highlighted the existence of a well‑established corrupt practice of representatives or employees of certain named construction companies which bribed public officials responsible for overseeing construction site safety (Sicurezza Antinfortunistica) to omit to carry out compulsory safety checks on companies allegedly connected with the above‑mentioned company F. 9.", "Further details about the commission’s work and the relevant investigation and trial are set out in Berardi and Others v. San Marino ((dec.), no. 24705/16, ECHR, 1 June 2017). B. Criminal proceedings 1. First-instance proceedings 10.", "On 12 December 2012 the applicants (and other persons) were charged with the continuing offence of bribery pursuant to Articles 50, 73 and 373 of the Criminal Code (see Relevant domestic law below). In particular, they were charged with periodically receiving sums of money in cash in order to omit to carry out their duties by failing to inspect the construction sites of the companies controlled by B. and abstaining from sanctioning violations and irregularities found in such companies. The first and second applicants were charged in respect of events up to 1 January 2010. 11. On 19 September 2014 the first‑instance judge found all the accused, including the applicants, guilty of the continuing offence of bribery.", "The applicants were sentenced to five years and six months’ imprisonment, a four‑year prohibition on holding public office and exercising political rights, and a fine of 25,000 euros (EUR). 12. In particular, the judge considered B. as being the de facto dominus of the companies under investigation and found that he had been responsible for giving orders and instructions to the various formal directors of the companies to bribe the first and the second applicant in order to avoid safety checks at his companies’ construction sites. The court found that witness statements had been corroborated by the bank accounts showing disbursements, the sums of money deposited by the applicants in their bank accounts in the relevant years (2005‑12), and the testimony of another person, who had stated that she had often seen the officials come to the office to meet M. (the formal administrator of a company which was owned and actually controlled by B.) for very brief periods.", "13. The judge held that the offence had to be classified as direct bribery (corruzione propria) under Article 373 § 1 of the Criminal Code as the applicants had been exercising discretionary powers arising from their office while carrying out the criminal acts. In particular, the exercise of discretion while consciously violating the rules pertaining to its exercise had to be considered as acts that were contrary to the duties arising from the applicants’ office. The fact therefore that the applicants had agreed to refrain from exercising their discretionary powers or to do so in an aberrant way in exchange for money constituted direct bribery. 14.", "As to the penalty, the judge stated, in general terms, that he had calculated it on the basis of parameters such as the number of acts of bribery, the type of acts which had been the subject of the bribery, the role of each accused person and the time‑frame in which they had carried out the criminal act. 2. Appeal proceedings 15. On 13 February 2015, the applicants appealed. They complained, inter alia, that before the passing of Law No.", "92 of 17 June 2008 there had been no provision for the crime of “bribery inducing omission” (corruzione per omissione), that is, a form of bribery where an official is paid to omit to carry out or to delay a legitimate act arising from his or her office (hereinafter referred to as “bribery inducing omission”). Thus, at most they should have been charged with indirect bribery (corruzione impropria), which carried a lighter penalty (by one degree/punishment bracket). However, they had been accused of bribery inducing omission in relation to facts which had arisen before the law had come into force. 16. By a judgment filed in the registry on 12 January 2016 the Judge of Criminal Appeals (Giudice d’Appello Penale) upheld the first‑instance judgment in the part relating to the applicants, but reduced the sentence to five years’ imprisonment, a four‑and‑a‑half‑year prohibition on holding public office and exercising political rights, and a fine of EUR 20,000.", "The judge did not apply the increased penalty provided for by Article 50 of the Criminal Code (for a continuing offence), which had been applied by the first‑instance judge, because the first‑instance judge had not indicated the specific extent of the increased penalty he had applied, solely stating that the penalty had been determined with regard to the several acts of corrupt conduct. 17. It was noted that the bank account deposits made by the first and second applicants indirectly indicated their guilt. The evidence adduced by the applicants, or that which they had asked to submit but which had not been allowed at first instance, was not sufficient to disprove any inferences based on the apparent situation. Indeed, there was no explanation as to why the applicants had regularly deposited money in their bank accounts when there had been a real‑estate and construction boom or why the deposits had then declined after a crisis in the sector in general, and more specifically after one that had affected the companies concerned.", "In the light of the clear evidence of payments having been made to the first and second applicants, there was no need to enter into a detailed analysis of their role on the construction sites. 18. In connection with the applicants’ complaint concerning the principle of nullum crimen sine lege, the Judge of Criminal Appeals noted that the case did not concern multiple crimes. The only crime at issue was bribery resulting from the pact struck (patto corruttivo) between B. and the applicants. That pact had involved, on the one hand, a promise not to create problems for the construction companies in question, that is, favourable treatment for friends, and, on the other hand, it had been done in exchange for the making and receiving of regular payments of money.", "Such favouritism had had specific corresponding rewards according to comparative tables adjusted for the purpose. Indeed, the duration of the pact had required various amendments to the applicable tariffs, which had also depended on the rotation of the people and companies involved. However, it had consisted of one crime (unicità di reato) perpetrated over time, as each payment resulting from the original pact meant the renewal of the pact. In connection with the date on which the punishable act had been committed (tempus commissi delicti), with all the elements of the offence being present, the court considered that the period in question was the whole time from the initial pact and lasting throughout the execution of each act constituting its renewal. The prolonged nature of the act in question had had various consequences: (i) third persons who had not been involved in the original pact had nevertheless become accomplices in the offence of bribery; (ii) limitation periods had to start running from the date of the last payment involving the accused and (iii) as in the case of continuing offences, an amendment to the relevant law during the period of the crime had to be applied also to the continuing offence of bribery of which the applicants had been accused.", "19. The court noted that if the acts ascribed to the applicants had amounted to bribery inducing omission (that is, a private “corruptor” had paid the public officials to fail to do their duty), then it was true that such acts could have been considered as not constituting a crime at the time, or more precisely, that they had constituted the offence of indirect bribery, covered by paragraph 2 of the old law. However, that was not the case as the applicants had been paid also to carry out acts which were contrary to the duties of their office, which was covered by the “old” Article 373 [§ 1]. According to the Judge of Criminal Appeals, the amended Article 373, which expressly provided for the crime of direct bribery to include the promise of an omission or payment for a past omission, did not create a new crime but amounted solely to a more serious legal classification of acts which already constituted a crime. The change in the law was therefore irrelevant in the applicants’ case.", "20. In conclusion, the judge dismissed the idea that the acts for which the applicants had been found guilty should have been classified merely as bribery inducing omission (formerly indirect bribery, then qualified as direct bribery after the entry into force of the new law). That was because the applicants had not only been found guilty of omission of acts arising from their office, but also of having a general attitude of favouritism towards the companies de facto controlled by B. by sometimes not carrying out the necessary safety checks, doing fewer than necessary or ignoring possible irregularities. In doing so, they had been acting contrary to the duties related to their office in the interests of a private corruptor. It followed therefore that the more limited formulation of Article 373 before 2008 also covered the facts of the applicants’ case.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. San Marino fundamental human rights charter 21. Article 15 § 4 of Law No. 59 of 8 July 1974, as amended by Law No. 36 of 26 February 2002, the San Marino Charter of Fundamental Human Rights (Dichiarazione dei Diritti dei Cittadini e dei Principi Fondamentali dell’Ordinamento Sammarinese), in so far as relevant, reads as follows: “Punishments ... may only be handed down by a judge established by law, on the basis of non-retroactive laws.", "The retroactive application of a law is only provided for when such a law is more favourable.” B. Criminal Code 22. The provisions of the Criminal Code pertinent to the present case, in so far as relevant, read as follows: General Part - Title one – The criminal lawArticle 3 (non-retroactivity of the criminal law) “Nobody can be punished for a fact which, at the time it was committed, did not constitute an offence, or by a penalty harsher than the one provided for by the law in force at that time ...” Title three – The crimeChapter II – The crime, committed, attempted and failedArticle 24 (the committed offence) (reato consumato) “A crime is committed when the commissive or omissive conduct (condotta commissiva o omissiva) of a perpetrator results in the occurrence of the damage or danger referred to in law in relation to such conduct. The damage or danger result also from an omissive conduct when the perpetrator has a duty to avoid the occurrence of such damage or danger” Chapter VI – Concurrent offences (concorso di reati)Article 49 (concorso formale di reati) “If with only one action (azione) or omission (omissione), a person found guilty, breaches different provisions of the criminal law or multiple times the same provision, he or she are to be punished...” Article 50 (continuing offence) (reato continuato) “Whosoever, through one or more actions (azioni) or omissions (omissioni), commits multiple violations of the same criminal provision, connected by the same criminal plan, shall be punished by the penalty provided for the most serious violation, increased as appropriate, taking into account the number and the entity of the offences, but not exceeding the maximum of the sentencing bracket (grado). However, if the most serious violation is already punishable by the maximum penalty, then the maximum penalty by which it can be increased is that of the maximum of the next sentencing bracket.” Chapter VII – The cessation of an offenceArticle 55 (time of commission of the offence) “For the purposes of the period of limitation and of the period for the application of amnesty, an offence shall be considered as having been committed at the time the criminal activity ceased or on the day on which ... its continuation ceased, for a continuous or continuing offence (se trattasi di reato permanente o continuato).” 23.", "In judgment no. 5 of 4 November 2015 (criminal proceedings no. 25/RNR/2015), the Third‑Instance Criminal Judge stated that the rule under Article 55 on the limitation period also applied for the purposes of the non‑retroactivity of a criminal provision and the retroactivity of more favourable criminal provisions. Title four – Aiding and AbettingArticle 73 (aiding and abetting) “Whosoever has aided and abetted, in whatever way, the commission of an offence is liable to the penalty provided for it ...” Title five – Punishment and other measuresArticle 81 (imprisonment) “Imprisonment has the following degrees: (3) from two to six years; (4) from four to ten years.” Article 82 (prohibitions) “Prohibitions have the following degrees: (3) from one to three years; (4) from two to five years.” Article 85 (daily fine) “As to the daily fine (multa a giorni), the sum (of money) to be paid is provided by law with reference to a number of days between a minimum and a maximum. It is up to the judge to determine in the specific case the sum of money corresponding to one day of fine, on the basis of how much the person found guilty can save daily while living frugally and fulfilling the possible burdens for his family’s upkeep.", "The daily fine has the following degrees: (2) from ten to forty days; (3) from twenty to sixty days.” Special Part - Title IV – Chapter IV(Crimes of public officials against the Public Administration)Article 373 (bribery (corruzione)) (prior to 2008) “(1) A public official who receives, for his own benefit or that of others, any undue profit or a promise of such in order to carry out an act (atto) contrary to the duties arising from his functions is to be punished by imprisonment and a prohibition on holding public office and exercising political rights of the fourth degree as well as by a fine of the third degree. (2) The punishment shall be reduced by one degree if the act carried out was one arising from his functions ... (4) The punishment indicated in the previous paragraphs shall also be applied to those who give or promise undue profit.” 24. According to domestic legal literature pre‑dating the amendment, bribery inducing omission was covered by the old wording of Article 373 § 1 of the Criminal Code (direct bribery) (see Alvaro Selva, Commento al Codice Penale della Repubblica di San Marino, p. 430, Istituto Giudirico Sammarinese, Studi e Ricerche 3, 2007). According to the same legal literature, both before and after the amendments which have not affected Article 373 § 2 (that is, both 2007 and 2010 editions), a public official is deemed to have carried out an act of “indirect bribery” (Article 373 § 2) when he accepts an undue payment or the promise of an undue payment in order to carry out an act which falls within his official functions and in respect of which he can interfere and exercise influence. Thus, the act must be typical of the functions of the public official, and cannot be a discretionary act (see Alvaro Selva, Commento al Codice Penale della Repubblica di San Marino (revised edition), p. 597, Istituto Giudirico Sammarinese, Studi e Ricerche 3, 2010).", "25. Paragraph 1 of Article 373 of the Criminal Code, as amended by Article 79 § 1 of Law No. 92 of 17 June 2008, reads in so far as relevant as follows: Article 373 (bribery (corruzione)) (post-2008) “(1) A public official who receives, for his own benefit or that of others, any undue profit or a promise of such in order to omit or delay or after having omitted or delayed any duty pertaining to his office (function) (un atto del suo ufficio), or (ovvero) to carry out or to have carried out an act contrary to the duties arising from his functions, is to be punished by imprisonment and prohibition on holding public office and exercising political rights of the fourth degree as well as by a fine of the third degree.” (2) The punishment shall be reduced by one degree if the act carried out was one arising from his functions ... (4) The punishment indicated in the previous paragraphs shall also be applied to those who give or promise undue profit.” 26. Article 96 of Law No. 92 of 17 June 2008 reads as follows: Article 96 (entry into force) “The present law shall enter into force three months after its official publication.” C. Relevant domestic case-law 27.", "By a final judgment no. 26 of 2013 (criminal proceedings no. 765/RNR/2010) in a case concerning ongoing money laundering, the Judge of Criminal Appeals stated that a continuing offence had to be considered as a single offence (at least in respect of the effects it had). According to the judge, that opinion had been confirmed by the fact that in San Marino, as distinct from other systems of criminal law which provided for continuing offences (for instance, in Italy), a continuing offence could be constituted only from multiple violations of the same criminal provision (and not by the commission of different offences). Moreover, while the relevant Article of the Italian Criminal Code provided for the existence of the same criminal scheme (medesimo disegno criminoso), in San Marino the acts had to be connected by the same criminal plan (medesimo programma criminoso).", "Behaviour constituting a continuing offence had to be considered by the accused as the execution of a deliberate, previous plan, while acts which had not been regarded by the accused as being components of the plan should not be covered by the classification of a continuing offence. 28. In final judgment no. 16 of 1991 the Judge of Criminal Appeals stated: “In doctrine there is no agreement on the nature of a continuing offence. Some consider it as a legal fiction (fictio iuris) that the legislature has provided for in order to [determine] the punishment (quoad pooenam) and for other effects, for example the determination of the competence of a judge.", "Others consider it as a legal instrument inspired by the principle of favor rei, with the consequence that it is appropriate to rely on this principle in order to decide when different violations must be considered as a single offence or as multiple offences. The Italian doctrine is inclined to consider a continuing offence as a fictitious legal unit (unità giuridica fittizia), inspired by the principle of favor rei and relevant in order to determine the punishment and for other particular purposes (inter alia, the calculation of the limitation period of a crime and the territorial competence), while, in general terms, single violations retain their autonomy and must be considered as distinct offences ... the legislative unification represented by a continuing offence leaves the structure of each offence intact and completely autonomous, with many different and distinct events being considered as a single offence and as criminal activity over a long period. Consequently, each offence is subject to the limitation period provided for it by law. Such limitation period starts running from the cessation of the criminal activity”. THE LAW ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION 29.", "The applicants complained that the law had been applied retroactively to their disadvantage, as they had been found guilty of bribery in accordance with the wording of a criminal provision that had not yet been in force at the time of the facts. They pointed out that the present case had been the first criminal proceedings for corruption in the small Republic of San Marino. They invoked Article 7 of the Convention, which reads as follows: “1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.” 30.", "The Government contested that argument. A. Admissibility 31. The Court notes that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. The parties’ submissions (a) The applicants 32. Relying on the Court’s case-law (in particular, Del Río Prada v. Spain [GC], no. 42750/09, ECHR 2013; Coëme and Others v. Belgium, nos.", "32492/96 and 4 others, § 145, ECHR 2000‑VII; and Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, §§ 42‑43, ECHR 1999‑IV), the applicants observed that their conviction had violated Article 7 of the Convention since at the time of the facts, the offence of bribery inducing omission had not been clearly covered by the domestic provision on corruption. Therefore, according to the applicants, such provision had been applied retroactively and, by analogy, to their disadvantage. 33. In reply to the Government’s submissions, the applicants argued that the Government were wrong in considering that the offence had been committed on 1 January 2010 and that they had misinterpreted Article 55 of the Criminal Code.", "They pointed out that the relevant provision came under Chapter VII of the Criminal Code, which was entitled “Extinction of the crime”. Therefore it was applicable only in order to calculate the limitation period of an offence and not to establish the date on which an offence had been committed. The applicants referred to relevant domestic case‑law concerning continuing offences (see paragraph 27 above). In the light of such case‑law, the applicants argued that each single episode of corruption, even if it was considered as part of a continuing offence, maintained its autonomy. Thus, in order to identify the provision and the penalty to apply to the case, each episode of corruption which had been attributed to the applicants had to be considered as having been committed on the date of the acceptation of each promise, or on the date of receipt of each payment (or gift) if such receipt had been prior to the promise (see Relevant domestic law, paragraph 25 above).", "In the opinion of the applicants, even the Judge of Criminal Appeals had confirmed such interpretation (see paragraph 18 above). 34. Thus, according to the applicants, the facts committed prior to the entry into force of the relevant amendments did not constitute an offence under domestic law and the applicants should have been acquitted for their conduct before that date (23 September 2008). 35. The applicants shared the Government’s opinion that both, the old version and the new version of the provision on bribery, provided for the same penalty.", "They argued, however, that the type (based on the relevant definition) of punishable conduct (which, also according to the Government, was more specific in the wording of the law following the amendment) should have determined the application of a more lenient global penalty (than the one imposed on them), given that some of the alleged episodes of corruption (namely, those committed prior to the entry into force of the amendment) had not constituted a crime. (b) The Government 36. The Government denied that the new formula of Article 373 of the Criminal Code had been applied retroactively to the applicants’ detriment. They submitted that the amendment to Article 373 of the Criminal Code had entered into force on 23 September 2008 (see paragraph 25 above), whereas the conduct constituting an offence had persisted until 1 January 2010 (see paragraph 10 above). Thus, in the opinion of the Government, there had not been a retroactive application of the law.", "The Government referred to Articles 50 and 55 of the Criminal Code concerning continuing offences (see paragraph 22 above). Pursuant to Article 50, the criminal conduct of the applicants, constituting violations of the same criminal provision and being linked by the same criminal plan, had been characterised as a continuing offence. Pursuant to Article 55, in the event of a continuing offence, the latter had to be considered as having been committed until the last criminal act had been carried out, namely 1 January 2010 (see paragraph 10 above). In that light, the amended version of the relevant law on corruption, resulting from a combined reading of Articles 50, 55 and 373 of the Criminal Code, was, in the Government’s view, the only applicable law in the instant case. 37.", "In any event, the conduct of the applicants had never been considered by the domestic courts to be mere acts of omission, but rather as conduct aimed at allowing B.’s de facto companies to avoid sanctions, thus as acts of commission. As a result, the amendment had not had any practical effect on the position of the applicants. Referring, in particular, to the first‑instance judgment, the Government pointed out that the judge had stated that the conviction had been based on the fact that the applicants had used their discretionary powers in a distorted way, thus constituting the offence of direct bribery under Article 373 § 1 (see paragraph 13 above), namely conduct which had been contrary to their official duties. So, even if the applicants’ argument (namely, that it was necessary to consider each of their actions or omissions individually) had been accepted by the domestic courts, there would not have been any significant change as regards the position of the applicants, owing to the fact that the acts carried out before 23 September 2008 had also been acts of commission. 38.", "In addition, since the penalties had remained unchanged in the two formulas of Article 373, the domestic courts, when applying the punishment, had had no need to make a distinction between the acts performed before and after the amendment of the provision. The Government considered that both, the old and the new formula of Article 373 of the Criminal Code, provided for the same penalty. The difference between the two versions of the provision lay solely in the fact that a more specific definition of the punishable conduct (specificazione della condotta punibile) had been provided. Thus, in the Government’s view, even assuming that the domestic courts had applied the old version of Article 373 instead of the new one, the punishment would have been exactly the same. Contrary to the applicants’ allegations, the Government argued that the acts ascribed to the applicants had already constituted an offence under the pre‑existing legislation.", "2. The Court’s assessment (a) General principles 39. The Court reiterates that Article 7 of the Convention is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage (concerning the retrospective application of a penalty, see Welch v. the United Kingdom, 9 February 1995, § 36, Series A no. 307‑A; Jamil v. France, 8 June 1995, § 35, Series A no. 317‑B; Ecer and Zeyrek v. Turkey, nos.", "29295/95 and 29363/95, § 36, ECHR 2001‑II; and Mihai Toma v. Romania, no. 1051/06, §§ 26-31, 24 January 2012). It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) (see Kokkinakis v. Greece, 25 May 1993, § 52, Series A no. 260-A). While it prohibits in particular extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy (see Coëme and Others, cited above, § 145; for an example of the application of a penalty by analogy, see Başkaya and Okçuoğlu, cited above, §§ 42‑43).", "40. It follows that offences and the relevant penalties must be clearly defined by law. This requirement is satisfied where the individual can know from the wording of the relevant provision, if need be with the assistance of the courts’ interpretation of it and after taking appropriate legal advice, what acts and omissions will make him criminally liable and what penalty he faces on that account (see Cantoni v. France, 15 November 1996, § 29, Reports of Judgments and Decisions 1996‑V, and Kafkaris, v. Cyprus [GC], no. 21906/04, § 140, ECHR 2008). 41.", "The Court must therefore verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision (see Coëme and Others, cited above, § 145; Achour v. France [GC], no. 67335/01, § 43, ECHR 2006‑IV; and Del Río Prada v. Spain [GC], no. 42750/09, § 80, ECHR 2013). 42. The Court reiterates that the legal basis of a crime has to be sufficiently clear and foreseeable, but that, to some extent, the gradual interpretation of the meaning and of the scope of an offence operated by the internal courts can be taken into account.", "The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain (see Kafkaris, cited above, § 141). Whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances (see Scoppola v. Italy (no.2) [GC], no. 10249/03, § 100, 17 September 2009, and Del Río Prada, cited above, § 92). 43. It is not the Court’s task to substitute itself for the domestic courts as regards the assessment of the facts and their legal classification, provided that these are based on a reasonable assessment of the evidence (see Rohlena v. the Czech Republic [GC], no.", "59552/08, § 51, ECHR 2015). Furthermore, in any system of law it is for the domestic courts to interpret the provisions of substantive criminal law in order to determine, by reference to the structure of each offence, the date on which, all the requirements of the offence being present, a punishable act was committed. The Convention may not act as a bar to this kind of judicial interpretation, provided that the conclusions reached by the domestic courts are reasonably foreseeable within the meaning of the Court’s case‑law (see Rohlena, cited above, § 58). 44. The Court reiterates that in assessing the foreseeability of a judicial interpretation, no decisive importance should be attached to a lack of comparable precedents (compare K.A.", "and A.D. v. Belgium, nos. 42758/98 and 45558/99, §§ 55‑58, 17 February 2005). Where the domestic courts are called on to interpret a provision of criminal law for the first time ‑ as in the present case ‑ as opposed to cases concerning a reversal of pre‑existing case‑law, an interpretation of the scope of the offence which is consistent with the essence of that offence must, as a rule, be considered as foreseeable (see Jorgic v. Germany, no. 74613/01, § 109, ECHR 2007‑III). In this regard, the Court reiterates that Article 7 of the Convention is not incompatible with judicial law‑making and does not outlaw the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (see Khodorkovskiy and Lebedev v. Russia, nos.", "11082/06 and 13772/05, § 821, 25 July 2013). (b) Application to the present case 45. Turning to the instant case, the Court notes that the applicants did not complain that the domestic courts had defined their case as a continuing offence (see, a contrario, Rohlena, cited above, § 44) which, moreover, in their case had not led to a more severe punishment (see paragraph 16 above). Rather, they argued that their conduct prior to the 2008 amendments did not amount to an offence at all, and thus they should not have been punished also for the acts committed prior to 2008. Thus, the Court notes that even accepting that Article 50 of the Criminal Code obliged the domestic courts to apply the post‑2008 amendment in cases of a continuing offence, the application of the concept of a continuing offence was of no consequence to the applicants’ case because the law both before and after the amendments covered the same offence and was foreseeable.", "The Court will thus revert to the matter, which was referred to in the applicants’ observations at a later stage if necessary. 46. The Court observes that the applicants were charged with the continuing offence of bribery, pursuant to Articles 50, 73 and 373 of the Criminal Code. In particular, they were charged with periodically receiving sums of money in cash in order to omit to carry out their duties, namely by failing to inspect the construction sites of the companies controlled by B. and by abstaining from sanctioning violations and irregularities found in such companies (see paragraph 10 above). 47.", "The applicants claimed that the conduct ascribed to them constituted bribery inducing omission, which had only become an offence incorporated in Article 373 § 1 in 2008, whereas they had also been accused in relation to their conduct preceding that date. 48. The Court starts by noting that the charges against the applicants referred to the offence of bribery under Article 373 in general, which includes both direct bribery, namely, prior to 2008, payment to carry out an act contrary to the duties arising from the functions of a public official (Article 373 § 1), as well as indirect bribery, namely payment for the carrying out of acts arising from the functions of a public official ‑ a lesser offence arising out of mitigating circumstances according to domestic doctrine (see paragraph 24 above). It was thus for the national judge to classify their conduct as falling under one or more of the said sub‑paragraphs. In this connection, the Court refers to its general principles set out at paragraph 43 above concerning the assessment of facts and their legal classification.", "However, in the present case, it remains for the Court to examine whether there was a contemporaneous legal basis for the applicants’ conviction and that the result reached by the relevant domestic courts was compatible with Article 7 of the Convention (compare the approach taken in Rohlena, cited above, § 52). 49. The Court notes that the first-instance judge considered that the conduct ascribed to the applicants had amounted to refraining from exercising their discretionary powers or doing so in an aberrant way in exchange for money, and considered that prior to the 2008 amendments such conduct constituted direct bribery and had been covered by Article 373 § 1 of the Criminal Code (see paragraph 13 above). Thus, the first‑instance judge characterised bribery inducing omission as a form of direct bribery, namely a type of bribery in which a corrupt public official received an undue payment in order to carry out an act contrary to the duties arising from his or her office. On this basis, the Court notes that the first‑instance judge implicitly considered that, with respect to the offence of bribery, omissions had to be considered as acts and that there was therefore no need to distinguish between omissions and commissions, both being acts contrary to the duties arising from a public official’s office.", "50. On appeal, the Judge of Criminal Appeals stopped short of explicitly characterising the applicants’ conduct as bribery inducing omission, but held that, even if it were so, before the 2008 amendments bribery inducing omission had been covered by Article 373 § 2. Nevertheless, the Judge of Criminal Appeals considered that this was not the case, as the applicants had been paid also to carry out acts which were contrary to their official duties, which was conduct covered by the “old” Article 373 [§ 1]. 51. The Court notes that despite the fact that the first and second‑instance courts disagreed as to whether bribery inducing omission had been covered by sub‑paragraph 1 or 2 of the provision dealing with the general crime of bribery prior to 2008, both those courts characterised the applicants’ criminal conduct as being acts contrary to their official duties, which is in the Court’s view a reasonable assessment.", "Thus, the same legal basis served for the applicants’ conviction in both domestic judgments, namely Article 373 § 1 of the Criminal Code, as it stood both prior to the 2008 amendments and thereafter. 52. The Court finds that irrespective of whether they are characterised as acts of omission or acts of commission – a prerogative of the deciding judges – the acts committed by the applicants were carried out contrary to their duties and were considered by all the entities that pronounced themselves on the matter to be covered by Article 373 § 1 of the Criminal Code, both before and after the amendments. 53. The Court recognises that the applicants’ case had no precedents, being the first criminal proceedings for bribery ever instituted in San Marino (see paragraph 29 above) and in this connection, refers to its general principles set out in paragraph 44 above.", "54. In assessing whether the domestic courts’ interpretation of the crime of bribery in the present case could reasonably have been foreseen by the applicants at the material time, the Court notes that both the old version and the new version of Article 373 § 1 of the Criminal Code of San Marino defined the concept of “bribery” in similar terms. Those provisions explicitly referred to the receipt of undue profit or a promise of such in order to carry out an act contrary to the duties arising from the functions of a public official. The Court has no doubt that the applicants were aware that payment to avoid carrying out their duties by failing to inspect construction sites and abstaining from sanctioning violations and irregularities was conduct which amounted to acts that were contrary to their duties and thus that they would constitute the offence of bribery, whatever its qualification. Thus, the Court considers that the consequences of failure to comply with the relevant criminal law were adequately foreseeable, not only with the assistance of legal advice, but also as a matter of common sense (see, mutatis mutandis, Moiseyev v. Russia, no.", "62936/00, § 241, 9 October 2008 and, a contrario, Pessino v. France, no. 40403/02, §§ 36-37, 10 October 2006). The domestic courts’ interpretation was thus consistent with the essence of that offence. 55. Lastly, as the Court has noted above (see paragraph 53), the offence of bribery (also in the old wording of the relevant law) comprised both acts of omission and acts of commission.", "Whether one or both types of acts were found to have been committed in the present case had no impact on the characterisation attributed to those acts in law, namely as falling under Article 373 § 1. Given that the legal characterisation was identical in both situations, the Court does not discern any legal basis to assume that in either case a heavier penalty would be imposed (see, mutatis mutandis, Moiseyev, cited above, § 242). 56. Having regard to the findings that the applicants’ conduct was covered by both the old and the new formula of the law, that this was forseeable, and that both provisions carried the same penalty, the Court considers that the fact that the offence at hand was characterised as a continuing offence is irrelevant to the present case. Thus, it does not find it necessary to address the parties’ submissions in that respect.", "57. In the light of the above, the Court finds that there has not been a violation of Article 7 of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the applications admissible; 2. Holds that there has been no violation of Article 7 of the Convention.", "Done in English, and notified in writing on 10 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposLinos‑Alexandre SicilianosRegistrarPresident" ]

[ "SECOND SECTION CASE OF BİLGİÇ v. TURKEY (Application no. 54135/07) JUDGMENT STRASBOURG 28 November 2017 This judgment is final but it may be subject to editorial revision. In the case of Bilgiç v. Turkey, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Ledi Bianku, President,Paul Lemmens,Jon Fridrik Kjølbro, judges,and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 7 November 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 54135/07) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Ahmet Bilgiç (“the applicant”), on 30 November 2007.", "2. The applicant was represented by Mr S. Aydın, a lawyer practising in Antalya. The Turkish Government (“the Government”) were represented by their Agent. 3. On 22 September 2015 the complaints concerning the alleged unfairness of the proceedings before the Supreme Military Administrative Court on account of the applicant’s inability to access the classified documents submitted by the Ministry of Defence, and the alleged independence and impartiality of the tribunal because of the presence of two military officers sitting on the bench who did not enjoy the same judicial guarantees as the other military judges, were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.", "4. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1987 and lives in Bursa. 6. On 26 April 2006 the applicant was dismissed from the Air Force non-commissioned officer vocational high school due to non-compliance with admission pre-conditions. On 22 June 2006 the applicant brought an action before the Supreme Military Administrative Court and requested the annulment of the dismissal decision. 7.", "On 23 May 2007 the Supreme Military Administrative Court rejected the applicant’s request, taking into account the “secret documents” submitted by the Ministry of Defence. These documents were not disclosed to the applicant. This decision was served on the applicant on 5 June 2007. II. RELEVANT DOMESTIC LAW 8.", "A description of the domestic law at the material time can be found in Tanışma v. Turkey (no. 32219/05, §§ 29-47, 17 November 2015), and Yavuz v. Turkey ((dec.), no. 29870/96, 25 May 2000). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 9.", "Relying on Article 6 § 1 of the Convention, the applicant complained that he had been denied a fair hearing by an independent and impartial tribunal since the two military officers who sat on the bench of the Supreme Military Administrative Court remained under the hierarchy of the military authorities and did not enjoy the same judicial guarantees as the other military judges. He further complained about the lack of fairness in the proceedings before the Supreme Military Administrative Court on account of his inability to have access to the classified documents submitted by the Ministry of Defence to that court in the course of the proceedings. A. Concerning the independence and impartiality of the Supreme Military Administrative Court 1. Admissibility 10.", "The Government argued under Article 35 of the Convention that the applicant’s complaint in respect of the independence and impartiality of the Supreme Military Administrative Court must be rejected for failure to exhaust domestic remedies. In this connection, they maintained that the applicant failed to lodge a motion, requesting the disqualification of the military judges. 11. The applicant did not comment on that argument. 12.", "The Court observes that the establishment and composition of the Supreme Military Administrative Court was expressly prescribed by the Constitution and law. Accordingly, any objection filed by the applicant regarding the composition of the court for the simple reason that the judges sitting on the bench were members of the army would have been doomed to failure (see Yavuz v. Turkey (dec.), no. 29870/96, 25 May 2000, and mutadis mutandis, Satık v. Turkey (no. 2), no. 60999/00, § 39, 8 July 2008).", "13. Thus, such a request before the national authorities would not have remedied the situation complained of. It follows that this objection should be dismissed. The Court also considers that this 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 must therefore be declared admissible. 2. Merits 14. The Court reiterates that it has already examined a similar grievance in the case of Tanışma v. Turkey (no. 32219/05, §§ 68-84, 17 November 2015) and found a violation of Article 6 § 1 of the Convention.", "It finds no particular circumstances which would require it to depart from its findings in the above-mentioned judgment. 15. There has therefore been a violation of Article 6 § 1 of the Convention on account of the lack of independence and impartiality of the Supreme Military Court. B. Concerning the access to the classified documents 16.", "The applicant complained about the fairness of the proceedings before the Supreme Military Administrative Court on account of his inability to have access to the classified documents submitted by the Ministry of Defence. 17. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 18. Having regard to its finding of a violation of the applicant’s right to a fair hearing by an independent and impartial tribunal, the Court considers that it is not necessary to examine this complaint (see, among other authorities, Incal v. Turkey, 9 June 1998, § 74, Reports of Judgments and Decisions 1998‑IV; Ükünç and Güneş v. Turkey, no.", "42775/98, § 26, 18 December 2003; and Yeltepe v. Turkey, no. 24087/07, § 33, 14 March 2017). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 19. The applicant, who had been invited to submit his just satisfaction claims before 6 July 2016, failed to do so within the specified time-limit.", "Consequently, there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the lack of independence and impartiality of the Supreme Military Administrative Court; 3. Holds that it is not necessary to consider the applicant’s complaint concerning his inability to have access to the classified documents submitted by the Ministry of Defence to the Supreme Ministry Administrative Court.", "Done in English, and notified in writing on 28 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıLedi BiankuDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF NEDESCU v. ROMANIA (Application no. 70035/10) JUDGMENT STRASBOURG 16 January 2018 FINAL 16/04/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Nedescu v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Ganna Yudkivska, President,Vincent A. De Gaetano,Paulo Pinto de Albuquerque,Faris Vehabović,Iulia Motoc,Carlo Ranzoni,Georges Ravarani, judges,and Marialena Tsirli, Section Registrar, Having deliberated in private on 12 December 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 70035/10) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Romanian nationals, Mrs Daniela Nedescu and Mr Călin Nedescu (“the applicants”), on 26 November 2010. 2. The applicants were represented by Ms Diana-Elena Dragomir, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Ms Catrinel Brumar, from the Ministry of Foreign Affairs.", "3. The applicants alleged that they had suffered a violation of their rights under Article 8 of the Convention because they had not been able to use their embryos to have another child after the embryos had been seized by the prosecuting authorities in 2010. 4. On 6 November 2012 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The first applicant, Mrs Daniela Nedescu, is married to the second applicant, Mr Călin Nedescu. They were born in 1976 and live in Bucharest. 6. In 2008 the applicants, who were childless but wanted to have children, decided to try assisted reproduction at a private clinic, the S. Clinic.", "It appears that the S. Clinic had previously applied to the National Transplant Agency (“the Transplant Agency”) for authorisation to function as a cell and tissue bank and user in accordance with the legal requirements, an application which was still pending completion in 2008. 7. Following an ovarian stimulation and in vitro fertilisation, seven embryos were obtained, of which three were transferred immediately to Mrs Nedescu, who became pregnant and gave birth. 8. The four remaining embryos were frozen and put in storage at the S. Clinic in November 2008 with a view to their future use by Mrs Nedescu.", "9. On 15 July 2009 the procedure for obtaining the required authorisation from the Transplant Agency was completed and the S. Clinic was authorised to act as a medical centre that could function as a storage bank for genetic material. 10. On 24 July 2009, following a criminal investigation into the delivery of the above authorisation, the Directorate for the Investigation of Organised Crime and Terrorism attached to the Prosecutor General’s Office of Romania (DIICOT) closed the S. Clinic, seized all the genetic material found there, including the applicants’ embryos, and transferred it to the Mina Minovici Institute of Forensic Medicine (“the IFM”). The applicants’ embryos and those of other couples were kept in containers.", "Each container had different vials for each set of embryos. 11. It appears from a DIICOT report dated 9 November 2009 that the embryos of more than 240 families were seized at the S. Clinic. As with other patients of the Clinic, the applicants were neither informed of the seizure, which they learned about from the media, nor consulted about the transfer of the seized embryos from the S. Clinic to the IFM. 12.", "On 13 March 2010 the applicants requested that DIICOT allow them to retrieve their embryos as they wished to undergo a new assisted reproduction procedure in another clinic. They pointed out that it was of the utmost importance that they be allowed to retrieve the embryos rapidly since the storage period was to expire in August 2010 and there was a strict procedure for the transfer. 13. On 30 March 2010 DIICOT allowed the applicants to recover the embryos directly from the IFM. They had to be accompanied by an embryologist and provide a special container with liquid nitrogen.", "14. On 21 July 2010 the applicants went to the IFM accompanied by an embryologist, however, they were not allowed to retrieve the embryos. They were asked instead to show that the Transplant Agency had approved the transfer. 15. The first applicant, under the supervision of a specialist doctor, therefore attempted to have a new ovarian stimulation in the hope of creating new embryos.", "16. However, on 18 August 2010, while being treated for premature menopause, she underwent a medical examination which revealed that her state of health did not allow her to undergo another ovarian stimulation. 17. The applicants joined the criminal proceedings instituted against the administrative board of the S. Clinic and the doctors practising within or in cooperation with it, and sought damages under domestic tort provisions for not being able to use the embryos. In an interlocutory judgment of 29 November 2010 the applicants’ action was dismissed for lack of victim status on the grounds that the IFM’s refusal to allow them to recover the embryos had no link with the crimes allegedly committed by the accused.", "The applicants were directed to bring a claim for damages before a civil court. 18. The applicants therefore resumed their efforts to retrieve the embryos deposited with the IFM, but were not successful. 19. In November 2010 they brought an action before the Bucharest Court of Appeal against the Transplant Agency and the Ministry of Health, seeking to obtain the agency’s authorisation to transfer their embryos to an authorised clinic, in Romania or abroad, where Mrs Nedescu could try again to become pregnant.", "20. On 12 December 2010 Mrs Nedescu had another examination, which led to the same conclusions as on 18 August 2010. 21. On 13 December 2010 the Transplant Agency informed the applicants that it refused to approve a transfer of the embryos. It stated that DIICOT had moved the embryos to the IFM unlawfully as the institute had never obtained the required permit to act as a tissue and cell bank.", "The provisions of the Code of Criminal Procedure relied on by DIICOT had also not provided any guarantees for the safety of the embryos deposited with the IFM. 22. At a hearing on 22 March 2011 the applicants asked the Court of Appeal to order the transfer of the embryos from the IFM to a private clinic of their choice located in Sibiu, the P. Clinic, which was authorised to carry out assisted reproduction and act as a genetic material storage bank. 23. The court dismissed the applicants’ application on the same day.", "It relied on the provisions of section 148(4) and (5) of the Health Care Reform Act. It found that the Transplant Agency’s refusal to allow the transfer of the embryos had been lawful since neither the S. Clinic nor the IFM had been accredited or authorised to function as genetic material banks and the transfer of genetic material could only be performed between institutions authorised to function as such storage banks. 24. The applicants appealed against the judgment to the High Court of Cassation and Justice. 25.", "On 12 October 2011 DIICOT appointed a public hospital, the P.S. Hospital, as the new legal custodian for all the embryos, including the ones belonging to the applicants. The transfer of the embryos to the new custodian took place on 19 October 2011. According to a report drafted by the judicial authorities on that occasion, Ms A.M., the doctor from P.S. Hospital who took delivery of the embryos, drew up a disclaimer to the effect that the genetic material listed in the inventory accompanying the embryos had been received without any prior checks of the vials, that it had not been possible for her to check each individual item owing to the absence of the embryologist who had participated in the initial freezing and that the procedures in use at that time were different from those used by the first custodian.", "26. On 20 December 2011 the High Court of Cassation and Justice allowed the appeal against the judgment of 22 March 2011 and ordered the Transplant Agency to implement the prosecutor’s decision to return the embryos by allowing their transfer from the IFM to an authorised clinic or hospital of the applicants’ choice in Romania or abroad. It found, firstly, that the Transplant Agency, which was organised as a structure within the Ministry of Health, had been duly informed about the investigating authorities’ decision to deposit the material seized at the S. Clinic with the IFM, and that, secondly, the Ministry of Health had signed the record drawn up at the end of the procedure for moving the embryos to the IFM, together with the investigating authorities. It held that in so far as the Transplant Agency’s task was to coordinate the activities of procuring, processing, preserving, storing, approving and distributing human tissue and cells in Romania, there had been no legal grounds for it to interfere with the implementation of the prosecutor’s decision to return the embryos to the applicants. The High Court further relied on the Government’s observations submitted to the Court in the case of Knecht v. Romania (no.", "10048/10, 2 October 2012), from which it could be seen that the investigating authorities had authorised Ms Knecht to retrieve her embryos from the IFM, and that the Government’s understanding was that Ms Knecht had been lawfully entitled to arrange for their transfer to an authorised clinic. The High Court stressed that Mr and Mrs Nedescu’s embryos had been stored in the same container as those belonging to Ms Knecht. There was therefore nothing to prevent them from arranging the transfer of their embryos to an authorised clinic or hospital of their choice, in Romania or abroad. Lastly, the court granted costs and fees of 4,000 Romanian lei (RON) to the applicants. 27.", "On 26 March 2012 DIICOT informed the applicants that the prosecutor had appointed P.S. Hospital as the new legal custodian of their embryos. They therefore had to agree on a transfer date with that institution in order to retrieve the embryos. 28. The applicants contacted P.S.", "Hospital, which informed them on 27 September 2012 that they could only retrieve the embryos if they were accompanied by a representative from the Transplant Agency, an embryologist from the S. Clinic, where the embryos had been stored initially, and a DIICOT representative. 29. On 1 November 2012 P.S. Hospital informed the applicants that in order to retrieve their embryos they had to agree on a date, obtain an authorisation document from the Transplant Agency, make sure a certified specialist embryologist was present and provide a special container with liquid nitrogen from an accredited transportation company. 30.", "On 12 November 2012, in reply to a request from the applicants, P.S. Hospital informed them that it could not transfer the remaining embryos to Mrs Nedescu as they had only been appointed as a custodian by DIICOT. Nevertheless, the applicants could attempt to obtain new embryos at the hospital which could then be transferred to her. 31. In a letter dated 7 January 2013 to the Government Agent, a representative of P.S.", "Hospital reiterated that the embryos could only be retrieved after prior approval from the Transplant Agency and that an embryologist from the S. Clinic and a DIICOT representative had to be present. It also stated that they declined any responsibility for the identification, quality and viability of the frozen embryos deposited with the IFM because DIICOT had not organised any individual identification when the embryos had been transferred. The hospital could therefore only assume that the embryos belonging to the Nedescus were among those that had been transferred to it. The hospital reiterated that the IFM had no authorisation to function as a genetic material bank (for tissues and cells). Furthermore, the hospital did not only have the task of implementing DIICOT’s decision to allow the applicants to remove the embryos and ensure respect for the conditions that the removal be made in the presence of an embryologist and include the provision of a container with liquid nitrogen.", "It also had to comply with the relevant legislation on the removal and transfer of genetic material and with the conditions set down by the Transplant Agency in a decision of 3 June 2011, Decision no. 5. The representative also stated that the existing embryos could be transferred to the mother at the hospital but that the hospital’s own doctors would not carry out the procedure as they could not assume any responsibility owing to the quality of the embryos. However, the hospital preferred that such a transfer be performed elsewhere. 32.", "On 16 January 2013 the applicants applied to DIICOT to be appointed custodians of their own embryos. They indicated that they were able to bear the costs of becoming custodians. A DIICOT prosecutor informed the applicant’s lawyer by telephone that the application had been rejected. In a letter dated 18 April 2013 to the Government’s Agent, a DIICOT chief prosecutor stated that the cost of appointing the applicants as custodians was very high and that the judicial bodies involved had no competence to make such a decision. In any event, “no formula allowing for consensus among all the parties involved has so far been identified”.", "33. Following the criminal investigation of the S. Clinic (see paragraph 10 above), the High Court of Cassation on 21 October 2014 found its managers, owner and the then director of the Transplant Agency guilty of association for the purposes of creating a criminal group. It handed down various prison sentences. II. RELEVANT DOMESTIC LAW A.", "Health Care Reform Act (Law no. 95/2006) 34. The Act is divided into seventeen titles, covering a wide array of subjects specific to public health. Title VI contains provisions covering the procurement and transplant of organs, tissues and cells of human origin used for therapeutic purposes, the donors of organs, tissues and cells of human origin, the donation and transplant thereof and the financing of transplant activity. It transposes into national legislation Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards for the quality and safety of the donation, procurement, testing, processing, preservation, storage and distribution of human tissue and cells.", "35. Section 143 provides that the National Transplant Agency is responsible for “the coordination, supervision, approval and implementation of any provisions regarding transplant activities”. 36. The relevant subsections of section 148, which deals mainly with the procurement and transplant of tissues and cells from dead bodies, provide as follows: “(4) Procured tissue and cells of human origin can be used immediately for transplants or can be processed and deposited in tissue and cell banks, accredited with or approved by the National Transplant Agency. (5) Any transplant of tissue and cells of human origin may be processed only from banks accredited with or approved by the National Transplant Agency ...” According to subsection 9, the import or export of tissue and cells has to be specifically authorised by the National Transplant Agency in the manner referred to in Annex 7 (export of tissue and cells from dead bodies) and 9 (import), and must be carried out in accordance with the relevant customs legislation.", "B. Orders of the Minister of Public Health no. 1225 of 1 July 2008 and no. 1009 of 6 July 2010 37. The Orders listed a number of establishments, including the P. Clinic in Sibiu, which were authorised to function as tissue and cell banks and users, but neither the S. Clinic nor the IFM were included.", "C. National Transplant Agency Decision no. 5 of 3 June 2011 38. The decision reads as follows: Article 1 “From the date of the current decision the transfer of biological material on the territory of Romania between clinics that are legally authorised and accredited must be performed in strict accordance with the following specifications: - the procedure for freezing and preserving the embryos; - the freezing method used: vitrifying or slow freezing; - the freezing kit used and the name of the manufacturer; - if a freezing kit was prepared, the components and exact proportions used in the preparation process; - the stage of development of the embryos at the time of freezing; - documents allowing for the identification of the embryos and their position inside the transport container; - documents proving ownership of the embryos; - documents proving that keeping the embryos in the cell bank does not present a danger of contamination (in other words, the results of medical tests of the couple during in vitro fertilisation treatment); - the conditions of storage of the embryos (with appropriate evidence, for instance temperature charts). Article 2 “All private and public medical institutions shall implement the provisions of the current decision.” D. Romanian Criminal Code 39. Article 118, in force until 2014, read as follows: “The following property can be subjected to special confiscation: (a) the proceeds of carrying out an act forbidden by the criminal law; (b) property which was used, in any way, in the commission of a crime, if it belongs to the criminal or, if it belongs to someone else, where that person knew what it would be used for ...; (c) property produced, modified or adapted for the purpose of committing a crime, if it has been used for the commission of the crime and if it belongs to the criminal.", "If the property belongs to someone else, confiscation is ordered if the creation, modification or adaptation was made by the owner or by the criminal with the owner’s knowledge; ... (e) the proceeds of carrying out an act forbidden by the criminal law, if they are not returned to the victim or used to compensate the victim; (f) property which cannot be possessed by law. ...” E. Romanian Criminal Procedure Code 40. In its relevant parts concerning the procedure for the seizure of property during a criminal investigation, the code in force at the time of the events, in June 2009, reads as follows: Article 163 “Precautionary measures are those measures taken during a criminal trial by the prosecutor or by the court and consist of freezing assets, by ordering the seizure of movable and immovable property with a view to a subsequent special confiscation, remedying damage suffered as a result of the crime and to guaranteeing the enforcement of a fine. Precautionary measures taken with a view to remedying damage can be ordered in respect of property belonging to the accused or the person facing civil liability. Precautionary measures taken with a view to guaranteeing the enforcement of a fine can be ordered in respect only of property belonging to the accused.", "...” Article 165 “(1) The authority that enforces the seizure (sechestru) must identify and value the property in question; it may, if need be, have recourse to experts. (2) Perishable goods, objects made of precious metal or jewels ... works of art ... and money which have been seized shall in all cases be taken away. ... (9) If there is a danger of alienation, the other movable items that have been seized will be sealed or also taken away, and a custodian can be appointed.” Article 166 “(1) The body that carries out the seizure draws up an official report on all the acts performed under Section 165, including a detailed description of the property seized and specifying its value ... Objections to the seizure by the parties and other interested persons are also mentioned. ...” Article 168 “(1) The defendant, the party with civil liability, as well as any other interested person, may complain about the precautionary measure and the means of its enforcement to the prosecutor or to the court at any stage in the proceedings.", "(2) An appeal can be lodged separately against the decision of a court. An appeal does not suspend execution. (3) If after completion of a criminal trial no complaint has been lodged against the enforcement of the precautionary measure, it may be challenged under the civil law.” Article 169 “(1) Where prosecutors or courts finds that property taken from a defendant, or from any other person who received them in his or her custody, is the property of the victim or has been wrongly taken away from him/her, they order the return of those items to the victim. Any other person who claims a right over the confiscated property can ask under Article 168 for enforcement of that right and the return of the property. (2) Confiscated property is only returned if it does not impede the search for the truth and the just settlement of the case, and it imposes on the person to whom it is returned an obligation to retain it until the issuing of a final decision.” III.", "COUNCIL OF EUROPE DOCUMENTS A. Recommendation 1046 (1986) of the Parliamentary Assembly of the Council of Europe on the use of human embryos and foetuses for diagnostic, therapeutic, scientific, industrial and commercial purposes 41. The relevant parts of the Recommendation read as follows: “...5. [The Parliamentary Assembly] Considering that, from the moment of fertilization of the ovule, human life develops in a continuous pattern, and that it is not possible to make a clear-cut distinction during the first phases (embryonic) of its development, and that a definition of the biological status of an embryo is therefore necessary; 6. Aware that this progress has made the legal position of the embryo and foetus particularly precarious, and that their legal status is at present not defined by law; 7.", "Aware that adequate provisions governing the use of living or dead embryos and foetuses do not at present exist; 8. Convinced that, in view of scientific progress which makes it possible to intervene in developing human life from the moment of fertilisation, it is urgent to define the extent of its legal protection; 9. Having regard to the variety of ethical opinions on the question of using the embryo or the foetus or their tissues, and to the conflicts between values which arise; 10. Considering that human embryos and foetuses must be treated in all circumstances with the respect due to human dignity...” B. Council of Europe Convention on Human Rights and Biomedicine (“Oviedo Convention”) of 4 April 1997 42.", "In its relevant parts the Oviedo Convention reads as follows: Article 2 – Primacy of the human being “The interests and welfare of the human being shall prevail over the sole interest of society or science.” Article 18 – Research on embryos in vitro “1. Where the law allows research on embryos in vitro, it shall ensure adequate protection of the embryo. 2. The creation of human embryos for research purposes is prohibited.” Article 27 – Wider protection “None of the provisions of this Convention shall be interpreted as limiting or otherwise affecting the possibility for a Party to grant a wider measure of protection with regard to the application of biology and medicine than is stipulated in this Convention.” IV. EUROPEAN UNION INSTRUMENTS 43.", "The relevant parts of Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards for the quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells provide as follows: “(2) The availability of human tissues and cells used for therapeutic purposes is dependent on Community citizens who are prepared to donate them. In order to safeguard public health and to prevent the transmission of infectious diseases by these tissues and cells, all safety measures need to be taken during their donation, procurement, testing, processing, preservation, storage, distribution and use. ... (7) This Directive should apply to tissues and cells including haematopoietic peripheral blood, umbilical-cord (blood) and bone-marrow stem cells, reproductive cells (eggs, sperm), foetal tissues and cells and adult and embryonic stem cells. ... (13) The donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells intended for human applications should comply with high standards of quality and safety in order to ensure a high level of health protection in the Community. This Directive should establish standards for each one of the steps in the human tissues and cells application process.", "... (16) Tissues and cells used for allogeneic therapeutic purposes can be procured from both living and deceased donors. ... (20) Any establishment may also be accredited as a tissue and cell establishment, provided it complies with the standards. ... (25) An accreditation system for tissue establishments and a system for notification of adverse events and reactions linked to the procurement, testing, processing, preservation, storage and distribution of human tissues and cells should be established in the Member States. ... (28) An adequate system to ensure the traceability of human tissues and cells should be established. This would also make it possible to verify compliance with quality and safety standards.", "Traceability should be enforced through accurate substance, donor, recipient, tissue establishment and laboratory identification procedures as well as record maintenance and an appropriate labeling system. ... Article 5 - Supervision of human tissue and cell procurement 1. Member States shall ensure that tissue and cell procurement and testing are carried out by persons with appropriate training and experience and that they take place in conditions accredited, designated, authorised or licensed for that purpose by the competent authority or authorities. ...", "Article 6 - Accreditation, designation, authorisation or licensing of tissue establishments and tissue and cell preparation processes 1. Member States shall ensure that all tissue establishments where activities of testing, processing, preservation, storage or distribution of human tissues and cells intended for human applications are undertaken have been accredited, designated, authorised or licensed by a competent authority for the purpose of those activities. ... 4. The competent authority or authorities may suspend or revoke the accreditation, designation, authorisation or licensing of a tissue establishment or of a tissue or cell preparation process if inspections or control measures demonstrate that such an establishment or process does not comply with the requirements of this Directive. ...", "Article 8 - Traceability 1. Member States shall ensure that all tissues and cells procured, processed, stored or distributed on their territory can be traced from the donor to the recipient and vice versa. This traceability shall also apply to all relevant data relating to products and materials coming into contact with these tissues and cells. 2. Member States shall ensure the implementation of a donor identification system which assigns a unique code to each donation and to each of the products associated with it.", "3. All tissues and cells must be identified with a label that contains the information or references allowing a link to the information referred to in Article 28(f) and (h). 4. Tissue establishments shall keep the data necessary to ensure traceability at all stages. ...", "Article 10 - Register of tissue establishments and reporting obligations 1. Tissue establishments shall keep a record of their activities, including the types and quantities of tissues and/or cells procured, tested, preserved, processed, stored and distributed, or otherwise disposed of, and on the origin and destination of the tissues and cells intended for human applications, in accordance with the requirements referred to in Article 28(f). ... 2. The competent authority or authorities shall establish and maintain a publicly accessible register of tissue establishments specifying the activities for which they have been accredited, designated, authorised or licensed. ... CHAPTER III DONOR SELECTION AND EVALUATION Article 12 - Principles governing tissue and cell donation 1.", "Member States shall endeavour to ensure voluntary and unpaid donations of tissues and cells. Donors may receive compensation, which is strictly limited to making good the expenses and inconveniences related to the donation. In that case, Member States define the conditions under which compensation may be granted. ... Article 13 - Consent 1.", "The procurement of human tissues or cells shall be authorised only after all mandatory consent or authorisation requirements in force in the Member State concerned have been met. ... Article 15 - Selection, evaluation and procurement 1. The activities related to tissue procurement shall be carried out in such a way as to ensure that donor evaluation and selection is carried out in accordance with the requirements referred to in Article 28(d) and (e) and that the tissues and cells are procured, packaged and transported in accordance with the requirements referred to in Article 28(f). ... CHAPTER IV PROVISIONS ON THE QUALITY AND SAFETY OF TISSUES AND CELLS Article 16 - Quality management 1.", "Member States shall take all necessary measures to ensure that each tissue establishment puts in place and updates a quality system based on the principles of good practice. ... 3. Tissue establishments shall take all necessary measures to ensure that the quality system includes at least the following documentation: - standard operating procedures, - guidelines, - training and reference manuals, - reporting forms, - donor records, - information on the final destination of tissues or cells. 4. Tissue establishments shall take all necessary measures to ensure that this documentation is available for inspection by the competent authority or authorities.", "5. Tissue establishments shall keep the data necessary to ensure traceability in accordance with Article 8. Article 19 - Tissue and cell reception 1. Tissue establishments shall ensure that all donations of human tissues and cells are subjected to tests in accordance with the requirements referred to Article 28(e) and that the selection and acceptance of tissues and cells comply with the requirements referred to in Article 28(f). ... 3.", "Tissue establishments shall verify and record the fact that the packaging of human tissue and cells received complies with the requirements referred to in Article 28(f). All tissues and cells that do not comply with those provisions shall be discarded. ... 5. Tissue establishments shall ensure that human tissues and cells are correctly identified at all times. Each delivery or batch of tissues or cells shall be assigned an identifying code, in accordance with Article 8.", "6. Tissue and cells shall be held in quarantine until such time as the requirements relating to donor testing and information have been met in accordance with Article 15. Article 21 - Tissue and cell storage conditions 1. Tissue establishments shall ensure that all procedures associated with the storage of tissues and cells are documented in the standard operating procedures and that the storage conditions comply with the requirements referred to in Article 28(h). 2.", "Tissue establishments shall ensure that all storage processes are carried out under controlled conditions. 3. Tissue establishments shall establish and apply procedures for the control of packaging and storage areas, in order to prevent any situation arising that might adversely affect the functioning or integrity of tissues and cells. ... 5. Member States shall ensure that tissue establishments have agreements and procedures in place to ensure that, in the event of termination of activities for whatever reason, stored tissues and cells shall be transferred to other tissue establishment or establishments accredited, designated, authorised or licensed in accordance with Article 6, without prejudice to Member States’ legislation concerning the disposal of donated tissues or cells, according to the consent pertaining to them.” 44.", "The relevant provisions of the Charter of Fundamental Rights of the European Union (2007/C 303/01) are worded as follows: Article 1 – Human dignity “Human dignity is inviolable. It must be respected and protected.” Article 7 – Respect for private and family life “Everyone has the right to respect for his or her private and family life, home and communications.” 45. In a judgment of 18 October 2011 (C-34/10 Oliver Brüstle v. Greenpeace e.V.) the Court of Justice of the European Union (“the CJEU”) clarified the legal definition of the “human embryo”: “any human ovum after fertilisation, any non-fertilised human ovum into which the cell nucleus from a mature human cell has been transplanted, and any non-fertilised human ovum whose division and further development have been stimulated by parthenogenesis”. The CJEU further ruled that Article 6(2)(c) of Directive 98/44 excluded an invention from patentability where the technical teaching which is the subject-matter of the patent application would require the prior destruction of the human embryo.", "The Advocate General Yves Bot recalled in his opinion delivered on 10 March 2011 on that matter that “Directive 98/44 prohibits the patentability of the human body, at the various stages of its formation and development, including germ cells” and asserted that “human dignity is a principle which must be applied not only to an existing human person, to a child who has been born, but also to the human body from the first stage in its development, i.e. from fertilisation” (§ 96). V. OTHER INTERNATIONAL INSTRUMENTS 46. The relevant parts of the Universal Declaration on Bioethics and Human Rights adopted by UNESCO’s General Conference on 19 October 2005 provide as follows: “The General Conference, ... Recognizing that, based on the freedom of science and research, scientific and technological developments have been, and can be, of great benefit to humankind in increasing, inter alia, life expectancy and improving the quality of life, and emphasizing that such developments should always seek to promote the welfare of individuals, families, groups or communities and humankind as a whole in the recognition of the dignity of the human person and universal respect for, and observance of, human rights and fundamental freedoms, ... Also recognizing that decisions regarding ethical issues in medicine, life sciences and associated technologies may have an impact on individuals, families, groups or communities and humankind as a whole, ... Proclaims the principles that follow and adopts the present Declaration. ... Principles Within the scope of this Declaration, in decisions or practices taken or carried out by those to whom it is addressed, the following principles are to be respected.", "Article 3 – Human dignity and human rights 1. Human dignity, human rights and fundamental freedoms are to be fully respected. 2. The interests and welfare of the individual should have priority over the sole interest of science or society. ...” THE LAW I.", "SCOPE OF THE APPLICATION 47. The applicants stated in their application that they reserved the right to raise a complaint under Article 2 of the Convention over an infringement of the right to life if their embryos became unviable owing to the acts of the authorities. 48. The Court notes that the applicants did not eventually complain about a breach of the right to life under Article 2 of the Convention, did not provide any information about the viability of their embryos and made no further submissions in that respect. 49.", "The Court will accordingly examine the application solely from the standpoint of the rights provided for by Article 8. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 50. The applicants complained that, as a whole, the authorities’ behaviour had amounted to a disproportionate interference with their private and family life because for more than six years they had not been allowed to use their embryos for a new assisted reproduction procedure and had thus lost the possibility to have another child. They relied on Article 8 of the Convention, which reads as follows: “1.", "Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 51. The Government argued at the outset that the State could not be held responsible for acts committed by private persons, such as the S. Clinic, and relied in that regard on Borghi v. Italy (dec., no. 54767/00, ECHR 2002‑V (extracts)) and Kiratli v. Turkey (dec., no.", "6497/04, 2 September 2008). They submitted that the applicants and the S. Clinic alone had been responsible for the fate of the embryos and the fact that it had been impossible to use them. They further argued that, as had been pointed out in the interlocutory judgment of 29 November 2010, the applicants could have lodged a separate civil action against the doctors from the S. Clinic to seek damages under the tort liability provisions of the Civil Code, but had failed to do so. 52. The Court notes that the applicants’ complaint concerned the refusal of the various institutions involved in the custody of the embryos after their seizure to return them at all, even though that had been allowed by the judicial authorities.", "The Government’s preliminary objections that the application is incompatible ratione personae and its objection as to the non-exhaustion of domestic remedies must therefore be dismissed. 53. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. The parties’ submissions (a) The applicants 54. The applicants complained that since 2010 they had been unable to use their embryos, deposited successively with the IFM and P.S. Hospital following their seizure by DIICOT, which had prevented them from attempting to have another child and had amounted to an interference with their right to respect for their private and family life.", "That interference had been neither lawful nor proportionate to the aim pursued. 55. They stressed that they had lawfully stored their embryos at the S. Clinic with a view to a future transfer to the mother. They had chosen that clinic because their doctor had been using its facilities. They had not been aware at the time, and could not have been aware, that the S. Clinic had not had the necessary authorisation, as later alleged.", "The S. Clinic had been well established. It had been operating for almost a decade, had been located near the Transplant Agency in the city centre, less than 800 metres from the main Government building. It had had a huge banner and clear signs outside, and had worked in partnership with other well-established and well-known authorised medical facilities and doctors. Moreover, the S. Clinic had obtained the required authorisation to store genetic material. 56.", "The authorities’ interference with their private and family life had not been provided for by law. First of all, DIICOT’s decision to deposit the confiscated embryos with the IFM, which had not possessed the required authorisation to store genetic material, had been unlawful. In addition, the Transplant Agency’s refusal to implement the prosecutor’s decision ordering the return of the embryos had had no legal basis, nor had the Transplant Agency’s refusal to obey the decision of the Supreme Court of Justice allowing the applicants to arrange the transfer of the embryos to a clinic of their choice by setting conditions that had been impossible to fulfil. 57. The applicants also complained that DIICOT’s decision to transfer their embryos from the IFM to P.S.", "Hospital had been made without informing them beforehand or consulting them. 58. Moreover, the requirements laid down by the new legal custodian, P.S. Hospital, for allowing the applicants to retrieve their embryos had been impossible to meet in practice and had in any event been unlawful. 59.", "The applicants also submitted that they had never received an official reply from DIICOT to their request to be appointed custodians of their own embryos. They could easily be transferred to them without harming other embryos as they were stored in separate vials. 60. The applicants submitted that all the above acts had shown a lack of consistency in respect both of domestic legislation and its implementation by the relevant State authorities. 61.", "As a result of those acts the applicants had been put in a situation where they could neither remove their embryos nor use them. The situation also had to be looked at in the light of the fact that Mrs Nedescu’s health did not allow her to undergo new stimulation treatment in order to obtain new embryos. If their embryos became unviable or were damaged, their chances of having another child would be irretrievably lost. Overall, the matters complained of constituted an interference which was disproportionate to the aim pursued. 62.", "Lastly, the applicants stressed that their case was of general importance since there were hundreds of other families in a similar situation as they had deposited their embryos at the S. Clinic and were unable to use them on account of the authorities’ behaviour. (b) The Government 63. The Government referred at the outset to Knecht v. Romania (no. 10048/10, 2 October 2012), which had concerned a similar complaint. The case had been lodged by Ms Knecht, whose embryos had been stored in the same container as those of the applicants.", "The Court had found that although there had been an interference with the applicant’s right to respect for their private life that interference had been in compliance with the requirements of paragraph 2 of Article 8. The Government argued that the same reasoning should be applied in the present case. 64. The measures taken by the authorities had pursued the aim of preventing crime and protecting the health and the rights and freedoms of others. In the present case, the Romanian authorities had not exceeded the wide margin of appreciation enjoyed by the State in the matter of assisted reproduction.", "First of all, the prosecution authorities’ seizure of the genetic material found at the S. Clinic had been justified and devoid of any arbitrariness. The applicants had been able to ask for the return of their embryos from the IFM. In addition, its refusal to return the embryos without the consent of the Transplant Agency had been in compliance with domestic regulations. Secondly, the High Court of Cassation and Justice had on 20 December 2011 allowed the transfer of the embryos to P.S. Hospital, which had been authorised to function as a genetic material bank.", "The conditions set by P.S. Hospital for allowing the applicants to withdraw their embryos did not appear to be unreasonable, bearing in mind that the applicants could only use their embryos in a way which did not breach domestic legislation or the administrative regulations of the competent authorities. In addition, the applicants had failed to substantiate their statement that Mrs Nedescu’s health had prevented her from undergoing another IVF procedure in P.S. Hospital. 2.", "The Court’s assessment (a) Whether there was an interference with the applicants’ rights under Article 8 65. The Court is called to determine in the first place whether the facts of the present case fall within the scope of the applicants’ rights under Article 8 of the Convention. (i) The principles established in the Court’s case-law 66. Court recalls the principles laid-down in its case-law on Article 8 of the Convention, particularly as they were restated in its recent judgment of Paradiso and Campanelli v. Italy [GC] (no. 25358/12, §§ 159-160), ECHR 2017): “159.", "The Court reiterates that the notion of “private life” within the meaning of Article 8 of the Convention is a broad concept which does not lend itself to exhaustive definition. It covers the physical and psychological integrity of a person (see X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91) and, to a certain degree, the right to establish and develop relationships with other human beings (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251-B). It can sometimes embrace aspects of an individual’s physical and social identity (see Mikulić v. Croatia, no.", "53176/99, § 53, ECHR 2002-I). The concept of private life also encompasses the right to “personal development” or the right to self-determination (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002‑III), and the right to respect for the decisions both to have and not to have a child (see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007-I, and A, B and C v. Ireland [GC], no. 25579/05, § 212, ECHR 2010).", "160. In its judgment in the case of Dickson v. the United Kingdom ([GC], no. 44362/04, § 66, ECHR 2007-V), concerning the refusal to grant the applicants – a prisoner and his wife – artificial insemination facilities, the Court concluded that Article 8 was applicable, in that the refusal of artificial insemination facilities at issue concerned their private and family lives, specifying that those notions incorporate the right to respect for their decision to become genetic parents. In the case of S.H. and Others v. Austria ([GC], no.", "57813/00, § 82, ECHR 2011) – which concerned couples wishing to have a child using gametes from donors – the Court held that the right of a couple to conceive a child and to make use of medically assisted reproduction for that purpose is also protected by Article 8, as such a choice is an expression of private and family life.” 67. In that case the Court further held that a genuine intention on behalf of the applicants to become parents, which implied that a major part of their lives was focused on realising their plan to become parents, in order to love and bring up a child, was relevant both for their right to respect for their decision to become parents, and for their personal development through the role of parents that they wished to assume vis-à-vis the child; it concluded that the facts of the case fell within the scope of the applicants’ private life (Paradiso and Campanelli, cited above, §§ 163-164). 68. The Court had also held that an applicant’s ability to exercise a conscious and considered choice regarding the fate of her embryos concerned an intimate aspect of her personal life and triggered the application of Article 8 of the Convention from the standpoint of the right to respect for private life (Parrillo v. Italy [GC], no. 46470/11, § 159, ECHR 2015.", "69. Finally, in the case of Vo v. France [GC] (no. 53924/00, ECHR 2004‑VIII) the Court held as follows, in respect of the nature and degree of protection due to a human embryo: “84. At European level, the Court observes that there is no consensus on the nature and status of the embryo and/or foetus (see paragraphs 39-40 above), although they are beginning to receive some protection in the light of scientific progress and the potential consequences of research into genetic engineering, medically assisted procreation or embryo experimentation. At best, it may be regarded as common ground between States that the embryo/foetus belongs to the human race.", "The potentiality of that being and its capacity to become a person [...] require protection in the name of human dignity, without making it a “person” with the “right to life” for the purposes of Article 2. ...” (ii) Application of the above-mentioned principles to the instant case 70. In the present case the Court considers that the joint parental project of the applicants, who wish to have a child by making use of assisted procreation using their own embryos is an intimate aspect of their private life (see also Knecht, cited above, § 54) . 71. Unlike the applicant in Knecht, the Court notes that the complaint in this case was neither about the seizure of embryos nor the refusal of a court to return embryos to a clinic of the applicants’ choice as the judicial authorities had allowed such a return (compare and contrast Knecht, cited above, §§ 57-62).", "72. The applicants’ complaint concerned the refusal by the various administrative authorities to actually carry out the return of the remaining embryos that had been created at the S. Clinic, despite orders from the judicial authorities, which in turn prevented them from the possibility of having another child (see paragraphs 8 and 50 above). 73. The Court notes in particular that following the seizure of their embryos and their being deposited with the IFM, the applicants attempted on numerous occasions to recover them, but failed each time. On 21 July 2010 the IFM, where the embryos had been deposited first of all, refused to allow the applicants to retrieve them (see paragraph 14 above).", "On 13 December 2010 the Transplant Agency notified the applicants of its refusal to allow recovery of the embryos (paragraph 21 above). On 22 March 2011 the Bucharest Court of Appeal refused to allow the recovery of the embryos by way of their transfer to a clinic of the applicants’ choice (paragraph 23 above). Finally, P.S. Hospital, the new custodian appointed on 26 March 2011, refused to allow the retrieval ordered by DIICOT, which would have implemented the High Court of Cassation’s decision of 20 December 2011 (see paragraph 26 above), as it on each occasion set different conditions for such a retrieval and for a transfer to Mrs Nedescu. On 27 September 2012 the condition set by the hospital was the presence of a representative from the Transplant Agency and of the embryologist from S. Clinic; on 1 November 2012 the hospital said it required an authorisation document from the Transplant Agency and the presence of a certified embryologist and a special container; on 12 November 2012 it told the applicants that it refused to transfer the embryos to Mrs Nedescu; and on 7 January 2013 it informed the Government that the embryos could only be retrieved if the Transplant Agency gave its prior approval and it also required the presence of an embryologist from the S. Clinic and a DIICOT representative (see paragraphs 26-29 above).", "74. A request by the applicants to be appointed custodians of their own embryos was likewise rejected on 18 April 2013 (see paragraph 32 above). 75. In view of the above considerations, the Court finds that preventing the applicants from retrieving their embryos as ordered by the High Court of Cassation constituted an interference with their right to respect for their private life. (b) Compliance with Article 8 § 2 76.", "Such an interference will be contrary to Article 8 unless it is “prescribed by law”, pursues one or more of the legitimate aims set out in paragraph 2 and is “necessary in a democratic society” (see, among many other authorities, Campbell v. the United Kingdom, 25 March 1992, Series A no. 233, § 34; Enea v. Italy [GC], no. 74912/01, § 140, ECHR 2009; and Roman Zakharov v. Russia [GC], no. 47143/06, § 227, ECHR 2015). 77.", "The Court reiterates that the wording “in accordance with the law” requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct (see, among many other authorities, Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000‑V S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 95, ECHR 2008). The foreseeability requirement also means giving individuals an adequate indication as to the circumstances in which and the conditions on which the authorities are entitled to resort to measures affecting their rights under the Convention (see Fernández Martínez v. Spain [GC], no.", "56030/07, § 117, ECHR 2014 (extracts)). 78. The Court must therefore determine whether the various institutions’ actions or omissions that interfered with the applicants’ private life were in line with the lawfulness requirement of Article 8 § 2, as set out above. 79. In that regard, it notes at the outset that the Government have not relied on any specific legal provisions in support of their submission that the interference was provided for by law.", "The Court will therefore assess the lawfulness of the interference having regard to the information at its disposal, notably the reasoning of the domestic courts and other institutions involved. 80. The return of the embryos or their transfer to a clinic of the applicants’ choice was allowed in straightforward fashion by the judicial authorities: on 30 March 2010 by DIICOT, which had taken the seizure measure in the first place (see paragraph 13 above), and on 20 December 2011 by the High Court of Cassation and Justice (see paragraph 26 above). While the seizure of the embryos, which is not a grievance in the current case, appears to have been based on Article 163 of the Criminal Procedure Code because of the criminal proceedings against the S. Clinic (see paragraph 40 above), neither the subsequent deposit of the embryos with the IFM within the framework of the criminal proceedings nor the conditions for their retrieval from either the IFM or the new custodian appear to have had a clear basis in domestic law. 81.", "The Court takes note of the provisions which regulate the storage and use of genetic material (see paragraphs 34 to 36 and 38 above), which were relied on directly or indirectly by some of the authorities and institutions when they refused to implement the judicial authorities’ decisions to put an end to the seizure measure and order the return of the embryos, and also when they set additional conditions for implementing those decisions (see paragraphs 21, 23 and 31). 82. It further notes that despite those provisions, the various institutions involved disagreed on the conditions under which the DIICOT order to return the embryos could be carried out. One disagreement was on the need for prior approval by the Transplant Authority: the IFM, the Court of Appeal and P.S. Hospital considered that the Transplant Agency’s approval was required (see paragraphs 14, 23, 29 and 31 above), while DIICOT did not.", "The High Court, in turn, found that the requirement for such approval was unlawful (see paragraphs 13, 26 and 27 above). Moreover, the new custodian, P.S. Hospital, repeatedly argued that DIICOT’s depositing of the embryos with the IFM had been unlawful as the IFM had not been authorised to function as a genetic material bank. It also considered that moving the embryos from the IFM to the Hospital had been carried out in violation of the lawful requirements for such a transfer. 83.", "Lastly, the Court cannot ignore the fact that P.S. Hospital considered that the flaws in the legal procedures related to the depositing, moving and handling of the embryos had been such that it seemed to be impossible to identify with certainty which embryos belonged to the applicants. It also stated that it could only store the embryos and could not perform any other operations with them (see paragraph 31 above). 84. In the light of the above, the Court finds that the manner in which the judicial and administrative authorities involved implemented and interpreted the relevant legal provisions concerning the seizure, the storage following such a seizure and the return of the applicants’ embryos was incoherent and thus lacked the required foreseeability.", "85. In conclusion, the Court finds that the interference with the applicants’ right to respect for their private life was not provided for by law within the meaning of Article 8 § 2 of the Convention. 86. That being so, the Court is not required to determine whether the interference pursued a legitimate aim and, if so, whether it was proportionate to the aim pursued. 87.", "There has accordingly been a violation of Article 8 of the Convention. III. 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 50,000 euros (EUR) in respect of non‑pecuniary damage. They submitted that as a result of the authorities’ interference with their right to respect for their private life they had lost the chance to have a second child and had thus suffered distress, humiliation and frustration, which had been exacerbated by the unlawful nature of the interference. 90. The Government contested the claim. 91.", "The Court considers that the applicants must have sustained non‑pecuniary damage which cannot be compensated for solely by the finding of a violation. Having regard to the nature of the violation found (see paragraph 84 above), and making its assessment on an equitable basis, the Court awards the applicants jointly EUR 7,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 92. The applicants also claimed EUR 5,580 for legal costs and expenses incurred both at the domestic level and during the proceedings before the Court, which they wished to be paid directly to their representative.", "A contract of legal assistance and a detailed document were submitted indicating a fee of EUR 80 per hour and the precise dates and the overall number of hours worked in preparing the case. 93. The applicants’ representative argued that the number of hours spent on the case was not excessive and was justified by its complexity and detailed nature. The time was also justified by repeated attempts to obtain information on developments at the domestic level, on the background of a lack of coherence in the authorities’ reactions. As to the hourly fees, the representative argued that they were well below the average normally charged by law firms in Bucharest, that is EUR 200 per hour.", "94. The Government objected and argued that the amount claimed was excessive. They also pointed out that the applicants had already been granted RON 4,000 (some EUR 880), covering costs for the proceedings before the domestic courts (see paragraph 26 above). 95. The Court reiterates that in order for costs and expenses to be reimbursed under Article 41, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Nilsen and Johnsen v. Norway [GC], no.", "23118/93, § 62, ECHR 1999-VIII, and Boicenco v. Moldova, no. 41088/05, § 176, 11 July 2006). In accordance with Rule 60 § 2 of the Rules of Court, itemised particulars of all claims must be submitted, failing which the Court may reject the claim in whole or in part. 96. In the present case, the Court notes that the applicants have set out their claims in an itemised and precise manner.", "Regard being had to the documents in its possession and the above criteria, which it deems to have been satisfied in the present case, the Court considers it reasonable to award EUR 4,700 for costs and expenses for the proceedings before the Court, plus any tax that may be chargeable to the applicants, to be paid to the applicants’ representative. C. Default interest 97. 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 applicants, jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 4,700 (four thousand seven hundred euros), in respect of costs and expenses, to be paid to the applicants’ representative, plus any tax that may be chargeable to the applicants; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 16 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliGanna YudkivskaRegistrarPresident" ]

[ "SECOND SECTION CASE OF KILIÇGEDİK AND OTHERS v. TURKEY (Applications nos. 4517/04, 4527/04, 4985/04, 4999/04, 5115/04, 5333/04, 5340/04, 5343/04, 6434/04, 10467/04 and 43956/04) JUDGMENT This version was rectified on 17 January 2012 under Rule 81 of the Rules of Court. STRASBOURG 14 December 2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kılıçgedik and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Dragoljub Popović,Nona Tsotsoria,Işıl Karakaş,Kristina Pardalos,Guido Raimondi, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 23 November 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in 11 applications (nos. 4517/04, 4527/04, 4985/04, 4999/04, 5115/04, 5333/04, 5340/04, 5343/04, 6434/04, 10467/04 and 43956/04) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by 28 Turkish nationals, Zeki Kılıçgedik, Hasan Yıldırım, Kemal Bülbül, Kemal Okutan, Kudret Gözütok, Muharrem Bülbül[1], Eşref Odabaşı, Güven Özata, Serhat İman, Mehmet Yücedağ, Sakine Berktaş, Sabri Sel, Ali Gelgeç, Ferhat Avcı, Hıdır Berktaş, Beser Kaplan, Abuzer Yavaş, Mehmet Yardımcıel, Bedir Çetin, Ramazan Sertkaya, Rıza Kılınç, İsmail Turap, Şükrü Karadağ, Hacı Pamuk, Abuzer Arslan, Arif Atalay, Hasan Doğan and Hayri Ateş (“the applicants”), who are listed with further particulars in the appendix. They were represented by lawyers whose names are also indicated in the appendix. The Turkish Government (“the Government”) were represented by their Agent. 2.", "The applicants alleged, in particular, that a ban imposed by the Constitutional Court had prevented them from continuing to take part in active politics and had thus infringed their rights under Article 3 of Protocol No. 1 to the Convention. 3. On 6 February 2008 the President of the Second Section decided to give notice of the applications to the Government. It was also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 3).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. Halkın Demokrasi Partisi (People's Democracy Party, hereafter referred to as “HADEP”) was a political party which was established on 11 May 1994. It opened branches in 47 cities and in hundreds of districts. The applicants were members of HADEP and they held executive positions within the party.", "5. On 29 January 1999 the chief prosecutor at the Court of Cassation brought proceedings before the Constitutional Court and demanded that HADEP be dissolved. The prosecutor argued that HADEP had become a “centre of illegal activities against the integrity of Turkey”. In support of his allegations he referred to a number of pending criminal proceedings against HADEP members, including the applicants. 6.", "In its decision of 13 March 2003, which was published in the Official Gazette on 19 July 2003 and thus became final, the Constitutional Court dissolved HADEP[2]. The Constitutional Court based its decision on sections 68 and 69 of the Constitution and sections 101 and 103 of Law no. 2820 on Political Parties. In arriving at its conclusion, the Constitutional Court took account of the actions and statements of certain leaders and members of HADEP, including the applicants. As an ancillary measure under section 69 § 9 of the Constitution and section 95 of Law no.", "2820, the Constitutional Court banned the applicants and 18 other HADEP members and leaders from becoming founder members, ordinary members, leaders or auditors of any other political party for a period of five years. 7. Details of the criminal proceedings which had been brought against the applicants and which were referred to by the Constitutional Court in its decision are detailed below. In the opinion of the Constitutional Court, the actions of the applicants which are set out below, as well as the actions of the remaining 18 HADEP members and leaders, proved that a link existed between the applicants, HADEP and the PKK[3]. A. Zeki Kılıçgedik, Hıdır Berktaş, Sakine Berktaş, Muharrem Bülbül[4], Hasan Yıldırım, Beser Kaplan, Serhat İman, Sabri Sel, Ferhat Avcı, Ali Gelgeç, Abuzer Yavaş and Hasan Doğan 8.", "These applicants were executive members of HADEP's Malatya branch. In 1998 criminal proceedings were brought against them for lending assistance to an illegal organisation, namely the PKK, contrary to Article 169 of the Criminal Code then in force. The allegations against them included allowing hunger strikers to use HADEP premises in their protest against the arrest of Abdullah Öcalan in Italy. Banners had also been displayed on HADEP's premises expressing discomfort with the arrest, as well as denigrating the Turkish state and actions of the Turkish security forces. People present on the premises had also been allowed to watch PKK propaganda broadcasts on Med TV.", "Various pro-PKK newspapers and journals, as well as photographs of various PKK members who had been killed in operations, were also recovered from the premises. 9. These applicants were subsequently tried by the Malatya State Security Court and were found guilty on 16 December 1999. They were sentenced to three years and nine months' imprisonment and their conviction was upheld by the Court of Cassation on 4 December 2000. 10.", "The execution of the applicants' prison sentences was suspended following the entry into force of Law no. 4616 on Conditional Release, Stay of Proceedings and Suspension of Punishment. B. Bedir Çetin, Hacı Pamuk, İsmail Turap, Abuzer Arslan, Rıza Kılınç, Şükrü Karadağ and Ramazan Sertkaya 11. These applicants were executive members of HADEP's Adıyaman branch. In 1999 criminal proceedings were brought against them for lending assistance to the PKK, contrary to Article 169 of the Criminal Code then in force.", "The allegations against them included allowing hunger strikers to use HADEP premises in their protest against the arrest of Abdullah Öcalan in Italy and keeping a PKK flag on the same premises. 12. These applicants were subsequently tried by the Malatya State Security Court and were found guilty on 6 May 1999. They were sentenced to three years and nine months' imprisonment and their conviction was upheld by the Court of Cassation on 15 May 2000[5]. 13.", "The execution of the applicants' prison sentences was suspended following the entry into force of Law no. 4616. C. Kemal Bülbül 14. On 24 February 2000 the Ankara State Security Court found Mr Bülbül guilty of lending assistance to the PKK, contrary to Article 169 of the Criminal Code then in force, in a speech he had made at a HADEP congress. He was sentenced to three years and nine months' imprisonment.", "While the proceedings were pending before the Court of Cassation, Law no. 4616 entered into force. The Ankara State Security Court accordingly suspended the criminal proceedings against him on 2 May 2001[6]. 15. In 1998 another set of criminal proceedings was brought against the applicant on account of a document entitled “The Kurds who Suffered Historical Injustices, the Kurdish Problem and Recommendations for its Solution”, which had been found in his house.", "The proceedings were suspended following the entry into force of Law no. 4616. D. Kemal Okutan 16. Mr Okutan was chairman of the Ankara branch of HADEP until 1997. On 4 June 1997 the Ankara State Security Court found him guilty of lending assistance to the PKK, contrary to Article 169 of the Criminal Code then in force, in a speech he had made at a HADEP congress in 1996.", "He was sentenced to four years and six months' imprisonment. While they were pending against him the proceedings were suspended following the entry into force of Law no. 4616. E. Kudret Gözütok 17. Mr Gözütok was a member of the HADEP party council.", "A number of documents and books prepared by PKK members having been found in his law firm, on 4 June 1997 the Ankara State Security Court found him guilty of lending assistance to the PKK, contrary to Article 169 of the Criminal Code then in force, and sentenced him to four years and six months' imprisonment. The proceedings were suspended before the Court of Cassation following the entry into force of Law no. 4616. F. Eşref Odabaşı 18. Mr Odabaşı was the chairman of the Kırşehir branch of HADEP.", "On 1 December 1997 the Ankara State Security Court convicted him of “incitement to hatred and hostility by making a distinction based on race and regional identity”, in breach of Article 312 of the Criminal Code in force at the material time[7]. G. Hayri Ateş 19. Mr Ateş was the chairman of the youth commission of HADEP. On 24 December 1998 the İzmir State Security Court found him guilty on two counts of spreading separatist propaganda, in breach of section 8 of the Prevention of Terrorism Act, in two speeches he had given earlier that year. In his speeches the applicant had advocated recognition of the Kurdish identity, and argued that the Kurds in Turkey were being suppressed by those ruling the country.", "He had also stated that the ceasefire declared by Abdullah Öcalan had raised the peoples' hopes. He was sentenced to one year and eight months' imprisonment and his conviction was upheld by the Court of Cassation on 5 March 1999. While the applicant was serving his prison sentence, Law no. 4454 entered into force and the execution of the remainder of his sentence was suspended. On 15 July 2003 section 8 of the Prevention of Terrorism Act was repealed.", "H. Mehmet Yücedağ 20. Mr Yücedağ was the chairman of the youth council of HADEP in Malatya. On 16 December 1999 the Malatya State Security Court convicted him of lending assistance to the PKK, contrary to Article 169 of the Criminal Code then in force, and sentenced him to three years and nine months' imprisonment. The court found that the applicant had committed this offence by having organised seminars for university students, during which he had claimed that there were Kurdish people in Turkey who were experiencing a number of problems. 21.", "His conviction was upheld by the Court of Cassation on 4 December 2000 but the execution of the sentence was suspended following the entry into force of Law no. 4616. I. Arif Atalay 22. Mr Atalay was the secretary of the Seyhan branch of HADEP. On 16 December 1998 the Adana State Security Court convicted him of incitement to hatred and hostility, contrary to Article 312 of the Criminal Code in force at the time.", "He was sentenced to 10 months' imprisonment. His conviction was based on a speech which he had made during a party congress. According to the Adana State Security Court, during his speech Mr Atalay had said things such as that the Kurds and Turks were different people, that the Republic of Turkey was at war with the Kurdish people and that the Kurds who were killed during that war were martyrs. J. Güven Özata 23. Mr Özata was the deputy leader of HADEP.", "On 17 September 1998 he was found guilty by the Ankara State Security Court of spreading separatist propaganda, contrary to Article 312 of the Criminal Code then in force. According to the Ankara State Security Court, in an article he had written in 1997 the applicant had argued that the Kurds and Turks were two different nations and that the fight the Turkish armed forces had been waging against the PKK was a “dirty war and murder”. He was sentenced to two years' imprisonment and his conviction was subsequently upheld by the Court of Cassation. On 3 September 1999 execution of the applicant's prison sentence was suspended in accordance with Law no. 4454 concerning the suspension of pending cases and penalties in media-related offences.", "K. Mehmet Yardımcıel 24. On 21 March 1997 Mr Yardımcıel made a speech during Newruz celebrations in his capacity as chairman of the Kars branch of HADEP. In his speech the applicant stated the following: “We, the Kurdish people, should join forces with the revolutionaries, workers and patriots... The Kurds like the colour red; because red is the colour of the blood they have been shedding for years for their freedom. The Kurds like the colour green; because it is the colour of getting ready for liberation.", "The Kurds like the colour yellow; because it is the colour of getting ready for everything”. 25. Criminal proceedings were brought against him for spreading separatist propaganda in breach of section 8 of the Prevention of Terrorism Act. On 4 June 1999 he was found guilty as charged and sentenced to ten months' imprisonment. He was also ordered to pay a fine.", "His conviction was upheld by the Court of Cassation on 7 October 1999. 26. On 3 September 1999 Law no. 4454 entered into force and the execution of the judgment against the applicant was suspended. On 15 July 2003 section 8 of the Prevention of Terrorism Act was repealed.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 27. Article 169 of the Criminal Code in force at the relevant time provided as follows: “Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever, shall be sentenced to not less than three and not more than five years' imprisonment ...” 28. Article 312 of the Criminal Code in force at the relevant time provided as follows: “Non-public incitement to commit an offence A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall, on conviction, be liable to between six months' and two years' imprisonment and a heavy fine of between six thousand and thirty thousand Turkish liras. A person who incites people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions, shall, on conviction, be liable to between one and three years' imprisonment and a fine of between nine thousand and thirty-six thousand liras.", "If this incitement endangers public safety, the sentence shall be increased by one-third to one-half. The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in Article 311 § 2.” 29. Section 8 of the Prevention of Terrorism Act provided, in so far as relevant, as follows: “Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years' imprisonment and a fine of between one hundred million and three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine.” 30.", "Article 69 § 9 of the Constitution provides as follows: “Founding members or ordinary members whose actions or declarations lead to the permanent dissolution of a political party shall be disqualified from acting as founders, ordinary members, administrators or financial controllers of another political party for a period of five years starting from the date of publication in the Official Gazette of the reasoned decision of the Constitutional Court.” 31. Section 95 of Law no. 2820 on Political Parties provides as follows: “Founding members or ordinary members whose actions or declarations lead to the dissolution of a political party shall be disqualified from acting as founders, ordinary members, administrators or financial controllers of another political party for a period of five years starting from the date of publication in the Official Gazette of the reasoned decision of the Constitutional Court...” 32. Under Law no. 4616, execution of sentences in respect of offences committed before 23 April 1999 could be suspended if no crime of the same or a more serious kind was committed by the offender within a five-year period.", "THE LAW 33. Given the similarity of the applications, as regards both fact and law, the Court deems it appropriate to join them. I. ALLEGED VIOLATIONS OF ARTICLES 9, 10 AND 11 OF THE CONVENTION AND ARTICLE 3 OF PROTOCOL No. 1 34.", "The applicants complained that the ban imposed on them had prevented them from making use of their political rights and from becoming members of political parties. In respect of this complaint some of them relied on Articles 9, 10 or 11 of the Convention, while others invoked Article 3 of Protocol No. 1 to the Convention. 35. The Court deems it appropriate to examine these complaints solely from the standpoint of Article 3 of Protocol No.", "1 which reads as follows: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” 36. The Government contested that argument. A. Admissibility 37. 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 38. The applicants complained that the ban imposed on them because of past criminal proceedings brought against them for having exercised their freedom of speech meant that they were being punished twice. 39.", "They further argued that the ban had effectively prevented them from taking an active part in politics during crucial periods. 40. The Government argued that the ban imposed on the applicants pursued the legitimate aims of preventing disorder, protecting the rights of others and protecting territorial integrity, thus preserving national security. 41. The Government considered that the ban had not impaired the very essence of the applicants' rights under this provision.", "To that end they argued, firstly, that the restriction had not been permanent but limited to five years and during the five-year period only one general election had been held. Secondly, it would have been possible for the applicants to stand as independent candidates in that election. 42. Finally, the Government submitted that the circumstances of the applicants differed from those of the applicants in the cases of Selim Sadak and Others v. Turkey (no. 2) (nos.", "25144/94, 26149/95 to 26154/95, 27100/95 and 27101/95, ECHR 2002‑IV), Ilıcak v. Turkey (no. 15394/02, 5 April 2007), and Kavakçı v. Turkey (no. 71907/01, 5 April 2007), in which the Court had found violations of Article 3 of Protocol No. 1 on account of a similar ban imposed on them as a result of which they had had to forfeit their parliamentary seats. The Government pointed to the fact that the applicants in the present case were not members of parliament at the time of the imposition of the ban.", "43. 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. Since the above-mentioned provision recognises them without setting them forth in express terms, let alone defining them, there is room for implied limitations.", "In their internal legal orders the Contracting States make the rights to vote and to stand for election subject to conditions which are not in principle precluded under Article 3 of Protocol No. 1. They have a wide margin of appreciation in this sphere, but it is for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see Selim Sadak and Others, cited above, § 31 and the cases cited therein). 44.", "The Court would also point out that Article 3 of Protocol No. 1 enshrines a characteristic principle of an effective political democracy, and is accordingly of prime importance in the Convention system. As to the links between democracy and the Convention, it made the following observations (ibid, § 32 and the cases cited therein): “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 ...” 45.", "Furthermore, the Court also reiterates that this Article guarantees the individual's right to stand for election and, once elected, to sit as a member of parliament (ibid, § 33). 46. Turning to the facts of the present case, and concerning the Government's argument that the present case differed from the three cases referred to by them (see paragraph 42 above), the Court observes that on 22 June 2001, that is before the Constitutional Court imposed the ban on the applicant in the above-mentioned case of Kavakçı v. Turkey, following the dissolution of the political party from whose list she had been elected as a member of parliament, the Speaker of the National Assembly had removed her parliamentary status in March 2001 on account of her having breached the Nationality Act. Thus, at the time of the imposition of the ban, she was no longer a member of parliament. 47.", "Furthermore, like the applicants in the present case, the applicant in the case of Sılay v. Turkey (no. 8691/02, 5 April 2007), whose application was examined by the Court on the same date as the above-mentioned Kavakçı and Ilıcak judgments and which also concerned the ban imposed by the Constitutional Court in its same decision of 22 June 2001, was not a member of parliament at the time of the imposition of the ban. It therefore cannot agree with the Government's submissions that the present case was different from those referred to above. 48. The Court has already considered the legal basis for the imposition of similar bans on politicians, and found it to be too wide to be considered proportionate to the legitimate aims pursued (see Selim Sadak and Others, cited above, § 40; Sılay, cited above, §§ 31-34; Kavakçı, cited above, §§ 44‑47; Ilıcak, cited above, §§ 34-37; and Sobacı v. Turkey, no.", "26733/02, §§ 30‑33, 29 November 2007). 49. The Court reaches the same conclusion in the present case. In this connection it also notes that, despite the fact that the convictions of three of the applicants had never become final because the criminal proceedings against them were suspended following the entry into force of Law no. 4616 (see paragraphs 14-17 above), but before the Court of Cassation decided on their appeals, the three applicants were still held responsible for the dissolution of HADEP within the meaning of Article 69 § 9 of the Constitution.", "The Court considers that since the penalty in this case was based on a legal norm which is open to such a wide interpretation, it cannot be regarded as proportionate to any of the legitimate aims relied on by the Government. 50. It follows that the substance of the applicants' rights under this provision was impaired. There has accordingly been a violation of Article 3 of Protocol No. 1 to the Convention.", "II. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 51. The applicants complained of a violation of Article 6 of the Convention on account of alleged shortcomings in the proceedings before the Constitutional Court, including, in particular, their inability to defend themselves in those proceedings. 52. The Government argued that Article 6 of the Convention was not applicable in the instant case.", "53. The Court observes that in a number of previous cases which concerned dissolutions of political parties in Turkey, complaints under Article 6 of the Convention concerning the alleged shortcomings in the proceedings before the Constitutional Court were rejected as being incompatible ratione materiae with Article 6 of the Convention on the ground that the right in question was a political right par excellence (see, inter alia, Sılay v. Turkey (dec.), no. 8691/02, 6 April 2004; Yazar and Others v. Turkey, nos. 22723/93, 22724/93 and 22725/93, §§ 66-67, ECHR 2002‑II, and The Welfare Party and Others v. Turkey (dec.), nos. 41340/98, 41342/98, 41343/98, 41344/98, 3 October 2000).", "The Court sees no reason to reach a different conclusion in the instant case and concludes that Article 6 of the Convention is not applicable. 54. It follows that the complaints under Article 6 of the Convention are inadmissible as being incompatible ratione materiae with the provisions of the Convention, and must be rejected in accordance with Article 35 § 3 and 4 of the Convention. III. ALLEGED VIOLATIONS OF ARTICLES 7, 13 AND 14 OF THE CONVENTION 55.", "Finally, the applicants complained that the ban imposed on them by the Constitutional Court had also been in breach of Articles 7, 13 and 14 of the Convention. 56. The Government contested that argument. 57. Having regard to its conclusion as to compliance with Article 3 of Protocol No.", "1, the Court does not consider it necessary to examine these complaints separately (see Selim Sadak and Others, cited above, § 47). 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.” A. Damage 59.", "Each of the 11 applicants in applications nos. 4517/04, 4527/04, 5115/04 and 5333/04 claimed 75,000 euros (EUR) in respect of non-pecuniary damage. 60. Each of the five applicants in application no. 4985/04 claimed EUR 10,000 in respect of pecuniary, and EUR 15,000 in respect of non-pecuniary damage.", "61. Each of the nine applicants in applications nos. 4999/04, 5340/04 and 5343/04 claimed EUR 100,000 in respect of non-pecuniary damage. 62. The applicant in application no.", "6434/04 claimed EUR 20,000 in respect of pecuniary, and EUR 20,000 in respect of non-pecuniary damage. 63. The applicant in application no. 10567/04 claimed EUR 100,000 in respect of non-pecuniary damage. 64.", "The applicant in application no. 43956/04 claimed EUR 15,000 in respect of non-pecuniary damage. 65. The Government were of the opinion that the sums claimed by the applicants were excessive and not supported by evidence. 66.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged by some of the applicants. It therefore rejects their claims for pecuniary damage. The Court considers that the finding of a violation of Article 3 of Protocol No. 1 is sufficient to remedy the non-pecuniary damage suffered by the applicants. In this connection it notes that, unlike the applicants in the above-mentioned Selim Sadak and Others case, the applicants were not members of parliament (see, Selim Sadak and Others, cited above, § 56).", "B. Costs and expenses 67. The 11 applicants in applications nos. 4517/04, 4527/04, 5115/04 and 5333/04 claimed EUR 15,000 for costs and expenses in respect of each of the four applications. No documentary evidence or other information has been provided by the applicants in support of those claims.", "68. The five applicants in application no. 4985/04 claimed the total sum of EUR 6,345 in respect of their costs and expenses. In support of their claim the applicants submitted that they had incurred a total of EUR 285 for various expenses such as photocopying, telephone calls, stationery, etc. They also claimed that each applicant had had a two-hour long meeting with their legal representative for which they had been charged a total of 3,500 Turkish liras (TRY; approximately EUR 2,000).", "The applicants also claimed the sum of TRY 7,080 (approximately EUR 4,060) in respect of the fees of their legal representative, for which they referred to the fee scales recommended by the Ankara Bar Association. 69. Each of the nine applicants in applications nos. 4999/04, 5340/04 and 5343/04 claimed EUR 15,000 in respect of costs and expenses, but they have not provided any documentary evidence or other information in support of their claims. 70.", "The applicant in application no. 6434/04 claimed EUR 5,250 in respect of costs and expenses. This sum included EUR 150 for translation costs for which the applicant submitted a receipt and EUR 5,000 in respect of the fees of his lawyer who worked on the case for a total of 10 hours. 71. The applicant in application no.", "10567/04 claimed EUR 15,000 in respect of costs and expenses, but has not provided any documentary evidence or other information in support of this claim. 72. The applicant in application no. 43956/04 claimed TRY 2600 (approximately EUR 1,240 at the time of the submission of the claim) in respect of costs and expenses. This sum included TRY 2,000 (approximately EUR 950) for the fees of his legal representative, for which the applicant submitted an official bill.", "73. The Government considered the sums claimed to be excessive and unsupported by adequate documentation. 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, the applicants in applications nos.", "4517/04 4527/04, 4999/04, 5115/04, 5333/04, 5340/04, 5343/04 and 10467/04 did not submit any bills or any other information quantifying their claims. In the absence of such information and substantiation, the Court makes no award under this head to those applicants. 75. Regard being had to the documents in its possession and the above-mentioned criteria, the Court considers it reasonable to award the sum of EUR 3,000 jointly to the five applicants in application no. 4985/04; the sum of EUR 1,500 to the applicant in application no.", "6434/04; and the sum of EUR 1,240 to the applicant in application no. 43956/04, to cover costs under all heads. C. Default interest 76. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Decides to join the applications; 2. Declares the complaint under Article 3 of Protocol No. 1 to the Convention admissible and the complaint under Article 6 of the Convention inadmissible; 3. Holds that there has been a violation of Article 3 of Protocol No. 1 to the Convention; 4.", "Holds that there is no need to examine separately the complaints under Articles 7, 13 and 14 of the Convention; 5.Holds that the finding of a violation of Article 3 of Protocol No. 1 constitutes adequate just satisfaction in respect of non-pecuniary damage; 6. Holds (a) that the respondent State is to pay seven of the twenty-eight applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following sums, plus any tax that may be chargeable to those applicants, in respect of costs and expenses, to be converted into Turkish liras at the rate applicable at the date of settlement: (i) EUR 3,000 (three thousand euros) jointly to the applicants Kemal Bülbül, Kemal Okutan, Kudret Gözütok, Muharrem Bülbül[8] and Eşref Odabaşı; (ii) EUR 1,500 (one thousand five hundred euros) to the applicant Arif Atalay; and (iii) EUR 1,240 (one thousand two hundred and forty euros) to the applicant Hayri Ateş; (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 14 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stanley NaismithFrançoise TulkensRegistrarPresident ANNEX App. no. Applicant's name Date of birth Place of residence Representative Date of introduction 4517/04 Zeki Kılıçgedik 1950 Malatya Hasan Doğan in Malatya 13/1/2004 4527/04 Hasan Yıldırım 1948 Malatya Hasan Doğan in Malatya 13/1/2004 4985/04 Kemal Bülbül Kemal Okutan Kudret Gözütok Muharrem Bülbül[9] Eşref Odabaşı 1963 1957 1957 1959 1966 Ankara Ankara Bursa Kırşehir Malatya Levent Kanat in Ankara 17/12/2003 4999/04 Güven Özata 1945 Ankara Yusuf Alataş in Ankara 19/11/2003 5115/04 Serhat İman 1975 Malatya Hasan Doğan in Malatya 13/1/2004 5333/04 Mehmet Yücedağ Sakine Berktaş Sabri Sel Ali Gelgeç Ferhat Avcı Hıdır Berktaş Beser Kaplan Abuzer Yavaş 1973 1976 1947 1971 1971 1941 1957 1953 Malatya Malatya Adıyaman Malatya Malatya Malatya Malatya Malatya Hasan Doğan in Malatya 13/1/2004 5340/04 Mehmet Yardımcıel 1961 Kars Yusuf Alataş in Ankara 13/1/2004 5343/04 Bedir Çetin, Ramazan Sertkaya Rıza Kılınç İsmail Turap Şükrü Karadağ Hacı Pamuk Abuzer Arslan 1949 1960 1966 1963 1951 1963 1941 Adıyaman Yusuf Alataş in Ankara 17/11/2003 6434/04 Arif Atalay 1950 Adana Mustafa Çinkılıç in Adana 9/1/2004 10467/04 Hasan Doğan 1948 Malatya Berna Aktaş in Malatya 13/1/2004 43956/04 Hayri Ateş 1964 Izmir Zeynep Sedef Özdoğan in İzmir 23/9/2004 [1]. The applicant’s name has been changed from Muharrem Bilbil to Muharrem Bülbül. [2].", "An application introduced by HADEP and its Secretary General Mr Ahmet Turan Demir is pending before the Court under application no. 28003/03. [3]. Workers’ Party of Kurdistan, an illegal organisation. [4].", "The applicant’s name has been changed from Muharrem Bilbil to Muharrem Bülbül. [5]. See Gülseren Öner and Others v. Turkey, no. 64684/01, 1 June 2004. [6].", "See Kemal Bülbül v. Turkey, no. 47297/99, 22 May 2007. [7]. See Odabaşı v. Turkey, no. 41618/98, 10 November 2004.", "[8]. The applicant’s name has been changed from Muharrem Bilbil to Muharrem Bülbül. [9]. The applicant’s name has been changed from Muharrem Bilbil to Muharrem Bülbül." ]

[ "FIRST SECTION CASE OF TACCHINO and SCORZA v. ITALY (Application no. 34714/97) JUDGMENT (Friendly settlement) STRASBOURG 18 July 2002 This judgment is final but it may be subject to editorial revision. In the case of Tacchino and Scorza v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrsF. Tulkens,MrP.", "Lorenzen,MrsN. Vajić,MrE. Levits,MrA. Kovler, judges,MrsM. Del Tufo, ad hoc judgeand Mr E. Fribergh, Section Registrar, Having deliberated in private on 4 July 2002, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 34714/97) 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 two Italian nationals, Mr Eugenio Tacchino and Mrs Maria Rosa Scorza (“the applicants”), on 19 October 1996. 2. The applicants were represented by Mr O. Gentile, a lawyer practising in Rome. The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza, and by their co-agent, Mr V. Esposito.", "3. The applicants complained about their prolonged inability - through lack of police assistance - to recover possession of their apartment and about the duration of the eviction proceedings. 4. The case was transferred to the Court on 1 November 1998 by virtue of Article 5 § 2 of Protocol No. 11 to the Convention.", "On 4 October 2001, having obtained the parties' observations, the Court declared the application admissible. 5. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section. 6.", "On 29 April 2002 and on 13 May 2002 the applicants and the Agent of the Government respectively submitted formal declarations proposing a friendly settlement of the case. THE FACTS 7. Mrs G.F. was the owner of an apartment in Rome, which she had let to L.N. 8. In a writ served on the tenant on 15 April 1983, she communicated her intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.", "9. By a decision of 12 May 1983, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 September 1984. Upon the tenant's request, the Rome Magistrate postponed the execution of the order for possession to 31 January 1985. 10. On 4 February 1986, Mrs G.F. served notice on the tenant requiring her to vacate the premises.", "On 27 February 1986, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 30 April 1986. 11. Between 30 April 1986 and 26 October 1989, the bailiff made sixteen attempts to recover possession. 12. On 15 November 1989, the applicants became the owners of the apartment.", "13. After four unsuccessful attempts by the bailiff to evict the tenant, the applicants made a statutory declaration that they urgently required the premises as accommodation for their daughter. 14. Between 14 November 1990 and 23 October 1998, the bailiff made thirty-six attempts to recover possession. 15.", "Each attempt proved unsuccessful, as the applicants were never granted the assistance of the police in enforcing the order for possession. 16. On 26 November 1998, the tenant vacated the premises. THE LAW 17. On 13 May 2002 the Court received the following declaration from the Government: “I declare that the Government of Italy offer to pay a sum totalling 6,500 (six thousand five hundred) Euros to Mr Eugenio Tacchino and Mrs Maria Rosa Scorza (3,250 Euros to each applicant) with a view to securing a friendly settlement of the application registered under no.", "34714/97. This sum shall cover any pecuniary and non-pecuniary damage as well as costs, and it will be payable within three months starting from the notification of the judgment delivered by the Court pursuant to Article 39 of the European Convention on Human Rights. This payment will constitute the final resolution of the case. This declaration does not entail any acknowledgement by the Government of a violation of the European Convention on Human Rights in the present case. The Government further undertake not to request the referral of the case to the Grand Chamber under Article 43 § 1 of the Convention.” 18.", "On 29 April 2002 the Court received from the applicants' representative the following declaration signed by the applicants and by the applicants' representative: “I note that the Government of Italy are prepared to pay a sum totalling 6,500 (six thousand five hundred) Euros (3,250 Euros to each applicant) covering both pecuniary and non-pecuniary damage and costs to Mr Eugenio Tacchino and Mrs Maria Rosa Scorza with a view to securing a friendly settlement of application no. 34714/97 pending before the Court. I accept the proposal and waive any further claims in respect of Italy relating to the facts of this application. I declare that the case is definitely settled. This declaration is made in the context of a friendly settlement which the Government and the applicants have reached.", "I further undertake not to request the referral of the case to the Grand Chamber under Article 43 § 1 of the Convention after the delivery of the Court's judgment.” 19. 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). 20. 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 18 July 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Erik FriberghChristos RozakisRegistrarPresident" ]

[ "FIRST SECTION CASE OF CONNORS v. THE UNITED KINGDOM (Application no. 66746/01) JUDGMENT STRASBOURG 27 May 2004 FINAL 27/08/2004 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 Connors v. the United Kingdom, The European Court of Human Rights (First Section), sitting as a Chamber composed of MrC.L. Rozakis, President,MrP.", "Lorenzen,SirNicolas Bratza,MrG. Bonello,MrsF. Tulkens,MrsS. Botoucharova,MrsE. Steiner, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 22 January and 6 May 2004, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.", "The case originated in an application (no. 66746/01) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a United Kingdom national, Mr James Connors (“the applicant”), on 29 January 2001. 2. The applicant was represented by Mr K. Lomax, a lawyer practising in Leeds. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office, London.", "3. The applicant complained that he and his family had been evicted from a local authority gypsy caravan site, invoking Articles 6, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1. 4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court).", "5. By a decision of 14 November 2002, the Court declared the application admissible. 6. The applicant and the Government each filed observations on the merits (Rule 59 § 1). 7.", "A hearing took place in public in the Human Rights Building, Strasbourg, on 22 January 2004 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMrD. Walton,Agent,MrT. Mould,Counsel,MsV. Goulburn,MrD.", "GleaveAdvisers; (b) for the applicantMrA. Offer,Counsel,MrK. Lomax,Solicitor. The Court heard addresses by Mr Mould and Mr Offer. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1955 and lives in or about Lancashire. 9. The applicant and his family are gypsies. They led a traditional travelling lifestyle until they suffered so much from being moved on with ever increasing frequency and harassment that they settled on the gypsy site run by the local authority at Cottingley Springs.", "They lived there permanently for about thirteen years, until February 1997 when they moved off. They stated that they moved off the site at that time due to the anti-social behaviour of others living on the site and others who came onto the site, e.g. vehicles being driven round the site at night, violence and disturbances such that they could not sleep at night or the children play safely during the day. They moved into a rented house but were unable to adapt to these conditions. They gave up their tenancy when offered two plots for the family at Cottingley Springs.", "10. The applicant returned to the site with his family in October 1998. 11. By a licence agreement dated 22 October 1998, Leeds City Council (“the Council”) granted the applicant and his wife a contractual licence to occupy plot no. 35 at Cottingley Springs caravan site in Leeds.", "The licence in Clause 12 required the applicant as occupier to comply with the Site Regulations, while Clause 18 stated: “No nuisance is to be caused by the occupier, his guests, nor any member of his family to any other person, including employees of the Council, the occupiers of any other plots on the Site, or occupiers of any land or buildings in the vicinity of the Site.” 12. On 29 March 1999, the applicant’s adult daughter Margaret Connors was granted a licence to occupy the adjacent plot, Plot 36, where she lived with Michael Maloney who later became her husband. She also cared for the applicant’s mother-in-law, Margaret Kelby, until she went into a residential nursing home in the area. The applicant’s adult sons, James Junior and Joseph, did not reside with the applicant but were frequent visitors both to his plot and their sister next door. 13.", "During 1999, the applicant and his family were in dispute with the Council due to its alleged failure to undertake repairs on Plot 36 (there was no electricity supply or other facilities for some time), their objection to paying electricity charges which they considered to be overcharging and concerning the Council’s refusal to accept payment by instalment for the site deposit. Their complaints were referred to the Local Authority Ombudsman to investigate. 14. The Government stated that the applicant’s children (including his adult sons James Junior and Joseph) and Michael Maloney misbehaved and caused considerable nuisance at the site. The Council’s Travellers Services Manager, based at the site, was aware of many incidents of nuisance caused by the applicant’s children and visitors.", "The Manager visited the applicant and Margaret Connors on a number of occasions to report the misbehaviour and nuisance. On 16 December 1998, the Council gave the applicant written warning that further incidents of anti-social behaviour by his children could jeopardise his occupation of the plot. Nevertheless, both the applicant’s children and his visitor Michael Maloney continued to cause nuisance at the caravan site. 15. In January 2000, when it became known that Margaret Connors was going to marry Michael Maloney, the applicant alleged that the Council manager of the site stated, “The minute you marry Michael Maloney you’ll be out that gate”.", "Michael Maloney was a member of a family against whom proceedings had previously been brought for eviction from the site on allegations that they were “a magnet for trouble”. In February 1997, the Maloney family had moved from the site. They remained in the Leeds area until the summer of 1999 when they went to Nottingham. 16. On 31 January 2000, notice to quit was served on the family requiring them to vacate both plots.", "No written or detailed reasons were given by the Council, though the issue of “magnet for troublemakers” had been raised. 17. On 12 February 2000, Margaret Connors married Michael Maloney and they continued to live on Plot 36. 18. On 20 March 2000, the Council issued two sets of proceedings for summary possession pursuant to Order 24 of the County Court Rules, one concerning the applicant and his wife and family on Plot 35 and the other against Margaret Connors and “persons unknown” on Plot 36.", "On 24 March 2000, the applicant was served with various documents. The grounds for possession stated that the defendants were in occupation without licence or consent. In the witness statement dated 17 March 2000, the site manager referred to Clause 18 of the licence agreement and asserted that the defendants had breached the licence agreement and that he had given them notice to quit. No particulars of breach were given. He also asserted that the necessary investigation into the needs of the defendants had been made in accordance with the guidelines set out in the Department of the Environment Circular 18/94.", "19. The applicant disputed that they were in breach of Clause 18, that any possible alternative approaches had been taken to any problems and also that any appropriate enquiries had been made into their welfare. 20. At this stage, the applicant’s family consisted of his children Charles aged 14, Michael aged 13, Daniel aged 10 and Thomas aged 4 months. Thomas had been suffering from serious illness, with kidney problems and rashes of unknown origin, while the applicant’s wife, who was asthmatic, had suffered several attacks requiring visits to hospital.", "The applicant himself had been having chest pains and was awaiting a hospital appointment. Daniel had settled well into full-time education at the nearby primary school, and the others were receiving assistance, including teaching at home. 21. The Council served further witness statements containing particulars of the allegations of nuisance. These were disputed by the applicant.", "They related largely to Margaret and Michael Maloney on Plot 36. 22. On 14 April 2000, the summary possession proceedings were adjourned pending the determination of the applicant’s application for permission to apply for judicial review of the Council’s decision to determine the licence of his plot which had been lodged on 10 April 2000. During the hearing, Margaret and Michael Maloney indicated an intention to leave the site. As the bulk of the complaints were against them, the applicant stated that the Council were requested to review its decision to terminate the licence of the applicant and his family.", "23. On 12 May 2000, the High Court refused permission to apply for judicial review. The judge noted that the applicant’s counsel accepted that the necessary investigations had been carried out by the Council and rejected as unarguable the contention, as regarded procedural fairness, that the applicant had not been given prior warning of the threat of eviction. 24. On 16 May 2000, the applicant applied to the Director General of Fair Trading for a ruling that the terms of the licence agreement were unfair, in particular that Clause 18 was unfair in holding him responsible for the actions of visitors whom he could not reasonably be expected to control.", "25. The Council took the decision to proceed with the eviction. It dropped the allegations of breach of licence and asserted a right to summary possession on the basis that the family were trespassers as permission to occupy the land had been withdrawn. On 19 June 2000, the County Court granted a possession order. The Council undertook not to execute a warrant for possession until 14 July 2000 on condition that the applicant and his family were of good behaviour and kept the peace.", "26. Further representations were made by the applicant to the Council without success. 27. On 13 July 2000, as the applicant had not given up possession, the Council obtained a warrant for possession of the plot. The Government stated that the applicant and his family barricaded themselves in the plot and refused to leave when the County Court bailiffs attended to execute the warrant.", "The Council applied to the High Court for enforcement of the order for possession. On 24 July 2000, the High Court ordered the Sheriff to execute the warrant for possession. The Sheriff’s officer, the bailiffs and the West Yorkshire police carried out a planning and risk assessment. The Sheriff’s officer attended the site and requested the applicant to vacate the plot. He refused.", "28. On 1 August 2000, early in the morning, the Council commenced enforcement of the eviction, in an operation involving Council officers, the Sheriff’s officers and numerous police officers. The applicant stated that also police helicopter, police dogs, control centre, numerous police vehicles and detention vans were employed. The operation lasted five hours. 29.", "The Government stated that the police arrested the applicant and his son Daniel for obstruction under section 10 of the Criminal Law Act 1977. The applicant stated that he was attempting to carry out items of property to a trailer when he was stopped by bailiffs and arrested. He was handcuffed and held in a police van for an hour and subsequently at the police station, though he was complaining of chest pains. At about midday, he was taken to hospital for emergency admission. 30.", "According to the applicant, his thirteen-year-old son Michael was also seized and held in a van by the police for five hours during the eviction. The applicant’s wife was left to cope alone, the baby Thomas being ill. 31. The family’s two caravans were removed (they owned one and the other was rented). The applicant stated that it was not until late afternoon that their own caravan was returned to them. However many of their possessions were still held by the Council, including medicine needed for Thomas.", "During 3 August 2000, the Council returned their possessions, including a washing machine, drier, microwave, gas bottles, kettle and clothing. This was dumped on the roadside some distance away from the applicant’s caravan. The Government stated that on 1 August 2000 the Council removed from the plot to safe storage goods and personal property that the applicant and his family had failed to take with them. At the request of the applicant, the Council returned these goods and personal property to the family who had meanwhile taken up occupation on land nearby at Cottingley Drive owned by the Council, where the presence of gypsies was sometimes tolerated for short periods. As they claimed it was not possible to get into the field to deliver the goods directly, the Council unloaded the goods at the edge of the field, informed the applicant and kept watch until they were collected.", "32. A group of gypsies was at that time on the land at Cottingley Drive for the purpose of attending a wedding. This group did not however leave by 1 August as previously agreed, staying on to attend the funeral of a baby who had died on 31 July 2000. The Council prepared eviction proceedings and included the applicants as “persons unknown”. The applicant alleges that no assistance or advice was given to them as to where they could go, save for an offer of accommodation at Bridlington (on the east coast) which failed to take into account the local community ties of the family who had lived on Cottingley Springs site for most of 13 years and in the Leeds area for some 20 to 30 years.", "33. An application for adjournment of the possession proceedings was rejected by the County Court on 14 August 2000. The applicant and his family moved from the land and travelled around the Leeds area stopping for a few days at a time. 34. The Government stated that the applicant and his family had returned to the caravan site three times since as trespassers.", "The Council applied for an injunction to ban the applicant and his family from entering the site. The outcome of these proceedings is not known. 35. The applicant stated that following the eviction he and his family were required to move on repeatedly. Partly at least due to the stress and uncertainty, the applicant’s wife chose to move into a house with the younger children and they were separated in May 2001.", "Daniel lived for a while with the applicant. Following the eviction, he did not return to school. The applicant stated that he continued to travel in his caravan, with his son Michael and occasionally Daniel, but that they were unable generally to remain in any place for more that two weeks. He continued to have chest pains for which he received medication and tests. As he had no permanent address, he used his wife’s address for postal purposes, including medical appointments.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 1. Provision for gypsy sites 36. Prior to 1994, the Caravan Sites Act 1968 provided in section 6 that it should be the duty of local authorities “to exercise their powers ... so far as may be necessary to provide adequate accommodation for gypsies residing in or resorting to their area”. The Secretary of State could direct local authorities to provide caravan sites where it appeared to him to be necessary (section 9).", "In addition, approximately 100 million pounds sterling (GBP) was spent under a scheme by which one hundred per cent grants were made available to local authorities to cover the costs of creating gypsy sites. 37. Section 80 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”), which came into force on 3 November 1994, repealed sections 6-12 of the 1968 Act and the grant scheme referred to above. The change in policy underlying the repeal was explained by the Parliamentary Under-Secretary of State: “In the past 13 years the number of gypsy caravans stationed on unauthorised sites has remained broadly the same... The shortfall in provision has been largely due to natural growth in the gypsy population.", "Plainly site provision is barely keeping pace with the growth in demand and is not reducing the shortfall... We recognise that council site provision has contributed to alleviating the difficulties experienced by the gypsy community. Indeed the predicament of gypsies in England and Wales is now far different from in 1968. At that time, probably fewer than 10 per cent of gypsy caravans in England and Wales were stationed on authorised sites, whereas the figure is now about 46 per cent. A further 24 per cent are on authorised private sites, and many more are stationed on tolerated sites where they are allowed to stay with reasonable security from eviction. ... We believe that public provision of sites has now reached an acceptable level.", "Public accommodation has been provided for 46 per cent of the total number of gypsy caravans in England and Wales. We do not believe that it is in the public interest to continue to maintain what has become an open-ended commitment to provide sites for all gypsies seeking accommodation at the public’s expense. It is our view that the right approach now is to encourage more gypsies to establish their own sites through the planning system. We know that many gypsy families would prefer to establish their own sites rather than reside on council sites. The National Gypsy Council has for a long time supported the case for private provision.", "Private site provision has increased by more than 135 per cent since 1981. Our intention is to encourage that trend.” 38. Local authorities remain empowered to provide gypsy sites under section 24 of the 1960 Act and such sites remain the largest single component of the overall supply. Under current policy guidance, the Government have emphasised the importance that local authorities maintain their existing sites and consider if it is appropriate to provide further sites (Circular 18/94, paragraphs 21-22). In 2000, the Government announced that they were making available 17 million pounds sterling over the period 2001-2004 to help local authorities to maintain their sites.", "2. Unauthorised stationing of caravans 39. Section 77 of the 1994 Act gives to a local authority power to direct an unauthorised camper to move. An unauthorised camper is defined as “... a person for the time being residing in a vehicle on any land forming part of the highway, any other unoccupied land or any occupied land without the owner’s consent”. 40.", "Failure to comply with such a direction as soon as practicable, or re-entry upon the land within three months, is a criminal offence. Local authorities are able to apply to a magistrates’ court for an order authorising them to remove caravans parked in contravention of such a direction (section 78 of the 1994 Act). 41. Guidance issued by the Secretary of State dated 23 November 1994 (Circular 18/94) concerned the unauthorised camping by gypsies and the power to give a direction to leave the land (CJPOA above). Paragraphs 6-9 required local authorities to adopt “a policy of toleration towards unauthorised gypsy encampments”: “6.", "... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which cannot be effectively controlled, an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area which could give rise to greater nuisance. Accordingly, authorities should consider tolerating gypsies’ presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites, for example by providing basic services for gypsies e.g. toilets, a skip for refuse and a supply of drinking water. ... 8. Where gypsies are unlawfully camped on Government-owned land, it is for the local authority, with the agreement of the land-owning Department, to take any necessary steps to ensure that the encampment does not constitute a hazard to public health.", "It will continue to be the policy of the Secretaries of State that Government Departments should act in conformity with the advice that gypsies should not be moved unnecessarily from unauthorised encampments when they are causing no nuisance. 9. The Secretaries of State continue to consider that local authorities should not use their powers to evict gypsies needlessly. They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land.” 42. Paragraphs 10-13 further require local authorities to consider their obligations under other legislation before taking any decisions under the 1994 Act.", "These obligations include their duties concerning pregnant women and newly-born children, the welfare and education of children and the housing of homeless persons. In a judgment of 22 September 1995 (R. v. Lincolnshire County Council, ex parte Atkinson, R. v. Wealden District Council, ex parte Wales, and R. v. Wealden District Council, ex parte Stratford, unreported), the High Court held that it would be an error of law for any local authority to ignore those duties which must be considered from the earliest stages. 3. Security of tenure on caravan sites 43. Occupiers of gypsy caravan sites run by a local authority receive limited security of tenure pursuant to Part 1 of the 1968 Act.", "An occupier’s contractual right can be determined by four-week’s notice and he may only be evicted by court order. Local authorities are in addition required to have regard to the guidance on best practice in managing gypsy sites, e.g. such as set out Circular 18/94 concerning statutory duties to support children, to house the homeless and make appropriate educational provision for school-age children. A local authority failing to have regard to that guidance might be subject to challenge by way of judicial review. 44.", "The Mobile Homes Act 1983 (the 1983 Act) confers further protection upon a person who lives in a caravan or mobile home as his only or main residence. Such a person may not be evicted save by court order and on the site owner having established one of the stated grounds, inter alia, that the court is satisfied that the occupier is in breach of the licence agreement and has failed to remedy that breach within a reasonable time and that it is reasonable for the agreement to be terminated. This protection was conferred on occupiers of caravans on privately owned residential sites and also the occupiers of local authority sites. However, section 5(1) excluded land run by the local authority as a caravan site for gypsies. The effect of this exclusion was analysed by the House of Lords in Greenwich London Borough Council v. Powell (1989) 21 HLR 218: “... the intention of the legislature in the Act of 1983 was clearly to exclude from the definition of ‘protected site’ sites such as that at Thistlebrook provided by local authorities in discharge of their duty under section 6 of the Act of 1968 to accommodate those whom they bona fide believe to be gypsies because they are nomadic for part of the year, notwithstanding that they may establish a permanent residence on the site by returning from year to year; such a site will not become a ‘protected site’ even if some of the erstwhile nomads, as well they may, give up their nomadic way of life entirely.", "It would be different if the local authority adopted a policy of offering vacancies on the site to static residents with fixed full time employment...” 45. Secure tenants of conventional flats or houses provided or managed by local authorities under the Housing Act 1985 enjoy a similar regime of security of tenure to that conferred upon occupiers of a residential caravan site by the 1983 Act. 46. A number of cases have been brought in the domestic courts challenging the lack of security of tenure on local authority gypsy sites. (a) Somerset County Council v. Frederick Isaacs [2002] EWHC 1014 47.", "In this case, a gypsy, whose licence to occupy a local authority site had been revoked for alleged misbehaviour, claimed in the proceedings brought for possession of the plot, that the eviction would be in breach of Articles 8 and 14 of the Convention and sought a declaration of incompatibility. 48. In rejecting the gypsy’s claims and ordering possession, the High Court judge, Mr Justice Stanley Burnton, found that the eviction of the applicant would interfere with his rights under Article 8 § 1 but that the statutory framework, as a matter of general principle and policy, satisfied the requirements of Article 8 § 2. He noted two general points: “33. ... First, statutory regulation of housing and the consequences of such regulation are matters of some complexity.", "For example, while security of tenure may be to the advantage of existing tenants or licensees, it may be to the disadvantage of tenants and licensees generally. In the 1960’s, security of tenure for residential tenants and control of rents were reimposed under the Rent Acts. Doubtless those measures were in the short term interests of residential tenants. However, in the long term they led to a reduction in the supply of privately-rented accommodation, which, on one view, was disadvantageous to residential tenants and potential tenants generally. There is no simple equation between security of tenure and the public interest.", "34. The second general consideration is related to the first. Housing is very much ‘the area of policy where the court should defer to the decision of Parliament’... The need for, and the consequences of, legislation in this area are matters for Parliament, not the court... ‘... We do not lose sight of the fact that courts are not primary decision-makers in areas such as housing policy. Strasbourg confers a wide margin of appreciation in such matters... our own courts will give a margin of discretion to elected decision-makers, all the more so if primary legislation is under scrutiny’.", "Sheffield City Council v. Smart [2002] EWCA Civ. 04 per Laws LJ 35. The policy behind the exempting provisions was clearly stated by Lord Bridge in his speech in the House of Lords in Powell at 1012 ...: ‘Any other construction of ‘protected site’ in section 5(1) of the Act of 1983 would, it seems to me, cause great difficulties both for local authorities and for most of the gypsy community and would undo much of the good work which has been done in this difficult field. Those already established on sites like Thistlebrook would, of course, enjoy full 1983 security of tenure. But local authorities in the position of the council would need to start de novo to discharge their duty under section 6 of the Act of 1968.", "Many existing designations under section 12 would have to be revoked or would perhaps be automatically invalidated... For the future, local authorities establishing new sites providing accommodation for gypsies would have to be vigilant to prevent their residence acquiring any degree of permanency. This, I think, they could in practice only do by applying a short rule-of-thumb limit of stay, which would be quite contrary to the interests of the gypsy community.’ 36. [Counsel for the defendant gypsy] submitted that this statement was no longer applicable as a result of the abolition of the duty of the local authority to provide sites for gypsies. I do not accept this submission. The statement of Lord Bridge is equally applicable to the sites which local authorities continue to provide, although they are under no duty to do so.", "Furthermore, as has been seen, central government guidance is that it is important for those sites to be maintained.” 49. The judge quoted at length the evidence of the Secretary of State’s department on the aims of the two statutory frameworks, one applying to all local authority gypsy caravan sites and the other to all other residential caravan sites run by local authorities and private owners: “ ‘25. With Part I of the 1968 Act, and with the 1975 and 1983 Acts, Parliament sought to address specific problems of commercial exploitation experienced by occupiers of private sites. There has never been any evidence to suggest that such problems extend to local authority Gypsy sites, and accordingly those legislative provisions that are directed at those problems have not been extended to such sites. The problems faced by Gypsies were wholly different, relating primarily to the acute shortage of sites available to meet their particular accommodation needs.", "The said problems were addressed by Part II of the 1968 Act, and supplemented by the departmental guidance circulars issued to local authorities. By 1994, the scheme of part II of the 1968 Act was found to have served its purpose as far as it could reasonably be expected to do. There was now a substantial and valuable supply of Gypsy caravan sites provided and operated by local authorities. The emphasis of Government policy has now changed to one of encouraging Gypsies themselves to add to that existing supply. Nevertheless existing local authority supply remains an essential component of the Government’s strategy of securing an adequate level of accommodation for Gypsies.", "The policy of the 1994 Act is to maintain and safeguard that distinct source of supply. 26. Thus, I draw particular attention to the fact that the statutory protection afforded by Part 1 of the 1968 Act and the 1975 and 1983 Acts has been and still is available to Gypsies if they choose to reside at sites other than those provided by local authorities specifically for Gypsies. In general, the key difference between such sites has been the greater flexibility, which is usually available on local authority Gypsy sites, in order to accommodate the nomadic lifestyle of occupiers. This may allow Gypsies to remain on a site on a short-term basis, or to retain a site for 12 months of the year, while paying a reduced rent as a retainer during the few months of the year while they may be travelling in search of seasonal work.", "Other local authority sites and private sites, in general, are aimed at longer-term residential occupiers, without the need for such flexibility because they are not pursuing a nomadic lifestyle. 27. Nevertheless, there are of course a number of Gypsies who occupy sites on a long-term basis, and other mobile home residents who do not consider themselves to be Gypsies, but who prefer to occupy private sites on a more short-term basis. The aim of the separate statutory frameworks is to ensure diversity of provision to meet the varying needs of different individuals and families; it is not to classify or categorise individuals or families. Accordingly, Gypsies seeking to settle on a more permanent site may occupy private or local authority (non-Gypsy) sites and benefit from the scheme put in place by Part I of the 1968 Act and the 1983 Act.", "This diversity of public and private site provision reflects that which is available in housing generally. 28. The separate statutory framework allows for flexibility in meeting the accommodation needs of Gypsies. It appears that the Defendant is effectively arguing in these proceedings in favour of a single statutory framework applicable to all caravan sites, including local authority Gypsy sites. In my view, such a single statutory framework would be detrimental to the interests of Gypsies throughout the country.", "If the security of tenure provisions of that framework applied equally to local authority Gypsy sites, it would undermine the flexibility that such sites provide in catering for the varied lifestyles of Gypsies. Some may move from site to site on a regular basis, while others may be more permanently based on a site, possibly travelling for a few months each year to take on seasonal work. If each Gypsy were able to rely on security of tenure then every site, whatever its designation, could potentially become a permanent site with no scope to accommodate short-term occupiers. Furthermore, if there were no longer a distinction in the statutory framework allowing flexibility for the provision of Gypsy sites, then there would be nothing to prevent any person residing in a mobile home seeking to occupy a Gypsy site, whether or not they pursue a nomadic lifestyle. Inevitably, fewer sites, if any, could be made available specifically for Gypsies pursing a nomadic lifestyle.", "... 32. Experience suggests that local authorities would face difficulties in managing sites if eviction were subject to broad discretionary powers of the courts to suspend or attach conditions to orders. There is a balance to be struck between the latter and the merits of flexibility (already mentioned) that such sites offer in catering for the varying accommodation needs of Gypsies. To this (and in favour of the existing position) must be added the fact that in reaching decisions about evictions local authorities, as responsible bodies, need to take into account the range of obligations and considerations outlined in paragraph 29 above. These amount to significant safeguards against unscrupulous or unjustified evictions.", "Furthermore local authority decisions in relation to eviction are open to challenge by way of judicial review.’ ” 50. The judge concluded: “38. While I am not over-impressed by the vagueness of the statement in paragraph 32 that ‘experience suggests’, applying the guidance given by Laws LJ in Smart, this evidence satisfies me that the exempting provisions are ‘necessary in a democratic society’, and a proportionate response to a social need, and do not amount to an infringement of Article 8. It is true that occupiers of exempted sites do not have the benefit of the safeguards applicable to introductory tenants. In practice, however, they are able to bring judicial review proceedings where the circumstances justify them, and I do not think that the absence of those safeguards substantially prejudices persons such as the Defendant.", "Moreover, any such safeguards would detract from the flexibility that Parliament has decided is appropriate for exempted sites. ... 39. I can deal with Article 14 quite shortly. The exemption in section 4(6) of the CSA is justified by the special position of local authorities and the policy considerations referred to above. The exemption is section 5 of the MHA depends on the status of the site owner as a local authority, and not on any personal quality of the licensee or tenant.", "It therefore raises no question of discrimination contrary to Article 14. Conclusion ... 41. This conclusion is consistent with that of the Commission in P v. UK (App. No. 14751/89) which rejected as inadmissible the complaint by gypsies that their eviction from an exempted site infringed their rights under Articles 8 and 14.", "Mr Watkinson submitted that this decision was no longer applicable by reason of the abolition of the duty of local authorities to provide sites for gypsies. As I stated above, I do not regard this as a valid distinction between the present position and that before 1994. There are still sites provided by local authorities for gypsies, and indeed if there were none there would be no scope for section 5 of MHA.” (b) R. (Smith) v. Barking and Dagenham London Borough [2002] EWHC 2400 51. In this case, a Romany gypsy, threatened with eviction from a council site, sought a declaration that the provisions of the 1968 Act were in breach of Articles 8 and 14 of the Convention insofar as it failed to provide the protection given to secured tenants of local authority conventional housing. In rejecting the application, Mr Justice Burton noted that the parties had agreed that there had, in the past, been objective justification for the lack of security of tenure of gypsy occupiers of council sites and that the claimant’s case was that, in light of changes, that was no longer the case.", "He summarised the Secretary of State’s case for justification for the absence of security of tenure as follows: “i. Nomadism. The whole raison d’être for gypsy culture and identity, and indeed its defining factor, given the absence of necessary ethnicity - not all gypsies are Romanies, not least the so-called New Travellers - is nomadism. Hence the definition in section 16 of the 1968 Act... ii. Site availability.", "There must be a substantial availability of sites for gypsies. Stanley Burnton J referred to the problem of ‘balance’ in general terms in Isaacs in paragraph 33: [cited above]. The submission is thus that there is no good clogging up all the caravan sites with those who do not move, and effectively removing them from the stock of available sites, by giving security of tenure. iii. Flexibility.", "This is reflected in the decision in Isaacs. There is a stock of secure pitches on private sites, where there is security of tenure by virtue of the MHA. It is in respect of private sites that protection from commercial exploitation is necessary, and in any event the safeguard of administrative law remedies is not available. Thus the necessary ‘mix’ of private and council, secure or insecure, pitches, is maintained. Mr Gahagan [Director of Housing at the Department for Transport, Local Government and the Regions] most clearly sets out the effect of these justifications in combination at paragraph 15 of his reply witness statement: ‘There are limited resources for providing publicly funded accommodation, whether it be for gypsies or members of the ‘settled’ community.", "The Government is trying to make sure that there is provision for gypsies who have a nomadic way of life. There are other alternative forms of occupation for those with a settled way of life, which are as equally available to gypsies as they are to any other person. However if accommodation which was intended for those with a nomadic way of life could become converted into accommodation for those with a settled way of life just by the life choices made by the occupants, then this would make planning for nomadic persons by local and central Government very difficult.’ Dr Kenrick [Chairman of the Romany Institute, expert witness instructed by the claimant], while not challenging the historic justification, submits that it no longer applies: ‘44. Mr Gahagan states that the legislation regarding gypsy accommodation is tailored so as to facilitate a nomadic way of life... The fact is that the nomadic way of life is ending for most gypsies, and therefore the existing legislation is unsatisfactory... 66.", "In conclusion, the situation today is very different from what was envisaged at the time of the 1968 ... Act and the [MHA]. The examples I have given of the low turnover and lack of vacancies show that council sites are becoming permanent residences for most of the families. They often have mobile homes and utility buildings. In this changed situation there seems no reason why residents should not have the same right as the tenants of council housing or non-Gypsy mobile home sites.’ ” 52. The judge summarised the statements of both Mr Gahagan and Dr Kenrick concerning the differing patterns of life chosen by gypsies: Mr Gahagan emphasised the flexibility necessary to cope with those who move on a regular basis or were permanently based on one site but possibly travelling several months a year while Dr Kenrick stated that position had substantially moved on from the time of the 1968 Act when it was anticipated that 20% of families travelled, that local authorities even encouraged families to become permanent residents by allowing them to leave for periods and pay half rent and that for the small minority that travelled all year round there were the existing small number of transit sites.", "The judge then summarised the conclusions of the October 2002 report (see below) which was found to be the most significant feature in the evidence before him. 53. The judge concluded: “32. It is plain from the passages of the October 2002 Report that I have cited that it is now accepted that there is a substantial majority that no longer travels for any material period, albeit that there is a substantial minority that does travel. No figures have been produced, and, as Dr Kenrick himself has pointed out, no statistics as to turnover yet exist, but the varied passages from the Report which I have cited in paragraph 30(vi) show that it is accepted that some thinking must now be done.", "Nevertheless when asked by me whether the Secretary of State wanted an adjournment to consider the position further, Mr Mould clearly stated that no such adjournment was sought, and that his case remains that, rethink though there plainly is going to be, the Secretary of State still accepts the onus of showing that the present legislation can still be justified. This is not a case, as adumbrated in Seymour-Smith and Hooper, where the Government now accepts that the position can no longer be justified but asserts an entitlement to a period to correct discriminatory effects before a declaration is made... but rather a situation where the Government is still in the process of monitoring the position and, until it reaches a conclusion, asserts that the present position can be justified. 33. If this were simply a matter of concluding that there is now a substantial majority of gypsies who are no longer nomadic, whose position can be immediately safeguarded by some new legislation of the kind discussed in general terms in paragraph 31 above, I would not feel inhibited either by the well-established principles of allowing deference and/or a margin of appreciation to Government or Parliament... nor in particular by the principle enunciated by the Court in Mellacher ... whereby the ‘possible existence of alternative solutions does not in itself render the contested legislation unjustified’. However I am satisfied that the position is not so straightforward.", "There is, in my judgment, quite apart from any simple question of giving security of tenure to those in council caravan sites, a necessary, indeed, crucial, concomitant question to be considered and resolved, before it can be concluded that the present position is unjustified. I conclude that there is a very difficult question of how to define gypsies, to whom security of tenure in such sites is to be given (if it is). If security of tenure is to be given to all long-term caravan occupiers on council sites, as they are on private sites, then how, if at all, is there to be any differentiation between gypsy/traveller occupiers and any other occupiers who wish to place a mobile home on a local authority site, with security of tenure? And if there is to be no such differentiation, then the last state of gypsies whose cultural heritage or spiritual and cultural state of mind is nomadism or travelling may be worse than the first. At present that actual or potential nomadism (‘a substantial nomadic habit of life’) is the justification both for the lack of security of tenure and also for the special arrangements for local authority sites catering especially for them, i.e.", "within section 24 of the Caravan Sites and Control of Development Act 1960. Dr Kenrick himself refers obliquely to the problem, in paragraph 53 of his witness statement: “The residents of council sites do not have to retain their Gypsy status (by travelling for an economic purpose...) in order to retain their pitches.” ... 35. I am satisfied that ... the absence of security of tenure for all gypsy/travellers on all local authority sites, is still appropriate and justified. I have no doubt that the Government will give further thought to the position, as indicated in the October 2002 Report, will obtain the necessary further statistics and will, pursuant to its own declared intention to give protection to gypsies and their way of life, continue monitoring the present position. Meanwhile, the safeguard of judicial review remains, and, although there is some discussion in the Report (pp.", "246-7) about the present lack of security of tenure, eviction of residential gypsy occupiers on local authority caravan sites is not flagged up as a present problem...” (c) Sheffield City Council v. Smart [2002] EWCA Civ O4 54. In this case, which dealt with local authority housing for the homeless that fell outside security of tenure provisions, the Court of Appeal rejected the applicants’ claims that their summary eviction breached Articles 6 or 8 of the Convention: “If this court were to hold that a tenant in the circumstances of either of these appellants is by force of Article 8(2) entitled to have the county court judge (or the judicial review court it matters not) decide on the particular facts whether her eviction is disproportionate to the council’s aim (in essence) of managing its housing stock properly, we would in effect thereby convert the non-secure tenancies enjoyed by homeless persons into a form of secure tenancy. We should be imposing a condition, not unlike the requirement of reasonableness presently applicable in relation to secure tenancies under the 1985 Act, which takes the judgment whether possession of the premises should be obtained from the landlord council and gives it to the court...[the appellants’ argument] ... amounts in truth to a ‘macro’ assault on the mechanics of the statutory scheme for protection of homeless persons...” 4. Report on the Provision and Condition of Local Authority Gypsy/Traveller Sites in England (October 2002) 55. This report, issued by the Office of the Deputy Prime Minister, summarises the information and conclusions of research on the extent and quality of local authority gypsy sites carried out by the Centre for Urban and Regional Studies at the University of Birmingham.", "56. In the Executive Summary, it is noted that: “– There is no clear, widely understood national policy towards accommodation for Gypsies and other Travellers in England; there is a general feeling that such a policy is needed involving local authorities and others but with a strong lead from central government. – There are around 320 local authority sites providing about 5,000 pitches. It is important that the existing network is retained and currently closed sites brought back into use. ... – We estimate that between 1,000 and 2,000 additional residential pitches will be needed over the next five years.", "Between 2,000 and 2,500 additional pitches on transit sites or stopping places will also be needed to accommodate nomadism. The latter need to form a national network. – There are obvious barriers to site provision, especially through resistance from the settled community. Many believe a statutory duty and central subsidy are needed to ‘encourage’ local authorities to make provision. Treating site provision in the same way as housing for planning purposes could help.", "– Site management is more intensive than is usual for social housing management and requires higher staff/resident ratios. It should be ‘firm but fair’. There are areas where greater formality might be introduced, including performance monitoring...” 57. Concerning the legal definition of a gypsy (page 7): “The legal definition of a ‘Gypsy’ is ‘persons of nomadic habit of life, whatever their race or origin’, excluding members of an organised group of travelling showmen or those engaged in travelling circuses. This was clarified in the case of R v. South Hams ex parte Gibbs as ‘persons who wander or travel for the purpose of making or seeking their livelihood not persons who move from place to place without any connection between their movement and their means of livelihood)’.", "Thus the legal definition is explicitly concerned with habitual lifestyle rather than ethnicity, and may include both ‘born’ Gypsies or Travellers and ‘elective’ Travellers such as the so-called New (Age) Travellers, once a sufficient nomadic habit of life has been established. Alongside the legal definition, there is an ethnic definition of a Gypsy or Traveller... Romany Gypsies were accepted as an ethnic group for race relations legislation in 1989. Irish Travellers ... were accepted as an ethnic group for race relations legislation in August 2000.” 58. Concerning travelling (page 8): “Not all ethnic Gypsies and other Travellers travel regularly. A range of travelling patterns exists.", "Frequency of travel ranges from full-time Travellers with no fixed base, to families who live in one place most of the year, but still travel with living vehicles for holidays or family events. Some travel long distances across regions even countries, while some regular travellers never leave a single town. Travelling is part of the cultural heritage of traditional Gypsies and Travellers, and is still culturally important, even for those who no longer actively travel... There are some indications that fewer Gypsy/Travellers now travel full-time, and some have ‘settled’ for a combination of reasons related to personal circumstances, greater difficulties in travelling and finding safe places to stop, and a desire for a more comfortable lifestyle and education for children. However it would be unwise to assume that any trend towards greater ‘settlement’ is universal, or unidirectional.", "Individuals can pass from one pattern of travelling to another in line with family cycle, health and personal circumstances.” 59. Concerning overall Gypsy/Traveller Accommodation Issues (page 11): “In most local authorities Gypsy/Traveller accommodation policies are not well-developed, if they exist at all. ... In part this reflects the lack of a specific duty to consider Gypsy/Traveller needs, and in part a tendency to equate Gypsy/Traveller accommodation with site provision - so an authority without a site has no policy. Where policies exist, they are not always comprehensive and integrated...History and individual personalities seem to have an influence on the approach taken locally.", "Most policies have been developed without input from Gypsies and other Travellers...” 60. Concerning site dynamics and turnover (pages 28-29): “Most residential Gypsy/Traveller sites appear to have a very low turnover, and are stable. Most residents have lived on site for three years or more on 86% of sites. ...While there are exceptions, the general picture built up of residential Gypsy/Traveller sites is that they are stable, with long-term residents who travel little during the course of a year. It may be that, for many residents, the attractions of the site lie in the possibilities of living in a trailer (attractive for cultural reasons and leaving the option of travel open) and of living within a culturally distinct community among friends and family.", "This is not necessarily the same as meeting the needs of a nomadic or semi-nomadic population. For many residential site residents, nomadism appears to be a spiritual and cultural state of mind, rather than a day-to-day reality.” (Page 31): “Pitch vacancies on residential sites arise infrequently. Eight out of ten residential sites have a waiting list for places ...” 61. Concerning licence agreements, rules and enforcement (page 31): “Enforcement of licence conditions is an important element in overall site management. The ultimate sanction – very rarely evoked in the case studies - is eviction, but most action occurs well before this stage.", "...” 62. Concerning accommodation for nomadism (page 41): “An unknown proportion of Gypsies and other Travellers still actively travel whether throughout the year, seasonally or on special or family occasions. Those who travel throughout the year may have no fixed base at all... There is little formal provision to accommodate Travellers and their trailers while on the road. There are just 300 transit pitches provided on local authority sites.", "Recent Gypsy counts have shown roughly ten times as many caravans on unauthorised encampments. Even taking into account the unknown number of private transit pitches, it is clear that ‘nomadism’ is currently mostly accommodated informally and often – from the viewpoint of both the settled community and Travellers – unsatisfactorily. ... The need for a range of transit accommodation has been recognised for at least forty years, yet supply is still small and, as this research has shown, actually shrinking...” 63. Concerning conclusions and recommendations: “One of the clearest conclusions from the research is the lack of any clear, widely understood national policy towards accommodation for Gypsies and other Travellers in England, and a general feeling that such a policy is needed....” (page 50) “Another very clear conclusion from the research is that Gypsies and other Travellers are often socially excluded and still suffer discrimination in many areas of life.", "There is a need for a clear central lead to affirm the legitimacy of a nomadic way of life and to challenge racism and discrimination against Gypsies and other Travellers. There is also a need to make Gypsies and other Travellers less ‘invisible’ in policies aimed to help socially and economically disadvantaged groups. ...” (page 51) “Another approach worth considering it to bring site provision more closely within mainstream housing. Given the stability discovered on many residential sites, it seems entirely appropriate to see them as a form of specially adapted housing for Gypsies and other Travellers... Housing associations could become involved in site provision and management and the Housing Corporation could provide social housing grant as for other general and special needs housing. Issues around site licensing and model standards, and tenure (whether or not the Mobile Homes Act 1983 might apply) would need to be clarified.” (page 52) “Residents of residential Gypsy /Traveller sites are licensees with only basic protection against harassment and illegal eviction.", "Many Gypsy/Travellers and their supporters argue strongly that this is not appropriate and puts Gypsies and other Travellers at a serious disadvantage relative to social housing tenants and especially secure council tenants. Given the changes in tenancies currently being considered, it might be worth thinking further about the status of site residents...” (page 54) 5. Report on Local Authority Gypsy/Traveller Sites in England (July 2003) 64. This report, issued by the Office of the Deputy Prime Minister, provided further information and conclusions of research on the provision and management of local authority gypsy sites carried out by the Centre for Urban and Regional Studies at the University of Birmingham. 65.", "In the section “Licence Agreements, Rules and Enforcement” (pp. 118-123), it is stated inter alia: “Gypsy/Traveller site pitches are let on a licence rather than a tenancy. This is in itself contentious with some Gypsies and other Travellers and their supporters. As licensees, site residents enjoy less security and fewer rights than council tenants. ...", "The less security is argued to be justified on the grounds that local authority sites need greater flexibility in order to accommodate the nomadic lifestyle of occupiers. This envisages shorter stays, and the possibility of retaining a pitch for seasonal travelling (see Somerset County Council v. Isaacs, 2002). ... Opinion is mixed between case study respondents on whether site residents should continue as licensees or have some form of tenancy. Some feel that good site management requires the ability to – occasionally and in extreme situations – step in quickly and get a troublemaker off the site. This recognises that violence, crime or anti-social behaviour can have the effect of very quickly emptying a site of residents (who are mobile and take their homes with them) as well as potentially causing severe physical damage to the site and its facilities.", "The opportunity for prompt action is essential to safeguard the interests of respectable residents and staff who have to visit the site. They therefore do not want anything which gives greater security of tenure. Other local authority respondents argue that licensee status makes Gypsies and other Travellers into second class citizens, and that everything possible should be done to regularise their position alongside tenants in permanent housing. They recognise that most residential sites are now stable and provide long-term accommodation rather than specifically catering for nomadism. They see the advent of introductory tenancies for social housing as a protection against bad behaviour from new residents...", "Residents occasionally express the argument often made by site managers... against increasing security of tenure because of the need for a power to be able to get rid of bad or disruptive residents quickly in order to protect the interests of the other residents and the quality of the site as a whole. On the other hand, lack of security means that even long-standing residents are dependent on the continued goodwill of the operator, to an extent that few of them seem to realise. The more settled people become, the more important tenure seems likely to be to them as long-term residents begin to improve and develop their plots, build sheds of their own, and so on. Some may acquire mobile homes rather than caravans which would be difficult to move and re-site. It is generally thought hard to find space on an official site – particularly on a good one as there aren’t many sites and a lot of them are thought to be full.", "It can seem unreasonable that people should still be on four weeks notice if they have lived 20 or 30 years in one place, behaved well over that time and have invested in developments of their plot or home.” 66. According to statistics given, evictions in fact occurred on four out of 76 sites during 2000/1 (5%). On three sites there was a single eviction and on one there were three evictions. Reasons seem to have combined both arrears and anti-social behaviour. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 67. Article 8 of the Convention provides as relevant: “1. Everyone has the right to respect for his private and family life, his home... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 68. The parties were agreed that Article 8 was applicable in the circumstances of this case and that the eviction of the applicant from the site on which he had lived with his family in his caravans disclosed an interference with his right to respect for his private life, family life and home.", "69. The parties were also agreed, in the context of the second paragraph of Article 8, that the interference was “in accordance with the law” and pursued a legitimate aim, namely, the protection of the rights of other occupiers of the site and the Council as owner and manager of the site. 70. The question remaining for examination by the Court is whether the interference was “necessary in a democratic society” in pursuit of that aim. A.", "Whether the interference was “necessary in a democratic society” 1. The parties’ submissions (a) The applicant 71. The applicant contended that his eviction from the site interfered unjustifiably with his rights under Article 8 of the Convention, as being unnecessary and disproportionate, in particular as he was not given the opportunity to challenge in a court the allegations made against him and his family. He denied that he or members of his family living on the plot had breached any term of the licence as alleged by Council officers and stated that he had no control over the conduct of visitors to the site, such as his adult sons or Michael Maloney. There was significant support for his family from other occupiers of the site which contradicted the situation as described by the Council.", "He disputed that it was reasonable or proportionate to evict him and his family for reasons relating to other adults. The Council failed to use other methods to control the alleged misbehaviour, such as injunctions or committal proceedings against those adults who were committing the damage or nuisance and appeared to make no distinction concerning the occupation of the two plots, 35 and 36. Nor when the applicant gave undertakings in court on 14 April 2000 did the Council apply for enforcement measures in respect of alleged breaches. 72. Contrary to the Government’s assertions, the applicant submitted that he had no means of requiring the Council to substantiate its allegations against him and thereby resisting the revocation of his licence or preventing the eviction.", "There was extensive dispute as to the facts and allegations which could not be tested in the summary proceedings or in the judicial review proceedings, which preceded the coming into force of the Human Rights Act 1998. No opportunity was given for the submission of evidence, hearing or cross-examination of witnesses on these matters. As a result, there was no meaningful assessment as to whether the measures were proportionate or justified in pursuit of any legitimate aim. Following the Human Rights Act 1998, the cases before the domestic courts showed that they would not apply the Convention in such a manner as to overturn the system of security of tenure provided for in the legislation. 73.", "The applicant submitted that, notwithstanding the Government’s explanations about alternative provision, there was no evidence in West Yorkshire of any encouragement for gypsies to purchase and occupy their own private sites. Gypsies in that area who wished security of tenure could not move to privately run sites as there were none. On the contrary there were many examples of enforcement action being taken against gypsies’ occupation of their own land. Nor were there any temporary stopping places with basic facilities as envisaged in Government circulars such as 18/94. Since the repeal of the 1968 Act, there had been a reduction of 27% in local authority site provision for gypsies in Leeds, e.g.", "from 56 plots to 41. The applicant denied that he was advocating a single statutory framework for all sites, arguing that a particular need for flexibility in gypsy provision could be reflected in grounds available for possession (for example, unmaintained caravans, absence exceeding a particular period), but not by ignoring the need to prove disputed facts. Different regimes should not necessitate that gypsies on local authority sites lose the benefit of court protection to test, for example, an alleged breach of licence. As a Council tenant faced with an allegation of anti-social behaviour could argue his/her case in court, he saw no reason why a gypsy facing such allegations should not be able to do so. 74.", "As regarded the Government’s policy arguments, he referred to the October 2002 report (paragraphs 55-63 above), which noted that there was in fact no clear national policy on accommodation for gypsies and that the majority of occupants of local authority gypsy sites lived a largely sedentary life, with a very low turnover of vacancies on such sites. In those circumstances, it was not the case that these sites were needed, or used, for the minority of gypsies who followed a substantially nomadic lifestyle and it was appropriate to bring site provision more closely within mainstream housing as a form of specially adapted housing for gypsies. It would be possible to safeguard the interests of the persons of nomadic habit by designating certain pitches for “transit” while at the same time conferring security of tenure on the majority of the residents of local authority gypsy sites. Similar exceptions for special purposes occurred in the Housing Act 1985. 75.", "The applicant argued that difficulties of proving anti-social behaviour existed equally on other mobile home sites, including privately run gypsy sites, and on housing estates, to which security of tenure did apply. He saw no reason why, if it was reasonable and workable for owners of privately run sites and housing associations and local authority landlords of housing tenants to prove allegations, local authorities who ran gypsy sites could not be required to the do the same. He noted that ample powers were available to a court to deal as a matter of urgency with troublemakers, including the power to grant interim injunctions and the powers under the Anti-social Behaviour Act 2003 which did not require the attendance of witnesses in court. He also disputed that the regime as it existed brought any financial benefit to gypsies through low costs as the cost of a pitch was variable, the average being much the same as rent for a Council house and in his case being almost double. 76.", "Furthermore, the applicant submitted that in his case, which concerned interference with an important right rendering his family homeless with loss of effective access to education and health services, the margin of appreciation should be narrow rather than wide. He considered that his case could be distinguished from Chapman v. the United Kingdom, ([GC] no. 27138/95, ECHR 2001-I, § 92), relied on by the Government, as that concerned a local planning decision grounded in local knowledge and understanding of local conditions whereas his case concerned assessment of a general policy at national level. (b) The Government 77. The Government submitted the interference was justified as necessary in a democratic society and was proportionate to its objectives.", "The applicant had agreed to occupy the plot on the terms that neither he, his family nor guests would cause a nuisance and he had been warned by the Council that he was in breach. In the circumstances, the Council was entitled to revoke the licence. Similar terms would have applied to a secure housing tenant. Though the licence did not require the Council to give the applicant the opportunity to challenge the allegations of nuisance made against him, it was a public authority obliged to act lawfully, reasonably, fairly and for the proper purposes for which its powers were conferred. Its decisions were therefore amenable to judicial review and the applicant, who was legally represented, was able to challenge the decision in judicial review proceedings where the High Court found no evidence to doubt the reasonableness and procedural fairness of the Council’s decision.", "The Council had also taken into account the needs of the applicant and his family in the decision-making process. If there had been no proper basis for the eviction or the applicant had mounted a substantial factual challenge to the asserted justification, the domestic courts would have been able, through their scrutiny, to provide a remedy against arbitrary action. There was however no substantial dispute as to the primary facts as the applicant did not appear to deny that his sons and guests were causing a nuisance. This procedure therefore provided the applicant with a series of important safeguards. In addition to the remedy of judicial review, occupiers had, since 2000, a right of action under the Human Rights Act 1998, pursuant to which the courts can consider directly claims of violation of the Convention (see, for example, Somerset County Council v. Isaacs, paragraphs 47-50 above).", "78. While they accepted that the statutory protection from eviction which the applicant enjoyed in respect of the plot was more limited than if his caravan had been on a site other than one provided by a local authority for gypsy accommodation, the Government emphasised that statutory regulation of housing was a matter of some complexity and within the area in which courts should defer to the decision of the democratically elected legislature. A wide margin of appreciation applied equally to this situation as it did in the planning context (see Chapman v. the United Kingdom, cited above, § 92). They argued that the limited degree of protection was justified with regard to the differing aims of the statutory schemes concerned. Regarding the provision for gypsies, it had to be recalled that the 1968 Act had sought to remedy the grave shortage of sites for gypsies who led a nomadic lifestyle by placing a duty on local authorities to provide such sites.", "By 1994, the Act was found to have served its purpose as far as it could reasonably be expected to, with local authority sites providing the largest contribution to the overall accommodation needs of gypsies. Policy then changed its emphasis to encouraging gypsies to promote their own sites via the planning process. The authorities were keeping the situation under review, as seen in the independent reports issued in October 2002 and July 2003, which did not reveal that the exemption posed any problems in practice in the operation of local authority gypsy sites. It was apparent in the latter report that local authorities used their powers of eviction sparingly and as a sanction of last resort. It remained however an important management tool.", "79. Notwithstanding shifts in gypsy habits, the existing local authority supply of sites remained an essential component of the Government’s strategy of ensuring an adequate level of provision for gypsies and the policy of the legislation was to maintain and safeguard that distinct supply. Thus the special regime of tenure applicable to local authority gypsy sites reflected the need to ensure that local authorities were able to operate their gypsy sites in a flexible way that met the special accommodation needs of gypsies consistent with their nomadic lifestyle. To require local authorities to justify in court their management decisions in relation to individual occupiers would add significantly to their administrative burden, increasing costs and licence fees and would reduce the flexibility intended by the framework. The domestic courts examining the cases of Isaacs and Smith concluded, in light of the evidence submitted, that there remained objective justification for current legislative arrangements on local authority gypsy sites (see paragraphs 47-53 above).", "The issues raised in the recent reports were now the subject of a thorough Government review of policy, which would include the existing regime of tenure on local authority gypsy sites and examine all the competing interests. It was not the case that the reports established that this regime was currently unjustifiable or that there was a readily identifiable and workable alternative regime of greater security of tenure that would overcome the applicant’s complaints in this case. 80. The Government further explained that the policy and object of the mobile homes legislation was to remedy a different problem, namely, the inequality of bargaining power between the mobile home owner and the site owner, in which area there was a deficiency of supply over demand which the private sites, run as businesses, were in a position to exploit, by for example compelling a resident to buy his mobile home from the site owner and then evicting him and forcing him to sell the home back at a significant undervalue. The 1983 Act was designed specifically to remedy such abuses by giving residents of such sites stronger security of tenure.", "On the other hand, the regime applicable to local authority gypsy sites enabled disruptive occupiers to be dealt with quickly, preventing damage to the site and forestalling the tendency of the other occupiers to leave to avoid the problem. There was the practical advantage that this avoided the need to produce witnesses, there being a reported reluctance for other occupiers to get involved or “inform” on rule-breakers. 2. The Court’s assessment (a) General principles 81. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued.", "While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see, among other authorities, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, 27 September 1999, §§ 88, ECHR 1999-VI). 82. In this regard, a margin of appreciation must, inevitably, be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions. This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions.", "The margin will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights (see, for example, Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, p. 21, § 52; Gillow v. the United Kingdom, judgment of 24 November 1986, Series A, no. 104, § 55). On the other hand, in spheres involving the application of social or economic policies, there is authority that the margin of appreciation is wide, as in the planning context where the Court has found that “[i]n so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation (Buckley v. the United Kingdom, judgment of 26 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1292, § 75 in fine). The Court has also stated that in spheres such as housing, which play a central role in the welfare and economic policies of modern societies, it will respect the legislature’s judgment as to what is in the general interest unless that judgment is manifestly without reasonable foundation (see Mellacher and Others v. Austria, judgment of 19 December 1989, Series A no.", "169, p. 27, § 45, Immobiliare Saffi v. Italy [GC], no. 22774/93, ECHR 1999-V, § 49). It may be noted however that this was in the context of Article 1 of Protocol No. 1, not Article 8 which concerns rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community (see, mutatis mutandis, Gillow v. the United Kingdom, cited above, § 55; Pretty v. the United Kingdom, no. 2346/02, ECHR 2002-III; Christine Goodwin v. the United Kingdom, no.", "28957/95, § 90, ECHR 2002-VI). Where general social and economic policy considerations have arisen in the context of Article 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant (Hatton and others v. the United Kingdom, [GC] no. 36022/97, ECHR 2003-..., §§ 103 and 123). 83. The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation.", "In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Buckley, cited above, pp. 1292-93, § 76, Chapman v. the United Kingdom [GC], no. 27138/95, ECHR 2001-I, § 92). 84. The vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases (Buckley judgment cited above, pp.", "1292-95, §§ 76, 80 and 84). To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life (see Chapman, cited above, § 96 and the authorities cited, mutatis mutandis, therein). (b) Application in the present case 85. The seriousness of what was at stake for the applicant is not in doubt. The applicant and his family were evicted from the site where they had lived, with a short absence, for some fourteen to fifteen years, with consequent difficulties in finding a lawful alternative location for their caravans, in coping with health problems and young children and in ensuring continuation in the children’s education.", "The family was, in effect, rendered homeless, with the adverse consequences on security and well-being which that entails. The Council, and the Government in these proceedings, took the view that the eviction was justified by a breach of the licence conditions, the applicant being responsible for causing nuisance on the site. The applicant contested that he was at fault. It is not for the Court however to assess in retrospect whose version of events was correct as the Council in evicting the applicant relied instead on the power to give 28 days notice to obtain summary possession without proving any breach of licence. While it was variously alleged by Council officers that the applicant’s licence conditions had been breached due to the unruly conduct of persons on his pitch and contended by the applicant that any problems arose from adult visitors from off the site over whom he had no control, the respective merits of the arguments were not examined in the County Court proceedings, which were only concerned with the fulfilment of the formal conditions for the eviction.", "The central issue in this case is therefore whether, in the circumstances, the legal framework applicable to the occupation of pitches on local authority gypsy sites provided the applicant with sufficient procedural protection of his rights. 86. The serious interference with the applicant’s rights under Article 8 requires, in the Court’s opinion, particularly weighty reasons of public interest by way of justification and the margin of appreciation to be afforded to the national authorities must be regarded as correspondingly narrowed. The Court would also observe that this case is not concerned with matters of general planning or economic policy but with the much narrower issue of the policy of procedural protection for a particular category of persons. The present case may also be distinguished from the Chapman case (cited above), in which there was a wide margin of appreciation, as in that case, it was undisputed that the applicant had breached planning law in taking up occupation of land within the Green Belt in her caravans and claimed, in effect, special exemption from the rules applying to everyone else.", "In the present case, the applicant was lawfully on the site and claims that the procedural guarantees available to other mobile home sites, including privately run gypsy sites, and to local authority housing, should equally apply to the occupation of that site by himself and his family. 87. The Government have argued, firstly, that there is a need to exempt local authority gypsy sites from security of tenure provisions that apply in other areas of accommodation. Government policy sought to cater for the special needs of gypsies who live a nomadic lifestyle and this, they emphasised, required flexibility in the management of local authority sites. They argued, secondly, that the power to evict summarily was a vital management tool in coping with anti-social behaviour as without speedily removing troublemakers the other gypsy families would tend to abandon the site rather than assisting the local authority by “informing” on others and giving evidence in formal court procedures.", "As a subsidiary argument, they submitted that the additional costs of court procedures could increase the fees applicable to gypsy sites and thus act to the overall detriment of the gypsy population as a whole. 88. As regards the nomadism argument, the Court notes that it no longer appears to be the case that local authority gypsy sites cater for a transient population. The October 2002 report (see paragraphs 55-63 above) indicates, as has been apparent from the series of cases brought to Strasbourg over the last two decades, that a substantial majority of gypsies no longer travel for any material period. Most local authority sites are residential in character.", "On 86% the residents have been in occupation for three years or more and there is a very low turnover of vacancies. Of an estimated 5,000 pitches, only 300 are allocated as transit pitches. It is not apparent that it can be realistically claimed that the majority of local authority sites have to provide, or aim to provide, a regular turnover of vacancies to accommodate gypsies who are travelling round or through the area. The Court is not persuaded therefore that the claimed flexibility is related in any substantial way to catering for an unspecified minority of gypsies who remain ‘nomadic’ and for whom a minimum of transit pitches have to be made available. It appears that there are in fact specific sites designated as “transit” sites and that these are distinguished from the vast majority of other local authority gypsy sites.", "The material before the Court certainly does not indicate that eviction by summary procedure is used as a means of maintaining a turnover of vacant pitches or of preventing families from becoming long-term occupants. 89. As regards the use of summary eviction as a tool in controlling anti-social behaviour, the Court would note that the 2003 report indicates that it is in fact only rarely used – on 5% of sites – and that some local authorities considered that the licence status of gypsies made them second-class citizens and would prefer to regularise their position to bring them into line with other forms of social housing (see paragraphs 64-66). The mere fact that anti-social behaviour occurs on local authority gypsy sites cannot, in itself, justify a summary power of eviction, since such problems also occur on local authority housing estates and other mobile home sites and in those cases the authorities make use of a different range of powers and may only proceed to evict subject to independent court review of the justification for the measure. Notwithstanding the assertion that gypsy attitudes to authority would make court proceedings impractical, it may be noted that security of tenure protection covers privately run gypsy sites to which the same considerations would appear also to apply.", "Consequently the Court is not persuaded there is any particular feature about local authority gypsy sites which would render their management unworkable if they were required to establish reasons for evicting long-standing occupants. Nor does it find any indication that the gypsies would lose the advantage of low financial costs attaching to local authority sites. According to the submissions of the applicant, which were not contested by the Government, local authority gypsy sites do not benefit from particularly low licence fees and in his case he had to pay double the rate of a local authority housing tenancy. 90. Nor does the gypsy population gain any benefit from the special regime through any corresponding duty on the local authority to ensure that there is a sufficient provision for them (see P. v. the United Kingdom, no.", "14751/89, decision on admissibility of 12 December 1990, Decisions and Reports 67, p. 264, concerning the regime applicable before the repeal of section 6 of the Caravan Sites Act 1968 and paragraphs 35-36 above). The October 2002 report noted that 70% of local authorities did not have any written gypsy/traveller accommodation policy and commented that this reflected the lack of a specific duty on local authorities to consider their needs (paragraph 58 above). Since the 1994 Act came into force, there has been only a small net increase in the number of local authority pitches. The case of Chapman, together with the four other applications by gypsies decided by the Grand Chamber (Beard v. the United Kingdom, no. 24882/94, Coster v. the United Kingdom no.", "24876/94, Jane Smith v. the United Kingdom, no. 25154/94, and Lee v. the United Kingdom, no. 25289/94, judgments of 18 January 2001), also demonstrate that there are no special allowances made for gypsies in the planning criteria applied by local authorities to applications for permission to station of caravans on private sites. 91. The Government have pointed out that the domestic courts, since the entry into force of the Human Rights Act 1998, have examined the Convention issues in similar cases and found no violations of Articles 14 or 8.", "The Court notes that the High Court has reviewed the lack of security of tenure of gypsies on local authority sites in a number of cases. There is force in the Government’s argument that some weight should be attached to the views of national judges who are in principle better placed than an international one to assess the requirements of the society because of their direct and continuous links with that society. However, in Isaacs, the judge commented that he was not over-impressed by the vagueness of ‘experience’ relied on by the Government in justifying the necessity of the regime (see paragraph 50 above), while in Smith, the judge implied that he would have no difficulty in concluding that there were a substantial majority of gypsies who were no longer nomadic whose position could immediately be safeguarded by some new legislation (paragraph 53 above). The Court would observe that the domestic courts stopped short of finding any breach of the provisions of the Convention, having regard inter alia to the perceived existence of safeguards that diminished the impact on the individual gypsy’s rights and to a judicial reluctance to trespass on the legislative function in seeking to resolve the complex issues to which no straightforward answer was possible. The domestic courts’ position cannot therefore be analysed as providing strong support for the justification of continuing the current regime.", "92. The existence of other procedural safeguards is however a crucial consideration in this Court’s assessment of the proportionality of the interference. The Government have relied on the possibility for the applicant to apply for judicial review and to obtain a scrutiny by the courts of the lawfulness and reasonableness of the Council’s decisions. It would also be possible to challenge the Council for any failure to take into account in its decision-making relevant matters such as duties towards children (see paragraph 42 above). The Court would recall that the applicant sought permission to apply for judicial review and that permission was refused.", "In the applicant’s case, his principal objection was based not on any lack of compliance by the Council with its duties or on any failure to act lawfully but on the fact that he and the members of the family living with him on the plot were not responsible for any nuisance and could not be held responsible for the nuisance caused by others who visited the site. Whether or not he would have succeeded in that argument, a factual dispute clearly existed between the parties. Nonetheless, the local authority was not required to establish any substantive justification for evicting him and on this point judicial review could not provide any opportunity for an examination of the facts in dispute between the parties. Indeed, the Government drew the Court’s attention to the Court of Appeal’s decision in Smart, where it was held that to entitle persons housed under homelessness provisions, without security of tenure, to have a court decide on the facts of their cases as to the proportionality of their evictions would convert their occupation into a form of secure tenure and in effect undermine the statutory scheme (paragraph 54 above). While therefore the existence of judicial review may provide a valuable safeguard against abuse or oppressive conduct by local authorities in some areas, the Court does not consider that it can be regarded as assisting the applicant, or other gypsies, in circumstances where the local authority terminates licences in accordance with the applicable law.", "93. The Court would not under-estimate the difficulties of the task facing the authorities in finding workable accommodation solutions for the gypsy and traveller population and accepts that this is an area in which national authorities enjoy a margin of appreciation in adopting and pursuing their social and housing policies. The complexity of the situation has, if anything, been enhanced by the apparent shift in habit in the gypsy population which remains nomadic in spirit if not in actual or constant practice. The authorities are being required to give special consideration to a sector of the population which is no longer easy to define in terms of the nomadism which is the raison d’être of that special treatment. 94.", "However, even allowing for the margin of appreciation which is to be afforded to the State in such circumstances, the Court is not persuaded that the necessity for a statutory scheme which permitted the summary eviction of the applicant and his family has been sufficiently demonstrated by the Government. The power to evict without the burden of giving reasons liable to be examined as to their merits by an independent tribunal has not been convincingly shown to respond to any specific goal or to provide any specific benefit to members of the gypsy community. The references to “flexibility” or “administrative burden” have not been supported by any concrete indications of the difficulties that the regime is thereby intended to avoid (see, mutatis mutandis, Larkos v. Cyprus, [GC], no. 29515/95, ECHR 1999-I, where in finding a violation of Article 14 in conjunction with Article 8 concerning the difference in security of tenure provisions applying between tenants of public and private housing, the Court did not find that the difference in treatment could be justified by the argument that giving the applicant the right to remain indefinitely in a State-owned dwelling would fetter the authorities’ duty to administer State-owned property in accordance with constitutional and legal requirements). It would rather appear that the situation in England as it has developed, for which the authorities must take some responsibility, places considerable obstacles in the way of gypsies pursuing an actively nomadic lifestyle while at the same time excluding from procedural protection those who decide to take up a more settled lifestyle.", "95. In conclusion, the Court finds that the eviction of the applicant and his family from the local authority site was not attended by the requisite procedural safeguards, namely the requirement to establish proper justification for the serious interference with his rights and consequently cannot be regarded as justified by a “pressing social need” or proportionate to the legitimate aim being pursued. There has, accordingly, been a violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 96.", "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.” 97. The Court has found above a violation of Article 8 of the Convention. No separate issue arising under Article 14 of the Convention, the Court finds it unnecessary to consider this complaint further. III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.", "1 98. Article 1 of Protocol No. 1 provides as relevant: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.” 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.” 99. The applicant complained that during the eviction the Council interfered with his personal property by removing essential possessions from the pitch and retaining various items.", "They failed to return the property promptly and, when they did, dumped it on the roadside. 100. The Court notes that the applicant does not allege that possessions were damaged or lost or that the actions of the Council were unlawful, in which latter case it would have been possible to take action in the courts. To the extent therefore that the removal of the property was a consequential element of the eviction of the applicant and his family from the local authority site, the Court does not find that it raises any separate issues from those considered under Article 8 above and thus finds it unnecessary to examine the complaint further. IV.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 101. Article 6 § 1 of the Convention provides as relevant: “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.” 102. The applicant complained under Article 6 that he was unable in the summary possession proceedings to challenge the Council’s allegations of nuisance whether by giving evidence himself or calling witnesses. The applicant was at a substantial disadvantage given the terms of the licence, in respect of which he had not been in a free bargaining position. There was no equality of arms and he was denied any effective access to court against the very serious interference with his home and family.", "103. The Court considers that the essence of this complaint, that his eviction was not attended by sufficient procedural safeguards, has been examined under Article 8 above and may be regarded, in the present case, as absorbed by the latter provision. No separate issue therefore arises for determination. V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 104. Article 13 provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A.", "The parties’ submissions 105. The applicant submitted that he had no possibility of obtaining a determination in court of the disputed facts and allegations relied on by the Council in determining his licence. Judicial review did not provide an effective method of challenging the Council’s actions as it did not involve testing of the evidence, while in the summary proceedings the judge had no discretion to investigate the matters but was required to order possession under the terms of Order 24. 106. The Government did not consider that any issue arose, in particular as no arguable claim of a violation was disclosed for the purposes of Article 13 of the Convention.", "In any event, the applicant could challenge the reasonableness of the Council’s actions in judicial review proceedings and require the Council to show in the County Court that they had lawfully determined the licence. The applicant could also have taken action against any individual officer who had acted unlawfully and the law of tort was available to remedy any unlawful interference with his property. B. The Court’s assessment 107. According to the Court’s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no.", "131, § 52). 108. The Court has found above that there has been a violation of Article 8. An “arguable claim” therefore arises for the purposes of Article 13. 109.", "However, the Court recalls that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State’s primary legislation to be challenged before a national authority on grounds that it is contrary to the Convention (see James and others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, § 85; A. v. the United Kingdom, no. 35373/97, ECHR 2002-X, §§ 112-113). The applicant’s complaints related in essence to the exemption conferred on local authority gypsy sites by the Mobile Homes Act 1983. 110.", "The Court thus concludes that the facts of the present case disclose no violation of Article 13 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 111. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1.", "The parties’ submissions 112. The applicant claimed damages in respect of distress and suffering experienced by himself and his family as a result of the eviction proceedings and for the ongoing loss of access to educational facilities, recreational facilities, medical and health services and basic sanitation and refuse disposal occasioned by the eviction. He pointed out that the Cottingley Springs site was the centre of their community and that he had known the people there all their lives. The way in which the eviction was enforced, involving several hours’ detention, caused him significant pain and stress and the applicant and his family had serious difficulties in finding places to station their caravans afterwards, repeatedly being threatened with eviction and being moved on. The stress and uncertainty contributed to the applicant’s wife’s decision to move into a house, thereby causing their separation in May 2001 and a loss of daily contact with his children, who have also had their education disrupted.", "The applicant claimed that a sum in the range of GBP 100,000 would be appropriate. 113. The Government submitted that the applicant’s central complaint was the lack of any power in the County Court to adjudicate on disputed facts and protect him from eviction save on reasonable grounds. If such adjudication had occurred, it was more than likely, in view of the acknowledged nuisance caused by the applicant’s visitors, that the County Court would have ordered the eviction anyway and the consequences would have been the same. In their view a finding of violation would provide sufficient just satisfaction, though if the Court considered a monetary award was merited, they considered such should be not more than 5,000 euros (EUR).", "2. The Court’s assessment 114. The Court notes that it is not possible to speculate as to what would have been the outcome if a form of security of tenure had applied to the applicant’s occupation of a pitch at the Cottingley Springs site. Nonetheless, the applicant was denied the opportunity to obtain a ruling on the merits of his claims that the eviction was unreasonable or unjustified. In addition, he suffered non-pecuniary damage through feelings of frustration and injustice.", "The Court thus concludes that the applicant sustained some non-pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention. 115. Deciding on an equitable basis, it awards the applicant the sum EUR 14,000. B. Costs and expenses 116.", "The applicant claimed a total of GBP 18,781.96 for legal costs and expenses, including GBP 5,370 for solicitors’ costs (at an hourly rate of GBP 150) and GBP 11,867.51 for counsel’s fees, inclusive of value added tax (VAT). 117. The Government considered that the solicitor’s hourly rate was excessive and that a rate of GBP 100 would be more appropriate. They did not challenge counsel’s hourly rate of GBP 90 but considered that the number of hours charged (114.5) was excessive bearing in mind the time also spent by solicitors and relative lack of complexity of the legal issues. They proposed that 30 hours for counsel’s time and attention, namely GBP 2,700, would be more reasonable.", "118. The Court observes that counsel entered the application at a relatively late stage, after the case had been declared admissible and in these circumstances seeing some force in the Government’s objection to the amount of hours claimed, has reduced the sum claimed by approximately one quarter. It does not find the sum claimed by the solicitor unreasonable as to hours claimed or quantum overall. In conclusion, taking into account the subject-matter and procedure adopted in this case, together with deduction of the amount of legal aid granted by the Council of Europe, the Court awards, for legal costs and expenses, the sum of EUR 21,643, inclusive of VAT. C. Default interest 119.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 8 of the Convention; 2. Holds that no separate issue arises under Article 14 of the Convention in conjunction with Article 8; 3. Holds that no separate issue arises under Article 1 of Protocol No.", "1 to the Convention; 4. Holds that no separate issue arises under Article 6 of the Convention; 5. Holds that there has been no violation of Article 13 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 according to Article 44 § 2 of the Convention, the following amounts to be converted into pounds sterling at the rate applicable at the date of settlement, plus any tax that may be chargeable: (i) EUR 14,000 (fourteen thousand euros) in respect of non-pecuniary damage; (ii) EUR 21,643 (twenty one thousand, six hundred and forty three euros) in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 27 May 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Soren NielsenChristos RozakisRegistrarPresident" ]

[ "FIFTH SECTION CASE OF DZIRNIS v. LATVIA (Application no. 25082/05) JUDGMENT STRASBOURG 26 January 2017 FINAL 26/04/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dzirnis v. Latvia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President,Erik Møse,Khanlar Hajiyev,Faris Vehabović,Yonko Grozev,Carlo Ranzoni,Mārtiņš Mits, judges,and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 3 January 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "25082/05) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Mr Janis Dzirnis (“the applicant”), on 30 March 2005. 2. The applicant was represented by Mr E. Radziņš, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agents, Mrs I. Reine and later Mrs K. Līce. 3.", "The applicant mainly complained of an infringement of his right to the peaceful enjoyment of his possessions, as guaranteed under Article 1 of Protocol No. 1 to the Convention. 4. On 4 March 2010 that complaint was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1968 and lives in Riga. A. Background information and the initial civil proceedings regarding restoration of property rights 6. In 1940, in the territory of Latvia the totalitarian communist regime carried out large-scale nationalisation of privately owned property (for more information see Liepājnieks v. Latvia (dec.), no.", "37586/06, § 49, 2 November 2010 and case-law cited therein), including a property consisting of a plot of land and buildings in Jurmala which had belonged to a private person M.G. 7. After the regaining of independence, in 1991 property reform legislation came into force in Latvia and provided that former owners or their heirs could reclaim nationalised property by submitting a request to the local municipality by 1 June 1994. If such a request was not submitted within the statutory time-limit, a court had to decide on restoring property rights, provided a court claim had been submitted before 1 June 1999. 8.", "In 1995 V.P.E., acting as a heir of M.G., instituted such proceedings regarding the property in question in the Jurmala City Court. She did not attend the court hearings and in 1997 the court decided to leave her claim without examination. 9. In 1998 the Jurmala Municipality Land Commission divided the property into two plots on the grounds that no one had requested the restoration of property rights to the land previously owned by M.G. 10.", "On 19 July 2000 the Cabinet of Ministers issued Order No. 349, which retained one of the plots (hereinafter “the contested property”) as State property, transferred it to the Ministry of Finance, and obliged the Ministry to register it in the land register (see paragraph 41 below). Two days later the Order was published in the official gazette and in December that year the Ministry of Finance, represented by the State joint‑stock company the State Real Estate Agency (Valsts nekustamā īpašuma aģentūra), took it over from Jurmala Municipality. 11. On 20 December 2000 V.P.E.", "instituted proceedings in the Jurmala City Court, with Jurmala Municipality as the defendant. She requested the restoration of her property rights to the whole nationalised real estate. 12. On 2 February 2001 the Jurmala City Court ruled in favour of V.P.E. During the court hearing a representative of Jurmala Municipality supported the claim and confirmed that the property was not the subject of any dispute.", "The judgment established that V.P.E. was a legitimate heir of the former owner M.G. The Jurmala City Court further held that V.P.E. had on 10 May 1994 submitted a request to Jurmala Municipality, within the time‑limit set down in the law, and had later, on 5 July 1995, turned to the court in an attempt to have her rights to the property restored. However, she had not completed the process owing to ill health.", "Lastly, the judgment stated that the property in question was not possessed by any physical persons in good faith (labticīgas fiziskas personas) and thus there were no obstacles to returning the real estate to V.P.E. The judgment was not appealed against and became final on 29 February 2001. 13. At the time the judgment was adopted the Ministry of Finance had not been registered as the owner of the contested property (see paragraph 10 above). On the basis of the above judgment, on 14 May and 17 May 2001 V.P.E.", "was registered in the land register as the owner of both plots of land. On 21 and 22 May 2001 she sold the contested property to the applicant for 39,000 Latvian lati (LVL) (about 56,000 euros (EUR)). On 22 and 24 May 2001 the applicant was registered as the owner of the property in the land register. In 2001 and 2002 the applicant paid real estate tax on the property. B.", "Supervisory review proceedings 14. Meanwhile, on 21 March 2001 the State Real Estate Agency informed the Prosecutor General that, in its opinion, the judgment of 2 February 2001 had infringed the interests of the State and was unlawful. 15. On 1 June 2001 the Prosecutor General submitted an appeal (“protests”) to the Senate of the Supreme Court, asking for the Jurmala City Court judgment of 2 February 2001 to be quashed. The objection was based on the grounds that the Jurmala City Court had wrongly applied the land reform legislation, that it had not been competent to hear the case and that it had not taken into consideration the important evidence of Order No.", "349, by which the State had become entitled to the contested property. 16. On 1 August 2001, the Senate of the Supreme Court upheld the Prosecutor General’s objection, quashed the judgment of the Jurmala City Court and ordered a new adjudication of the case. The Senate agreed in substance with the Prosecutor General’s assessment that the Jurmala City Court had erred in choosing the applicable substantive law and that it had overstepped the limits of its competence. Most importantly, Jurmala Municipality had failed to inform the Jurmala City Court about evidence that was pertinent to the restoration of V.P.E.’s property rights.", "C. Property claim (īpašuma prasība) brought by the State against the applicant 17. On 11 January 2002 the Ministry of Finance brought a property claim with Riga Regional Court, acting as a first-instance court, against the applicant and V.P.E. as defendants and Jurmala Municipality as a third party. The claimant asked that the purchase agreement signed by the defendants be declared null and void ab initio, and that the rights of the State to the contested property be recognised. 18.", "The claim was based on the sections of the Civil Law regulating property claims. 19. The Riga Regional Court subsequently decided to join to the above civil proceedings V.P.E.’s claim against Jurmala Municipality for the restoration of her rights to the contested property. 1. First-instance court 20.", "On 16 September 2002 the Riga Regional Court examined the joined claims of V.P.E. and the Ministry of Finance. During the hearing a representative of Jurmala Municipality testified that V.P.E. had failed to request her property rights within the time-limits set by the property reform legislation. The applicant argued that he had been utterly convinced that the property had belonged to V.P.E.", "when he had purchased it and that he should enjoy protection as a bona fide acquirer of the property. 21. Relying on Order No. 349 (see paragraph 41 below), the Riga Regional Court recognised that the State had acquired the contested property in 2000. 2.", "First appellate court judgment 22. In an appeal to the Supreme Court, the applicant submitted that the first-instance court ought to have ordered V.P.E. to return him an amount equal to the value of the contested property. 23. During the hearing, a representative of Jurmala Municipality supported V.P.E.’s claim to the land, but not the buildings.", "They had allegedly already been transferred to the State. 24. The Supreme Court, in a judgment of 9 January 2003, dismissed the appeal, holding, inter alia, that it could not be considered that the applicant had acquired the contested land in good faith. In reaching that conclusion the Supreme Court found that the Jurmala City Court’s judgment had been declared unlawful and had been quashed and that therefore any deed concluded with respect to unlawfully acquired property could not be lawful. The appellate court otherwise essentially agreed with the conclusions of the first-instance court.", "25. On 2 April 2003 the Senate of the Supreme Court adopted a judgment in which it dismissed an appeal on points of law by V.P.E. and so the decision to refuse the restoration of her property rights became final. With the same judgment the Senate allowed an appeal on points of law by the applicant. The Senate agreed that the appellate court had erred in considering that the contracts concluded between the applicant and V.P.E.", "had been invalid. The Senate further indicated that the appellate court had failed to adequately substantiate its finding that the State rather than the applicant was to be declared the owner of the contested property. The quashed part of the judgment was remitted to the appellate court. 3. Second appellate court judgment 26.", "On 12 November 2003 the Supreme Court again decided to annul the purchase contracts concluded between V.P.E. and the applicant, to annul the registration of V.P.E.’s and the applicant’s property rights in the land register, and to recognise the State’s property rights. The court’s reasoning was based on section 2006 of the Civil Law, which provides that a purchase contract is to be declared null and void if, inter alia, none of the parties was aware that alienation of the property in question was not permitted. 27. On the basis of the above judgment, on 27 January 2004 a judge of the land register recorded changes with regard to the contested property.", "The Ministry of Finance was registered as its owner and from that date onwards it paid the land tax. 28. After the applicant submitted an appeal on points of law, the Senate of the Supreme Court on 3 March 2004 quashed the Supreme Court’s judgment of 12 November 2003 and remitted the case to that court. The Senate noted, inter alia, that the appellate court had ignored the applicant’s argument that it was necessary to decide on a reversal of the execution of the judgment of the Jurmala City Court. 4.", "Third appellate court judgment 29. On 1 December 2004 the Supreme Court adopted a new judgment following the remittal. It upheld the Ministry of Finance’s application to recognise the State’s ownership rights over the contested property and to delete the entry in the Jurmala land register on the applicant’s title. The Supreme Court noted that the applicant had obtained the property unlawfully (prettiesiski) because the Jurmala City Court had exceeded the limits of its competence when adopting the judgment of 2 February 2001. The Ministry of Finance, being the lawful owner of the contested property, could file a property claim against any person who had taken possession of its property.", "However, the claimant could not seek to annul a contract to which it was not a party and therefore the Ministry’s claim in relation to that was dismissed. The Supreme Court considered that in those circumstances there was no need to address the applicant’s arguments concerning the alleged need to rule on reversing the execution of the Jurmala City Court’s judgment. 5. Judgment of the court of cassation 30. In his appeal on points of law, the applicant asked, inter alia, to have the deletion of the entries in the land register revoked.", "In particular, he referred to the fact that he had relied on land register data and had been a bona fide purchaser. Accordingly, he argued that instead of depriving him of the property, the court should have ordered V.P.E. to compensate the Ministry of Finance for the value of the contested property. 31. On 23 March 2005 the Senate of the Supreme Court adopted a final judgment in which it dismissed the applicant’s appeal on points of law.", "D. Further information 32. On 25 August 2005 a land register judge rectified the data and entered the judgment of 23 March 2005 as the basis of the Ministry of Finance’s title to the contested property. 33. The land register shows that the contested property is leased under an agreement dated 24 August 2005 by a private company which provides restaurant and catering services there. On 29 September 2006 the lease rights were entered in the land register.", "The long-term lease is valid until 31 August 2030. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Civil Procedure Law 34. Under sections 483 and 484 of the Civil Procedure Law, an objection to a final court decision may be lodged within ten years of it becoming final by the chairman of the Supreme Court, the chairman of the Civil Department of the Senate of the Supreme Court or the Prosecutor General in cases of serious violations of substantive or procedural law.", "An objection may only be lodged in cases that were heard by a first-instance court and where no appeal was made because of circumstances outside the parties’ control, or in which the judgment in question infringed the interests of State or municipal bodies or of third persons who were not parties to the original case. 35. Sections 634 and 635 of the Civil Procedure Law describe the course of action to be followed if a judgment that has already been executed is later quashed and when after fresh examination the initial claim is dismissed or the proceedings are terminated. In such cases, the court reconsidering the case will, on its own initiative or at the request of the respondent, consider the question of a reversal of execution. If such a reversal is ordered, the plaintiff has to return the goods obtained in the course of execution or repay a sum equal to their value if returning the goods proves to be impossible.", "B. Civil Law provisions regulating possession and ownership rights 36. Sections 910-918 set out the types of possession and their protection. Section 910 provides that a possession can be obtained either in good faith or bad faith. A good faith possessor is one who is sure that no one is more entitled to possess the property.", "A bad faith possessor is aware that he or she does not have the right to possess the property in question, or is aware of someone else having more rights to the property. Each type of possession is protected by law (section 912) and every possession is considered as being in good faith, unless proved otherwise (section 918). 37. Section 993 of the Civil Law provides that property rights over real estate are only established after their registration in the land register. A mere transfer of property does not establish property rights.", "The same point is made by section 994, which states that only persons registered in the land register ought to be considered owners of a piece of real estate. 38. Owners may claim property from any possessor by way of a property claim (section 1041). Owners may bring such a claim against any person who has illegally retained their property with a view to recognising their property rights and regaining possession (section 1044). 39.", "Sub-chapter 5 of the Civil Law regulates the law on obligations (saistību tiesības), including the manner in which a transaction should be concluded. Under section 1477, registration in the land register is required in cases where the right to an immovable property and related rights (lietu tiesības) are acquired by way of a transaction. Those property and related rights which derive directly from the law have legal effect irrespective of registration in the land register. C. Law on the Land Register 40. Section 1 provides that real estate must be entered in the land register, along with related rights.", "The land register must be accessible to everyone and its entries are an official record. D. Orders of the Cabinet of Ministers 41. Order No. 349 of the Cabinet of Ministers, issued on 19 July 2000 (hereinafter “the Order”), provides as follows: “1. The following real estate shall be retained as State property and transferred to the possession of the Ministry of Finance ... 1.3.", "[address of the contested property]. 2. The Ministry of Finance shall in accordance with the relevant procedures register the real estate listed in point 1 of this Order in the land register.” 42. Order No. 541 of the Cabinet of Ministers, issued on 13 September 2010, launched a modernisation of the part of the Civil Law dealing with property.", "The desire to modernise the law arose because, among other issues, there was a need to provide protection for bona fide acquirers of real estate and to guarantee the reliability of the data in the land register. The necessity of such a decision was illustrated by the fact that a bona fide acquirer who relied on a valid land register entry about the owner of an immovable property at the time of purchase would be deprived of that property if it turned out that the seller had no legal title. E. Relevant Supreme Court case-law 43. The Senate of the Supreme Court stated in case no. SKC-74/2010 of 7 April 2010 that in order to ensure the stable transmission of property rights under the civil law, a court should examine on a case-by-case basis the interaction of such factors as the reliability of entries in the land register, the protection of property rights and the protection of bona fide acquirers.", "III. RESERVATION SUBMITTED BY THE GOVERNMENT 44. The instrument of ratification of the Convention and its Protocols deposited by the Government on 27 June 1997 contains the following reservation: “In accordance with Article 64 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, the Republic of Latvia declares that the provisions of Article 1 of the First Protocol shall not apply to the laws on property reform which regulate the restoration or compensation to the former owners or their legal heirs of property nationalised, confiscated, collectivised or otherwise unlawfully expropriated during the period of Soviet annexation; and privatisation of collectivised agricultural enterprises, collective fisheries and of State and local self-government owned property. The reservation concerns the Law On Land Reform in the Republic of Latvia Rural Regions (published in Zinotajs [The Bulletin] 1990, No. 49; 1991, No.", "41; 1992, No. 6/7; 1992, No. 11/12; 1993, No. 18/19; Latvijas Vestnesis [The Latvian Herald] 1994, No. 137), Law On Privatisation of Agricultural Enterprises and Collective Fisheries (Zinotajs 1991, No.", "31; 1992, No. 40/41; 1993, No. 5/6; Latvijas Vestnesis 1995, No. 90; 1996, No. 177), Law On Land Reform in the Republic of Latvia Cities (Zinotajs 1991, No.", "49/50; Latvijas Vestnesis 1994, No. 47; 1994, No. 145; 1995, No. 169; 1997, No. 126/127), Law On Land Privatisation in Rural Regions (Zinotajs 1992, No.", "32; 1993, No. 18/19; Latvijas Vestnesis 1993, No. 130; 1994, No. 148; 1995, No. 162; 1996, No.", "111; 1996, No. 225), Law On Privatisation of Property in Agroservice Enterprises (Zinotajs 1993, No. 14), Law On Privatisation Certificates (Latvijas Vestnesis 1995, No. 52), Law On the Privatisation of Objects of State and Municipal Property (Latvijas Vestnesis 1994, No. 27; 1994, No.", "77; 1996, No. 192; 1997, No. 16/17/18/19/20/21), Law On Privatisation of Co-operative Apartments (Zinotajs 1991, No. 51; Latvijas Vestnesis 1995, No. 135), Law On the Privatisation of State and Local Self-Government Apartment Houses (Latvijas Vestnesis 1995, No.", "103; 1996, No. 149; 1996, No. 223), Law On Denationalisation of Real Estate in the Republic of Latvia (1991, No. 46; Latvijas Vestnesis 1994, No. 42; 1994, No.", "90; 1995, No. 137; 1996, No. 219/220), Law On the Return of Real Estate to the Legitimate Owners (Zinotajs 1991, No. 46; Latvijas Vestnesis 1994, No. 42; 1996, No.", "97) and their wording being in force at the moment the Law On Ratification entered into force.” 45. Annex to instrument of ratification provides a brief summary of the laws concerned. The summary of the laws relevant to the present cases are as follows: “The aim of the Law On Land Reform in the Republic of Latvia Cities, during the gradual process of State property denationalisation, conversion, privatisation and the return of unlawfully expropriated land, is to restructure the legal, social and economic relations between city land owners and users in order to promote the respective city’s construction, land protection and its rational utilisation in accordance with the interests of society. The Law On Denationalisation of Real Estate defines the real estate which can be denationalised, fixes the terms and procedure of denationalisation, the form of compensation and social guarantees of present tenants. The Law On the Return of Real Estate to the Legitimate Owners guarantees that the real estate which has been expropriated by the State in the 1940s-1980s without compensation will be returned to the former owners or their legal heirs.", "Period covered: 27/06/1997 - .” THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 46. The applicant complained of an infringement of his right to the peaceful enjoyment of his possessions, a plot of land which he had purchased in good faith but of which he had been deprived by the domestic court decisions to recognise the State’s title to it, without compensating him for any loss sustained. He alleged a violation 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.” 47. The Government contested that argument. A. Admissibility 1.", "Compatibility ratione materiae 48. The Government argued that the Court was precluded from examining the case by virtue of the reservation submitted by the Latvian Government in their instrument of ratification. That reservation, which concerned an ongoing property reform which had commenced in 1990, had been declared valid by the Court (see Kozlova and Smirnova v. Latvia (dec.), no. 57381/00, ECHR 2001‑XI). In the Government’s view, the establishment and restoration of the title to the disputed property in the present case was governed by the provisions of the legislation covered by the above reservation.", "49. The applicant argued that issues related to the property reform were not part of the subject matter of the disputed civil proceedings. 50. In order for the Court to conclude that it does not have jurisdiction to decide on a complaint under Article 1 of Protocol No. 1 by virtue of the reservation, the Court has to be satisfied that the following conditions have been fulfilled: the laws on property reform mentioned in the reservation were applied in the domestic proceedings; the subject matter of the proceedings was the restoration of property rights or compensation; and former owners or their legal heirs were involved in those proceedings (see Liepājnieks v. Latvia, cited above, § 49).", "51. In the case at hand the Court finds that at least two of the preceding conditions have not been met. At the outset the Court observes that the joint civil proceedings concerned two related claims – the restoration of V.P.E’s title to the impugned property under the property reform legislation, and the property claim brought by the Ministry of Finance against the applicant and V.P.E. As far as the first condition was concerned, the interpretation and application of legislation related to property reforms in Latvia, the last decision on that issue became final on 2 April 2003 (see paragraph 25 above) and that part of the civil proceedings falls outside the scope of the present complaint. In relation to the subject matter in the remaining part of the proceedings, the Court observes that the subject matter was the recognition of the State’s title to the impugned property under the general provisions of the Civil Law (see paragraphs 17 and 18 above).", "It therefore did not concern the restoration of property rights under the legislation covered by the reservation. 52. Having regard to the above, the Court finds that the applicant’s complaint falls outside the scope of the reservation, and the Court is therefore not precluded from examining it. Consequently, the Court dismisses the objection raised by the Government in this regard. 2.", "Compatibility ratione personae 53. The Government further contended that the alleged interference with the applicant’s right to the peaceful enjoyment of his property could not be impugned to the State. According to the Government, the primary responsibility for all the losses caused to the applicant was to be borne by V.P.E., the previous owner of the property, whose title had been revoked by the domestic court’s judgment. 54. The applicant disagreed with the Government’s assertion.", "55. The Court observes that the applicant lost his title to the property after the State, represented by the Ministry of Finance, brought a property claim against the former owner and the applicant which was upheld by the domestic courts. Accordingly, the impugned proceedings did not concern the resolution of a dispute between private parties. Even if in certain situations the Court has accepted that the State has acted as a private party in a civil-law dispute (see, for example S.Ö., A.K. and Ar.K.", "v. Turkey (dec.), no. 31138/96, 13 September 1999), the Government do not advance such argument. In any case, such a conclusion could only affect the scope of the Court’s review but does not exclude the applicability of Article 1 of Protocol No. 1 (see Vukušić v. Croatia, no. 69735/11, § 39, 31 May 2016).", "56. Accordingly, this objection by the Government is also dismissed. 3. Other inadmissibility grounds (a) Six-month rule 57. The Government further contended that the running of the six-month time-limit had started on 27 January 2004 when the land register had deleted the entry on the applicant’s title to the contested property (see paragraph 27 above).", "In their view, even though the civil proceedings had still been pending, the applicant’s title to the contested property had no longer constituted “possessions” within the meaning of Article 1 of Protocol No. 1. 58. The applicant disagreed and argued that the final decision in the civil proceedings had been adopted only on 23 March 2005, when the Senate of the Supreme Court had dismissed his appeal on points of law. 59.", "The parties do not disagree that the crux of the applicant’s Convention complaint, a violation of his property rights, was examined at the domestic level in the civil proceedings initiated by the Ministry of Finance (see paragraph 17 above). Pending the outcome of those proceedings, the State was registered as owner of the contested property in the land register (see paragraph 27 above). However, the property dispute between the applicant and the State was finally settled only a year later (see paragraph 31 above). As a result, it cannot be concluded that the running of the six-month time-limit started before 23 March 2005, when the final judgment in the civil case was adopted. 60.", "Given that the applicant lodged his application on 30 March 2005, which is less than six months after the final judicial decision in his civil case, the Court dismisses the Government’s objection. (b) Non-exhaustion of domestic remedies 61. The Government raised objections on the grounds of non-exhaustion of domestic remedies, invoking several remedies which the applicant could have used. Firstly, they argued that the applicant should have appealed against the land register’s decision (see paragraph 27 above). Secondly, the Government argued that if the applicant had believed that the protest submitted by the Prosecutor General had infringed the principle of legal certainty, he should have contested the constitutionality of sections 483 and 484 of the Civil Procedure Law (see paragraph 34 above).", "Lastly, they argued that the applicant should have pursued damages proceedings. 62. The applicant disagreed with the Government’s assertions. 63. With regard to the Government’s first argument, the Court reiterates that there is no requirement to use a remedy which has essentially the same objective as one that has already been pursued (see, for example, Jasinskis v. Latvia, no.", "45744/08, § 50, 21 December 2010). The Court refers to its earlier finding that the dispute over the property in issue ended by the final judgment adopted on 23 March 2005 (see paragraph 59 above). The Government did not allege that the applicant had had no prospect of success by using that remedy. Even assuming that an appeal against the decision of the land register had the same objective as the remedy already used by the applicant, it is not argued that it served as a further recourse against the final judgment in the civil proceedings. 64.", "In relation to the Government’s second argument, the Court observes that the applicant was not a party to the property restoration proceedings which were subjected to the supervisory review (see paragraphs 11-12 above). That circumstance was likely to undermine any real possibility for the applicant to institute constitutional proceedings and rely on an alleged infringement of the principle of legal certainty. In any event, the Government do not argue that such a remedy could potentially have led to the reinstatement of the applicant’s title to the contested property. 65. In response to the Government’s third argument that the applicant failed to institute compensation proceedings, the Court reiterates that the existence of a possibility to seek damages cannot deprive the applicant of victim status for the purposes of his complaint under Article 1 of Protocol No.", "1 to the Convention; neither may it be regarded as necessary for compliance with the rule of exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention. Any damages received by the applicant may only be taken into account for the purposes of assessing the complaint of Article 1 of Protocol No. 1 on the merits (see Gladysheva v. Russia, no. 7097/10, § 62, 6 December 2011). 66.", "Observing that the above principle is applicable to the circumstances of the present case, the Court dismisses the Government’s objection. 4. Conclusion 67. The Court considers that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. Whether there was an interference with the applicant’s possessions (a) Possessions 68. The applicant emphasised that he had bought the contested land in good faith and had been registered as its owner in the land register. 69.", "The Government argued that the applicant could not claim to have possessed the impugned land within the meaning of Article 1 of Protocol No. 1 because his title had been acquired unlawfully (prettiesiski). It had been the State which had, by virtue of Order No. 349, acquired title to the contested property. Such property rights, obtained by law, entered into force whether or not they had been registered in the land register (see paragraph 39 above).", "In their view, the only protected interest the applicant had was an entitlement to compensation, which he had not claimed. In the alternative, the Government contended that any effective enjoyment of the applicant’s possession of the land had ceased to exist on the date the State had been registered as its owner (see paragraph 27 above). 70. The Court considers that the applicant owned a possession for the purposes of Article 1 of Protocol No. 1.", "The applicant’s title to the impugned property was registered in an official register, and he was considered as its owner. He also paid taxes on the property (see paragraph 13 above). He was also considered as a de facto possessor by the State when it brought a property claim against him, and under the domestic law any type of possession was protected (see paragraph 36 above). 71. Accordingly, for the purposes of Article 1 of Protocol No.", "1 to the Convention, the applicant held a “possession” in the form of a plot of land. (b) Interference 72. The applicant submitted that his right to the peaceful enjoyment of his possessions had been infringed by the domestic court’s decision, which had not protected a bona fide buyer who had relied on the land register. 73. The Government contended that any alleged interference with the applicant’s right to the peaceful enjoyment of his possessions had been the result of unlawful or irresponsible activities by private parties.", "It therefore could not engage the State’s responsibility, apart from the positive obligation to protect the applicant’s property interests by ensuring adequate remedies in its domestic legal system. They strongly opposed any recognition that the applicant had been deprived of his property and believed that any interference should be examined under the general rule of Article 1 of Protocol No. 1. 74. On the question of interference, the Court considers that the legal and factual complexity of the situation prevents it from being placed in a precise category.", "On the one hand the applicant was regarded as the lawful owner of the contested property (see paragraph 13 above). However, the State, represented by the Ministry of Finance, was also entitled to the same property (see paragraphs 10 and 69 above). The Court considers that the interference complained of should be examined in the light of the general rule contained in Article 1 of Protocol No. 1 (for a similar approach see the case of Broniowski v. Poland [GC], no. 31443/96, § 136, ECHR 2004‑V).", "2. Whether the interference complied with the conditions set out in Article 1 of Protocol No. 1 75. In order to comply with Article 1 of Protocol No. 1 to the Convention, it must be shown that the measure constituting the interference was lawful, that it was “in accordance with the general interest”, and that there existed a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Vistiņš and Perepjolkins v. Latvia [GC], no.", "71243/01, §§ 106 and 108, 25 October 2012). (a) Lawfulness 76. The parties agree in substance that the interference was prescribed by law. The Court observes that while the domestic law was sufficiently detailed and clear on the question of establishing ownership and on invalidating it, the authorities have at the same time acknowledged that there are some issues with regard to providing adequate protection for bona fide acquirers. In particular, a bona fide acquirer who relied on a valid land register entry about the owner of an immovable property at the time of purchase would be deprived of that property if it turned out that the seller had no legal title (see paragraph 42 above).", "The Court considers that prompt and adequate compensation, or another type of appropriate reparation, becomes especially important in such circumstances (see paragraph 80 below). Given that the Government has invoked a list of possible remedies in that regard, and reiterating that it is for the domestic courts to interpret domestic legislation and to apply it, the Court will examine the adequacy of the remedies in the circumstances of the present case in the proportionality analysis below. (b) Legitimate aim 77. The Government argued that the compulsory transfer of a property title to a legitimate owner was primarily intended to ensure compliance with domestic law and therefore served a public interest. 78.", "To the extent that the Government considers that the interference was necessary in order to undo a miscarriage of justice, the Court has held that, as a general principle, public authorities should not be prevented from correcting their mistakes, even those resulting from their own negligence; holding otherwise would be contrary to the doctrine of unjust enrichment. Nonetheless, the above general principle cannot prevail in a situation where the individual concerned is required to bear an excessive burden (see, mutatis mutandis, Moskal v. Poland, no. 10373/05, § 73, 15 September 2009). The Court accepts the existence of a legitimate aim and proceeds by examining the latter element. (c) Proportionality 79.", "The Court reiterates that in the context of the general rule enunciated in the first sentence of the first paragraph of Article 1 of Protocol No. 1, the proportionality test requires an overall examination of the various interests at stake, which may call for an analysis of such elements as the terms of compensation and the conduct of the parties to the dispute, including the means employed by the State and their implementation (see, mutatis mutandis, Beyeler v. Italy [GC], no. 33202/96, § 114, ECHR 2000‑I). 80. In cases where the correction of errors caused by State authorities results in an interference with the right to the peaceful enjoyment of the property of a bona fide holder, the principles of good governance impose on the authorities an obligation not only to act promptly in correcting their mistake (see Moskal, cited above, § 73), but may also necessitate the payment of adequate compensation or another type of appropriate reparation to the former bona fide holder (see Maksymenko and Gerasymenko v. Ukraine, no.", "49317/07, § 64, 16 May 2013 with case-law cited therein) so that the risk of any mistake made by the State authority must be borne by the State and the errors are not remedied at the expense of the individual concerned (see Gladysheva, cited above, § 80, and the case-law cited therein). (i) The conduct of the applicant 81. The applicant stressed that both himself as a buyer and V.P.E. as a former owner had acted in good faith and therefore he expected to enjoy the protection of the domestic courts. The Government did not argue that the applicant had acted in bad faith.", "82. The Court reiterates that it is for the domestic authorities to establish that an applicant has not acted in good faith (see Albergas and Arlauskas v. Lithuania, no. 17978/05, § 67, 27 May 2014). It observes that the applicant bought the property from an owner whose title had been registered in the land register on the basis of a final court judgment (see paragraphs 12 and 13 above). Even after the quashing of that judgment the domestic courts recognised that V.P.E.", "was an heir of the former owner, and that the only obstacle to returning the contested property to V.P.E. was the fact that the State had decided to keep it. In addition, the Court notes that the domestic authorities did not establish a lack of good faith on the part of either V.P.E. or the applicant as the higher court later overruled the judgment in which that aspect had initially been brought up by the domestic court (see paragraphs 24 and 25 above). (ii) The conduct of the authorities 83.", "In relation to the conduct of the authorities, the case-file shows that there had been series of flaws attributable to various authorities. Firstly, the Court takes note of the inconsistency in the way Jurmala Municipality dealt with the property at issue, which is also indirectly confirmed by the Government (see paragraph 93 below). After the municipality had transferred the property to the State, it did not object to the same property being returned to another person (see paragraph 12 above). In addition, it was also recognised that the municipality did not furnish pertinent evidence, which contributed to the adoption of an unlawful court decision (see paragraph 16 above). 84.", "Secondly, the land register failed to ensure that the entries it made were precise, reliable and trustworthy. On that point, the Government contended that under domestic law the property rights established by the Order No. 349 had come into force without entry in the land register (see paragraph 39 above), and that the applicant should have been aware of that through the publication of the Order in the official gazette (see paragraph 10 above). 85. The Court takes note of the role of land registers (see paragraph 40 above), and reiterates that the authorities have to put in place an effective exchange of information in order to ensure the reliability of public data.", "A failure to do so weighs in favour of individuals who became victims of such an omission, after acting in good faith (see, mutatis mutandis, Lelas v. Croatia, no. 55555/08, § 74, 20 May 2010). 86. As regards the present case, the general obligation established under the civil law provided that a property title had to be entered in the land register (see paragraph 37 above) and it is not argued that that provision was not applicable to State property. Moreover, in relation to the contested property that obligation was set down by the Cabinet of Ministers in the Order No.", "349 (see paragraph 41 above). However, the Order had not been communicated to the land register at the time V.P.E., and subsequently the applicant, registered their title. The fact that judges at the land register were unaware that the contested land had been transferred to the State confirms the Court’s previous findings about the limited effectiveness of using the official gazette as a means of communication (see, in the context of a fair trial, the case of Miholapa v. Latvia, no. 61655/00, § 29, 31 May 2007). 87.", "The Government further argued that the State had an interest in retaining its title to the contested property owing to its valuable location and historical importance. The Court in this case does not discern any of the competing private interests which usually arise in the course of complicated property reforms (see Gashi v. Croatia, no. 32457/05, § 34, 13 December 2007, and contrast to, for example, Velikovi and Others, cited above) or any other important public interest (see, for example, Turgut and Others v. Turkey, no. 1411/03, § 90, 8 July 2008). Between nationalisation in 1940 and its return to V.P.E., the property did not belong to a private party.", "Moreover, neither the Order No. 349 nor any other documents show that the property was needed for carrying out state functions. As the case‑file shows, the property has been leased to a private company for commercial activities (see paragraph 33 above). 88. Lastly, in reply to the Government’s argument that the applicant could have contested before the Constitutional Court the provision which regulated the supervisory review mechanism (see paragraph 34 above), the Court, given its earlier findings (see paragraph 64 above), cannot see how in the given circumstances a fair balance could be achieved by triggering that mechanism.", "(iii) Compensation 89. The applicant submitted that at the material time the domestic courts did not provide any protection to buyers who had genuinely relied on land register data. In that connection, he pointed to positive developments in the recent case-law of the Supreme Court. 90. The Government stated that under domestic case-law at the material time, once a court had established that an owner had had no right to acquire a certain property, the title of subsequent acquirers was considered void ab initio, regardless of any entries in the land register.", "Nevertheless, they contended that the State had put in place an effective mechanism allowing the applicant to claim damages in respect of any loss. 91. At the outset, the Court refers to its earlier observations with regard to the protection of bona fide acquirers under Latvian law (see paragraph 76 above). In the particular circumstances, where the applicant as a bona fide acquirer had lost his possession as a result of a combination of flaws attributable to various authorities, such as the Jurmala Municipality, the Ministry of Finance and the land register (see paragraphs 83-86 above), which all contributed to a miscarriage of justice, adequate protection should involve a compensatory mechanism which does not place a disproportionate burden on such a bona fide acquirer. The Court will proceed further by examining in turn whether the possible remedies proposed by the Government were adequate in the present case.", "92. Firstly, the Government submitted that the applicant could have sued V.P.E., the previous owner, for damages. The Court has held that in the context of correcting errors attributable to State authorities, an obligation for a victim to sue another bona fide individual might impose a disproportionate burden (see Gladysheva, cited above, § 81). In this case it is not contested that the applicant and V.P.E. were bona fide holders of the contested property.", "The Court further refers to the applicant’s persistent but unsuccessful attempt to obtain the recovery of the sum paid to V.P.E. within the property proceedings (see paragraphs 22 and 30 above) and considers that an obligation for him to initiate a further set of proceedings against a bona fide private person would have upset the balance which had to be struck between the general interest and the applicant’s interest in the peaceful enjoyment of his possessions (ibid.). 93. Secondly, the Government argued that the applicant could have sued the Jurmala Municipality for the damage caused by the conclusion of an unlawful contract of sale. The Court has stated that when a public entity is liable for damages, the State’s positive obligation to facilitate identification of the correct defendant is all the more important (see Plechanow v. Poland, no.", "22279/04, § 109, 7 July 2009). It is true that Jurmala Municipality contributed to the interference with the applicant’s peaceful enjoyment of his possessions (see paragraph 83 above). However, as stated above, it was not the only authority involved and therefore could not be held solely responsible for the interference (see paragraph 42 above). 94. To the extent that the applicant could sue the Ministry of Finance for the reimbursement of costs related to the management of the real estate, the Court notes that any such compensation would be relevant for the evaluation of his losses under Article 41 of the Convention.", "95. The Court observes that the Government has not indicated any other compensatory mechanism which the applicant could have used within the framework of the ongoing civil proceedings. In the light of the above, the Court concludes that the remedies invoked by the Government in the particular circumstances of the case could not have provided compensation without placing a disproportionate burden on the applicant. It finds therefore that the interference with the applicant’s rights was disproportionate to the aim pursued. 96.", "It follows that there has been a violation of Article 1 of Protocol No. 1 to the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 97. The applicant made other complaints under Article 6 of the Convention.", "Those complaints were not communicated to the Government. 98. 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 remaining complaints do not disclose any appearance of a violation of Article 6 of the Convention. It follows that these complaints are inadmissible under Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 99. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. Pecuniary damage 100. The applicant sought restitution in full of the contested property.", "Should restitution not be granted, he claimed 632,523.6 euros (EUR) which corresponded to the current value of the property. He relied on a report drawn up by a certified real estate expert who estimated the market value of the contested property at 900,000 Latvian lati (LVL), or about EUR 1,285,700. 101. The Government considered that sum to be exorbitant and unfounded and argued that the applicant could have brought a claim for the recovery of the money in damages. 102.", "In the alternative, the Government contended that the applicant could claim only what he had paid under the purchase contract, that is LVL 39,000 (EUR 55,492), and the property tax payments of LVL 1,821.37 (EUR 2,591.58). 103. An award by the Court of any other sum should not, in the Government’s view, exceed a maximum of LVL 62,046 (EUR 88,283.50), which corresponded to the value of the contested property on the date ownership had been lost. According to the Government, which relied on the case of Scordino v. Italy (no. 1) ([GC], no.", "36813/97, § 258, ECHR 2006‑V), calculating compensation in that way would eliminate all the consequences of the interference in question. 104. In reply to the Government’s argument that the applicant could recover damages from V.P.E., the Court notes that in any future claims before the domestic courts those courts will be entitled to take into account the award made by the Court in this judgment (see for a similar approach Gladysheva, cited above, § 104). The Court will therefore proceed to examine the issue of just satisfaction. 105.", "Having regard to the circumstances of the case and given that there is no information on the “economically based average cadastral value” of the contested property (see to this effect the judgment in Vistiņš and Perepjolkins v. Latvia (just satisfaction) [GC], no. 71243/01, §§ 28 and 38, ECHR 2014), the Court finds it reasonable to award the applicant LVL 62,046 (EUR 88,283.50), which, according to the Government, corresponded to the value of the contested property on the date ownership was lost. 2. Non-pecuniary damage 106. The applicant also claimed EUR 20,000 in respect of non-pecuniary damage.", "107. The Government argued that the finding of a violation alone would constitute adequate and sufficient compensation. In the alternative, any compensation should not exceed the sums awarded by the Court in comparable cases, where the amount of non-pecuniary damages had been from EUR 3,000 (see Maria Violeta Lăzărescu v. Romania, no. 10636/06, § 35, 23 February 201037) to USD 15,000 (see Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 27, ECHR 2001‑I).", "108. The Court acknowledges that the applicant sustained non-pecuniary damage on account of the violation found. Ruling on an equitable basis, as required by Article 41 of the Convention, it decides to award EUR 5,000 under this head. B. 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 complaints concerning the alleged violation of Article 1 of Protocol No. 1 to the Convention admissible, and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 1 of Protocol No.", "1 to the Convention; 3. Holds (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 88,283.50 (eighty eight thousand two hundred and eighty three euros and fifty cents), plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 26 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoAngelika NußbergerDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF Z.G. v. HUNGARY (Application no. 65858/13) JUDGMENT STRASBOURG 24 July 2018 This judgment is final but it may be subject to editorial revision. In the case of Z.G. v. Hungary, 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 Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 3 July 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 65858/13) 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 national, Ms Z.G. (“the applicant”), on 10 October 2013. The President of the Section acceded to the applicant’s request not to have her name disclosed (Rule 47 § 4 of the Rules of Court).", "2. The applicant was represented by Mr D.A. Karsai a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice. 3.", "On 7 December 2016 the applicant’s complaint under Article 1 of Protocol No. 1 to the Convention concerning the imposition of 98% tax on part of her severance payment 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 1979 and lives in Budapest. 5.", "The applicant was employed at a State-owned company from 1 January 2011 until the termination of her employment on 30 April 2013. A certain part of her severance payment was taxed at 98% rate in the amount of HUF 1,685,600 (approximately EUR 5,600). THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 6.", "The applicant complained that the imposition of 98% tax on part of her remuneration due on termination of her employment had amounted to a deprivation of property in breach of Article 1 of Protocol No. 1 to the Convention. 7. 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. 8. The Court observes that virtually identical circumstances gave rise to a violation of Article 1 of Protocol No. 1 in the case of R.Sz. v. Hungary (no.", "41838/11, §§ 54-62, 2 July 2013), and is satisfied that there is no reason to hold otherwise in the present application. It follows that there has been a violation of Article 1 of Protocol No. 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 9.", "The applicant claimed HUF 1,685,600 (approximately EUR 5,600) in respect of pecuniary and non-pecuniary damage combined. The Government argued that the applicant’s claims were excessive. 10. Having regard to the fact that, in the absence of the 98% tax rate, the applicant’s severance would have been in all likelihood subject to the general personal income taxation, the Court awards the applicant EUR 4,300 in respect of pecuniary and non-pecuniary damage combined. 11.", "The applicant claimed the reimbursement of costs and expenses incurred before the Court to be awarded in the amount of EUR 1,500. The Government argued that the applicant’s cost claim was excessive. 12. Having regard to all materials in the case file, the Court finds it reasonable to award the applicant EUR 500 for the costs and expenses pertaining to the proceedings before it. 13.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Hungarian forints at the rate applicable at the date of settlement: (i) EUR 4,300 (four thousand three hundred euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage; and (ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 24 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea TamiettiVincent A. De GaetanoDeputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF ERTUŞ v. TURKEY (Application no. 37871/08) JUDGMENT STRASBOURG 5 November 2013 FINAL 05/02/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ertuş v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Danutė Jočienė,Dragoljub Popović,András Sajó,Işıl Karakaş,Paulo Pinto de Albuquerque,Helen Keller, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 8 October 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "37871/08) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Turkish nationals, Mr Hüseyin Ertuş, Mrs Aysel Ertuş and Mr Cüneyt Ertuş (“the applicant”), on 30 July 2008. The first two applicants are the parents of the third applicant. 2. The applicants were represented by Mr F. Timur, a lawyer practising in Hakkari. The Turkish Government (“the Government”) were represented by their Agent.", "3. On 22 June 2010 the Court declared the application inadmissible in so far as it concerned the first two applicants. It further decided to communicate the third applicant’s complaints that he had been ill-treated during his arrest and that his allegations of ill-treatment had not been examined thoroughly by the domestic authorities; and declared his remaining complaints inadmissible. The Court 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 1993 and lives in Hakkari. 5. On 22 March 2008 the applicant, who was fifteen years old at the time, was arrested for participating in an unlawful demonstration in support of an illegal organisation, the PKK (the Workers’ Party of Kurdistan). According to the arrest report signed by the applicant, a group of three hundred people gathered by the Atatürk statue in Hakkari city centre shouting slogans in support of the illegal organisation.", "They then attacked the statue with stones and sticks. The police intervened and started chasing the demonstrators, who set up a barricade in the street and burned car tyres. The arrest report stated that the applicant had been among the people arrested during the incident. 6. In video footage submitted by the applicant, he is seen in the street crying, and a plain-clothes police officer is seen holding him by the right arm.", "The officer is then seen twisting his arm behind his back, which forces him to bend forward. While this is happening another police officer calls the applicant “dishonourable” (şerefsiz). There appear to be no other demonstrators present and besides the police officer holding the applicant, there appear to be at least four other officers next to him. 7. On the same day the applicant was examined by a doctor at the Hakkari Forensic Medicine Institute, who noted no signs of ill-treatment on his body.", "8. On 23 March 2008 the applicant underwent another medical examination. The report drawn up in respect of the applicant again indicated no signs of ill-treatment on his body. 9. The applicant was subsequently brought before the Hakkari public prosecutor and the Hakkari Magistrates’ Court respectively.", "In the presence of his lawyer, he denied the accusations against him, specifically stating that he had neither participated in the unlawful demonstration nor shown resistance to the police officers, and maintained that he had been walking through the city centre when he was apprehended. Following his interrogation, the investigating judge ordered his immediate release. 10. The public prosecutor filed an objection against the decision of the investigating judge. On 25 March 2008 the Hakkari Criminal Court found in line with the public prosecutor and ordered the applicant’s pre-trial detention.", "He was rearrested and detained the same day. Before being taken to prison, the applicant was examined by a doctor at the Hakkari State Hospital, who noted no signs of ill-treatment on his body. 11. On 28 March 2008 the applicant’s parents filed a criminal complaint against the police officers involved in his arrest, alleging that as a result of the excessive force used during his arrest, their son’s arm had been broken. On the same day the applicant was taken to the Hakkari State Hospital for a medical examination.", "The doctors ordered X-rays of his head, shoulders, arms, wrists and hands. According to the medical reports, the applicant had no fractures, but had an old scar measuring 2 x 1 cm on his vertex (the top of his head) as a result of an earlier fall, and a scabbed wound of 2 x 1 cm on the second phalanx (finger bone) of his right hand index finger. 12. On 31 March 2008 the applicant was examined again, this time by the prison doctor, who reported a minimal oedema (slight swelling) on his right elbow resulting from a soft issue injury and noted the presence of healing wounds on the distal phalanges of his right hand ring and little fingers. 13.", "The Hakkari public prosecutor initiated an investigation into the applicant’s parents’ allegations of ill-treatment. On 17 April 2008 he decided not to bring criminal proceedings against the police officers who had arrested the applicant. In his decision he explained that he had examined the video-recording of the applicant’s arrest and concluded that the police officers had not used excessive force. He further observed that the medical reports drawn up on 22 and 23 March 2008, the first and last days of his time in police custody, and the subsequent report dated 25 March 2008, issued the first day of his pre-trial detention, revealed no signs of ill‑treatment on his body. Furthermore, although the applicant alleged that his arm had been broken, the X-rays did not show any fracture.", "The Hakkari public prosecutor also took into consideration that the applicant, who was represented by a lawyer during his interrogation on 23 March 2008, had not mentioned that he had been ill-treated or that his arm had been injured. Furthermore, he had been released that day and until his subsequent pre-trial detention on 25 March 2008 his parents had not complained of any ill‑treatment or noticed that the arm of their son had been fractured. The public prosecutor also referred to photographs and news articles published by several media organisations regarding the applicant’s allegations of ill‑treatment. He noted that upon the instructions of the terrorist organisation, some of the media organisations had started a campaign against the security forces, alleging that a young person’s arm had been fractured by the police. In this connection, the names and even the addresses of the officers who had arrested the applicant had been published and the incident was being used to create an uprising against the security forces.", "Furthermore, it also transpired that a bank account had been opened in the name of the applicant’s family to which charitable donations had been made. The prosecutor’s decision indicated that investigations into these events were pending. Lastly, he concluded that the applicant’s allegations had been made to debase the police officers, and that there was no evidence in support of his claims. 14. On 11 April 2008 the applicant was released.", "15. Between 21 and 30 April 2008 the applicant underwent a number of medical examinations at the İzmir Branch of the Human Rights Foundation. The applicant told the doctors that his police custody had lasted for three days and during this time he had been subjected to ill-treatment. A medical report issued on 8 May 2008 mainly focused on his allegations of ill‑treatment during police custody and indicated that he had an oedema in his left ear and nose as well as effusion (swelling) on the right elbow resulting from trauma. He was also found to be suffering from severe depression and post-traumatic stress disorder.", "The doctors concluded that his physical and psychological condition was directly linked to his treatment during arrest and detention. 16. On 9 May 2008 the applicant lodged an objection with the Van Assize Court challenging the decision of the Hakkari public prosecutor dated 17 April 2008. He alleged that he had been subjected to ill-treatment during his arrest and submitted the medical report of 8 May 2008 in support of his allegations. 17.", "On 27 May 2008 the Van Assize Court dismissed the objection. 18. On 30 May 2008 the public prosecutor initiated criminal proceedings against the applicant in the Van Assize Court under Law no. 2911 (Assemblies and Marches Act) for taking part in an illegal demonstration. On 9 June 2010 he was acquitted of all charges on account of a lack of evidence.", "19. In the meantime, in May 2009 the applicant lodged a claim with the Van Administrative Court for compensation in respect of the pecuniary and non-pecuniary damage he had suffered on account of his ill-treatment on 22 March 2008. On 3 May 2010 that claim was dismissed. THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 20.", "The applicant alleged that he had been ill-treated during his arrest. He also complained that his allegations of ill-treatment had not been examined thoroughly by the domestic authorities. In this connection, the applicant relied on Articles 3 and 13 of the Convention. 21. The Government contested the allegations.", "22. The Court considers that they should be examined from the standpoint of Article 3 alone, which reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 23. The Government asked the Court to dismiss this complaint for failure to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention. In this regard, they stated that the applicant had not waited for the outcome of proceedings before the Van Administrative Court before lodging his application with the Court. In the alternative, they asked the Court to dismiss the application for non‑compliance with the six-month time-limit, as in their view the applicant should have lodged his application with the Court within six months of his arrest.", "24. The Court reiterates that according to its established case-law, compensation proceedings initiated before the administrative courts cannot be regarded as sufficient for a Contracting State’s obligations under Article 3 (see Atalay v. Turkey, no. 1249/03, § 29, 18 September 2008). It follows that in the present case the final domestic court decision regarding the applicant’s complaints was the decision of the Van Assize Court dated 27 May 2008. Since the application was lodged with the Court on 30 July 2008, both the Government’s preliminary objections should be dismissed.", "25. The Court notes that the remainder of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The substantive aspect of Article 3 26. As the Court has pointed out on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s conduct (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).", "In this connection, it also notes that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. 27. The Court further reiterates that 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, cited above, § 121). The Court further emphasises that, in respect of a person who is placed under the control of the authorities, any recourse to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336). Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (ibid., § 34, and see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).", "28. In the present case, the Court observes that the applicant alleged before the domestic courts that as a result of the excessive force used during his arrest, he had suffered an injury to his right arm. Since his claims regarding ill-treatment during police custody and subsequent pre-trial detention were never raised during the domestic proceedings, the Court will limit its examination to determining whether the force used during his arrest was strictly necessary and proportionate. 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 absolutely necessary and must not be excessive (see Rehbock v. Slovenia, no.", "29462/95, §§ 66-78, ECHR 2000‑XII). 29. The Court notes that although the applicant alleged that he had been injured as a result of the force used during his arrest, several elements cast doubt on the veracity of his claims. In this connection, the Court observes that the medical reports dated 22 and 23 March 2008, taken on the first and last days of his time in police custody, did not reveal any signs of ill‑treatment on his body. The Court further notes that the applicant was released on 23 March 2008, and until his subsequent detention on 25 March stayed with his parents.", "During this time he did not seek medical attention or obtain a medical report regarding the injury to his arm. Furthermore, he underwent another medical examination on 25 March when he was admitted to prison, which again revealed no signs of injury on his body. In this connection, the Court notes that the applicant’s parents filed a criminal complaint with the public prosecutor on 28 March, six days after his arrest on 22 March, and alleged that the applicant’s arm had been broken by the police officers who had arrested him. He was then transferred to a hospital on the order of the prosecutor and the X-rays revealed no fracture to his arm. The only injuries found on the applicant’s body were an old scar, measuring 2 x 1 cm on his vertex as a result of an earlier fall, and a scabbed wound of 2 x 1 cm on the second phalanx of his right hand index finger.", "30. The Court further observes from the case file that at no stage of the domestic proceedings or during the Strasbourg proceedings did the applicant challenge the veracity of the initial reports or allege that the doctors who issued them had failed to examine his injuries (see Coşar v. Turkey, no. 22568/05, § 33, 26 March 2013). While in the video footage the applicant is seen crying in the street and a plain-clothes police officer is seen twisting his arm behind his back, the Court considers that based on the medical reports, which revealed no signs of injury on the applicant’s body on the first and last days of his time in police custody, the force used against the applicant did not attain the minimum level of severity to fall within the meaning of Article 3 of the Convention. 31.", "It follows that there has been no violation of Article 3 of the Convention under its substantive limb. 2. The procedural aspect of Article 3 32. The Court reiterates that Article 3 of the Convention requires the authorities to carry out an effective official investigation into allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion” (see, in particular, Assenov and Others v. Bulgaria, 28 October 1998, §§ 101-102, Reports of Judgments and Decisions 1998‑VIII). 33.", "In the present case, the Court has not established, on account of a lack of evidence, that the applicant was ill-treated as alleged. Nevertheless, as it has held in previous cases, that does not preclude his complaint in relation to Article 3 from being “arguable” for the purposes of the State’s positive obligation to investigate (see, Böke and Kandemir v. Turkey, nos. 71912/01, 26968/02 and 36397/03, § 54, 10 March 2009). 34. According to the information in the case file, following the complaint lodged on 28 March 2008 the Hakkari public prosecutor initiated an investigation.", "The Court notes however that none of the police officers involved in the applicant’s arrest were interviewed as suspects. Furthermore, the applicant was never questioned by the prosecutor or given an opportunity to confront the accused officers. In his lengthy decision not to prosecute, the prosecutor merely acted on the assumption that the purpose of the applicant’s allegations of ill-treatment was to debase the police officers. 35. In view of the foregoing, the Court considers that the applicant’s allegations of ill-treatment were not investigated diligently and the investigation cannot be considered to be effective.", "It therefore concludes that the authorities failed to conduct an effective investigation into the applicant’s allegations of ill-treatment. 36. There has accordingly been a violation of the procedural aspect of Article 3 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION A.", "Damage 37. The applicant claimed 100,000 euros (EUR) in respect of pecuniary damage and EUR 200,000 in respect of non-pecuniary damage. 38. The Government contested the claims. 39.", "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 applicant must have suffered pain and distress which cannot be compensated solely by the finding of a violation. Ruling on an equitable basis, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage. B. Costs and expenses 40.", "The applicant’s representative further claimed EUR 10,850 for his fee for thirty hours of legal work, in respect of which he submitted a time sheet. He also claimed EUR 567 for costs and expenses but did not submit any invoices or other documents in support of his claim. 41. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. As regards the lawyer’s fee, the Court reiterates that time sheets have been accepted in the past as supporting documents in a number of cases (see Çoşelav v. Turkey, no.", "1413/07, § 89, 9 October 2012, and Beker v. Turkey, no. 27866/03, § 68, 24 March 2009 with further references). It accordingly considers it reasonable to award the sum of EUR 2,000 for the lawyer’s fee. As regards the remainder of the applicant’s claim for costs and expenses, the Court notes that he has not substantiated it. Accordingly, it makes no award under this head.", "C. Default interest 42. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Declares unanimously the remainder of the application admissible; 2. Holds by four votes to three that there has been no violation of Article 3 of the Convention under its substantive aspect; 3.", "Holds unanimously that there has been a violation of Article 3 of the Convention under its procedural aspect; 4. Holds unanimously (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 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 unanimously the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 5 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithGuido RaimondiRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges D. Popović, I. Karakaş and P. Pinto de Albuquerque is annexed to this judgment.", "G.R.A.S.H.N. JOINT PARTLY DISSENTING OPINION OF JUDGES POPOVIĆ, KARAKAŞ AND PINTO DE ALBUQUERQUE We do not share the view of the majority that there has been no violation of Article 3 of the Convention under its substantive limb. We adduce five reasons to conclude that there was a violation of the said Article. Firstly, the applicant was a minor at the time of the events. Secondly, it is undisputed between the parties that he showed no resistance to the police officers when he was arrested.", "In this connection the video footage submitted by the parties, which the Court had the benefit of watching, shows that the applicant was scared and crying in the street and that a police officer was holding him by the right arm. The officer then forcefully twisted his arm behind his back, which forced the applicant to bend forward. It is clear that this act caused a lot of pain to the minor, who was not showing any resistance to the police. Moreover, on 31 March 2008 the prison doctor reported a minimal oedema on the applicant’s right elbow resulting from a soft tissue injury, and noted the presence of healing wounds on the distal phalanges of his right hand ring and little fingers. The findings of this medical report confirm the force used against the applicant during his arrest.", "Thirdly, the applicant was alone when he was arrested. In addition, he was much smaller than the police officer who was holding him. Besides the police officer twisting the applicant’s right arm, there appeared to be at least four other officers next to him. Hence, the applicant did not represent at any stage a danger to the police officers, who had a clear physical advantage over him. Fourthly, while this was happening, another police officer called the applicant “dishonourable”.", "This verbal abuse of the applicant was degrading. Fifthly, although criminal proceedings were subsequently initiated against the applicant for taking part in an illegal demonstration, he was acquitted of all charges on account of a lack of evidence. As a result, there is no information in the case file to indicate that he had participated in the demonstration or had been among the demonstrators who confronted the police. These facts must be interpreted in the light of the international standards. The international standards for the treatment of juvenile offenders or suspects are set by the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”), 1985, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (“The Havana Rules”), 1990, the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), 1990, the Guidelines for Action on Children in the Criminal Justice System recommended by Economic and Social Council resolution 1997/30 of 21 July 1997, and, at the European level, by the Committee of Ministers of the Council of Europe Guidelines on child-friendly justice, 2011.", "All these texts call for a child-friendly and sensitive approach to offenders or suspects who are minors and, particularly, for careful treatment of the special needs and particular vulnerability of minors by judges, prosecutors, police and other law-enforcement agents. For example, paragraph 27 of the European Guidelines on child-friendly justice states: “Police should respect the personal rights and dignity of all children and have regard to their vulnerability, that is, take account of their age and maturity and any special needs of those who may be under a physical or mental disability or have communication difficulties.” In the light of these standards we conclude that the force used by the police against the applicant, who was a minor, had not participated in any unlawful act, did not resist arrest and did not represent any danger to the police officers, was totally unjustified. The use of force during his arrest was not necessary. Thus, we are of the view that the injuries sustained by the applicant were the result of treatment for which the State bears responsibility. Having regard to the nature and degree of the applicant’s injuries resulting from the excessive use of force, we consider that the treatment in question reached a sufficient level of severity to be characterised as degrading treatment.", "Accordingly, we conclude that there has been a violation of Article 3 of the Convention under its substantive limb also." ]

[ "FOURTH SECTION CASE OF TWOMEY v. THE UNITED KINGDOM (Application no. 28095/02) JUDGMENT STRASBOURG 3 February 2009 FINAL 03/05/2009 This judgment may be subject to editorial revision. In the case of Twomey 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 13 January 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 28095/02) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Dennis Twomey (“the applicant”), on 1 March 2001.", "2. The applicant was represented by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office, London. 3. The applicant complained under Articles 8 and 14 of the Convention and Article 1 of Protocol No.", "1 that, because he was a man, he was denied social security benefits equivalent to those received by widows. 4. On 4 November 2003 the Court decided to communicate the complaints concerning widows’ benefits relating to the period after the date on which the applicant lodged his relevant claim and declared the remainder of the application inadmissible. Subsequently, 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 1948 and lives in Wiltshire. 6. His wife died on 10 December 1999 leaving dependant children. His relevant claim for widows’ benefits was made on 2 October 2000 and was rejected on 29 September 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman.", "The applicant applied for reconsideration and on 10 October 2000 he was informed that the decision remained unchanged. On 16 October 2000 he appealed unsuccessfully. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law. II. RELEVANT DOMESTIC LAW AND PRACTICE 7.", "The relevant domestic law and practice are described in the Court’s judgment in the case of Willis v. the United Kingdom, no. 36042/97, §§ 14‑26, ECHR 2002-IV. THE LAW I.ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1 AND/OR ARTICLE 8 OF THE CONVENTION 8. The applicant complained that the United Kingdom authorities’ refusal to pay him the social security benefit to which he would have been entitled had he been a woman in a similar position, namely Widowed Mother’s Allowance (“WMA”) and Widow’s Pension (“WP”), constituted discrimination against him on grounds of sex contrary to Article 14 of the Convention taken in conjunction with Article 1 of Protocol No.", "1 and/or Article 8 of the Convention. Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 1 of Protocol No. 1 provides: “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.", "2. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Article 8 provides (as relevant): “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 ... the economic well-being of the country...” A. The Government’s preliminary objection 9.", "The Government submitted that since the applicant’s first letter to the Court had not been in accordance with Rule 47 § 1 of the Rules of Court, the application had been lodged more than six months from the date on which the final decision was taken and should therefore be declared inadmissible. 10. The Court recalls that in accordance with Rule 47 § 5 of the Rules of Court, the date of introduction of the application is as a general rule considered to be the date of the first communication from the applicant setting out, even summarily, the object of the application (see Calleja v. Malta, (dec.), no. 75274/01, 18 March 2004). 11.", "The Court observes that the applicant’s representative lodged a number of cases with the Court regarding complaints relating to the various types of widow’s benefits and therefore the same subject matter. In his covering letter, the applicant’s representative described these cases as a “group application for widowers seeking equal entitlement to State bereavement benefits”. Although he did not individualise the nature of the complaints of each applicant, it was clear for the Court that they all wished to contest their non-entitlement under Articles 8, 14 and 1 of Protocol No. 1. The representative subsequently submitted follow-up schedules including, on 1 March 2001, a schedule giving details of the applicant in the instant case.", "The Court took as the date of introduction of each application the date on which the relevant schedule relating to a particular applicant was submitted. The Court therefore considers that, in the circumstances of the present case and as accepted in all grouped widowers’ cases filed by the applicant’s legal representative, the schedules as submitted suffice to be considered as the applicant’s first letter for the purposes of Article 35 § 1 of the Convention. 12. Consequently, since the applicant’s first letter is dated 1 March 2001 and the final decision in his case is dated 10 October 2000, the application has not been lodged outside the six-month period. The Government’s objection is therefore dismissed.", "B. Widowed Mother’s Allowance 1. Admissibility 13. The Court finds that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, or inadmissible on any other grounds. It must therefore be declared admissible. 2.", "Merits 14. The Court has previously examined cases raising issues similar to those in the present case and found a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 (see Willis, cited above, §§ 41-43). 15. 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.", "Therefore the Court considers that the difference in treatment between men and women as regards entitlement to WMA, of which the applicant was a victim, was not based on any “objective and reasonable justification” (see Willis, cited above, § 42). 16. There has accordingly been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. 17.", "The Court, having concluded that there has been a breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 as regards the applicant’s non-entitlement to WMA, does not consider it necessary to examine his complaints in that regard under Article 14 taken in conjunction with Article 8. C. Widow’s Pension Admissibility 18. The Court held in its lead judgment regarding WP that at its origin, and until its abolition in respect of women whose spouses died after 9 April 2001, WP was intended to correct “factual inequalities” between older widows, as a group, and the rest of the population and that this difference in treatment was reasonably and objectively justified. Moreover, the Court considered that the United Kingdom could not be criticised for not having abolished WP earlier and that it was not unreasonable of the legislature to decide to introduce the reform slowly (see Runkee and White v. the United Kingdom, no.", "42949/98, §§ 40-41, 25 July 2007). The Court, consequently, considering it was not necessary to examine separately the complaint in respect of Article 8, did not find a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 in respect of the non-payment to the applicants of Widow’s Pension or equivalent (ibid § 42). 19. Consequently, the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "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. Notwithstanding the Court’s requests dated 26 September 2008, 29 September 2008 and 16 October 2008, the applicant’s representatives did not submit a claim under Article 41 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to declare admissible the complaint relating to the applicant’s non-entitlement to a Widowed Mother’s Allowance and inadmissible the remainder of the application; 2.", "Holds that there has been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 concerning the applicant’s non-entitlement to a Widowed Mother’s Allowance; 3. Holds that it is not necessary to examine separately the complaint under Article 14 in conjunction with Article 8 of the Convention as concerns the applicant’s non-entitlement to a Widowed Mother’s Allowance. Done in English, and notified in writing on 3 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyLech GarlickiRegistrarPresident" ]

[ "FIRST SECTION CASE OF NIKOLOVA v. BULGARIA (No. 2) (Application no. 40896/98) JUDGMENT STRASBOURG 30 September 2004 FINAL 30/12/2004 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Nikolova v. Bulgaria (no.", "2), The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrP. Lorenzen,MrsF. Tulkens,MrsN. Vajić,MrsS.", "Botoucharova,MrA. Kovler,MrV. Zagrebelsky, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 9 September 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 40896/98) against the Republic of Bulgaria lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ms Ivanka Markova Nikolova (“the applicant”), a Bulgarian national born in 1943 and living in Plovdiv, on 12 January 1998.", "This is the second application by the applicant. The first (no. 31195/96) resulted in a judgment (see Nikolova v. Bulgaria [GC], no. 31195/96, ECHR 1999‑II). 2.", "The applicant was represented before the Court by Mr M. Ekimdjiev, a lawyer practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agents, Ms M. Pasheva and Ms M. Dimova, of the Ministry of Justice. In a letter of 6 December 2002 the applicant objected to the representative powers of the Agents and invited the Court to ignore the observations submitted by them on the Government’s behalf. On 4 September 2003 the Court decided to reject the applicant’s objection. 3.", "The applicant alleged, in particular, that the combined length of her pre‑trial detention and subsequent house arrest had been excessive, that her house arrest had not been subject to judicial review and that the length of the criminal proceedings against her had exceeded a reasonable time. 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. 6. By a decision of 4 September 2003 the Court declared the application partly admissible.", "7. The parties did not file observations on the merits. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1943 and lives in Plovdiv.", "A. The criminal proceedings against the applicant 9. The applicant used to work as a cashier and accountant in a state‑owned company. 10. An audit of the company at the beginning of 1995 revealed a cash deficit of 1,290,059 old Bulgarian levs.", "11. In February 1995 the applicant was given a copy of the audit’s final act, which contained the auditors’ opinion that, inter alia, during the period 1991‑94 she had deliberately made false entries in the accounting books and had thus misappropriated funds. 12. On 15 March 1995 the Plovdiv Regional Prosecutor’s Office opened a preliminary investigation in respect of the applicant and three other employees of the company. It seems that the applicant became aware of the investigation soon after its opening.", "The case was sent for investigation to the Plovdiv Regional Investigation Service. The prosecutor in charge of the case indicated a number of specific facts which the investigator had to establish and ordered that the investigation be completed within sixty days. 13. On 10 August 1995 the Regional Prosecutor’s Office, noting that no investigative steps had been taken until that moment despite its instructions of 15 March 1995, directed the investigator immediately to start working on the case and finalise the investigation within sixty days. 14.", "In the following months the applicant was questioned several times. The investigation authorities also questioned a number of witnesses and gathered documents and other evidence. 15. On 24 October 1995 the applicant was charged under Article 203 § 1 in conjunction with Articles 202 § 1 (1) and 201 of the Criminal Code (“CC”) with particularly aggravated misappropriation of funds in particularly large amounts, the commission of which had been facilitated by other offences (making of official documents containing false information and abuse of office) carrying a lesser penalty. 16.", "On 6 November 1995 the Regional Investigation Service asked the Regional Prosecutor’s Office for a sixty‑day extension of the time‑limit for the completion of the investigation. On 14 November 1995 the Regional Prosecutor’s Office granted the extension. 17. On 11 January 1996 the Regional Investigation Service asked the Chief Prosecutor’s Office to extend the time-limit for the completion of the investigation with a further sixty days. It stated that all witnesses had already been questioned and a vast amount of accounting and other documents relating to the applicant’s criminal activity spanning over three years had been seized.", "A graphological expert report had been drawn up in respect of some of these documents. An accounting expert report was in the works, but would not be ready within the time-limit previously set for the completion of the investigation, because it required the processing of a large number of accounting documents. On 18 January 1996 the Chief Prosecutor’s Office acceded to this request. 18. On 25 June 1996 the investigator reformulated the charges against the applicant and notified her accordingly.", "19. On 2 July 1996 the investigator allowed the applicant and her counsel to acquaint themselves with the case file. 20. A few days later the investigator concluded his work on the case and sent the file to the Regional Prosecutor’s Office with the proposal to commit the applicant for trial. 21.", "On 27 November 1997 the Regional Prosecutor’s Office found that the evidence thus far collected indicated that the misappropriation of funds allegedly committed by the applicant and by one of her co-accused was not particularly aggravated. Moreover, in the meantime she had restored part of the money. Accordingly, it decided to prosecute the applicant for non‑aggravated misappropriation of funds (Article 202 of the CC). As this offence fell within the jurisdiction of the District Court, it sent the file to the District Prosecutor’s Office. 22.", "On 30 March 1998 the District Prosecutor’s Office discontinued the criminal proceedings against two of the co-accused, as it found that the minor nature of the offences allegedly committed by them allowed an administrative prosecution. It decided to pursue the case against the applicant and the fourth co-accused. 23. On 1 January 2000 amendments to the Code of Criminal Procedure (“CCP”) entered into force, providing, inter alia, that criminal proceedings could be discontinued before the end of the trial with a plea agreement between the prosecution and the defence. 24.", "On 7 January 2000 the District Prosecutor’s Office indicted the applicant. 25. On 25 January 2000 the prosecution and the applicant entered into a plea agreement whereby the applicant pleaded guilty and was sentenced to three years’ imprisonment, suspended for five years, and occupational disbarment for a period of five years. 26. On 2 February 2000 the plea agreement was approved by the District Court and the proceedings were discontinued.", "B. The applicant’s pre‑trial detention and subsequent house arrest 27. On 24 October 1995 the applicant was arrested and remanded in custody. As grounds for her detention the investigator cited the seriousness of the offence charged against her. 28.", "On 6 November 1995 the applicant appealed against her detention to the Regional Prosecutor’s Office. She stated that she had not attempted to abscond or obstruct the investigation during the six months since she had become aware of the criminal charges against her, that she was no longer working as a cashier or accountant and could not, therefore, commit other offences, and that she had undergone gynaecological surgery in 1994 and had still not recovered completely. 29. On 9 November 1995 the Regional Prosecutor’s Office confirmed the decision to detain the applicant. It found that she had been charged with a serious offence punishable by more than ten years’ imprisonment and that “therefore, the [detention] [was] lawful: it [was] based on the imperative provision of Article 152 § 1 of the CCP”.", "It further stated that the question whether or not Article 152 § 2 of the CCP should be applied was to be assessed by the investigator and by the supervising prosecutor. In the applicant’s case the investigator and the supervising prosecutor had not applied Article 152 § 2 of the CCP “in view of the current stage of the proceedings”. It followed that the applicant’s detention was lawful. By a decision of 15 December 1995 the Chief Prosecutor’s Office rejected the applicant’s ensuing appeal against this decision. 30.", "A further appeal against the applicant’s detention was rejected by the Chief Prosecutor’s Office on 12 January 1996. 31. On 18 January 1996 the Chief Prosecutor’s Office confirmed the applicant’s detention of its own motion. 32. In the meantime, on 14 November 1995, the applicant appealed against her detention to the Regional Court.", "In his written submissions to the Court the applicant’s counsel stated, in particular, that the decision to detain the applicant had been based solely on the gravity of the charges against her, whereas other important factors had not been taken into account. For instance, the applicant had a permanent address where she lived with her husband and two daughters. Also, she had known about the criminal charges against her for more than six months prior to her arrest but had made no attempt to abscond or obstruct the investigation. Furthermore, the evidence against the applicant was weak, it having been established that six other persons had access to keys to the cashier’s office. The prosecutor had blindly followed the conclusions of the auditors who had pointed to the applicant on the sole ground that she had been the person in charge.", "However, no proof was found that the applicant herself had made false entries in the accounting books. The applicant’s counsel also referred to her medical condition and enclosed medical certificates. 33. On 11 December 1995 the court rejected the appeal. It held, inter alia: “[The charges against the applicant] concern a serious offence within the meaning of Article 93 § 7 of the CC, that is, an offence under Article 203 of the CC, punishable by ten or more years’ imprisonment.", "In this respect there exists the requirement, under Article 152 § 1 of the CCP, that detention be imposed. ... [The medical certificates submitted by the applicant] reflect her state of health during a past period of time. No information concerning her present state of health has been submitted. It follows that at present there exist no circumstances requiring the modification of the measure ‘pre-trial detention’ imposed on the [applicant]. Therefore the appeal is ill-founded and must be dismissed.” 34.", "On 11 January 1996 the applicant’s counsel requested the investigator in charge of the case to order a medical examination of the applicant with a view to establishing whether the conditions of detention were dangerous for her health. On 19 January 1996 upon the investigator’s order the applicant was examined by three medical experts. In a report of the same date the experts found that the problems related to the surgery which the applicant had undergone more than a year ago (in 1994) did not affect her condition and that she could remain in custody. 35. On 5 February 1996 the applicant was urgently transferred to a hospital due to pain in her gall bladder.", "She underwent surgery. On the same day her counsel submitted to the Regional Prosecutor’s Office a request for her release in view of her poor health. In addition, he argued that there was no risk of the applicant absconding, obstructing the investigation or committing an offence, because she had become aware of the charges against her six months prior to her arrest but had not attempted to commit any of these acts. 36. On 6 February 1996 the Regional Prosecutor’s Office requested the Regional Investigation Service to comment on the request for the applicant’s release.", "In particular, the Service was requested to address the issue whether the applicant’s continuing detention was justified in view of the surgery she had undergone. On 13 February 1996 the Regional Prosecutor’s Office ordered the Regional Investigation Service to request an expert medical opinion on the above issue. On 15 February 1996 a group of medical experts was appointed to examine the applicant. The experts found that the applicant needed a convalescence period which was incompatible with the conditions in detention. 37.", "Following this opinion, on 19 February 1996 the Regional Prosecutor’s Office decided to discontinue the applicant’s pre-trial detention in view of her ill health, which was found incompatible with the conditions in detention. It further found that the applicant’s state of health made it impossible for her to flee, obstruct the investigation or commit an offence. Also, the investigation had almost been completed. 38. The same day the applicant was released from custody and placed under house arrest.", "39. On an unspecified later date the applicant submitted to the Regional Prosecutor’s Office a request for release. The request was rejected on 14 March 1996. The Regional Prosecutor’s Office held that the applicant’s pre-trial detention had been replaced by house arrest because it had been found that the applicant’s health was incompatible with the conditions in detention and, moreover, the risk of her absconding or re-offending was objectively excluded in view of her illness. Unlike pre-trial detention, house arrest was not incompatible with her state of health, because there she could undergo medical examinations and treatment.", "The applicant had not requested permission to leave her house for specified periods of time to undergo treatment. Thus, there was no need for her to be released. 40. Later in March 1996 the applicant appealed against her house arrest to the Chief Prosecutor’s Office. She argued that there was no risk of her absconding or re-offending.", "She also referred to her poor health. By a decision of 5 April 1996 the Chief Prosecutor’s Office rejected the appeal, apparently without giving any specific reasons. 41. On 25 June 1996 the investigator confirmed the applicant’s house arrest of his own motion, without giving reasons. 42.", "On 27 November 1997 the Regional Prosecutor’s Office confirmed the applicant’s house arrest of its own motion, without giving reasons. 43. On 30 March 1998 the District Prosecutor’s Office confirmed the applicant’s house arrest of its own motion, without giving reasons. 44. On 7 April 1998 the applicant’s counsel appealed to the Regional Prosecutor’s Office against the District Prosecutor’s Office’s decision to confirm the house arrest.", "He stated that it had lasted for over two years and that there was no indication that the applicant would abscond or re-offend. Moreover, all relevant evidence had already been gathered. 45. On 16 April 1998, apparently before transmitting the appeal to the Regional Prosecutor’s Office, the District Prosecutor’s Office reviewed the matter and decided to grant bail. It stated that the investigation authorities had sent the case to the prosecution twice and it had been returned for further clarifications each time.", "As of that time the file was at the investigation and there was no indication that it would be received at the District Prosecutor’s Office any time soon. The further continuation of the house arrest would amount to mere repression, since all relevant evidence had already been gathered and there was no risk of the applicant obstructing the investigation. It also added that the requests for release submitted in early 1996 were apparently rejected because at that time the applicant’s deprivation of liberty had not lasted very long. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "The offences with which the applicant was charged 46. Article 203 § 1 of the CC, read in conjunction with Articles 202 § 1 (1) and 201, provides that particularly aggravated misappropriation of funds in particularly large amounts, the commission of which has been facilitated by another offence which carries a lesser penalty, is punishable by ten to thirty years’ imprisonment. 47. By Article 202 § 1 (1) of the CC, read in conjunction with Article 201, misappropriation of funds in not particularly aggravated cases is punishable by one to ten years’ imprisonment, if its commission has been facilitated by another offence which carries a lesser penalty. B.", "Arrest and detention pending trial 48. The legal grounds for detention pending trial are set out in Article 152 of the CCP, the relevant part of which, as worded at the material time, provided as follows: “1. Pre-trial detention trial shall be ordered [in cases where the charges concern] a serious intentional crime. 2. In the cases falling under paragraph 1 [pre-trial detention] may be dispensed with if there is no risk of the accused absconding, obstructing the investigation or committing a further crime.", "...” 49. A “serious” crime is defined by Article 93 § 7 of the CC as one punishable by more than five years’ imprisonment. 50. The Supreme Court’s practice at the relevant time (it has now become at least partly obsolete as a result of amendments to the CCP in force since 1 January 2000) was that Article 152 § 1 required that a person charged with a serious intentional offence be detained. An exception was only possible, in accordance with Article 152 § 2, where it was clear beyond doubt that any risk of absconding or re-offending was objectively excluded as, for example, in the case of a detainee who was seriously ill, elderly, or already in custody on other grounds, such as serving a sentence (опред.", "№ 1 от 4 май 1992 г. по н.д. № 1/92 г. на ВС І н.о. ; опред. № 48 от 2 октомври 1995 г. по н.д. № 583/95 г. на ВС І н.о.", "; опред. № 78 от 6 ноември 1995 г. по н.д. 768/95 г.). C. House arrest 51. Under Article 146 of the CCP, a measure to secure appearance before the competent authority has to be imposed in respect of every person accused of having committed a publicly prosecuted offence.", "Apart from pre‑trial detention, one such measure is house arrest. 52. Article 147 of the CCP, as in force at the relevant time, provided that measures to secure appearance were intended to prevent the accused from absconding, re-offending, or thwarting the establishing of the truth. When imposing a particular measure, the competent authority had to have regard to the dangerousness of the alleged offence, the evidence against the accused, his or her health, family status, profession, age, etc. (Article 147 § 2).", "53. Article 151 of the CCP, as in force at the material time, defined house arrest as follows: “House arrest shall consist of a prohibition for the accused to leave his [or her] home without permission by the respective organs.” 54. In its interpretative decision no. 10/1992 (реш. № 10 от 27 юли 1992 г. по конституционно дело № 13 от 1992 г., обн., ДВ брой 63 от 4 август 1992 г.)", "the Constitutional Court held as follows: “... [H]ouse arrest is also a form of detention and [constitutes] an interference with the inviolability [of the person].” 55. At the relevant time the CCP did not provide for judicial review of house arrest. Thus, the only possibility for a person put under house arrest was to apply to a prosecutor who could order his or her release. If the prosecutor refused to release the person under house arrest, he or she could appeal to a higher prosecutor (Articles 181 and 182 of the CCP). 56.", "The CCP was amended with effect from 1 January 2000 and at present provides, in the newly introduced paragraph 2 of its Article 151, for full initial and subsequent judicial control of house arrest. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 57. The applicant contended that her pre-trial detention and subsequent house arrest were unjustified and unreasonably lengthy. The Court considers that this complaint falls to be examined under Article 5 § 3 of the Convention, which reads, insofar as relevant: “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.", "...” 58. The applicant submitted that at the time of her arrest she had had a permanent place of abode, a job and a family. There had been no indication that she would abscond of re-offend and therefore the authorities had not had any reasons to detain her. Moreover, later, when she had been placed under house arrest, her ill health and subsequent hospitalisation had made it impossible for her to flee or commit an offence. There had thus been no relevant and sufficient grounds for the authorities to keep her deprived of her liberty.", "Finally, the applicant argued that the authorities had not acted diligently in the criminal case against her. In particular, no procedural steps had been undertaken by the Regional Prosecutor’s Office between July 1996 and November 1997 and no steps had been undertaken by the District Prosecutor’s Office between November 1997 and March 1998. 59. The Government maintained that the applicant’s deprivation of liberty was not in breach of Article 5 § 3 of the Convention. Her pre‑trial detention had been based on Article 152 of the CCP, which had stipulated that it was mandatory in cases like hers.", "Moreover, the time‑limits set in domestic law for pre‑trial detention had not been exceeded. As regards the applicant’s house arrest, under domestic law there was no absolute time‑limit for its duration. Nevertheless, the length of the applicant’s house arrest had corresponded to her state of health and to the pace of the criminal proceedings against her. 60. The Court notes that the applicant was arrested on 24 October 1995.", "Her pre‑trial detention was transformed into house arrest on 19 February 1996. She was released on bail on 16 April 1998 (see paragraphs 27, 38 and 45 above). There is no doubt that the applicant’s house arrest constituted deprivation of liberty within the meaning of Article 5 (see paragraph 53 above and N.C. v. Italy, no. 24952/94, § 33, 11 January 2001). The period to be examined is therefore two years, five months and twenty‑three days.", "61. The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, §§ 152 and 153, ECHR 2000‑IV).", "62. The Court sees no reason to doubt that the applicant’s pre‑trial detention and subsequent house arrest were grounded on a reasonable suspicion of her having committed an offence. The applicant was held in custody on the basis of a suspicion that she had misappropriated funds from the state‑owned company where she had been working. 63. As to the grounds for the continued detention, the Court notes that in the case of Ilijkov v. Bulgaria (no.", "33977/97, 26 July 2001), it observed that during the period in question the authorities had applied law and practice establishing a presumption that detention pending trial was always necessary in cases where the sentence faced went beyond a certain threshold of severity. The presumption was only rebuttable in very exceptional circumstances where even a hypothetical possibility of absconding, re‑offending or collusion was excluded, due to serious illness or other exceptional factors. It was moreover incumbent on the detained person to prove the existence of such exceptional circumstances, failing which he or she was bound to remain in detention pending trial throughout the proceedings. The above principles were based on Article 152 §§ 1 and 2 of the CCP, as worded at the material time, and the Supreme Court’s practice at that stage. 64.", "At the time of the applicant’s pre‑trial detention those provisions were still in force and the same practice prevailed. 65. The Court must nevertheless examine whether those provisions and practice, which were clearly incompatible with Article 5 § 3 of the Convention (see Ilijkov, cited above, §§ 84‑87), were actually applied in the instant case during the applicant’s pre-trial detention. 66. In this connection, the Court notes that in its decision of 9 November 1995 the Regional Prosecutor’s Office expressly relied on the rule of Article 152 § 1 of the CCP (see paragraph 29 above).", "So did the Regional Court in its decision of 11 December 1995 (see paragraph 33 above). Finally, it is noteworthy that the applicant’s eventual release from pre‑trial detention and her placement under house arrest was not due to an independent finding that there were no relevant and sufficient reasons for her remaining in custody, but essentially to a finding that pre‑trial detention was incompatible with her health (see paragraph 37 above). 67. The question remains whether this stance of the authorities continued during the applicant’s house arrest. The Court notes that the relevant text, Article 147 of the CCP, did not set forth a general rule similar to that of Article 152 §§ 1 and 2 (see paragraph 52 above).", "However, the issue which needs to be determined in the present case is not whether the law was compatible with the requirements of Article 5 § 3 of the Convention, but whether the authorities gave relevant and sufficient reasons for keeping the applicant deprived of her liberty. In this connection, the Court notes that when the applicant applied for release in March 1996 the competent prosecutor acknowledged that there was no risk of her absconding or offending, but nevertheless rejected her application for release (see paragraph 39 above). Then, in June 1996, November 1997 and March 1998, the applicant’s house arrest was confirmed by the authorities of their own motion, apparently without any specific reasons being put forward (see paragraphs 41‑43 above). It thus seems that there were no relevant and sufficient grounds on which the authorities relied to keep the applicant under house arrest. 68.", "The Court therefore finds that the authorities failed to justify the applicant’s deprivation of liberty for the period of two years and nearly six months. 69. Moreover, it seems that the authorities did not act with the requisite diligence in the criminal proceedings against the applicant. While no significant delays occurred during the period from October 1995 until July 1996, it appears that from July 1996 until November 1997 the case lay dormant at the Regional Prosecutor’s Office and after that, until March 1998, at the District Prosecutor’s Office (see paragraphs 20‑22 above). 70.", "The Court therefore finds that there has been a violation of the applicant’s right under Article 5 § 3 of the Convention to a trial within a reasonable time or to release pending trial. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 71. The applicant alleged that, contrary to Article 5 § 4 of the Convention, she had not had an opportunity to take proceedings by which the lawfulness of her house arrest could be decided. Article 5 § 4 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.” 72.", "The applicant argued that the alleged violation of Article 5 § 4 of the Convention stemmed from the lack of a procedural possibility for judicial review of her house arrest. House arrest amounted to a deprivation of liberty within the meaning of Article 5 of the Convention, and for this reason she should have had access to a habeas corpus procedure. 73. The Government submitted that the applicant’s house arrest had been ordered by a prosecutor, who at the relevant time had been the “competent legal authority” within the meaning of Article 5 § 1 of the Convention. Prior to the amendment of the CCP house arrest had been controlled by the prosecution authorities.", "From 1 January 2000 it was subject to judicial review. 74. The Court notes that it has not been disputed that the applicant’s house arrest constituted deprivation of liberty within the meaning of Article 5 § 4 (see paragraph 53 above and N.C. v. Italy, no. 24952/94, § 33, 11 January 2001). The applicant was therefore entitled to the guarantees of that provision.", "75. The Court reiterates that the remedy required by Article 5 § 4 must be of a judicial nature, which implies that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which she will not have been afforded the fundamental guarantees of procedure applied in matters of deprivation of liberty (see Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, p. 24, § 60). The Court further notes that the existence of a remedy 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 Article 5 § 4 (see Sakık and Others v. Turkey, judgment of 26 November 1997, Reports of Judgments and Decisions 1997‑VII, p. 2625, § 53 and Kadem v. Malta, no. 55263/00, § 41, 9 January 2003).", "76. The Court notes that at the relevant time the Bulgarian CCP did not provide for judicial review of house arrest (see paragraph 55 above) and that there is no other provision of domestic law which establishes a procedure whereby a person can apply to a court to review the lawfulness of his or her house arrest. The Court further notes that the Government conceded that until 1 January 2000 house arrest was controlled by the prosecution authorities and that judicial review of house arrest was only introduced on that date (see paragraph 73 above). 77. The Court therefore holds that there has been a violation of Article 5 § 4 of the Convention, in that the applicant could not apply to a court to review the lawfulness of her house arrest.", "III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 78. The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings against her. Article 6 § 1 provides, as relevant: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Period to be taken into consideration 79.", "In February 1995 the applicant was officially informed that she was suspected of a criminal offence (see paragraph 11 above). The proceedings ended on 2 February 2000, when the District Court approved the plea agreement between the applicant and the prosecution (see paragraph 26 above). The period to be taken into account is thus approximately five years, for not even one level of court. B. Reasonableness of the length of the proceedings 80. The Court will assess the reasonableness of the length of the proceedings in the light of the circumstances of the case and having regard to the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities.", "On the latter point, what was at stake for the applicant has also to be taken into account (see Portington v. Greece, judgment of 23 September 1998, Reports 1998‑VI, p. 2630, § 21 and Kudła v. Poland [GC], no. 30210/96, § 124, ECHR 2000‑XI). 1. Complexity of the case 81. The applicant conceded that the case had been based on a vast amount of documentary evidence, but insisted that it was not as complex as the Government tried to present it.", "In fact, initially the proceedings had involved four co-accused, but in 1998 the charges against two of them had been dropped, leaving the prosecution to deal only with the applicant and another co-accused. 82. The Government submitted that the proceedings had been complex. They had concerned complicated criminal activities and had involved a large amount of evidentiary material and numerous co‑accused. 83.", "The Court considers that the case bore a certain degree of factual complexity, as it involved four co‑accused and a criminal activity that had taken place over a three‑year period (see paragraphs 11 and 12 above). However, it notes that the prosecution against two of the co-accused was discontinued on 30 March 1998 (see paragraph 22 above), which undoubtedly alleviated the task of the prosecution authorities. In any event, the complexity of the case cannot by itself explain the length of the proceedings. 2. Conduct of the applicant 84.", "The applicant did not comment on her conduct. 85. The Government did not claim that any delays were attributable to the applicant. 86. The Court does not find that the applicant has contributed by her conduct to the length of the proceedings.", "3. Conduct of the authorities 87. The applicant disputed the Government’s assertion that the only reason for the delay between June 1996 and January 2000 had been the prosecution’s desire to await the reform of the CCP whereby plea bargaining was introduced. She submitted that during this time the case had remained dormant at the prosecutors’ offices, contrasting this with the fast completion of the investigation (15 March 1995 – 25 June 1996). In her view, there was no logical explanation for these three lost years.", "The applicant also referred to her arguments relating to the length of her deprivation of liberty. 88. The Government averred that the investigation had been completed within the time-limits set in domestic law. Later the prosecution had delayed the applicant’s indictment until after 1 January 2000 in order to make it possible for her to benefit from the newly introduced plea‑bargaining procedure. As to the proceedings before the District Court, they did not reveal any delay.", "89. The Court notes that a gap occurred between 15 March and 10 August 1995, when, despite the prosecutor’s instructions, the investigator did not undertake any investigative steps (see paragraph 13 above). It seems that the proceedings moved at a good pace between August 1995 and July 1996 (see paragraphs 14‑19 above). However, from July 1996 until November 1997 the case lay dormant at the Regional Prosecutor’s Office (see paragraphs 20 and 21 above) and from November 1997 until January 2000 – with one procedural act of March 1998: the discontinuation of the prosecution against two of the co‑accused – it lay dormant at the District Prosecutor’s Office (see paragraphs 22‑24 above), which resulted in an unjustified delay of three and a half years. 4.", "Conclusion 90. In the light of the criteria laid down in its case‑law and having regard to the delays attributable to the authorities, the Court considers that the length of the criminal proceedings against the applicant failed to satisfy the reasonable time requirement of Article 6 § 1 of the Convention. It follows that there has been a violation of that provision. 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 12,800 euros (“EUR”) in non‑pecuniary damages. She made detailed submissions in respect of each violation of the Convention in her case, emphasising the gravity of the case and referring to some of the Court’s judgments. She further claimed EUR 507 in pecuniary damages, representing loss of earnings calculated on the basis of the minimum wage in Bulgaria during the time of her house arrest.", "93. Referring to some of the Court’s judgments in previous similar cases against Bulgaria, the Government submitted that the claim for non‑pecuniary damages was excessive, in particular in view of the living standards in Bulgaria. They further submitted that the claim for pecuniary damages was ill‑founded, because the applicant could have worked from her home while she had been under house arrest and because there were no indications that she had been in employment after she had been released on bail. 94. Concerning the claim for pecuniary damages, the Court considers that there is a certain causal link between the violation of Article 5 § 3 of the Convention found and the amount claimed by the applicant to compensate for her loss of earnings (see Ceský v. the Czech Republic, no.", "33644/96, § 91, 6 June 2000). As regards the claim for non‑pecuniary damages, in the Court’s view, it is reasonable to assume that the applicant has suffered distress and frustration on account of the unreasonable length of her pre‑trial detention and subsequent house arrest, the lack of a possibility to seek judicial review of her house arrest and the length of the criminal proceedings against her. Taking into account the various relevant considerations and making its assessment on an equitable basis, the Court awards the applicant EUR 4,000. B. Costs and expenses 95.", "The applicant claimed EUR 2,725 for 54 hours and 30 minutes of legal work on the Strasbourg proceedings, at the hourly rate of EUR 50. She claimed an additional EUR 381 for translation costs (51 pages), copying, mailing and overhead expenses. The applicant submitted a fees’ agreement between her and her lawyer, a time‑sheet and postal receipts. She requested that the amounts awarded by the Court under this head be paid directly to her legal representative, Mr M. Ekimdjiev. 96.", "The Government stated that: (i) the claim for translation expenses was not supported by documents; (ii) the number of hours claimed was excessive as the work done by the lawyer could have been completed in one third of the time claimed, especially if account was taken of the facts that this was the applicant’s second application before the Court and that she had been represented by the same lawyer in both applications, while there had been a considerable overlap in the facts of the two applications; and (iii) the hourly rate of EUR 50 was excessive. 97. The Court notes that the applicant has submitted a fees agreement and her lawyer’s time sheet concerning work done on her case and that she has requested that the costs and expenses incurred should be paid directly to her lawyer, Mr M. Ekimdjiev. 98. The Court does not find that the number of hours or the hourly rate claimed are excessive.", "However, it considers that a reduction should be applied on account of the fact that some of the applicant’s complaints were declared inadmissible (see paragraph 6 above). The Court further observes that the same lawyer represented the applicant both in her previous case (see Nikolova, cited above, § 7) and in the present case, while there is a certain overlap between the facts of the two cases. This calls for a further reduction. Finally, the Court notes that the claim for translation expenses is not supported by relevant documents. 99.", "Having regard to all relevant factors and deducting EUR 685 received in legal aid from the Council of Europe, the Court awards EUR 1,800 in respect of costs and expenses, to be paid to the applicant’s legal representative, Mr M. Ekimdjiev. 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. Holds that there has been a violation of Article 5 § 3 of the Convention; 2.", "Holds that there has been a violation of Article 5 § 4 of the Convention; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement: (i) EUR 4,000 (four thousand euros) in respect of pecuniary and non‑pecuniary damage, to the applicant herself; (ii) EUR 1,800 (one thousand eight hundred euros) in respect of costs and expenses, to the applicant’s legal representative, Mr M. Ekimdjiev; (iii) any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 30 September 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FOURTH SECTION CASE OF MASŁOWSKI v. POLAND (Application no. 7626/12) JUDGMENT STRASBOURG 13 January 2015 This judgment is final but it may be subject to editorial revision. In the case of Masłowski v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Päivi Hirvelä, President,Zdravka Kalaydjieva,Krzysztof Wojtyczek, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 2 December 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 7626/12) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Robert Masłowski (“the applicant”), on 27 January 2012.", "2. The applicant was represented by Mr P. Kozanecki, a lawyer practising in Łódź. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs. 3. On 6 May 2013 the application was communicated to the Government.", "4. The Government objected to the examination of the application by a Committee in part. After having considered the Government’s objection, the Court rejects it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1967 and is currently detained in Łódź Remand Centre. A. The applicant’s pre-trial detention and criminal proceedings against him 6. On 29 November 2006 the applicant was arrested on suspicion of committing a number of offences in an armed organised criminal group. 7.", "On 6 December 2006 the Łódź District Court (Sąd Rejonowy) remanded the applicant in custody until 28 February 2007. The court relied on a strong suspicion that the applicant had committed the offences he had been accused of. The risk of the applicant fleeing was also taken into account as a ‘wanted’ notice (list gończy) against him had been issued in October 2006. At that time he had not been residing at his permanent address and his whereabouts had not been established. The court further anticipated a heavy prison sentence to be imposed on the applicant if convicted.", "8. The applicant’s pre-trial detention was extended by the Łódź Regional Court (Sąd Okręgowy) on 27 February 2007, 26 June 2007 and on 19 September 2007. Subsequently, it was extended by the Łódź Court of Appeal (Sąd Apelacyjny) on 21 November 2007, 19 December 2007, 28 March 2008, 18 June 2008, 22 October 2008 and on 23 December 2008. In their decisions to extend the applicant’s pre-trial detention the courts relied on a reasonable suspicion, supported by evidence given by witnesses and other members of the criminal group, that the applicant had committed the offences in question. The courts further emphasised the risk of the applicant fleeing or obstructing the proceedings and the likelihood of a heavy prison sentence being imposed on him if convicted.", "The domestic courts attached importance to the complex character of the case, to the complex structure of the criminal group and the number of suspects involved and the necessity of collecting additional evidence for the inclusion in the already voluminous case file. 9. On 18 March 2009 the State Prosecutor (Prokurator Krajowy) lodged a bill of indictment against the applicant with the Łódź Regional Court. The applicant was charged with several counts of extortion and drug-trafficking committed in an organised and armed criminal group. The bill of indictment comprised 94 charges brought against 28 defendants.", "The prosecution authorities requested that 318 witnesses be heard before the court. 10. On 30 March 2009 the Łódź Court of Appeal extended the applicant’s detention on remand until 31 December 2009. Subsequently, the same court ordered prolongation of his detention on 21 December 2009 (detention extended until 30 September 2010), on 22 September 2010 (detention extended until 31 March 2011) and on 23 March 2011 (detention extended until 30 September 2011). The applicant lodged a number of motions to be released as well as appeals against the decisions extending his pre-trial detention, all in vain.", "In their decisions the courts repeated the grounds previously given for the applicant’s detention. 11. Meanwhile, the court scheduled fifteen hearings for November and December 2009. Due to sick-leaves of the presiding judge and of some of the accused those hearings did not take place. 12.", "The trial was eventually opened on 18 January 2010. Subsequent scheduled hearings were adjourned due to absences of some of the co‑accused and due to problems with sound system in the court room. 13. In May 2010 the Regional Court gave a severance order and decided to determine charges against two co-accused separately. 14.", "The bill of indictment was only finally read out to the defendants at the hearing held on 27 May 2010. 15. At the hearing of 28 May 2010 the Regional Court started taking evidence from the accused. It subsequently held fourteen hearings until the end of 2010, during which some of the accused gave evidence. Five of the scheduled hearings were adjourned due to sick-leaves of the accused.", "One hearing was adjourned because of the motion for disqualification of the judge lodged by one of the co-accused. 16. In 2011 the Regional Court continued taking evidence from the defendants. Of the twenty nine hearings scheduled for this year, eleven took place. The trial court adjourned fifteen hearings due to justified absences of the parties, three hearings were cancelled due to sick-leaves of the presiding judge and the lay judges.", "17. Meanwhile, on 17 August 2011 the Łódź Regional Court ordered that the applicant’s detention on remand be lifted on condition that he paid the bail in the sum of 20,000 Polish zlotys (PLN) within the period of two weeks from the date of the decision. On the same date the applicant was released on bail and police supervision. He was also prohibited from leaving the country. 18.", "The Regional Court scheduled twenty hearings for 2012, of which six hearings were eventually held. At the hearing of 16 April 2012 the trial court started taking evidence from witnesses. Of the fourteen hearings cancelled this year, two were adjourned because of a sick-leave of the presiding judge, three because of absences of witnesses, and the remaining nine hearings – because of absences of the parties. 19. Until 30 July 2013 the Regional Court scheduled nine hearings for 2013, of which seven were adjourned due to justified absences of the defendants.", "20. The criminal proceedings against the applicant are still pending before the first-instance court. B. Proceedings under the 2004 Act 21. On 27 April 2011 the applicant lodged a complaint with the Łódź Court of Appeal under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”).", "He sought a finding that the length of the criminal proceedings against him had been excessive and PLN 20,000 in compensation. 22. On 27 July 2011 the Łódź Court of Appeal dismissed the applicant’s complaint. The court found that, considering the complexity of the case and the number of co-accused who had actively tried to obstruct the proceedings, the Łódź Regional Court had conducted the proceedings in a correct and timely manner. Consequently, the appellate court refused to award the applicant compensation.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. Length of pre-trial detention 23. The relevant domestic law and practice concerning the imposition of pre‑trial detention (tymczasowe aresztowanie), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27‑33, 25 April 2006 and Celejewski v. Poland, no.", "17584/04, §§ 22‑23, 4 May 2006. B. Length of proceedings 24. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are set out in the Court’s decisions in the cases of Charzyński v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005‑V and Ratajczyk v. Poland (dec.), no.", "11215/02, ECHR 2005-VIII, and its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 25. 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.” 26. By letter dated 22 October 2013 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the application under Article 5 § 3 of the Convention concerning the length of applicant’s detention on remand. They further requested the Court to strike out the application in accordance with Article 37 of the Convention. The declaration provided as follows: “(...) the Government wish to express by way of the unilateral declaration, their acknowledgement of the fact that the period of the applicant’s pre-trial detention, was not compatible with a “reasonable time” requirement within the meaning of Article 5 § 3 of the Convention.(...)", "In these circumstances, and having particular regard to violation of Article 5 § 3 of the Convention, the Government declare that they offer to pay the applicant the amount of PLN 13,000, which they consider to be reasonable in the circumstances of the case. The sum referred to above, which is to cover any pecuniary and non‑pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the 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 periods plus three percentage points. (...) The Government would respectfully suggest that the above declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.(...", ")” 27. The applicant indicated that he was not satisfied with the terms of the unilateral declaration and considered that the sum mentioned in the Government’s declaration was unacceptably low. 28. The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if: “for any other reason established by the Court, it is no longer justified to continue the examination of the application”.", "29. It also recalls that in certain circumstances, it may strike out an application or part thereby under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. 30. To this end, the Court examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o.", "v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03). 31. The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints under Article 5 § 3 of the Convention about the length of pre-trial detention (see Kauczor v. Poland, no.", "45219/06, 3 February 2009 with further references). 32. Having regard to the nature of 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 this part of the application (Article 37 § 1 (c)). 33. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, 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 this part of the application (Article 37 § 1 in fine).", "34. In view of the above, it is appropriate to strike this part of the application out of the list. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS 35. 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 ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 36.", "The Government contested that argument. 37. The period to be taken into consideration began on 29 November 2006 and has not yet ended. It has thus lasted so far seven years and some ten months for one level of jurisdiction. A. Admissibility 38.", "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 Government 39. The Government submitted that the national authorities displayed due diligence in the conduct of the proceedings in issue. They argued that the length of the proceedings was not excessive in the light of the complexity of the case, which concerned the charges of organised crime brought against several defendants. The Government further submitted that the frequent adjournments of the hearings were not attributable to the State, as they resulted from absences of the parties. They stressed that the trial court had scheduled altogether 101 hearings for a period of some three years and nine months of judicial proceedings.", "(b) The applicant 40. The applicant submitted that the length of the proceedings against him was unreasonable. He stressed that he had remained in detention during a significant part of the criminal proceedings against him. 2. The Court’s assessment 41.", "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). 42. The Court can accept that some delays in the procedure can be explained by the fact that the domestic authorities had to deal with a very complex case which involved a number of defendants and voluminous evidence. Moreover, the proceedings concerned charges of organised crime which inevitably made the task of trying the accused considerably more difficult than in an ordinary criminal case (see Horych v. Poland, no.", "13621/08, § 115, 17 April 2012). However, these facts in themselves cannot justify the overall length of the proceedings. 43. As regards the conduct of the applicant, the Court notes that he had not contributed to the delays in the proceedings. 44.", "With respect to the conduct of the authorities, the Court observes that during the judicial stage of the proceedings, between June 2009 and July 2013, the trial court held only some forty hearings, that is less than one hearing per month (see paragraphs 9-17 above). It is true that a considerable number of hearings were scheduled and that most of the adjournments were caused by reasons which could not in themselves be attributed to the trial court (see paragraphs 9-16 and 40 above). However, the duty to administer justice expeditiously was incumbent in the first place on the domestic authorities (see Kudła v. Poland [GC], no. 30210/96, § 130, ECHR 2000‑XI). Notwithstanding the significant difficulties which they faced in the present case, they were required to organise the trial efficiently and to ensure that the Convention guarantees were fully respected in the proceedings.", "This is all the more relevant because the applicant was in custody for a substantial part of the proceedings (see paragraphs 5-6, 8 and 15 above). In this connection the Court would recall that persons kept in detention pending trial are entitled to “special diligence” on the part of the authorities (see, for example, Abdoella v. the Netherlands, judgment of 25 November 1992, Series A no. 248-A, p. 17, § 24; Jabłoński v. Poland, no. 33492/96, § 102, 21 December 2000). Lastly, the Court notes that the proceedings, which have already lasted seven years and ten months, are still pending before the first-instance court.", "45. 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. III.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 46. Lastly, the applicant complained under Article 13 of the Convention that he had had no ‘effective remedy’ against the excessive length of the proceedings. Article 13 provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 47. 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. However, the “effectiveness” of a “remedy” within the meaning of that provision does not depend on the certainty of a favourable outcome for the applicant (see Kudła, cited above, § 154, §§ 156‑157; Figiel v. Poland (no.", "2), no. 38206/05, § 31, 16 September 2008). 48. The fact that in the present case the applicant’s claim for just satisfaction failed does not in itself render the remedy under the 2004 Act incompatible with Article 13. The expression “effective remedy” used in Article 13 cannot be interpreted as a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see Figiel (no.", "2), cited above, § 33, with further references). In the light of the foregoing, the Court considers that in the circumstances of the present case it cannot be said that the applicant’s right to an effective remedy under Article 13 of the Convention has not been respected. 49. 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 50. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 51. The applicant did not submit a claim for just satisfaction or for costs and expenses. Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Takes note of the terms of the respondent Government’s unilateral declaration as regards the complaint under Article 5 § 3 of the Convention concerning the excessive length of detention on remand; 2. Decides to strike this part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention; 3. Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible; 4. Holds that there has been a violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 13 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Fatoş AracıPäivi HirveläDeputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF NABID ABDULLAYEV v. RUSSIA (Application no. 8474/14) JUDGMENT STRASBOURG 15 October 2015 FINAL 14/03/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Nabid Abdullayev v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: András Sajó, President,Elisabeth Steiner,Khanlar Hajiyev,Paulo Pinto de Albuquerque,Linos-Alexandre Sicilianos,Erik Møse,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 22 September 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "8474/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Kyrgyz national, Mr Nabid Mamadzhanovich Abdullayev (“the applicant”), on 27 January 2014. 2. The applicant was represented by Ms E. Davidyan, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicant argued that his extradition to the Kyrgyz Republic (Kyrgyzstan) would expose him to the risk of ill-treatment and that there had been no speedy and effective judicial review of his detention pending extradition. 4. On 28 January 2014 the Acting President of the First Section decided in the applicant’s case to apply both Rule 39 of the Rules of Court, indicating to the Government that he should not be extradited or otherwise involuntarily removed from Russia to Kyrgyzstan or another country for the duration of the proceedings before the Court, and Rule 41 of the Rules of Court, granting priority treatment to the application. 5. On 15 May 2014 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1961 and lives in the town of Artyom, in the Primorye Region. A. The applicant’s background prior to his criminal prosecution 7.", "The applicant is a Kyrgyz national of Uzbek ethnic origin. He originally lived in the town of Osh in Kyrgyzstan. 8. In June 2010, which was a time of mass disorders and interethnic clashes in the region, the applicant had been the head of the territorial board of a municipal authority in which most residents were ethnic Uzbeks. He was, according to him, considered as a leader of the local Uzbek community.", "9. After the clashes, the applicant had repeatedly been invited by the Kyrgyz investigative bodies for questioning as a witness. 10. In June 2011 the applicant learned that criminal proceedings had been opened against him (see paragraph 12 below). The applicant submits that law-enforcement officers started to extort money from him, threatening him with imprisonment.", "Due to this he moved to a different city in Kyrgyzstan, to his sister’s home, where he stayed for several months. 11. Afterwards, in March 2012, the applicant left Kyrgyzstan for Russia. He settled in the Primorye Region, and after obtaining a work permit, worked as a sports instructor. B.", "Criminal proceedings against the applicant in Kyrgyzstan and the ensuing extradition proceedings in Russia 12. On 16 June 2011 the Kyrgyz authorities charged the applicant with the commission of violent crimes in June 2010 (attempted murder, participation in mass disorders and unlawful firearms trafficking) and ordered his arrest. It appears that when the authorities eventually tried to execute the arrest order, the applicant had left the country (see paragraphs 10 and 11 above). The applicant was therefore put on the international wanted list. 13.", "On 14 March 2013 the applicant was arrested in Russia and detained in custody pending extradition 14. On 5 April 2013 the Kyrgyz authorities lodged an extradition request with the Prosecutor General of Russia, asking that the applicant be extradited to Kyrgyzstan for prosecution and trial. 15. On 16 September 2013 the Russian Prosecutor General’s Office granted the extradition request and ordered the applicant’s extradition. 16.", "The applicant appealed, arguing that due to his Uzbek ethnic origin the aforementioned decision would expose him to a serious risk of torture. The applicant supported his appeal through reference, inter alia, to various UN sources, NGOs’ reports and the judgment of the Court in the case of Makhmudzhan Ergashev (see Makhmudzhan Ergashev v. Russia, no. 49747/11, 16 October 2012). 17. On 1 November 2013 the Primorye Regional Court rejected the applicant’s appeal against the extradition order, giving the following reasoning: “The charges pressed against [the applicant] [by Kyrgyz authorities] are criminal offences liable to punishment in Russia ...", "They are not time-barred ... Pursuant to Article 464 § 1 (1) of the Russian Code of Criminal Procedure, an extradition request lodged by a foreign state in respect of a Russian citizen should be denied ... It is apparent from the conclusions of the Federal Migration Service (FMS) for the Primorye Region that [the applicant] is not a Russian citizen. ... He holds a Kyrgyz passport ... and is a Kyrgyz national. ... On 28 June 2013 the FMS for Prymorye Region rejected a request from [the applicant] for refugee status in Russia.", "[The applicant’s] allegations of persecution by the Kyrgyz authorities on false criminal charges on the basis of his [Uzbek] ethnic origin were addressed [within the refugee status procedure]. The lawfulness of the refusal [to grant the applicant refugee status in Russia] was confirmed by Russia’s FMS on 24 September 2013 ... [The applicant’s] argument [that] the decision to extradite him was taken before any judicial review of the refusal to grant him refugee status is groundless. It is apparent from the evidential material gathered during the extradition check that [the applicant] arrived in Russia ... for employment purposes and that he had not been persecuted in Kyrgyzstan on racial, national or religious grounds ... It is likewise apparent from the evidential material gathered during the extradition check that [the applicant] lodged his request for refugee status on 16 April 2013, while being held in custody following his arrest in Russia ... , [therefore] his appeal against the decision of the FMS did not prevent the Prosecutor General’s Office from taking a decision concerning extradition, in line with ruling no. 11 of 14 June 2012 of the Plenary Session of the Russian Supreme Court ... [The applicant] does not have immunity from prosecution [and] there are no grounds preventing his extradition.", "The Prosecutor General’s Office of Kyrgyzstan provided assurances that [in the event of extradition] [the applicant] would have the benefit of [legal assistance]; that he would not be extradited to a third State; that he would be prosecuted only for the offence for which he was being extradited; that [he] would not be subjected to torture, inhuman or degrading treatment or punishment; that he was being prosecuted for an ordinary criminal offence devoid of any political character or discrimination on any grounds; that he would be able to freely leave Kyrgyzstan after he had stood trial and served a sentence; and that Russian diplomats would be allowed access to him. It is apparent from the above guarantees that [the applicant] is being prosecuted for ordinary criminal offences; his prosecution is not politically motivated and is not connected with his [ethnic origin]. [The applicant’s] allegations concerning his persecution on political grounds, lack of fair trial in Kyrgyzstan, and persecution of his family members by law-enforcement bodies in Kyrgyzstan are not supported by any objective data. The court has established that [the applicant’s] wife and daughter live in Kyrgyzstan, [that there is] no substantiated information concerning their alleged persecution by the Kyrgyz authorities, [and] that they do not travel outside the territory of the Kyrgyz Republic. [The applicant himself] did not apply for refugee status until his arrest.", "... The Russian Ministry of Foreign Affairs does not have any information that would prevent [the applicant’s] extradition to Kyrgyzstan. Therefore, there are no grounds ... preventing [the applicant’s] extradition to Kyrgyzstan for criminal prosecution. The argument of [the applicant’s] lawyer referring to international sources (report of the United Nations Special Rapporteur on Torture, report of the United Nations High Commissioner for Human Rights on technical assistance and cooperation on human rights for Kyrgyzstan, report of the United Nations Committee on the Elimination of Racial Discrimination, International Crisis Group Kyrgyzstan report) to the effect that after the interethnic clashes in the south of Kyrgyzstan in June 2010 the law‑enforcement bodies had subjected ethnic Uzbeks to torture and that there are grounds to believe that [the applicant] might be subjected to torture in the event of his extradition, is unsubstantiated. The aforementioned international documents describe the general human rights situation in Kyrgyzstan, are unspecific and unsupported by evidence, and are countered by the guarantees offered by Kyrgyz Republic, which relate directly to the applicant and are sufficient to eliminate the risk of [the applicant’s] being subjected to inhuman treatment.", "[As to] the reference by the defence to ... the judgment of the European Court of Human Rights in the case of Makhmudzhan Ergashev, [the case] has no connection with [the applicant’s] case and cannot be taken into consideration. ...” 18. The applicant appealed to the Supreme Court of Russia. 19. In the meantime, on 28 January 2014 the Court indicated to the Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited or otherwise involuntarily removed from Russia to Kyrgyzstan or another country for the duration of the proceedings before the Court.", "20. On 30 January 2014 the Supreme Court upheld the judgment of 1 November 2013 on appeal, endorsing the reasoning of the first-instance court: “The court has taken into consideration the arguments of the defence and the documents submitted, including the concluding observations of the UN Committee against Torture [dated December 2013] on Kyrgyzstan’s second periodic report, in which the Committee expressed its deep concern with regard to apparent impunity regarding widespread acts of torture and ill-treatment that remained uninvestigated by the authorities of the Kyrgyz Republic ... and the report that the investigations, persecutions, convictions and punishments in connection with the events of June 2010 are mainly directed at persons of Uzbek ethnic origin. At the same time, these circumstances cannot in themselves be considered to constitute sufficient grounds for refusing to extradite [the applicant] to the Kyrgyz Republic ... Pursuant to Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, no State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be at risk of being subjected to torture. For the purpose of determining whether such grounds exist, the competent authorities must take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. ...", "The provisions of Article 3 of the Convention against Torture imply that it is necessary not only to verify the existence in the State concerned of gross and mass violations of human rights, but also the existence in that State of the likelihood that the individual concerned would personally be at risk of torture if returned to his or her country. That risk must be real, immediate and foreseeable. According to the legal position of the UN Committee against Torture as outlined in a number of its decisions (...), the existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not of itself constitute sufficient grounds for determining whether the person in question would be at risk of being subjected to torture upon return to that country. Additional grounds must be adduced showing that the individual concerned would be personally at risk ... The Committee ... noted that it is necessary to establish the existence of substantial grounds for believing that the person would be at risk of torture if returned, and that such risk of torture must be assessed on grounds that go beyond mere theory or suspicion.", "The risk need not be highly probable, but it must be personal and present. In this regard the Committee has determined, in previous decisions, that the risk of torture must be foreseeable, real and personal. The evidential material submitted by the Prosecutor General’s Office – on the basis of which the decision to extradite [the applicant] was taken – does not contain any information demonstrating that [the latter] personally would be at risk of torture, inhuman or degrading treatment or punishment in the event of his extradition. [A long passage on the guarantees provided by the Kyrgyz authorities]. Neither [the applicant] nor his lawyers provided any substantial evidence showing that [the former] was at risk of being subjected to torture, inhuman or degrading treatment or punishment by the Kyrgyz authorities, or that he might be persecuted on grounds [such as] race, religion, national or social origin, or political opinion.", "... [The applicant] does not belong to any political or other party, organisation or group that opposes [the present government of Kyrgyzstan]. While living in Kyrgyzstan [the applicant] was not subjected to any torture, inhuman or degrading treatment by the authorities; he arrived in Russia in March 2012, that is to say a year and nine months after the crimes of which he stands accused had been committed in June 2010. [The applicant’s] wife and daughter remain in the Kyrgyz Republic. No evidence has [therefore] been provided showing that [the applicant] or his relatives were persecuted by [the Kyrgyz] authorities. [The applicant’s] statement to the effect that he is a “leader of Uzbek diaspora” and belongs to the ethnic Uzbeks – which allegedly gives him reason to believe that he would be subjected to repressive criminal prosecution and unfair conviction – is an assumption unsupported by any evidence.", "It cannot therefore be considered to constitute sufficient grounds for concluding that he is personally at risk of being subjected to torture and other ill-treatment in the event of his extradition to Kyrgyzstan. ...” C. The applicant’s detention 21. On 16 March 2013 the Artyom Town Court in the Primorye Region ordered the applicant’s detention pending extradition until 23 April 2013. 22. On 22 April 2013 the same court extended the applicant’s detention until 14 September 2013.", "On the same day the applicant’s lawyer lodged an appeal against this decision. On 12 July 2013 the Primorye Regional Court upheld the extension order on appeal. 23. On 13 September 2013 the Leninskiy District Court of Vladivostok extended the applicant’s detention until 13 March 2014. On 19 September 2013 the applicant’s lawyer lodged an appeal against this decision.", "The appeal was dispatched by post on 20 September 2013. The Leninskiy District Court received the applicant’s appeal on 21 October 2013. On 23 October 2013 a copy of the appeal was forwarded to the applicant and the local prosecutor’s office, and the latter was invited to submit comments by 28 October 2013. On 31 October 2013 the Leninskiy District Court forwarded the case file to the Primorye Regional Court for examination. On 6 November 2013 an appeal hearing was scheduled for 7 November 2013 and the parties were informed accordingly.", "On 7 November 2013 the Primorye Regional Court upheld the extension order of 13 September 2013 on appeal. 24. On 7 March 2014 the deputy Prosecutor of the Primorye Region decided to release the applicant in the light of the decision of the Court to apply Rule 39 of the Rules of Court to the present case. The applicant was released on the same day. D. Refugee proceedings 25.", "On 16 April 2013 the applicant lodged a request for refugee status with Russia’s FMS, alleging persecution on the grounds of ethnic origin. 26. On 28 June 2013 the FMS for the Primorye Region rejected the applicant’s request, having found that the applicant had left his country of nationality for reasons falling outside the scope of section 1(1)(1) of the Refugee Act. 27. On 24 September 2013 Russia’s FMS upheld the refusal of 28 June 2013.", "28. The applicant lodged an appeal against the above decision before the Basmanniy District Court of Moscow. In his appeal he referred to reports concerning the widespread ill-treatment of Uzbek detainees in Kyrgyzstan, as confirmed by various UN sources, NGOs’ reports and the judgment of the Court in the case of Makhmudzhan Ergashev. 29. On 22 January 2014 the Basmanniy District Court of Moscow rejected the applicant’s appeal against the FMS’s decisions.", "The District Court considered that the applicant had failed to substantiate his fears of persecution in Kyrgyzstan and that his allegations that the criminal charges against him were unlawful fell outside the scope of the refugee status proceedings. The District Court pointed out that his application for refugee status contained no indications that he had been previously accused or convicted of a criminal offence, or that he had been a member of any political, religious or military organisations. It also took into account the fact that the applicant had not applied for refugee status until after his placement in detention. 30. In his appeal against the judgment of 22 January 2014 the applicant requested a rigorous examination of his arguments regarding the risk of ill‑treatment.", "He again referred to various reports by international organisations and reputable NGOs to support his position. 31. On 20 May 2014 the Moscow City Court upheld that decision on appeal, reiterating the conclusions of the migration authorities and the first‑instance court. E. Temporary asylum proceedings 32. On 25 April 2014 the FMS for the Primorye Region issued a decision granting the applicant temporary asylum in the Russian Federation until 25 April 2015, referring to the existence of circumstances preventing the applicant’s extradition, namely the application of Rule 39 of the Rules of Court in the applicant’s case before the Court and the impossibility of foreseeing the duration of those proceedings.", "33. On 10 April 2015 the FMS for the Primorye Region extended the term of the temporary asylum granted to the applicant until 25 April 2016, with reference to the same grounds. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Applications for varying preventive measures 34.", "Article 110 of the Russian Code of Criminal Procedure (“CCrP”) provides that a preventive measure (such as detention) may be (i) cancelled, if no longer necessary, or (ii) replaced by a less or more intrusive measure if the grounds for such a measure, as indicated in Articles 97 and 99, are no longer the same. 35. Article 97 of the CCrP lists the grounds for imposing a preventive measure in a domestic criminal case, namely where there is sufficient reason to consider that the person suspected or accused of committing a criminal offence will (i) abscond from the investigation or evade justice, (ii) continue his or her criminal activity, or (iii) threaten a witness or other person involved in the criminal proceedings, destroy or tamper with evidence, or otherwise interfere with the proceedings. Article 97 also provides that a preventive measure may be imposed in relation to an extradition case. 36.", "Article 99 of the CCrP provides a non-exhaustive list of factors which should be taken into account when imposing a preventive measure, for instance the seriousness of the offence, information about the suspect’s personality, and also his or her age, state of health and employment status. 37. Article 119 of the CCrP lists the parties entitled to make an application in the course of criminal proceedings, such as suspects, defendants, lawyers, victims, prosecutors, experts, civil plaintiffs and other individuals whose interests have been affected at the pre-trial or trial stages. Such applications can be made to an inquiry officer, an investigator or a judge. 38.", "Article 120 of the CCrP provides that applications can be made at any stage of the criminal proceedings. 39. Article 121 of the CCrP provides that applications made in the course of criminal proceedings are to be examined immediately after they are made or, if immediate examination is impossible, within three days after the lodging of an application. 40. Article 122 of the CCrP provides that an inquiry officer, an investigator, a judge or a court is to take the decision to grant or to refuse the application and inform the applicant accordingly.", "The decision can be appealed against pursuant to the procedure laid down in Chapter 16 of the CCrP. 41. 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 on the part of an investigator or a prosecutor which 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 where the preliminary investigation is conducted (ibid.). Following examination of the complaint, a judge can issue a decision to declare the challenged act, failure to act 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).", "B. Other relevant legal issues 42. For a summary of other relevant domestic law and practice see Abdulkhakov v. Russia (no. 14743/11, §§ 71-98, 2 October 2012). III.", "RELEVANT INTERNATIONAL PUBLISHED MATERIAL CONCERNING KYRGYZSTAN 43. For relevant reports and items of information, see Makhmudzhan Ergashev v. Russia (cited above, §§ 30-46) and Mamadaliyev v. Russia (no. 5614/13, §§ 37-42, 24 July 2014). THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 44.", "The applicant complained that, if extradited to Kyrgyzstan, he would be subjected to torture or inhuman or degrading treatment or punishment because he belonged to the Uzbek ethnic minority. He referred to various sources, including publications by the UN Committee against Torture, Amnesty International and Human Rights Watch. He relied on Article 3 of the Convention, which reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 45. The Government argued that the provision of temporary asylum to the applicant could be viewed as a reason for declaring his complaint under Article 3 of the Convention inadmissible. They referred in this connection to the inadmissibility decision in the case of Tukhtamurodov v. Russia (dec.), no.", "21762/14, 20 January 2015. 46. The applicant submitted that the only reason for granting him temporary asylum had been the application of Rule 39 of the Rules of Court upon presentation of his case before the Court. This was a common administrative practice with the sole purpose of ensuring his continued stay in Russia whilst his case was being considered by the Court. The decisions granting him temporary asylum therefore affected neither his status nor the likelihood of his being extradited to Kyrgyzstan if his temporary asylum were not extended, thus facing the risk of torture.", "The applicant stressed that in contrast to the case of Tukhtamurodov, where the national courts had cancelled the applicant’s extradition order, in his case the national courts had upheld the extradition order and he therefore continued to face imminent risk of being extradited to Kyrgyzstan. 47. In so far as the Government may be understood to argue that the applicant had lost his victim status, the Court reiterates that an individual may no longer claim to be a victim of a violation of the Convention where the national authorities have acknowledged, either expressly or in substance, the breach of the Convention and afforded redress (see, among many authorities, Achour v. France (dec.) no. 67335/01, 11 March 2004, where the authorities cancelled the expulsion order against the applicant, and Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996‑III). 48.", "As to the specific category of cases involving expulsion measures, the Court has consistently held that an applicant cannot claim to be the “victim” of a measure which is not enforceable. It has adopted the same stance in cases where the execution of the deportation or extradition order has been stayed indefinitely or otherwise deprived of legal effect and where any decision by the authorities to proceed with deportation can be appealed against before the relevant courts (see Karimov v. Russia, no. 54219/08, § 89, 29 July 2010, with further extensive references). 49. The present application concerns the applicant’s extradition to Kyrgyzstan where, according to him, he would face a serious risk of ill‑treatment by the authorities on account of his Uzbek ethnic origin.", "The Court observes firstly that the decision concerning the applicant’s extradition was made final by the Russian authorities on 30 January 2014 (see paragraph 20 above) and secondly that the decisions granting the applicant temporary asylum were taken by the Russian authorities in April 2014 and April 2015 only as a result of the application of Rule 39 of the Rules of Court in the applicant’s case and the impossibility of foreseeing the duration of those proceedings (see paragraphs 32-33 above). Clearly, the fact that the applicant had been granted temporary asylum did not constitute an acknowledgment, either explicit or implicit, on the part of the Russian authorities that there had been or might have been a violation of Article 3 or that the applicant’s extradition order had been deprived of its legal effect. 50. In these circumstances, the Court considers that the applicant may claim to be a “victim” for the purposes of Article 34 of the Convention (compare Karimov, cited above, §§ 86-91; Niyazov v. Russia, no. 27843/11, §§ 104-107, 16 October 2012; Tukhtamurodov, cited above, §§ 37-39; and Khamrakulov v. Russia, no.", "68894/13, § 61, 16 April 2015). 51. The Court further notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The parties’ submissions (a) The Government 52. The Government submitted that the applicant’s allegations concerning the risk of treatment prohibited by Article 3 of the Convention had been thoroughly studied by the domestic courts in the proceedings concerning the applicant’s extradition and those concerning his request for refugee status. The domestic courts rightly rejected the references made by the applicant’s representative to various reports describing the general situation regarding the allegedly widespread ill-treatment of ethnic Uzbeks in Kyrgyzstan as being too general and insufficient for the purposes of blocking the applicant’s extradition. The Government expressed their firm belief that any risk of ill-treatment that might arise from the general situation in Kyrgyzstan has been completely excluded in the circumstances of the present case since the applicant’s extradition has been requested through official channels with the provision of the necessary guarantees.", "They further submitted that it was highly unlikely that the Kyrgyz authorities – who in 2014 had demonstrated their openness and commitment to cooperating with international organisations in fighting the ill-treatment and discrimination of ethnic Uzbeks – would breach those guarantees. The Government went on to affirm that no instances of non-compliance by the Kyrgyz authorities with the guarantees given in respect of extradited ethnic Uzbeks had been recorded so far in the course of the cooperation between Kyrgyzstan and Russia. 53. The Government noted that the Prosecutor General’s Office of the Republic of Kyrgyzstan had expressly undertaken to ensure that Russian diplomatic representatives would be given access to the applicant in the event of his extradition. They further noted with regret that, by forbidding extradition in cases similar to the present case, the Court had not yet given the Russian authorities an opportunity to demonstrate the effectiveness of such “diplomatic supervision” in practice.", "At the same time, within the framework of the above mechanism, the Russian Ministry of Foreign Affairs and the Kyrgyz Prosecutor General’s Office had provided information to the Russian Prosecutor General’s Office concerning the fate of several ethnic Uzbeks previously extradited to Kyrgyzstan for criminal prosecution. The information in question proves that the Kyrgyz authorities had abided by their assurances not to subject these persons to torture, inhuman or degrading treatment or punishment, thus demonstrating the unbiased attitude – and in certain cases even specific loyalty – of Kyrgyz justice towards this category of persons. The Government cited the examples of three individuals of Uzbek ethnic origin who had received a suspended sentence and had been released on parole, or whose criminal case had been dismissed. The Government further informed the Court that on 30‑31 July and 21 November 2014, and again on 24 February 2015 the diplomats of the Consulate General of Russia in Osh and of the Russian Embassy in Kyrgyzstan had visited six non-Kyrgyz persons (two of them ethnic Uzbeks charged with particularly grave crimes including aggravated murder, and one of whom had also been charged with participation in mass disorders) extradited to Kyrgyzstan earlier. The latter were satisfied with the conditions of their detention and denied having been subjected to any form of ill-treatment during preliminary investigations.", "No violations of their procedural rights, including the right to defence, had been recorded by the Kyrgyz law-enforcement bodies. 54. Turning to the applicant’s individual situation, the Government noted that after the events of June 2010 in Kyrgyzstan, the applicant had repeatedly been invited by the Kyrgyz investigative bodies for questioning as a witness. In June 2011 the applicant had learned that criminal proceedings had been opened against him and he had moved to a different city in Kyrgyzstan, to his sister’s home, where he had stayed for seven months. Afterwards, in March 2012, the applicant had left Kyrgyzstan for Russia.", "The declared aim of his trip was employment. The applicant had not requested refugee status or temporary asylum before his departure from Kyrgyzstan or directly after his arrival in Russia, and it was not until April 2013 that his request for refugee status had been lodged. The applicant had not been subjected to ill-treatment or ethnic discrimination by the Kyrgyz authorities before the institution of the criminal proceedings in question. His allegations about the extortion of money during the criminal proceedings were not supported by any evidence. Furthermore, the applicant’s wife and one of his daughters continued to reside in Kyrgyzstan, and there is no evidence that they had been subjected to ill-treatment or ethnic discrimination by the Kyrgyz authorities.", "55. In the light of the foregoing, the Government expressed doubts that the applicant would face a real, immediate and foreseeable risk of being subjected to treatment contrary to Article 3 of the Convention in the event of his return to Kyrgyzstan. (b) The applicant 56. The applicant maintained his complaint. Relying on reports by major international organisations, he argued that the general human rights situation in Kyrgyzstan had not improved since the Court’s judgment in the case of Makhmudzhan Ergashev (cited above) and that a serious risk of being subjected to ill-treatment remained for ethnic Uzbeks like him who stood accused of involvement in the June 2010 events.", "57. The applicant disagreed with the Government as to the thoroughness of the assessment by the Russian courts of his arguments concerning the risk of ill-treatment in the event of his extradition to Kyrgyzstan. He noted in this respect that the decision of the Moscow City Court of 20 May 2014 had not even mentioned his arguments or references to international reports. 58. The applicant further submitted that the diplomatic assurances relied on by the Government could not suffice to protect him against the risk of ill‑treatment in the light of the criteria established in the case of Othman (Abu Qatada) v. the United Kingdom (no.", "8139/09, § 189, ECHR 2012 (extracts)). He noted, in particular, the absence of any long-established reciprocal communication between Russia and Kyrgyzstan aimed at enforcing such guarantees, the absence of any independent monitoring mechanism leading to effective protection against torture and ill-treatment in practical terms, and the absence of an effective system of protection against torture in Kyrgyzstan. 59. Finally, the applicant argued that the fact that he had not been ill‑treated before he had managed to leave Kyrgyzstan did not reduce the risk of his being ill-treated in the event of his return. 2.", "The Court’s assessment (a) General principles 60. For a summary of the relevant general principles emerging from the Court’s case-law, see Umirov v. Russia (no. 17455/11, §§ 92‑100, 18 September 2012). (b) Application of the general principles in the present case 61. The Court observes that the Russian authorities ordered the applicant’s extradition to Kyrgyzstan.", "The extradition order has not been enforced as a result of the application by the Court of an interim measure under Rule 39 of the Rules of Court. The Court will therefore assess whether the applicant faces the risk of treatment contrary to Article 3 in the event of his extradition to Kyrgyzstan – the material date for the assessment of that risk being that of the Court’s consideration of the case – taking into account the assessment made by the domestic courts (see Gayratbek Saliyev v. Russia, no. 39093/13, § 60, 17 April 2014). 62. Turning to the general human rights climate in the requesting country, the Court makes the following observations.", "In a previous case concerning extradition to Kyrgyzstan it found that in 2012 the situation in the south of the country was characterised by torture and other ill‑treatment of ethnic Uzbeks by law-enforcement officers. Such incidences had increased in the aftermath of the events of June 2010 and remained widespread and rampant, being aggravated by the impunity of law‑enforcement officers. Moreover, the Court established that the issue needed to be seen in the context of the rise of ethno‑nationalism in the politics of Kyrgyzstan, particularly in the south, the growing interethnic tensions between Kyrgyz and Uzbeks, continued discriminatory practices faced by Uzbeks at institutional level and the under‑representation of Uzbeks in, amongst others, law-enforcement bodies and the judiciary (see Makhmudzhan Ergashev, cited above, § 72). As is clear from the reports by UN bodies and reputable NGOs, the situation in the southern part of Kyrgyzstan had not improved since 2012. In particular, various reports are consistent in their descriptions of biased attitudes based on ethnicity in investigations, prosecutions, condemnations and sanctions imposed on ethnic Uzbeks who have been charged and convicted in relation to the 2010 events in the Jalal-Abad Region.", "They also agree about the lack of full and effective investigations into the numerous allegations of torture and ill‑treatment imputable to Kyrgyz law-enforcement agencies, arbitrary detention and the excessive use of force against Uzbeks allegedly involved in the events of June 2010. Accordingly, the Court concludes that the current overall human rights situation in Kyrgyzstan remains highly problematic (see Gayratbek Saliyev, cited above, § 61; Kadirzhanov and Mamashev v. Russia, nos. 42351/13 and 47823/13, § 91, 17 July 2014; and Mamadaliyev, cited above, § 60). 63. The Court will now examine whether there are any individual circumstances substantiating the applicant’s fears of ill-treatment (see Mamatkulov and Askarov v. Turkey [GC], nos.", "46827/99 and 46951/99, § 73, ECHR 2005‑I). It reiterates in this respect that where an applicant alleges that he or she is a member of a group that is systematically exposed to the practice of ill-treatment, the protection of Article 3 comes into play when the applicant establishes – where necessary on the basis of information contained in recent reports by independent international human‑rights protection bodies or non-governmental organisations – that there are good reasons to believe in the existence of the practice in question and in his or her membership of the group concerned. In those circumstances, the Court will not then insist that the applicant demonstrate the existence of further special distinguishing features (see Saadi v. Italy [GC], no. 37201/06, § 132, ECHR 2008, and NA. v. the United Kingdom, no.", "25904/07, § 116, 17 July 2008). 64. The Court observes that, unlike other Russian cases involving extradition to Kyrgyzstan previously examined by the Court, in the present case the domestic authorities considered the applicant’s arguments, supported by various UN sources and NGO’s reports, as regards the existence of a widespread practice of tortures and other ill-treatment of ethnic Uzbeks in Kyrgyzstan, particularly in the context of prosecution of the June 2010-related offences. They considered, however, that these circumstances could not in themselves be considered sufficient for refusing the applicant’s extradition to Kyrgyzstan. Relying on Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 and the legal position of the UN Committee against Torture, the Russian Supreme Court stressed that the refusal of an extradition would be possible not only where the existence of gross and mass violations of human rights would be established in a requesting State, but also where it would be established that an individual concerned would run a personal risk of torture if returned to his or her country.", "In making an assessment of the applicant’s personal risk of ill‑treatment in case of his return to Kyrgyzstan, the Supreme Court held that the latter did not belong to any political or other party, organisation or group in opposition to the present government of Kyrgyzstan, that while living in Kyrgyzstan he had not been subjected to any torture, inhuman or degrading treatment by the authorities, that he had arrived in Russia many months after the crimes of which he stood accused had been committed in June 2010, that his wife and daughter remained in the Kyrgyz Republic, and that no evidence had therefore been provided to show that he or his relatives were persecuted by the Kyrgyz authorities. The applicant’s argument as to his Uzbek ethnic origin which gave him reason to believe that he would be subjected to repressive criminal prosecution and unfair conviction was dismissed as unsubstantiated. The Court further notes that the domestic courts attached particular importance to the diplomatic assurances provided by the Kyrgyz authorities, which were sufficient, in their view, to eliminate the risk of the applicant’s being subjected to inhuman treatment in the event of his extradition (see paragraphs 17 and 20 above). 65. While the Court welcomes the approach adopted by the domestic courts in the present case, which is an important development in handling similar cases, it cannot nevertheless agree with their conclusion as to the absence of substantial grounds for believing that the applicant would face a real, immediate and foreseeable risk of ill-treatment if returned to Kyrgyzstan.", "The Court notes, in particular, that the applicant is an ethnic Uzbek charged with a number of serious offences allegedly committed in the course of the violent inter-ethnic clashes between Kyrgyz and Uzbeks in June 2010. Given the widespread use by the Kyrgyz authorities of torture and ill-treatment in order to obtain confessions from ethnic Uzbeks charged with involvement in the interethnic riots in the Jalal-Abad Region, which has been reported by both UN bodies and reputable NGOs, the Court is satisfied that the applicant belongs to a particularly vulnerable group, the members of which are routinely subjected to treatment proscribed by Article 3 of the Convention in the requesting country (see Gayratbek Saliyev, cited above, § 62, and Kadirzhanov and Mamashev, cited above, § 92). 66. As regards the diplomatic assurances provided by the Kyrgyz authorities, the Court reiterates that they are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment. There is an obligation to examine whether these assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment.", "The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time (see Saadi, cited above, § 148, and Othman (Abu Qatada), cited above, §§ 187-89). 67. The Court notes that, according to the assurances provided by the Kyrgyz authorities to the Russian Federation, the applicant would have the benefit of legal assistance, he would not be extradited to a third State, he would be prosecuted only for the offence for which he was being extradited, he would not be subjected to torture, inhuman or degrading treatment or punishment, he would be prosecuted for an ordinary criminal offence devoid of any political character or discrimination on any ground, he would be able to freely leave Kyrgyzstan after he had stood trial and served a sentence, and Russian diplomats would be given access to him (see paragraph 17 above). 68. Even accepting that the assurances in question were not couched in general terms, the Court observes that Kyrgyzstan is not a Contracting State to the Convention, nor have its authorities demonstrated the existence of an effective system of legal protection against torture that could act as an equivalent to the system required of Contracting States.", "While those assurances appear to be formally binding on the local authorities, the Court has serious doubts, in view of the poor human-rights record in the south of the country, whether the local authorities there can be expected to abide by them in practice (see Makhmudzhan Ergashev, cited above, §§ 35-46). Furthermore, it has not been demonstrated before the Court that Kyrgyzstan’s commitment to guaranteeing access to the applicant by Russian diplomatic staff would result in effective protection against proscribed ill-treatment in practical terms, as it has not been shown that the aforementioned staff would be in possession of the expertise required for effective follow-up of the Kyrgyz authorities’ compliance with their undertakings. Nor was there any guarantee that they would be able to speak to the applicant without witnesses. In addition, their potential involvement was not supported by any practical mechanism setting up a procedure by which the applicant could lodge his complaints with them or facilitating their unfettered access to detention facilities (see Mamadaliyev, cited above, § 69). The fact that six non-Kyrgyz persons, only two of whom were ethnic Uzbeks, were visited in Kyrgyzstan by Russian diplomatic staff after their extradition cannot be considered to constitute a sufficient demonstration of the existence of a monitoring mechanism in the requesting country (see, by contrast, Othman (Abu Qatada), cited above, §§ 189-204).", "69. In view of the above considerations, the Court cannot accept the Government’s assertion that the assurances provided by the Kyrgyz authorities are sufficient to eliminate the risk of his exposure to ill-treatment in the requesting country. 70. Considering the attested widespread and routine use of torture and other ill-treatment by law-enforcement agencies in the southern part of Kyrgyzstan in respect of members of the Uzbek community, to which the applicant belongs, the impunity of law‑enforcement officers and the absence of sufficient safeguards for the applicant in the requesting country, the Court finds it substantiated that the applicant would face a real risk of exposure to treatment proscribed by Article 3 if returned to Kyrgyzstan. 71.", "Accordingly, the Court finds that the applicant’s extradition to Kyrgyzstan would constitute a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 72. The applicant complained that his appeals against the detention orders of 22 April and 13 September 2013 had not been examined “speedily” and that there had been no effective procedure by which he could challenge his detention after 30 January 2014. He relied on Article 5 § 4 of the Convention, which reads: “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 73. The Government claimed that the applicant’s complaint concerning the excessive length of the proceedings concerning the appeal against the extension order of 22 April 2013 had been lodged outside the six-month time-limit provided by Article 35 § 1 of the Convention. 74. The Court notes that the applicant introduced his complaints under Article 5 § 4 of the Convention on 4 March 2014. Bearing in mind the six‑month requirement laid down in Article 35 § 1, the Court considers that it is not competent to examine the complaint concerning the extension ordered on 22 April 2013 and upheld on 12 July 2013.", "75. On the other hand, in so far as the applicant complained under Article 5 § 4 about the excessive length of the proceedings concerning the appeal against the extension order of 13 September 2013 and about his inability to obtain a review of his detention after 30 January 2014, the Court finds that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring them inadmissible has been established. Therefore, they must be declared admissible. B.", "Merits 1. The parties’ submissions (a) Speediness of review on appeal 76. The Government submitted that the applicant’s lawyer had lodged an appeal against the extension order of 13 September 2013 on 19 September 2013. Although the appeal was dispatched by post on 20 September 2013, it was not until 21 October 2013 that the Leninskiy District Court of Vladivostok received it, although there are no documents disclosing the reasons for this delay. On 23 October 2013 a copy of the appeal was forwarded to the applicant and the local prosecutor’s office, who were invited to submit their comments by 28 October 2013.", "On 31 October 2013 the Leninskiy District Court forwarded the case file to the Primorye Regional Court for examination. On 6 November 2013 the appeal hearing was scheduled and the parties were informed accordingly. The appeal was examined on 7 November 2013, that is to say seventeen days after its receipt. In view of the above circumstances, the length of the proceedings concerning the appeal against the extension order of 13 September 2013 cannot be regarded as breaching the requirement of “speediness” under Article 5 § 4 of the Convention. 77.", "The applicant argued that the Government had not provided any evidence that it had actually taken more than a month to deliver the appeal sent by the applicant’s representative, such delay being very unusual for postal delivery within the same city. The Post of Russia is in any event a State-owned entity and it is for the domestic authorities to facilitate its operation in a way that does not contribute to any violation of the rights of detainees. Furthermore, the Government did not adduce any reasonable justification for the subsequent seventeen-day delay. (b) Alleged inability to obtain a review of detention 78. The Government argued that the applicant did in fact have the opportunity after 30 January 2014 to initiate a review of the lawfulness of his detention and to apply for release, as is required by Article 5 § 4 of the Convention.", "They submitted, in particular, that the domestic legal system provided for an application for the release of individuals detained pending extradition under Articles 119-122 of the CCrP. The Government claimed, furthermore, that the applicant could also have asked a prosecutor to reconsider the imposition of custodial detention under Article 110 of the CCrP after the interim measures had been applied by the Court. They illustrated the application of this legal provision by reference to the case of Kadirzhanov and Mamashev (cited above, §§ 34, 35, 111, 113 and 131), where Mr Kadirzhanov – who had been held in custody pending extradition and in respect of whom the Court had applied interim measures pursuant to Rule 39 of the Rules of Court – was released on the basis of a prosecutor’s decision at the request of his lawyer. The Government further stated that, although the interim measure had been applied by the Court on 28 January 2014, the Supreme Court was not competent to take a decision on the applicant’s release from custody during the court hearing of 30 January 2014 because the scope of that hearing had been limited to reviewing the decision of the Primorye Regional Court of 1 November 2013 and the latest extension order had been delivered by a different court. 79.", "The applicant claimed that the interval between the instances of “automatic periodic review” of the lawfulness of his detention pending extradition had been excessively long, as he had not been able to ask the domestic courts to reconsider the issue of custodial detention after 30 January 2014. Moreover, he disagreed with the Government’s assertion that it had been open to him to initiate proceedings for release under Article 110 of the CCrP, as in his view it had been incumbent on the State agencies to initiate such proceedings of their own motion. He further claimed that the application procedure under Articles 119-122 of the CCrP could not be regarded as an effective remedy in his case as it was applicable only to parties to criminal proceedings instituted in Russia. Moreover, any prosecutor’s decision taken on the basis of that procedure could only be challenged in court under Article 125 of the CCrP, which does not empower a court to order a detainee’s release, even if it finds the impugned detention order unlawful or unjustified (see Zokhidov v. Russia, no. 67286/10, § 188, 5 February 2013).", "2. The Court’s assessment (a) Speediness of review on appeal (i) General principles 80. The Court reiterates that Article 5 § 4 of the Convention enshrines the right to a speedy judicial decision concerning the lawfulness of detention, and to an order terminating it if it proves to be unlawful (see Baranowski v. Poland, no. 28358/95, § 68, ECHR 2000‑III). Article 5 § 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention.", "However, where domestic law provides for an appeal, the appellate body must also comply with the requirements of Article 5 § 4, for instance as concerns the speediness of the review in such appeal proceedings. Accordingly, in order to determine whether or not there has been compliance with the requirement that a decision be given “speedily”, it is necessary to effect an overall assessment where the proceedings have been conducted at more than one level of jurisdiction (see Mooren v. Germany [GC], no. 11364/03, § 106, 9 July 2009). At the same time, the standard of “speediness” is less stringent when it comes to proceedings before an appellate court (see Lebedev v. Russia, no. 4493/04, § 96, 25 October 2007).", "81. Although the number of days taken by the relevant proceedings is obviously an important element, it is not necessarily in itself decisive for the question of whether a decision has been delivered with the requisite speed (see Merie v. the Netherlands (dec.), no. 664/05, 20 September 2007). What is taken into account is the diligence shown by the authorities, any delay attributable to the applicant, and any delay-inducing factors for which the State cannot be held responsible (see Jablonski v. Poland, no. 33492/96, §§ 91-94, 21 December 2000).", "The question whether the right to a speedy decision has been respected must thus be determined in the light of the circumstances of each case (see Rehbock v. Slovenia, no. 29462/95, § 84, ECHR 2000-XII). (ii) Application of those principles in the present case 82. The Court observes that it is undisputed between the parties that the appeal against the detention order of 13 September 2013 was lodged by the applicant’s lawyer on 19 September 2013 and dispatched by post on 20 September 2013. It is further undisputed that the Primorye Regional Court examined the above appeal on 7 November 2013, forty-eight days after it had been lodged.", "83. The Government have not argued, and the Court does not find any indication to suggest, that any delay in the examination of the applicant’s appeal against the detention order of 13 September 2013 can be attributable to his conduct. In the absence of any explanation from the Government capable of justifying such delay, the Court considers that the amount of time it took the Primorye Regional Court to examine the applicant’s appeal against the first-instance detention order in the present case can only be characterised as inordinate. This is not reconcilable with the requirement of “speediness”, as set out in Article 5 § 4 of the Convention (see Khamrakulov, cited above, §§ 79-81). 84.", "The Court thus finds that there has been a violation of Article 5 § 4 of the Convention. (b) Alleged inability to obtain a review of detention (i) General principles 85. The Court reiterates that forms of judicial review satisfying the requirements of Article 5 § 4 may vary from one domain to another, and will depend on the type of deprivation of liberty in issue. It is not out of the question for a system based on an automatic periodic review of the lawfulness of detention by a court to satisfy the requirements of Article 5 § 4 (see Megyeri v. Germany, 12 May 1992, § 22, Series A no. 237‑A).", "However, long intervals in the context of such an automatic periodic review may give rise to a violation of Article 5 § 4 (see, among other authorities, Herczegfalvy v. Austria, 24 September 1992, § 77, Series A no. 244). By virtue of Article 5 § 4, a detainee is entitled to ask a “court” having jurisdiction to decide “speedily” whether or not his or her deprivation of liberty has become “unlawful” in the light of new factors which have emerged subsequent to the initial decision to order his or her remand in custody (see Ismoilov and Others, no. 2947/06, § 146, 24 April 2008). The requirements of Article 5 § 4 as to what may be considered a “reasonable” interval in the context of periodic judicial review also varies from one domain to another, depending on the type of deprivation of liberty in question (see, for a summary of the Court’s case-law in the context of detention for the purposes set out in sub-paragraphs (a), (c), (e) and (f) of Article 5 § 1, Abdulkhakov, cited above, §§ 212-14).", "86. The Court observes that it is not its task to attempt to rule as to the maximum period of time between reviews which should automatically apply to a certain category of detainees. The question of whether the periods comply with the requirement must be determined in the light of the circumstances of each case (see Sanchez-Reisse v. Switzerland, 21 October 1986, § 55, Series A no. 107, and Oldham v. the United Kingdom, no. 36273/97, § 31, ECHR 2000-X).", "The Court must, in particular, examine whether any new relevant factors that have arisen in the interval between periodic reviews have been assessed, without unreasonable delay, by a court having jurisdiction to decide whether or not the detention has become “unlawful” in the light of these new factors (see Abdulkhakov, cited above, § 215). (ii) Application of those principles in the present case 87. The Court notes that, in the context of reviewing the applicant’s detention, the Government referred to the possibility of the applicant’s lodging an application under Articles 119-122 of the CCrP (see paragraphs 37-40 above) and the possibility of his asking a prosecutor to release him under Article 110 of the CCrP (see paragraph 34 above) after the interim measures had been applied by the Court. The Court has previously addressed similar arguments and dismissed them, having found that the Government have not provided any explanation as to the manner in which applications under Articles 119-122 of the CCrP could have amounted to a request for release or periodic judicial review at reasonable intervals of the lawfulness of the applicant’s detention pending extradition, and that Article 110 of the CCrP did not provide for a clear mechanism of applying for cancellation or varying the preventive measure in the context of detention pending extradition (see Kadirzhanov and Mamashev, cited above, §§ 131-32). 88.", "In any event, the lack of a possibility for those detained pending extradition to initiate proceedings for the examination of the lawfulness of their detention is not in itself contrary to Article 5 § 4 of the Convention, provided that periodic judicial reviews of the lawfulness of detention are held at “reasonable intervals” (see Abdulkhakov, cited above, § 210, with further references). 89. The Court observes that in a number of previous cases against Russia it has accepted that proceedings for the extension of detention pending extradition before a first-instance court amounted to a form of periodic review of a judicial nature (see Kadirzhanov and Mamashev, cited above, § 134; with further references). The Court will therefore have to ascertain whether in the present case such periodic judicial review of the lawfulness of the applicant’s detention was held at a reasonable interval. 90.", "The Court notes that on 13 September 2013 the Leninskiy District Court of Vladivostok extended the applicant’s detention for six months on the grounds that the extradition proceedings were still pending. During the period of detention under consideration, an important development occurred in the applicant’s extradition case. Namely, on 28 January 2014 the Court applied an interim measure under Rule 39 of the Rules of Court (see paragraph 4 above) with the result that, although on 30 January 2014 the extradition order was upheld at final instance and the domestic extradition proceedings were thereby terminated, any preparation for the enforcement of the extradition order had to be suspended for an indefinite period of time. The Court considers that this constituted a new relevant factor that might have affected the lawfulness of, and the justification for, the applicant’s continued detention. The applicant was therefore entitled under Article 5 § 4 to proceedings to have that new relevant factor assessed by a court without unreasonable delay.", "91. The Court further notes that slightly over a month after the above new relevant factor emerged, on 7 March 2014 the deputy Prosecutor of the Primorye Region ordered the applicant’s release in the light of the interim measures applied by the Court under Rule 39 of the Rules of Court (see paragraph 24 above). The Court considers that a delay slightly exceeding one month in assessing a new relevant factor capable of affecting the lawfulness of detention in the applicant’s case was reasonable (compare to Abdulkhakov, cited above, § 216, where in similar circumstances it took the domestic authorities three months to review the applicant’s detention and order his release, and Kadirzhanov and Mamashev, cited above, §§ 137‑38, where such period also amounted to almost three months). 92. The Court finds, therefore, that in the applicant’s case the periodic judicial review of his detention was held at a reasonable interval and provided swift assessment of the new relevant factor capable of affecting the lawfulness of his detention.", "93. There has therefore been no violation of Article 5 § 4 of the Convention on this account. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 94. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 95. The applicant did not claim any damages. Accordingly, there is no call to make an award under this head. B. Costs and expenses 96.", "The applicant claimed 2,800 euros (EUR) for his legal representation before the Court (28 hours spent on the case by the lawyer at an hourly rate of EUR 100 per hour). 97. The Government submitted that, although not manifestly excessive in the light of the Court’s case-law, the requested sum was not based on a contract for legal assistance or any other document setting the hourly rate of the applicant’s representative and should therefore be rejected. 98. 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 2,800 for the proceedings before the Court. C. Default interest 99. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. IV. RULE 39 OF THE RULES OF COURT 100.", "The Court reiterates that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not ask for the case to be referred to the Grand Chamber; or (b) three months after the date of the judgment, if referral of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention. 101. It considers that the instruction given to the Government under Rule 39 of the Rules of Court (see paragraph 4 above) must continue in force until the present judgment becomes final or until the Court takes a further decision in this connection. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares admissible (a) the complaint under Article 3 that the applicant would face a risk of ill‑treatment if the decision to extradite him to Kyrgyzstan were to be enforced; (b) the complaint under Article 5 § 4 concerning the excessive length of the proceedings concerning the appeal against the extension order of 13 September 2013; (c) the complaint under Article 5 § 4 concerning the applicant’s inability to obtain a review of his detention pending extradition after 30 January 2014; and the remainder of the application inadmissible; 2.", "Holds that if the decision to extradite the applicant to Kyrgyzstan were to be enforced, there would be a violation of Article 3 of the Convention; 3. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the length of the proceedings in the applicant’s appeal against the detention order of 13 September 2013; 4. Holds that there has been no violation of Article 5 § 4 of the Convention on account of the applicant’s inability to obtain a review of his detention pending extradition after 30 January 2014; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,800 (two thousand eight hundred euros), plus any tax that may be chargeable, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, and to be paid into the representative’s bank account; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Decides to continue its instruction to the Government under Rule 39 of the Rules of Court that it is desirable, in the interests of the proper conduct of the proceedings, not to extradite the applicant until such time as the present judgment becomes final or until further order.", "Done in English, and notified in writing on 15 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenAndrás SajóRegistrarPresident" ]

[ "SECOND SECTION CASE OF N.K.M. v. HUNGARY (Application no. 66529/11) JUDGMENT This version was rectified on 2 July 2013under Rule 81 of the Rules of Court STRASBOURG 14 May 2013 FINAL 04/11/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of N.K.M.", "v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Danutė Jočienė,Peer Lorenzen,András Sajó,Işıl Karakaş,Nebojša Vučinić,Helen Keller, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 2 April 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 66529/11) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Ms N.K.M. (“the applicant”), on 19 October 2011. The President of the Section acceded to the applicant’s request not to have her name disclosed (Rule 47 § 3 of the Rules of Court).", "2. The applicant was represented by Mr D. Karsai, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice. 3. The applicant complained under Article 1 of Protocol No.", "1 – read alone and in conjunction with Article 13 – that the imposition of a 98% tax on the upper bracket of her severance constituted an unjustified deprivation of property, or else taxation at an excessively disproportionate rate, with no remedy available. Moreover, she argued under Article 8 that the legal presumption of the impugned revenues contravening good morals amounted to an interference with her right to a good reputation. She finally asserted that Article 14 of the Convention read in conjunction Article 1 of Protocol No. 1 had been violated because only those dismissed from the public sector were subjected to the tax and because a preferential threshold was applicable to only a group of those concerned. 4.", "On 14 February 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 19... and lives in Budapest.", "6. The applicant, civil servant for thirty years, had been in the service of a government ministry. On 27 May 2011 she was dismissed, with effect from 28 July 2011. Her dismissal was part of a wave of similar measures throughout the entire civil service. 7.", "On dismissal, the applicant was statutorily entitled to two months’ salary for June and July 2011 during which time she was exempted from working. In addition, she was to receive severance pay amounting to eight months’ salary in application of section 19(2) g) of Act no. XXIII of 1992 on the Status of Civil Servants, as well as to an unspecified sum corresponding to unused leave of absence. These benefits – in so far as they did not represent compensation for unused 2011 leave of absence – were subsequently taxed at 98% in their part exceeding 3.5 million Hungarian forints (HUF)[1]. The exceeding part was HUF 2.4 million[2].", "This represented an overall tax burden of approximately 52% on the entirety of the severance, as opposed to the general personal income tax rate of 16% in the relevant period. The tax amount in question was never disbursed to the applicant, but was withheld by the employer and directly transferred to the tax authority. II. RELEVANT DOMESTIC LAW 8. Section 19 of Act no.", "XXIII of 1992 on the Status of Civil Servants provides as follows: “(1) A civil servant ... shall be entitled to severance if his service relationship is terminated by ordinary dismissal ... . (2) The amount of severance shall be, if the civil servant’s service has been at least: ... g) 20 years: eight months’ salary ...” 9. On 22 July 2010 Parliament adopted Act no. XC of 2010 on the Adoption and Modification of Certain Economic and Financial Laws (“the Act”). The Act, which was published in the Official Gazette on 13 August 2010, introduced inter alia a new tax on certain payments for employees of the public sector whose employment was terminated.", "Consequently, severance pay and other payments related to the termination of employment (such as compensation for unused leave of absence) exceeding HUF 2 million became subject to a 98% tax. However, income tax and social security contributions already paid could be deducted from the tax. Notwithstanding the limit of HUF 2 million, the statutory provisions on the sum of severance pay – in some cases amounting to twelve months’ remuneration – were not modified. The bill preceding the Act justified the tax with reference to public morals and the unfavourable budgetary situation of the country. 10.", "The Act entered into force on 1 October 2010; however, the tax was to be applied to the relevant revenues as from 1 January 2010. Simultaneously, the Constitution was also amended establishing retroactive tax liability in respect of the given tax year concerning “any remuneration against good morals” paid in the public sector. 11. The Act was challenged before the Constitutional Court within the framework of an abstract ex post facto control. This court found the relevant provisions unconstitutional in decision no.", "184/2010. (X.28.) AB on 26 October 2010. According to the Constitutional Court, revenues earned solely on the basis of relevant statutory provisions (that is, the overwhelming majority of the revenues concerned by the disputed legislation) could not be regarded as being against good morals, and therefore not even the constitutional amendment justified a retroactive 98% tax. The Constitutional Court pointed out that it reviewed the rate or amount of taxes only exceptionally; however, it held that a pecuniary burden was unconstitutional if it was of a confiscatory nature or its extent was clearly exaggerated, i.e.", "was disproportionate and unjustified. Considering also the “fifty per cent rule” (Halbteilungsgrundsatz) set out by the German Federal Constitutional Court – according to which the overall tax load on assets must be limited to 50-60% of the yield on those assets – the court found that the 98% tax was excessive and punitive, yet it equally applied to severance pay earned in a fully untainted manner. The tax was levied on or deducted from the revenues concerned even if their morally doubtful origin could not be established. The Constitutional Court annulled the relevant provisions retroactively, that is, from the day of the Act’s entry into force. It relied on the above arguments, rather than on considerations about the protection of property, to which its scrutiny did not extend in the case.", "12. The Constitutional Court’s decision contained in particular the following considerations: “5.2. ... [The Act] applies to ... payments originating in unconditional statutory entitlements and defined by objective criteria, that is, to those ... received from any source specified in the Act and exceeding the [relevant] amount .... The Act does not apply only to budgetary institutions but to other, State-owned employers as well. The use of private resources depends on the citizens’ relatively free choices and autonomous decisions.", "However, decisions concerning public funds are different. [The impugned legislation] relates to public funds, and determines – at least indirectly – the use of public resources. 5.3. ... Depending on the circumstances, [the] 98% tax may apply to payments which derive from the obligatory application of cogent legal provisions.", "... In these cases, the special tax does not function as a regulatory instrument, given its inescapable factual basis. Nor does it aim to prevent abusive payments; its purpose is rather to levy almost the entire income [in question] for the central budget. ... The volume of public duties is considered unconstitutional if they have a confiscatory nature or amount to an evidently excessive rate of the kind which can be regarded as disproportionate and unjustified.", "... The material case concerns a substantial punitive tax which also applies to payments which are received, by virtue of law and within the limits of the proper exercise of rights, upon the termination of employment in the public sector. The Act would be applied also in cases where no infringement of law can be established in connection with the payments concerning the termination of a legal relation. It would deprive the taxable persons of incomes originating in unconditional statutory entitlements. ... To increase budgetary revenues and secure a general and proportionate distribution of public burden is only the secondary and eventual purpose of the legislator when introducing such a tax.", "The direct purpose of the legislator in this case is to set a certain barrier on incomes by using the means of tax law. However, imposing a tax or other similar duty is no constitutional means to achieve such purpose. Several constitutional instruments are at the disposal of the legislator to accomplish its objective. It may reduce or even abolish some State allowances falling under the scope of the Act for the future, or transform the allocation system so that in the future it should not be possible to acquire further entitlements to allowances above a certain limit. Nonetheless, the discretion of the legislator only prevails in the framework of international and European community law.” 13.", "Upon a new bill introduced on the same day as the date of the Constitutional Court’s decision, on 16 November 2010 Parliament re-enacted the 98 % tax with certain modifications, according to which this tax applied from 1 January 2005; however, for the majority of those affected (excluding some senior officials) it only applied to revenues above HUF 3.5 million. The new legislation was published in the Official Gazette of 16 November and entered into force on 30 December 2010. 14. At the same time, Parliament again amended the Constitution, allowing retroactive taxation going back five years. Furthermore, the Constitutional Court’s powers were limited: the amended articles of the Constitution contained a restriction on the Constitutional Court’s right to review legislation on budgetary and tax issues.", "This restriction – which has also been maintained in the new Basic Law in force from 1 January 2012 – allows for constitutional review only in respect of violations of the right to life and human dignity, the protection of personal data, freedom of thought, conscience and religion, and the rights related to Hungarian citizenship. 15. Upon a petition for an abstract ex post facto control, on 6 May 2011 the Constitutional Court annulled – notwithstanding its limited powers – the five-year retroactive application of the 98% tax in decision no. 37/2011 (V.10.) AB, relying on the right to human dignity.", "However, the reasoning of the decision underlined that only the taxation of revenues gathered before the 2010 tax year constituted a violation of the right to human dignity. The Constitutional Court did not find unconstitutional as such the Act’s presumption that the relevant revenues infringed good morals; however, it ruled that this presumption should be susceptible to a legal challenge. In view of its limited jurisdiction, it did not consider the substantive aspects of the tax. 16. The Constitutional Court’s decision contained in particular the following considerations: “1.", "... The Constitutional Court has held that the retroactive effect of the Act does not only apply to incomes earned contra bonos mores, but also to incomes originating in unconditional statutory entitlements. Payments of statutory amounts [which have not been abolished] cannot be regarded as being contra bonos mores. As regards the prospective provisions of the Act, the Constitutional Court has pointed out that the tax in issue is also applicable to payments received legally and within the limits of proper exercise of rights upon termination of employment in the public sector, and that it deprives the persons concerned of incomes originating in unconditional statutory entitlements. However, in this case the legislator interpreted the “special rate” as an entire withdrawal of the income, by which it overstepped its constitutional mandate and breached the amended constitutional rule of distributing public burden.", "2. In pursuit of decision [no. 184/2010 (X.28.) AB], Parliament amended the rules on the Constitutional Court’s competence as well as the provision of the Basic Law determining the distribution of public burden, and re-enacted the special tax. ... 2.2.", "... [The new legislation] contains no reference to the notion “contra bonos mores”, and allows for retroactive law-making with regard to the fifth tax year in arrears as well as for [any] imposition falling short of [the total] deprivation of income. ... 4.1.1. ... The legal relations falling under the scope of the special tax are typically regulated by the so-called “legal status” Acts [i.e. the Acts concerning the legal status of civil servants].", "[In this context, the] salary is specified by the so-called “pay scale”, which is independent from the parties and obligatory for them. [Moreover,] the personal scope of the special tax also includes employers and employees, mainly those who belong under the Labour Code, who can significantly influence the amount of the allowance received upon the termination of employment. ... In this respect, the special tax is a tax whose purpose is not to generate [State] revenue. It is, in this connection, a regulatory instrument.", "... Certain taxes may serve not only the purpose of increasing State revenue, but also function as regulatory instruments. Secondarily, but not insignificantly, [this] taxation can be also seen as part of the State’s economic policy. In this regard the legislature is afforded an exceptionally broad constitutional margin of discretion. ... 4.1.4. ...", "The special tax is not a general income tax applicable to all types of income, but rather a particular tax levied on non-repetitive, non-regular payments which relate to certain factual circumstances (i.e. the termination of a legal relation) and which exceed a certain limit. ... Such a tax with ex nunc effect cannot be considered to violate the right to protection of human dignity or to constitute an improper interference by the State with individual autonomy. Taking into account its base, the incomes not belonging in that base and their amounts, the special tax cannot be considered as completely dispossessing the tax subjects.", "... The individual’s acquisition of the income subject to the special tax is restricted by a public-law limitation originating in that tax ... 4.2.4. ... In case of misuse of public resources, the limitation on payments might even have retroactive effect, [under] section 70/I (2) of the Constitution. The Constitutional Court has already emphasised in its decision [no.", "184/2010 (X.28.) AB] that a retroactive special tax may be imposed on unfairly high payments, on certain types of severance pay or on compensation for significant periods of unused vacation time accumulated over years; the Act aiming at preventing abuses and endorsing the society’s sense of justice is not unconstitutional in itself, but must remain within the framework of the amended Constitution. 4.2.5. However, to impose tax on incomes [lawfully] acquired during the tax year ... cannot be considered as the implementation of the new paragraph (2) of section 70/I of the Constitution, but rather interference by a public authority with individual autonomy going to such lengths that cannot have constitutional justification, and therefore violates the taxpayers’ human dignity. ...", "The special tax does not provide for a fair and just assessment of individual circumstances; its retroactive rules apply to everyone [with two exceptions mentioned above] without differentiation. Nor does it take into account objective circumstances concerning a wide range of taxpayers, such as the economic crisis or emergency situations, which may disadvantageously influence the individuals’ circumstances. ...” 17. On 9 May 2011 Parliament again re-enacted the retroactive application of the 98% tax. The amendment to Act no.", "XC of 2010 was published in the Official Gazette on 13 May and entered into force on 14 May 2011. It provided that only relevant revenues earned after 1 January 2010 should be subject to the tax. The amended legislation did not contain any remedy available to those affected. 18. The Act, as in force as of 14 May 2011, provides (in sections 8-12/B) that the special tax rules are applicable to incomes received on 1 January 2010 or after.", "Incomes shall be subject to a 98% special tax where the private individual has worked at an economic operator or an organisation operating from public money, the payment is effected on account of the termination of the private individual’s work relationship, and the amount of the income exceeds HUF 3,5 million (in certain cases HUF 2 million). Incomes received between 1 January 2010 and 29 December 2010 were declared by private individuals by means of self-assessment, in tax returns submitted until 25 February or 10 May 2011 (depending on the taxpayer group). The tax was payable by the same dates. 19. Members of Parliament, vice mayors and Members of the European Parliament declared their income earned in 2010 and subject to the special tax in a different manner, in a separate tax return submitted until 31 July 2011.", "They paid the special tax until the same date. Persons subjected to the payment of special tax declared their taxable incomes earned between 1 January 2011 and 13 May 2011 by way of tax returns submitted until 25 February or 20 May 2012 (depending on the taxpayer group), and paid the tax by the same dates. In all other cases, the special tax is deducted by the payment issuer as withholding tax, and the deduction is indicated in the private individual’s tax return for the given revenue year. Any charges paid by or deducted from the private individual including, in particular, personal income tax or individual contributions shall be regarded as tax advances paid on the special tax. III.", "RELEVANT LAW OF THE EUROPEAN UNION 20. The Charter of Fundamental Rights of the European Union provides as follows: Article 34 - Social security and social assistance “1. The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Community law and national laws and practices.” 21. The European Court of Justice held in Case C-499/08 Andersen v. Region Syddanmark, [2010] ECR I-09343 as follows: “29. The aim pursued by the severance allowance of protecting workers with many years of service in an undertaking and helping them to find new employment falls within the category of legitimate employment policy and labour market objectives provided for in Article 6(1) of Directive 2000/78.” 22.", "European Commission Recommendation of 30 April 2009 on remuneration policies in the financial services sector (2009/384/EC) provides as follows: “1. Excessive risk-taking in the financial services industry and in particular in banks and investment firms has contributed to the failure of financial undertakings and to systemic problems in the Member States and globally.... 5. Creating appropriate incentives within the remuneration system itself should reduce the burden on risk management and increase the likelihood that these systems become effective. Therefore, there is a need to establish principles on sound remuneration policies.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.", "1 OF THE CONVENTION 23. The applicant complained that the levying of tax at a rate of 98% on part of her severance pay had amounted to a deprivation of property which was unjustified. She relied on Article 1 of Protocol No. 1, which 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.” 24. The Government contested that argument. A. Admissibility 25. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (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 26.", "The Government did not dispute that the contested deprivation of revenue had amounted to an interference with the applicant’s right to property. However, in their view, this interference was prescribed by law and pursued the legitimate aims of satisfying society’s sense of justice and of protecting the public purse. These aims of general interest were also recognised by the European Union which had initiated legislative steps (see paragraph 22 above) against excessive severance payments, as their amount often per se violated society’s sense of justice and the remuneration policy applied in the financial sector to executive officers had contributed to the international financial crisis of the past years. 27. The Government were further of the opinion that, in order to achieve the above aims of general interest, taxation can, in a democratic society, be regarded as the most suitable regulatory means.", "In so far as the impugned tax could be seen as modifying the contents of the applicant’s existing employment contract, they submitted that respect for contracts already concluded required that their modification or cancellation take place according to the laws, even if they contained seemingly lawful commitments at the expense of the State budget violating society’s sense of justice. 28. The Government pointed out that by introducing the special tax the lawmaker had intended to strike a fair balance between the aim pursued and the limitation on the individual’s rights – by paying, at the same time, due attention to the circumstance that, in the midst of a deep world-wide economic crisis, additional burdens should be borne not only by the State but also by other market participants. In the Government’s view, a wide margin of appreciation should be left to the national authorities in this respect. Significantly high tax rates were not unknown under the various tax regimes.", "The Government also emphasised that severance not exceeding HUF 3.5 million did not fall under the impugned Act (in this part, it was subject to the general personal income tax rate of 16%); therefore the sharing of burdens should be regarded as fair and just. In this connection the Government submitted that this sum was approximately equivalent to sixteen months’ average salary in Hungary in 2010. 29. The deprivation of revenue had not imposed an excessive individual burden on the applicant, either. She had not been deprived of an existing possession or income, therefore the payment of the tax, deducted by her employer from her severance pay, had not entailed intolerable hardships for her.", "The rate of the tax had not been excessive and – having regard to average Hungarian revenues, the social and economic situation and the amount of benefits received by the applicant – had not imposed a disproportionate burden on the applicant or endangered her subsistence. b. The applicant 30. The applicant argued that the interference with her property rights had originated in legislation whose purported aim – that is, “to protect society’s sense of justice” – was characteristic of totalitarian regimes, violated the Convention and, in any event, was too vague to meet the requirement of foreseeability. Consequently, the restriction could not be considered either as “prescribed by the law” or “pursuing a general interest”.", "31. Moreover, the severance pay in question would have been vital for the applicant, because she was unemployed after her termination of employment and for more than a year, without any income and, as a result of her sudden dismissal, she did not have the opportunity to take any measure aimed at alleviating its consequences. Therefore, the measure in question constituted a disproportionate and excessive burden for her. 2. The Court’s assessment a.", "Whether there were “possessions” within the meaning of Article 1 of Protocol No. 1 32. In the present circumstances, the nature of the “possession” calls for a closer scrutiny in view of the fact that the applicant never actually possessed the entirety of the severance pay in question, the special tax having been directly withheld by the authorities. 33. The concept of “possessions” in the first paragraph of Article 1 of Protocol No.", "1 has an autonomous meaning which is not limited to the ownership of material goods and is independent from the formal classification in domestic law. In the same way as material goods, certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision. In each case the issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1 (see Iatridis v. Greece [GC], no. 31107/96, § 54, ECHR 1999–II; Beyeler v. Italy [GC], no.", "33202/96, § 100, ECHR 2000‑I; and Broniowski v. Poland [GC], no. 31443/96, § 129, ECHR 2004–V). 34. The Court points out that “possessions” within the meaning of Article 1 of Protocol No. 1 can be either “existing possessions” or assets, including claims, in respect of which an applicant can argue that he has at least a “legitimate expectation” that they will be realised (see Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no.", "39794/98, § 69, ECHR 2002–VII). 35. Thus, a “legitimate expectation” of obtaining an asset may also enjoy the protection of Article 1 of Protocol No. 1. Thus, where a proprietary interest is in the nature of a claim, the person in whom it is vested may be regarded as having a “legitimate expectation” if there is a sufficient basis for the interest in national law, for example where there is settled case-law of the domestic courts confirming its existence.", "However, no “legitimate expectation” can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (see Kopecký v. Slovakia [GC], no. 44912/98, § 50, ECHR 2004‑IX; Centro Europa 7 S.R.L. and Di Stefano v. Italy [GC], no. 38433/09, § 173, ECHR–2012; Eparhija Budimljansko-Nikšićka and Others v. Montenegro (dec.), no. 26501/05, §§ 66 to 69, 9 October 2012).", "36. In the present case, the Court finds that – irrespective of whether the applicant received part of the severance pay with the obligation to report it and to pay in due course the applicable tax or whether the tax is automatically deducted from the severance – the severance constitutes a substantive interest protected by Article 1 of Protocol No. 1. For the Court, it is undeniable that it “has already been earned or is definitely payable,” which turns it into a possession for the purposes of that provision, especially since the Constitutional Court qualified this sum as one originating in an unconditional statutory entitlement (see paragraphs 12 and 16 above), not subject to any dispute or ulterior judicial finding, once the service relation is terminated. Furthermore, the Court would add that the very fact that tax was imposed on this income demonstrates that it was regarded as existing revenue by the State, it being inconceivable to impose tax on a non-acquired property or revenue.", "37. The Court would further point out that a statutory undertaking concerning severance can be amended in the event of a change of social policy and that in respect of such choices the State has a wide margin of appreciation – especially if assuming that the severance constitutes a “legitimate expectation” rather than an “existing possession”. The Court will therefore respect the legislature’s judgment as to what is “in the public interest” unless that judgment be manifestly without reasonable foundation (see James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98). However, the Court emphasises that, in carrying out that scrutiny, consideration shall be given to the nature of the expectation in question.", "In the case of a civil servant, who comes under a specific legal regime and who willingly accepted limitations on some of his fundamental rights and a remuneration unilaterally dictated by law, as noted by the Constitutional Court (see paragraph 16 above), the statutorily stipulated severance represents a long-term expectation on the side of the civil servant and a commitment on the side of the State as employer. For the Court, such long-term expectations, reinforced by many years of unchanged statutory guarantees, cannot be lightly disregarded. The justification for the protection of legitimate expectations originating in a statutory undertaking is that the law should protect the trust that has been reposed in the undertaking made by legislation. For the Court, good government depends upon trust between the governed and the governor (see, mutatis mutandis, in the context of statutorily due subsidies, Plalam S.P.A. v. Italy, no. 16021/02, §§ 35 to 42, 18 May 2010).", "Unless that trust is sustained and protected, governments will not be believed and civil servants will not order their affairs on that assumption as required by their heightened loyalty. 38. In the particular case, the Court observes that the applicant civil servant rendered her services to the State trusting the latter that the services (including guarantees of severance) provided by the employer in consideration of the loyalty and work, would create a situation where the legitimate expectation would be further corroborated by the State’s continued performance of those services – which in the Court’s view cannot be set aside without appropriate reasons. 39. Furthermore, severance cannot be simply regarded as a pecuniary asset; given its social function, the entitlement to severance allowance must be rather seen as a socially important measure intended for workers who have been made redundant and who wish to remain in the labour market.", "The European Court of Justice considered this – although in a different context – to be an important policy goal in the European Union (see paragraph 21 above). 40. The Court further finds that a statutory scheme that provides for severance (both to civil servants and other employees) encompasses a statutory entitlement. Moreover, this is not a mere ex gratia entitlement but an acquired right that is statutorily guaranteed in exchange for the service rendered. 41.", "The Court would add per analogiam that where a Contracting State has in force legislation providing for the payment as of right of a pension – whether or not conditional on the prior payment of contributions – that legislation has to be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements (see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 64, ECHR 2010). For the Court, similar considerations apply to measures affecting severance. Just as much as with pension, it is of particular importance if the legislature afforded the affected employees a transitional period within which they would be able to adjust themselves to the new scheme (see, mutatis mutandis, Lakićević and Others v. Montenegro and Serbia, nos.", "27458/06, 37205/06, 37207/06 and 33604/07, § 72, 13 December 2011). The Court notes at this juncture that the Constitutional Court found that the taxation of severance paid before the tax year and already used had violated human dignity, in view of the difficulty of adjustment to the new burden by the person concerned (see paragraph 15 above) – although it must be noted that in the particular case this was not the applicant’s precise situation. b. Whether there was an interference 42. In its judgment of 23 September 1982 in the case of Sporrong and Lönnroth v. Sweden, the Court analysed Article 1 as comprising “three distinct rules”: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest (Series A no.", "52, § 61). The Court further observed that, before inquiring whether the first general rule has been complied with, it must determine whether the last two are applicable (ibid.). The three rules are not, however, “distinct” in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many other authorities, James and Others, cited above, § 37). Moreover, an interference, including one resulting from a measure to secure payment of taxes, must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.", "The concern to achieve this balance is reflected in the structure of Article 1 as a whole, including the second paragraph: there must be a reasonable relationship of proportionality between the means employed and the aims pursued. The question to be answered is whether, in the applicant’s specific circumstances, the application of the tax law imposed an unreasonable burden on her or fundamentally undermined her financial situation – and thereby failed to strike a fair balance between the various interests involved (see M.A. and 34 Others v. Finland (dec.), no. 27793/95, 10 June 2003; Imbert de Trémiolles v. France (dec.), nos. 25834/05 and 27815/05 (joined), 4 January 2008; Spampinato v. Italy (dec.), no.", "69872/01, 29 March 2007; and Wasa Liv Ömsesidigt, Försäkringsbolaget Valands Pensionsstiftelse v. Sweden, no. 13013/87, Commission decision of 14 December 1988, Decisions and Reports 58, p. 186). 43. The Court recalls that in certain circumstances loss of ownership of property resulting from a legislative measure or from an order of a court will not be equated with a “deprivation” of possessions: in the cases of AGOSI v. the United Kingdom (24 October 1986, Series A no. 108) and Air Canada v. the United Kingdom (5 May 1995, Series A no.", "316-A), the forfeiture or other loss of ownership was treated as a “control of use” of property within the meaning of the second paragraph of Article 1 Protocol No. 1. In Gasus Dosier- und Fördertechnik GmbH v. the Netherlands (23 February 1995, Series A no. 306-B), impoundment was considered as a measure securing the payment of taxes within the meaning of the second paragraph of Article 1 in fine, while in Beyeler (cited above), the interference with the applicant’s property rights was examined under the first sentence of that Article. The Court does not consider it necessary to rule on whether the second sentence of the first paragraph of Article 1 applies in this case.", "The complexity of the factual and legal position prevents the impugned measure from being classified in a precise category. The Court recalls that the situation envisaged in the second sentence of the first paragraph of Article 1 is only a particular instance of interference with the right to peaceful enjoyment of property as guaranteed by the general rule set forth in the first sentence (see, for example, Lithgow and Others v. the United Kingdom, 8 July 1986, § 106, Series A no. 102). The Court therefore considers that it should examine the situation complained of in the light of that general rule (cf. Beyeler, cited above, § 106).", "44. In the Court’s view, the classification of a general measure taken in furtherance of a social policy of redistribution as a “control of use” of property rather than a “deprivation” of possessions is not decisive in so far as the principles governing the question of justification are substantially the same, requiring both a legitimate aim and the preservation of a fair balance between the aim served and the individual property rights in question. Furthermore, a legislative amendment which removes a legitimate expectation may amount in its own right to an interference with “possessions” (see, mutatis mutandis, Maurice v. France [GC], no. 11810/03, §§ 67-71 and 79, ECHR 2005–IX; Draon v. France [GC], no. 1513/03, §§ 70-72, 6 October 2005; and Hasani v. Croatia (dec.), no.", "20844/09, 30 September 2010). 45. In the present case, the Court notes that the parties agree that the impugned taxation represents an interference with the applicant’s right to peaceful enjoyment of possessions. The Court will examine the issue under the first paragraph of Article 1 of Protocol No. 1, subject to the specific rule concerning the payment of taxes contained in Article 1 in fine.", "c. Lawfulness of the interference i. General principles 46. The Court reiterates that Article 1 of Protocol No. 1 requires that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: indeed, the second sentence of the first paragraph of that Article authorises the deprivation of possessions “subject to the conditions provided for by law”. Moreover, the rule of law, one of the fundamental principles of a democratic society, is a notion inherent in all the Articles of the Convention (see Former King of Greece and Others v. Greece [GC] (merits), no.", "25701/94, § 79, ECHR 2000–XII, and Broniowski, cited above, § 147). 47. However, the existence of a legal basis in domestic law does not suffice, in itself, to satisfy the principle of lawfulness. In addition, the legal basis must have a certain quality, namely it must be compatible with the rule of law and must provide guarantees against arbitrariness. 48.", "It follows that, in addition to being in accordance with the domestic law of the Contracting State, including its Constitution, the legal norms upon which the deprivation of property is based should be sufficiently accessible, precise and foreseeable in their application (see Guiso-Gallisay v. Italy, no. 58858/00, §§ 82-83, 8 December 2005). The Court would add that similar considerations apply to interferences with the peaceful enjoyment of possessions. As to the notion of “foreseeability”, its scope depends to a considerable degree on the content of the instrument in issue, the field it is designed to cover and the number and status of those to whom it is addressed (see, mutatis mutandis, Sud Fondi S.r.l. and Others v. Italy, no.", "75909/01, § 109, 20 January 2009). In particular, a rule is “foreseeable” when it affords a measure of protection against arbitrary interferences by the public authorities (see Centro Europa 7 S.r.1. and Di Stefano, cited above, § 143). Similarly, the applicable law must provide minimum procedural safeguards commensurate with the importance of the principle at stake (see, mutatis mutandis, Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 88, 14 September 2010; Vistiņš and Perepjolkins v. Latvia [GC], no.", "71243/01, §§ 96-98, 25 October 2012). 49. The Court would, moreover, reiterate the finding in its settled case-law that the national authorities are in principle better placed than an international court to evaluate local needs and conditions. In matters of general social and economic policy, on which opinions within a democratic society may reasonably differ widely, the domestic policy-maker should be afforded a particularly broad margin of appreciation (see, for example, Stec and Others v. the United Kingdom [GC], no. 65731/01, § 52, ECHR 2006–VI).", "50. In so far as the tax sphere is concerned, the Court’s well-established position is that States may be afforded some degree of additional deference and latitude in the exercise of their fiscal functions under the lawfulness test (see National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, §§ 75 to 83, Reports of Judgments and Decisions 1997–VII; OAO Neftyanaya Kompaniya Yukos v. Russia, no. 14902/04, § 559, 20 September 2011). 51. Moreover, since in the present case the interference with the applicant’s peaceful enjoyment of possessions was incarnated by a tax measure, it is convenient to point out that retroactive taxation can be applicable essentially to remedy technical deficiencies of the law, in particular where the measure is ultimately justified by public-interest considerations.", "There is in fact an obvious and compelling public interest to ensure that private entities do not enjoy the benefit of a windfall in a changeover to a new tax-payment regime (see National etc., cited above, §§ 80 to 83). However, no such deficiency of the law has been demonstrated in the circumstances of the present case. Therefore, the Court considers that particular caution is called for when assessing whether or not the impugned measure was “lawful” for the purposes of Article 1 of Protocol No. 1. ii. Application of the above-mentioned principles to the present case 52.", "The Court notes that, while it is true that the disbursement and the taxation of the severance in question occurred after the enactment of the final version of the impugned legislation, the taxation complained of can be argued to have certain retroactive features, since – although the severance itself was generated on the applicant’s dismissal – the work in respect of which it was due had been done prior to the introduction of the legislation at issue and the tax concerned remuneration for services provided before the entry into force of the applicable tax law. 53. The Court cannot overlook the legislative process leading to the enactment of the law affecting the applicant. It observes that the Constitutional Court found, in its first decision (see paragraph 11 above), the measure unconstitutional for being confiscatory, especially in regard to statutorily provided severance to civil servants who could not be considered to have received it in violation of good morals or otherwise illegally. In its second decision (see paragraph 15 above) the Constitutional Court held that for the current tax year (that is, for 2010), the tax was not unconstitutional in regard to severance payments which were made before the entry into force of the Act, since it did not violate human dignity – which was the only basis for constitutional evaluation of a tax law after the reduction of the competences of the Constitutional Court.", "This did not, however, change the finding of substantive unconstitutionality of essentially identical provisions of the original Tax Act – only that the Constitutional Court could not review the slightly amended provisions of the Amendment. The modified Tax Act was adopted on 13 May 2011 and entered into force the next day, 14 May 2011, being applicable to severance and related payments earned after 1 January 2010 (see paragraph 17 above). The applicant was notified of her dismissal on 27 May 2011 – effective as of 28 July 2011 (see paragraph 6 above), that is, about ten weeks after the entry into force of the amended Act. 54. Against this background, the Court considers that, although the decisions of the Constitutional Court raise certain issues as to the constitutionality – and therefore the legality – of the impugned Act, it can nevertheless be accepted as providing a proper legal basis for the measure in question, taking into account the degree of additional deference and latitude afforded in this field (see paragraph 50 above).", "d. Public interest 55. The applicant challenged the legitimacy of the aim pursued by the impugned measure. In this connection, the Court reiterates that, because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures of deprivation of property or interfering with the peaceful enjoyment of possessions. Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation.", "Furthermore, the notion of “public interest” is necessarily extensive (see Vistiņš and Perepjolkins, cited above, § 106). 56. The Court further reiterates that the levying of taxes constitutes in principle an interference with the right guaranteed by the first paragraph of Article 1 of Protocol No. 1 and that such interference may be justified under the second paragraph of that Article, which expressly provides for an exception in respect of the payment of taxes or other contributions. However, this issue is nonetheless within the Court’s control (see paragraphs 42 and 45 above).", "57. Moreover, it is naturally in the first place for the national authorities to decide what kind of taxes or contributions are to be collected. The decisions in this area will commonly involve the appreciation of political, economic and social questions which the Convention leaves within the competence of the States parties, the domestic authorities being better placed than the Court in this connection. The power of appreciation of the States parties in such matters is therefore a wide one (see Gasus Dosier- und Fördertechnik GmbH, cited above, § 60, and National etc., cited above, §§ 80-82). 58.", "However, as regards the Government’s implied reference to European Commission Recommendation 2009/384/EC (see paragraphs 22 and 26 above), the Court finds that this consideration is immaterial in regard to the applicant. The measures envisioned in the Recommendation, which will be applicable in the future to restrict excessive payments in the financial sector, were conceived because “excessive risk-taking in the financial services industry and in particular in banks and investment firms has contributed to the failure of financial undertakings and to systemic problems in the Member States and globally.” The Recommendation suggests national regulation that provides for performance-based components of remuneration based on longer-term performance and contains no reference to social justice expectations. For the Court, excessive risk-taking in the financial sector is irrelevant for civil servants who operate in a regulated environment of subordination. 59. Nevertheless, given the above margin of appreciation regarding the determination of what is “in the public interest”, granted to general measures interfering with the peaceful enjoyment of possessions, the Court accepts that the “sense of social justice of the population”, in combination with the interest to protect the public purse and to distribute the public burden satisfies the Convention requirement of a legitimate aim, notwithstanding its broadness.", "The Court has no convincing evidence on which to conclude that the reasons referred to by the Government were manifestly devoid of any reasonable basis (compare and contrast Tkachevy v. Russia, no. 35430/05, § 50, 14 February 2012). However, serious doubts remain as to the relevance of these considerations in regard to the applicant who only received a statutorily due compensation and could not have been made responsible for the fiscal problems which the State intended to remedy. While the Court recognises that the impugned measure was intended to protect the public purse against excessive severance payments, it is not convinced that this goal was primarily served by taxation. As the Constitutional Court noticed, there was a possibility to change severance rules and reduce the amounts which were contrary to public interest, but the authorities did not opt for this course of action.", "However, it is not necessary for the Court to decide at this juncture on the adequacy of a measure that formally serves a social goal, since this measure is in any event subject to the proportionality test. e. Proportionality i. General principles 60. Even if it has taken place subject to the conditions provided for by law – implying the absence of arbitrariness – and in the public interest, an interference with the right to the peaceful enjoyment of possessions must always strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by the impugned measure (see Scordino v. Italy (no.", "1) [GC], no. 36813/97, § 93, ECHR 2006‑V); and also paragraph 42 above). 61. In determining whether this requirement is met, the Court reiterates that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question (see Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 75, ECHR 1999 III, and Herrmann v. Germany [GC], no.", "9300/07, § 74, 26 June 2012). Nevertheless, the Court cannot abdicate its power of review and must therefore determine whether the requisite balance was maintained in a manner consonant with the applicants’ right to the peaceful enjoyment of their possessions, within the meaning of the first sentence of Article 1 of Protocol No. 1 (see Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 93, ECHR 2005‑VI). In the determination of the proportionality of the measure, the Court did in the past also consider the personal situation of the applicants, including their good faith (see Vistiņš and Perepjolkins, cited above, § 120).", "62. In order to assess the conformity of the State’s conduct with the requirements of Article 1 of Protocol No. 1, the Court must conduct an overall examination of the various interests at issue, having regard to the fact that the Convention is intended to guarantee rights that are “practical and effective”, not theoretical or illusory. It must go beneath appearances and look into the reality of the situation at issue, taking account of all the relevant circumstances, including the conduct of the parties to the proceedings, the means employed by the State and the implementation of those means. Where an issue in the general interest is at stake, it is incumbent on the public authorities to act in good time, and in an appropriate and consistent manner (see Fener Rum Erkek Lisesi Vakfı v. Turkey, no.", "34478/97, § 46, 9 January 2007, and Bistrović v. Croatia, no. 25774/05, § 35, 31 May 2007). 63. In the context of tax collection, the Court considers that the suitability of methods is a consideration in the establishment of proportionality of a measure of interference (see, in the context of exercise of the State’s right of pre-emption, Hentrich v. France, 22 September 1994, § 48, Series A no. 296 A).", "64. Although Article 1 of Protocol No. 1 contains no explicit procedural requirements, in order to assess the proportionality of the interference the Court looks at the degree of protection from arbitrariness that is afforded by the proceedings in the case (see Hentrich, cited above, § 46). In particular, the Court examines whether the proceedings concerning the interference with the applicants’ right to the peaceful enjoyment of their possessions were attended by basic procedural safeguards. It has already held that an interference cannot be legitimate in the absence of adversarial proceedings that comply with the principle of equality of arms, enabling argument to be presented on the issues relevant for the outcome of a case (see Hentrich, cited above, § 42; and Jokela v. Finland, no.", "28856/95, § 45, ECHR 2002–IV). A comprehensive view must be taken of the applicable procedures (see AGOSI, cited above, § 55; Hentrich, cited above, § 49; and Jokela, cited above, § 45). ii. Application of the above-mentioned principles in the present case 65. As it transpires from its case-law, in the area of social and economic legislation including in the area of taxation as a means of such policies States enjoy a wide margin of appreciation, which in the interests of social justice and economic well-being may legitimately lead them, in the Court’s view, to adjust, cap or even reduce the amount of severance normally payable to the qualifying population.", "However, any such measures must be implemented in a non-discriminatory manner and comply with the requirements of proportionality. In particular, as regards the existence of a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”, the Court notes at the outset that the Constitutional Court’s first decision can be understood to characterise the tax in question as amounting to a confiscatory measure. [3] 66. The applicable threshold in the present case was above HUF 3.5 million, the amounts of severance falling below this limit being subject to the general personal income tax rate of 16%. In the applicant’s case, this represented an overall tax burden of approximately 52% on the entirety of the severance (see paragraph 7 above).", "67. In the instant case, the Court takes into consideration in the proportionality analysis that the tax rate applied exceeds considerably the rate applicable to all other revenues, including severance paid in the private sector, without determining in abstracto whether or not the tax burden was, quantitatively speaking, confiscatory in nature. For the Court, given the margin of appreciation granted to States in matters of taxation, the applicable tax rate cannot be decisive in itself, especially in circumstances like those of the present case. 68. The Court finds that the applicant, who was entitled to statutory severance on the basis of the law in force and whose acting in good faith has never been called into question, was subjected to a tax whose rate exceeded about three times the general personal income tax rate of 16% (see paragraph 7 above) – and this notwithstanding the fact that the severance served the specific and recognised social goal of labour reintegration.", "It does not appear that any other revenue originating from the public purse was subjected to similarly high tax. 69. Moreover, to the extent that the Government may be understood to argue that senior civil servants were in a position to influence their own employment benefits, which phenomenon could only be countered by targeted taxation (see paragraphs 26 and 27 above), the Court is satisfied that there is nothing in the case file to corroborate such assumption of abuse in the case of the applicant. 70. As regards the personal burden which the applicant sustained on account of the impugned measure, the Court notes that she had to suffer a substantial deprivation of income in a period of considerable personal difficulty, namely that of unemployment.", "The Court would observe in this context that Article 34 of the Charter of Fundamental Rights of the European Union (see paragraph 20 above) endorses benefits providing protection in the case of loss of employment, and that according to the European Court of Justice, the aim pursued by severance – that is, helping dismissed employees find new employment – belongs within legitimate employment policy goals (see paragraph 21 above). For the Court, it is quite plausible that the element that she was subjected to the impugned measure while unemployed, together with the unexpected and swift nature of the change of the tax regime which made any preparation virtually impossible for those concerned, exposed the applicant to substantial personal hardships. 71. In the Court’s view, the applicant, together with a group of dismissed civil servants (see paragraph 6 above), was made to bear an excessive and disproportionate burden, while other civil servants with comparable statutory and other benefits were apparently not required to contribute to a comparable extent to the public burden, even if they were in the position of leadership that enabled them to define certain contractual benefits potentially disapproved by the public. Moreover, the Court observes that the legislature did not afford the applicant a transitional period within which to adjust herself to the new scheme.", "72. Against this background, the Court finds that the measure complained of entailed an excessive and individual burden on the applicant’s side. This is all the more evident when considering the fact that the measure targeted only a certain group of individuals, who were apparently singled out by the public administration in its capacity as employer. Assuming that the impugned measure served the interest of the State budget at a time of economic hardship, the Court notes that the majority of citizens were not obliged to contribute, to a comparable extent, to the public burden. 73.", "The Court further notes that the tax was directly deducted by the employer from the severance without any individualised assessment of the applicant’s situation being allowed. 74. The Court moreover observes that the tax was imposed on income related to activities prior to the material tax year and realised in the tax year, on the applicant’s dismissal. In this connection the Court recalls that taxation at a considerably higher tax rate than that in force when the revenue in question was generated could arguably be regarded as an unreasonable interference with expectations protected by Article 1 of Protocol No. 1 (see M.A.", "and 34 Others, cited above). The tax was determined in a statute that was enacted and entered into force some ten weeks before the termination of the applicant’s civil service relationship, and the tax was not intended to remedy technical deficiencies of the pre-existing law, nor had the applicant enjoyed the benefit of a windfall in a changeover to a new tax-payment regime (compare and contrast, National etc., cited above, §§ 75 to 83). 75. The Court concludes that the specific measure in question, as applied to the applicant, even if meant to serve social justice, cannot be justified by the legitimate public interest relied on by the Government. It affected the applicant (and other dismissed civil servants in a similar situation) being in good-faith standing and deprived her of the larger part of a statutorily guaranteed, acquired right serving the special social interest of reintegration.", "In the Court’s opinion, those who act in good faith on the basis of law should not be frustrated in their statute-based expectations without specific and compelling reasons. Therefore the measure cannot be held reasonably proportionate to the aim sought to be realised. 76. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 1 of Protocol No. 1.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 77. The applicant also complained that she did not have any effective remedy at her disposal in respect of the alleged violation of her rights under Article 1 of Protocol No. 1.", "She relied on Article 13 of the Convention. 78. The Government contested that argument in general terms. 79. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.", "80. Having regard to the finding relating to Article 1 Protocol 1 (see paragraph 76 above), the Court considers that it is not necessary to examine separately whether, in this case, there has been a violation of Article 13. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 81.", "The applicant further complained of the facts that only those dismissed from the public sector were subjected to the tax and that the threshold of HUF 3.5 million was applicable to only a group of those concerned. In her view, this was discriminatory, in breach of Article 14 of the Convention, which 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 ... property ... or other status.” 82. The Government contested that argument. Referring to the reasons set forth in decision no. 37/2011.", "(V.10.) AB of the Constitutional Court, they argued that the group of payment issuers in question were determined under the Act according to objective criteria. The employees of these payment issuers were to be regarded as being in a different position compared with other employees. Therefore the fact that the special tax did, under certain conditions specified in the Act, treat benefits originating in public funds differently from other type of benefits did not violate the right to human dignity. The rules were not arbitrary or discriminatory.", "83. 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 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, for example, Chassagnou and Others, cited above, § 89). 84. In the circumstances of the present case, the Court is of the view that the inequality of treatment of which the applicant claimed to be a victim has been sufficiently taken into account in the above assessment that has led to the finding of a violation of Article 1 of Protocol No.", "1 taken separately (see paragraph 76 above). Accordingly, it finds that – while this complaint is also admissible – there is no cause for a separate examination of the same facts from the standpoint of Article 14 of the Convention (see, mutatis mutandis, Church of Scientology Moscow v. Russia, no. 18147/02, § 101, 5 April 2007). IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 85.", "Lastly, the applicant complained that the legal presumption of the impugned revenues contravening good morals amounted to an interference with her right to good reputation, in breach of Article 8 read alone or in conjunction with Article 14 of the Convention. The Court finds that this complaint is unsubstantiated and therefore manifestly ill-founded, within the meaning of Article 35 § 3 (a), and must consequently be rejected pursuant to Article 35 § 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 86. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 87.", "The applicant claimed 2,365,229 Hungarian forints[4] (HUF), that is, the amount that was deducted from her severance in tax, plus accrued interest until the delivery of the Court’s judgment (that is, twice the applicable interest of the Hungarian Central Bank), in respect of pecuniary damage, as well as 20,000 euros (EUR) in respect of non-pecuniary damage. 88. The Government found these claims excessive. 89. Having regard to the fact that, in the absence of the 98% tax rate, the entirety of the applicant’s severance would have been in all likelihood subject to the general personal income taxation, the Court awards the applicant EUR 11,000 in respect of pecuniary and non-pecuniary damage combined.", "B. Costs and expenses 90. The applicant also claimed EUR 17,272 for the costs and expenses incurred before the Court. This sum corresponds to 68 hours of legal work billable by her lawyer at an hourly rate of EUR 200 plus VAT (27%). 91.", "The Government did not express a view on the matter. 92. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 6,000 for the proceedings before the Court. C. Default interest 93.", "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 Article 1 of Protocol No. 1, read alone and in conjunction with Articles 13 and 14 of the Convention, admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 1 of Protocol No.", "1; 3. Holds that there is no need to examine separately the complaint under Article 1 of Protocol No. 1 read in conjunction with Article 13 of the Convention; 4. Holds that there is no need to examine separately the complaint under Article 1 of Protocol No. 1 read in conjunction with Article 14 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, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 11,000 (eleven thousand euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage; (ii) EUR 6,000 (six thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 14 May 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithGuido RaimondiRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Lorenzen joined by Judges Raimondi and Jočienė is annexed to this judgment. G.R.A.S.H.N.", "CONCURRING OPINION OF JUDGE LORENZEN JOINED BY JUDGES RAIMONDI AND JOČIENE I voted only with some hesitation for finding a violation in this case, which in my opinion should have been relinquished to the Grand Chamber. However, even if I have accepted the conclusion of the judgment and also largely agree with its reasoning, I find it necessary to explain my vote by adding the following comments: It has been the Court´s constant case-law that the imposition of taxes as a general rule is for the States to decide and that only if the system or the way it has been applied in a particular case is arbitrary or devoid of reasonable foundation can the imposition of taxes be challenged under Article 1 of Protocol No 1. The judgment should in my opinion be understood as not interfering with the principles applied in this field so far. The judgment to some extent addresses the issue whether the tax law was applied retroactively (see paragraphs 51, 52 and 74). Whether this was so in the applicant’s case is in my opinion open to doubt, but I do not consider it necessary to examine the question any further.", "I find it important, however, to underline that the Convention – save in criminal cases and, to a certain extent, in the framework of Article 6 of the Convention – does not contain a general prohibition on legislation with retroactive effect, and that the Court in its case-law so far has not developed clear principles as to when and under what circumstances retroactive tax legislation is incompatible with Article 1 of Protocol No 1. In M.A. and 34 Others the Court in fact stated directly that “retrospective tax legislation is not as such prohibited by that provision”. The judgment should in my opinion be understood as not having introduced new principles concerning this issue. The finding of a violation in the present case was for me to a considerable extent justified by the very peculiar way this tax legislation was introduced and applied in a case like the applicant’s.", "[1] Approximately EUR 12,000 [2] Approximately EUR 8,300 [3] The text of this paragraph was rectified on 2 July 2013 under Rule 81 of the Rules of Court. [4] Approximately EUR 8,000" ]

[ "SECOND SECTION CASE OF GÜLBAHAR ÖZER AND OTHERS v. TURKEY (Application no. 44125/06) JUDGMENT This judgment was revised in accordance with Rule 80 of the Rules of Court in a judgment of 10 June 2014 STRASBOURG 2 July 2013 FINAL 02/10/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gülbahar Özer and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Danutė Jočienė,Peer Lorenzen,Dragoljub Popović,Işıl Karakaş,Nebojša Vučinić,Paulo Pinto de Albuquerque, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 11 June 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "44125/06) 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 five Turkish nationals, Ms Gülbahar Özer, Mr Yusuf Özer, Mr Halil Esen, Mr Hüseyin Esen and Mr Abdurrahman Çınar (“the applicants”), on 19 October 2006. 2. The applicants were represented Ms Reyhan Yalçındağ Baydemir, Ms Aygül Demirtaş and Mr Selahattin Demirtaş, lawyers practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent. 3.", "The applicants alleged, in particular, that the killing of their five children by a number of soldiers and the lack of an effective investigation into their killing had been in violation of Article 2 of the Convention. 4. On 20 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 1963, 1965, 1947, 1952 and 1946 respectively. The first and second applicants live in İzmir, the third and fourth applicants live in Mardin and the fifth applicant lives in Diyarbakır. 6. The facts of the case as submitted by the parties, and as they appear from the documents submitted by them, may be summarised as follows. 7.", "Gülbahar Özer is the mother of Sibel Sartık, Yusuf Özer is the father of Nergiz Özer, Halil Esen is the father of Zerga Esen, Hüseyin Esen is the father of Zühal Esen, and Abdurrahman Çınar is the father of Hamdullah Çınar. 8. Sibel Sartık, who was 24, and her cousin Nergiz Özer, who was 15, were living in İzmir and working as a singer and a textile worker respectively. On 17 December 2004 they left their homes in İzmir. Sibel Sartık told her family that she was going to visit her three children who were living with her ex-husband in the city of Siirt.", "9. Zühal Esen and Zerga Esen were 16 and 13 years old respectively and were working on farms in Manisa. On 20 December 2004 they left their homes and told their families that they were going shopping. 10. Hamdullah Çınar was 22 years old and was working on a building site in Ankara.", "The last time his family heard from him was towards the end of December 2004. 11. On 19 January 2005 Sibel, Nergiz, Zuhal, Zerga and Hamdullah were killed by soldiers in a place one and a half kilometres to the north of a small village in south-east Turkey. 12. According to a report prepared on 20 January 2005 by twenty-six soldiers who had taken part in the incident, at about 6.00 p.m. on 19 January 2005 special police teams who had observed with their night vision cameras nine or ten persons in an area near Cudi mountain, informed the military about the presence of the group.", "13. A number of units of soldiers were then dispatched to the area at 6.30 p.m. where they came under fire from members of the group. The soldiers retreated to a safer area and issued verbal warnings, in Turkish and Kurdish, and asked members of the group to surrender. When their calls for surrender were rejected and they came under more fire, the soldiers blocked all exit routes and opened mortar fire on those who tried to run away. Both sides also threw hand grenades at each other during the clash.", "14. The following morning the soldiers found the bodies of the applicants’ five children and a number of weapons and food stocks near to them. There were no other casualties and none of the soldiers suffered any injuries. On arrival of a different unit of soldiers responsible for crime scene investigations, the soldiers who had taken part in the operation left the area. 15.", "Soldiers responsible for crime scene investigations photographed the bodies and the weapons next to the bodies, and drew up sketches showing the position of the bodies. It was stated in a report drawn up by the investigating soldiers that, “as it was raining the weapons [found next to the bodies] were wet and muddy and [the investigators] have thus been unable to carry out fingerprint analysis on the weapons”. Five automatic rifles found next to the bodies, together with a number of spent bullet cartridges found in the area, were taken away as evidence. 16. With the help of a number of villagers brought to the area by soldiers from the nearby village, the bodies of the applicants’ children were brought to the Şırnak State Hospital where they were examined by a doctor and a prosecutor at midday on 20 January 2005.", "It appears from a number of reports drawn up the same day that the prosecutor had been told by members of the security forces that the place where the five persons had been killed was not safe for the prosecutor to go and the prosecutor had asked the soldiers to bring the bodies to Şırnak. 17. As there were no identity cards on them, the prosecutor was unable to identify the five deceased. In his report the prosecutor, who referred to the five deceased as “PKK terrorists killed in a clash with the security forces” and instructed the soldiers to search for the remaining “terrorists” who had managed to escape, stated that “anti-terrorism experts and crime-scene investigators from the gendarmerie had carried out the necessary examinations and searched for evidence at the place of the incident”. 18.", "At the recommendation of the doctor who examined the bodies and who concluded that the applicants’ five children had died as a result of loss of blood and damage to their internal organs caused by firearms, the prosecutor decided that there was no need to carry out a classic autopsy. 19. A decision was also taken to destroy some of the clothes the deceased had been wearing. 20. On 22 January 2005 the applicants and their relatives formally identified the bodies of the five deceased.", "In official identification documents the prosecutor again referred to the applicants’ five children as “members of the PKK killed in an armed clash with members of the military”. 21. On 25 January 2005 the applicants’ lawyers asked the Şırnak prosecutor for copies of documents from the investigation file. They were provided with the above-mentioned post mortem report, documents relating to the formal identification of the bodies, documents for the release of some of the bodies, and copies of the identity cards of some of the applicants. None of the documents drawn up by members of the military were handed over to the applicants.", "22. The Human Rights Association of Turkey released a report on 27 January 2005 on the killing of the applicants’ five children. It was stated in the report that the authorities had refused to hand over the bodies of Nergiz Özer and Sibel Sartık to their families and had buried them in an undisclosed location[1]. 23. The report, drawn up after having interviewed a number of villagers living near the place where the applicants’ five children were killed by the soldiers, the prosecutor in charge of the investigation, and the families of the deceased, criticises the prosecutor’s failure to go to the place of the incident and the collection of the evidence by the soldiers.", "The report also criticises the fact that the documents drawn up by the soldiers in the aftermath of the incidents had not been sent to the prosecutor in charge. The report concludes it to be highly probable that the applicants’ five children had run away from their homes in order to join the PKK, and had then been killed by the soldiers even though they were unarmed. 24. On 31 January 2005 an army major sent to the prosecutor the documents drawn up by the soldiers after the killings (see paragraphs 12-16 above). 25.", "On 1 February 2005 the applicants Gülbahar Özer and Yusuf Özer, with the assistance of their lawyers, lodged a formal complaint against the soldiers responsible for the killing of the five persons. In their petition the two applicants asked the prosecutor to carry out an investigation and prosecute those responsible for the killings. They invited the prosecutor to, inter alia, question the soldiers and the residents of the nearby villages, and to examine whether their children were likely to have been able to handle the weapons allegedly found next to their bodies, given their young age and their lack of training in firearms. They also asked the prosecutor to obtain swabs from the hands of the deceased with a view to assessing whether they had indeed handled the weapons. They further asked the prosecutor to recall the items of evidence which had been sent to the gendarmerie’s forensic laboratories, and send them instead to the independent and impartial Forensic Medicine Institute.", "26. The prosecutor started an investigation on 23 February 2005 against the applicants’ five dead children, as well as against “PKK members”, for the offence of undermining the territorial integrity of Turkey. 27. On 23 February 2005 the applicants Gülbahar Özer and Yusuf Özer were questioned by a police officer in relation to their complaints to the prosecutor. Both applicants told the police officer that they wanted those who had killed their children to be found and punished.", "28. According to the report of the ballistic examination conducted by the gendarmerie, twenty-one of the empty bullet cases found in the area had been discharged from the five rifles found next to the bodies of the applicants’ children. 29. In a report of 13 April 2005 a police firearms expert concluded that it would be possible for children from the age of 11, with one to two hours’ training, to use the weapons found next to the bodies of the five deceased. 30.", "On 7 April 2005 the police forensic laboratory examined a number of spent bullet cases found in the area. On 25 May 2005 an expert examined the thermal camera footage recorded by the police special teams on the day of the incident, and confirmed the sighting of seven persons in the footage. 31. On 26 May 2005 the Şırnak prosecutor visited the area and recovered forty-two spent bullet cases at the spot where the bodies had been found. He also found an unspecified number of bullets, used in his opinion by the soldiers, in two places 50 and 150 metres away from the place where the bodies had been found.", "The prosecutor also questioned five villagers who were living in a nearby village and who had assisted the soldiers in recovering the bodies on 20 January 2005. 32. The weapons and ammunition found in the area by the prosecutor were examined by the police and gendarmerie forensic laboratories and their findings were recorded in reports drawn up on 10 August and 23 September 2005. 33. On 7 and 9 February 2006 a prosecutor and a gendarme non-commissioned officer questioned fifteen of the twenty-six soldiers who had taken part in the operation (see paragraph 33 above).", "The soldiers were questioned as “eyewitnesses”. The non-commissioned officer was entrusted the task of taking down the minutes of the soldiers’ questioning “because of the nature and the urgency of the investigation”. The soldiers’ names were not written down in the statements and they were referred to by their military identification numbers. 34. In the fifteen identical statements the soldiers were quoted as having stated that the PKK members had ignored their warnings to surrender, which had been made in Turkish and Kurdish.", "Instead, the PKK members had opened fire on them and they had returned fire. The clash had lasted for approximately two hours. They also stated that, although they had initially seen a group of approximately eight to ten persons with their night vision cameras, they did not know what had happened to the remaining ones other than the five killed by them. 35. On 6 March 2006 the Şırnak prosecutor decided not to prosecute any of the soldiers responsible for the killing of the applicants’ five children.", "In his decision the prosecutor summarised the documents in the investigation file, and held, inter alia, the following: “Members of the security forces issued warnings [to the group] to surrender. However, [the group] responded by firing on the soldiers. Those found dead at the end of the clash had been armed. According to the examination of the place of the incident the following morning, as well as according to the examinations subsequently conducted by the prosecution service and the forensic authorities, the spent bullet cases had been discharged from the weapons which had been in working order. There is no evidence or eyewitness statements to suggest that the soldiers had opened fire first.” The prosecutor also mentioned in his decision that, according to the military reports the weapons found next to the bodies had been wet and muddy and it had thus not been possible to look for fingerprints on them.", "36. It also appears from the prosecutor’s decision that on the day after the killings a TV channel reported, based on information obtained from PKK sources, that the applicants’ five children had not been PKK militants, but that they had gone to the area unarmed to meet with PKK members. Nevertheless, the prosecutor considered in his decision that the deceased had been PKK members who had been trying to “undermine the territorial integrity of Turkey” and that the soldiers had carried out their duties by killing them. 37. On 28 March 2006 the two applicants lodged an objection against the prosecutor’s decision.", "In their objection they denied that their children had been PKK members. They alleged that their children had been unarmed at the time of the killings. In this connection they pointed to the failure to obtain swabs from the hands of the deceased. The two applicants also criticised the investigating authorities’ failure to question the soldiers until thirteen months after the killings and the presence of the gendarme officer when the prosecutor had been questioning the soldiers. They pointed out that the statements made by these soldiers were identical as a result of the psychological pressure exerted on them by the gendarme officer present during their questioning.", "38. On 12 April 2006 the objection lodged by the two applicants was rejected by the Siirt Assize Court which considered that all the necessary steps had been taken in the investigation. The Assize Court considered that the right to life guaranteed in the European Convention on Human Rights was not absolute. If the resort to use of force becomes absolutely necessary in order to protect from unlawful violence, then there would be no deprivation of the right to life. On the basis of the investigation, the “terrorists” had been killed by the soldiers who had had to resort to the use of firearms in order to protect themselves from unlawful violence.", "There was no evidence to the contrary. 39. No mention was made in the Assize Court’s decision about the applicants’ complaints concerning the failure to obtain swabs from the hands of the deceased or the failure to question the soldiers until thirteen months after the killings and in the presence of the gendarme officer. 40. The decision of the Siirt Assize Court was communicated to the applicants on 28 April 2006.", "41. Following the communication of the application to the respondent Government, on 18 January 2011 the İzmir prosecutor took a statement from the applicant Ms Gülbahar Özer. The applicant repeated her allegations about the unlawful killing of her daughter Sibel Sartık. 42. The Şırnak prosecutor, having regard to the statement taken from Ms Özer on 18 January 2011 by his counterpart in İzmir, took another decision not to prosecute anyone in connection with the killing.", "The prosecutor considered that there was no new evidence to lead to a different decision. The applicant’s objection against the prosecutor’s decision was rejected by the Siirt Assize Court on 10 February 2011. THE LAW I. ALLEGED VIOLATION OF ARTICLES 2, 13 AND 17 OF THE CONVENTION 43. The applicants complained that their children had been killed in breach of Article 2 of the Convention.", "In support of their allegation they argued that, had the authorities carried out swab tests it would have become apparent that their children had been unarmed and had not opened fire on the soldiers. Furthermore, the fact that none of the soldiers had been killed or injured in the incident was another indication that their children had been unarmed. 44. Under Articles 2 and 13 of the Convention the applicants complained that the investigation into the killings had been ineffective. 45.", "Relying on Article 17 of the Convention, the applicants complained that the killings had not been justified under Article 2 § 2 of the Convention because it had not been proved that their children had been PKK members or that they had opened fire on the soldiers. 46. The Government contested the applicants’ arguments. 47. The Court considers that the applicants’ complaints relate to the deprivation of the right to life of their children and the effectiveness of the investigation into their killing.", "As such, their complaints can be examined solely from the standpoint of Article 2 of the Convention which reads as follows: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Admissibility 48.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 49.", "The applicants argued that their children had been unarmed when they were killed by the soldiers. There was no evidence, such as a camera recording, to show that the soldiers had warned them to surrender but that their children had opened fire on the soldiers. Furthermore, the fact that not a single soldier had been injured during an alleged two-hour long armed operation, especially despite the allegation that it had been their children who had fired first, further proved that their children had been unarmed. 50. The applicants argued that the initial examinations of the place of the incident and the bodies of their children had been conducted by the soldiers who killed their children, and not by a prosecutor.", "This, in the applicants’ opinion, showed that the investigation had been flawed from its very early stages. They referred to their applications to the national authorities (see paragraphs 25, 27 and 37 above), and submitted that they had complained about the prosecutor’s failure to go to the scene of the incident. They did not find it convincing that the prosecutor had been unable to go to a place where civilians had been killed and where not even a soldier had been injured. 51. The applicants also criticised the failure to take swabs from the bodies of their children with a view to verifying whether or not they had traces of gunpowder residue.", "52. The Government submitted that the PKK was an internationally recognised terrorist organisation whose objective was to overthrow the constitutional order of the Republic of Turkey through armed struggle. There was no reason to doubt the accuracy of the assessment of the security forces that the applicant’s children had been members of the PKK. 53. In light of the convincing and concrete evidence, it had been established that the applicants’ children had been PKK members who had tried to use the heavy rain and darkness to reach the Cudi Mountain in order to join a PKK camp.", "The incident had begun soon after the soldiers’ final assessment. The force used in the incident had been absolutely necessary for the legitimate aim of defence of others from unlawful violence. The planning of the operation had not disclosed a lack of care which might have rendered the use of force disproportionate to the aim pursued. 54. The soldiers had acted with the aim of arresting the terrorist group and handing them over to the judicial authorities.", "However, members of the terrorist group had opened fire on them and the soldiers had had to protect themselves. The incident had lasted for a period of two hours and five terrorists had been recovered together with their weapons and other equipment. 55. The authorities had carried out an effective investigation into the killing of the five terrorists and collected all the evidence. However, it had not been possible to take fingerprints from the rifles found next to the bodies because they had been too wet and muddy.", "56. In carrying out his investigation the prosecutor had not unduly relied on the information provided by the military. Although the prosecutor had not been able to go to the area on the same day due to security risks, he had asked the soldiers to bring the bodies into the hospital. He had visited the place of the incident as soon as the necessary security measures had been taken by the soldiers. 57.", "The Court notes that in their observations the Government made extensive submissions to the effect that the applicants’ children had been terrorists and members of the PKK. The Court thus deems it appropriate to stress at the outset that it is not a criminal court entrusted with the task of examining whether or not the applicants’ five children were members of the PKK, or assessing their criminal liability for membership or otherwise of any outlawed organisation. In the present case the Court is called upon to examine whether or not the applicants’ children were killed in circumstances engaging the responsibility of the respondent Government. The Court will carry out its examination with sole reference to whether or not the use of lethal force against the applicants’ five children was absolutely necessary and proportionate, as required by Article 2 of the Convention. 58.", "The Court reiterates that the text of Article 2 of the Convention read as a whole demonstrates that paragraph 2 does not primarily define instances where it is permitted to intentionally kill an individual, but describes situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than “absolutely necessary” for the achievement of any of the purposes set out in subparagraphs (a), (b) or (c). In this respect the use of the term “absolutely necessary” in Article 2 § 2 indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraph 2 of Articles 8-11 of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in the subparagraphs of the Article (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 148-149, Series A no. 324).", "59. Turning to the circumstances of the present case, it is not disputed between the parties that the applicants’ five children were killed by the soldiers of the respondent State. The Court will therefore examine whether the Government have discharged their burden of justifying the killings. In doing so, it will have particular regard to the investigation carried out at the domestic level in order to establish whether that investigation was effective, in the sense that it was capable of leading to the determination of whether the force used was or was not justified in the circumstances. 60.", "In this connection, the Court reiterates that it is sensitive to the subsidiary nature of its functions 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 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, 22 September 1993, §§ 29-30, Series A no. 269).", "61. Turning to the circumstances of the present case, when notice of the present application was given to the Government, the facts as presented by the applicants led the Court to put a number of specific questions relating to the way in which the investigation was conducted. The Court notes that it did not receive any responses from the Government to some of its questions and that the replies it did receive are incapable of dispelling the very serious misgivings it has about this investigation. 62. The Court notes at the outset that the initial and critical phases of the investigation were carried out by members of the military and without the supervision of the prosecutor.", "In this connection, the Court does not find it convincing that the prosecutor had been unable to go to the place of the incident on account of safety concerns. It is noteworthy that the same safety concerns did not stop the soldiers from asking a number of civilian villagers living in a nearby village to go to the area to help them retrieve the bodies (see paragraph 16 above). However the prosecutor, who seems to have accepted the soldiers’ advice about the safety concerns without any hesitation, did not go to the area until some four months after the incident. 63. The Court considers that allowing a unit of soldiers to take such an active part in the investigation into the killing of five persons by another unit of soldiers is not only so serious as to taint the independence of the entirety of the criminal proceedings (see Ramsahai and Others v. the Netherlands [GC], no.", "52391/99, §§ 339-341, ECHR 2007‑II), but also entailed the risk that crucial evidence implicating the soldiers in the killing would be destroyed or ignored (see Özcan and Others v. Turkey, no. 18893/05, § 66, 20 April 2010). 64. The Court also finds it striking that the documents drawn up by the military about the killings were not handed over to the prosecutor for a period of eleven days (see paragraph 24 above). Nevertheless, even in the absence of those documents the prosecutor was still able, presumably on the oral advice of the military, to conclude that the applicants’ children had been PKK members and killed in a clash with the security forces (see paragraph 17 above).", "During the same eleven-day period no steps were taken by the prosecutor to investigate the killings. 65. Indeed, the Court notes that even the applicants’ serious allegations and their requests for a number of pertinent investigatory steps to be taken (see paragraph 25 above) did not seem to have spurred the prosecutor to take action in the subsequent days and months. The first step taken by the prosecutor, after he has examined the bodies on 20 January 2005, was to instigate a criminal investigation against the applicants’ five dead children on 23 February 2005 for “undermining the territorial integrity of Turkey” (see paragraph 26 above). 66.", "Another very crucial defect in the investigation was the failure to examine whether the weapons found next to the bodies of the applicants’ children had their fingerprints on them. The only explanation for this is the one sentence which features in the report drawn up by the soldiers at the place of the incident on 20 January 2005, which reads that “as it was raining the weapons [found next to the bodies] were wet and muddy and [the investigators] have thus been unable to carry out fingerprint analysis on the weapons”. That sentence was relied on both by the prosecutor when closing his investigation (see paragraph 35 above) and by the Government in their observations (see paragraph 55 above). Despite the applicants’ repeated requests (see paragraphs 25 and 37), the national authorities did not arrange any forensic examinations of the rifles with a view to establishing whether it was indeed impossible to lift any fingerprints from them and the Court has not been provided with any explanation about that failure. 67.", "Similarly, there is no information in any of the documents in the investigation file to show that any attempt had been made to examine the bodies and the clothes the deceased had been wearing for gunpowder residues. Instead, it appears from the documents that a decision had been taken by the authorities to destroy some of the clothes the deceased had been wearing (see paragraph 19 above). 68. The Court considers that a search for fingerprints and for gunpowder residue on the bodies and clothes should have been the logical starting point for the prosecutor in the investigation. In light of these two serious failures, the Court cannot find it established that the applicants’ five children had handled those weapons and fired at the soldiers.", "69. Furthermore, the soldiers who had killed the applicants’ five children were not questioned for a period of almost thirteen months after the operation (see paragraph 33 above). For the Court, such a lengthy delay to question the main suspects in an investigation into multiple killings did not disclose the necessary diligence required by Article 2 of the Convention. As well as creating an appearance of collusion between the judicial authorities and the military, the failure to question the soldiers is conducive to leading the relatives of the deceased – as well as the public in general – to form the opinion that members of the security forces operate in a vacuum in which they are not accountable to the judicial authorities for their actions (Bektaş and Özalp v. Turkey, no. 10036/03, § 65, 20 April 2010).", "70. The Court observes that the soldiers who killed the applicants’ children were also the only eyewitnesses to the events and their questioning should have been regarded as a priority. Nevertheless, there is no information in the documents in the investigation file to explain this lengthy delay. Furthermore, the respondent Government who have been invited by the Court to provide an explanation, did not deal with that request in their observations. 71.", "When the prosecutor did finally take statements from the soldiers on 7 and 9 February 2006, only fifteen of the twenty-six soldiers who took part in the operation gave evidence (see paragraph 33 above). An army non-commissioned officer was also present in the room and took down their statements. The Court has not been provided with any information as to what exact “nature” (see paragraph 33 above) of the investigation necessitated the presence of an army officer at the risk of damaging the “independence and impartiality” of the investigation. Moreover, having regard to the delay of thirteen months to summon the soldiers before the prosecutor, the Court is also not convinced that there could have been any “urgency” at that late stage of the investigation requiring for whatever reason the assistance of the army officer. The Court does share, on the other hand, the misgivings of the applicants who consider that the identical nature of the soldiers’ statements is the result of the pressure that must have been exerted by the army officer on the soldiers during their questioning.", "72. The Court must emphasise at this juncture that it does not share the Government’s opinion that the prosecutor had not unduly relied on the information provided by the military in conducting his investigation (see paragraph 56 above). According to the documents summarised above, other than examining the bodies of the applicants’ five children, the prosecutor did not take any meaningful step without the assistance or presence of members of the military. 73. The prosecutor’s serious failures, coupled with the criminal investigation hastily introduced against the applicants’ dead children before taking any investigatory steps into their killings first, illustrate that the prosecutor had concluded very early on in his investigation that the applicants’ children had been PKK members.", "The Court considers that that conclusion, coupled with the prosecutor’s deferential attitude to the soldiers, explains the prosecutor’s blinkered approach throughout the investigation into the killings. Having regard to the entirety of the investigation, it cannot be said that the prosecutor did his utmost to find out what really happened on the day of the incident. 74. In light of the serious defects in the investigation which are highlighted above and which are in breach of the obligation under Article 2 of the Convention to carry out effective investigations, the Court considers that the investigation carried out at the domestic level was clearly inadequate and left many obvious questions unanswered. Moreover, by closing the investigation when they did, the authorities deprived the applicants of the opportunity to find out and be convinced as to how and why their children had been killed (see, mutatis mutandis, Beker v. Turkey, no.", "27866/03, §§ 51-54, 24 March 2009). 75. In the light of the foregoing, the Court considers that no meaningful investigation was conducted at the domestic level capable of establishing the true facts surrounding the killings. Consequently, it concludes that the Government have failed to show to the Court’s satisfaction that the resort to the use of fatal force against the applicants’ five children had been absolutely necessary and proportionate. 76.", "It follows that there has been a violation of Article 2 of the Convention in its substantive and procedural aspects in respect of the killing of the applicants’ five children. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 77. The applicants complained that the sadness caused to them by the killing of their children amounted to ill-treatment within the meaning of Article 3 of the Convention. 78.", "The Court considers that this complaint may be declared admissible. However, having regard to its finding relating to Article 2 of the Convention (see paragraph 76 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 3 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 79. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 80. Each of the five applicants claimed 20,000 euros (EUR) in respect of pecuniary and EUR 80,000 in respect of non-pecuniary damage. They argued that they had endured unbearable pain on account of the arbitrary killing of their children and the failure of the authorities to punish the perpetrators. 81. The applicant Ms Gülbahar Özer stated that her daughter Sibel Sartık had left behind three children.", "She and the applicant Mr Yusuf Özer added that they were brothers and sisters and the pain they had suffered from the killing of their own children had been exacerbated by the killings of their respective nieces. 82. The applicant Mr Abdurrahman Çınar argued that his son Hamdullah Çınar had been working on building sites and had been providing financial help to his family. 83. The Government considered that the claims for pecuniary and non-pecuniary damage were excessive and unsubstantiated.", "84. Having regard to the applicants’ failure to submit any evidence or other information in support of their claim for pecuniary damage, the Court rejects their claims. 85. Having regard to the applicants’ suffering on account of the killing of their children by the soldiers which, contrary to the Government’s submissions, does not require substantiation, the Court awards each of the five applicants EUR 65,000 in respect of non-pecuniary damage. B.", "Costs and expenses 86. The applicants also claimed a total of EUR 5,930 for the costs and expenses incurred before the Court. This sum consisted of the fees of their lawyers, as well as for the expenses such as translation, postage, photocopying and stationery. In respect of their claim for the fees of their lawyers (EUR 5,256) the applicants submitted to the Court a time sheet showing the amount of time spent by their lawyers in representing them before the Court. They also submitted a bill from a translation agency for the amount of EUR 515.", "They claimed that their remaining expenses such as photocopying, fax and stationery amounted to EUR 159. 87. The Government were of the opinion that the claim for costs and expenses was not supported with documentary evidence. 88. 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 submitted by the applicants in support of their claims for costs and expenses and the above criteria, the Court considers it reasonable to award the sum claimed by the applicants in full. C. Default interest 89. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 2 of the Convention in both its substantive and procedural aspects; 3. Holds that there is no need to examine separately the complaint under Article 3 of the Convention; 4. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 65,000 (sixty-five thousand euros), plus any tax that may be chargeable, to each of the five applicants, in respect of non-pecuniary damage; (ii) EUR 5,930 (five thousand nine hundred and thirty euros) to the applicants jointly, plus any tax that may be chargeable to them, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 2 July 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stanley NaismithGuido RaimondiRegistrarPresident [1] An application lodged by the applicants Gülbahar Özer and Yusuf Özer against Turkey (application no. 64406/09) concerning their inability to bury their children themselves, after a funeral and in a place of their choosing, is currently pending before the Court." ]

[ "FOURTH SECTION CASE OF KUPCZAK v. POLAND (Application no. 2627/09) JUDGMENT STRASBOURG 25 January 2011 FINAL 20/06/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kupczak v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Ljiljana Mijović,David Thór Björgvinsson,Ledi Bianku,Mihai Poalelungi,Vincent A. de Gaetano, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 4 January 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "2627/09) 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 Edward Kupczak (“the applicant”), on 22 December 2008. 2. The applicant was represented by Mr J. Znamiec, a lawyer practising in Kraków. The Polish Government were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs. 3.", "The applicant alleged, in particular, that he had not been offered adequate medical care while in custody. 4. On 9 March 2009 the President of the Fourth Section decided to give notice of the application to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1). The President also gave priority to the application, pursuant to Rule 41 of the Rules of the Court.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1955 and lives in Kraków. A. The criminal proceedings 6.", "In 1998 the applicant was in a car accident which left him disabled. He suffered a fracture of the spine which resulted in paraplegia. He was also diagnosed with paralysis of the urethral and anal sphincters. Since then the applicant has suffered from severe back pain and sudden pain in the legs. From 2000 until 29 October 2006 the applicant had been using a special morphine pump made for him in Germany which had been implanted in his body and infused morphine directly into his spinal fluid.", "7. On 26 October 2006 the applicant was arrested by the police. 8. On 27 October 2006 the Kielce District Court decided to remand him in custody in view of the reasonable suspicion that he had been leading an organised criminal gang, the “Kantor Wielopole” group, specialising mainly in money laundering and usury. The applicant’s lawyer argued before the court that the applicant’s state of health was incompatible with detention.", "However the court considered that the applicant could be detained and that the morphine pump he had been using could be managed in the detention centre. In particular, the doctors from the detention centre would be able to operate the pump and refill it with morphine. 9. The applicant appealed against the decision. 10.", "On 23 November 2006 the Kielce Regional Court dismissed his appeal. The court considered that if the applicant continued to receive treatment for his pain he could stay in detention. 11. After the applicant’s arrest the morphine in his pump ran out, but the detention centre authorities filled it with sodium chloride (saline solution) as a substitute to keep the pump working. 12.", "The applicant’s lawyer requested an expert opinion to evaluate his client’s state of health. He submitted that the court, when deciding on his detention, had been misled by the detention authorities as regards the functioning of his pump, and the expert opinion could clarify the importance of the latter in the treatment of the applicant’s chronic pain. 13. On 24 January 2007 the applicant’s detention was extended by the Kraków Regional Court. The court also dismissed the applicant’s lawyer’s request for an expert opinion.", "As regards the applicant’s state of health, the court expressed, in one sentence, the opinion that it was not incompatible with detention. An appeal by the applicant against this decision was dismissed on an unspecified date. 14. On 16 April 2007 the applicant’s detention was further extended. The court relied on the risk that a severe sentence would be imposed and on the possibility that the applicant would interfere with the proper course of the proceedings.", "As regards the applicant’s state of health, the court reiterated that he had available to him a specialised machine to administer the painkiller – the morphine pump – and that it was thus possible to treat him in the detention centre. Specialist cleaning of the pump would take place in the near future in the civil hospital in Radom or in the Warsaw Prison hospital. The court made no reference to the fact that the pump had not been working properly for at least four months. 15. The applicant appealed against this decision.", "He argued that the pump had not been functioning properly since the beginning of his detention, as it had not been possible for the detention centre to refill the pump with the special mixture of morphine and other drugs put together individually for the applicant in a clinic in Germany. In place of the morphine the pump had been refilled with an ordinary saline solution, which had no painkilling properties. Instead, the applicant had been receiving strong painkillers (opiates) orally and as injections, which were addictive and had not been properly adapted to his needs. This treatment did not provide sufficient relief from pain; moreover, it caused narcotic stupor and possible dependence. 16.", "The applicant’s appeal against this decision was dismissed on 11 May 2007 by the Kraków Court of Appeal. It found that the applicant’s lawyer had not substantiated his argument that the applicant’s medical care was inadequate. 17. On 17 April 2007 the Kielce Regional Prosecutor dismissed the applicant’s request for a comprehensive examination by specialists in several medical fields and a medical opinion on his state of health. 18.", "On 23 July 2007 Kraków Regional Court further extended the applicant’s pre-trial detention. The court repeated previously raised arguments almost word for word, namely that the applicant possessed a morphine pump which made his treatment in the detention centre possible. 19. The applicant appealed against the decision, but on 8 August 2007 the Kraków Court of Appeal dismissed the appeal without making any reference to the applicant’s state of health. 20.", "On 11 October 2007 the Kielce Regional Prosecutor dismissed the applicant’s application to have the investigation stayed because of his state of health. 21. The applicant’s pre-trial detention was further extended in October 2007 and on 21 April 2008 by the Kraków Regional Court. In the latter decision the court stated as follows: “As regards the state of health of [the applicant] the Detention Centre had not yet submitted their position on whether there had been circumstances posing a threat to the applicant’s life or health. Such a threat could not be credibly invoked by reference to his [morphine pump] breakdown as it had happened a long time ago and the Detention Centre had not informed [the court] of any negative consequence for the applicant’s life and health (except for stating that he was suffering pain).", "It should also be added that the court ordered an expert opinion on neurology to assess whether continued stay of [the applicant] in detention posed a threat to his life or health...” 22. On 2 September 2008 the same court dismissed the applicant’s request for release. 23. On an unspecified date the applicant was indicted before the Kraków Regional Court. 24.", "On 8 October 2008 the Kraków Regional Court requested the Kraków Court of Appeal to extend the applicant’s detention beyond the statutory time‑limit of two years laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postępowania karnego). 25. On 24 October 2008 the Kraków Court of Appeal allowed the request and extended the applicant’s pre-trial detention until 30 May 2009. The court relied on a reasonable suspicion against the applicant, the severity of the penalty that might be imposed and a risk that he would interfere with the proper course of the proceedings. As regards the applicant’s state of health the court held as follows: “Pre-trial detention does not pose a threat to the life or health of any of the co-accused, including [the applicant].", "[The applicant] has been suffering severe pain since a fracture of the spine ten years ago, for which there is no treatment other than palliative care consisting of painkillers. Although efforts to implant a morphine pump have taken some time, [the applicant] is under the care of the prison health service, he takes opiates orally and the court always checks whether [the applicant] is able to participate in the trial. It cannot thus be said that [the applicant’s] detention poses a threat to his life or health, and this has been confirmed by the expert opinions. It would not be correct to assume that [the applicant] has been subjected to inhuman or degrading treatment, because the authorities have displayed due care in protecting [the applicant’s] health and in preventing his suffering, as they have created special conditions for his outdoor exercise, allowed him to buy food during his hunger strike, examined him (unless he opposed it, claiming that it was pointless), treated him by administering painkillers and taken steps to implant a new morphine pump. However, since the suffering of [the applicant] is real and he has raised the possibility of having a procedure outside Poland which would bring it to an end, the situation should be resolved decisively so that justice is not achieved by [tolerating] the suffering of a human being.", "From the correspondence relating to the Detention Centre’s efforts it is not clear whether it is actually possible to carry out the medical intervention needed by [the applicant] and whether the drugs administered orally cause harmful side effects. Therefore the Court of Appeal instructs the Regional Court, which is supervising the applicant’s pre-trial detention, to urgently confirm with the Central Administration of Prisons (Centralny Zarząd Zakładów Karnych) whether the Polish prisons are able to continue [the applicant’s] detention without allowing his health to deteriorate, by organising a medical intervention that would allow the proper functioning of the morphine pump so that the pain suffered by [the applicant] would be at least substantially diminished. If the prison authorities are not able to secure the above and [the applicant] continues to suffer, the pre-trial detention should not be continued because it would become non-humanitarian. Even if [the applicant] were guilty of the crimes he is charged with, were to receive a severe punishment, or, if released, were to avoid justice, it would not be correct to achieve an act justified in the interests of justice by tolerating suffering which (allegedly) could have been prevented...” 26. An appeal by the applicant against the decision was dismissed by the Kraków Court of Appeal on 13 November 2008.", "27. At the hearing on 14 May 2009 the Kraków Regional Court decided to lift the applicant’s pre-trial detention. The court decided that the detention of the applicant and his two co-accused was no longer necessary, particularly since eleven other co-accused had already been released. The court also found that the argument of severity of the possible sentence lost its importance with the lapse of time, relying on the case-law of the Court, and that detention should not amount to anticipation of the penalty of imprisonment. Similarly, it did not consider the risk of the applicant and other co-accused interfering with the course of proceedings decisive for extending the measure against them.", "As regards the state of health of the applicant, the court indicated that surgery was imminent and that this justified release. The court acknowledged that for a long time the prison authorities had been attempting to find a solution for the applicant, who at the same time had been telling them he was suffering pain. As a result, the situation could justify the Court of Appeal’s conclusion on 24 October 2008 that his pre-trial detention amounted to an inhumane measure and that “it would not be correct to achieve an outcome justified in the interests of justice by tolerating his suffering”. 28. The applicant was released and travelled to a hospital in Germany, but given the high cost of the intervention he decided to have the new pump implanted in Poland.", "29. On 13 August 2009 the applicant had a new morphine pump implanted in the Kraków University Hospital. 30. On 23 September 2009 the Kraków District Court decided to impose a preventive measure on the applicant, prohibiting him from leaving the country and ordering the seizure of his passport. The applicant’s trial is pending.", "B. The medical certificates 31. A medical expert opinion of 31 May 2004, issued by the Jagiellonian University Chair of Forensic Medicine, sets out, in so far as relevant: “[Since the applicant’s accident, despite having undergone numerous operations, he still suffers severe pain] and as a result has had a pump implanted which administers morphine twenty-four hours a day. However, as he submits, there are days when the pain is more severe and he injects additional doses of morphine himself. It should be made clear that a person suffering from chronic pain, no matter what the cause, who is treated with morphine in a stable dose administered by a pump, is able to function normally in society and would be able to take part in a trial.", "However, in the present case, when his pain worsens [the applicant] takes additional doses of morphine, which can change his perception of reality and in particular can influence the statements he makes. Also, according to [a medical certificate the applicant] is due to undergo another operation on his spine ... Taking the above into account it is established that [the applicant] is unable to participate in criminal proceedings for a period of six months (niezdolny do czynności procesowych).” 32. The certificate issued on 15 December 2005 by the same Chair of Forensic Medicine confirmed that the applicant was unable to participate in the criminal proceedings for a period of twelve months. 33.", "A medical opinion of 26 October 2006 confirmed that the applicant, who had been treated with the morphine pump, could participate in the proceedings but might need a break during questioning in the event of severe pain. The expert considered that a detention centre could not provide the necessary medical care and that the appropriate place to detain him would be a prison hospital. 34. An information card from the Warsaw Detention Centre Hospital of 8 November 2006 confirmed that there were difficulties in obtaining the morphine needed to fill up the pump; therefore, the pump was filled up with sodium chloride to keep it functioning. The applicant was treated with the painkiller Tramal.", "35. An information card of 27 January 2007 from Radom Hospital confirmed that the applicant’s pump, during a period of three months, had been filled up with saline solution. 36. It appears from a medical certificate of 16 November 2007 that the applicant’s morphine pump was filled up with morphine on 25 September 2007. From the documents invoked below, it is clear that there had been some irregularities in the functioning of the pump and it broke down either in October or November 2007.", "37. On 31 January 2008 the head of the surgical unit of the Kraków Detention Centre Hospital wrote to the Kraków Regional Court in reply to that court’s questions. He informed the court that the applicant was not a patient in the unit but that he had been placed there due to the fact that there was no suitable cell for a disabled person in the detention centre. “4. The present state of health of the applicant allows his stay in a prison, to be indicated by a court, which has a cell for disabled persons and on condition that his morphine pump is replaced.", "The chronic pain which the applicant has been suffering from for over ten years can be controlled only by the constant administration of a painkiller twenty-four hours a day. 5. Other methods of treating the applicant’s pain tried by the hospital have been ineffective. This fact indicates that a surgical intervention is urgently required ‑ implantation of a morphine pump. Otherwise, the [applicant’s] chronic pain may constitute a ground for applying for release from detention.” 38.", "According to a letter sent to the head of the hospital at the Kraków Detention Centre by the Palliative Medicine Institute in Warsaw on 6 February 2008 the applicant’s morphine pump had not been functioning correctly. It suggested enlisting the services of a clinic that specialised in treating pain and a diagnosis the deficiency in the functioning of the pump. 39. According to the forensic medical opinion of 7 February 2008 the applicant, who had been using a wheelchair, could testify and take part in the trial, although transporting him to the Kielce Regional Court could increase his pain. The expert stated that “sudden pain attacks do not limit the [applicant’s] mental capacity, provided that in the event of severe pain [the court] would interrupt the hearing for a moment.” 40.", "On 3 March 2008 the Kraków Detention Centre Hospital informed the court that the applicant’s morphine pump had been broken since 29 November 2007. 41. On 12 March 2008 the director of the hospital at the Kraków Detention Centre informed the Kraków Regional Court that the applicant was receiving orally five different painkillers, including Tramal, which was also injected in case of need. 42. In 2008 the Kraków Detention Centre asked several hospitals in Poland whether they could implant the morphine pump.", "After several negative replies, on 13 March 2008, the head of the neurosurgical department of Mielec Hospital informed the Kraków Detention Centre that they would be able to replace the applicant’s morphine pump. A hospital in Gdańsk also agreed to carry out that intervention but later refused for technical reasons. 43. On 18 July 2008 the Jagiellonian University Pain and Palliative Care Clinic issued an expert opinion. The experts established that the applicant was suffering from attacks of severe pain, approximately once an hour, lasting from a few to a dozen minutes.", "The morphine pump had been implanted about eight years previously, but in October 2007 it had stopped functioning. The applicant had thus been receiving several types of painkillers administered orally and had injections of morphine and Tramal in case of severe pain. II. RELEVANT DOMESTIC LAW 44. The relevant domestic law and practice concerning the imposition of detention during judicial proceedings (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no.", "31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006. 45. The relevant domestic law and practice as well as international documents regarding conditions of detention are stated in Sławomir Musiał v. Poland, no. 28300/06, §§48-63, ECHR 2009‑... (extracts).", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 46. The applicant complained that he had been subjected to inhuman and degrading treatment in breach of Article 3 of the Convention in that throughout his entire pre-trial detention his morphine pump had not been functioning. This Article reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 47. The Government contested that argument.", "A. Admissibility 48. The Government raised a preliminary objection as to the non‑exhaustion of domestic remedies by the applicant. They argued that the applicant could have, but had not, made use of the remedies of a compensatory nature governed by the provisions of Articles 23 and 24 of the Civil Code, in conjunction with Article 448 of the Civil Code, in order to bring an action for compensation for his allegedly unsatisfactory medical care during his detention. Secondly, the Government averred that the applicant could have lodged a constitutional complaint with the Constitutional Court alleging that Article 263 of the Code of Criminal Procedure, which allowed the extension of detention without any time-limits, was contrary to the Constitution. 49.", "The Court however notes that the arguments raised by the Government are similar to those already examined and rejected in previous cases against Poland (see, among other authorities, Sławomir Musiał, cited above, §§ 65-81) and that the Government have not submitted any new circumstances which would lead the Court to depart from that finding. 50. Finally the Government argued that the applicant should have resorted to yet another remedy, namely an action for compensation under Article 552 § 4 of the Code of Criminal Procedure. However the Court reiterates that a request for compensation for manifestly unjustified detention under Article 552 of the Code of Criminal Procedure of 1997 enables a detainee to seek a retrospective ruling as to whether his detention in criminal proceedings which have already been terminated was justified, and to obtain compensation when it was not. The proceedings relating to such a request are essentially designed to secure financial reparation for damage arising from the execution of unjustified detention (see Włoch v. Poland, no.", "27785/95, judgment of 19 October 2000, § 91). Moreover, an action for compensation is not a remedy which has to be made use of, because the right not to be subjected to inhuman and degrading treatment and the right to obtain compensation for any deprivation of liberty incompatible with Article 5 are two separate rights (see, mutatis mutandis, Feliński v. Poland, no. 31116/03, § 41, 7 July 2009, and Zdebski, Zdebska and Zdebska v. Poland (dec.), no. 27748/95, 6 April 2000). 51.", "The Court notes that the applicant raised his health problems and in particular the necessity to have the morphine pump replaced in all his appeals against the decisions extending his pre-trial detention. He also requested expert opinions which could further clarify his medical needs. It is clear from the case file, and the Government do not seem to contest it, that the prison authorities and courts were aware of the applicant’s medical condition. 52. The Court observes that, in the circumstances of the present case, the remedies referred to by the Government were not capable of providing redress in respect of the applicant’s complaint.", "Having regard to the above considerations, the Court dismisses the Government’s preliminary objection as to the non-exhaustion of domestic remedies. 53. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention; nor is it inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The parties’ submissions 54. The applicant submitted in general that he had not been provided with appropriate medical care in detention, in that the authorities had caused his morphine pump to break down and had not allowed him to replace it. The medical staff in the detention centre hospital were not properly trained to operate such equipment and were not able to refill the pump or to keep it maintained. The applicant acknowledged that the authorities had been providing him with strong painkillers but that, given his state of health, the morphine pump, which administered the drugs directly to his spine, was the only efficient method of reducing his pain.", "He also alleged that he had been forced to take orally or by injection increasing doses of very potent narcotic drugs of which he was quickly becoming tolerant. As a consequence they not only did not offer relief from pain but adversely affected his perception and ability to concentrate which was necessary for him to be able to participate in his own trial. 55. In sum, the applicant submitted that during his two-and-a-half-year detention he had suffered pain which amounted to inhuman and degrading treatment. 56.", "The Government submitted that the applicant had been correctly treated and had not suffered any treatment contrary to Article 3 of the Convention. They submitted that throughout his detention he was placed in a Detention Centre Hospital, in a room customised to the needs of people with health problems, in particular to the use of a wheelchair. According to the Government the applicant received the medical attention he required and had received various painkillers (opiates), such as Tramal and morphine. He complained about his pain but on the other hand refused to take a higher dosage of these painkillers. 57.", "The Government maintained that the authorities did everything to enable the replacement of the applicant’s morphine pump; they indicated the exchange of correspondence between the Detention Centre and various medical centres in Poland between 31 January 2008 and his release in May 2009. The Government maintained that the applicant’s pump could be expected to function for about seven years, and thus its failure had been a normal consequence of time and rundown of batteries. 2. The Court’s assessment 58. 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 of the Convention.", "The assessment of this minimum level is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, Series A no. 215, p. 36, § 107; Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI; and Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III). 59.", "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. As regards prisoners or detainees, the Court has repeatedly noted that measures depriving a person of his liberty may often involve such an element. However, under Article 3 of the Convention the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła, cited above, §§ 91-94, and Wenerski v. Poland, no. 44369/02, § 55, 20 January 2009). 60.", "Turning to the facts of the instant case, the Court observes that the applicant is suffering from a serious medical condition and his treatment is limited to relieving him from chronic pain. Since 2000 he has been using a pump which administers a mixture of painkillers specially designed for him directly into his spinal fluid (see paragraphs 6 and 29 above). It is not disputed before the Court that the applicant’s morphine pump stopped delivering painkiller shortly after his arrest in October 2006, as it was refilled with a saline solution, and that a new pump was implanted in August 2009. During this time the applicant was treated with a series of powerful painkillers, taken either orally or intravenously. 61.", "It also appears from the medical documents in the file that before it broke down in October or November 2007, the applicant’s pump had been refilled with morphine at least once, in September 2007 (see paragraphs 36, 40 and 43 above). However, although specifically asked by the Court, the Government failed to clarify whether the applicant’s pump had been working properly and administering him morphine from his arrest in October 2006 until it broke down in 2007 and, if it was, for how long. Consequently the Court considers that it had not been established that during the applicant’s detention his morphine pump had worked properly for any significant period of time. 62. The Government appeared to dispute that the morphine pump was essential to the applicant, and submitted that his pain had been correctly treated with painkillers.", "63. However, the Court notes that the domestic courts clearly considered the fact that the applicant had a morphine pump implanted an important ground for finding his state compatible with detention. For the first two years the authorities relied on the above, without taking any note of the fact that his pump had in reality not been working since the beginning of his detention. In particular, in its decisions of 16 April and 23 July 2007, the court repeated the same justification that the applicant “had available to him a specialised machine to administer the painkiller – the morphine pump – and that it was thus possible to treat him in the detention centre” (see paragraphs 14 and 18 above). The courts failed to take into consideration objections raised by the applicant’s lawyer, that the pump had been useless to the applicant since October 2006, which had been confirmed by medical certificates of 8 November 2006 and 27 January 2007 (see paragraphs 34 and 35 above).", "It was only on 21 April 2008 that the court acknowledged for the first time that his pump had not been working for a long time but was satisfied that the Detention Centre had not considered this to be of excessively severe detriment to the applicant (see paragraph 21 above). The Court further observes that the detention authorities also considered, from the beginning of 2008, that the applicant needed to have a new pump implanted and contacted several hospitals in Poland. The Court acknowledges the difficulty encountered by the authorities in finding a medical centre prepared to carry out this kind of intervention. However it does not appear that the detention centre’s attempts produced any concrete and prompt improvement for the applicant and cannot be considered a diligent reaction to his suffering. 64.", "In this connection the Court underlines that this case is not concerned with the issue of whether a detainee has a right to be provided with a free morphine pump and it is not suggested that the State was required to pay for one (see Wenerski v. Poland, no. 44369/02, §§ 62 and 66, 20 January 2009 and Nitecki v. Poland (dec.), no. 65653/01, 21 March 2002). The essential issue raised by the case at hand is whether the applicant had had the possibility to have a morphine pump implanted. Such a possibility was not given to the applicant during the entire period of his two-and-a-half-year detention.", "It also notes that the applicant managed to have a new pump implanted in the Kraków University Hospital three months after his release (see paragraph 29 above). 65. The Court also notes that there is no indication in the case file that during the applicant’s detention the courts ordered an expert medical opinion, which could have assessed the adequacy of the current treatment of the applicant’s pain, given the fact that his pump had been filled with a saline solution and not morphine. Requests for such an assessment had been repeatedly made by the applicant’s lawyer and dismissed by the courts. In his letter of 31 January 2008 the head of the surgical unit of the Kraków Detention Centre Hospital, addressed to the court, clearly indicated that a working morphine pump was essential to treat the applicant’s pain (see paragraph 37 above).", "The Government did not submit that during the applicant’s detention there had been any other medical assessment that would contradict these findings. 66. The Court considers that the first time the trial court diligently examined the compatibility of the applicant’s state of health with detention was exactly two years after his arrest, on 24 October 2008, when the court recommended that the possibility of providing him with a functioning morphine pump should be investigated, so that his detention did not become inhumane (see paragraph 25 above). Nevertheless, the applicant remained in detention for the next six months without any improvement in his situation. 67.", "The Court is satisfied with the reasons for the decision to release him from detention given on 14 May 2009. This took place after two years, six months and eighteen days of the applicant’s pre-trial detention (see paragraph 27 above). The Court reiterates that the applicant was detained on the orders of the Regional Court, which had been obliged to display diligence in the examination of the prosecutor’s requests for extension of his detention. The authorities conducting criminal proceedings against the applicant continued to extend his detention, relying repeatedly on the reasonable suspicion against him and on the complexity of the investigation as justifying his continued detention. Regard being had to the finding above, the Court concludes that the domestic courts failed to give serious consideration to the applicant’s state of health, except for general statements (see decision of 24 January 2007 in paragraph 13 above) or repeatedly justifying his allegedly appropriate medical care by the existence of the morphine pump, which was in fact not working (see paragraph 63 above).", "Accordingly, the grounds given by the domestic authorities were particularly unsatisfactory, given the serious state of the applicant’s health, and could not justify the overall period of the applicant’s detention. 68. The foregoing considerations are sufficient to enable the Court to conclude that by tolerating the failure of the applicant’s morphine pump from the beginning of his detention and for the next two and a half years, given the particular state of health of the applicant, who was suffering chronic pain, the authorities responsible for his detention had acted in breach of their obligations to provide effective medical treatment and that the applicant was subjected to inhuman and degrading treatment in violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLES 5§3 AND 8 OF THE CONVENTION A.", "Article 5§ 3 69. The applicant complained that his pre-trial detention had been too lengthy, in violation of Article 5 § 3 of the Convention. 70. The Government contested that argument. 71.", "The Government raised a preliminary objection as to the non‑exhaustion of domestic remedies by the applicant. They maintained that the applicant could have lodged a constitutional complaint with the Constitutional Court, that Article 263 of the Code of Criminal Procedure, which allowed the extension of detention without any time-limits, was contrary to the Constitution. The Court however notes that the arguments raised by the Government are similar to those already examined and rejected in previous cases against Poland (see, among other authorities, Bruczyński v. Poland, no. 19206/03, §§ 38-45, 4 November 2008, and Biśta v. Poland, no. 22807/07, §§ 26-30, 12 January 2010) and that the Government have not submitted any new evidence which would lead the Court to depart from that finding.", "72. The Court notes that these complaints are linked to the one examined above and must therefore likewise be declared admissible. 73. Having regard to the finding relating to Article 3 (see paragraph 68 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 5 § 3 (see, among other authorities, Dzieciak v. Poland, no. 77766/01, § 115, 9 December 2008).", "B. Article 8 74. With regard to the issue of the authorities’ positive obligations to protect the applicant’s right to respect for his physical and mental integrity, and to the fact that his morphine pump had not been working, the Court considered it appropriate to raise of its own motion the issue of Poland’s compliance with the requirements of Article 8 of the Convention. 75. The Court notes that this complaint is linked to the one examined above under Article 3 of the Convention and must therefore likewise be declared admissible.", "76. However, having found a violation of Article 3 above, the Court considers that it is not necessary to examine the issues arising under Article 8 of the Convention with regard to the conditions of the applicant’s detention and the medical treatment he received (see Sławomir Musiał, cited above, § 101). III. REMAINDER OF THE APPLICATION 77. Finally, the applicant complained that his trial had been unfair in that he had been forced to participate in it either in a state of severe pain or in a narcotic stupor.", "Moreover, he alleged a breach of the presumption of innocence, in that the authorities had intentionally deprived him of properly administered morphine to treat his pain, because they were trying to force him to cooperate with the prosecution authorities and confess. 78. However, the applicant’s trial is still pending, and it will be open to the applicant, if convicted, to raise his complaints on appeal and, further, in a cassation appeal. 79. It follows that this part of his application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.", "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 10,000 euros (EUR) in respect of pecuniary damage for the reimbursement of the costs of the surgery he underwent in Germany in connection with replacing the pump.", "The applicant also claimed EUR 50,000 for non-pecuniary damage. 82. The Government contested these claims. 83. The Court does not discern any causal link between the violation found and the pecuniary damage alleged, in particular since the applicant had finally had his new morphine pump implanted in Poland.", "It therefore rejects this claim. On the other hand, it awards the applicant EUR 10,000 in respect of non-pecuniary damage. B. Costs and expenses 84. The applicant, who was represented by a lawyer, did not claim any sum in respect of costs and expenses.", "C. Default interest 85. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Declares unanimously the complaints concerning the length of the applicant’s pre-trial detention under Article 5 § 3 and his conditions of detention under Articles 3 and 8 admissible and the remainder of the application inadmissible; 2. Holds by 6 votes to 1 that there has been a violation of Article 3 of the Convention; 3.", "Holds by 6 votes to 1 that it is not necessary to examine the complaint under Article 5 § 3 of the Convention; 4. Holds unanimously that it is not necessary to examine the complaint under Article 8 of the Convention; 5. Holds by 6 votes to 1 (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 Polish zlotys 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; 6. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 25 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Fatoş AracıNicolas BratzaDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge V.A. de Gaetano is annexed to this judgment. N. B.F. A. DISSENTING OPINION OF JUDGE DE GAETANO 1. I regret that I cannot share the majority view in this case.", "2. To my mind the issues under Articles 3 and 5 § 3 should have been kept separate and distinct. Whereas the main issue under Article 5 § 3 is whether the judicial authorities had properly weighed all the relevant facts and circumstances in order to decide whether or not to release the applicant on bail pending the proceedings against him (or, in the instant case, to decide whether or not to prolong his detention), the issue for the purposes of Article 3 is whether the State – represented in this case by the authorities directly responsible for his detention, that is the detention or prison authorities – had done all that was reasonably possible to alleviate the applicant’s pain while in detention. 3. I would have found no difficulty in finding a violation of Article 5 § 3.", "The Polish courts cavalierly dismissed or ignored on many occasions the fact that the applicant was not only wheelchair bound but had an additional serious health problem. They repeatedly refused to properly put into the equation, for the purpose of deciding on the release or otherwise of the applicant, his overall physical condition. Even when, rather late in the day (see paragraph 25), the Kraków Court of Appeal took the trouble to consider at some length the applicant’s general medical condition, it wrongly equated his main health problem – which was basically the condition engendering bouts of severe pain in the applicant, with the correlative decrease in his ability to act in a way capable of frustrating the proper administration of justice in the proceedings against him – with “a threat to [his] life or health”. It simply missed the wood for the trees. 4.", "As to Article 3, on the other hand, I am satisfied that the authorities at the places where the applicant was detained did all that was reasonably possible to alleviate his pain. The applicant, it must be remembered, arrived in the detention centres with a medical or health condition pre-existing his arrest. The Court has already had occasion to observe that Article 3 should not be construed as laying down a general obligation to release detainees on health grounds; rather it imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty by, among others, providing them with the requisite medical assistance (see, among others, Mouisel v. France, no. 67263/01, § 40, ECHR 2002 IX). Moreover, the medical care that the applicant was entitled to receive while in detention was the standard level of health care available to the population generally (see Kaprykowski v. Poland, no.", "23052/05, § 75, 3 February 2009), and not some form of extraordinary medical care, particularly so when his life was not at any time at risk. First (at the Warsaw Detention Centre Hospital), difficulties were encountered to obtain the morphine to fill the pump (when this was still in working order); the pump was filled with a solution to keep it in working order and the applicant was given a particular drug to alleviate the pain (see paragraph 34). After the pump broke down and it was evident that the best solution was to have a new one implanted rather than to administer painkillers in a different way, the detention centre authorities (this time of the Kraków Detention Centre Hospital) sought to find a hospital where the implantation could take place (see paragraph 42). Several replied in the negative, but two Polish hospitals stated that they were able to replace the pump (one of the two later withdrawing the offer “for technical reasons”). Why the implantation was not performed by the other hospital before the applicant’s release we simply do not know.", "When the applicant was released, he travelled to Germany to have the pump implanted there, was put off by the cost, went back to Poland, and the implantation was effected by the Kraków University Hospital on the 13 August 2009 (almost three months to the day after his release). 5. In the opinion of the majority it is stated (second part of paragraph 63): “The Court acknowledges the difficulty encountered by the authorities in finding a medical centre prepared to carry out this kind of intervention.” To say, however, that it was the detention authorities’ (or the State’s) fault, or that it was due to their lack of diligence, that these attempts did not produce “any concrete and prompt improvement for the applicant” is, in my view, to jump to unwarranted conclusions – as is unwarranted the assertion in paragraph 64 that the State was at fault for not making it possible for the applicant to have a morphine pump implanted. It is quite evident that the intervention necessary for the implantation of such a pump cannot be equated to a simple tooth extraction or other run of the mill intervention." ]

[ "FOURTH SECTION CASE OF KING v. THE UNITED KINGDOM (Application no. 13881/02) JUDGMENT STRASBOURG 16 November 2004 FINAL 16/02/2005 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of King v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: MrM. Pellonpää, President,SirNicolas Bratza,MrsV.", "Strážnická,MrR. Maruste,MrS. Pavlovschi,MrL. Garlicki,MrJ. Borrego Borrego, judges,and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 17 February and 26 October 2004, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1.", "The case originated in an application (no. 515/02) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a United Kingdom national, James Murray King (“the applicant”), on 24 March 2002. 2. The applicant was represented by Salim and Patel, solicitors practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott of the Foreign and Commonwealth Office, London.", "3. The applicant alleged that the taxation penalty proceedings brought against him exceeded a reasonable length of time. 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 8 April 2003, the Court declared part of the application inadmissible and invited the respondent Government to submit observations on the remaining complaints. On 17 February 2004, the Court declared the remainder of the application partly admissible. 6. The parties 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 FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8.", "The applicant was born in New Zealand and at all material times was domiciled there. In 1966 he came to the United Kingdom to attend flying courses and at the same time engaged in other occupations of an engineering or building contractor variety, trading under the name “King Enterprises Engineering & Hardware Co”. The applicant met Miss J. and between April 1973 and October 1991 they purchased properties together. 9. From the 1970s onwards, the applicant's tax returns were incomplete and late, in some cases by several years.", "From February 1982, the Inland Revenue began investigating a number of guesthouse businesses in London which were associated with the applicant and/or his partner Miss J. of which no mention had been made in the applicant's tax returns. 10. In December 1985 the General Commissioners of taxes served two notices on the applicant requiring him to provide details of the acquisition of one of the guesthouses and to produce his business records. At a meeting on 21 November 1986, the applicant states that he was informed that the Revenue would be seeking penalties as part of any settlement. 11.", "From this time the applicant was involved in frequent discussions and correspondence with the Revenue about his affairs. The Government stated that the Revenue held some 38 meetings with the applicant and/or his accountant between September 1986 and July 1991. 12. In June 1987 the Revenue requested a statement of assets and liabilities from the applicant. The applicant states that he objected to disclosing all his assets since due to his non-domicile status his overseas assets were of no relevance.", "When he had not provided the statement by November 1987, the applicant was interviewed by the Inspector of taxes and on 21 November 1987 the “Hansard statement” was read to him. The statement, revised by the Chancellor of the Exchequer from time to time, sets out the practice of the Inland Revenue in cases in which criminal proceedings may be contemplated and outlines the factors taken into account by the Revenue when deciding whether to prosecute. 13. In April 1988 the General Commissioners served a notice requiring the applicant to give details of all transfers of property and cash and of his bank accounts. The notices included a warning about the financial penalty which could be imposed for non-compliance.", "14. On 18 January 1989 the applicant signed a “Statement of Personal Assets and Liabilities and Business Interests” as at 1 September 1986. He states that this was after the Special Commissioners had refused to require him to disclose his overseas assets. The same month, the Revenue issued tax assessments against the applicant for the tax years 1972/3 to 1986/7. The assessments were for income tax on guesthouse profits and bank interest which had not been declared by the applicant in his tax returns.", "The total claimed was in excess of 620,000 pounds sterling (GBP). For the tax years more than six years prior to the assessments being made, the Revenue could only raise assessments which were to make good a loss of tax due to the neglect or wilful default of the applicant. 1. The 1991 appeal 15. The applicant appealed against the assessments.", "Initial hearings during early 1989 before the General Commissioners were adjourned on the application of the applicant or Miss J. On 24 August 1989, at the Revenue's application, the appeals were transferred to the Special Commissioners of Taxes. A hearing of one week was scheduled for November 1990. On the date set for the hearing of his appeal, the applicant applied for judicial review of the refusal of the Special Commissioners to hold a preliminary hearing at his request. The appeal was adjourned as a result.", "After the refusal of permission to apply for judicial review, the appeals were relisted. 16. The appeals were heard over eighteen days between May and September 1991. The Commissioners initially indicated that they were not prepared to sit one day a week for the convenience of the applicant, but after the Revenue had opened the case it was decided that, exceptionally, the hearings should be arranged to ensure that the applicant and Miss J. were able to attend. The applicant's main submissions were that he had no beneficial interest in three of the guesthouses in respect of which assessments had been made and that certain funds used to purchase property had been a loan from his father.", "17. On 18 November 1991 the Special Commissioners issued their written decision. Some of the assessments were reduced to nil or discharged, but the appeals were dismissed in substance, the Commissioners finding that (for those years for which it was necessary) the purpose of the assessments had been to make good a loss of tax which was due to the applicant's wilful default or neglect. They found that the applicant had traded as a guesthouse proprietor and had derived profits from the trade. The applicant's evidence was described as “irregular in quality” and his claim that he was in partnership with other members of the family, including his infant children was found to be “a complete sham”.", "The revised assessments amounted to approximately GBP 120,000. 18. In or about the end of December 1991 the applicant applied for the Special Commissioners to state a case by way of appeal to the High Court against the 1991 Commissioners' decision, on the basis that they had erred in law, there being no evidence on which they could reach their determinations. The Special Commissioners drafted the case for the High Court in July 1992 and the applicant lodged his appeal on 17 August 1992. The appeal was heard and dismissed on 26 November 1993.", "The Court of Appeal dismissed the applicant's further appeal in October 1995. 2. Imposition of interest and penalty determinations 19. Meanwhile, in December 1991 the General Commissioners issued a determination under section 88 of the Taxes Management Act 1970 that interest was payable on the assessments from specified dates on which the tax ought to have been paid, to the date of payment. The applicant appealed against the determination.", "20. On 17 October 1994 the Revenue issued penalty determinations, assessed at 80% of the tax lost (the maximum penalty then being 100% of the lost tax, plus GBP 50). The penalties amounted to over GBP 50,000. The applicant appealed against the penalty determinations. 21.", "In April 1995 the General Commissioners agreed that the interest and penalty appeals should be transferred to the Special Commissioners. At about the same time, the Revenue discovered the existence of a further property, Roundwood Lodge, which had been purchased in 1983 and which was in the applicant's name. The Revenue took the view that the property had been purchased with funds from the profits of the applicant's business and the funds were therefore taxable. In April 1996 further assessments to income tax were therefore issued on guesthouse profits for the years from 1977/78 to 1985/86. The applicant appealed against the further assessments and the matter was later transferred to the Special Commissioners to be consolidated with other appeals.", "22. Meanwhile, on March 1996 the applicant suffered a stroke which he states affected his memory and his ability to cope with pressure. In August 1996 he wrote to the Revenue to ask that the “matters in hand” be adjourned to enable him to concentrate on his recovery. He appeared before the General Commissioners on 24 October 1996 when his request for further time for preparation of various matters was granted. 23.", "Meanwhile, despite reminders from the Inland Revenue on 6 June 1996 and 14 November 1996, the clerk to the General Commissioners did not write to the clerk of the Special Commissioners requesting a transfer until 3 March 1997. Despite further reminders in March, April and May 1997, he failed also to request a transfer of appeals against further assessments made in April 1996. The General Commissioners asked the clerk to request a transfer of these appeals on 24 October 1996. 24. On 6 March 1997 the Special Commissioners agreed to accept jurisdiction and issued requests for information about the status of various appeals.", "In September 1997 the appeals were consolidated. 3. The 2000 appeal 25. In February 1998 there was a preliminary hearing of the appeals against, (i) the December 1991 determination of interest, (ii) the 1994 penalty determination and (iii) the further assessments raised in 1996. The substantive hearing began in May 1998 and was heard over seventeen days between then and April 1999.", "The applicant represented himself. During the hearing he applied for a copy of the notes made by the 1991 Commissioners. When the application was refused he sought permission to judicially review the decision, which was also refused. 26. On 23 March 2000 the Special Commissioners dismissed the appeals.", "They held, inter alia, that they were bound by the factual findings of the 1991 Commissioners on the issue of neglect/wilful default for the years in respect of which such findings had been required. For the later years, in respect of which no determinations had been made by the 1991 Commissioners, they found wilful default and neglect on the part of the applicant (which was necessary to uphold the penalty determination). They also found that the capital statement he had prepared in 1991 was not truthful. As the amount of tax due was correctly determined by the 1991 Commissioners, the interest determination was also correct. The 80% penalties were appropriate.", "They allowed his appeal against the further (1996) assessments in part, by allowing some reduction in the amount claimed, but found that the applicant had been the owner of Roundwood Lodge and had purchased it with his own funds. 4. Appeal to High Court and Court of Appeal 27. In May 2001 Mr Justice Jacob dismissed the appeals against the findings of the 2000 Commissioners. As regarded the applicant's complaints raised about the procedures under Article 6, he found that the system of imposition of penalties for fraudulent or negligent delivery of incorrect returns or statements was “criminal” for the purposes of the Convention.", "He noted that the system was plainly punitive and deterrent, and the potential fine was very substantial and dependent on the culpability of the taxpayer, rather than being an administrative matter. The amount of the fine imposed also depended on the degree of culpability as mitigation, essentially a criminal matter, was more where the taxpayer was less culpable. The judge agreed with the applicant that the proceedings began in 1987 when the Hansard warning was given and considered whether the length of the proceedings was unreasonable. The judge noted that the applicant made no complaint of delay up to the 1991 decision and that some of the subsequent delay had been caused by or contributed to by the applicant, inter alia, in the way in which 16 hearing days were spread over nearly a year and due to problems arising from his illness. However, he observed that nothing happened for a two year period when the case was referred to the Special Commissioners, notwithstanding reminders from the Inland Revenue.", "In conclusion the judge said: “The decision of the 1991 Commissioners was released on 18 November 1991. Mr King waited some 5 weeks before asking for a case stated (appeal by way of cases stated was the procedure then). There was then an 8 month delay before that was produced (delay not of Mr King's making). The appeal was launched on 17 August 1992. Judgment was given on 14 January 1994.", "The Revenue delayed making a penalty determination until 17 October 1994. Whilst it is understandable, and at least not unreasonable, for the Revenue to wait until the hearing of the first appeal, it makes no sense for them to have waited some 9 months thereafter. The possibility of a determination was simply left hanging. Meanwhile the parties' attention was focused on other things, namely Mr King's further appeal to the Court of Appeal and, more significantly so far as Mr King's contribution to delay was concerned, the Revenue's discovery of the purchase in 1983 by Mr King of the substantial property, Roundwood Lodge. This led to further assessments and appeals therefrom which, it was decided fairly early on, should be heard with the interest and penalty appeals.", "... It seems that but for Mr King's concealment of Roundwood Lodge, the two other appeals would have been heard earlier than 1998. It is not possible to be precise as to how much delay was caused by the introduction of this factor into the case, but it is far from insignificant. Naturally it prolonged the hearing itself, but on top of that I think a fair estimate of its effect is that it delayed the penalty and interest appeals for about three years. ...", "The result of all this is that there was delay through no fault of Mr King of, say, five years from the date of the 1991 decision. Is that too much? Marginally, but only just, I think not. He was not thereby prejudiced. ...", "He merely had to pay the penalty later. But for the complication of Roundwood Lodge, however, I think the time to determination of the penalty appeals would have been inconsistent with Article 6 (1). In future cases it is highly desirable that such appeals (and penalty determinations) are put on a fast track. So far as I can see they were treated in the same way as other determinations and appeals, but it should be appreciated that more is at stake in the case of penalties. Serious consideration should be given to penalty determination being made earlier - in appropriate cases along with the assessments giving rise to the penalties.", "... I see no reason why the 1991 Commissioners could not have dealt with a penalty determination appeal if such a determination had been made at the same time as the 1989 determinations or shortly thereafter.” 28. The judge found in addition that the case was a serious one in which penalties were appropriate and the figure of 80% was not too high. So far as the further assessments were concerned, the reasoning of the Commissioners was detailed and convincing. The applicant had given misleading information to the Revenue and to the 1991 Commissioners and the further assessments had been to make good a loss of tax attributable to the applicant's wilful default or neglect.", "There was no error of law and no reason to overturn the decision. 29. The applicant applied for permission to appeal to the Court of Appeal. Permission was refused on paper in July 2001 and at a hearing on 3 October 2001. 30.", "On the question of delay, the Court of Appeal said, “The delays which occurred in relation to the penalty determination must be seen in the context of what has plainly been an extended campaign by the applicant in disputing his liabilities to the Revenue and in deferring the date on which those liabilities have to be satisfied. Moreover, I find ... the greatest difficulty in seeing how the applicant could be prejudiced simply by the fact that the penalty might have been imposed earlier.” 31. The court was not persuaded that an appeal on that basis would have any prospect of success. Although by the time of the appeal a medical report had been provided to the effect that the applicant's memory had been significantly impaired as a result of his stroke, the author was unable to date the onset of the memory loss or its duration. The report did not take the applicant's case as to prejudice any further.", "THE LAW 32. The applicant complains of the length of the tax penalty proceedings. Article 6 § 1 provides in so far as relevant: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” A. Period to be taken into consideration 33. Taking the Hansard warning date of 21 November 1987 as the commencement of the relevant period (see the decision on admissibility of 17 February 2004), the final decision was that of the Court of Appeal of 3 October 2001.", "The total period is accordingly 13 years, 10 months and 12 days. B. The parties' submissions 34. The applicant submitted that the total period was unreasonable and a large portion of the delays was attributable to the United Kingdom authorities. He contended that some delays were caused by the Inland Revenue's insistence on his producing details of his worldwide assets in which they had no legitimate interest.", "There was no reason why the penalty determinations could not have been made at the same time as the assessments so that all the issues could have been heard and resolved at the same time. He accepted that he had no realistic prospect of success on his appeal to the High Court from the 1991 Special Commissioners' decision but it took almost 11 months for the Revenue to issue the penalty determinations. The Special Commissioners had also taken an unduly long time to produce the stated case and, after the agreement on 17 April 1995 to transfer the case from the General Commissioners to the Special Commissioners, there was an inexplicable failure on the part of the clerk to take the necessary steps until 6 March 1997. 35. The applicant submitted that he has no major complaints about the manner in which the appeals were conducted after the transfer to the Special Commissioners, acknowledging that some delay was caused by his ill-health although pointing out that if matters had proceeded more quickly they would have concluded before his stroke occurred.", "To the extent that the Government criticised him for appealing against all the tax interest and penalty assessments made, he considered that since he disputed these liabilities he acted entirely reasonably in doing so. 36. The Government submitted that the length of the proceedings was substantially a result of the applicant's strategy to defer the determination of his tax liability as long as possible. He took all available means to prolong matters and deliberately obstructed the proceedings by his refusal to give a truthful account of his assets, his continued denial of interest in various properties and his “near-preposterous” explanations. His affairs were interlocked with those of Miss J. which meant that their appeals had to be heard together.", "In particular, he concealed the property known as Roundwood Lodge which only came to light in 1995, although purchased in 1983, and which led to the issue of further assessments and resulted in an estimated delay of three years in the overall proceedings. He has provided no explanation for this conduct. Nor did he ever take steps to end the delays which he attributed to the authorities. He gained significant financial benefits in respect of the value of interest lost on monies unpaid and the drop in real value of the penalties imposed. 37.", "The Government further pointed out that the applicant appealed against every decision, applied for judicial review and greatly slowed down the hearing of the appeals, by his requirement of only one hearing day per month or due to his illness. The case was also extremely complicated, though primarily due to the conduct of the applicant. While there were short periods of delay for which the authorities were responsible, these were minor. The timing of the penalty notices was due to the lack of certainty about the true ownership of the guesthouse businesses and it was reasonable to wait for these issues to be settled by the courts. The gap of eleven months between the High Court and issue of the notices was explicable by the need to obtain approval and to review thirteen files with a view to ensuring consistency of mitigation.", "C. The Court's assessment 38. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what is at stake for the applicant in the litigation (see, among other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). 39. As regards the importance of what was at stake for the applicant, considerable sums of money were in issue and the applicant faced the imposition of very large penalty assessments.", "The Court would note however, that, as pointed out by the Government, the delay in the proceedings was not without beneficial effect on the real value of the applicant's eventual liabilities. The domestic courts in that context noted that the applicant had not suffered any prejudice. 40. The proceedings were undoubtedly complex. The Court accepts that the Government's argument that the applicant contributed to their difficulty due to his failure to disclose properties and assets, in particular the Roundwood property, and by a number of unmeritorious appeals.", "It also notes that the applicant accepted that he did not have much to complain about after the transfer to the Special Commissioners in March 1997 when his own illness affected progress. 41. That said however, prior to 1997, it appears that there were several periods for which the authorities bore responsibility, and which were the subject of criticism in the High Court, namely; - a delay of some eight months in the Special Commissioners producing the case stated for appeal in 1992; - a gap of nine months between the rejection in January 1994 of the applicant's appeal by case stated from the 1991 decision on assessments and the Revenue's issuing of the penalty determinations on those assessments on 17 October 1994; - a completely unexplained delay, due apparently to an oversight on the part of the General Commissioners' clerk, in transferring the appeals against the penalty determinations from the decision to transfer in April 1995 and the actual transfer in March 1997. 42. Notwithstanding therefore what the domestic courts found was deliberate time-wasting by the applicant, the Court cannot but conclude that the authorities themselves contributed, without reasonable justification to the length of the proceedings, which on any analysis took an excessive length of time.", "There has, accordingly, been a violation of Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 43. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 44. The applicant claimed 27,770 pounds sterling (GBP) on account of the penalties imposed upon him.", "He submitted that by the time penalties were imposed on him in 2000 he was already suffering from the effects of a stroke. It was ill-health which accounted for the confusion and inconsistencies in his evidence and led to the imposition of an 80% penalty to reflect his alleged lack of cooperation. He therefore claimed a reduction in the penalties imposed to the level of 40%. 45. The Government considered that the claimed discount should be rejected as, firstly, the applicant had not paid any of the penalties, secondly this would interfere with the sentence imposed by the courts, thirdly, the effect of his tactics in drawing out the proceedings had substantially reduced the real value of the assessments and penalties at issue to the effective level of some 52% in any event, and fourthly, there was no causal link between the penalties and the delay.", "46. The Court finds no clear causal connection has been shown between the claimed pecuniary damage and the violation of the Convention (see e.g. Price and Lowe v. the United Kingdom, nos. 43185/98 and 43186/98, judgment of 29 July 2003, § 32) and makes no award under this head. B. Non-pecuniary damage 47.", "The applicant claimed 10,000 euros (EUR) for non-pecuniary damages on account of the additional strain of having to conduct proceedings in circumstances where his health had deteriorated. 48. The Government submitted that the cause of any harm was the applicant's own deliberate actions in drawing out the proceedings. 49. In the present case, the Court has noted above that the applicant's conduct contributed significantly to drawing out and complicating the proceedings.", "The Government's submissions as to the deliberate nature of the delaying tactics are supported by the domestic courts which found that he had intended to postpone as long as possible the date when he would have to satisfy his tax liabilities. In these circumstances, making an assessment on an equitable basis, the Court considers that a finding of a violation is sufficient just satisfaction. C. Costs and expenses 50. The applicant claimed GBP 9,995 costs for the proceedings before this Court, consisting of GBP 2,000 for solicitors' costs, GBP 470 for a medical report and GBP 5,925 for counsel, including fees of GBP 3,750 for observations on admissibility and merits. The applicant also claimed GBP 41,920 for costs incurred in the domestic proceedings in disputing the penalties.", "He argued that one of the main issues in dispute before the High Court was whether there had been undue delay, including whether the proceedings were criminal for the purposes of Article 6. This was also in issue in his application to the Court of Appeal. For the High Court, he claimed his own costs of GBP 16,220, plus GBP 20,000 costs which he was ordered to pay the Inland Revenue; for the Court of Appeal, he claimed GBP 5,700. 51. The Government submitted that these claims were excessive.", "They considered that for the Strasbourg costs the solicitors' claims were insufficiently broken down, that the medical report had been irrelevant to the issues and that the claims for counsel were unspecific as regards the hours worked. They considered that no more than GBP 5,200 was appropriate. As regarded domestic costs, they saw no justification for his recouping the order of costs paid to the Inland Revenue as it had not been shown that the penalties were wrongly imposed and they argued that the proceedings also concerned the complex factual situation and matters of domestic tax law, pointing out that of the 106 paragraphs of the High Court judgment only 42 referred to Convention issues. Similarly, only one in six of the grounds of appeal concerned Article 6. They also submitted that counsels' fees were excessively high and unspecific as to the hours worked and that the solicitors' fees were based on an unduly high hourly rate and undetailed invoices.", "They submitted that only GBP 3,284 was appropriate for the High Court and GBP 570 for the Court of Appeal. 52. The Court recalls that amounts claimed for legal costs must be necessarily incurred and reasonable as to quantum (see, amongst other authorities, Nikolova v. Bulgaria [GC] no. 31195/96, § 79, ECHR 1999-II). It finds the sums claimed by the applicant for the proceedings in Strasbourg excessively high, given the lack of complexity of the procedure and the limited number of issues.", "As regards the domestic procedures, these were not concerned exclusively with seeking redress for the alleged violation of the Convention. Nor does it consider that the requirement to pay the Inland Revenue's costs wholly flowed from the applicant's efforts to vindicate his Article 6 rights; the order for costs was largely a consequence of the court's findings as to his liability to pay the penalties in question, although some of the costs may be regarded as also concerning the Convention part of the case. 53. In conclusion, the Court awards EUR 7,300 in respect of the Strasbourg proceedings and EUR 10,200 for the domestic proceedings, together with any value-added tax (VAT) that may be payable. D. Default interest 54.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 § 1 of the Convention; 2. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant; 3. Holds that (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 17,500 (seventeen thousand five hundred euros) in respect of costs and expenses to be converted into pounds sterling at the date of settlement, together with any VAT that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 16 November 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O'BoyleMatti PellonpääRegistrarPresident" ]

[ "THIRD SECTION CASE OF DUPUIS AND OTHERS v. FRANCE (Application no. 1914/02) JUDGMENT FINAL 12/11/2007 STRASBOURG 7 June 2007 This judgment is final but may be subject to editorial revision. In the case of Dupuis and Others v. France, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President, MrC. Bîrsan, MrJ.-P. Costa, MrsE.", "Fura-Sandström, MrsA. Gyulumyan, MrDavid Thór Björgvinsson, MrsI. Berro-Lefèvre, judges, and Mr S. Naismith, Deputy 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. 1914/02) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two French nationals, Mr Jérôme Dupuis and Mr Jean-Marie Pontaut, together with Librairie Arthème Fayard, a company incorporated under French law (“the applicants”), on 17 December 2001.", "2. The applicants were represented by Mrs C. Waquet, of the Conseil d'Etat and Court of Cassation Bar. The French Government (“the Government”) were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs. 3. On 26 August 2005 the Government were given notice of the application.", "It was also decided, having regard to Article 29 § 3 of the Convention, that the admissibility and merits of the case would be examined at the same time. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. By a decree of 17 March 1982, a “Mission for coordination, information and action against terrorism” was set up. This “anti-terrorist unit” at the Elysée Palace operated from 1983 to March 1986 within the office of the French President, engaging in telephone tapping and recording.", "5. In November 1992 a weekly magazine published a handwritten note dated 28 March 1983, under the letterhead of the President's Office, containing indications that telephone lines, in particular those of certain journalists and lawyers, had been tapped. In the same year a list of the people who had been placed under surveillance was published in the press. 6. The case aroused considerable media interest and a judicial investigation was opened in February 1993.", "In the course of the proceedings G.M., deputy director of the French President's private office at the time of the surveillance, was placed under formal investigation on a charge of invading the privacy of others. 7. On 25 January 1996, a few days after President Mitterrand's death, the publishers Arthème Fayard published a book entitled Les Oreilles du Président (“The President's Ears”), which had been written by the first two applicants, both journalists, on the subject of the monitoring operations at the Elysée Palace. 8. On 1 February 1996 G.M.", "lodged a criminal complaint, with an application to join the proceedings as a civil party, against Mr Pontaut and Mr Dupuis, accusing them of handling documents obtained through a breach of professional confidence, of knowingly deriving an advantage from such a breach and of handling stolen property. In his complaint G.M. noted that appendix 1 of the book consisted of six “facsimile telephone-tap transcripts” which were identical to documents in the case file and that the other three appendices (list of individuals under surveillance) were also based on information from the file. He further cited thirty-six passages from the work which reproduced officially-recorded statements made to the investigating judge by the individuals under investigation or witnesses. 9.", "In the ensuing judicial investigation the applicants denied having obtained their information illegally. They refused to reveal their sources and claimed that many of the people examined by the judge had since publicly disclosed the content of their statements. As regards the facsimile telephone-tap transcripts and the content of the official records, the applicants argued that they had been circulating among journalists well before the opening of the judicial investigation. 10. In a judgment of 10 September 1998 the Paris tribunal de grande instance found that both the facsimiles and the record extracts came from the judicial investigation file, which was only accessible to persons bound by the secrecy of the judicial investigation or by a duty of professional confidence.", "The court considered that, regardless of how the documents in question had been transmitted, they could not have fallen into the applicants' hands without an offence being committed. In the court's opinion, experienced journalists could not have been unaware of that fact. Observing that all the elements of the offence of handling illegally-obtained items (recel) were sufficiently established, the court found Mr Pontaut and Mr Dupuis guilty of the offence of handling information obtained through a breach of the secrecy of the investigation or through a breach of professional confidence, under Articles 226-13, 226-31, 321-1 and 321-9 to 321-12 of the Criminal Code, and ordered each of them to pay a fine of 5,000 francs (equivalent to 762.25 euros (EUR)). The court further ordered them, jointly and severally, to pay 50,000 francs (EUR 7,622.50) in damages and found the company Librairie Arthème Fayard civilly liable. The applicants' book continued to be published and no copies were seized.", "11. The applicants appealed. They claimed, among other things, that Article 6 § 2 and Article 10 of the Convention had been breached and argued that the judgment against them could not be regarded as necessary in the light of the Convention. 12. On 16 June 1999 the Paris Court of Appeal upheld the judgment, for the following reasons in particular: “ ...", "The quantity, diversity and accuracy of the sources used by the defendants show that they were actually in possession of reproductions of documents from the judicial investigation file, as mere transcriptions or oral accounts would not have enabled them to make such systematic use of the material in that file ... The defendants could only therefore have obtained the documents through the intermediary of persons involved in the proceedings, who can be divided into two groups. The first group is bound by the secrecy of the investigation (judges and prosecutors, clerks, police officers, etc. ), any breach of which will constitute a criminal offence. The second group consists of persons who are entitled to obtain copies of documents but who are not bound by the secrecy of the investigation, namely lawyers and the parties themselves ...", "These clear and coherent provisions show that compliance with certain conditions ensuring the secrecy of the investigation forms an integral part of the duty of professional confidence. To be sure, the rights of the defence must not be impaired by that duty. ... Thus the documents used by the defendants were necessarily obtained illegally and the precise classification of the offence has no bearing on the unlawfulness of their origin, which is the necessary and sufficient basis of the statutory characterisation of the offence of handling (recel), as is confirmed by the case-law of the Court of Cassation. ...” 13.", "As regards Article 10 of the Convention, the Court of Appeal held as follows: “Even though the actual object of the handling specifically consists of elements of the judicial investigation, it should first be observed that the offence of handling provided for under Article 321-1 of the Code of Criminal Procedure corresponds to a commonly used characterisation. ... Accordingly, whilst proceedings in their current form may not be very numerous, they are based on clear and established provisions, which have been implemented in foreseeable conditions. Under paragraph 2 of the above-mentioned Article 10, the exercise of freedom of expression may be subject to restrictions, in particular for the protection of the reputation or rights of others or for maintaining 'the authority and impartiality of the judiciary'. It has been established that, by obtaining a number of the confidential documents from proceedings in which [G.M.]", "had been placed under judicial investigation, the defendants interfered with his private life and with his defence rights as an individual under judicial investigation. That action further demonstrated a wilful disregard for the rules governing the functioning of the judicial authority. In addition, the act of publication, which was the avowed objective of Mr Pontaut and Mr Dupuis, was bound to prejudice the presumption of innocence, a right which must be guaranteed for every person against whom criminal proceedings are brought. ... An obligation to comply with the basic rules governing the functioning of courts and the practices of persons involved in the administration of justice contributes to maintaining the democratic features of society. Accordingly, the rules concerning respect for the secrecy of the judicial investigation, like those concerning the duty of professional confidence, have the effect of protecting the judicial authority from excessive pressure, as well as protecting essential interests of those involved in the proceedings.", "The restrictions to which freedom of expression is subject are therefore necessary, particularly because it has not been established that the constraints imposed in the present case really had an adverse effect on the informing of public opinion, having regard to the articles published on the subject, any more than it has been established that there was a breakdown in the administration of justice of which public opinion had to be informed.” 14. The applicants appealed on points of law. 15. In a judgment of 19 June 2001 the Criminal Division of the Court of Cassation dismissed their appeal. 16.", "The Court of Cassation rejected the ground of appeal in which the applicants alleged, among other things, that there had been a violation of Article 6 § 2 of the Convention, finding as follows: “In finding guilty the defendants, who had denied having obtained the information unlawfully, but had refused to reveal their sources, the Court of Appeal notes that the book contained facsimile telephone-tap transcripts which are exact copies of pages from the investigating judge's case file, and of official records of statements drawn up by the judge. The court adds that, absent any evidence to support the hypothesis of accidental disclosure, the source could only have been a professional bound by a duty of confidence, whether one of the persons required to respect the secrecy of the judicial investigation or a lawyer bound by a duty of professional confidence under Article 160 of the decree of 27 November 1991 on the organisation of the legal profession. The court infers from the foregoing that, regardless of how the documents in question were transmitted, they could not have fallen into the hands of the defendants without an offence being committed. It adds that experienced journalists could not have been unaware of this fact. In the light of that reasoning as it stands, based on a discretionary assessment of the circumstances of the case, the Court of Appeal, which established that the defendants had knowingly possessed and published photocopies of material from the judicial investigation in progress, duly substantiated its decision ...”.", "17. The Court of Cassation, reasoning as follows, also dismissed the applicants' ground of appeal, based on a violation of Article 10 of the Convention, in which they submitted that the simple fact that the telephone tapping described in the book was the subject of a judicial investigation was not sufficient to justify the interference with their freedom of expression and that the judgment against them did not fulfil any necessity: “In dismissing the complaint that there had been a violation of Article 10 of the European Convention on Human Rights, the Court of Appeal, by reasoning of its own and espousing that of the court below, notes that the essential subject matter of the offending work consists of the actual case file from the judicial investigation in progress; that the book reproduces, among other things, numerous passages from interviews with individuals examined by the investigating judge; and that this information was used in some detail in the authors' observations on the functioning of the monitoring system set up within the French President's Office. The court explains that the defendants found themselves in possession of confidential information on [G.M.] to which they had no right of access, thus interfering with a legitimate interest of the latter. The court adds that the limits to which freedom of expression is subject are necessary, particularly because it has not been established that the constraints applied in the present case caused any real prejudice to the informing of public opinion or that there was any breakdown in the administration of justice of which public opinion had to be informed.", "Having regard to the foregoing findings, from which it transpires that the defendants were prosecuted for disclosing the content, that remained confidential, of material from a judicial investigation in progress, and that such a measure was justified by the necessity of protecting the rights of others, one such right being the presumption of innocence, and by the need to prevent disclosure of confidential information and to maintain the authority and impartiality of the judiciary, the Court of Appeal duly substantiated its decision for the purposes of Article 10 of the European Convention on Human Rights. ... In awarding damages to the civil party, on the ground that the publication by the defendants of confidential information concerning that party had directly contributed to the damage he had sustained, the Court of Appeal substantiated its decision for the purposes of Article 2 of the Code of Criminal Procedure.” 18. In a judgment of the Paris Criminal Court dated 9 November 2005, G.M. was given a suspended six-month prison sentence and fined EUR 5,000.", "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW 19. The relevant provisions of the Criminal Code read as follows: Article 226-13 “The disclosure of confidential information by persons who are entrusted with it either on account of their position or profession or on account of a temporary function or assignment shall be punished by one year's imprisonment and a fine of 15,000 euros.” Article 321-1 “The offence of handling (recel) is constituted by the concealment, possession or transmission of a thing, or by the fact of acting as an intermediary with a view to its transmission, in the knowledge that the said object was obtained by means of a serious crime (crime) or other major offence (délit). The offence of handling is also constituted by the fact of knowingly deriving an advantage, by any means, from the product of a serious crime or other major offence. Handling shall be punished by five years' imprisonment and a fine of 375,000 euros.” 20.", "Recommendation Rec(2003)13 of the Committee of Ministers of the Council of Europe to member States, on the provision of information through the media in relation to criminal proceedings, reads as follows: “... Recalling that the media have the right to inform the public due to the right of the public to receive information, including information on matters of public concern, under Article 10 of the Convention, and that they have a professional duty to do so; Recalling that the rights to presumption of innocence, to a fair trial and to respect for private and family life under Articles 6 and 8 of the Convention constitute fundamental requirements which must be respected in any democratic society; Stressing the importance of media reporting in informing the public on criminal proceedings, making the deterrent function of criminal law visible as well as in ensuring public scrutiny of the functioning of the criminal justice system; Considering the possibly conflicting interests protected by Articles 6, 8 and 10 of the Convention and the necessity to balance these rights in view of the facts of every individual case, with due regard to the supervisory role of the European Court of Human Rights in ensuring the observance of the commitments under the Convention; ... Desirous to enhance an informed debate on the protection of the rights and interests at stake in the context of media reporting relating to criminal proceedings, and to foster good practice throughout Europe while ensuring access of the media to criminal proceedings; ... Recommends, while acknowledging the diversity of national legal systems concerning criminal procedure, that the governments of member states: 1.take or reinforce, as the case may be, all measures which they consider necessary with a view to the implementation of the principles appended to this recommendation, within the limits of their respective constitutional provisions, 2.disseminate widely this recommendation and its appended principles, where appropriate accompanied by a translation, and 3.bring them in particular to the attention of judicial authorities and police services as well as to make them available to representative organisations of lawyers and media professionals. Appendix to Recommendation Rec(2003)13 - Principles concerning the provision of information through the media in relation to criminal proceedings Principle 1 - Information of the public via the media The public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles. Principle 2 - Presumption of innocence Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial.", "Accordingly, opinions and information relating to on-going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused. ... Principle 6 - Regular information during criminal proceedings In the context of criminal proceedings of public interest or other criminal proceedings which have gained the particular attention of the public, judicial authorities and police services should inform the media about their essential acts, so long as this does not prejudice the secrecy of investigations and police inquiries or delay or impede the outcome of the proceedings. In cases of criminal proceedings which continue for a long period, this information should be provided regularly. ...” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 21. The applicants complained that the judgment against them did not meet a pressing social need and had therefore breached their right to freedom of expression. The fact that the case had not been initiated by the public prosecutor was proof of this, in their view. The applicants further claimed that the offending book had caused no prejudice to G.M. 's presumption of innocence, it being publicly known that he was under judicial investigation.", "In this connection they invoked their right to impart information in the context of an affair of state and argued that this public debate concerned the exercise of power, with its excesses and its checks and balances, and that the debate pre-dated the book's publication, the purpose of which was not to impede the investigation. The applicants relied on Article 10 of the Convention, of which the 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. ... 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, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 22. The Government contested the applicants' arguments. A. Admissibility 23. The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It moreover considers that no other ground for declaring it inadmissible has been established and therefore declares it admissible.", "B. Merits 1. The parties' submissions (a) The applicants 24. The applicants argued in particular that the interference was not necessary. In their submission, the secrecy of the judicial investigation was binding only on the participants in the investigation but not on the parties.", "Disclosure was not prohibited and there were no facts that were specifically precluded from being imparted to third parties. 25. Moreover, the applicants considered that they had not prejudiced the protection of the rights of others. Even though there had not yet been a judgment in the case when the book was published, the judicial investigation had been ongoing for the previous three years and a further ten years had then elapsed before the judgment of the Paris Criminal Court. In such a context, the publication of a book to report once again on what was an affair of state, whilst the judicial system was being particularly slow, did not contravene any fundamental principle and especially not the secrecy of the judicial investigation.", "When an investigation lasted for such a long period, and when testimony, evidence and elements could have disappeared in the meantime, it was, on the contrary, praiseworthy and in the interest of democracy for investigative journalists to disclose what they discovered through their own investigations. In the present case, it had no longer been a question of protecting evidence but, on the contrary, of preventing its disappearance by bringing into the public domain what the judicial system had struggled to bring to light. 26. In this connection, the public interest prevailed over the interest of G.M. and it could not be argued that his right to presumption of innocence had been prejudiced in such a way that the criminal court had been unable to pass judgment, ten years later, with totally unfettered discretion in the assessment of his guilt.", "(b) The Government 27. The Government did not dispute the fact that the applicants' conviction for the offence of handling information protected by the secrecy of a judicial investigation or by a duty of professional confidence constituted interference with their right to freedom of expression. In their opinion, that interference was prescribed by law, namely by Articles 226-13 and 321-1 of the Criminal Code, which fulfilled the conditions of accessibility and foreseeability required by the Court (see Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999‑I). The Government considered, however, that the interference constituted a measure that was necessary in a democratic society for the protection of the reputation or rights of others and for maintaining the authority and impartiality of the judiciary.", "Without disputing the fact that the aim of the applicants' work had been to inform the general public about an affair of state that was of interest to public opinion, they considered that it prejudiced the presumption of innocence in respect of G.M. The publication of the book just a few days after the death of François Mitterrand had given it a certain commercial and media impact, thereby increasing the prejudice sustained by G.M. Moreover, the affair had been a very sensitive one and the book had contained precise reproductions of a number of documents from the case file. 28. In the Government's view, the interference was in fact proportionate to the aim pursued.", "The prohibition on producing documents from an investigation file was limited to the period of the judicial investigation itself and covered only the acts of handling and disclosure of actual documents from the case file; therefore it did not prevent journalists from imparting information on a case that was the subject of an ongoing judicial investigation or from engaging in their own investigations, interviewing parties to the proceedings, witnesses or lawyers, or even from making critical comments about judicial activity. 29. The Government lastly considered that the present case had to be distinguished from that of Fressoz and Roire (cited above). The secrecy of the judicial investigation and respect for the presumption of innocence, which protected collective and public interests, could not be placed on the same footing as confidentiality in tax matters, which protected purely private interests. Moreover, the French courts had adduced sufficient reasons in support of their decisions after a precise examination.", "The public's right to information on the “Elysée eavesdropping” affair had not been impaired, the publication of the book had continued and no copies had been seized. The public had, moreover, continued to be informed extensively by the media. In addition, the applicants had been given a “token sentence”, far less than the statutory maximum. 2. The Court's assessment 30.", "The Court observes that the applicants were ordered to pay a fine and damages on account of the use and reproduction in their book of elements from the judicial investigation file. It is not in dispute that the applicants sustained “interference” with their right to freedom of expression under Article 10 of the Convention. Such interference will be in breach of Article 10 unless it fulfils the requirements of paragraph 2 of that Article. It therefore remains to be determined whether the interference was “prescribed by law”, pursued one or more of the legitimate aims referred to in that paragraph and was “necessary in a democratic society”. (a) “Prescribed by law” 31.", "The Court notes that the offences with which the applicants were charged had been provided for, like the penalties imposed, in the Criminal Code. Moreover, the applicants did not dispute the foreseeability and accessibility of the applicable statutory provisions. The interference was thus prescribed by law. (b) Legitimate aim 32. The Court observes that the domestic courts based their decisions on a breach of professional confidence or of the secrecy of the judicial investigation.", "The interference thus had the aim, among others, of guaranteeing respect for the right of a person who had not yet stood trial to be presumed innocent. It also had the aim of ensuring the proper administration of justice by preventing any extraneous influence on that administration. These aims correspond to the protection of “the reputation or rights of others” and to the maintaining of “the authority and impartiality of the judiciary”, in so far as the latter safeguard has been construed as encompassing the rights enjoyed by individuals as litigants in general (see Ernst and Others v. Belgium, no. 33400/96, § 98, 15 July 2003). Accordingly, the Court considers that the reasons adduced by the domestic courts were consonant with the legitimate aim of protecting G.M.", "'s right to a fair trial, with due respect for presumption of innocence. (c) “Necessary in a democratic society” (i) Reminder of general principles 33. Freedom of expression constitutes one of the essential foundations of a democratic society and the safeguards to be afforded to the press are therefore of particular importance (see, among other authorities, Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, p. 23, § 31; Worm v. Austria, judgment of 29 August 1997, Reports of Judgments and Decisions 1997‑V, p. 1550-51, § 47; and Fressoz and Roire, cited above, § 45). 34.", "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 and the need to prevent the disclosure of information received in confidence, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports 1997‑I, pp. 233-234, § 37; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999‑III; Thoma v. Luxembourg, no. 38432/97, §§ 43-45, ECHR 2001‑III; and Tourancheau and July v. France, no.", "53886/00, § 65, 24 November 2005). 35. In particular, it would be inconceivable to consider that there can be no prior or contemporaneous discussion of the subject matter of judicial proceedings elsewhere, be it in specialised journals, in the general press or amongst the public at large. Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them. However, it has to be taken into account that everyone is entitled to the enjoyment of the guarantees of a fair trial set out in Article 6 § 1 of the Convention, which in criminal proceedings include the right to an impartial tribunal (Tourancheau and July, cited above, § 66).", "As the Court has already had occasion to point out, “[t]his must be borne in mind by journalists when commenting on pending criminal proceedings since the limits of permissible comment may not extend to statements which are likely to prejudice, whether intentionally or not, the chances of a person receiving a fair trial or to undermine the confidence of the public in the role of the courts in the administration of criminal justice” (ibid., and Worm, cited above, § 50). 36. As a matter of general principle, the “necessity” for any restriction on freedom of expression must be convincingly established. Admittedly, it is in the first place for the national authorities to assess 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 of the press, the national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press.", "Similarly, that interest will weigh heavily in the balance in determining, as must be done under paragraph 2 of Article 10, whether the restriction was proportionate to the legitimate aim pursued (see, to the same effect, Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports 1996‑II, pp. 500-501, § 40; Worm, cited above, § 47; and Bladet Tromsø and Stensaas, cited above, § 59). 37. The Court's task, in exercising its supervisory function, is not to take the place of the national authorities but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. In so doing, the Court must look at the “interference” complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, among other authorities, Goodwin, cited above, and Du Roy and Malaurie v. France, no.", "34000/96, § 27, ECHR 2000‑X). Also of relevance for the balancing of competing interests which the Court must carry out is the fact that under Article 6 § 2 of the Convention individuals have a right to be presumed innocent of any criminal offence until legally proved guilty (see Du Roy and Malaurie, cited above, § 34, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 78, ECHR 2004‑XI). 38. It is therefore for the Court to determine whether the interference complained of met a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons adduced by the national authorities to justify it appear “relevant and sufficient”.", "(ii) Application to the present case 39. The Court observes at the outset that the subject of the book was an issue of considerable public interest. The book made a contribution to a matter that was an affair of state, as the Government acknowledged, and of interest to public opinion, providing certain information and considerations about the prominent figures whose telephone lines had been illegally monitored, about the conditions in which the operations had taken place and about the identity of the instigators. It is moreover noteworthy that the list of the “two thousand individuals under surveillance” included the names of numerous figures who were particularly prominent in the media. 40.", "The Court reiterates that Article 10 § 2 of the Convention leaves little scope for restrictions on freedom of expression in the area of political speech or in matters of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999‑IV). Furthermore, the limits of acceptable criticism are wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance (see Lingens v. Austria, judgment of 8 July 1986, Series A no.", "103, p. 26, § 42; Incal v. Turkey, judgment of 9 June 1998, Reports 1998‑IV, p. 1567, § 54; Feldek v. Slovakia, no. 29032/95, § 74, ECHR 2001‑VIII; and Brasilier v. France, no. 71343/01, § 41, 11 April 2006). The promotion of free political debate is a fundamental feature of a democratic society. The Court attaches the highest importance to freedom of expression in the context of political debate and considers that very strong reasons are required to justify restrictions on political speech.", "Allowing broad restrictions on political speech in individual cases would undoubtedly affect respect for freedom of expression in general in the State concerned (see Feldek, cited above, § 83). In the present case, the speech complained of concerned G.M., one of President François Mitterrand's closest aides. Although G.M., who initiated the proceedings and judgment against the applicants, could not himself be described, strictly speaking, as a politician, he nevertheless had all the characteristics of an influential public figure, being clearly involved in political life and at the highest level of the executive. 41. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them (see, among many other authorities, Observer and Guardian v. the United Kingdom, judgment of 26 November 1991, Series A no.", "216, p. 30, § 59; Jersild, cited above, p. 23, § 31; and De Haes and Gijsels, cited above, p. 234, § 39). This was particularly true in the present case, concerning as it did an illegal system of telephone tapping and recording directed against many prominent figures from civil society and organised at the highest echelon of the State. The revelation of these facts aroused a considerable degree of emotion and concern among public opinion. The offending book, like reports on court cases, satisfied a concrete and sustained public demand in view of the increasing interest shown nowadays in the day-to-day workings of the courts. The public therefore had a legitimate interest in the provision and availability of information about these proceedings and, in particular, about the facts reported in the book.", "42. The importance of the media's role in the area of criminal justice is, moreover, very widely recognised. In particular, the Court has previously found that “[p]rovided that it does not overstep the bounds imposed in the interests of the proper administration of justice, reporting, including comment, on court proceedings contributes to their publicity and is thus perfectly consonant with the requirement under Article 6 § 1 of the Convention that hearings be public” (Worm, cited above, § 50). The Council of Europe's Committee of Ministers, for its part, has adopted Recommendation Rec(2003)13 on the provision of information through the media in relation to criminal proceedings. It rightly points out that the media have the right to inform the public in view of the public's right to receive information, and stresses the importance of media reporting on criminal proceedings in order to inform the public and ensure public scrutiny of the functioning of the criminal justice system.", "In addition, the appendix to that Recommendation states that the public must be able to receive information about the activities of judicial authorities and police services through the media and that journalists must therefore be able to report freely on the functioning of the criminal justice system. 43. Admittedly, those who exercise freedom of expression, including journalists, undertake “duties and responsibilities” the scope of which depends on their situation and the technical means they use (see, mutatis mutandis, Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, § 49 in fine). In the present case the domestic courts considered, in view of the nature of the documents reproduced in the book or used in support of certain passages in the book, that the authors, as experienced journalists, could not have been unaware that the said documents came from the judicial investigation file and were protected, depending on the person who instigated their disclosure, by the secrecy of the judicial investigation or by a duty of professional confidence.", "While recognising the vital role played by the press in a democratic society, the Court emphasises that journalists cannot, in principle, be released from their duty to abide by the ordinary criminal law on the basis that Article 10 affords them protection. Indeed, paragraph 2 of Article 10 defines the boundaries of the exercise of freedom of expression. It falls to be decided whether, in the particular circumstances of the case, the interest in the public's being informed outweighed the “duties and responsibilities” the applicants had as a result of the suspect origin of the documents that had been transmitted to them. 44. The Court must more specifically determine whether the aim of protecting the secrecy of a judicial investigation provided relevant and sufficient justification for the interference.", "It is legitimate for special protection to be afforded to the secrecy of a judicial investigation, in view of the stakes of criminal proceedings, both for the administration of justice and for the right of persons under investigation to be presumed innocent. However, in the circumstances of the present case, the Court considers that, at the time when the offending book was published, in January 1996, in addition to there being very wide media coverage of the so-called “Elysée eavesdropping” case, it was already publicly known that G.M. had been placed under investigation in this case, in the context of a pre-trial judicial investigation which had started about three years earlier, and which ultimately led to his conviction and suspended prison sentence on 9 November 2005, that is to say just over nine years and nine months after the book was published. Moreover, the Government have failed to show how, in the circumstances of the case, the disclosure of confidential information could have had a negative impact on G.M. 's right to the presumption of innocence or on his conviction and sentence almost ten years after that publication.", "In actual fact, following the publication of the impugned book and while the judicial investigation was ongoing, G.M. regularly commented on the case in numerous press articles. In those circumstances, the protection of the information on account of its confidentiality did not constitute an overriding requirement. 45. In this connection it is noteworthy that, while the applicants' conviction for the offence of handling was based on the reproduction and use in their book of documents which had come from the investigation file and which, accordingly, were found to have been communicated in breach of the secrecy of the judicial investigation or in breach of professional confidence, that conviction inevitably concerned the disclosure of information.", "It is open to question, however, whether there was still any need to prevent disclosure of information that was already, at least partly, available to the public (see Weber v. Switzerland, judgment of 22 May 1990, Series A no. 177, p. 23, § 51, and Vereniging Weekblad Bluf! v. the Netherlands, judgment of 9 February 1995, Series A no. 306‑A, p. 15, § 41) and might already have been known to a large number of people (see Fressoz and Roire, cited above, § 53) having regard to the media coverage of the case, on account of the facts and of the celebrity of many of the victims of the telephone tapping in question. 46.", "The Court further considers that it is necessary to take the greatest care in assessing the need, in a democratic society, to punish journalists for using information obtained through a breach of the secrecy of an investigation or a breach of professional confidence when those journalists are contributing to a public debate of such importance and are thereby playing their role as “watchdogs” of democracy. Article 10 protects the right of journalists to divulge information on issues of public 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 (see Goodwin, cited above, § 39; Fressoz and Roire, cited above, § 54; and Colombani and Others v. France, no. 51279/99, § 65, ECHR 2002‑V). In the present case, it transpires from the applicants' undisputed allegations that they acted in accordance with the standards governing their profession as journalists, since the impugned publication was relevant not only to the subject matter but also to the credibility of the information supplied, providing evidence of its accuracy and authenticity (see Fressoz and Roire, cited above, § 55). 47.", "Furthermore, as regards the penalties imposed, the Court reiterates that the nature and severity of the penalty are also factors to be taken into account when assessing the proportionality of interference (see Sürek (no. 1), cited above, § 64; Paturel v. France, no. 54968/00, § 47, 22 December 2005; and Brasilier, cited above, § 43). 48. The Court first notes that the two authors were fined EUR 762.25 each and were also ordered jointly to pay EUR 7,622.50 in damages to G.M.", "In addition, the applicant company was found to be civilly liable. However, no order to destroy or seize the book was issued and its publication was not prohibited (see Paturel, cited above, § 48). That being said, the amount of the fine, although admittedly fairly moderate, and the award of damages in addition to it, do not appear to have been justified in the circumstances of the case (see Brasilier, cited above, § 3, and Paturel, cited above, § 49). Moreover, as the Court has stated on numerous occasions, interference with freedom of expression might have a chilling effect on the exercise of that freedom (see, mutatis mutandis, Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 114, ECHR 2004‑XI) – an effect that the relatively moderate nature of a fine would not suffice to negate.", "49. In conclusion, the Court considers that the judgment against the applicants constituted a disproportionate interference with their right to freedom of expression and that it was therefore not necessary in a democratic society. Accordingly, there has been a violation of Article 10 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 50.", "The applicants further complained, additionally relying on Article 6 § 2 of the Convention, that the domestic courts had failed to respect the principle of presumption of innocence since, in their view, no evidence had been adduced to show that the documents had come into their possession fraudulently. Article 6 § 2 reads as follows: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 51. In view of its finding of a violation under Article 10 of the Convention, the Court considers that the complaint under Article 6 § 2, which should be declared admissible, is based on the same facts and that therefore no separate question arises under Article 6 § 2 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 52.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 53. As the applicants did not submit any claims for just satisfaction, the Court considers that no award should be made to them under that head (see, among other authorities, Brasilier, cited above, § 46). 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 no separate question arises under Article 6 § 2 of the Convention. Done in French, and notified in writing on 7 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithBoštjan M. ZupančičDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF SOBAŃSKI v. POLAND (Application no. 40694/98) JUDGMENT (This version has been rectified under article 81 of the Rules of Court on 17 September 2003) STRASBOURG 21 January 2003 FINAL 09/07/2003 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 Sobański v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrM. Pellonpää,MrsE.", "Palm,MrsV. Strážnická,MrJ. Casadevall,MrR. Maruste,MrL. Garlicki, judges,and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 17 December 2002, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1.", "The case originated in an application (no. 40694/98) 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, Zenon Sobański (“the applicant”), on 15 September 1997. 2. The applicant was represented by Mr Wojciech Hermeliński, a lawyer practising in Warsaw, Poland. The Polish Government (“the Government”) were represented by their Agent, Mr Krzysztof Drzewicki, Government's Agent.", "3. The applicant alleged in particular, that the civil proceedings in his case exceeded a “reasonable time” within the meaning of Article 6 § 1 of the Convention. 4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No.", "11). 5. 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 28 August 2001 the Court declared the application partly inadmissible. 7. 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. 8.", "By a decision of 28 May 2002 the Court declared the remainder of the application admissible. The applicant, but not the Government, filed observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1963 and lives in Warsaw.", "The facts of the case, as submitted by the parties, may be summarised as follows. 10. On 1 May 1983 the applicant, following clashes with the police during anticommunist demonstrations, was put by the police in their van and beaten. He was seriously injured. On 17 May 1983 he was discharged from hospital.", "A brain injury, post-traumatic epilepsy and permanent brain damage were diagnosed. Since then he has remained under permanent care in a psychiatric clinic. 11. By a judgment of 24 June 1986, the Warsaw Regional Court granted the applicant compensation for damage to his health and held that a monthly supplementary pension be paid by the police – the State Treasury. The court observed that the applicant had lost the capacity to work and was disabled in the so-called second degree (an intermediate degree of disability).", "12. On 11 April 1990 the applicant was granted the first degree status of disability (serious disability). 13. In 1990 the monthly supplementary pension was increased to 100 PLN as a result of a settlement between the parties. 14.", "On 27 February 1993 the applicant's father lodged a claim with the Warsaw Regional Court, in which he requested an increase in his son's monthly pension. On 8 March 1993 the Warsaw Regional Court remitted the case to the Warsaw District Court. Subsequently, six hearings were held in the case. On 15 September 1993 the court held a hearing. The defendant's lawyer asked for an adjournment in order to reach a friendly settlement.", "15. On 12 November 1993 the court held a hearing. The applicant increased the amount of the claim. The court decided to request certain information from the applicant's former employer. On 19 November 1993 the court obtained the requested information.", "16. On 23 November 1993 the court held a hearing. The applicant increased the amount of the claim. The court decided to request the psychiatric clinic for some additional information on the applicant's health. On 13 December 1993 the applicant's lawyer specified the claim.", "He requested the court to appoint an expert to give a report on the applicant's health. 17. On 17 December 1993 the next hearing was held. It was decided to request the psychiatric clinic to expedite the preparation of the requested documents. 18.", "On 27 January 1994 the court held its next hearing and interviewed witnesses. The applicant further specified the claim. 19. On 6 May 1994 a hearing was held. The defendant contested the amount of the applicant's claim.", "The court decided to request the applicant's former employer to submit certain information. On 24 May 1994 the applicant increased his claim. Taking into account the value of the claim, on 25 May 1994 the applicant requested the court to remit the case to the Regional Court. On 23 June 1994 the Warsaw District Court remitted the case to the Warsaw Regional Court, as the latter had become competent following the increase of the applicant's claim. Subsequently, on 25 November 1994 and 21 December 1994 the defendant and the applicant submitted pleadings to the court.", "20. In January 1995 the applicant requested the court not to schedule any hearings in the period from 1 until 18 March 1995. In February 1995 the applicant requested the court not to schedule any hearings from 1 until 15 April 1995. On 19 April 1995 the applicant increased the claim. 21.", "On 28 April 1995 the parties asked for an adjournment in order to reach an out-of-court settlement. Their negotiations subsequently failed. By pleadings of 18 May, 20 June, 20 July, 21 August, 22 September, 10 October and 21 November 1995 the applicant further specified his claim. On 14 November 1995 the court requested the applicant's former employer to submit certain documents. The documents were submitted on 21 November 1995.", "22. On 1 December 1995 the hearing was adjourned to give the applicant two weeks to submit his comments on the documents received by the court on 21 November. On 1 December 1995, 2 January 1996 and 22 January 1996 the applicant specified his claim. On 23 February 1996 the applicant complained to the Supreme Court about the length of the proceedings. On 15 April 1996 he was informed that the case had been placed under the administrative supervision of the President of the Warsaw Regional Court.", "23. On 9 September 1996 the applicant lodged a motion with the Warsaw Regional Court challenging the presiding judge for an alleged lack of impartiality. This motion was dismissed on 18 September 1996. 24. On 29 January 1997 the court received requested information from the applicant's former employer.", "On 5 February 1997 the expert submitted a report ordered by the court in November 1996. On 13 February 1997 the applicant's lawyer requested the court not to schedule any hearings in March 1997. 25. On 17 February 1997 the court requested the parties to submit their comments on the expert report within the fourteen days' time-limit. On 26 February 1997 the defendant informed the court that he agreed with the conclusions of the report.", "On 11 March 1997 the court once more requested the applicant to submit his comments. Apparently, further questions were put to the expert. On 7 November 1997 the expert submitted to the court the supplementary report. On 1 December 1997 the applicant lodged his objections against the report. 26.", "On 9 January 1998 the court held a hearing. The applicant requested the court to appoint a new expert. He once more challenged the expert opinion. The court refused and closed the hearings in the case. 27.", "On 12 January 1998 the applicant increased and modified his claim to a very significant extent. 28. On 16 January 1998 the court accordingly re-opened the proceedings. The court also gave an interlocutory decision that a certain sum be paid monthly to the applicant in order to secure his claim. 29.", "On 4 March 1998 the applicant submitted motions as to the evidence to be taken. On 24 March 1998 the applicant submitted a new proposal for calculating the amount of the pension. On 8 April the defendant opposed that new proposal. On 24 July 1998 the applicant increased his claim. 30.", "On 5 August 1998 the court held a hearing. 31. By a judgment of 14 August 1998 the applicant's claim was partly dismissed and partly allowed. The judgment was served on the applicant three months later. The applicant appealed.", "By an order of 2 December 1998, he was requested to submit certain copies of documents for his appeal. This order was left by the postman at the applicant's door. Later, the post office returned it to the court marked “apartment closed”. 32. On 29 December 1998 the Warsaw Regional Court rejected the applicant' s appeal for failure to comply with its order of 2 December 1998.", "On 5 January 1999 the applicant complained to the Warsaw Appeal Court. On 11 January 1999 the Warsaw Court of Appeal remitted the case to the Warsaw Regional Court and ordered the court to clarify whether the applicant wished to challenge the decision of 29 December 1998, or to lodge a request in order to reinstate the time-limit for submitting the requested documents. 33. On 14 January 1999 the applicant appealed against the decision of 29 December 1998. 34.", "On 26 January 1999 the Warsaw Regional Court ordered the applicant to pay a court fee of 50 PLN for the procedural appeal, which the applicant did on the next day. 35. On 5 February 1999 the applicant received an order dated 2 February 1999 summoning him to pay 50 PLN in court fees. The applicant requested a meeting with the President of the Civil Section on 8 February 1999 in order to clarify what the court fee was for. The meeting did not take place as the President was absent on the date which had been fixed.", "The President apologised in a letter of 24 February 1999. 36. On 12 February and 29 March 1999 the applicant specified his claim. 37. By a decision of 29 April 1999, the Warsaw Court of Appeal dismissed the applicant's appeal against the decision of 29 December 1998 and rejected his appeal on the merits of the case for failure to comply with the procedural requirements.", "The court informed the applicant that he could lodge a request to reinstate the time-limit for submitting the documents requested by the court. 38. On 16 June 1999 the applicant requested the court to appoint a lawyer under the legal aid scheme with a view to lodging a cassation appeal against the decision of 29 April 1999. He lodged also a “personal” cassation appeal. On 22 June 1999 the Warsaw Court of Appeal allowed this request, but the lawyer was not appointed until 13 August 1999.", "39. In the meantime, on 5 August 1999 the Court of Appeal rejected the cassation appeal against the decision of 29 December 1998 for not having been presented by a lawyer as required by law. On 20 August 1999 the applicant's lawyer lodged an appeal against the decision of 5 August 1999 with the Supreme Court in order to reinstate the time-limit for lodging the cassation appeal. The cassation appeal itself was submitted to the Supreme Court on 30 August 1999. 40.", "By a decision of 7 December 1999, the Supreme Court quashed the decision of 5 August 1999 for having been reached without due consideration to the applicant's pending legal aid application. 41. On 31 January, 4 and 15 May 2000 the applicant specified the claim. 42. On 25 May 2000 the Warsaw Court of Appeal reinstated the time-limit for lodging the cassation appeal against the procedural decisions of 29 December 1998 and of 29 April 1999.", "43. On 3 October 2000 the Supreme Court quashed the decisions of 29 December 1998 and 29 April 1999 for procedural defects. 44. On 12 January 2001 the applicant increased his claim. 45.", "By a letter of 16 February 2001, the Warsaw Court of Appeal informed the applicant that the next hearing in the appellate proceedings would be held on 16 March 2001. 46. On 29 March 2001 the Warsaw Court of Appeal dismissed the applicant's appeal against the judgment of 14 August 1998. The judgment was served on the applicant on 8 June 2001. 47.", "On 2 July 2001 the applicant's lawyer lodged a cassation appeal with the Supreme Court. On 20 December 2001 the court rejected the cassation appeal, considering that it had not been shown that arguable grounds existed which would justify the examination of the appeal. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 48. The applicant complained about the length of the civil proceedings under Article 6 § 1 of the Convention, which in its relevant part provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A.", "The parties' submissions 49. Regarding the complexity of the case, the Government were of the opinion that the case had been complex. First of all, the court had had to have recourse to two expert opinions, which had been submitted in February and in October 1997. Furthermore, in November 1993, May 1994 and November 1995 the court had requested the applicant's former employer to submit certain information, regarding his salary. Some further information had subsequently been requested from a psychiatric clinic of which the applicant was a patient.", "The essential problem in this case had consisted in determining the amount of the pension to be awarded to him. The defendant had in principle agreed to pay such pension, but the amount to be paid was in dispute between the parties. In particular, the defendant did not accept the method of calculation and the amount of the pension proposed by the applicant's father, who represented the applicant throughout these proceedings. The court, accordingly, had to determine issues itself. 50.", "As to the applicant's conduct, the Government maintained that he had contributed to the length of the proceedings. Firstly, he had changed his claim several times. Following these modifications, in June 1994 the case had to be remitted to the higher-instance court. Moreover, in January 1998 the hearing, which had already been closed, had to be re-opened as the applicant had modified his claim again. The Government further submitted that the applicant was frequently unavailable for health reasons and had requested the court not to schedule hearings during certain periods.", "51. The applicant argued that he had increased his claim several times for various reasons, such as: his difficult financial situation, high inflation throughout the proceedings, rising costs of his therapy and assistance, and the high costs of the proceedings. He also stressed that only two experts had been appointed to submit their opinion on issues relevant to the case and that the case-file had not been voluminous. He argued that the case was not particularly complex, because in the proceedings in which medical issues were of relevance for the ruling on the merits, it was normal that medical evidence had to be taken. The Government had not submitted convincing grounds which would call for a conclusion that the case differed from cases of a similar character.", "52. The applicant admitted that he had requested the courts not to schedule hearings during certain periods. However, he argued that this had caused, on the whole, no more than two months of prolongation. During these periods the applicant had been under medical treatment. Moreover, this could not be seriously considered as contributing to the length of the proceedings, given that they had lasted eight years.", "53. As to the conduct of the authorities, the Government were of the opinion that the judicial authorities had shown due diligence in ensuring the proper course of the proceedings. In April 1999 the court had instructed the applicant of procedural steps he should take at that stage of the proceedings. In June 1999 the court had allowed the applicant's request and appointed a lawyer for him, in order to expedite the proceedings. Furthermore, the court had twice requested that the applicant submit his statement on the expert opinion without delay (in February and April 1997).", "54. The applicant emphasised the long periods of inactivity on the part of the court. He emphasised that on 29 December 1998 the Warsaw Regional Court wrongly rejected his appeal against the first-instance judgment. This decision was later quashed for not being in accordance with law by the Supreme Court, but it prolonged the proceedings for almost two years. 55.", "The Government finally argued that what was at stake for the applicant was solely of a pecuniary nature. 56. In this connection, the applicant drew the Court' attention to the fact that he had become totally disabled as a direct result of actions by the State agents; that his health necessitated permanent care and assistance; that his father had been compelled to take care of him on a continuous basis; and that their financial situation was very difficult. B. The Court's assessment 1.", "Period to be taken into consideration 57. The Court observes that the proceedings were instituted on 27 February 1993 and terminated by a decision of Supreme Court of 20 December 2001. They therefore have as a whole lasted eight years and ten months, of which 8 years and over 7 months fell after 1 May 1993, the date on which Poland's declaration acknowledging the right of individual petition became effective. 2. Reasonableness of the length of the proceedings 58.", "The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see, among many other authorities, Zwierzyński v. Poland, no. 34049/96, 19 June 2001, § 41; Zawadzki v. Poland, no. 34158/96, 20 December 2001, § 69). 59. As to the complexity of the case, the Court does not find the Government's submissions convincing.", "First and foremost, it notes that an issue essential for civil liability arising out of bodily harm, namely that of the defendant's responsibility for injuries suffered by the applicant during the demonstrations of 1983, had been settled by the judgment given already in 1986. Therefore, in the present case it remained for the court to establish the present degree of the applicant's disability. The court also had to revise the pension to be paid monthly to the applicant, in the light of his present state of health and his vital needs, the crucial issue of liability having already been settled by way of a final judicial decision. 60. As to the applicant's conduct, the Court acknowledges that he prolonged the proceedings by significantly increasing his claim on 12 January 1998, after the first-instance hearings had already been closed and the case was ready for the court's ruling.", "The court accordingly had to re-open the hearing and subsequently conducted the proceedings on the merits until 14 August 1998. The applicant therefore prolonged the proceedings by seven months. The Court further notes that the applicant requested the court not to schedule any hearings between 1 and 18 March 1995, between 1 and 15 April 1995 and in March 1997. Otherwise, there is nothing to suggest, in the Court's view, that he contributed to the length of the proceedings. 61.", "Regarding the conduct of the authorities, the Court notes, firstly, that from 23 June 1994 until 28 April 1995 there was no progress in the proceedings. Likewise, there was no progress in the case throughout the next calendar year. Later on, from March to November 1997, the court waited for the expert opinion to be prepared. After the first-instance judgment had been given on 14 August 1998, there was a three month delay in serving the written grounds of that judgment on the applicant. 62.", "The Court further observes that the first-instance judgment was given on 14 August 1998. Subsequently, the decision of the Warsaw Regional Court of 2 December 1998 ordering the applicant to submit some documents to complete his appeal against that judgment was not properly served on him by a recorded delivery letter in the manner provided for by law (see § 31 above). This resulted in his appeal being rejected by a decision of 29 December 1998. The applicant instituted proceedings to have this decision set aside (see §§ 32-33 above). 63.", "In the course of these proceedings the Warsaw Regional Court ordered the applicant to pay a court fee for an appeal against certain interlocutory decision, having overlooked the fact that he had already done so. The applicant requested a meeting with the President of the Civil Section in order to clarify the matter and the date for such meeting was fixed. However, the President failed to attend the meeting (see §§ 34-35 above). 64. The Court further notes that on 5 August 1999 the Court of Appeal rejected the applicant's cassation appeal against the decision of 29 December 1998 on the ground that it had not been lodged by a lawyer.", "However, when doing so, the court disregarded the applicant's pending request to have a lawyer appointed under the legal aid scheme for lodging such appeal. Later on, the Supreme Court quashed both the decision of 5 August 1999 for having been given without due consideration of the applicant's pending legal aid application, and the decisions of 29 December 1998 and 29 April 1999 for procedural defects. 65. The Court notes that as a result of these shortcomings, highlighted by the Supreme Court, the proceedings conducted from 2 December 1998 until 3 October 2000 concerned exclusively the question whether it was open to the applicant to lodge the appeal against the first-instance judgment on the merits of August 1998. 66.", "As to what was at stake for the applicant, in the Court's view the overall circumstances of the case must be borne in mind. In particular, it should be stressed that the applicant became seriously disabled as a result of the police intervention during the anticommunist demonstration in 1983. It is true that in 1986 the applicant was granted a lump sum as compensation for damage to his health and, at the same time, a monthly supplementary pension was awarded to him which he claimed was insufficient for his need bearing in mind the reduction of his life prospects as a result of the incident. Consequently, what was at stake for the applicant in the present case cannot be regarded, in the Court's opinion, as being of a purely pecuniary nature. 67.", "Having regard to all the evidence before it, the Court concludes that the “reasonable time” within the meaning of Article 6 of the Convention has been exceeded. There has accordingly been a violation of Article 6 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 70,000 Polish zlotys (PLN) [approximately EUR 17,500] for pecuniary and non-pecuniary damage such as distress and anxiety caused by the protracted character of the proceedings. Later on, he extended his claim to the amount of 100,000 Polish zlotys [approximately EUR 25,000]. 70. The Government submitted that the applicant's claims were excessive.", "They emphasised that no causal link has been shown between the facts of the case and the damage allegedly suffered by the applicant. The argued that the damage should be assessed in the light of the relevant case-law of the Court in its cases against Poland and of the relevant national economic circumstances. 71. The Court accepts that the applicant suffered damage of a non-pecuniary nature as a result of the length of the civil proceedings instituted by him. Making its assessment on an equitable basis and having regard to the circumstances of the case, the Court awards the applicant EUR 5,000 as compensation for non-pecuniary damage.", "B. Costs and expenses 72. The applicant claimed reimbursement of costs he had incurred before the Strasbourg institutions in the amount of EUR 1,000. 73. The Government requested the Court to make an award, if any, only in so far as the costs and expenses claimed were actually and necessarily incurred and were reasonable as to quantum.", "They relied on the Zimmerman and Steiner v. Switzerland judgment of 13 July 1983 (Series A no. 66, p. 35, § 36). 74. The Court, having regard to the nature of the issues before the Court, considers that EUR 1,000 constitutes a reasonable award. C. Default interest 75.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank to which should be added three percentage points (see Christine Goodwin v. the United Kingdom, No. 28957/95, 3 July 2002, § 124). FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 § 1 of the Convention; 2. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into Polish zlotys at the rate applicable at the date of settlement: (i) EUR 5,000 (five thousand euros) in respect of non-pecuniary damage; (ii) EUR 1,000 (one thousand 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; 3.", "Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 21 January 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O'BoyleNicolas BratzaRegistrarPresident" ]

[ "THIRD SECTION CASE OF LYKOVA v. RUSSIA (Application no. 68736/11) JUDGMENT (Extracts) STRASBOURG 22 December 2015 FINAL 02/05/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Lykova v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Helena Jäderblom,George Nicolaou,Helen Keller,Dmitry Dedov,Branko Lubarda,Pere Pastor Vilanova, judges,and Stephen Phillips, 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.", "68736/11) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Irina Nikolayevna Lykova (“the applicant”), on 26 October 2011. 2. The applicant, who had been granted legal aid, was represented by Ms O.A. Gnezdilova, a lawyer practising in Voronezh. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.", "3. The applicant complained about her son’s death in a police station, alleging that he had been detained there unlawfully and subjected to ill-treatment by police officers. 4. On 13 September 2012 it was decided to grant priority to this application under Rule 41 of the Rules of Court, and on 21 October 2013 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1964 and lives in Voronezh (Voronezh Region). A. The alleged ill-treatment and the death of the applicant’s son 1. The version of events submitted by the applicant 6.", "On 9 September 2009, between 10 and 11 a.m., the applicant’s son, Mr Sergey Lykov, and his friend P. were stopped by police officers at a bus stop in Voronezh. They were given no reasons. Sergey Lykov and P. were then taken to the premises of department no. 6 of the Voronezh Region criminal police (оперативно-розыскная часть № 6 криминальной милиции главного управления внутренних дел по Воронежской области) (hereafter, “the police station”). 7.", "Inside that police station, a police officer, S., ordered the other police officers present to undress Mr Lykov and P. and to bind their hands and feet with adhesive tape. S. began punching Mr Lykov and P. on the head, urging them to confess to all the thefts that they had committed. Faced with their silence, S. and another police officer began to hit each of their heads violently against the ground, as well as against a cupboard and a table. After 15 minutes they stopped striking them and S. ordered one of the police officers to “give [P.] a fashionable haircut” by cutting locks of his hair with a knife. S. and other police officers then placed plastic bags around the heads of Mr Lykov and P. to suffocate them.", "Faced with the repeated nature of these actions, Sergey Lykov, who was exhausted, asked S. to tell him what he wanted to know. S. again asked him to confess to the alleged thefts. Mr Lykov then admitted that they had burgled an apartment in 2007. S. ordered the police officers to take Sergey Lykov to another room. 8.", "The police officers continued to torture P. with electricity. A few minutes later the police officer returned Sergey Lykov to the office. According to P., Sergey Lykov was “in a bad way”, although he had no obvious physical injuries. P. was taken to another office, where he began writing a confession. While he was writing, he heard Sergey Lykov betin to cry out.", "According to P., his cries lasted a good hour. Shortly afterwards a police officer came into the room where P. was being held and told him that they were going to the scene of the 2007 burglary. P. stated that Sergey Lykov was not with them during this visit and that he had not seen him again afterwards. P. was finally taken to a temporary detention centre, where he was examined by a doctor who noted several physical injuries (bruises and grazing on his arm). P. learned later that Mr Lykov had thrown himself out of a window.", "2. The version of events submitted by the Government 9. On 7 September 2009 a decision (постановление о приводе) was issued ordering P.’s arrest for the purpose of questioning him as a witness. 10. On 9 September 2009 police officers found P. in a street in Voronezh, in the company of Sergey Lykov.", "They asked the two friends to accompany them to the police station. Mr Lykov was invited for the purpose, in particular, of “provid[ing] useful information”, in line with section 11 § 4 of the Police Act of 18 April 1991, then in force. Sergey Lykov accepted the invitation of his own free will. 11. After discussions with police officer T. at the police station, Sergey Lykov decided to confess to a theft purportedly committed on 4 September 2009, and provided a written statement to that effect.", "T. informed Mr Lykov of his constitutional right not to incriminate himself. 12. At 6.50 p.m., after having finished writing his confession, Sergey Lykov suddenly threw himself out of the open window of T.’s office, which was on the fifth floor. 3. Subsequent events 13.", "At 7.50 p.m. Mr Lykov arrived at hospital with an emergency medical assistance team. He died at 1.10 a.m. on 10 September 2009. 14. Sergey Lykov’s cousin I., who had had no news of him, carried out a search and on 10 September 2009 she finally found his corpse in the Voronezh morgue. After examining the body, I. noted that it had signs of numerous physical injuries, in particular a haematoma above the left eyebrow, facial injuries and haematomas on the wrists.", "15. On 13 September 2009 I. wrote to the Prosecutor General of Russia, requesting that an investigation be opened into the death of Sergey Lykov. She informed the Prosecutor that her cousin had been arrested on 9 September 2009 while he was with his friend P. 16. On 22 September 2009 police officer B. from the Tsentralny district police station in Voronezh issued a decision refusing to open a criminal investigation into the supposed theft, on the street, of a mobile telephone, to which Sergey Lykov had confessed: B. noted that the avowed offence of theft had never been recorded in the registers of complaints by victims of offences, which were held by the police. B.", "The preliminary investigation into the death of Sergey Lykov 1. The first part of the investigation 17. One hour after the incident (at 8 p.m.), an investigator, Ya., from the Voronezh Leninskiy district Investigation Committee arrived on the scene and examined the premises, in particular Office no. 55, from where Mr Lykov had fallen. The investigator seized from the scene a gas mask and a telephone, as well as the sheet of paper with Sergey Lykov’s written confession.", "She indicated that she had not found traces of blood in the office, but only on the grass area below the window. 18. By a decision of 21 September 2009, investigator L. from the same department refused to open a criminal investigation into the victim’s death. Referring to Article 24 § 1 (1) of the Russian Code of Criminal Procedure, he concluded that no offence had been committed. 19.", "The investigator summarised the explanations provided by police officer T., who stated that: – at 3 p.m. on 9 September 2009 Sergey Lykov and his friend P. had been taken to the police station by police officers S. and F.; the second individual (P.) was being sought on suspicion of theft; – during an interview between T. and Mr Lykov, the latter had confessed voluntarily to a theft. Although he had started writing a confession, Mr Lykov suddenly stood up and climbed onto a chair, then onto a table which was beside the open window, and then finally jumped from this window; – T. had rushed to prevent him from jumping, but he was too late; – no police officer had struck Sergey Lykov or had forced him to confess to the offence. According to T., Sergey Lykov had no physical injuries; – during the interview Mr Lykov had been calm, but he complained to T. that his life was difficult, since he had to care for his ill mother. 20. The investigator also summarised the explanation provided by police officer Sa., who stated that: – at 2 p.m on 9 September 2009 while on patrol in the city, he and two other police officers had seen two individuals on a scooter.", "Since they had information that an individual suspected of theft was moving about on a scooter, they had stopped the persons concerned for an identity check. They had invited Sergey Lykov and P. to accompany them to the police station and they had agreed; – on arrival at the police station, Mr Lykov and P. had been separated. Sa. and F. had interviewed P., while T. had had a conversation with Mr Lykov; – on entering T.’s office at a later point, Sa. was able to note that Sergey Lykov was not handcuffed and had not been struck.", "He had heard Mr Lykov confess to the theft of a mobile telephone; – he had not heard Sergey Lykov complain of ill-treatment of any kind; – later he had learnt that Mr Lykov had attempted to take his own life. 21. The investigator also noted that in response to his questions, police officer S. had denied any involvement in ill-treatment of Sergey Lykov. 22. At the same time, the investigator noted the statements made by P., to the effect that: – between noon and 1 p.m. on 9 September 2009 he and Sergey Lykov had been in the city centre when police officers approached, introduced themselves and asked him [and Sergey Lykov] them to accompany them to the police station.", "They had agreed; – at the police station, he and Sergey Lykov had been separated and placed in different offices. Shortly afterwards, when passing in the corridor, he had seen Sergey Lykov sitting at a table writing something. He had not seen Sergey Lykov being struck, had not heard him crying out, and had not noticed any physical injury on his person; – he had heard Sergey Lykov complain of heart pains, but never refer to an intention to commit suicide. 23. The investigator took note of the statements by the applicant, and also of close relatives of the victim, to the effect that he had never expressed thoughts of suicide.", "24. The investigator noted the presence in the case file of the written confession drawn up by Mr Lykov shortly before his death. 25. Relying on the information communicated by the hospital in which Mr Lykov had been treated after his fall, the investigator established that death had resulted from Mr Lykov’s fall from the fifth floor. No injuries indicating kicks or punches, or the use of handcuffs, had been found on the corpse.", "26. Lastly, the investigator noted the contents of the report from the on-site inspection conducted on 9 September 2009 (see paragraph 17 above). 27. On 28 June 2010 the decision of 21 September 2009 was set aside by a hierarchically superior civil servant, who ordered an additional investigation, noting, in particular, that it was necessary to: – find witnesses who could confirm that Sergey Lykov had suicidal thoughts; – verify that the police officers who had taken Sergey Lykov to the police station had acted in accordance with the law; – consider whether the police officers who had not ensured the victim’s safety inside the police station bore any criminal liability. 28.", "In the meantime, on 27 October 2009 an autopsy of the body was carried out on the orders of investigator L. and a forensic report was drawn up. In that document, the forensic medical expert noted that death had resulted from multiple fractures to the head, chest and spine, and to the base and dome of the skull. According to the expert, the location of the injuries identified, and the preponderance of internal over external injuries, led to the conclusion that those injuries had originated in [Mr Lykov’s] fall from the fifth floor. The expert concluded that there was no cause-and-effect relationship between the other injuries (hematomas and scratches on the trunk and the lower and upper limbs, namely a hematoma in the fold of the right elbow measuring 4 x 3 cm; a scratch on the right forearm measuring 6 x 0.7 cm; a 4.5 x 2 cm hematoma on the right carpus; a hematoma on the left shoulder measuring 18 x 14 cm, on which there were scratches of 5 x 2.5 cm; a hematoma on the left knee measuring 7 x 6 cm, on which there was a scratch of 1.5 x 1 cm; and an oval-shaped scratch on the left ankle measuring 2 x 1.5 cm) and the death. As to the question of whether there were traces of a struggle or self-defence, the doctor indicated that it was generally accepted in forensic medicine that injuries to the arms and wrists were to be classified in that way.", "Thus, he noted the presence of a bruise on the right carpus and a scratch on the right forearm. He added that he was unable to ascertain how those injuries had been sustained. Lastly, the doctor noted that the corpse had been deposited in the morgue unclothed. 2. The second part of the investigation 29.", "By a decision of 8 July 2010, investigator Ko. from the same department again refused to open a criminal investigation. In his reasoning, he quoted from the statements given by police officers T., Sa. and S., by witness P., and also by the applicant and the deceased’s close relatives, already cited in the decision of 21 September 2009 (see paragraph 18 above). 30.", "The investigator also questioned certain individuals who had got to know Sergey Lykov in a café where they drank alcoholic beverages together. Those persons explained that when Sergey Lykov drank alcohol he became talkative and that, in this intoxicated state, he complained about a lack of money and difficulties with his invalid mother. He had also confided to his companions that he had committed thefts and that, were he arrested, he “would harm himself”. 31. The investigator also noted a directive, classified as secret, for the attention of police officers.", "According to that directive, the police were not personally responsible for the life and health of individuals who had freely consented to attend a police station for an interview, “except in the event of violation of the rights and freedoms of citizens proclaimed in the Russian Constitution”. Regard being had to that directive and the facts noted, the investigator concluded that officer T. could not be held responsible for the offence of negligence. 32. The investigator concluded that Sergey Lykov’s death had been the result of a voluntary act on the latter’s part. In consequence, the investigator refused to open a criminal investigation against the police officers F., B., Sa.", "and T. for an abuse of power, on the grounds, firstly, that Sergey Lykov’s arrest had not been illegal, and, secondly, that the police officers had not ill-treated him. He also concluded that there were no grounds for prosecuting the police officers for homicide, assault or incitement to suicide, given that Sergey Lykov’s death “had not been violent”. 33. On 11 February 2011 the applicant lodged a judicial appeal against that decision. She complained, inter alia, that her son had been placed in detention without this fact being properly recorded, and that, in consequence, her son had been deprived of legal assistance.", "Equally, she submitted that the investigation carried out had been incomplete and focused on a hypothesis that was favourable to the police officers. She criticised the investigative authorities for failing to conduct a forensic examination of the gas mask seized in the police station in order to obtain genetic material, including perhaps that of her son. According to the applicant, a handwriting expert’s report should also have been commissioned in order to determine her son’s psychological state when he wrote the confession. Further, referring to the autopsy report, which stated that the corpse had injuries that could be interpreted as traces of a struggle or self-defence, the applicant accused the authorities of failing to explain the origin of those injuries, and the cause of her son’s death. 34.", "On 18 April 2011 the Leninskiy District Court of Voronezh upheld the contested decision. In its reasoning, the court reiterated the arguments set out in the investigator’s decision and considered that the investigation had been complete and thorough. In response to the applicant’s arguments, the court expressed the opinion that a handwriting analysis was unnecessary, since the deceased’s family had confirmed the handwriting’s authenticity. Equally, a DNA examination of samples from the gas mask was unnecessary, since Sergey Lykov’s death had not resulted from suffocation. Thus, the court concluded that there was no evidence in support of the idea that the deceased had been subjected to ill-treatment by the police officers or that he had been arrested or detained unlawfully.", "35. On 11 August 2011 the Voronezh Regional Court upheld the decision, on appeal, for the same reasons. 36. On 11 October 2012 the applicant’s lawyer sent a letter to the head of the Investigation Committee of Russia, asking him to open a new criminal investigation into the death of Mr Lykov and to entrust this investigation to the department for investigations into offences committed by State employees of the armed forces, a department that was part of the Investigation Committee of Russia in the Tsentralny federal constituency. The lawyer expressed the fear that if the requested investigation were to be carried out by investigators from the Voronezh regional department of the Investigation Committee, that investigation would be ineffective.", "She argued that, without having available to them locally-based agents to gather the necessary information, the investigators from the latter department would have no choice but to use officers from the Ministry of the Interior, among whom might be those involved in the victim’s death. 37. On 14 November 2012 the Voronezh regional department of the Investigation Committee dismissed that request, considering that the decision of 8 July 2010 had been in accordance with the law and that there were no grounds for revoking it and opening a criminal investigation. C. Witness statements by P. and the events concerning him 38. On 10 September 2009, the day after his arrest, P. was taken to a temporary detention centre (“IVS”).", "During his admission, a doctor’s assistant noted the following physical injuries: a bruise on the left shoulder-blade, scratches on the elbows and knees, and a bruise on the right ear. The medical assistant drew up a report recording the injuries and noting that they were the result of a road-traffic accident that had occurred on 9 September 2009. The medical examination was carried out in the presence of police officers who had participated in the beating. According to P., it was the police officers who provided the medical assistant with the road-accident version of events, while he himself, for fear of reprisals, had been obliged to confirm it. 39.", "On 11 September 2009 P. was transferred to remand prison no. 1 in Voronezh. On admission, he was examined by a doctor who found the same injuries as those observed in the IVS. 40. On an unspecified date in September 2009 P. lodged a complaint about the alleged ill-treatment at the police station.", "According to P., this complaint led to him being taken on the following day to the police station, where he was beating in reprisal. Then – again according to his submissions –, P. withdrew his complaint in fear for his life when investigator Ya. came to the remand prison to question him about the circumstances of the ill-treatment. According to P., in response to his question about possible consequences for the police officers involved in beating Mr Lykov and himself, investigator Ya. replied that, in any event, there had been none.", "41. On 5 October 2009 inspector Ya. from the Voronezh regional department of the Investigation Committee issued a decision refusing to open a criminal investigation. She recounted the explanation provided by police officer Sa., who had denied any ill-treatment, and, noting P.’s withdrawal of his complaint, concluded that no ill-treatment had occurred. 42.", "In the meantime, the criminal investigation against P. continued, and resulted in an examination on the merits by the Voronezh regional Court. At the public hearing on 1 February 2011 P. made a statement. He withdrew the account given by him in the context of the investigation into the death of Sergey Lykov. P. described the events of 9 September 2009 as they are set out in paragraphs 6-8 of the present judgment. He added that police officer S. had threatened him if he were to withdraw his confession to the thefts or make statements about the events surrounding the arrest and death of Mr Lykov.", "He added that S. had beaten him again prior to the court hearing concerning his placement in pre-trial detention, in order to prevent him lodging a complaint before the judge. He also alleged that he had been subjected to unprovoked attacks by the administration of the remand prison in which he was detained. P. asked to be placed under protection in his capacity as a witness of the ill-treatment inflicted on Sergey Lykov by police officers. He also asked that criminal proceedings be brought against police officer S. for abuse of power and for the murder of Mr Lykov. P. suggested that the criminal investigation into the death be reopened.", "43. The judge ordered that P.’s written statement be included in the case file. With regard to P.’s requests in respect of S. and Mr Lykov, the judge replied that the latter’s death was unrelated to the ongoing trial; as for S., he was not a party to the trial proceedings. In consequence, she dismissed those requests. 44.", "At one of the subsequent hearings P. complained that, after the above statement, the remand prison’s administration threatened him. 45. On 30 June 2011 the prosecutor for the Leninskiy district of Voronezh set aside the decision refusing to open a criminal investigation in respect of P.’s supposed torturers. The prosecutor ordered an additional investigation. The Court has not been informed of the outcome of this investigation.", "46. After serving his sentence, P. was released. He submits that he has received several threats in connection with the present case. For fear of reprisals, he moved to Sweden. In his letter of 20 April 2014 to the Investigation Committee, sent from abroad, P. offered to act as a witness, but he was never questioned.", "D. Events occurring after the application was communicated to the Government 47. On 23 December 2013 a hierarchically superior State employee in the Voronezh regional department of the Investigation Committee set aside the decision of 8 July 2010, noting that the department had received new information concerning the death of Sergey Lykov from the European Court of Human Rights. He ordered an additional investigation, in particular so that P. could be questioned and his allegations of ill-treatment verified. 48. On 10 January 2014 the deputy head of the Voronezh regional department of the Investigation Committee ordered the opening of a criminal investigation within the meaning of Article 146 of the Code of Criminal Procedure.", "In his reasoning, he noted that Ms Lykova’s application, which was being examined by the European Court of Human Rights, contained elements suggesting that Mr Lykov had been subjected to ill-treatment by the police officers. 49. On 16 January 2014 investigator L. from the Investigation Committee ordered a second forensic medical report, to answer, inter alia, the following questions: whether Mr Lykov’s body showed injuries and, if so, where; if the body showed injuries resulting from a struggle, ill-treatment, the use of handcuffs or restraint of the upper or lower limbs using adhesive tape; and whether there were signs of electrocution. The Government have not indicated whether that medical report was drawn up. In any event, no expert report was added to their observations.", "50. The investigator questioned police officers Sa. and F.; the first reiterated the explanation he had provided in 2009 (see paragraph 17 above), and the second gave similar explanations. The investigator also questioned a certain V., who allegedly stated that he occasionally drank alcoholic beverages in Sergey Lykov’s company and indicated that the latter was a drug addict who committed thefts to obtain money, and that he had spoken to him about his difficulties with his invalid mother. According to V., Sergey had confided in him that, if he were arrested, he “would harm himself”.", "51. The investigator questioned the deceased’s grandmother and cousin, who stated that, to their knowledge, Sergey did not take drugs, did not abuse alcohol, and had never expressed thoughts of suicide. 52. On 13 January 2014 the investigator issued a decision granting the applicant victim status. E. The internal investigation within the Ministry of the Interior 53.", "On 27 October 2009, at the close of an internal investigation into the police officers’ conduct, the Internal Security Service of the Voronezh regional department drew up a report; its conclusions can be summarised as follows: referring to the decision of 21 September 2009 (see paragraph 17 above), the regional department considered that Sergey Lykov had indeed taken his own life and that no fault on the part of the police officers had been established. At the same time, the Service described as a lack of professionalism the fact that police officer T. had not taken sufficient care in controlling Mr Lykov’s conduct, a shortcoming that had enabled the latter individual to throw himself from the window. II. RELEVANT DOMESTIC LAW AND PRACTICE 54. For the relevant domestic law concerning criminal liability for murder, incitement to suicide or abuse of office, as well as the criminal procedure, see the judgment in Keller v. Russia, no.", "26824/04, §§ 54-61 and 67‑73, 17 October 2013. 55. For a description of the powers given to the police by section 11 of the Police Act of 18 April 1992, see the judgment in Shimovolos v. Russia, no. 30194/09, §§33-34, 21 June 2011. 56.", "For a description of the status of the special department responsible, within the Investigation Committee of Russia, for investigating offences committed by civil servants within the security forces, see the judgment in Razzakov v. Russia, no. 57519/09, § 43, 5 February 2015. 57. According to Article 19.3 of the Code of Administrative Offences, apart from where such an order is unlawful, a refusal to obey an order given by a police officer acting in the exercise of his or her duties to protect public order is punishable by an administrative fine ranging from 500 to 1,000 roubles or up to 15 days’ administrative detention. 58.", "According to the joint directive of 29 December 2005 from the department of the Prosecutor-General of Russia (no. 39), the Ministry of the Interior (no. 1070), the Ministry of Emergency Situations (no. 1021), the Ministry of Justice (no. 253), the Federal Security Service (no.", "780), the Ministry of Economic Development (no. 353) and the Committee for Controlling the Circulation of Drugs (no. 399), on the unified recording of offences (“О едином учете преступлений”) (hereafter “Instruction no. 39”), judges are empowered to take note of a verbal statement complaining of a criminal offence where such a statement is made at the hearing, while prosecutors and investigators are empowered to do so in all other circumstances (§ 7). The relevant extract of the official record is then brought to the attention of the authority with competence for reviewing the events complained of.", "This authority must register the information included in it (§ 22). No civil servant who has competence to take measures to record these verbal statements may refrain from doing so (§ 24). THE LAW I. ALLEGED SUBSTANTIVE VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION A. The parties’ submissions 110.", "The Government considered that the factual basis of a violation of Articles 2 and 3 of the Convention in respect of the applicant’s son had not been established beyond all reasonable doubt. They argued that the death of the applicant’s son had been the result of his throwing himself out of a window on the fifth floor. Sergey Lykov had committed this suicidal act, they asserted, on account of an unhappy set of personal circumstances, which the police officers had not been in a position either to foresee or to prevent. According to the Government, the forensic doctor had been unable to determine whether certain injuries could be attributed to reasons other than the fall – in particular the use of handcuffs, a struggle or ill-treatment. 111.", "The applicant contested that argument. She noted that the existence of a torture session inflicted on her son had been attested by the statements of witness P., who had been present in the police premises. She thus dismissed as absurd the version of suicide, since her son had never expressed any intention whatsoever of taking his own life. Moreover, the applicant pointed out the contradictions which, in her opinion, undermined this version: if – as the Government implicitly alleged – her son had simply preferred death to the perspective of going to prison, she could hardly see why he would have decided to confess to an offence that had been unknown to the police themselves up until that point (see paragraph 16 above). For the remainder, the applicant considered that it could not be excluded that the act of defenestration was more a gesture of despair than an act of suicide as such.", "Referring to the Mikheyev judgment (Mikheyev v. Russia, no. 77617/01, 26 January 2006), she supposed that her son, after several hours of unbearable torture, had been in such a state of mind that he saw no other solution but to throw himself from the window to escape his suffering. B. The Court’s assessment 112. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 1. General principles 113. The Court reiterates that Article 2 ranks as one of the most fundamental provisions in the Convention, one which, in peace time, admits of no derogation under Article 15.", "Together with Article 3, it enshrines one of the basic values of democratic societies. The Court reiterates that the first sentence of Article 2 enjoins the Contracting States not only to refrain from the taking of life “intentionally” or by the “use of force” disproportionate to the legitimate aims referred to in sub-paragraphs (a) to (c) of the second paragraph of that provision, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see Kleyn and Aleksandrovich v. Russia, no. 40657/04, § 43, 3 May 2012, and Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 174, ECHR 2011 (extracts)). 114.", "The obligations on Contracting States take on a particular dimension where detainees are concerned since detainees are entirely under the control of the authorities. In view of their vulnerability, the authorities are under a duty to protect them. The Court has accordingly found, under Article 3 of the Convention, that, where applicable, it is incumbent on the State to give a convincing explanation for any injuries suffered in custody or during other forms of deprivation of liberty, which obligation is particularly stringent where that individual dies (see Slimani v. France, no. 57671/00, § 27, ECHR 2004‑IX (extracts)). In the absence of such explanation, the Court can draw inferences which may be unfavourable for the Government (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no.", "39630/09, § 152, ECHR 2012, and Mikheyev, cited above, § 102). 115. The Court also reiterates that Article 2 may imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual from the acts of another individual or, in certain particular circumstances, from himself or herself (see Tanribilir v. Turkey, no. 21422/93, § 70, 16 November 2000; Keenan v. the United Kingdom, no. 27229/95, § 89, ECHR 2001‑III; and Opuz v. Turkey, no.", "33401/02, § 128, ECHR 2009). However, this obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, without losing sight of 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. Not every claimed risk to life, therefore, can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising (see Keenan, cited above, § 90, and Taïs v. France, no. 39922/03, § 97, 1 June 2006). 116.", "The Court points out that Article 3 of the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000‑IV). Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 114, ECHR 2014).", "In respect of a person deprived of his or her liberty, recourse to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336, and Selmouni v. France [GC], no. 25803/94, § 99, ECHR 1999‑V). 117. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no.", "25). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries or death occurring during that detention (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII, and Giuliani and Gaggio, cited above, § 181). 118.", "The Court also reiterates that when it comes to establishing the facts, it is sensitive to the subsidiary nature of its task and must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. 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 it is for the latter to establish the facts on the basis of the evidence before them. Though the Court is not bound by the findings of domestic courts and remains free to make its own assessment in the light of all the material before it, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by the domestic courts (see Giuliani and Gaggio, cited above, § 180; Gäfgen v. Germany [GC], no. 22978/05, § 93, ECHR 2010; and Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 182, 14 April 2015).", "119. The Court must be especially vigilant in cases where violations of Articles 2 and 3 of the Convention are alleged (see, mutatis mutandis, Ribitsch, cited above, § 32). When there have been criminal proceedings in the domestic courts concerning those same allegations, it must be borne in mind that criminal-law liability is distinct from international-law responsibility under the Convention. The Court’s competence is confined to the latter. Responsibility under the Convention is based on its own provisions which are to be interpreted in the light of the object and purpose of the Convention, taking into account any relevant rules or principles of international law.", "The responsibility of a State under the Convention, arising for the acts of its organs, agents and servants, is not to be confused with the domestic legal issues of individual criminal responsibility under examination in the national criminal courts. The Court is not concerned with reaching any findings as to guilt or innocence in that sense (see Giuliani and Gaggio, cited above, § 182, and Avşar v. Turkey, no. 25657/94, § 284, ECHR 2001‑VII). 2. Application of these principles to the present case (a) Article 3 of the Convention 120.", "Turning to the circumstances of the present case, the Court takes note of the evidence submitted by the applicant party. Relying on the assertions of eyewitness P., who accompanied Sergey Lykov and who was present at the first alleged torture session and had subsequently heard cries, the applicant has submitted a coherent and specific account of the ill-treatment to which her son was allegedly subjected (see paragraph 7 above). In addition, in support of this account, the applicant refers to the autopsy report, which details several hematoma and scratches on the trunk and lower and upper limbs which did not result from the fall from the window (see paragraph 28 above). With regard to the bruise on the right carpus and the scratch on the right forearm, the forensic doctor had noted that such marks were generally held to be signs of struggle or self-defence (ibid.). The Court further observes that neither of the parties alleges that Sergey Lykov already had these injuries when he arrived at the police station.", "121. The Court reiterates that it is incumbent on the State in such circumstances to provide a plausible explanation of how the injuries found on the victim’s body were caused and to produce evidence capable of casting doubt on the veracity of the victim’s allegations, particularly if those allegations are backed up by medical reports (see Selmouni, cited above, § 87, and Mižigárová v. Slovakia, no. 74832/01, § 85, 14 December 2010) 122. The Court notes that the Government interpret the above-mentioned report by the forensic doctor as attributing all of Mr Lykov’s injuries to his fall from the fifth floor and thus as refuting the allegations of ill-treatment... However, as the Court has noted above, this report indicates that the forensic doctor found the presence of injuries which were unrelated to the fall from the window and which are generally attributed to acts of struggle or self-defence.", "In addition, the Court considers that it is appropriate to have regard to the explanations provided by P., who described, in a detailed and coherent manner, the violence perpetrated against Sergey Lykov and himself. The Court sees no reason to call into question the testimony by P.: his account is consistent with the nature and position of the injuries identified on Sergey Lykov’s body (see paragraphs 38 and 39 above). Moreover, as the Court has established above, from September 2009, that is, before the autopsy report was submitted, witness P. gave the relevant domestic authorities several opportunities to verify his allegations, including those concerning Sergey Lykov (see paragraphs 39, 42 and 46 above). However, on each occasion the relevant authorities ignored his complaints and proposals to provide witness statements ... Lastly, the Court considers that the applicant’s version is all the more credible in that the authorities have never – either at the domestic level, or in the proceedings before this Court – provided an explanation for those injuries that were not sustained by Mr Lykov as a result of the fall. 123.", "The Court further observes that the decision to close the investigation (see paragraph 18 above) was based on statements containing obvious contradictions, especially with regard to the chronological sequence of events (see paragraphs 19, 20 and 22 above). The Court notes in this respect that the investigative authorities failed to re-establish the exact chronology of the events occurring between the arrest of P. and the applicant’s son and the latter’s throwing himself from the window, and to resolve the contradictions between the various statements. 124. In those circumstances, the Court is not convinced by the version advanced by the Government – namely, that all the injuries resulted from Mr Lykov’s suicide. The Government have not submitted sufficient information to suggest that the observed injuries which were not attributable to the fall originated in something other than the infliction of ill-treatment in the police premises on the afternoon and evening of 9 September 2009.", "In consequence, the Court considers it established that Sergey Lykov was subjected to treatment contrary to Article 3 of the Convention. 125. In addition, the Court has already held that there is no more important safeguard against ill-treatment than the requirement to record without delay all information relating to a person’s arrest in the relevant custody ledgers (see Timurtaş v. Turkey, no. 23531/94, § 105, ECHR 2000‑VI). It reiterates that the three relevant rights – the right of the person detained to have the fact of his detention notified to a third party of his choice, the right of access to a lawyer, and the right to request a medical examination by a doctor of his choice – must apply as from the very outset of deprivation of liberty, regardless of how it may be described under the legal system concerned (see Salduz v. Turkey [GC], no.", "36391/02, § 54, ECHR 2008; Martin v. Estonia, no. 35985/09, § 79, 30 May 2013; and Zayev v. Russia, no. 36552/05, § 86, 16 April 2015). The Court concludes that these rights, the purpose of which is precisely to prevent police abuse, were not respected in Mr Lykov’s case. 126.", "In assessing the seriousness of the established facts, the Court takes into consideration the intensity of the acts in question, the fact that they were inflicted, were that the case, in an intentional manner by State agents acting in the exercise of their duties, as well as the circumstances in which those acts took place. With regard to the intensity of the acts of violence, the Court notes that, according to P.’s version, on which the Court has based its findings (see paragraph 122 above), the police officers inflicted several blows on the victim by striking his head against hard surfaces – the ground, a cupboard and a table (see paragraphs 7 and 122 above). Those blows, already sufficiently painful in themselves, were accompanied by several sessions of asphyxiation (ibid. ), treatment that was also liable to cause severe pain and suffering to the victims. The Court notes that an element of humiliation was added to the victim’s physical suffering, since Sergey Lykov was subjected to this treatment in a naked state, with his hands and feet bound (see paragraphs 7, 8 and 122 above).", "The Court reiterates that the treatment complained of took place in the course of unrecorded detention, which could only have aggravated the victim’s state of vulnerability; held in police custody, he was deprived over a period of several hours of the procedural safeguards to which a person in that situation was normally entitled (see paragraph 125 above). The Court further observes that the above-mentioned ill-treatment was inflicted with the intention of extracting a confession (see paragraphs 7 and 11 above). Having regard to the foregoing, the Court is convinced that the acts of violence committed against the person of Sergey Lykov, considered as a whole, caused “severe” pain and suffering and were particularly serious and cruel. Such conduct must be regarded as acts of torture for the purposes of Article 3 of the Convention (see Lyapin v. Russia, no. 46956/09, § 115, 24 July 2014).", "127. The foregoing enables the Court to conclude that the treatment to which the victim was subjected on 9 September 2009 entailed a substantive violation of Article 3 of the Convention. (b) Article 2 of the Convention 128. The Court notes that the present case contains nothing from which it might be concluded beyond all reasonable doubt that Mr Lykov’s death was intentionally caused by the State agents. The applicant and the Government agree on the fact that the victim threw himself from the window.", "They disagree only on the question whether this action was sudden and unforeseeable by the police officers, so that the authorities are exonerated of all liability, or whether this act was a gesture of despair provoked by the ill-treatment. The Court considers it necessary to focus on the question of whether the authorities could be held responsible for the victim throwing himself from the window. 129. In considering persons who are detained or placed in police custody, and thus in a relationship of dependence comparable to that in which Mr Lykov found himself, the Court has accepted a positive obligation to protect the individual, including against himself. In addition, even where there is insufficient evidence to enable the Court to find that the authorities knew or ought to have known that the detained person was at risk of suicide, police officers must take certain basic precautions in order to minimise any potential risk (see Keller, cited above, § 82, and Mižigárová, cited above, § 89).", "130. In the present case the Court does not find it necessary to establish whether or not the authorities who arrested Mr Lykov had information about the existence of personal circumstances liable to push him to suicide, which, were it available, ought to have encouraged them to act in such a way as to prevent a possible suicide attempt. The Court considers that the victim’s vulnerability at the precise moment when he threw himself from the window resulted, first and foremost, from the torture to which he had been subjected by the police officers. The Court has already had to assess a case in which the ill-treatment inflicted was of such intensity that it pushed the victim to throw himself from a window to escape his suffering (see Mikheyev, cited above, § 135). In the present case, the Court has established that Mr Lykov had been tortured in the presence of P. (see paragraph 127 above).", "In addition, it cannot be excluded that the victim was tortured afterwards, in so far as P. claims to have heard his cries throughout the following hour (see paragraph 8 above). Moreover, the Court also notes that during this period Mr Lykov confessed and threw himself from the window (see paragraphs 11 and 12 above). The Court notes that the victim entered the building alive and died on account of the fall from the fifth floor of the police station. Firstly, the Court considers that the Government’s version of suicide for personal reasons is not satisfactory. It failed to take account of the established fact that the applicant was being tortured (see paragraphs 120-127 above), or of his unrecorded detention ... Secondly, the Court cannot draw any decisive conclusion from the investigation, which it has found to be ineffective (see paragraph 109 above).", "Accordingly, having found that neither the Government nor the national investigation have provided a satisfactory explanation for the victim’s death, the Court considers that the Russian authorities are responsible for Sergey Lykov’s fatal fall from the window. 131. The Court reiterates that its jurisdiction is limited to ruling on the State’s responsibility under the Convention; the individual liability of the individuals involved is a matter for the domestic courts alone. In consequence, the Court considers that it is not for it to discuss in the present case the individual liability for negligence of any police officers present in view of their insufficient supervision of the victim’s conduct. With this clarification, the Court is of the view that the Russian authorities must be held responsible, having regard to the Convention, for the death of Mr Lykov, who was tortured during a period of unrecorded detention, when he was deprived of all the rights which should normally have been afforded to persons in custody (see paragraph 125 above).", "(c) Conclusions 132. The above considerations are sufficient for the Court to be able to conclude that there has been a substantive violation of Article 2 and Article 3. ... FOR THESE REASONS, THE COURT, UNANIMOUSLY, ... 4. Holds that there has been a substantive violation of Article 3 of the Convention; 5. Holds that there has been a substantive violation of Article 2 of the Convention; ...", "Done in French, and notified in writing on 22 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsLuis López GuerraRegistrarPresident" ]

[ "THIRD SECTION CASE OF KALASHNIKOV v. RUSSIA (Application no. 47095/99) JUDGMENT STRASBOURG 15 July 2002 FINAL 15/10/2002 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kalashnikov v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrW. Fuhrmann,MrL.", "Loucaides,SirNicolas Bratza,MrsH.S. Greve,MrK. Traja,MrA. Kovler, judges,and MrsS. Dollé, Section Registrar, Having deliberated in private on 18 September 2001 and 24 June 2002, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1.", "The case originated in an application (no. 47095/99) 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, Valeriy Yermilovich Kalashnikov (“the applicant”), on 1 December 1998. 2. The applicant complained, in particular, about his conditions of detention, the length of his detention and the length of the criminal proceedings against him. 3.", "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 of the Rules of Court. 4. The applicant and the Government each filed observations on the admissibility and merits (Rule 54 § 3(b)). The parties replied in writing to each other's observations.", "5. A hearing on the admissibility and merits took place in public in the Human Rights Building, Strasbourg, on 18 September 2001 (Rule 54 § 4). There appeared before the Court: (a) for the GovernmentMrP. Laptev, Representative of the Russian Federation before the ECHR,MrY. Berestnev,MrS.", "Volkovsky,MrS. Razumov,Mr Y. Kalinin,Advisers;Mr K. Bahtiarov,MrO. Ankudinov,MrV. Vlasihin,Experts; (b) for the applicantMrsK. Moskalenko, of the Moscow International Protection Centre MrN.", "Sonkin, of the Moscow Regional BarCounsel,MrV. Kalashnikov,Applicant. 6. The Court heard addresses by Mr P. Laptev, Mrs K Moskalenko and Mr N. Sonkin, and the replies of Mr V. Vlasihin, Mr P. Laptev and Mrs K. Moskalenko to questions from three judges. At the Court's request, the Government had submitted photographs of the cell in which the applicant was detained.", "They also provided a video recorded film of the renovated cell and nearby area, which renovation had been made after the applicant's release. 7. By a decision of 18 September 2001, the Court declared the application partly admissible. It thereafter considered that an on-site inspection or “fact-finding mission” was not necessary, as it had sufficient material in the case-file on which to reach its conclusions. In particular, it considered that no useful purpose would be served by such an exercise because the present conditions of the cell, as shown in the video, no longer bore any resemblance to those at the time of the applicant's detention, as confirmed by the contemporary photographs.", "8. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1), but this case remained with the Chamber constituted within former Section III. 9. The parties filed no further observations on the merits of the application. 10.", "On 28 December 2001 the applicant filed claims for just satisfaction under Article 41 of the Convention, on which the Government submitted comments. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 11. The applicant was born in 1955 and lives in Moscow. At the material time he was the president of the North East Commercial Bank (Северо – Восточный Акционерный Банк).", "12. On 8 February 1995 criminal proceedings were initiated against the applicant, the details of which are set out under sub-heading B below. On 29 June 1995 the applicant was taken into custody and, by a judgment of the Magadan City Court (Магаданский городской суд) of 3 August 1999, he was convicted of embezzlement and sentenced to a term of imprisonment. A. The conditions of detention 13.", "From 29 June 1995 to 20 October 1999 the applicant was kept in the detention facility IZ-47/1 in the city of Magadan (Investigatory Isolation Ward No. 1 (СИЗО-1)). On 20 October 1999 he was sent to serve his sentence, following the City Court judgment of 3 August 1999, to the penitentiary establishment AV-261/3 in the village of Talaya. On 9 December 1999 he was transferred back to the detention facility in Magadan where he stayed until his release on 26 June 2000. 1) The applicant's submissions on the facts 14.", "As regards the first period of his detention in the Magadan detention facility, the applicant alleged that he had been kept in a cell measuring 17 square meters (“m²”) where there were 8 bunk beds. However, it nearly always held 24 inmates; only rarely did the number fall to 18. As there were three men to every bunk, the inmates slept taking turns. The others would lie or sit on the floor or cardboard boxes waiting for their turn. It was impossible to sleep properly as the television was on around the clock and, during the day, there was much commotion in the cell.", "The light in the cell was never turned off. 15. The lavatory pan in the corner of the cell offered no privacy. A partition separated it from a wash stand, but not from the living area and dining table. The lavatory pan was elevated from the floor by half a meter while the partition measured 1,1 meters in height.", "Therefore, the person using the toilet was in the view of both his cellmates and a prison guard observing the inmates through a peep-hole in the door. The inmates had to eat their meals in the cell at a dining table which was only a meter away from the toilet. The meals were of poor quality. 16. The cell, which had no ventilation, was stiflingly hot in summer and very cold in winter.", "Because of the poor quality of the air in the cell, a window had to remain open all the time. Being surrounded by heavy smokers, the applicant was forced to become a passive smoker. The applicant claims that he was never given proper bedding, dishes or kitchen utensils. He only received a quilted mattress and a thin flannel blanket from the administration, and had to borrow kitchenware from cell-mates who had received these items from relatives. 17.", "The cells of the detention facility were overrun with cockroaches and ants, but no attempt was made to exterminate them. The only sanitary precaution taken was that once a week the guards gave the inmates a litre of chloride disinfectant for the lavatory. 18. He contracted a variety of skin diseases and fungal infections, losing his toenails and some of his fingernails. During the trial from 11 November 1996 to 23 April 1997 and from 15 April 1999 to 3 August 1999, a recess was ordered so that he could be treated for scabies.", "On six occasions detainees, with tuberculosis and syphilis were placed in his cell and he received prophylactic antibiotic injections. 19. The applicant submitted that he could only take a walk outside his cell one hour per day and that usually he was only able to take a hot shower twice a month. 20. Finally, the applicant stated that, following his transfer back to the same facility on 9 December 1999, the detention conditions had not materially improved.", "He was not provided with proper bedding, towels or kitchenware. There was no treatment available for his skin disease due to a lack of proper medication. His cell was still overrun with cockroaches and there had been no anti-infestation treatment for 5 years. However, in March-April 2000 the number of inmates in his 8-bed cell was reduced to 11. 2) The Government's submissions on the facts 21.", "The Government claimed that the applicant's cell measured 20,8 m². The applicant had a separate sleeping berth, bedding, kitchen utensils and access to health care. The cell was designed for 8 inmates. In connection with the general overcrowding of the detention facility, each bed in the cells was used by 2 or 3 inmates. In the applicant's cell there were 11 or more inmates at any given time.", "Normally the number of inmates was 14. The beds were used in turn by several prisoners on the basis of eight hour shifts of sleep per prisoner. All inmates were provided with wadded mattresses, cotton blankets and sheets. 22. The applicant's cell was equipped with a sanitary unit, including a lavatory pan and a wash stand.", "The lavatory pan was situated in the corner of the cell and was separated from the dwelling place by a partition - 1,1 meters high - ensuring privacy. Such standards have been set by the “Directives on Planning and Constructing Pre-Trial Detention Facilities of the USSR Ministry of the Interior”, approved on 25 January 1971. The Government submitted photographs to the Court showing the applicant's cell, which the applicant claimed had been improved slightly since the beginning of his detention. The Government also provided a video recording of the facilities after the applicant's release and their major renovation. 23.", "The cell had windows providing fresh air and daylight. There was no possibility to equip the cell with a ventilation system. In hot weather a window of the cell door could be opened for better ventilation. Inmates also had the opportunity to have compact fans delivered to them by relatives. 24.", "There was a television in the cell which belonged to the applicant who could control when to switch it on or off. Programmes were only transmitted during part of the day in the region. 25. On 11 February 1998 an inmate in the applicant's cell was diagnosed with syphilis. The inmate was immediately removed to a separate cell and underwent a complete course of treatment for the disease.", "The other inmates, including the applicant, who had shared the cell with this person, were subjected to appropriate preventive treatment on 26 February 1998 and to serological control measures. This was done pursuant to the “Guidelines on Medical Care for Persons Held in Pre-Trial Detention Facilities and Correctional Labour Institutions of the USSR Ministry of the Interior”, approved on 17 November 1989. In January 1999 one of the blocks in the detention facility was closed for repairs and the detainees were transferred to vacant places in other cells. The detainees who were moved to the applicant's cell stayed there for a week and some of them were ill with tuberculosis. However, in the opinion of the medical personnel, the latter did not present a danger to other inmates as these persons were undergoing out-patient medical treatment.", "On 2 June 1999, an inmate who was observed to have residual tuberculosis was placed in the applicant's cell. The inmate underwent the relapse prevention treatment for a period of two months. As he did not suffer from tuberculosis in its open form, there was no danger of its transmission to other inmates. The applicant underwent repeated fluorographic examinations which showed no abnormality of his thorax. On 15 June 1999, an inmate who was undergoing treatment for syphilis was placed in the applicant's cell.", "Medical examinations performed subsequently showed negative results. Blood tests which were performed in this connection on the applicant also revealed negative results. 26. The applicant was systematically examined by the medical personnel and he received medical assistance from a dermatologist, therapeutist and stomatologist. When the applicant was diagnosed with different diseases (neurocirulatory dystonia, scabies and fungal infection) he received immediate medical care.", "There were recesses announced during the trial in order to provide medical treatment for the applicant. 27. The applicant could shower every 7 days and was permitted to walk outside his cell for up to 2 hours a day. 28. Finally, the Government submitted that, in order to prevent the appearance of infectious diseases, pre-trial detention facilities take prophylactic disinfection measures to secure the timely extermination of pathogenic micro-organisms, arthoropoda and rodents, pursuant to the above-mentioned ministerial guidelines of 1989.", "It was conceded, however, that the infestation of detention facilities with insects was a problem. 3) Medical records and an expert report 29. According to the applicant's medical records, he had scabies in December 1996, allergic dermatitis in July and August 1997, a fungal infection on his feet in June 1999, a fungal infection on his finger nail in August 1999, mycosis in September 1999 and a fungal infection on his feet, hands and groin in October 1999. The records also state that the applicant received treatment for these medical conditions. 30.", "A report by medical experts issued in July 1999 stated that the applicant was suffering from neurocirculatory dystonia, astheno-neurotic syndrome, chronic gastroduodenitis, a fungal infection on his feet, hands and groin and mycosis. B. The criminal proceedings and appeals against pre-trial detention 31. On 8 February 1995 the applicant became a suspect in the embezzlement of his bank's funds and was subjected to a preventive measure in the form of a ban on leaving a specified place. The criminal case was assigned the number 48529.", "32. On 17 February 1995 he was formally charged with misappropriating 2,050,000 shares of another company. 33. On 29 June 1995, by an order of the investigator, which was approved by the prosecutor, the applicant was arrested and placed in detention on remand on the ground that he had obstructed the establishment of the truth in the criminal proceedings. In particular, it was stated in the order, with references to concrete instances, that the applicant had refused to turn over certain bank documents necessary for the investigation, he had brought pressure to bear on witnesses and had tampered with documents.", "The order also referred to the seriousness of the offence with which the applicant was charged. The applicant's detention was subsequently extended by the competent prosecutor on unspecified dates. 34. On 4 July 1995, 31 August 1995 and 26 September 1995, the applicant's defence lawyer filed applications for release from custody with the Magadan City Court, which rejected them on 14 July 1995, 9 September 1995 and 4 November 1995, respectively. 35.", "The applicant contends that from August 1995 until November 1995 no investigative activity took place as the two investigators in charge of the case were on holiday, and the person to whom the case was temporarily assigned undertook no action. 36. On 14 December 1995 the applicant was charged with 8 additional counts relating to the embezzlement of his bank's funds. 37. On 6 February 1996 the preliminary investigation of the charges against the applicant was terminated and the case was sent to the Magadan City Court.", "38. On 1 March 1996 the applicant filed with the City Court a request for his release from custody, which was refused on 27 March 1996. 39. On the same day the City Court decided to remit the case to the Magadan Regional Prosecutor for further investigation. The latter filed an appeal against the decision with the Magadan Regional Court (Магаданский областной суд) which, on 29 April 1996, rejected it.", "40. Following an additional investigation as of 15 May 1996, the Regional Prosecutor remitted the case to the City Court on 19 June 1996. 41. In the meantime, on 16 May 1996, the applicant filed an application for release from custody with the City Court in which he stated that he was being held in poor conditions and that his health had deteriorated. His application for release was refused on 26 May 1996.", "On 23 June 1996 the applicant filed another request for release. 42. On 11 November 1996 the City Court began its examination of the applicant's case. On the same day it rejected his request for release filed on 23 June 1996. 43.", "At the hearing on 27 December 1996 the applicant asked the City Court to release him from custody on medical grounds. He stated that there were 21 inmates in his cell with just 8 beds; there was no ventilation in the cell where everybody smoked; the television was constantly blaring and he had contracted scabies. Upon receiving a medical certificate confirming the existence of the disease, the City Court adjourned the hearing until 14 January 1997. It refused to release the applicant from custody on the grounds of the seriousness of the offence with which he was charged and the danger of his obstructing the establishment of the truth while at liberty. 44.", "The examination of the applicant's case by the City Court lasted until 23 April 1997. On 7 May 1997 the case was adjourned due to the removal from office of the presiding judge for improper conduct unrelated to the applicant's case. 45. On 15 June 1997 the applicant filed another request for release, referring to the poor conditions in which he was being detained. 46.", "In July 1997 the applicant's case was assigned to another judge who scheduled a hearing for 8 August 1997. On that day the hearing was postponed because the defence lawyer could not attend for health reasons. The applicant's request for release was rejected on the grounds of the seriousness of the offence with which he was charged and the danger of his obstructing the establishment of the truth in the criminal case. The applicant's further request for release from custody filed on 21 September 1997 was refused on 21 October 1997. 47.", "On 22 October 1997 the applicant complained to the Magadan Regional Court about his case, asking for its transfer from the City Court to the Regional Court. He also submitted a complaint to the Supreme Court of Russia (Верховный Суд Российской Федерации) which forwarded it to the Magadan Regional Court for examination. By letters of 31 October 1997 and 25 November 1997, the Regional Court informed the applicant that there was no reason for it to assume jurisdiction and suggested he turn to the City Court with any questions relating to his case. It also requested the City Court to take measures for the examination of the applicant's case. 48.", "On 21 November 1997 he made complaints to different authorities, in particular the Office of the President of the Russian Federation, the Magadan City Court, the High Qualification Board of Judges (Высшая квалификационная коллегия судей Российской Федерации) – a body dealing with questions of professional competence – and the Prosecutor General. In his complaints, he submitted, inter alia, that he was being held in appalling conditions without any decision on the substance of the charges, that he had contracted various skin diseases, that his toenails had fallen off and that he was suffering from a heart condition. 49. By letter of 5 February 1998, the president of the Magadan City Court informed the applicant that the court would resume its consideration of his case before 1 July 1998, referring to its complexity and the heavy workload of the judges. 50.", "On 11 February 1998 the Magadan Regional Court forwarded to the City Court 11 complaints made by the applicant, which it had received from the Prosecutor General, the Supreme Court and other authorities. 51. On 23 February 1998 the applicant commenced a hunger strike with a view to drawing the attention of the authorities to his lengthy detention and the absence of court hearings, which he continued until 17 March 1998. 52. On 1 March 1998 the applicant complained about his case to the Office of the President of Russia and to a parliamentary committee of the State Duma, requesting their assistance in the transfer of his case to the Magadan Regional Court.", "53. On 3 March 1998 the Department of Justice of the Magadan Region, in response to the applicant's complaint addressed to the Ministry of Justice of Russia, stated that the court would be able to deal with his case in the second half of 1998. 54. Meanwhile, the applicant lodged a request with the Constitutional Court (Конституционный Суд Российской Федерации) to review the constitutionality of the provisions of Articles 223-1 and 239 of the Code of Criminal Procedure concerning time-limits for the start of trials. By letter of 10 March 1998, the Constitutional Court informed the applicant that, since the impugned provisions did not lay down any time-limits with regard to the length of detention while a case is being considered by the courts, his request could not be considered.", "55. The applicant also complained to the High Qualification Board of Judges about the delay in the consideration of his case which, by letter of 30 March 1998, asked the Magadan Regional Court to investigate the matter. 56. On 2 April 1998 the applicant filed a complaint with the Supreme Court about the delay in setting the date for his trial, in which he also referred to his poor conditions of detention. A copy of his complaint was sent to other authorities.", "All his complaints were forwarded by the addressee institutions to the Magadan City Court for examination. 57. On 13 April 1998 the Magadan Regional Court informed the applicant that the City Court had been requested to take measures for the consideration of his case. It also stated that the case was to be tried by the City Court and that the Regional Court could only act as a court of cassation. 58.", "On 25 May 1998 the applicant filed a petition with the City Court asking for his case to be transferred to the Regional Court for trial. By decision of the president of the Regional Court of 28 May 1998, the applicant's case was transferred to the Khasynskiy District Court (Хасынский районный суд) in order to expedite the proceedings. 59. On 11 June 1998 the applicant complained about the delay in starting court hearings to the High Qualification Board of Judges. 60.", "On 16 June 1998 the applicant filed a request for release from custody with the Khasynskiy District Court in which he stated that his health had deteriorated as a result of the overcrowding and the poor conditions in his cell in the detention facility. On the same day, he sent an application to the Khasynskiy District Court asking it to transfer his case to the Magadan Regional Court. He submitted that the transfer of his case to the Khasynskiy District Court was unlawful and that its distance from the city of Magadan would hamper an objective and fair examination of his case. 61. On 1 July 1998 the applicant complained to the Regional Court that the Khasynskiy District Court had not yet set a hearing date and asked it to speed up the proceedings.", "62. On 3 July 1998 the case was remitted to the Magadan City Court as the applicant had expressed his disagreement with its transfer to the Khasynskiy District Court. 63. On 8 July 1998 the applicant received a letter from the Regional Court informing him that there were no grounds for it to act as a court of first instance or to assume jurisdiction in the case. The next day the applicant requested the City Court to release him, referring to the poor conditions of detention.", "64. On 31 July 1998 the applicant complained to the High Qualification Board of Judges about the prolonged failure of the City Court to examine his case. On 19 August 1998 his complaint was transmitted to the Magadan Regional Court with a request to provide information both on the complaint and on the work of the City Court. On 27 August 1998 the Regional Court forwarded the applicant's complaint to the City Court. The applicant also submitted a complaint to the Magadan Regional Court about the delay in starting the trial hearings, which on 11 August 1998 transmitted the complaint to the City Court.", "65. On 7 September 1998 the applicant filed another complaint with the High Qualification Board of Judges stating that all his previous complaints had been sent by the Magadan Regional Court to the City Court without any measures being taken. On 23 September 1998 the applicant's complaint was forwarded to the Magadan Regional Court with a reminder about the request for information on the reasons for the prolonged delay in examining the applicant's case. On 7 September 1998 the applicant also submitted a complaint about the delay in the proceedings to the Supreme Court. On 5 October 1998 the applicant submitted further complaints to the Regional and High Qualification Boards of Judges.", "66. On 13 November 1998 the City Court set the hearing date for 28 January 1999. 67. On 25 November 1998 the applicant complained to the High Qualification Board of Judges about the actions of the President of the Magadan City Court, apparently requesting the institution of criminal proceedings against him. On 22 December 1998 the complaint was forwarded for examination to the president of the Magadan Regional Court with a request to submit a report to the competent Qualification Board in case the applicant's allegations proved substantiated.", "On 16 December 1998 the Magadan Regional Court forwarded another complaint by the applicant to the City Court. 68. On 18 January 1999 the applicant submitted to the City Court a request for release from custody. 69. On 28 January 1999 the Magadan City Court decided to send the applicant's case back to the prosecutor for further investigation due to the violation of procedural norms by the investigative authorities.", "These violations consisted of an incomplete presentation of the case materials to the accused at the end of the preliminary investigation, as well as an imprecise recording of file documents. The court refused the applicant's request for release having regard to the gravity of the charges against him and the danger of his obstructing the establisment of the truth while at liberty. The applicant lodged an appeal against the refusal with the Magadan Regional Court which, on 15 March 1999, dismissed it. The Regional Court however revoked the decision to send the case back to the investigative authorities as unfounded and ordered the City Court to proceed with the trial. In a separate decision, issued on the same day, it considered the lengthy delay unjustifiable in view of the fact that the case was not particularly complex, and requested the City Court to inform it within one month of the measures taken.", "70. On 17 March 1999 the applicant submitted to the City Court another request for release from custody. On the same day he complained to the High Qualification Board of Judges about his lengthy detention without a court judgment. Five days later, the applicant submitted a similar complaint to the Regional Qualification Board of Judges. On 5 April 1999 the applicant filed another complaint with the High Qualification Board of Judges about the prolonged delay in the proceedings.", "71. On 15 April 1999 the City Court resumed its examination of the applicant's case. At the hearing on 20 April 1999 the prosecutor requested that, in view of the length of the applicant's detention, a psychiatric evaluation of the applicant be carried out in order to determine the state of his mental health. The City Court granted this request and adjourned the hearing until 30 April 1999. 72.", "At the hearing on 30 April 1999 the applicant unsuccessfully applied for release from custody. He submitted that he was suffering from a lack of sleep. In his cell there were 18 inmates who had to sleep in shifts. He further argued that he could not obstruct the establishment of the truth in his case as all the investigative measures had already been taken. The prosecutor participating in the hearing asked the City Court to request the administration of the detention facility in which the applicant was being held to provide the applicant with conditions allowing normal sleep and rest during the court hearings.", "The prosecutor further stated that he would submit a similar request to the prosecutor in charge of supervising detention facilities. The applicant submits that subsequently the competent prosecutor came to his cell, acknowledged that the conditions were poor, but stated that the situation in other cells in the detention facility was no better and that there was no money to improve the conditions. 73. At the hearing on 8 June 1999 the applicant requested his release. He stated that in his cell, where there were 18 inmates, he could not prepare himself adequately to testify before the trial court.", "He further submitted that he had contracted scabies twice and that his bed sheets were not changed. The applicant's request was rejected. 74. At the hearing on 16 June 1999 the applicant filed another request for release, referring to the conditions of his detention. He submitted that he had a fungal infection and that his body was covered with sores caused by bites from bugs infesting his bed.", "He was sharing his bed with two other inmates. Inmates could shower once every two weeks. The atmosphere in the cell was stifling as everybody smoked. He was feeling unwell and suffering from a heart condition. His weight had dropped from 96 kg to 67 kg.", "He further submitted that he could not obstruct the examination of his case if released. The City Court decided not to examine the request because it was apparently made outside the context of the hearing. 75. On 22 June 1999 the High Qualification Board of Judges removed the president of the Magadan City Court from office, as well as the president of the Regional Court and his two deputies, due to the delay in examining the applicant's case. 76.", "At the hearing before the City Court on 23 June 1999, the applicant stated that he was feeling unwell and that he could not participate. The court ordered a medical examination of the applicant by a commission of experts in order to determine whether his state of health allowed him to take part in the proceedings and whether he should be hospitalised. In their conclusions issued on an unspecified date in July 1999, the experts found that the applicant was suffering from a number of medical conditions (see paragraph 30 above). They considered that the treatment of these conditions did not require hospitalisation and that the applicant could remain in the detention facility. They also considered that the applicant's state of health allowed him to attend the court hearings and to give testimony.", "77. At the hearing on 15 July 1999, the applicant requested the trial court to release him from custody. He stated that the court had nearly concluded the examination of the evidence and that he could not obstruct the establishment of the truth. His request was refused. 78.", "In another ruling issued on the same day, the City Court noted that, in the period from 15 April until 15 July 1999, it had examined more than 30 applications submitted by the applicant, including repetitive applications on previously rejected motions. It noted that the applicant had stated that he would testify only if his applications were granted and considered that such a position amounted to a deliberate attempt to delay the proceedings. 79. The City Court heard 9 of the 29 witnesses who were to be summoned before it. The testimonies of 12 absent witnesses, which had been given during the pre-trial investigation, were read out in open court.", "80. By a judgment of 3 August 1999, the City Court found the applicant guilty on one count and acquitted him on two of the counts contained in the indictment, which had preferred 9 separate charges. It sentenced him to 5 years and 6 months' imprisonment in a correctional colony with a general regime, his term running from 29 June 1995. The City Court considered that the preliminary investigation had been of poor quality and that the investigators had unjustifiably attempted to increase the number of counts in the indictment. It also found an infringement of procedural norms consisting, inter alia, of shortcomings in the presentation in due form of the relevant documents to the court.", "These shortcomings had had to be corrected at the trial, which had caused a delay. The court noted that, in the course of the investigation, there had been a lack of proper procedural supervision by those in charge of the investigation and the prosecutor's office of the Magadan Region. In a separate ruling on the same day, the City Court decided to send part of the indictment back to the prosecutor for an additional investigation. The applicant appealed against the ruling to the Supreme Court, which on 30 September 1999 found the decision lawful. 81.", "The City Court judgment of 3 August 1999 was open to appeal to the Regional Court within 7 days of its pronouncement. The applicant did not file an appeal in cassation as he considered that the Regional Court had contributed to his conviction and thus that an appeal had no prospects of success. On 11 August 1999 the judgment of the City Court entered into force. 82. On 11 August 1999 the applicant submitted to the director of the detention facility where he was being held a request to transfer him to the logistical services team in the same facility to serve his sentence.", "83. On 25 October 1999 the applicant lodged an extraordinary appeal with the President of the Supreme Court of Russia for a review of the City Court judgment. On 11 November 1999 the appeal was dismissed. On 30 November 1999 the applicant filed another extraordinary appeal with the Supreme Court, which rejected it on 9 June 2000. 84.", "On 24 September 1999, in the continuing criminal proceedings, the preventive custody measure was replaced by a ban on leaving a specified place. However, he remained in custody, serving his original sentence. 85. On 29 September 1999 the proceedings concerning the remainder of the charges were terminated on the ground that the acts committed by the applicant did not constitute a criminal offence. On 30 September 1999, however, a new charge relating to the misappropriation of property in his capacity as the bank's president was brought against the applicant.", "86. On 19 October 1999, upon completion of the preliminary investigation, the competent prosecutor approved the bill of indictment and sent the case to the Magadan City Court for trial. The bill of indictment bore the original case no. 48529 and stated that the proceedings in that case had been initiated on 8 February 1995. The applicant's trial started on 20 December 1999.", "By a judgment of 31 March 2000 the City Court acquitted the applicant of the new charge. 87. On 26 June 2000 the applicant was released from prison following an amnesty declared on 26 May 2000. II. RELEVANT DOMESTIC LAW 88.", "A. Constitution of the Russian Federation Point 6 (2) of Section 2 “Until criminal-procedural legislation of the Russian Federation has been brought into line with the provisions of this Constitution, the previous procedure for the arrest, detention and keeping in custody of persons suspected of committing a crime shall apply.” 89. B. Code of Criminal Procedure Article 11 (1): Personal inviolability “No one may be arrested otherwise than on the basis of a judicial decision or a prosecutor's order.” Article 89 (1): Application of preventive measures “When there are sufficient grounds for believing that an accused person may evade an inquiry, preliminary investigation or trial or will obstruct the establishment of the truth in a criminal case or will engage in criminal activity, as well as in order to secure the execution of a sentence, the person conducting the inquiry, the investigator, the prosecutor and the court may apply one of the following preventive measures in respect of the accused: a written undertaking not to leave a specified place, a personal guarantee or a guarantee by a public organisation, or placement in custody.” Article 92 : Order and decision on the application of a preventive measure “On the application of a preventive measure a person conducting an inquiry, an investigator and a prosecutor shall make a reasoned order, and a court shall give a reasoned decision specifying the criminal offence which the individual concerned is suspected of having committed, as well as the grounds for choosing the preventive measure applied. The order or decision shall be notified to the person concerned, to whom at the same time the procedure for appealing against the application of the preventive measure shall be explained.", "A copy of the order or decision on the application of the preventive measure shall be immediately handed to the person concerned.” Article 96: Placement in custody “Placement in custody as a preventive measure shall be done in accordance with the requirements of Article 11 of this Code concerning criminal offences for which the law prescribes a penalty in the form of deprivation of freedom for a period of more than one year. In exceptional cases, this preventive measure may be applied in criminal matters for which a penalty in the form of deprivation of freedom for a period of less than one year is prescribed by law.” Article 97: Time-limits for pre-trial detention “A period of detention during the investigation of offences in criminal cases may not last longer than two months. This time-limit may be extended by up to three months by a district or municipal prosecutor ... if it is impossible to complete the investigation and there are no grounds for altering the preventive measure. A further extension of up to six months from the day of placement in custody may be effected only in cases of special complexity by a prosecutor of a constituent part of the Russian Federation ... An extension of the time-limit for such detention beyond six months shall be permissible in exceptional cases and solely in respect of persons accused of committing serious or very serious criminal offences. Such an extension shall be effected by a deputy of the Prosecutor General of the Russian Federation (up to one year) and by the Prosecutor General of the Russian Federation (up to 18 months).", "No further extension of the time-limit shall be permissible, and the accused held in custody shall be releasable immediately. The documents of a completed investigation in a criminal case shall be produced for consultation by the accused and his defence counsel not later than one month before the expiry of the maximum time-limit for remand in custody, as prescribed in the second paragraph of the present Article. In the event of the accused being unable to consult the case documents before the expiry of the maximum time-limit for remand in custody, the Prosecutor General of the Russian Federation, [or] a prosecutor of a constituent part of the Russian Federation ... may, not later than five days before the expiry of the maximum time-limit for remand in custody, apply to the judge of the “oblast”, “krai” or comparable court for an extension of this time-limit. Not later than five days from the day of receipt of the application, the judge must take one of the following decisions: 1. to extend the time-limit for remand in custody until the accused and his counsel have consulted the case documents and the case has been referred to the trial court by the prosecutor but, anyway, for not more than six months; 2. to reject the prosecutor's application and to release the person concerned from custody. Under the same procedure, the time-limit for remand in custody may be extended, if necessary, to accede to a request by the accused or his counsel to pursue the preliminary investigation further.", "If a court remits a case for further investigation when the time-limit for the accused's remand in custody has expired, but the circumstances of the case preclude any modification of the custody measure, the time-limit for the remand in custody shall be extended by the prosecutor supervising the investigation for up to one month from the date on which the case reaches him. Any further extension of the time-limit shall take account of the time spent by the accused in custody before the referral of the case to court, and shall be effected in the manner and within the limits prescribed in the first and second paragraphs of this Article. An extension of the time-limit for remand in custody in accordance with the present Article is subject to appeal to a court and to judicial review of its legality and justification under the procedure provided for in Articles 220¹ and 220² of the present Code.” Article 101: Cancellation or modification of a preventive measure “A preventive measure shall be cancelled when it ceases to be necessary, or else changed into a stricter or a milder one if the circumstances of the case so require. The cancellation or modification of a preventive measure shall be effected by a reasoned order of the person carrying out the inquiry, the investigator or the prosecutor, or by a reasoned court decision after the case has been transferred to a court. The cancellation or modification, by the person conducting the inquiry or by the investigator, of a preventive measure chosen on the prosecutor's instructions shall be permissible only with the prosecutor's approval.” Article 223-1: Setting a date for a court hearing “If the accused is kept in custody, the question of setting a date for a court hearing must be decided no later than 14 days from the seizure of the court.” Article 239: Time-limits for examination of the case “The examination of a case before the court must start no later than 14 days from the fixing of a hearing date.” 90.", "C. Federal Law on the Detention on Remand of Suspects and Persons Accused of Offences According to Article 21 of this Law, applications and complaints of suspects and accused persons to State agencies, bodies of local self-government and non-governmental organisations are sent through the administration of the detention facility. Applications and complaints addressed to a public prosecutor, a court or other State agencies supervising detention facilities for suspects and accused persons are not subject to censorship and will be forwarded to the addressee in a sealed envelope no later than the next working day. III. RESERVATION OF THE RUSSIAN FEDERATION 91. The instrument of ratification of the Convention deposited by the Russian Federation on 5 May 1998 contains the following reservation: “In accordance with Article 64 of the Convention, the Russian Federation declares that the provisions of Article 5 paragraphs 3 and 4 shall not prevent ... the temporary application, sanctioned by the second paragraph of point 6 of Section Two of the 1993 Constitution of the Russian Federation, of the procedure for the arrest, holding in custody and detention of persons suspected of having committed a criminal offence, established by Article 11 paragraph 1, Article 89 paragraph 1, Articles 90, 92, 96, 96‑1, 96-2, 97, 101 and 122 of the RSFSR Code of Criminal Procedure of 27 October 1960, with subsequent amendments and additions.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 92. The applicant complained about his conditions of detention in the Magadan detention facility IZ-47/1. He invoked Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The applicant referred in particular to the overcrowding and insanitary conditions in his cell, as well as the length of the period during which he was detained in such conditions, which had an adverse effect on his physical health and caused humiliation and suffering. 93. The Government argued that the applicant's conditions of detention could not be regarded as torture or inhuman or degrading treatment.", "The conditions did not differ from, or at least were no worse than those of most detainees in Russia. Overcrowding was a problem in pre-trial detention facilities in general. The authorities had had no intention of causing physical suffering to the applicant or of harming his health. The administration of the detention facility took all available measures to provide medical treatment for those persons suffering from any disease and to prevent the contagion of other inmates. 94.", "It was acknowledged that, for economic reasons, conditions of detention in Russia were very unsatisfactory and fell below the requirements set for penitentiary establishments in other member States of the Council of Europe. However, the Government were doing their best to improve conditions of detention in Russia. They had adopted a number of task programmes aimed at the construction of new pre-trial detention facilities, the re-construction of the existing ones and the elimination of tuberculosis and other infectious diseases in prisons. The implementation of these programmes would allow for a two-fold increase of space for prisoners and for the improvement of sanitary conditions in pre-trial detention facilities. 95.", "The Court recalls that, Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour (see, for example, Labita v. Italy [GC], no 26772/95, § 119, ECHR 2000-IV). The Court further recalls 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 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, the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, § 162).", "The Court has considered treatment to be “inhuman” because, inter alia, is was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feeling of fear, anguish and inferiority capable of humiliating and debasing them (see, for example, Kudla v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). In considering whether a particular form of treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see, for example, the Raninen v. Finland judgment of 16 December 1997, Reports of Judgments and Decisions, 1997-VIII, pp. 2821-22, § 55).", "However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see, for example, Peers v. Greece, no. 28524/95, § 74, ECHR 2001-III). 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 on remand 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. Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of 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 Kudla v. Poland cited above, §§ 92-94). 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). 96.", "In the present case, the Court notes that the applicant was held in the Magadan detention facility IZ-47/1 from 29 June 1995 to 20 October 1999, and from 9 December 1999 to 26 June 2000. It recalls that, according to the generally recognised principles of international law, the Convention is binding on the Contracting States only in respect of facts occurring after its entry into force. The Convention entered into force in respect of Russia on 5 May 1998. However, in assessing the effect on the applicant of his conditions of detention, which were generally the same throughout his period of detention, both on remand and following his conviction, the Court may also have regard to the overall period during which he was detained, including the period prior to 5 May 1998. 97.", "The Court notes from the outset that the cell in which the applicant was detained measured between 17 m² (according to the applicant) and 20.8 m² (according to the Government). It was equipped with bunk-beds and was designed for 8 inmates. It may be questioned whether such accommodation could be regarded as attaining acceptable standards. In this connection the Court recalls that the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment (“the CPT”) has set 7 m² per prisoner as an approximate, desirable guideline for a detention cell (see the 2nd General Report - CPT/Inf (92) 3, § 43), i.e. 56 m² for 8 inmates.", "Despite the fact that the cell was designed for 8 inmates, according to the applicant's submissions to the Court the usual number of inmates in his cell throughout his detention was between 18 and 24 persons. In his application for release from custody of 27 December 1996, the applicant stated that there were 21 inmates in his 8-bed cell. In a similar application of 8 June 1999, he referred to 18 inmates (see paragraphs 43 and 73 above). The Court notes that the Government, for their part, acknowledged that, due to the general overcrowding of the detention facility, each bed in the cells was used by 2 or 3 inmates. Meanwhile, they appear to disagree with the applicant as to the number of inmates.", "In their submission there were 11 or more inmates in the applicant's cell at any given time and that normally the number of inmates was 14. However, the Government did not submit any evidence to substantiate their contention. According to the applicant, it was only in March-April 2000 that the number of inmates was reduced to 11. The Court does not find it necessary to resolve the disagreement between the Government and the applicant on this point. The figures submitted suggest that that any given time there was 0.9-1,9 m² of space per inmate in the applicant's cell.", "Thus, in the Court's view, the cell was continuously, severely overcrowded. This state of affairs in itself raises an issue under Article 3 of the Convention. Moreover, on account of the acute overcrowding, the inmates in the applicant's cell had to sleep taking turns, on the basis of eight-hour shifts of sleep per prisoner. It appears from his request for release from custody on 16 June 1999, that at that time he was sharing his bed with two other inmates (see paragraph 74 above). Sleeping conditions were further aggravated by the constant lighting in the cell, as well as the general commotion and noise from the large number of inmates.", "The resulting deprivation of sleep must have constituted a heavy physical and psychological burden on the applicant. The Court further observes the absence of adequate ventilation in the applicant's cell which held an excessive number of inmates and who apparently were permitted to smoke in the cell. Although the applicant was allowed outdoor activity for one or two hours a day, the rest of the time he was confined to his cell, with a very limited space for himself and a stuffy atmosphere. 98. The Court next notes that the applicant's cell was infested with pests and that during his detention no anti-infestation treatment was effected in his cell.", "The Government conceded that infestation of detention facilities with insects was a problem, and referred to the 1989 ministerial guideline obliging detention facilities to take disinfection measures. However, it does not appear that this was done in the applicant's cell. Throughout his detention the applicant contracted various skin diseases and fungal infections, in particular during the years 1996, 1997 and 1999, necessitating recesses in the trial. While it is true that the applicant received treatment for these diseases, their recurrence suggests that the very poor conditions in the cell facilitating their propagation remained unchanged. The Court also notes with grave concern that the applicant was detained on occasions with persons suffering from syphilis and tuberculosis, although the Government stressed that contagion was prevented.", "99. An additional aspect of the crammed and insanitary conditions described above was the toilet facilities. A partition measuring 1,1 meters in height separated the lavatory pan in the corner of the cell from a wash stand next to it, but not from the living area. There was no screen at the entrance to the toilet. The applicant had thus to use the toilet in the presence of other inmates and be present while the toilet was being used by his cellmates.", "The photographs provided by the Government show a filthy, dilapidated cell and toilet area, with no real privacy. Whilst the Court notes with satisfaction the major improvements that have apparently been made to the area of the Magadan detention facility where the applicant's cell was located (as shown in the video recording which they submitted to the Court), this does not detract from the wholly unacceptable conditions which the applicant clearly had to endure at the material time. 100. The applicant's conditions of detention were also a matter of concern for the trial court examining his case. In April and June 1999 it requested medical expert opinions on the effect of the conditions of detention on his mental and physical health after nearly 4 years of detention in order to determine whether he was unfit to take part in the proceedings and whether he should be hospitalised (see paragraphs 71 and 76 above).", "Even though the experts answered both questions in the negative, the Court notes their conclusions of July 1999, listing the various medical conditions from which the applicant suffered, i.e. neurocirculatory dystonia, astheno-neurotic syndrome, chronic gastroduodenitis, a fungal infection on his feet, hands and groin and mycosis (see paragraph 30 above). 101. The Court accepts that in the present case there is no indication that there was a positive intention of humiliating or debasing the applicant. However, 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 exclude a finding of violation of Article 3 (see Peers v. Greece cited above).", "It considers that the conditions of detention, which the applicant had to endure for approximately 4 years and 10 months, must have caused him considerable mental suffering, diminishing his human dignity and arousing in him such feelings as to cause humiliation and debasement. 102. In the light of the above, the Court finds the applicant's conditions of detention, in particular the severely overcrowded and insanitary environment and its detrimental effect on the applicant's health and well-being, combined with the length of the period during which the applicant was detained in such conditions, amounted to degrading treatment. 103. Accordingly, there has been a violation of Article 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 104. The applicant complained that his lengthy pre-trial detention violated 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.” A. The Government's preliminary objection 105.", "The Government argued that the applicant's complaint should be examined in the light of the Russian reservation. It was submitted that the reservation applied both to the period of the applicant's detention during the preliminary investigation and the court proceedings. They referred to the text of the reservation and the contents of the Articles of the Code of Criminal Procedure cited therein. In particular, Articles 11, 89, 92 and 101 of the Code (see paragraph 89 above) conferred a power on the courts to apply preventive custody measures at the trial stage up until the delivery of a judgment. 106.", "The applicant submitted that the Russian reservation was not applicable in the present case as the reservation did not concern the length of detention on remand. It was contended that the purpose of the reservation was to preserve the right of the prosecutor to order detention on remand and to grant extensions of such detention when necessary. 107. The Court observes that the reservation is framed to exclude from the scope of Article 5 § 3 of the Convention the temporary application of specific provisions of the Code of Criminal Procedure, mentioned in the text of the reservation, concerning the procedure for the arrest, holding in custody and detention of persons suspected of having committed a criminal offence. The provisions lay down the conditions and modalities for the application of preventive measures, including placement in custody, and list the authorities competent to take the respective decisions.", "The Court notes that the reservation refers to Article 97 of the Code of Criminal Procedure under which a person can be detained in custody for up to 18 months during the investigation of criminal offences by an order of the competent prosecutor. Notwithstanding the reference to the time-limits of detention during the investigative stage, the Court observes that the reservation is concerned with the procedure for applying preventive custody measures, whereas the applicant's complaint relates to the length of his detention on remand and not its lawfulness. 108. The Court therefore finds that the reservation in question does not apply in the present case. B.", "Merits of the complaint 1. Period to be taken into consideration 109. It was undisputed that the period to be considered began on 29 June 1995 when the applicant was placed in detention on remand. As regards the end of the period concerned, the applicant submitted that the relevant date was 31 March 2000, when the Magadan City Court issued its second judgment in the case. The Government contended that the period ended on 3 August 1999 with the delivery of the first judgment of the City Court.", "They also maintained that the Court's examination of the length of the applicant's detention on remand should be limited to the period from 5 May 1998, the date on which the Convention entered into force in respect of Russia, until 3 August 1999. 110. The Court first recalls that, in determining the length of detention pending trial under Article 5 § 3 of the Convention, the period to be taken into consideration begins on the day the accused is taken into custody and ends on the day when the charge is determined, even if only by a court of first instance (see, among other authorities, the Wemhoff v. Germany judgment of 27 June 1968, Series A no. 7, p. 23, § 9, and Labita v. Italy cited above, § 147). Thus, in the present case the applicant's detention on remand began on 29 June 1995, when he was arrested, and ended on 3 August 1999, when he was convicted and sentenced by the Magadan City Court.", "The further remand on outstanding charges did not alter the fact that, as of 3 August 1999, the applicant was serving a sentence after his conviction by a competent court, within the meaning of Article 5 § 1 (a) of the Convention. The total period of the applicant's detention of remand amounted thus to four years, one month and four days. 111. As the period before 5 May 1998 lies outside its jurisdiction ratione temporis, the Court can only consider the period of one year, two months and twenty-nine days, which elapsed between that date and the judgment of the Magadan City Court of 3 August 1999. However, it must take into account the fact that by 5 May 1998 the applicant, having been placed in detention on 29 June 1995, had already been in custody for two years, ten months and six days (see, for example, mutatis mutandis, the Mansur v. Turkey judgment of 8 June 1995, Series A, no.", "319-B, p. 49, § 51). 2. Reasonableness of the length of detention (a) The parties' submissions 112. The applicant maintained that it was not necessary to take him into custody and to keep him in detention for an extended period of time as there was no proof that he was trying to obstruct the establishment of the truth in the case. The reasons given by the authorities to justify his detention were not relevant or sufficient.", "He also submitted that his case was not particularly complex, as established by the Magadan Regional Court on 15 March 1999. Three of the nine volumes of the case-file were made up entirely of his complaints to the various authorities. The investigation involved the questioning of 29 witnesses and there were two civil plaintiffs in the case. Finally, the applicant argued that the proceedings were not conducted with due diligence by the authorities. His lengthy detention was occasioned by the poor quality of the investigation, its unwarranted attempts to increase the number of counts in the indictment and a lack of proper control over its activities by the supervising bodies.", "In this respect, he referred to the findings of the Magadan City Court on 3 August 1999 (paragraph 80 above). 113. The Government pointed out that the applicant was arrested on the ground that he had obstructed the investigation of the truth. They further regarded the period of the applicant's pre-trial detention as reasonable in view of the complexity of the case, its considerable size (9 volumes) and the large number of witnesses and victims involved. (b) The Court's assessment (i) Principles established by the Court's case-law 114.", "The Court recalls that the question of whether or not a period of detention is reasonable cannot be assessed in the abstract. Whether it is reasonable for an accused to remain in detention must be examined in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudla v. Poland cited above, § 110). It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for or against the existence of the above-mentioned requirement of public interest justifying a departure from the rule in Article 5, and must set them out in their decisions on the applications for release.", "It is essentially on the basis of the reasons given in these decisions, and any well-documented facts stated by the applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see, for example, Labita v. Italy cited above, § 152). The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. The Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings. The complexity and special characteristics of the investigation are factors to be considered in this respect (see, for example, the Scott v. Spain judgment of 18 December 1996, Reports 1996‑VI, pp.", "2399-2400, § 74, and I.A. v. France judgment of 23 September 1998, Reports 1998-VII, p. 2978, § 102). (ii) Application of the above principles to the present case (α) Grounds for detention 115. During the period covered by the Court's jurisdiction ratione temporis the Magadan City Court, in refusing to release the applicant, relied on the gravity of the charges against him and the danger of his obstructing the establishment of the truth while at liberty (see paragraph 69 above). The Court observes that similar grounds had been cited by the City Court earlier - on 27 December 1996 and 8 August 1997 - to justify the applicant's continued detention (see paragraphs 43 and 46 above).", "It further notes that the principal reason for the decision to place the applicant in detention on remand on 29 June 1995 was that he had obstructed the investigation of the case by refusing to turn over certain bank documents necessary for the investigation, he had brought pressure to bear on witnesses and had allegedly tampered with the evidence. The decision also had regard to the gravity of the charges. 116. The Court recalls that the existence of a strong suspicion of the involvement of a person in serious offences, while constituting a relevant factor, cannot alone justify a long period of pre-trial detention (see, for example, the Scott v. Spain judgment cited above, p. 2401, § 78). As regards the other ground relied on by the Magadan City Court in prolonging the applicant's detention, namely the danger of obstructing the examination of the case, the Court notes that, unlike the order of the investigator of 29 June 1995, the City Court did not mention any factual circumstances underpinning its conclusions, which were identical both in 1996, 1997 and 1999.", "There is no reference in its rulings to any factor capable of showing that the risk relied on actually persisted during the relevant period. 117. The Court accepts that the interference with the investigation, along with the suspicion that the applicant had committed the offences with which he was charged, could initially suffice to warrant the applicant's detention. However, as the proceedings progressed and the collection of the evidence became complete that ground inevitably became less relevant. 118.", "In sum, the Court finds that the reasons relied on by the authorities to justify the applicant's detention, although relevant and sufficient initially, lost this character as time passed. (β) Conduct of the proceedings 119. As regards the duration of the criminal investigation, the Court notes the findings of the domestic courts that the case was not particularly complex and that the investigation of the case had been of poor quality contributing to a delay in the proceedings (see paragraphs 69 and 80 above). The Court finds no reason to come to a different conclusion. It also observes that, according to the domestic courts, the investigators had unjustifiably attempted to increase the number of counts in the indictment (see paragraph 80 above) - a reproach which is borne out by the fact that only one of the nine charges against the applicant was found to be substantiated in the judgment of the Magadan City Court on 3 August 1999.", "120. As regards the subsequent judicial proceedings, the Court observes that there were significant delays in the proceedings before the Magadan City Court. The trial, which had began on 11 November 1996, was adjourned on 7 May 1997 due to the removal from office of the presiding judge. It did not resume until 15 April 1999, although certain procedural steps were taken in July-August 1997 (the appointment of a new judge and scheduling of a hearing), May and July 1998 (the transfer of the case to another court), November 1998 (the scheduling of a hearing), January and March 1998 (decisions on the need for further investigation). While it is true that the hearing scheduled for 8 August 1997 had to be postponed on account of the absence of the applicant's lawyer and the applicant objected to the transfer of his case to another court - a move destined to expedite the proceedings - the Court finds that the applicant did not substantially contribute to the length of the proceedings between the two trial periods, where there was no progress in the case.", "It is thus apparent that the protracted proceedings are attributable neither to the complexity of the case nor the conduct of the applicant. Having regard to the characteristics of the investigation and the substantial delays in the court proceedings, the Court considers that the authorities did not act with all due expedition. (γ) Conclusion 121. Against the above background, the Court finds that the period spent by the applicant in detention pending trial exceeded a “reasonable time”. There has thus been a violation of Article 5 § 3 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 122. The applicant complained that the criminal charges against him were not determined within a reasonable time, as required by Article 6 § 1 of the Convention, the relevant part of which reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] tribunal established by law.” A. Period to be taken into consideration 123. The applicant submitted that the period to be taken into account began on 8 February 1995, with the institution of the criminal proceedings against him, and ended on 31 March 2000, when the Magadan City Court delivered its second judgment in the case.", "The Government contended that the period to be considered lasted from the transmission of the applicant's case to the Magadan City Court on 6 February 1996 until the pronouncement of its first judgment on 3 August 1999. 124. The Court recalls that the period to be taken into consideration in determining the length of criminal proceedings begins with the day on which a person is “charged” within the autonomous and substantive meaning to be given to that term (see, among other authorities, the Corigliano v. Italy judgment of 10 December 1982, Series A no. 57, p. 13, § 34, and the Imbrioscia v. Switzerland judgment of 24 November 1993, Series A no. 275, p. 13, § 36).", "It ends with the day on which a charge is finally determined or the proceedings are discontinued. The period under consideration in the present case thus began on 8 February 1995, when the applicant became a suspect on charges of misappropriation. As regards the end of the period, the Court notes that, following the decision to discontinue the remaining charges on 29 September 1999, after the City Court judgment of 3 August 1999, a new charge was brought against the applicant on 30 September 1999 on the basis of the same set of facts. It observes that the new charge was part of the original criminal case no. 48529, which had been initiated on 8 September 1995.", "In these circumstances and taking account of the timing of the new charge, the Court finds that the period to be considered ended on 31 March 2000, when the City Court delivered its judgment determining the final charge. The period under consideration, i.e. from 8 February 1995 until 31 March 2000, amounted thus to a total of 5 years, 1 month and 23 days for, in effect, one level of jurisdiction, despite numerous ancillary proceedings. While its jurisdiction ratione temporis only covers the period after the entry into force of the Convention with respect to Russia on 5 May 1998, the Court may take into account the state of the proceedings existing on that date (see, among other authorities, mutatis mutandis, the Yağci and Sargin v. Turkey judgment of 8 June 1995, Series A no. 319-A, p. 16, § 40).", "B. Reasonableness of the length of the proceedings 125. The Court recalls that the reasonableness of the length of the proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court's case-law, in particular the complexity of the case, the applicant's conduct and the conduct of the competent authorities. On the latter point, what is at stake for the applicant has also to be taken into consideration (see, among many other authorities, Kudla v. Poland cited above, § 124). 1. The parties' submissions 126.", "As to the complexity of the case, the applicant referred to the finding of the Magadan Regional Court on 15 March 1999 that the case was not particularly complex and that this could not justify the delays which had occurred. As regards his conduct, the applicant submitted that his complaints were aimed at accelerating the proceedings. Moreover, his active co-operation with the judiciary is not required under Article 6 of the Convention, nor can his attempt to pursue legal remedies be held against him. As to the conduct of the authorities, the applicant referred to the poor quality of the preliminary investigation and the investigative shortcomings as established by the Magadan City Court on 3 August 1999. In addition, the City Court itself breached domestic procedural law by failing to comply with the time-limits for the start of the trial stipulated in Articles 223-1 and 239 of the Code of Criminal Procedure.", "It was pointed out that at the trial the court questioned only nine witnesses. The applicant also referred to the removal of the judge from his case, which had nothing to do with him, and to the transfer of his case to the Khasynskiy District Court which proved ineffective in accelerating the case. 127. The Government acknowledged that the examination of the applicant's case lasted a long time, but submitted that the period was not unreasonable. It was maintained that the lengthy examination of the applicant's case was caused by its complexity and volume, as well as the need for its thorough and comprehensive investigation.", "Furthermore, the applicant contributed to the length of the proceedings by filing multiple applications, including repeated requests on motions which had been previously rejected. The Government referred in this respect to the findings of the Magadan City Court of 15 July 1999 and 22 July 1999 where it was considered that the applicant's numerous requests filed during the trial amounted to a deliberate attempt to delay the proceedings. The applicant's petitions for a transfer of his case to another court between hearings also caused delay. It was pointed out that 30% of the applicant's case-file was made up of his complaints and motions. The Government also pointed out that the period of the applicant's custody was subsumed by the term of his sentence.", "Therefore, the length of the applicant's detention on remand had no impact on the overall period of his confinement. Finally, the Government stated that the authorities demonstrated a humane attitude towards the applicant by way of an amnesty, which released him earlier from his sentence, even though he had not compensated the bank and its many customers for the damage he had caused. 2. The Court's assessment (a) Complexity of the case 128. The Court notes that the proceedings in issue, in which the applicant was the only defendant, concerned financial offences with considerable evidence, involving the questioning of a number witnesses.", "It observes, however, that from 7 May 1997, when the trial was adjourned, until 15 April 1999, when it resumed, no investigative measures were undertaken. The Court observes the finding of the domestic court that the case was not so complex as to justify the delays in the proceedings (see paragraph 69 above). It was thus not the complexity of the case or the requirements of the investigation which accounted for the length of the proceedings. (b) Conduct of the applicant 129. The Court notes that throughout the domestic court proceedings the applicant filed numerous requests in connection with his case, both during his trial and between hearings.", "It recalls that Article 6 does not require a person charged with a criminal offence to co-operate actively with the judicial authorities (see, for example, the Dobbertin v. France judgment of 25 February 1993, Series A no. 256-D, p. 117, § 43). It observes that the applicant's applications lodged during the trial as of 15 April 1999 were found by the trial court to have been obstructive to the examination of his case. However, there is no indication that during other trial periods, i.e. from 11 November 1996 to 7 May 1997, and from 20 December 1999 to 31 March 2000, the applicant's behaviour could be said to have been in any way dilatory.", "As regards the requests lodged by the applicant between hearings, the Court notes that they related mainly to the prolonged failure of the trial court to examine his case. The Court cannot find that these requests contributed to slowing down the proceedings, in particular as they remained largely without effect. While it is true that in order to expedite the proceedings the applicant's case was transferred to another court, the applicant cannot be criticised for objecting to it after the transfer had resulted in no progress in his case. The Court also notes that once, on 8 August 1997, a hearing had to be postponed as the applicant's lawyer had failed to appear. 130.", "The Court considers that, whilst the applicant can be held responsible for certain delays, his conduct did not contribute substantially to the length of the proceedings. (c) Conduct of the national authorities 131. As already mentioned above, there were significant delays in the domestic proceedings, which could not be explained by the complexity of the case or the conduct of the applicant. In particular, the case lay practically dormant before the trial court for nearly two years, i.e. from 7 May 1997 to 15 April 1999.", "132. The Court observes that throughout the proceedings the applicant was kept in custody - a fact which required particular diligence on the part of the courts dealing with the case to administer justice expeditiously. 133. The Court further notes that, following the judgment of the Magadan City Court on 3 August 1999 and the decision to discontinue the remaining charges on 29 September 1999, the authorities brought a new charge against the applicant on the basis of the same set of facts, thereby contributing even further to the length of the proceedings, which had already lasted for over four and a half years at the court of first instance. 134.", "It considers that the authorities failed in their duty of special diligence, particularly after the entry into force of the Convention on 5 May 1998. 3. Conclusion 135. Having regard to the above background, the Court considers that the length of the proceedings did not satisfy the “reasonable time” requirement. Accordingly, there has been a breach of Article 6 § 1 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 136. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the 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 137. The applicant claimed damages in respect of the following items: (1) 130,599 US dollars (“USD”) for loss of salary as the president of the North East Commercial Bank, during the period of his detention from July 1995 until 20 April 2000; (2) USD 203,000 for loss of salary from another company which dismissed him because of his arrest; (3) USD 500,000 for the loss of his company's property following his arrest; (4) USD 8,600 for the loss of his automobile; (5) USD 11,734,376 for the loss of profits on shares which he could not sell at their market value in 1995; (6) USD 436,226 for the loss of his majority shares in a factory which was declared bankrupt in 1997. His overall claim for pecuniary damages totalled USD 13,012,702.", "138. The Government contested these claims. 139. The Court recalls that it will award monetary compensation under Article 41 only where it is satisfied that the loss or damage complained of was actually caused by the violation it has found. As regards the claim under item (1), the Court notes that the applicant was convicted and that the period of his pre-trial detention was deducted in its entirety from the sentence.", "It considers therefore that the claim cannot be entertained. As regards the remainder of the claims, the Court considers that no causal connection has been established between the damage alleged and the violations it has found. The Court therefore rejects the applicant's claim under this head. B. Non-pecuniary damage 140. The applicant claimed 9,636,000 French francs for non-pecuniary damage.", "141. The Government submitted that the claim was excessive and that the finding of a violation would constitute sufficient satisfaction. 142. The Court considers that the length of the applicant's detention on remand in such prison conditions, as well as the length of the criminal proceedings, must have caused him feelings of frustration, uncertainty and anxiety which cannot be compensated solely by the finding of a violation. 143.", "Deciding on an equitable basis, the Court awards the applicant a global sum of 5,000 euros (“EUR”) in respect of non-pecuniary damage. C. Costs and expenses 144. The applicant submitted that his expenses for the services rendered by his lawyer in the domestic proceedings amounted approximately to 40,000 USD. 145. The Government considered this claim to be unsubstantiated and excessive, given the level of lawyers' fees at the relevant time in the remote Magadan region.", "They further questioned the authenticity of certain documents supplied by the applicant. It was also argued that the expenses borne by the applicant in the domestic proceedings should not be reimbursed as the applicant was found guilty and sentenced to a term of imprisonment. 146. The Court recalls that in order for costs and expenses to be included in an award under Article 41, it must be established that that they were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were reasonable as to quantum (see, for example, Nielsen and Johnson v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII).", "It is apparent from the material submitted that the applicant incurred legal costs and expenses in connection with his attempts to secure his release on bail. However, he only provided partial documentary substantiation of the sum claimed. Moreover, the costs incurred did not exclusively relate to the breaches of Articles 3, 5 § 3 and 6 § 1 of the Convention. Making an assessment on an equitable basis, the Court considers it reasonable to award the applicant the sum of 3,000 EUR under this head. D. Default interest 147.", "The Court considers that the default interest should be fixed at an annual rate equal to the marginal lending rate of the European Central Bank plus three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 3 of the Convention; 2. Holds that there has been a violation of Article 5 § 3 of the Convention; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement; (i) 5,000 EUR (five thousand euros) in respect of non-pecuniary damage; (ii) 3,000 EUR (three thousand euros) in respect of costs and expenses; (iii) any tax that may be chargeable on the above amounts; (b) that simple interest at an annual 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 15 July 2002, 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 separate concurring opinion of Mr Kovler is annexed to this judgment. JPCSD SEPARATE CONCURRING OPINION OF JUDGE KOVLER (Translation) In general I share my colleagues' opinion in this case.", "However, having regard to the legal importance of the Court's judgment, I consider it necessary to make certain remarks. 1. The reservation made by Russia in respect of Article 5 §§ 3 and 4 of the Convention concerning the application of certain provisions of the RSFSR Code of Criminal Procedure of 27 October 1960 (“CCP”), with the subsequent amendments to the procedure for the detention on remand of suspects, extends also to Article 97 on “Custodial periods” of the CCP, mentioned in the reservation along with other provisions of the CCP. I find it difficult, therefore, to justify the Court's conclusion in paragraph 108 of the judgment that the reservation does not cover part of the applicant's pre-trial detention. In my view, it would have been more appropriate for the Court to hold that the reservation at least extends to the period spent by the applicant in custody pending the criminal investigation.", "Nevertheless, it should be borne in mind that a broad construction of the text of the reservation as it applies to Article 97 of the CCP could result in certain findings that extensions of detention on remand beyond the time-limits set out in Sections 4-7 of Article 97 of the CCP are lawful: in cases where the defendant and his or her advocate cannot examine the case-file before the expiry of the maximum custody period, where the defendant and his or her advocate request further investigations or when a court remits a case for further investigations when the custody period has expired. In other words, Russia's reservation under Article 5 §§ 3 and 4 applies not only to the procedure for remand in custody (which, by the way, is being drastically modified as of 1 July 2002 when relevant provisions of the new CCP come into force), but also to other pre-trial custody periods. In this connection, it is necessary to determine whether “detention on remand” includes the time spent in custody after the criminal case has been transferred to the trial court. 2. Russian procedural law distinguishes between two types of detention on remand: preliminary detention pending the investigation («за следствием») and preliminary detention pending trial («за судом»).", "This difference is reflected in the law of 13 June 2001 which limited to six months the maximum length of court proceedings in criminal cases. However, in paragraph 110 of its judgment, the Court, with reference to its case-law, considered that detention on remand encompasses the whole pre-trial detention period, from the day when the individual is taken into custody until the trial court's verdict. After all, for a detainee locked up in an overcrowded prison cell, it makes little difference whether his or her detention is considered to be pending the investigation or pending the trial, or whether it was effected before or after the Convention came into force in respect of the respondent State. This difference could, however, be of importance for the Court, if the Court were to accept that a State's margin of appreciation is relevant to the determination of the reasonableness of custody periods. The applicant was remanded in custody pending the investigation from 29 June 1995 (the day when he was taken into custody) until 19 June 1996 (the day when the Regional Prosecutor's Office transferred the case to the Magadan City Court), i.e.", "eleven months and twenty-two days, which is less than the maximum period of eighteen months set out in Section 2 of Article 97 of the CCP, after which a defendant may be immediately released (Section 3 of Article 97 of CCP). This part of the applicant's detention cannot be imputed to the respondent State because it pre-dated the entry into force of the Convention in respect of Russia (incompatible ratione temporis). The applicant's detention pending the court proceedings lasted until 3 August 1999, when the Magadan City Court gave its first judgment, i.e. three years one month and twenty-one days (as the Court has established in paragraph 110 of its judgment, above). One should not forget that the delay in passing verdict and, consequently, the applicant's prolonged stay in custody, was partly attributable to the applicant's challenges to judges and his requests that the proceedings be conducted by a different court, as well as to the replacement of advocates and their failure to appear, which facts the Court implicitly accepts at paragraph 130 of its judgment.", "This delay totalled one year and three months. It would not, of course, justify the procedural delays caused by the courts themselves, but nonetheless creates a different picture of the applicant's detention pending trial. Finally, the remittance of the case for further investigation and the delivery by the Magadan City Court on 31 March 2000 of the second verdict extended the custody period by another seven months, in accordance with Section 7 of Article 97 of the CCP. However, in all, the applicant spent five years, one month and twenty-three days in custody, four years, nine months and two days of which were spent in Remand Centre No. 1 at Magadan.", "This cannot be considered to be a reasonable custody period for the purposes of Article 5 § 3 of the Convention, despite the circumstances I have mentioned above. Pursuant to Section 8 of Article 97 of the CCP, the applicant complained several times to the courts about the lawfulness and validity of his detention. He thereby exhausted, as required by Article 35 § 1 of the Convention, all the domestic remedies available to him in this respect. 3. As regards the issues under Article 6 § 1 of the Convention (a fair and public hearing within a reasonable time), the Court has, unfortunately, in my view disregarded the fact that the applicant did not make use of his right to lodge an appeal against the verdict of 3 August 1999; thus leaving open a question of exhaustion of domestic remedies.", "It is true, however, that the applicant's arguments are reinforced by the fact that this verdict was not final, given the further investigation and new verdict given on 31 March 2000. 4. Having regard to the above considerations, I consider it appropriate to concur with the opinion of my colleagues as to the violations of Articles 3, 5 § 3 and 6 § 1 of the Convention, but believe that the award of just satisfaction in paragraph 143 of the judgment should have been separately assessed in respect of the different violations found." ]

[ "SECOND SECTION CASE OF AZIENDA AGRICOLA SILVERFUNGHI S.A.S. AND OTHERS v. ITALY (Applications nos. 48357/07, 52677/07, 52687/07 and 52701/07) JUDGMENT STRASBOURG 24 June 2014 FINAL 24/09/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Azienda Agricola Silverfunghi S.a.s.", "and Others v. Italy, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Işıl Karakaş, President,Guido Raimondi,Nebojša Vučinić,Helen Keller,Paul Lemmens,Egidijus Kūris,Robert Spano, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 27 May 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in four applications (nos. 48357/07, 52677/0/07, 52687/07 and 52701/07) 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”) in 2007 by four firms with registred addresses in Italy (see Annex for details). 2. The applicant companies were represented by Ms Alessandra Mari, a lawyer practising in Rome.", "The Italian Government (“the Government”) were represented by their Agent Ms Ersiliagrazia Spatafora and their Co-Agent, Ms Paola Accardo. 3. The applicant companies alleged that they had suffered a violation of Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention as a result of legislative intervention in pending proceedings. 4.", "On 11 October 2012 the applications were communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. The background to the cases 5. The applicants are agricultural firms operating in northern and/or disadvantaged areas in Italy as defined in the relevant Italian laws.", "6. In the 1980s the Italian legislator instituted a series of norms to favour economic activity in general and, more specifically, agricultural activity. 7. More precisely, Article 1(6) of Law no. 48 of 1988 (Legislative Decree no.", "536 of 30 December 1987) (see “Relevant domestic law”, below) provided a concession (fiscalizzazione), namely, that as of 1 January 1987 the State would bear a portion of the contributions paid by employers in the agricultural sector for the purposes of Article 31(1) of Law no. 41/48 in respect of each employee. 8. Furthermore, Article 9(5) of Law No. 67 of 1988 (Legge finanziaria 1988) (see “Relevant domestic law” below) introduced a system of exemptions (sgravi contributivi) in respect of payments for the purposes of premiums and contributions related to welfare and assistance.", "Such payments were due in the measure of 15% (later 30%) by employers in the agricultural sector in northern regions and 40% (later 60%) by employers in the agricultural sector working in disadvantaged agricultural zones in the south of Italy. 9. According to the applicant companies, Article 9(6) of Law No. 67 of 1988 (see “Relevant domestic law” below) indicated that the latter benefit was not alternative to the one provided for by Law no. 48 of 1988.", "That sub-article specified that for the purposes of the calculation of the exemption mentioned above, the concession was not to be taken into account. This, they considered, was also clear from the explanatory memorandum (scheda di lettura) to the law (see “Relevant domestic law” below). 10. Following further normative changes between 1988 and 1996, the burden to be taken over by the State amounted to the following: a) 85,000 Italian lire (approximately 44 euros (EUR)) per employee for twelve monthly salaries; b) a global 5.62 percentage points for exemptions in respect of contributions for the purposes of TBC (Tuberculosis), ENAOLI (Orphans of Italian Employees) and the SSN (National Health Service); c) a global 4.92 percentage points for exemptions regarding the said contributions in respect of labourers and 5.02 percentage points for employees and directors, as from 1 June 1996. 11.", "Despite the law, by circular no. 160 of 18 July 1988 the Istituto Nazionale della Previdenza Sociale (“INPS”), an Italian welfare entity, considered that the two benefits (concession and exemption) could not be accumulated and had to be considered as alternative. 12. In fact, the applicant companies benefited only from the exemption (sgravi contributivi) and not from the concession (fiscalizzazione). They considered that this interpretation was contrary to what was provided for in the law.", "13. Indeed, from as early as 1994 a number of agricultural firms (in particular Floramiata Spa) instituted proceedings (following administrative refusals) complaining about the matter, and consistent case-law in favour of the agricultural firms was established by the Italian courts, including the Court of Cassation. The applicant companies submitted that between 1997 and 2003 more than twenty-five first-instance judgments and more than five appeal judgments on the same subject matter had been delivered, together with two Court of Cassation judgments (see “Relevant domestic law and practice”, below) finding in favour of the agricultural firms. 14. In this light, in 2000/2002 the applicant companies instituted proceedings as explained below.", "Pending these judicial proceedings Law no. 326 of 24 November 2003 (hereinafter Law no. 326/03) was enacted (see “Relevant domestic law” below), providing that the benefits could not be accumulated. 15. By judgment no.", "274 of 7 July 2006 the Constitutional Court considered that Law no. 326/03 was legitimate and not unconstitutional (see “Relevant domestic law and practice” below). B. The domestic proceedings instituted by the applicant companies 1. Azienda Agricola Silverfunghi S.a.s 16.", "On 7 November 2000 the applicant company requested the INPS to return the monies which it had held contrary to what was provided for by law when it failed to apply the concession in its respect, for the period between 1 April 1990 and 31 December 1997, amounting to 173,738,951 Italian lire (approximately EUR 90,000) plus interest and subject to revaluation. 17. The INPS’s failure to reply amounting to an implicit rejection (silenzio-rifiuto), on 26 June 2001 the applicant company instituted an administrative procedure before the INPS. The latter again failed to reply. 18.", "Thus, on 4 January 2002 the applicant company instituted judicial proceedings to recover the monies due (as mentioned above) for the period not covered by prescription (2000 onwards). 19. By a judgment (no. 56/2003) of 13 February 2003 the Bergamo Tribunal found in favour of the applicant company. Considering that the two benefits could be accumulated and that the applicant company had paid the relevant dues, it ordered the INPS to pay back the misappropriated sums (from 2000 onwards), with interest and subject to revaluation, and to pay its share of the costs of the proceedings.", "20. By a judgment (no. 276/03) of 25 September 2003 filed in the relevant registry on 4 November 2003 the Brescia Court of Appeal dismissed the INPS’s appeal and upheld the first-instance judgment. 21. Following the entry into force of Law no.", "326/03 the INPS appealed to the Court of Cassation. 22. The applicant company cross-appealed, arguing that the application of Law no. 326 of 24 November 2003 to its case would amount to a violation of Article 6 of the Convention and a violation of the Italian Constitution in so far as it obliged the State to abide by the European Convention, a matter which had not been considered at all by the Constitutional Court in its judgment of 7 July 2006. 23.", "By a judgment (no. 10110/07) filed in the relevant registry on 2 May 2007 the INPS’s appeal was allowed by the Court of Cassation on the basis of Law no. 326/03. The remaining grounds of appeal were dismissed on the basis that Law no. 326/03 had an authentic interpretative nature and was therefore only apparently retroactive, it having now been given the original intended meaning of the law.", "Indeed, as a thorough examination of the relevant laws revealed, the benefits at issue could not be awarded cumulatively; rather, one had to identify the most favourable benefits to a firm according to its specific position. Furthermore, the State had legitimate discretion to decide whether benefits could be granted cumulatively or not, thus no issue relating to a fair trial could be considered to arise. Each party was to bear its own costs for the entire proceedings. 2. Scarpellini S.r.l 24.", "On 9 July 2001 and again on 29 January 2002 the applicant company requested the INPS to return the monies which it had witheld contrary to what was provided for by law when it failed to apply the concession in its respect, for the period between 1 April 1990 and 31 December 1997, amounting to 413,928,856 Italian lire (approximately EUR 213,776) plus interest and subject to revaluation. 25. The INPS’s failure to reply amounting to an implicit rejection (silenzio-rifiuto), on 7 June 2002 the applicant company instituted an administrative procedure before the INPS. The latter again failed to reply. 26.", "Thus, on 11 June 2002 the applicant company instituted judicial proceedings to recover the monies due (as mentioned above) for the period not covered by prescription. 27. By a judgment (no. 58/2003) of 13 February 2003 the Bergamo Tribunal found in favour of the applicant company. Holding that the two benefits could be accumulated and that the applicant had paid the relevant dues, it ordered the INPS to pay back the misappropriated sums (from 2001 onwards, the date on which prescription was interrupted), with interest and subject to revaluation, and to pay its share of the costs of the proceedings.", "28. By a judgment (no. 277/03) of 25 September 2003 filed in the relevant registry on 4 November 2003 the Brescia Court of Appeal dismissed the INPS’s appeal and upheld the first-instance judgment. 29. Following the entry into force of Law no.", "326 of 24 November 2003 the INPS appealed to the Court of Cassation. 30. The applicant company cross-appealed along the lines mentioned above. 31. By a judgment (no.", "12863/07) filed in the relevant registry on 1 June 2007 the INPS’s appeal was allowed by the Court of Cassation on the basis of Law no. 326 of 24 November 2003. The remaining grounds of appeal were dismissed for the same reasons outlined above. Each party was to bear its own costs for the entire proceedings. 3.", "SAP Pietrafitta S.r.l. 32. On 14 and 30 July 1999 the applicant company requested the INPS to return the monies which it had withheld contrary to what was provided for by law when it failed to apply the concession in its respect, for the period between 1 January 1989 and 31 December 1997, amounting to 210,609,000 Italian lire (approximately EUR 108,770) plus interest and subject to revaluation. 33. The INPS failed to reply.", "34. Thus, on 25 January 2000 the applicant company instituted judicial proceedings to recover the monies due (as mentioned above) for the period not covered by prescription. 35. By a judgment (no. 8/2001) of 3 April 2001 the Siena Tribunal found in favour of the applicant company.", "Considering that the two benefits could be accumulated and that the applicant had paid the relevant dues, it ordered the INPS to pay back the misappropriated sums, with interest and revaluation (from 1999, the date of its administrative claim, onwards), together with the full costs of the proceedings. 36. By a judgment (no. 249/02) of 16 April 2002 filed in the relevant registry on 24 April 2002 the Florence Court of Appeal dismissed the INPS’s appeal and upheld the first-instance judgment. 37.", "Following the entry into force of Law no. 326 of 24 November 2003 the INPS appealed to the Court of Cassation. 38. The applicant company cross-appealed along the lines mentioned above. 39.", "By a judgment (no. 13291/07) filed in the relevant registry on 7 June 2007 the INPS’s appeal was allowed by the Court of Cassation on the basis of Law no. 326 of 24 November 2003. The remaining grounds of appeal were dismissed for the same reasons outlined above. Each party was to bear its own costs for the entire proceedings.", "4. Floricultura Zanchi 40. On 10 December 2001 the applicant company requested the INPS to return the monies which it had withheld contrary to what was provided for by law when it failed to apply the concession in its respect, for the period between 1 April 1991 and 31 December 1997, amounting to 163,373,972 Italian lire (approximately EUR 84,375) plus interest and revaluation. 41. The INPS’s failure to reply amounting to an implicit rejection (silenzio-rifiuto), on 15 May 2002 the applicant company instituted an administrative procedure before the INPS.", "The latter again failed to reply. 42. Thus, on 11 September 2002 the applicant company instituted judicial proceedings to recover the monies due (as mentioned above) for the period not covered by prescription (2001 onwards). 43. By a judgment (no.", "57/2003) of 13 February 2003 the Bergamo Tribunal found in favour of the applicant company. Considering that the two benefits could be accumulated and that the applicant had paid the relevant dues, it ordered the INPS to pay back the misappropriated sums, with interest and subject to revaluation (from 2001 onwards), and to pay its share of the costs of the proceedings. 44. By a judgment (no. 278/03) of 25 September 2003 filed in the relevant registry on 4 November 2003 the Brescia Court of Appeal dismissed the INPS’s appeal and upheld the first-instance judgment.", "45. Following the entry into force of Law no. 326 of 24 November 2003 the INPS appealed to the Court of Cassation. 46. The applicant company cross-appealed along the lines mentioned above.", "47. By a judgment (no. 12864/07) filed in the relevant registry on 1 June 2007 the INPS’s appeal was allowed by the Court of Cassation on the basis of Law no. 326 of 24 November 2003. The remaining grounds of appeal were dismissed for the same reasons outlined above.", "Each party was to bear its own costs for the entire proceedings. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Concession (fiscalizzazione degli oneri sociali) 48. Article 1(6) of Law no. 48 of 1988 (Legislative Decree no.", "536 of 30 December 1987) reads as follows: “A reduction of contributions for the purposes of Article 31 sub-article 1 of Law no. 41/48, of Lire 133.000 per employee, is granted to employers in the agricultural sector to run from 1 January 1987 throughout the salary period up to 30 November 1988, for every monthly payment up to the twelfth month included. Such a reduction does not apply to employers in the agricultural sector who operate in the territories mentioned in Article 1 of the laws on interventions in the South of Italy (il Mezzogiorno) (testo unico) approved by Decree no. 218 of the President of the Republic of 6 March 1978.” B. Exemptions (sgravi contributivi) 49.", "Article 9(5) and (6) of Law No. 67 of 1988 (legge finanziaria 1988) read as follows: “(5) As from 1 January 1988, premiums and contributions related to welfare and assistance in respect of employees, whether on indeterminate or determinate duration contracts, are due in the measure of 15% by their employers in the agricultural sector in Northern regions in accordance with Article 9 of Decree no. 601 of the President of the Republic of 29 September 1973. The said premiums and contributions are due in the measure of 40% by employers in the agricultural sector operating in disadvantaged agricultural zones as defined in Article 15 of Law no. 984 of 1977 and in the measure of 20% by employers in the agricultural sector operating in disadvantaged agricultural zones as defined in Article 1 of the laws on interventions in the South of Italy (il Mezzogiorno) (testo unico) approved by Decree no.", "218 of the President of the Republic of 6 March 1978. (6) For the purposes of the calculation of the exemption mentioned in sub-article 5, the concession (fiscalizzazione) provided for in Article 1 sub-articles 5 and 6 of Legislative Decree no. 536 of 30 December 1987 as modified by Law no. 48 of 1988, is not to be taken into account.” 50. According to the explanatory memorandum (scheda di lettura) in respect of sub-article 6, the amount of premiums and contributions due is arrived at by, firstly, calculating the percentage of exemption applicable according to the different rates provided by sub-article 5 of the text and subsequently subtracting the share, per head, of the concession and percentage established in sub-articles 5 and 6 of Article 1 of Legislative Decree 536/1987.", "C. Law no. 326 of 24 November 2003 51. Law no. 326 of 24 November 2003, entitled Urgent dispositions to favour development and to adjust the trend in public finances, in so far as relevant, reads as follows: “Article 9 sub-article 6 of Law No. 67 of 1988 together with any subsequent modifications, must be interpreted to the effect that the exemption referred to in its sub-article 5 (...) cannot be accumulated with the benefits provided for in (...) Law no.", "48 of 1988.” 52. According to the travaux préparatoires the law provided an authentic interpretation of the non-cumulability of the two benefits, in relation to which a significant number of proceedings had been instituted, with the courts taking the opposite view than that taken and applied in practice by the INPS. Thus, the norm was intended to avoid greater burdens than those which had been borne in previous years. D. Case-law before the enactment of Law no. 326 of 24 November 2003 1.", "Court of Cassation judgment no. 14227/00 of 14 July 2000 filed in the relevant registry on 27 October 2000 in the case of Floramiata Spa (upholding first-instance judgment no. 267/1996 of 31 October 1996 and judgment on appeal no. 85/1998 of 8 February 1998). 53.", "The Court of Cassation held that the two benefits (concessions and exemptions) were not incompatible. They had been provided for by different laws and had different aims. Thus, if a firm fulfilled the requirements to be eligible for both benefits, they could not be denied. It considered that the INPS had not submitted any relevant arguments, save for a reiteration of the text of the impugned law. According to the Court of Cassation, by means of Article 9(6) of Law No.", "67 of 1988, the legislator had wished to specify that the exemption was to be applied to the entire rate and not to the rate resulting after concession, thus excluding the incompatibility of the two benefits and presupposing the enjoyment of both contemporaneously. The Court of Cassation noted that when the legislator had wished to exclude the application of the concession to employers operating in the South, it had specifically done so (as in Legislative decree no. 536 of 1987). However, the legislator had made no mention of employers operating in disadvantaged areas in the North. 2.", "Court of Cassation judgment no. 17806/03 of 26 May 2003 filed in the relevant registry on 24 November 2003 54. The Court of Cassation reiterated its finding in judgment no. 14227/00 of 27 October 2000 (above), considering that there was no reason to depart from those conclusions. Moreover, it noted that the theory that, in general, benefits could not be granted cumulatively had been proved false even by Article 68 of Legislative Decree No.", "388 of 2000, which explicitly mentioned that certain benefits could not be granted cumulatively. Had it been a general principle no explicit statement by the legislator would have been required. E. Constitutional Court judgment no. 274 of 7 July 2006 regarding the constitutionality of Law no. 326 of 24 November 2003 55.", "The Constitutional Court noted that the legislator had intervened due to the uncertainty created by a well-established administrative practice and supervening case-law to the contrary ten years later. It considered that it was not necessary to verify whether the enacted law had been interpretative (thus retroactive) or innovative with retroactive effect. Indeed, the prohibition on applying laws retroactively was a constitutional norm only applicable to the criminal sphere. It considered that the legislator could enact both laws of authentic interpretation – which clarify and determine the extent of the original norm within the content of what was originally plausibly provided – and innovative ones with retroactive effect in so far as such retroactivity was reasonably justified and not in conflict with other values and interests protected by the Constitution. The Constitutional Court noted that a law of authentic interpretation could not be unreasonable in so far as it was limited to assigning to the provision to be interpreted a meaning which was already therein contained and which was one of the possible meanings of the original text.", "Indeed, in the present case, the prohibition on applying the benefits cumulatively had been one of the possible interpretations of Article 9(6) of Law No. 67 of 1988 which had immediately been contested by the INPS but which ten years later had been given another, indeed possible, meaning by the Court of Cassation. Given this state of uncertainty, the impugned law of authentic interpretation could not be considered unreasonable. F. More recent case-law - Court of Cassation judgment no. 21692 of 25 June 2008 56.", "In this judgment the domestic court was again faced with the interpretation of the laws concerning the cumulability of benefits, the constitutionality of Law no. 326/2003 and the subsequent implications under Article 6 of the Convention. 57. Confirming the interpretative nature of Law no. 326/2003, it considered that even if the law were ignored, the interpretation (of the relevant provisions) which conformed to the ratio legis was that of the non-cumulability of the benefits at issue.", "While it was true that the court had twice considered that benefits could be applied cumulatively if i) they were provided to see to different needs and ii) if the law did not expressly prohibit such accumulation, in the present case the reasons justifying the relevant reductions overlapped in part. This was evident from the object, function and method of calculation of the benefits at issue. Thus, had they been intended to be cumulative, it would have had to be expressly provided for in law or authorised. The fact that the benefits at issue were not cumulable was further confirmed by an assessment of the entire legal framework concerning the subject matter, including, for example, other benefits available to the agricultural sector in general. It followed that the enactment of Law no.", "326/2003 had no bearing on the interpretation of the provisions, and thus had no effects which were incompatible with Article 6 of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 58. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 59.", "The applicant companies complained that the enactment of Law no. 326/03 constituted a legislative interference in pending proceedings, in breach of their right to a fair trial as provided for by 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 ...” 60. The Government contested that argument. A. Admissibility 61. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It 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 companies’ submissions 62.", "The applicant companies relied on the Court’s principles regarding access to court and legislative intervention under Article 6 of the Convention, and referred in particular to the Court’s judgment in Scordino v. Italy (no. 1) ([GC], no. 36813/97, ECHR 2006‑V). They considered that there existed no legitimate reasons or compelling general interest reasons which could allow the Italian legislator to legitimately intervene in pending proceedings by enacting a law with retroactive effect concerning facts which had already come to be and proceedings which had already been initiated, thus usurping the function of the judiciary and violating the applicants’ right to a fair trial as well as impairing the very essence of the their right to a court. Indeed, the only reason behind the intervention had been financial, namely to avoid payments in a number of judgments, at first‑instance and on appeal, which had found in favour of the applicant companies and other companies in the same position.", "This was clear even from the name of the law – Urgent dispositions to favour development and to adjust the trend in public finances (Disposizioni urgenti per favorire lo sviluppo e la correzione dell’andamaneto dei conti pubblici). Without the intervention, and in accordance with the established case-law arising from a multitude of cases including judgments of the Court of Cassation, the applicant companies’ claims would have succeeded. However, the intervention ensured that, contrary to what had already been established, the INPS would be successful. 63. The applicant companies noted that the “interpretative” law was enacted fifteen years after the original law and in the absence of any divergent case-law.", "In fact, as from the year 1996 – with the first-instance judgment in the case of Floramiata Spa – until the legislative amendment, the domestic courts had consistently found in favour of companies in their situation. The established case-law had been based on the legislator’s intention, as transpired from the explanatory memorandum issued by the Parliament study service (servizio studi)[1], and the relevant travaux préparatoires[2], and it therefore could not be said that the enacted law was an interpretative law – its meaning having been totally clear to the parliamentarians. That case-law had established that the benefits could be accumulated both on the basis of the literal meaning of the applicable norms, which were considered to be unequivocal, and on the basis of the rationale behind the two benefits, which had a different function and operated at different levels. Indeed, the applicant companies noted that on the one hand concessions were an instrument adopted by the legislator in lieu of a direct grant of State aid to all firms[3] and on the other hand exemptions were direct benefits aimed at supporting employers in the agricultural sector who operated in zones and territories with particular disadvantages. They noted that the Court of Cassation had explicitly held that the two benefits were not incompatible and that they had been provided for by different laws and had different aims (see paragraph 53 and 54 above).", "In that light, according to the applicant companies, it could not have been considered an interpretative law and it had been referred to as such at the domestic level only to get away with a retroactive application of the law to accommodate the INPS, which had opted not to follow the evident meaning of the then applicable norms. 64. Moreover, interpretative laws had to be considered as an exception to the rule, particularly given the importance of the separation of powers upon which a democratic society was founded and which provided that it was for the judiciary to interpret and apply laws and therefore to decide disputes. This was even more relevant when a dispute arose between a private party and the public administration. Ergo, even interpretative laws could not be used as an instrument by the legislator to favour the public administration, that is, itself.", "However, in Italy it was common practice to introduce “interpretative” provisions in matters involving financial interests to secure higher income (or lower expenditure) for the public administration. They referred, for instance, to the various considerations made by the Court of Cassation (in its highest formation) in judgment no. 25506 of 2006 concerning similar circumstances. They further referred to the Court’s judgments in Maggio and Others v. Italy (nos. 46286/09, 52851/08, 53727/08, 54486/08 and 56001/08, 31 May 2011), Agrati and Others v. Italy (nos.", "43549/08, 6107/09 and 5087/09, 7 June 2011), Arras and Others v. Italy (no. 17972/07, 14 February 2012), and De Rosa v. Italy (nos. 52888/08, 58528/08, 59194/08, 60462/08, 60473/08, 60628/08, 61116/08, 61131/08, 61139/08, 61143/08, 610/09, 4995/09, 5068/09 and 5141/09, 11 December 2012) where the Court had found violations of Article 6 resulting from the retroactive application of various so-called interpretative provisions, enacted solely for financial reasons. 65. The applicant companies distinguished their case from that of National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom (nos.", "21319/03, 21449/93 and 21675/93, 23 October 1997, Reports of Judgments and Decisions 1997-VII). They noted that they had been induced into error by the INPS, which had immediately applied the law in the most favourable way to it. Nevertheless, certain companies, particularly Floramiata Spa, had immediately, as early as 1993, taken administrative and subsequently judicial action against the INPS to contest the latter’s interpretation of the law by circular no. 160 of 1988. At the time, the agricultural associations had kept abreast of the developments in the pending case, keeping their members informed.", "The applicant companies, however, admitted that it was only after the positive final outcome for Floramiata Spa, decided by the Court of Cassation in 2000 – the first time such a body had determined the subject matter at issue – that the four (sic) applicant companies had introduced their own administrative and subsequently judicial claims. The applicant companies argued that, in respect of the preceding years, they had chosen to pay the dues demanded by the INPS (calculated on the basis of the impugned interpretation) to avoid the severe financial civil sanctions which would have been applied to them automatically, as well as to avoid the risk of criminal proceedings being brought against them for failure to pay the relevant dues and any pursuant implications which could have led them into bankruptcy. 66. Nevertheless, the applicant companies considered that there were other factors which distinguished the instant case from the above-mentioned case where the United Kingdom Government and Parliament had officially and immediately declared their intention to correct the law by a norm of authentic interpretation which would have overcome the “technical defects” present in the original law. In the present case the legislator had introduced the “interpretative” law fifteen years after the enactment of the original law, during which time the Parliament had never raised any questions or doubts about the law.", "Moreover, the law had been introduced after at least (referring only to cases brought by the lawyers in the present case) 140 judgments (forty-three of which had become final, the INPS having failed to appeal) finding against the public entity, including two Court of Cassation judgments (see paragraphs 53 and 54 above), none of which had identified any “technical defects” in the formulation of the original law and none of which had referred to the even remote possibility of giving the self-evident law another interpretation. More importantly, the intention to do so had become apparent after the applicant companies had already obtained two judgments in their favour, at first-instance and on appeal. Furthermore, one could not ignore the difference between the attitude and manifest will of the United Kingdom Government and Parliament over the years and that of the Government in the present case. One also had to note the relationship between the Government and the INPS, an integral part of the State’s administration. Thus, it was reasonable to consider (even on the basis of the travaux préparatoires and other statements made in certain domestic judgments) that the INPS, having been unsuccessful in hundreds of proceedings, had itself solicited the executive to act in order to nullify the pronouncements against it, rendering devoid of any meaning the distinction between executive and judiciary, but enabling the improvement of its financial situation.", "Lastly, the Attorney General’s attitude towards the applicant companies’ case (see paragraph 68 below) also distinguished it from National & Provincial Building Society (cited above). 67. It followed that the same findings made by the Court in the above-mentioned case could not be made in the present case. It was rather the Government that had been opportunistic, hiding behind the excuse of the original intention of Parliament, despite judgments and materials indicating the contrary. 68.", "The applicant companies further submitted that in its judgment no. 274 of 7 July 2006 the Constitutional Court had not examined the constitutional legitimacy of the law on the basis of Article 6 of the Convention, namely the principle of a fair trial as also laid down in the Italian Constitution, and therefore it had not examined the constitutional legitimacy of the law in the light of the applicants’ arguments – the said analyses having become customary only after the 2009 judgment in Scoppola v. Italy (no. 2) ([GC], no. 10249/03, 17 September 2009). Indeed, in its judgment no.", "274 the Constitutional Court had made statements which were contradictory to the principles derived from Article 6, and moreover had not categorically stated that the norm was one of genuine interpretation (see paragraph 54 above). Furthermore, the relevance of the applicant companies’ arguments had been evident also to the Attorney General to the Court of Cassation (Procuratore Generale della Repubblica presso la Corte di Cassazione) who had not considered the challenge under Article 6 as manifestly irrelevant or ill-founded and who had made statements such as “the claimants’ reasonable expectation to see their claim granted” and “[the provision] influenced the judge’s decision”. (b) The Government’s submissions 69. The Government submitted that in allowing the INPS’s appeal, in which the latter had pleaded jus superveniens, the Court of Cassation had considered that the supervening law was one of authentic interpretation which had intervened in order to regulate the relationship between different benefits. It provided for the rule that facilitations or tax reductions in favour of agricultural firms situated in mountainous territories or disadvantaged agricultural zones could not be accumulated with benefits or tax reductions in favour of agricultural firms in the south of Italy, or with contributory concessions in respect of illness for the financing of the National Health Service.", "One had to determine which category of territory (Southern Italy, Central-North, mountainous region, or disadvantaged agricultural zone) an agricultural firm fell under in order to identify which benefit was applicable to that firm. 70. The Government submitted that the enactment of and the authentic interpretation given to Law no. 326/03 was justified on the basis of compelling general interest reasons. On that issue, the Constitutional Court had delivered judgment no.", "274 of 2006, holding that the impugned law did not minimise the role of the judiciary or violate the principle of confiance legitime (sic). It considered that the impossibility of cumulating such benefits had been one of the possible interpretations of the law as from the start. That interpretation had immediately been followed by the INPS, but was then contradicted by the Court of Cassation ten years later. Such a situation had created uncertainty and it had therefore been reasonable to intervene by means of a law of authentic interpretation. The Government further submitted that it had been necessary to enact Law no.", "326/03 to re‑establish the original interpretation of the applicable legal norms which had been applied consistently for ten years by the INPS but which had been given a different meaning by the domestic courts the first time the issue was brought before them (final judgment no. 14227 of 27 October 2000). 71. The Government considered that it was that judgment which then opened the doors to a number of firms which decided to bring proceedings to recover the extra sums they had paid. The interpretative law had therefore not upset the consistent consolidated case-law, but had simply clarified which of the two possible interpretations reflected the ratio legis.", "Referring to the Court of Cassation’s judgment no. 21692 of 25 June 2008 (paragraph 57 above) and to a commentary on it by a specialised lawyer who had previously defended the INPS’s position, the Government appealed to the Court to trust the domestic authorities with the interpretation of domestic laws, in the light of the applicable national legal framework. 72. They considered that it was of relevance that the applicant companies had acquiesced in paying their dues according to the INPS calculations for about a decade. In fact, until the first final judgment was issued on the matter in 2000, the applicant companies could not have based themselves on any case-law in their favour.", "Indeed, the Government noted that even in 2008 the Court of Cassation (judgment no. 21692) had considered that in the absence of an express provision one could not apply the cumulability of benefits and that that conclusion could already have been arrived at in 1988. It followed that the legislative intervention had had no bearing on the applicant companies’ proceedings. 73. As to the applicant companies’ reliance on the explanatory memorandum issued by the Parliament study service, the Government highlighted the Court of Cassation’s conclusions (page 9 of the judgment) in that respect, namely, that “the document cannot be strictly attributed to the Acts of Parliament and the interpretive hypothesis formulated therein does not reflect the opinion of the members of Parliament who participated in the procedure by which the law was adopted”.", "74. The Government further submitted, at a late stage of the proceedings and only following further questions from the Court, that a strict interpretation concerning the cumulability of benefits was imposed by EU legislation concerning State grants. They noted that in 1992 the European Commission had opened infringement proceedings against Italy concerning such benefits, which disproportionately favoured certain enterprises. 75. In reply to the applicant companies’ observations, the Government submitted that while it was true that at the time (2006) the Constitutional Court had not taken into consideration Article 6 of the Convention, the principles on which that court had based its judgment were found in the Italian Constitution and were similar to the principles set out in the Convention.", "Moreover, the Court’s case-law had not expressly excluded any intervention pending proceedings by the legislature, which was the same line of reasoning taken up by the Constitutional Court, which had assessed whether compelling general interest reasons had existed and found that they had. In conclusion, apart from financial reasons, the aim of Law no. 326/03 had been to ensure respect for the original intention of the legislator. It was not irrelevant that the subject matter in the case was in fact benefits given by the State, whether cumulatively or alone, and it was therefore not unreasonable for the legislator to intervene in order to clarify the applicable conditions for the obtaining of, and the limits to, such benefits. 2.", "The Court’s assessment (a) General principles 76. The Court has repeatedly ruled that although the legislature is not prevented from regulating, through new retrospective provisions, rights derived from the laws in force, the principle of the rule of law and the notion of a fair trial enshrined in Article 6 preclude, except for compelling public interest reasons, interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute (see, among many other authorities, Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 49, Series A no. 301-B; National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, cited above, § 112; and Zielinski and Pradal and Gonzalez and Others v. France [GC], nos. 24846/94 and 34165/96 to 34173/96, § 57, ECHR 1999-VII). Respect for the rule of law and the notion of a fair trial require that any reasons adduced to justify such measures be treated with the greatest possible degree of circumspection (see Stran Greek Refineries, cited above, § 49, and Maggio and Others v. Italy, nos.", "46286/09, 52851/08, 53727/08, 54486/08 and 56001/08, § 45, 31 May 2011). Financial considerations cannot by themselves warrant the legislature substituting itself for the courts in order to settle disputes (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 132, ECHR 2006‑V, and Cabourdin v. France, no. 60796/00, § 37, 11 April 2006).", "(b) Application to the present case 77. The Court notes that, as shown by the Court of Cassation’s judgments in the applicant companies’ proceedings, the enactment of Law no. 326/03, while the proceedings were pending, in reality determined the substance of the disputes and the application of it by the Court of Cassation made it pointless for an entire group of companies in the applicant companies’ positions to carry on with the litigation. Thus, the law had the effect of definitively modifying the outcome of the pending litigation, to which the State was a party, through one of its administrative entities, endorsing the State’s position to the applicant companies’ detriment, despite the latter having been successful at first-instance and on appeal. 78.", "The Court observes that the Government claimed that the intervention was necessary on the basis of compelling general interest reasons. They referred to financial considerations and the necessity of establishing the original interpretation of the applicable legal norms, and relied on the findings of the Constitutional Court on the matter. The Court observes that the Constitutional Court considered the intervention necessary due to the uncertainty created by a consistent administrative practice and supervening case-law to the contrary ten years later. It further considered that the law was not unreasonable since it had simply opted for one of the possible meanings of the original text. 79.", "The Court firstly observes that as early as 1988, when the original law was promulgated, the INPS applied the interpretation of the law which was most favourable to it as the disbursing authority. That law was not contested up until 1993, when Floramiata Spa initiated its administrative requests, which were followed by judicial proceedings. The first judgment on the matter was delivered in 1996 and found in favour of the agricultural firms. After it was upheld on appeal, that judgment became final in 2000 by means of the Court of Cassation’s pronouncement. Subsequent to those judgments, numerous courts determined similar cases (as shown from the materials submitted by the applicant companies) reiterating the same findings.", "80. Considering the explanations given by those courts, it can hardly be said that the legislator’s intention back in 1988 was questionable, let alone evidently to the contrary. Indeed, the Government have not provided any examples of case-law finding otherwise or of any objections by the executive to the recurrent interpretation given by the domestic courts prior to the enactment of Law no. 326/03. While it is true that the Court of Cassation’s findings in 2008 (see paragraph 57 above) held otherwise (reversing therefore its own case-law), such findings were subsequent to the enactment of that law and can therefore only be of limited relevance.", "81. Nevertheless, the Court considers that even assuming that Law no. 326/03 was indeed interpretative in nature, and reinforced the original intention of the legislator – despite the intention having repeatedly been interpreted as being otherwise in numerous judgments in the light of the entire legal context – that fact, by itself, cannot justify an intervention with retroactive effect. 82. Indeed, even accepting, as stated by the Constitutional Court in 2006, that legislative intervention was necessary to eliminate any doubt about the extent and method of application of the benefits at issue, the Government have not shown that there existed a necessity to apply the legislation retroactively, in such a way as to affect firms whose proceedings were pending.", "The Court highlights that financial considerations cannot by themselves warrant the legislature substituting itself for the courts in order to settle disputes. While it is true that at a later stage of the observations, in response to further questions by the Court, the Government made reference to compatibility with EU legislation and infringement proceedings in their regard, they failed to give any detail whatsoever on that matter. In the absence of concrete information in that respect such an argument cannot but be considered as an unsubstantiated allegation. Moreover, the fact that it was brought up at such a late stage of the proceedings indicates that the Government did not consider it to be of any major relevance. Thus, while the aim of the law may have been legitimate, and worthy of intervention to regulate the future provision of the said benefits, the Court is unable to identify in the circumstances of the present case any compelling general‑interest reason capable of outweighing the dangers inherent in the use of retrospective legislation which had the effect of influencing the judicial determination of a pending dispute to which the State was a party.", "83. The Court will, however, also assess whether the applicant companies were attempting to take advantage of a weakness in the system (compare, National and Provincial Building Society, cited above, § 109, and OGIS-Institut Stanislas, OGEC Saint-Pie X and Blanche de Castille and Others v. France, nos. 42219/98 and 54563/00, §§ 69 and 71, 27 May 2004). The Court cannot but observe that the applicant companies did not bring proceedings against the INPS immediately in 1988. Indeed, three of the four applicant companies awaited the outcome of the proceedings undertaken by Floramiata Spa.", "Only one of the applicant companies, namely S.A.P. Pietrafitta S.r.l, lodged its administrative application and subsequent judicial proceedings before the Court of Cassation judgment in Floramiata Spa had been issued (see paragraphs 31 and 33); however, it did so more than a decade after the enactment of the original law. Undeniably, such a wait had some bearing on the Court’s findings in the case of National & Provincial Building Society (cited above § 109). Nevertheless, twenty years after that judgment, the Court must take other factors into account. Bearing in mind that justice systems in many Council of Europe member States, including, if not particularly, Italy, are overburdened, the Court considers that waiting for the determination of a principal judgment on the matter could only benefit the interests of judicial economy.", "Moreover, one cannot lose sight of the fact that by waiting for the outcome of that judgment, the applicant companies were on the one hand protecting themselves from the risk of incurring unnecessary costs and expenses, but, on the other hand, forfeiting parts of the sums that they could have recovered, since claims regarding past years would have become time-barred. 84. The Court further notes that it cannot be said that in the circumstances of the present cases the applicant companies could have foreseen a reaction by Parliament (contrast with National & Provincial Building Society, cited above, § 112 and OGIS-Institut Stanislas, OGEC Saint-Pie X and Blanche de Castille and Others, cited above, § 72). Indeed, the legislator had not manifested such an intention when the Court of Cassation delivered a final judgment for the first time on the matter in the case of Floramiata Spa. Neither did Parliament manifest such an intention at any point in the three years that followed the first final judgment on the matter, years during which other companies were successful in their proceedings.", "Moreover, if, as proclaimed by the Government and the Court of Cassation, there was more than one possible interpretation of the original laws, it would have been entirely reasonable for the applicant companies to believe that the interpretation most favourable to them, as continually upheld by the domestic courts, was in fact the legislator’s intention and that, therefore, there be no reason to expect a reaction by the authorities trying to amend the state of affairs. 85. It must be borne in mind that the relevant laws providing for such benefits were aimed at promoting the agricultural industry and helping firms which were in need for one reason or another, in so far as they fulfilled the relevant criteria. It follows that it would not have been unreasonable for the legislator to provide a double benefit if certain firms were suffering two‑fold hindrances. Moreover, while such payments constituted substantial amounts and clearly affected the revenues collected by the authorities over the relevant years, it was also true that such payments were made to boost the agricultural sector and consequently to positively impact upon the economy and the collective interests, if not of the nation, at least of the relevant regions.", "86. In that connection the Court also takes account of the utility and aim of such monies, which contrasts with the windfall which would have been made by the applicants in National & Provincial Building Society, as well as in OGIS-Institut Stanislas (both cited above). 87. Lastly, although of less significance, the Court also observes that in the present case, unlike in the two above-mentioned cases, the applicant companies had already obtained first-instance and appeal judgments in their favour, before the intervention of the impugned law. 88.", "The foregoing considerations are sufficient to enable the Court to conclude that in the circumstances of the present cases the applicant companies’ institution of proceedings cannot be considered to have been an attempt to benefit from the vulnerability of the authorities or the law (contrast with National & Provincial Building Society, and OGIS-Institut Stanislas, §§ 109 and 71, respectively). Neither has it been established that there were any compelling general interest reasons capable of outweighing the dangers inherent in the use of retrospective legislation which has the effect of determining pending proceedings in favour of the State. 89. There has accordingly been a violation of Article 6 § 1 of the Convention. III.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 90. The applicant companies also considered that they had been deprived of their possessions. They relied on Article 1 of Protocol No. 1 of 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.” 91. The Government contested that argument. A. The parties’ observations 92.", "The applicant companies considered that they had had a possession in the form of a claim, in so far as the INPS held monies which the applicant companies had paid despite the law providing otherwise, and which they had legitimately expected to recover from the INPS. That claim had, at the time when judicial proceedings were undertaken, constituted an existing possession in accordance with the law in force, and even more so when Law no. 326/03 was enacted, given that by that time their claims had been granted by the first-instance court and on appeal. Referring in particular to the Court of Cassation’s judgments nos. 14227/00 and 17806/03 (paragraphs 53 and 54 above), the applicant companies submitted that the circumstances at issue fulfilled the criterion according to which a claim could be demonstrated if it was sufficiently certain in national law, such as when it had been confirmed by the established case-law of the courts.", "Thus, in the absence of Law no. 326/03 the applicant companies had not only had a legitimate expectation to obtain their claims, they had been almost certain of it. 93. The applicant companies considered that the enactment of Law no. 326/03 amounted to an interference with their property right, as it retroactively and ope legis extinguished their claims, thus constituting a deprivation of possessions.", "94. While that action had been lawful, it had not pursued any legitimate aim, having been solely aimed at favouring the public administration. The applicant companies referred to their observations under Article 6 above and considered that in the absence of a legitimate aim there had been a violation of the provision relied on. 95. However, without prejudice to the above, even assuming that the aim was legitimate, it had not been proportionate in so far as it had imposed an excessive burden on the applicant companies.", "Indeed, their claim had not been reduced but totally extinguished, simply so the State could avoid disbursing the dues. 96. The Government considered that Law no. 326/03 had not interfered with any right or legitimate expectation acquired by the applicant companies. 97.", "According to the Government, managing tax reductions, concessions and so on and modifying such rules over time, whether in a more or a less favourable manner, was an action which fell within the margin of appreciation of States. The Government also opined that the Court’s findings in respect of complaints under Article 1 of Protocol No. 1 in Maggio and Others v. Italy (nos. 46286/09, 52851/08, 53727/08, 54486/08 and 56001/08, 31 May 2011), Arras and Others v. Italy (no. 17972/07, 14 February 2012), Torri and Others v. Italy ((dec.), nos.", "11838/07 and 12302/07, 24 January 2012) and Varesi and Others v. Italy ((dec.), no. 49407/08, 12 March 2013) went to prove that the complaint was manifestly ill-founded. B. The Court’s assessment 1. Admissibility 98.", "The Court reiterates that, according to its case-law, an applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his “possessions” within the meaning of that provision. “Possessions” can be “existing possessions” or assets, including, in certain well-defined situations, claims. For a claim to be capable of being considered an “asset” falling within the scope of Article 1 of Protocol No. 1, the claimant must establish that it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it.", "Where that has been done, the concept of “legitimate expectation” can come into play (see Maurice v. France [GC], no. 11810/03, § 63, ECHR 2005‑IX). 99. The Court notes that, in the present case, before the intervention of the impugned law, the applicant companies had already obtained first‑instance and appeal judgments in their favour, recognising their claims. Moreover, by that time, a constant and substantial jurisprudence had been established in their favour (see paragraph 66 and 79 above).", "In those circumstances, in the Court’s opinion, before the enactment of the law complained of, the applicants had a claim which they could legitimately expect to be determined in accordance with the applicable legislation as interpreted by the domestic courts and therefore a “possession” within the meaning of the first sentence of Article 1 of Protocol No. 1, which is accordingly applicable in the case. 100. 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 101. Given that the present case concerns the failure of the applicant companies to benefit from a double reduction on the social welfare contributions they pay in respect of their employees, the Court considers it to fall within the scope of the rule in the second paragraph of Article 1, namely the enforcement of laws to control the use of property in the general interest or “to secure the payment of taxes or contributions” (see, for example, Wallishauser v. Austria (no. 2), no.", "14497/06, § 63, 20 June 2013; Frátrik v. Slovakia (dec.), no. 51224/99, 25 May 2004; and Stere and Others v. Romania, no. 25632/02, § 44, 23 February 2006). 102. According to the Court’s well-established case-law, an interference, including one resulting from a measure taken to secure the payment of taxes or other contributions, must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.", "The desire to achieve this balance is reflected in the structure of Article 1 as a whole, including the second paragraph: there must therefore be a reasonable relationship of proportionality between the means employed and the aims pursued (see James and Others v. the United Kingdom, 21 February 1986, § 50, Series A no. 98, and National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society, cited above, § 80). Consequently, “the financial liability arising out of the raising of tax or contributions may adversely affect the guarantee secured under this provision if it places an excessive burden on the person or the entity concerned or fundamentally interferes with his or its financial position” (see Ferretti v. Italy, no. 25083/94, Commission decision of 26 February 1997, unpublished, and Buffalo S.r.l. in liquidation v. Italy, no.", "38746/97, § 32, 3 July 2003). 103. The Court further notes that a wide margin of appreciation is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy (Wallishauser v. Austria (no. 2), no. 14497/06, § 65, 20 June 2013), as well as when framing and implementing policy in the area of taxation (see, among many other authorities, Gasus Dosier- und Fördertechnik GmbH v. the Netherlands, 23 February 1995, § 60, Series A no.", "306‑B, and Stere, cited above, § 51). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to decide what is “in the public interest” (see, for example, Maggio and Others, cited above, § 57, and Travers v. Italy, no. 15117/89, Commission decision of 16 January 1995) and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation” (see Wallishauser, cited above, § 65). Thus, it is firstly for the national authorities to decide on the type of tax or contributions they wish to levy. Decisions in this area normally involve, in addition, an assessment of political, economic and social problems which the Convention leaves to the competence of the member States, as the domestic authorities are clearly better placed than the Convention organs to assess such problems (see Musa v. Austria, no.", "40477/98, Commission decision of 10 September 1998, and Baláž v. Slovakia (dec.), no. 60243/00, 16 September 2003). 104. The Court has in previous cases acknowledged that laws with retrospective effect which were found to constitute legislative interference still conformed to the lawfulness requirement of Article 1 of Protocol No. 1 (see Maggio and Others, cited above § 60, and Arras and Others, cited above, § 81).", "It finds no reason to find otherwise in the present case. Indeed, in various cases the fact that such an interference was provided for by law as required by Article 1 of Protocol No. 1 was not even disputed by the parties (see for example, Maurice [GC], cited above, § 81; Scordino (no.1) [GC], cited above § 81; National & Provincial Building Society, cited above, § 79; and Agrati and Others v. Italy, nos. 43549/08, 6107/09 and 5087/09, § 76, 7 June 2011). 105.", "The Court further notes that in the present case the State action sought to decrease public expenditure by limiting the aid given to agricultural firms suffering a double hindrance. That aid was provided for from the State’s budget and ultimately the taxpayer. Given that the subject matter concerns the loss of “concessions”, in the form of reductions to the contributions due by the applicant companies to the State, and therefore a benefit or a privileged right (if at all) conceded by the State, and given the wide margin of appreciation applicable in such cases, it cannot be said that the legislature’s choice to cut down on that expenditure was manifestly without reasonable foundation. 106. As to the effects of the interference on the applicant companies’ financial position, the Court notes that the companies uninterruptedly paid the relevant contributions without the concession being applied to them.", "Thus, they were clearly not in a position whereby they could not run their businesses because of the respective financial burdens. The Court further observes that the applicant companies had even willingly opted to forfeit the benefit at issue for a certain number of years, waiting more than a decade before bringing their claims before the domestic courts (see paragraph 65 above). Furthermore, the applicant companies were still the beneficiaries of another benefit, namely the exemption, conceded by the State to alleviate certain difficulties these agricultural firms were facing. 107. In conclusion, bearing in mind that a wide margin of appreciation is applicable (see paragraph 103 above), the Court considers that the applicant companies’ obligation to pay the social welfare contributions without the benefit of the concession at issue struck a fair balance between the demands of the general interest of the community and those of the applicant companies.", "The impugned measure did not impose an excessive burden on the applicant companies, or fundamentally interfere with their financial position and it is therefore not to be considered contrary to Article 1 of Protocol No. 1. 108. It follows that there has been no violation of that provision. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 109. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the 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 110. The applicant companies claimed the following sums in respect of pecuniary damage, representing the monies which they had unjustly paid because of an “erroneous” calculation (any sums already paid back by the INPS in the execution of the relevant judgments and not yet returned by the applicant companies would then be deducted), plus interest up to 2013: Azienda Agricola Silverfunghi – 89,729 euros (EUR) + EUR 27,940 Scarpellini S.r.l.– EUR 213,776 + EUR 62,297 S.A.P. Pietrafitta S.r.l.", "– EUR 108,770 + EUR 36,924 Floricultura Zanchi Di Zanchi – EUR 84,375 + EUR 23,374 They also claimed EUR 1,000 each in respect of non-pecuniary damage. 111. The Government submitted that in the event of a violation of Article 6 the Court could not speculate as to the outcome of the proceedings, and therefore the applicant companies’ claims had no basis in the Court’s case-law. 112. The Court notes that in the present case an award of just satisfaction can only be based on the fact that the applicant companies did not have the benefit of the guarantees of Article 6 in respect of the fairness of the proceedings.", "Whilst the Court cannot speculate as to the outcome of the trial had the position been otherwise, it does not find it unreasonable to regard the applicant companies as having suffered a loss of real opportunities (see Maggio and Others, cited above, § 80, and Arras and Others, cited above, § 88). 113. In the present case, in order to quantify such loss, the Court recalls its finding in paragraphs 77 and 87 above, that the applicant companies had already obtained first-instance and appeal judgments in their favour, recognising their claims, before the intervention of the impugned law, the enactment of which together with its application by the Court of Cassation had the direct effect of constituting a violation of Article 6 § 1 of the Convention. Furthermore, the Court notes that the Government have not submitted any arguments e.g. lack of complete uniformity of domestic case-law in the applicant’s favour (see, in contrast, Maggio and Others, cited above, § 46) or the uncertain nature of the pecuniary calculation of the applicant’s claim under domestic law (see, in contrast, Arras and Others, cited above, § 86) that can provide a reasonable basis for the Court to call into question that the sums claimed by the applicant companies in pecuniary damage are based on the sums of the claims submitted to the domestic courts and recognised by them before the impugned law came into effect and was applied in their cases by the Court of Cassation.", "The Court therefore considers it sufficiently established that the applicant companies have suffered a loss of real opportunities, bearing also in mind the objective and foreseeable character of the legislative provisions regarding the calculation of the concessions and benefits afforded to the applicant companies prior to the enactment of Law no. 326/03. However, the Court accepts the Government’s contention that it cannot speculate as to the outcome of the proceedings as the Court has only found a violation of Article 6 § 1 on the facts of the present case. Accordingly, the Court awards the applicant companies, in pecuniary damage, the following amounts: Azienda Agricola Silverfunghi – EUR 44,900 Scarpellini S.r.l.– EUR 106,900 S.A.P. Pietrafitta S.r.l.", "– EUR 54,400 Floricultura Zanchi Di Zanchi – EUR 42,200 Nevertheless, the Court notes that by execution of the first-instance judgment in favour of the applicant companies, the INPS paid back to the applicant companies the extra monies they had collected. Subsequently, on specified dates for each applicant company, following the Court of Cassation’s judgments reversing that finding, the INPS initiated proceedings for the recovery of those sums. By the applicant companies’ admission those sums have not been entirely paid back and thus the sums not yet returned must be deducted from the award under this head. 114. To the above amounts must be added an award in respect of non-pecuniary damage, which the finding of a violation in this judgment does not suffice to remedy.", "The Court therefore awards EUR 1,000 to each applicant company. B. Costs and expenses 115. The applicant companies also claimed the following sums for the costs and expenses incurred before the domestic courts. Azienda Agricola Silverfunghi – EUR 8,977 Scarpellini S.r.l.- EUR 19,278 S.A.P.", "Pietrafitta S.r.l. – EUR 14,206 Floricultura Zanchi Di Zanchi – EUR 20,648 They further claimed EUR 3,300 (3,000 in fees and 300 in expenses), plus Value Added Tax and Lawyers’ National Insurance (CPA), each for costs and expenses incurred before the Court. 116. The Government made no comment in this respect. 117.", "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, together with the fact that the Court has only found a violation in respect of Article 6, the Court considers it reasonable to award the following sums covering costs under all heads: Azienda Agricola Silverfunghi – EUR 10,000 Scarpellini S.r.l.– EUR 20,300 S.A.P. Pietrafitta S.r.l. – EUR 15,200 Floricultura Zanchi Di Zanchi – EUR 21,700 C. Default interest 118. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT 1. Decides, unanimously, to join the applications; 2. Declares, unanimously, the applications admissible; 3. Holds, unanimously, that there has been a violation of Article 6 § 1 of the Convention; 4. Holds, by five votes to two, that there has been no violation of Article 1 of Protocol No.", "1 to the Convention; 5. Holds, by six votes to one, (a) that the respondent State is to pay the applicant companies, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts from which must be deducted the sums not yet returned by the applicant companies to the INPS: (i) EUR 44,900 (forty-four thousand nine hundred euros) in respect of pecuniary damage to Azienda Agricola Silverfunghi; – EUR 106,900 (one hundred and six thousand nine hundred euros) in respect of pecuniary damage to Scarpellini S.r.l. ; – EUR 54,400 (fifty four thousand four hundred euros) in respect of pecuniary damage to S.A.P. Pietrafitta S.r.l. ; – EUR 42,200 (forty-two thousand two hundred euros) in respect of pecuniary damage to Floricultura Zanchi Di Zanchi; (ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, to each applicant company in respect of non-pecuniary damage; (iii) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable to the applicant company, in respect of costs and expenses to Azienda Agricola Silverfunghi; – EUR 20,300 (twenty thousand three hundred euros), plus any tax that may be chargeable to the applicant company, in respect of costs and expenses to Scarpellini S.r.l.", "; – EUR 15,200 (fifteen thousand two hundred euros), plus any tax that may be chargeable to the applicant company, in respect of costs and expenses to S.A.P. Pietrafitta S.r.l. ; – EUR 21,700 (twenty-one thousand seven hundred euros), plus any tax that may be chargeable to the applicant company, in respect of costs and expenses to Floricultura Zanchi Di Zanchi; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses, by five votes to two, the remainder of the applicant companies’ claim for just satisfaction. Done in English, and notified in writing on 24 June 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stanley NaismithIşıl KarakaşRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Lemmens and Kūris is annexed to this judgment. A.I.K.S.H.N. APPENDIX No. Application no. Lodged on Applicant name date of birth place of residence 48357/07 31/10/2007 AZIENDA AGRICOLA SILVERFUNGHI S.A.S.", "AZIENDA AGRICOLA SILVERFUNGHI S.A.S. Grone 52677/07 28/11/2007 SCARPELLINI S.R.L. SCARPELLINI S.R.L. Roma 52687/07 28/11/2007 S.A.P. PIETRAFITTA S.R.L.", "S.A.P. PIETRAFITTA S.R.L. Siena 52701/07 28/11/2007 FLORICOLTURA ZANCHI DI ZANCHI F.LLI SOCIETA SEMPLICE FLORICOLTURA ZANCHI DI ZANCHI F.LLI SOCIETA SEMPLICE Roma JOINT PARTLY DISSENTING OPINION OF JUDGES LEMMENS AND KŪRIS 1. We agree with the majority that there has been a violation of Article 6 § 1 of the Convention. To our regret, however, we cannot share the view that there has been no violation of Article 1 of Protocol No.", "1 to the Convention. We also disagree on the amount of the just satisfaction to be awarded under Article 41 of the Convention. 2. Like the majority, we consider that the applicant companies had claims which they could legitimately have expected to be determined in accordance with the applicable legislation as interpreted and applied, prior to the legislature’s intervention, by the domestic courts in at least one hundred and forty judgments, and that these claims were “possessions” within the meaning of Article 1 of Protocol No. 1 (see paragraph 98).", "3. The majority further considers that “the present case concerns the failure of the applicant companies to benefit from a double reduction on the social welfare contributions they pay in respect of their employees”. On that premise, the majority considers that the interference with the applicant companies’ claims falls within the scope of the rule contained in the second paragraph of Article 1 of Protocol No. 1, that is, the rule which allows a State “to enforce such laws as it deems necessary ... to secure the payment of taxes or other contributions ...” (see paragraph 100). 4.", "By examining the complaint from the perspective of Article 1, second paragraph, the majority seems to consider that the applicant companies are complaining about the fact that they could no longer enjoy the advantage created by Legislative Decree No. 536 of 30 December 1987, converted into statutory law by Law No. 48 of 29 February 1988. If that had indeed been the complaint, the Court would have had to examine whether there was some sort of legitimate expectation that the legal regime established in 1988 would remain in place for an indefinite period of time. We find it difficult to accept that such an expectation would exist, thus making it impossible, or at least very difficult, for the legislature to ever change the law ex nunc.", "5. With all due respect, however, we are afraid that the majority has attributed to the applicant companies a complaint that they did not make. Or rather, the majority has overlooked the crux of the complaint actually made. We read in the applicant companies’ submissions that they in fact presented for the Court’s examination one single complaint, which relates to the retrospective effect of the “authentic interpretation” given by Law No. 326 of 24 November 2003 to Law No.", "67 of 11 March 1988. It does not appear to us that they raised two substantially different complaints. On the contrary, they complained that, solely by the fact of enacting the “interpretative law”, the legislature simultaneously violated both Article 6 § 1 of the Convention and Article 1 of Protocol No. 1: it violated Article 6 § 1 in that the new law interfered with the judicial determination of pending disputes, and it violated Article 1 of Protocol No. 1 in that the new law abolished claims in respect of which the applicants had a legitimate expectation that they would be upheld by the courts.", "However, when the majority examined the complaint under Article 1 of Protocol No. 1, it detached it from the Article 6 § 1 complaint and barely mentioned the fact that the law in question had a retrospective effect (see paragraph 103). 6. We would also like to point out that the applicant companies, as parties to the domestic proceedings, exercised their rights under Article 6 § 1 in order to obtain the “determination” of certain “civil rights”. The present judgment does not enter into detail with respect to the nature of these civil rights.", "However, it is clear that the applicants, in claiming the return of certain sums paid by them to the Istituto Nazionale della Previdenza Sociale (INPS), invoked civil rights of a proprietary nature. By declaring the applicants’ claims well-founded, the domestic courts turned them into claims that constituted “possessions” within the meaning of Article 1 of Protocol No. 1. The partial finding of a violation of the Convention, namely one of Article 6 § 1 but not of Article 1 of Protocol No. 1, is internally inconsistent, as it tends to create the wrong impression that the finding of a violation of the right to a fair trial is in itself sufficient.", "We would like to emphasise that the domestic courts were unable to recognise the existence of the rights for which the applicant companies sought a judicial determination precisely because of the legislature’s interference. 7. By downplaying the importance of the law’s retrospective effect for the examination of the complaint based on Article 1 of Protocol No. 1, the majority has in fact followed a line of reasoning that was initiated with Maggio and Others v. Italy (nos. 46286/09, 52851/08, 53727/08, 54486/08 and 56001/08, 31 May 2011) and continued with Arras and Others v. Italy (no.", "17972/07, 14 February 2012). In these cases, the Court concluded that the retrospective reduction of social security or welfare benefits constituted a violation of Article 6 § 1, but not of Article 1 of Protocol No. 1. In two more recent cases the Court has had to deal, as in the present case, with interpretative laws: M.C. and Others v. Italy (no.", "5376/11, 3 September 2013) and Stefanetti and Others v. Italy (nos. 21838/10, 21849/10, 21852/10, 21822/10, 21860/10, 21863/10, 21869/10, and 21870/10, 15 April 2014, not yet final). In these cases, the Court found that Article 1 of Protocol No. 1 had been violated, but that conclusion was not decisively based on the retrospective effect of the “interpretative” law. In that sense, these cases follow the Maggio-Arras line of reasoning.", "However, while in M.C. and Stefanetti the Court still found a violation not only of Article 6 § 1 of the Convention, but also of Article 1 of Protocol No.1, in the present case the majority concludes that there has been a violation only of Article 6 § 1, not of Article 1 of Protocol No. 1. The majority thus seems to cross a new line. 8.", "We consider that the interference complained of should be qualified, as argued by the applicants (see paragraph 92), as a deprivation of their possessions, within the meaning of Article 1, first paragraph, second sentence, of Protocol No. 1 (see, for an early qualification in that sense of a law with retrospective effect, Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, § 34, Series A no. 332). The fact that the applicants’ claims for reimbursement were related to contributions they had previously made does not, in our opinion, mean that greater weight should be attached to the second paragraph of Article 1, at the expense of the second sentence of the first paragraph of Article 1. 9.", "Accordingly, we consider that the Court should have examined whether the deprivation of the applicants’ possessions was “provided by law”, whether it was “in the public interest”, and whether it struck a fair balance between the demands of the general interest (if any) and the requirement of the protection of the applicants’ fundamental rights (see, inter alia, Pressos Compania Naviera S.A., cited above, § 35). 10. When it comes to verifying whether the above-mentioned conditions are met, we find inspiration in the reasoning adopted by the Court in the case of Agrati and Others v. Italy (nos. 43549/08, 6107/09 and 5087/09, 7 June 2011). In that case the Court found, as in the present case, that a legislative act which interfered in pending disputes constituted a violation of Article 6 § 1 of the Convention (§§ 58-66).", "It then went on to analyse the act as an interference with the applicants’ right to the peaceful enjoyment of their possessions, namely as a deprivation of their possessions (§ 75). It found that, while the interference was (obviously) “provided by law” (§ 76), it was doubtful whether the sole financial interest of the State could constitute a “public interest” sufficient to justify a retrospective interference by the legislature (§§ 80-81). Leaving that question open, it considered that the legislative interference had in any event made it decisively impossible for the applicants to have their claims upheld (§ 83), thus obliging them to bear an individual and excessive burden and upsetting the balance between the general interest and the rights of the applicants (§ 84). The Court concluded that Article 1 of Protocol No. 1 had been violated.", "11. We find no reason to come to a different conclusion in the present case. Once the Court has found that there was no justification for the legislative interference in pending proceedings – in particular in proceedings to which the applicants were parties – because of the absence of “any compelling general interest reasons” (see paragraph 87), it is hard to see how, in the present case, there could be public interest reasons that would justify a retrospective interference with the applicants’ right to protection of their possessions. Again, the question whether the legislature could abolish the benefit created by Legislative Decree No. 536/87 with prospective effect, would, in our opinion, be a different matter.", "12. The majority’s finding that Article 1 of Protocol No. 1 has not been violated by the application of retrospective “interpretive” legislation is unfortunate. We note that according to the applicants “in Italy it [has become] common practice to introduce ‘interpretative’ provisions in matters involving financial interests to secure higher income (or lower expenditure) for the public administration” (see paragraph 63). This statement has not been contradicted by the Government.", "Having regard to similar cases that the Court has dealt with in the recent past and to certain cases that are still pending before it, we tend to agree with the applicants that the Italian legislature is regularly tempted to intervene in pending proceedings when it appears that the outcome of such proceedings may have a significant impact on the State’s budget. In the present case, the so-called interpretative act was adopted almost sixteen years after the original act. We find this practice particularly disturbing, and regret that the majority has not condemned it inter alia from the perspective of Article 1 of Protocol No. 1. 13.", "Finally, with respect to the just satisfaction to be awarded to the applicants (Article 41 of the Convention), to our regret we are unable to share the majority’s view that the applicants suffered only “a loss of real opportunities” (see paragraph 111). The applicants’ claims were upheld at first instance and on appeal. Their claims were based on a legislative provision that left no discretion to the public authorities. The only question was whether the reduction of the contributions to be paid under Legislative Decree No. 536/87 could be combined with the exemptions granted by Law No.", "67/88, and, as the Court notes (see paragraph 78), that question had consistently been answered by the Italian courts in a way that was favourable to companies such as the applicant companies. In these circumstances we agree with the applicants that, had Law No. 326/03 not been enacted, they “[would have had] not only [...] a legitimate expectation to obtain their claims, they [would have] been almost certain of it” (see paragraph 91). It was only on account of the enactment of the latter law that the judgments rendered in their favour were quashed by the Court of Cassation and their claims unexpectedly dismissed. We consider that in these circumstances the just satisfaction to be awarded to each applicant company in respect of pecuniary damage should in principle amount to the sum claimed by it from the Istituto Nazionale della Previdenza Sociale (INPS) (see paragraph 109) and awarded in full by the court of appeal (respectively EUR 89,729 for Azienda Agricola Silverfunghi, EUR 213,776 for Scarpellini, EUR 108,770 for S.A.P.", "Pietrafitta, and EUR 84,375 for Floricultura Zanchi Di Zanchi Fratelli). However, where applicable the sum received by the applicant company from the INPS by execution of the first‑instance judgment and not yet returned by that applicant company following the Court of Cassation’s judgment should be deducted from this amount. Finally, to the amount thus calculated should be added the statutory interest applicable under domestic law. 14. There is some inconsistency in the Court’s case-law about how the operative points relating to the just satisfaction should be understood.", "This uncertainty has resulted in us voting in different ways, which basically reflect two competing patterns of voting in this Court on just compensation (Article 41 of the Convention): Paul Lemmens voted in favour of point 4 and against point 5 (because the sums indicated in point 4 are seen as due to be paid to the applicants in any event, irrespective of the fact that they are insufficient), while Egidijus Kūris voted against both points 4 and 5 (because the sums indicated in point 4 are insufficient). In substance, however, we are in full agreement, as we would both award the applicant companies more than the majority has decided to award. [1] Which stated that “the percentage of contributions [had] to be calculated without taking the concession into account” (“la percentuale dei contributi dovuti va calcolata senza ritenere conto delle quote fiscalizzate”). [2] Where it was stated that “the norm [was] intended to avoid greater burdens than those borne in previous years” (“La norma è pertanto funzionale ad evitare maggiori oneri rispetto agli andamenti tendenziali con riferimento ai periodi pregressi”). [3] “Diritto e processo del lavoro e della previdenza sociale” G. Santoro Passarelli p.1174" ]

[ "FIFTH SECTION CASE OF DIMECH v. MALTA (Application no. 34373/13) JUDGMENT STRASBOURG 2 April 2015 FINAL 02/07/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dimech v. Malta, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President,Angelika Nußberger,Boštjan M. Zupančič,Vincent A. De Gaetano,André Potocki,Helena Jäderblom,Aleš Pejchal, judges,and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 3 March 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 34373/13) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Maltese national, Mr Martin Dimech (“the applicant”), on 22 May 2013. 2. The applicant was represented by Dr D. Camilleri, Dr F. Debono and Dr J. Gatt, lawyers practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General.", "3. The applicant alleged that he had been denied a fair trial as a result of the lack of legal assistance at the pre-trial stage. 4. On 22 October 2013 the Government were given notice of the application. 5.", "On the same day the Court decided to apply Rule 41 of the Rules of Court and grant priority treatment to the application. 6. The applicant requested that an oral hearing be held but the Chamber decided not to hold a hearing in the case, having regard to the materials before it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7.", "The applicant was born in 1960 and lives in Zejtun. A. Background to the case 8. By Act III of 2002 the Maltese Parliament introduced the right to legal assistance at the pre-trial stage. However, the law only came into force in 2010 by means of Legal Notice 35 of 2010.", "Prior to this Legal Notice Maltese law did not provide for legal assistance during the pre-trial investigation and specifically during questioning, whether by the police or by a magistrate in his investigative role. Before questioning, however, suspects would be cautioned, that is, informed of their right to remain silent and that anything they said could be taken down and produced as evidence. At the time, no inferences could be drawn by the trial courts from the silence of the accused at this stage. 9. Statements taken by the police could be confirmed on oath before the Court of Magistrates, in which case the person was entitled to be assisted by a lawyer.", "B. Criminal proceedings 10. On 30 April 2009 the Executive Police were authorised by the duty Magistrate to execute a search and arrest warrant relative to residence F. 11. On 1 May 2009 the search was carried out and it yielded the discovery of five bags of heroin (925.26 grams, 35 % purity), 755 euros (EUR) in two separate bundles, electrical weighing scales and a number of plastic bags with the corners missing. 12.", "On 2 May 2009 Mr Dimech was arrested and, after being cautioned about his right to remain silent, was questioned in the absence of legal assistance on suspicion of drug trafficking. He made a statement in which he admitted to certain facts but denied others. In a nutshell he explained that the 800 grams of heroin found in his possession during a search at his house were being kept as a guarantee against a sum of money he was owed, and that he had known that he would be given the drug as a guarantee when he lent the money. He admitted that he had hidden the drug in his fridge and stated that his partner had had nothing to do with it and was unaware of it. He denied, however, that the drugs were his and also denied that he ever used or sold drugs.", "His signed statement also indicated that he had made the statement voluntarily, without threats or promises, that it was the truth and that he did not want to change anything in it. 13. A magisterial inquiry (under Maltese law known as an inquiry relating to the in genere) was held on 13 May 2009 and the Inquiring Magistrate drew up the procès verbal. On 20 May 2009 the applicant was arraigned in court and the procès verbal as well as his statement referred to above were produced as evidence against him. During the committal proceedings the Court of Magistrates as a Court of Criminal Inquiry also collected further evidence including witness testimony and documentary evidence.", "14. On 8 July 2010 a bill of indictment was issued against the applicant by the Attorney General. 15. During the criminal proceedings the applicant requested the Criminal Court to refer his complaint regarding the lack of legal assistance during the investigation and questioning to the constitutional jurisdictions. On an unspecified date the court granted the request and referred the case.", "C. Constitutional redress proceedings 16. The applicant claimed a breach of his right to a fair trial on account of the lack of legal assistance during the investigation and questioning. 17. By a judgment of 10 January 2012 the Civil Court (First Hall) in its constitutional competence, opting to take cognisance of the case on the merits despite the fact that the proceedings were still pending, found a violation of the applicant’s right to a fair trial in so far as he had not been assisted by a lawyer when making a statement to the police before he had been charged, and ordered that the Criminal Court take note of this breach in considering all the evidence. It noted that the voluntary nature of the statement, together with the caution as to the right to remain silent, did not suffice to make up for such a failing, when it could not be said what the applicant would have done had he been assisted by a lawyer.", "18. Both the Attorney General and the applicant appealed to the Constitutional Court. By a judgment of 26 April 2013 the Constitutional Court took cognisance of the merits of the case despite the fact that the proceedings were still pending, and reversed the first-instance judgment. Reiterating its previous findings in other domestic judgments, it noted that the right to legal assistance was not meant to be a formality which, if not complied with, gave the accused a means to defend himself. That right served as a guarantee that every statement made by a person during questioning was made freely, in full knowledge of the right to remain silent, and without threats or promises, violence or other abuse.", "A breach of the right to a fair trial as a result of a lack of legal assistance during questioning occurred when a statement was taken abusively and without the guarantees of legitimacy, and not solely because of the lack of legal assistance. It followed that the sole fact that the applicant had made a statement, including both admissions of guilt and denials, in the absence of a lawyer could not ipso facto entail a violation of Article 6 of the Convention. In the Constitutional Court’s view, other circumstances such as the particular vulnerability of the individual being questioned had to exist in order to conclude that the absence of legal assistance breached the right to a fair trial. The Constitutional Court could not agree with the first-instance court that Article 6 of the Convention provided for the right to a lawyer without any consideration of the age, maturity and tainted criminal record of the accused as well as the nature of the accusations against him. A correct interpretation of Salduz v. Turkey ([GC], no.", "36391/02, ECHR 2008) had to be made in the light of the circumstances of that case, where Mr Salduz had indeed been in a vulnerable position when he had made the statement. The ratio of the right was precisely that, and not to allow a guilty person to go scot-free because of the failure to comply with a formality which lacked any real or grave consequences. The same exceptional and extreme circumstances had been present in other cases decided by the ECtHR such as Panovits v. Cyprus (no. 4268/04, 11 December 2008) and Płonka v. Poland (no. 20310/02, 31 March 2009), and cases decided by the domestic Constitutional Court such as The Police vs Alvin Privitera of 11 April 2011 and The Police vs Esron Pullicino of 12 April 2011.", "Even in the Salduz case the Court had held that such a violation arose only if the fairness of the trial was compromised. The Court had stated in that context that “Article 6 – especially paragraph 3 thereof – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions” (§ 50). This, according to the Constitutional Court, was probably the reason why the Grand Chamber had not embraced the more categorical approach suggested by Judge Bratza in his concurring opinion. 19. The Constitutional Court considered that in the present case the applicant had admitted that he had not been pressured into making the statement, and thus there had been nothing illicit and abusive in the taking of such a statement.", "It followed that the element of vulnerability found in the Salduz case was missing. Moreover, it had not been shown that the applicant had suffered prejudice as a result of the lack of legal assistance to the extent that there was an objective danger that he would not be given a fair trial. 20. In the absence of any such violation, no remedy was required, nor was there any need for the court to examine the appeal entered by the applicant. D. The current status of the criminal proceedings 21.", "The applicant’s trial by jury was due to start on 23 October 2013. 22. On 20 September 2013 the applicant filed an application with the Criminal Court requesting it to suspend the trial by jury on the basis of a new set of constitutional proceedings which he had lodged (alleging a violation of Article 7) and on the basis of the proceedings pending before this Court. 23. On 23 September 2013 the Criminal Court acceded to the request.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. Legal assistance during the pre-trial investigation 24. Legal Notice 35 of 2010 provided for the commencement notice of the Criminal Code (Amendment) Act 2002 (Act III of 2002), which enshrined the right to legal assistance. It read as follows: “BY VIRTUE of the powers granted by subarticle (2) of article 1 of the Criminal Code (Amendment) Act, 2002, the Minister of Justice and Home Affairs has established the 10th February, 2010 as the date when the provisions of articles 355AT, 355AU, paragraphs (b) and (c) of subarticle (2) and subarticles (3) and (4) of article 355AX, and article 355AZ which are found in article 74 of the Act above mentioned shall come into force.” 25.", "Pursuant to the above notice, Article 355AT of the Criminal Code, in so far as relevant, now reads as follows: “(1) Subject to the provisions of subarticle (3), a person arrested and held in police custody at a police station or other authorised place of detention shall, if he so requests, be allowed as soon as practicable to consult privately with a lawyer or legal procurator, in person or by telephone, for a period not exceeding one hour. As early as practical before being questioned the person in custody shall be informed by the Police of his rights under this subarticle. ...” B. The European Convention Act 26. Article 4 of the European Convention Act, Chapter 319 of the Laws of Malta, in so far as relevant, reads as follows: “(1) Any person who alleges that any of the Human Rights and Fundamental Freedoms, has been, is being or is likely to be contravened in relation to him, or such other person as the Civil Court, First Hall, in Malta may appoint at the instance of any person who so alleges, may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the Civil Court, First Hall, for redress.", "(2) The Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person in pursuance of subarticle (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement, of the Human Rights and Fundamental Freedoms to the enjoyment of which the person concerned is entitled: Provided that the court may, if it considers it desirable so to do, decline to exercise its powers under this subarticle in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other ordinary law. (3) If any proceedings in any court other than the Civil Court, First Hall, or the Constitutional Court any question arises as to the contravention of any of the Human Rights and Fundamental Freedoms, that court shall refer the question to the Civil Court, First Hall, unless in its opinion the raising of the question is merely frivolous or vexatious; and that court shall give its decision on any question referred to it under this subarticle and, subject to the provisions of subarticle (4), the court in which the question arose shall dispose of the question in accordance with that decision. (4) Any party to proceedings brought in the Civil Court, First Hall, in pursuance of this article shall have a right of appeal to the Constitutional Court.” C. Domestic case-law 1. Cases decided in 2011 27. In the wake of the new law, a number of accused persons instituted constitutional redress proceedings during the pendency of the criminal proceedings against them or requested the relevant criminal courts to make a referral to the constitutional jurisdictions.", "In 2011 three cases were decided by the Constitutional Court (in similar yet never identical formations of three judges), namely The Police vs Alvin Privitera of 11 April 2011, The Police vs Esron Pullicino of 12 April 2011, and The Police vs Mark Lombardi, also of 12 April 2011. In the three cases the Constitutional Court held that the claimants had suffered a breach of their right to a fair trial under Article 6 of the Convention in so far as they had not been legally assisted. The relevant details are as follows: The Police vs Alvin Privitera, Constitutional Court judgment of 11 April 2011, upholding a first-instance judgment following a referral by the Court of Magistrates as a Court of Criminal Judicature. 28. The case concerned the fact that the accused, at the time eighteen years of age, had been questioned in the absence of a lawyer.", "During questioning he had denied selling heroin to X (who died of an overdose) but had admitted to selling cannabis to him. Subsequently the accused alleged that he had been forced by the investigating official to admit to the accusations. This was the sole evidence which the prosecution had in hand in order to institute proceedings against the applicant for possession and trafficking of drugs. 29. The Constitutional Court confirmed that it should apply the Grand Chamber judgment in Salduz v. Turkey and the subsequent line of case-law.", "In particular it noted that, in order for the right to a fair trial to remain sufficiently “practical and effective”, Article 6 § 1 required that, as a rule, access to a lawyer should be provided as from the first questioning of a suspect by the police. Even where compelling reasons might exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence would in principle be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer were used for a conviction. Given that the absence of a lawyer at the investigation stage could irretrievably prejudice the accused’s right, the court considered that where there existed sufficient reasons indicating a violation, it should not wait for the end of the criminal proceedings in order to examine the merits of the case. 30.", "The Constitutional Court rejected the Government’s plea that the applicant had not raised the issue until the prosecution had finished submitting evidence, noting that in the domestic legal system there was no deadline for raising constitutional claims. It found the Government’s argument that the accused had not been forced to give a statement, and that he had been informed of his right to remain silent, to be irrelevant given the established case-law of the European Court of Human Rights and in particular the Salduz judgment. 31. The right to legal assistance was linked to the right not to incriminate oneself; it allowed a balance to be reached between the rights of the accused and those of the prosecution. The argument that it would otherwise be difficult for the prosecution to reach a conviction could not be taken into consideration for the purposes of this balance.", "The Constitutional Court further noted that Mr Salduz’s young age had not been the decisive factor for the finding in that case, but merely a further argument. Moreover, it was not necessary in the case at hand to examine whether there existed any compelling reasons to justify the absence of a lawyer during questioning or whether such restrictions prejudiced the case, in so far as at the relevant time Maltese law had not provided for the right to legal assistance at that stage of the investigation and therefore there had been no need for the accused to request it. There had therefore been a systemic restriction on access to a lawyer under the relevant legal provision in force at the time. It followed that there had been a violation of Article 6 § 3 (c) in conjunction with Article 6 § 1. 32.", "The Constitutional Court further noted that in its view the right to be assisted by a lawyer must be granted from the very start of the investigation and before the person being investigated gave a statement, but it did not require that an accused be assisted during questioning. 33. The Constitutional Court did not order the statements to be expunged from the record of the proceedings, but it ordered that the Court of Criminal Judicature be informed of the said judgment so that it could decide accordingly on the validity and admissibility of the statement made. The Police vs Esron Pullicino, judgment of 12 April 2011 upholding a first-instance judgment following a referral by the Court of Magistrates as a Court of Criminal Judicature. 34.", "The circumstances of the case were similar to the case above in so far as the accused had given a statement while in police custody in the absence of a lawyer and this statement was the sole evidence for the prosecution. The accused was, moreover, a minor. The Constitutional Court reiterated the same reasoning applied in the case of Alvin Privitera, cited above, stopping short, however, of reiterating the court’s opinion in relation to assistance during the actual questioning (see paragraph 32 above). The Police v Mark Lombardi, judgment of 12 April 2011 upholding a first-instance judgment following a referral by the Court of Magistrates as a Court of Criminal Judicature. 35.", "In this case the accused had made two statements in the absence of a lawyer, in the first denying any connection with possession or trafficking of drugs, and in the second admitting to having taken ecstasy pills (which amounts to possession according to the case-law) but denying trafficking, although he had mentioned facts which connected him to other persons involved in trafficking. 36. The Constitutional Court reiterated the same reasoning applied in the cases of Alvin Privitera and Esron Pullicino, cited above. It further noted case-law subsequent to Salduz in which the Court had found a violation despite the fact that the applicant had remained silent while in police custody (Dayanan v. Turkey, no. 7377/03, 13 October 2009) and despite there being no admission of guilt in the statements given by the applicants (Yeşilkaya v. Turkey, no.", "59780/00, 8 December 2009). In Boz v. Turkey (no. 2039/04, 9 February 2010) the Court had stressed that the systemic restriction of access to a lawyer pursuant to the relevant legal provisions breached Article 6. The Constitutional Court further referred to the finding in Cadder v. Her Majesty’s Advocate [2010] UKSC 43, which concerned the same situation in the Scottish legal system and where that court had agreed to follow Salduz to the letter. 37.", "The Constitutional Court added that Salduz should not apply retroactively to cases which had become res judicata. 2. Subsequent cases 38. Following the above-mentioned judgments of 2011, the Constitutional Court started to consider Salduz as an exceptional case and to interpret it to the effect that a number of factors had to be taken into consideration when assessing whether a breach of Article 6 had occurred (see, for example, Charles Stephen Muscat vs The Attorney General, 8 October 2012; Joseph Bugeja vs The Attorney General, 14 January 2013; The Police vs Tyron Fenech, 22 February 2013; and The Police vs Amanda Agius, also of 22 February 2013, and the Constitutional Court’s reasoning in the applicant’s case). As a result, a number of cases where the accused had not been represented by a lawyer – because the matter was not regulated in Maltese law – were found not to violate the Convention and the Constitution.", "Nevertheless, in The Republic of Malta vs Alfred Camilleri of 12 November 2012 the Constitutional Court, in the particular circumstances of the case, found a violation of the accused’s fair trial rights, in particular because he had not even been cautioned by the police. However, following a request for retrial which was upheld by a judgment of the Constitutional Court of 31 January 2014, no violation was found in that case because the accused, who had given a statement in the absence of a lawyer, had not been forced to reply to the questions put to him by the police, nor was he particularly vulnerable to the extent that he would have required the assistance of a lawyer. The accused was fifty-five years old and therefore mature. While he had never been to prison or been questioned, he had already been found guilty of minor charges and therefore was acquainted with the law. Lastly, his statement had not been the only evidence, as some police officers had been eyewitnesses to his handling of the drugs in issue.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 3 IN CONJUNCTION WITH ARTICLE 6 § 1 OF THE CONVENTION 39. The applicant complained under Article 6 § 3 (c) in conjunction with Article 6 § 1 about the lack of legal assistance while in police custody, relying on the judgment in Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008). The relevant provisions read as follows: “1.", "In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... 3. Everyone charged with a criminal offence has the following minimum rights: (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; ...” 40. The Government contested that argument. A. The Government’s objection that the complaint is premature 41.", "The Government submitted that the applicant’s complaint was premature as the trial by jury had not yet taken place. It was thus possible that the applicant would not be found guilty, in which case he could not be considered a victim in terms of the Convention (they referred to Bouglame v. Belgium (dec.), no. 16147/08, 2 March 2010). The Government contended that examining the applicant’s complaint at this stage would not enable the Court to assess the basis of the applicant’s “conviction”, which had not yet taken place. The Government further noted that the constitutional jurisdictions had not “opted” to take cognisance of the case, but simply could not decline the exercise of jurisdiction given that the applicant’s referral request had been accepted by the Criminal Court.", "B. The Court’s assessment 42. The Court accepts the Government’s argument that the constitutional jurisdictions had no choice but to take cognisance of the case according to the functioning of the domestic system. However, the Court notes that those jurisdictions did not take cognisance of the case only to find later that the claim was inadmissible. In fact, the constitutional jurisdictions did not reject the case as being premature despite the fact that the proceedings were still pending.", "Nor did they reject it for non-exhaustion of ordinary remedies on the ground that the applicant had not asked for a lawyer (admittedly, as established in domestic case-law (see paragraph 31 above), there would have been little point in so doing given the inexistence of such a right in Maltese law at the time). On the contrary, the constitutional jurisdictions took cognisance of the case, opting to examine it on the merits and give judgment accordingly. 43. The Court notes that according to its constant case-law the question whether or not court proceedings satisfy the requirements of Article 6 § 1 of the Convention can only be determined by examining the proceedings as a whole, that is, once they have been concluded. However, the Convention organs have also held that it is not impossible that a particular procedural element could be so decisive that the fairness of the proceedings could be determined at an earlier stage (see, inter alia, X. v. Norway, Commission decision of 4 July 1978, Decisions and Reports (DR) 14, p. 228; Bricmont v. Belgium, 7 July 1989, Series A no.", "158; Papadopoulos v. Greece, (dec.), no. 52848/99, 29 November 2001; Arrigo and Vella v. Malta (dec.), no. 6569/04, 10 May 2005 and Pace v. Malta (dec.), no. 30651/03, 8 December 2005). At the same time, the Convention organs have also consistently held that such an issue can only be determined by examining the proceedings as a whole, save where an event or particular aspect may have been so significant or important that it amounts to a decisive factor for the overall assessment of the proceedings as a whole – pointing out, however, that even in those cases it is on the basis of the proceedings as a whole that a ruling should be made as to whether there has been a fair hearing of the case (see, inter alia, X v. Switzerland, no.", "9000/80, Commission decision of 11 March 1982, DR 28, p. 127; B v. Belgium, Commission decision of 3 October 1990, DR 66, p. 105; Cervero Carillo v. Spain, (dec.), no. 55788/00, 17 May 2001; Mitterrand v. France (dec.) no. 39344/04, 7 November 2006 and more recently, De Villepin v. France (dec.), no. 63249/09, 21 September 2010). 44.", "The Court observes that it has found a number of violations of the provisions at issue, in different jurisdictions, arising from the fact that an applicant did not have legal assistance while in police custody because it was not possible under the law then in force (see, for example, Salduz, cited above, § 56; Navone and Others v. Monaco, nos. 62880/11, 62892/11 and 62899/11, §§ 81-85, 24 October 2013; Brusco v. France, no. 1466/07, § 54, 14 October 2010; and Stojkovic v. France and Belgium, no. 25303/08, §§ 51-57, 27 October 2011). A systemic restriction of this kind, based on the relevant statutory provisions, was sufficient in itself for the Court to find a violation of Article 6 (see, for example, Dayanan v. Turkey, no.", "7377/03 §§ 31-33, 13 October 2009; Yeşilkaya v. Turkey, no. 59780/00, 8 December 2009; and Fazli Kaya v. Turkey, no. 24820/05, 17 September 2013). The same situation appears to obtain in the present case. 45.", "Nevertheless, unlike in the above mentioned examples, the criminal proceedings in the present case have not come to an end. Thus, despite the peculiar interpretation of the Court’s case-law by the Constitutional Court, and although it may be unlikely, it cannot be entirely excluded that the courts of criminal jurisdiction, before which the case is heard, hear the case in the same circumstances that would have existed had the right to legal-assistance during pre-trial stage not been disregarded, namely by expunging from the records the relevant statements. The Court notes that, if, because of the limitations of the applicable criminal procedural law, it is not possible given the stage reached in the pending proceedings, to expunge from the records the relevant statements (whether at the request of the applicant or by the courts of criminal jurisdiction of their own motion), it cannot be excluded that the legislature take action to ensure that a procedure is made available at the earliest opportunity for this purpose. 46. Furthermore, even assuming that the above scenario would not come to be, the Court considers that it cannot be excluded that the applicant be eventually acquitted or that proceedings be discontinued.", "47. The Court observes that applications concerning the same subject matter as that at issue in the present case were rejected as premature when the criminal proceedings were still pending (see, Kesik v. Turkey, (dec.), no. 18376/09, 24 August 2010 and Simons v. Belgium (dec.), no. 71407/10, 28 August 2012) and, where the applicant had ultimately been acquitted, the complaint was rejected on the ground that the applicant had no victim status (see Bouglame v. Belgium (dec.), no. 16147/08, 2 March 2010).", "48. The Court finds no reason to deem otherwise in the present case. Without prejudice to the applicant’s possibility of bringing new proceedings before this Court in the event of a conviction by the domestic courts, as matters stand to date, given that the criminal proceedings against the applicant are currently pending before the domestic courts, the Court finds this complaint to be premature. Consequently, this part of the application must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention, for non-exhaustion of domestic remedies. II.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 49. The applicant also complained about the conflicting Constitutional Court judgments on the matter delivered by the country’s highest court, which ran counter to the principle of legal certainty as upheld in Beian v. Romania ((no. 1), no. 30658/05, ECHR 2007‑V (extracts)). 50.", "The Government contested that argument. A. Admissibility 51. The Government submitted that the applicant had failed to exhaust domestic remedies in respect of his complaint concerning the conflicting case-law of the Constitutional Court, which had never been brought before the domestic courts. They further noted that the applicant could still lodge such a complaint in a fresh set of constitutional proceedings which, under the domestic rules, were not subject to a time-limit. They considered that such proceedings would not be particularly lengthy – they gave examples of two Article 6 length cases which had been decided within one year and two years and two months respectively.", "52. The applicant noted that this complaint arose from the Constitutional Court judgment and thus could not have been included in the original application before that court. He could not have been expected to institute a new set of constitutional redress proceedings subsequently given the length of such proceedings, as often remarked upon also by this Court. 53. The Court notes that it has already established, in the context of Maltese cases before it, that even though Maltese domestic law provides for a remedy against a final judgment of the Constitutional Court, the length of the proceedings detracts from the effectiveness of that remedy and that, in view of the specific situation of the Constitutional Court in the domestic legal order, in certain circumstances it is not a remedy which is required to be exhausted (see Saliba and Others v. Malta, no.", "20287/10, § 78, 22 November 2011, and Bellizzi v. Malta, no. 46575/09, § 44, 21 June 2011). 54. In the present case the criminal proceedings against the applicant started in May 2009, and to date, more than five years later, the trial by jury has not yet commenced. Moreover, given the nature of the complaint and the above-mentioned specific situation of the Constitutional Court in the domestic legal order, the Court sees no reason to find otherwise in the circumstances of the present case.", "55. Accordingly, the Government’s objection that domestic remedies have not been exhausted is dismissed. 56. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant 57. The applicant submitted that the Constitutional Court had changed its interpretation of the Salduz judgment in 2012 and 2013 (see relevant domestic law) and that different conclusions had been arrived at in such cases.", "He noted that these conflicting judgments ran counter to the principle of legal certainty. It was the Constitutional Court’s role to create certainty; however, concerning this subject matter it had done just the opposite. The applicant relied on the case of Beian (cited above). He noted that in The Police vs Alvin Privitera of 11 April 2011, The Police vs Esron Pullicino of 12 April 2011 and The Police vs Mark Lombardi, also of 12 April 2011, the Constitutional Court had held that the claimants had suffered a breach of their right to a fair trial under Article 6 of the Convention in so far as they had not been legally assisted. This interpretation had been reversed in the judgments in the cases of Joseph Bugeja vs The Attorney General, 14 January 2013, The Police vs Tyron Fenech, 22 February 2013 and The Police vs Amanda Agius, also of 22 February 2013, as well as in the applicant’s case, decided on 26 April 2013.", "The interpretation had again been reversed by the first-instance court in The Republic of Malta vs Alfred Camilleri of 12 November 2012, albeit that, pending proceedings before this Court, the decision was once again overturned by the Constitutional Court in retrial proceedings. Moreover, the Government’s argument that the Constitutional Court had created a linear interpretation dependent on the age of the victim was also disproved by the recent judgment in Taliana vs Commissioner of Police et al, (Civil Court (First Hall) constitutional jurisdiction, 30 April 2014 – now pending on appeal before the Constitutional Court), which had not found a violation despite the applicant being a minor. (b) The Government 58. The Government submitted that the case did not concern uncertainty in the interpretation of the law, but alleged uncertainty following a judgment delivered by the Court. In their view the applicant disagreed with the findings in his case and was attempting to fabricate a complaint based on the judicial interpretation of that judgment.", "59. The Government submitted that the Court’s judgments had to be interpreted by the domestic courts with reference to the specific circumstances of each case before them. They noted that the facts of the cases decided in 2011 had been different to those decided subsequently. 60. Moreover, the Government submitted that it was a natural consequence of a judicial system based on various strata of jurisdiction that judgments might vary over the years (they referred to Santos Pinto v. Portugal, no.", "39005/04, 20 May 2008). The Government noted that in Albu and Others v. Romania (nos. 34796/09 etc., 10 May 2012), the Court had reiterated the general principles applicable in cases concerning conflicting court decisions. The Court had emphasised that it was not its function to deal with errors of fact or law allegedly committed by a national court, unless they had infringed rights and freedoms protected by the Convention. Furthermore, it had reiterated that the possibility of conflicting court decisions was an inherent trait of any judicial system.", "For the Court it was important to establish whether “profound and long-standing differences” existed in the case-law of the domestic courts, whether the domestic law provided for machinery for overcoming those inconsistencies, whether that machinery had been applied and, if appropriate, to what effect. A key consideration in assessing the above was whether a certain stability in legal situations had been ensured, as legal certainty contributed to public confidence in the courts. However, the requirements of legal certainty did not create a right of consistency of case-law, given that case-law development was not, in itself, contrary to the proper administration of justice. The Court had observed that achieving consistency of the law might take time, and that periods of conflicting case-law might therefore be tolerated without undermining legal certainty. 61.", "The Government distinguished between the judgments cited by the applicant, which concerned Article 6 complaints in connection with criminal proceedings that had come to an end, and the judgment in the case of the applicant, which concerned criminal proceedings that were still pending. They submitted that the applicant’s case should thus be compared with cases falling into the latter category, such as Charles Steven Muscat vs the Attorney General, decided by the Constitutional Court on 8 October 2012; The Police vs Patrick Spiteri, decided by the Constitutional Court on 25 January 2013; The Police vs Amanda Agius and The Police vs Tyrone Fenech, both decided by the Constitutional Court on 22 February 2013; and The Republic of Malta vs Carmel Camilleri, also decided by the Constitutional Court on 22 February 2013. 62. The Government submitted that in the Muscat, Spiteri and Camilleri cases the Constitutional Court had not found a violation. On the other hand, in the Agius and Fenech cases a violation had been found by the Constitutional Court because they were very similar to the Privitera, Lombardi and Pullicino cases cited by the applicant.", "According to the Government’s analysis of the cases, it was clear that the reason for the finding of a violation had been the vulnerability of the accused and the fact that the only evidence had been their own admission of guilt, made in the absence of legal assistance. Ms Agius and Mr Fenech had been very young when the statements had been taken, and on the basis of their age the domestic courts had found that this factor was decisive when analysing whether the individual had suffered a violation as a result of the lack of legal assistance. In the other three cases (Muscat, Spiteri and Camilleri), like in the applicant’s case, the accused had been mature adults: Mr Muscat had given the statement while he was imprisoned following a sentence for a double murder that he had committed, and Mr Spiteri had been a high-ranking police officer. In all four cases (Muscat, Spiteri, Camilleri and the applicant’s) there was other evidence besides the statements, and the latter did not contain an admission of guilt on the part of the individual concerned. They further noted that the case of Taliana, cited by the applicant, was pending on appeal and thus could not be compared.", "63. In the Government’s view, contrary to that asserted by the applicant, the Constitutional Court had managed to create legal certainty by establishing a pattern in the manner in which cases concerning the subject matter at issue were being dealt with. From an analysis of the judgments it clearly transpired that the Constitutional Court attributed importance to the vulnerability of the individual in those cases where the only evidence that the prosecution had was an admission of guilt made in the statement. The Constitutional Court has also established that each and every case was considered on its own merits, and if it transpired that the person was not a vulnerable person, or when there was other evidence besides an admission of guilt made in a statement, the Constitutional Court did not find an Article 6 violation. Thus, there were no divergences in the case-law of the Constitutional Court.", "2. The Court’s assessment (a) General principles 64. One of the fundamental aspects of the rule of law is the principle of legal certainty (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999‑VII), which, inter alia, guarantees a certain stability in legal situations and contributes to public confidence in the courts (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 57, 20 October 2011).", "The persistence of conflicting court decisions, on the other hand, can create a state of legal uncertainty likely to reduce public confidence in the judicial system, whereas such confidence is clearly one of the essential components of a State based on the rule of law (see Vinčić and Others v. Serbia, nos. 44698/06 and others, § 56, 1 December 2009). However, the requirements of legal certainty and the protection of the legitimate confidence of the public do not confer an acquired right to consistency of case-law (see Unédic v. France, no. 20153/04, § 74, 18 December 2008) and case-law development is not, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement (see Atanasovski v. the former Yugoslav Republic of Macedonia, no. 36815/03, § 38, 14 January 2010).", "65. The Court has been called upon a number of times to examine cases concerning conflicting court decisions and has thus had an opportunity to pronounce judgment on the conditions in which conflicting decisions of domestic supreme courts were in breach of the fair trial requirement enshrined in Article 6 § 1 of the Convention (see Paduraru v. Romania, no. 63252/00, ECHR 2005‑XII (extracts); Beian v. Romania (no. 1), no. 30658/05, ECHR 2007‑XIII (extracts); Iordan Iordanov and Others v. Bulgaria, no.", "23530/02, 2 July 2009; Perez Arias v. Spain, no. 32978/03, 28 June 2007; Ştefan and Ştef v. Romania, nos. 24428/03 and 26977/03, 27 January 2009; Taussik v. the Czech Republic (dec.), no. 42162/02, 2 December 2008; and Tudor Tudor v. Romania, no. 21911/03, 24 March 2009).", "In so doing it has explained the criteria that guided its assessment, which consist in establishing whether “profound and long-standing differences” exist in the case-law of a supreme court, whether the domestic law provides for machinery for overcoming these inconsistencies, whether that machinery has been applied and, if appropriate, to what effect (see Iordan Iordanov and Others, cited above, §§ 49-50). (b) Application to the present case 66. Having analysed the judgments brought to the Court’s attention the Court observes that the difference the applicant complains of resides not in the factual situations examined by the domestic courts (see, conversely, Erol Uçar v. Turkey (dec.), no. 12960/05, 29 September 2009) – in so far as all the claimants were subject to the blanket provision – but in the application of the law (based on case-law, namely the case-law of this Court). It also appears that the Constitutional Court originally followed the Salduz judgment strictly.", "However, at some point, notably from 2012 onwards, the Constitutional Court “restricted” its interpretation of the Salduz judgment, with the consequence that a number of persons who were subject to the systemic ban in Malta, and who therefore were not assisted by a lawyer when they made their statements, did not have the benefit of favourable judgments remedying their situation. This interpretation appears to have remained the practice thereafter, in so far as the only example brought by the applicant to demonstrate a further inconsistency was the case of The Republic of Malta vs Alfred Camilleri of 12 November 2012, which was however overturned by the Constitutional Court pending proceedings before this Court. 67. Thus, in the Court’s view, unlike in Beian (cited above), the present case does not deal with divergent approaches by the supreme court – in the present case the Constitutional Court, which is the highest court in Malta – which could create jurisprudential uncertainty, depriving the applicant of the benefits arising from the law. The situation in the present case constituted a reversal of case-law.", "In this connection the Court reiterates that, as held in S.S. Balıklıçeşme Beldesi Tarım Kalkınma Kooperatifi and Others v. Turkey (nos. 3573/05, 3617/05, 9667/05, 9884/05, 9891/05, 10167/05, 10228/05, 17258/05, 17260/05, 17262/05, 17275/05, 17290/05 and 17293/05, 30 November 2010), in the absence of arbitrariness, a reversal of case-law falls within the discretionary powers of the domestic courts, notably in countries which have a system of written law (as in Malta) and which are not, in theory, bound by precedent (see also Torri and Others v. Italy, (dec.), nos. 11838/07 and 12302/07, § 42, 24 January 2012, and Yiğit v Turkey, (dec.) no. 39529/10, §§ 21-22, 14 April 2014). 68.", "The question is, however, more complex, in that the reversal of the case-law did not concern the interpretation of domestic legal norms but of international norms, as interpreted by this Court in its case-law. In the present case the Constitutional Court of Malta departed from the principles established by the Court, a course of action which it was, in theory, free to undertake – although it removes any opportunity for the domestic authorities to make matters right in the domestic system and forces an applicant to bring proceedings before the Court under Article 34 of the Convention. Nevertheless, the Court considers that the way that domestic courts apply relevant case-law of this Court to domestic proceedings cannot by itself raise an issue of legal certainty at the domestic level. Importantly, the Court notes that there is no indication that in the national court’s application of their interpretation of this Court’s case-law in the applicants’ case, there was any arbitrariness capable of raising an issue under the Convention. Indeed, it appears that within their autonomous interpretation of the case-law, the domestic courts were coherent and respected the criteria of judicial assessment.", "69. In these circumstances the Court considers that no issue arises in respect of Article 6 § 1 as regards the notion of legal certainty in the present proceedings. There has accordingly been no violation of that provision. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 70.", "The applicant further complained that he had been treated differently to others in his situation, as evidenced by the conflicting constitutional judgments, without any objective and reasonable justification. In his view, this was contrary to Article 14 of the Convention, which 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.” 71. The Government contested that argument. A. The parties’ submissions 72.", "The applicant considered that despite his being in an identical, analogous or relevantly similar situation to other persons who had not been assisted by a lawyer, the Constitutional Court had not found in his favour. That decision had been subjective and not based on any objective justification, and was therefore discriminatory. He noted that discrimination did not have to be based on one specific ground, although in the present case, according to the Government, it appeared that the discrimination had been on the basis of age. 73. The Government submitted that the applicant had failed to exhaust domestic remedies in respect of his complaint, which had never been brought before the domestic courts.", "They further noted that the applicant could still lodge such a complaint in a fresh set of constitutional proceedings, which under domestic rules were not subject to a time-limit. 74. As to the merits, the Government submitted that if the Court found no violation of the substantive provision it could not find a violation of Article 14. Moreover, the applicant had not provided evidence linking the alleged discrimination with any of the grounds provided for by Article 14. Lastly, the Government submitted that the applicant had not proved that he had been treated differently to others in the same situation, namely mature persons who had given a statement during the investigation stage but had not admitted to the crime and whose proceedings contained other evidence in connection with the offence.", "In fact, the applicant had been treated in the same manner as others in that position and had therefore not suffered any discrimination. B. The Court’s assessment 75. The Court refers to the considerations it set out above (see paragraphs 53-55 above) and therefore holds that the Government’s objection that domestic remedies have not been exhausted must be rejected. 76.", "The Court reiterates that although the application of Article 14 does not presuppose a breach of the other substantive provisions of the Convention and its Protocols – 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 Mintoff v. Malta, (dec.), no. 4566/07, 26 June 2007, and Zammit Maempel v. Malta, no. 24202/10, §§ 81-82, 22 November 2011). 77. In order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous or relevantly similar situations (see D.H. and Others v. the Czech Republic [GC], no.", "57325/00, § 175, ECHR 2007, and Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008). Such a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010). The Court also points out that the grounds on which those differences of treatment are based are relevant in the context of Article 14.", "Only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see O’Donoghue and Others v. the United Kingdom, no. 34848/07, § 101, ECHR 2010 (extracts)). 78. The Court notes that, as Article 6 applies in the present case, it follows that Article 14, in conjunction with the latter provision, is also applicable. 79.", "The Court observes that the applicant, like others in his situation, has been affected by a blanket ban. There is therefore a common denominator, and the applicant can, to an extent, be considered as being in an analogous situation. However, it is also true that the domestic judgments he refers to as a means of comparison concerned individuals whose situation was different from his; in particular, they concerned young persons who had given a statement during the investigation stage and whose proceedings contained no other evidence in connection with the offence. Thus, despite the fact that the applicant claims that he was discriminated against on the basis of age, the Court considers that this is not the sole criterion on which the domestic courts based their differentiation of the cases. 80.", "Moreover, the Court notes that, while the Court’s case-law suggests that the applicant may suffer a violation of his Article 6 rights as a result of his not having been assisted by a lawyer, the Court did not find that an issue arose under the Convention as a result of the reversal of the case-law by the domestic courts. Following that reversal it appears that all cases of the same kind were examined on the basis of the same legal principles and criteria of judicial assessment (see, mutatis mutandis, Ucar v. Turkey, (dec.), no. 12960/05, 29 September 2009), namely the new interpretation given to this Court’s case-law. It also appears that those cases that were similar to the applicant’s case were rejected. 81.", "It follows that any difference in treatment was objectively and reasonably justified on the basis of the new interpretation given by the domestic courts concerning the relevant safeguard, which (however questionable it may be on the merits) must be considered as falling within the margin of appreciation of a State and therefore not contrary to Article 14 (see Pérez Arias, cited above, § 28). Furthermore, it does not appear from the case file that there was any discrimination against the applicant on any other grounds (see, in similar circumstances, David and Others v. Romania, (dec.), no. 54577/07, 9 April 2013). 82. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 83. Lastly, the applicant complained that the constitutional jurisdictions had failed to afford him an effective remedy as required by Article 13 of the Convention, in particular in so far as they had stated that the criminal court would examine whether the statements had been given under duress (sic.). They had noted that the only effective remedy for such a violation would be a retrial, or in the present case a trial without the use of the impugned evidence, ensuring that the only statements used in evidence were those obtained with a lawyer present. 84.", "The Court notes that it is unclear whether the applicant intended to lodge this complaint as, unlike the other complaints, it is not reiterated in the part of the form concerning the object of the application. In any event, the Court notes that the arguments made would be of relevance only if the constitutional jurisdictions had found in the applicant’s favour, and the complaint is therefore of little pertinence in connection with the facts of the present case, where the Constitutional Court found against the applicant. Moreover, the Court reiterates that the effectiveness of a remedy within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Sürmeli v. Germany [GC], no. 75529/01, § 98, ECHR 2006‑VII) and the mere fact that an applicant’s claim fails is not in itself sufficient to render the remedy ineffective (see Amann v. Switzerland, [GC], no. 27798/95, §§ 88-89, ECHR 2002-II).", "In the present case it has not been argued that there were no prospects of success. The Court notes that the Constitutional Court could have found in favour of the applicant and could have ordered that the relevant statements be expunged, given that the criminal proceedings were still pending. 85. It follows that the remedy in question cannot be considered to be ineffective; the complaint must therefore be rejected as being manifestly ill‑founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention. FOR THESE REASONS, THE COURT 1.", "Declares admissible, unanimously, the complaint under Article 6 § 1 in respect of the constitutional proceedings (conflicting judgments); 2. Declares inadmissible, by a majority, the complaint under Article 6 § 3 in conjunction with Article 6 § 1 concerning the criminal proceedings (lack of legal assistance while in police custody); 3. Declares inadmissible, unanimously, the remainder of the application; 4. Holds, unanimously, that there has been no violation of Article 6 § 1 of the Convention in respect of the constitutional proceedings (conflicting judgments). Done in English, and notified in writing on 2 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Milan BlaškoMark VilligerDeputy RegistrarPresident" ]

[ "...[Extraits] THE FACTS I. THE CIRCUMSTANCES OF THE CASE 1. Background to the case 8. The applicant is a German national who was born in 1945 and lives in Munich. 9.", "She owns a freight-traffic control company (Frachtenprüfstelle) and was a tariff supervisor (Tarifeur) for thirty years until 1 January 1994. 10. The activities of freight-traffic control bodies used to be governed by the Goods Transport Act (Güterkraftverkehrsgesetz) of 10 March 1983, as amended on 21 February 1992. That Act applied until 31 December 1993. It laid down compulsory rates for the transportation of goods which were fixed by tariff commissions before being approved by the Federal Minister for Transport and published in the form of a decree (Rechtsverordnung).", "The Federal Agency for Longhaul Freight Traffic (Bundesanstalt für den Güterfernverkehr) was responsible for checking that the prescribed freight tariffs were complied with. Transport operators were required to submit documents to the federal agency monthly for the purpose of tariff controls. They could either submit them to the federal agency directly or retain the services of an approved freight-tariff control body. The institution of such bodies, while not obligatory, had been provided for by statute with the aim of easing the federal agency’s workload. Most of the approved bodies were road-traffic cooperatives (Verkehrsgenossenschaften).", "However, in order to prevent these cooperatives from acquiring a monopoly, other private-law entities could also legally become approved bodies. Thus, among the approved control bodies, seven – one of which was the applicant’s company – were not road-traffic cooperatives. 11. On 1 January 1994 the Goods Traffic (Abolition of Tariffs) Act of 13 August 1993 (Gesetz zur Aufhebung der Tarife im Güterverkehr – Tarifaufhebungsgesetz – hereafter the “Tariff Abolition Act”) came into force. It was passed as part of the process, started in 1993, of achieving the European internal market of the European Economic Community.", "Article 13 of the Single European Act of 28 February 1986 had made provision for the abolition of quantitative restrictions on traffic. Being designed to further relax the controls on internal goods traffic (Binnenverkehr), the Act did away with compulsory tariffs and tariff controls and converted the federal agency into a Federal Office for Goods Traffic (Bundesamt für Güterverkehr) which was no longer responsible for tariff control but was given other functions, such as transport-market observation and statistics. 12. After tariffs were abolished there was no further call for the job of tariff supervisor. The applicant was therefore forced to close down her business and lay off her eleven members of staff.", "2. The proceedings in the Federal Constitutional Court 13. On 15 December 1993 the applicant lodged an application with the Federal Constitutional Court (Bundesverfassungsgericht) submitting that the Tariff Abolition Act was unconstitutional. 14. Her main request was for the Federal Constitutional Court to declare the Act unconstitutional on the ground that it breached her fundamental rights guaranteed by Articles 12 § 1 (right to freely practise one’s profession) and 14 § 1 (right of property) of the Basic Law (Grundgesetz), in that freight-tariff control companies, and consequently the job of tariff supervisor, had been abolished without any transitional provisions.", "In the alternative, she asked the court to order the legislature to supplement the Act with transitional provisions in order to mitigate the consequences for her of the abolition of tariffs. 15. Pointing out that the Act in question, which had not been the subject of any implementing decree, threatened her survival and that of all tariff supervisors throughout Germany, the applicant stressed the importance of the Federal Constitutional Court’s decision. She stated that she was obliged to apply directly to the Constitutional Court, whose decision would be decisive in the determination of any damages, because the issue of the constitutionality of the Act in question could not be determined by the ordinary courts. 16.", "The Federal Constitutional Court communicated the constitutional appeal to the Government and the Working Party on freight-tariff control companies (Arbeitsgemeinschaft Frachtenprüfstellen e.V.). 17. On 14 June 1994 the Federal Constitutional Court, sitting as a panel of three judges, refused to grant the applicant’s request for implementation of the Tariff Abolition Act to be temporarily suspended on the ground that the requisite conditions were not satisfied. In its nine-page decision the Constitutional Court added, however, that – as to the merits – the constitutional appeal was neither manifestly inadmissible nor manifestly ill-founded and that it raised serious issues regarding the scope and extent of freedom of occupation where measures taken by the State which did not amount to a “classic” interference with the exercise of that right were concerned. 18.", "In a letter of 24 February 1997 the registry of the Federal Constitutional Court informed the applicant that on account of the Constitutional Court’s heavy workload it had not yet been possible to fix a date for delivering a decision. 19. On 29 November 2000 the Federal Constitutional Court, sitting as a panel of three judges, decided not to allow the applicant’s constitutional appeal. In a twelve-page decision, five of which concerned the law part, it held, among other things, that since the Act in question contained no provision designed to regulate the applicant’s occupation it did not concern freedom of occupation. The abolition of tariffs was part of the process of relaxing tariff controls with a view to establishing the internal market of the European Economic Community and the legislature had adopted the measure within the margin of appreciation available to it in determining the new objectives regarding its economic policy.", "It had to be regarded as the transition from an interventionist system, in which freight tariffs were fixed, to a free market system. The subject of the Act in question was not the position of tariff-control bodies; the purpose was to relieve goods transport companies of the duty to comply with tariffs that had hitherto been compulsory. Admittedly, a consequence of that was that there was no further call for the applicant’s professional occupation, but the legislature was not obliged to take account of the position of tariff-control companies as these were not entitled to assert a right to have the former tariff system maintained in order to guarantee the survival of their professional occupation. 20. Nor did the Federal Constitutional Court find a breach of the right of property within the meaning of Article 14 of the Basic Law.", "It pointed out that the expectation of future earnings was not protected by that provision. The applicant’s licence enabling her to practise her profession could only confer a right on her (Rechtsposition) as long as a licence was necessary. With the abolition of freight tariffs there was no longer any point in maintaining the licence system and the applicant was therefore not entitled to claim that it should be maintained. 21. The Federal Constitutional Court also held that, as there had not been a breach of the fundamental rights guaranteed by the Basic Law, the applicant could not rely on the protection of legitimate expectation (Vertrauensschutz) which might have made it necessary to enact transitional provisions.", "It observed that the contract between the applicant and the federal agency which entitled the former to charge for tariff-control costs on the latter’s behalf, in consideration of a commission, could be rescinded on six months’ notice. The applicant’s expectation of pursuing her professional occupation could not therefore exceed that period. The Federal Constitutional Court added that the changes in the tariff system had been foreseeable, given that the legislative process culminating in the Act being passed had lasted several years. Accordingly, the legislature was not required to provide the applicant with an alternative professional occupation in the federal office. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 1. The Basic Law 22. Article 12 of the Basic Law (Grundgesetz) guarantees everyone the right to freely practise his or her profession and Article 14 guarantees the right of property. Article 93(1) provides: “The Federal Constitutional Court shall rule: ... 4. (a) on constitutional appeals which may be lodged by anyone who considers that the public authorities have infringed one of his or her fundamental rights or one of his or her rights guaranteed under Articles 20(4), 33, 38, 101, 103 and 104 [of the Basic Law].” Article 100 § 1 provides as follows: “Where a court considers unconstitutional a law whose validity is relevant to its decision, the proceedings shall be stayed and the question submitted ... to the Federal Constitutional Court if the present Basic Law is considered to have been breached...” 2.", "The Federal Constitutional Court Act 23. Section 31(1) of the Federal Constitutional Act of 11 August 1993 (Gesetz über das Bundesverfassungsgericht) provides that the decisions of the Federal Constitutional Court shall bind the constitutional bodies of the Federal State and the federated States (Länder) and all the national courts and authorities. Section 31(2) confers statutory force on any decision of the Federal Constitutional Court declaring a law unconstitutional following a constitutional appeal lodged by an individual. Section 32(1) empowers the Federal Constitutional Court to order interim measures if there is a particular reason for doing so in the interests of the general good. The relevant provisions relating to the lodging of a constitutional appeal are worded as follows: Section 90 “1.", "Anyone who claims that one of his basic rights or one of his rights under Articles 20(4), 33, 38, 101, 103 or 104 of the Basic Law has been violated by a public authority may lodge a complaint of unconstitutionality with the Federal Constitutional Court. ...” Section 93(3) “If the constitutional appeal is lodged against a law or any other measure taken by a public authority in respect of which no remedy is available it can only be lodged during the year following the entry into force of the law in question or the date on which the measure in question takes effect.” Section 95(3) “If a complaint of unconstitutionality against a law is upheld, the law shall be declared null and void. The same shall apply if a complaint of unconstitutionality pursuant to sub-section 2 above is upheld because the quashed decision is based on an unconstitutional law ...” 3. The Goods Traffic Act 24. Section 58 of the Goods Traffic Act (Güterkraftverkehrsgesetz) of 10 March 1983, amended on 21 February 1992, provided inter alia: “1.", "Every month operators shall submit to the Federal Agency for Longhaul Freight Traffic [Bundesanstalt für den Güterfernverkehr] the necessary tariff-control documents. ... 2. If the operator instructs a freight-tariff control company to submit the documents [referred to in sub-section 1], it shall inform the Federal Agency for Longhaul Freight Traffic accordingly. Freight-tariff control bodies must be in possession of a licence issued by the federal agency. 3.", "The Federal Minister for Transport shall fix, by decree, the terms and conditions of freight-tariff control...” Section 59(1) provided, inter alia, that freight-tariff control bodies within the meaning of section 58 could not be approved unless a guarantee was provided that the controllers had the necessary professional and personal qualifications and the federal agency’s instructions were complied with. It also provided that the licence would be revoked if one of the above-mentioned conditions was no longer satisfied. 4. Goods Traffic (Abolition of Tariffs) Act 25. Section 1 of the Tariff Abolition Act (Gesetz zur Aufhebung der Tarife im Güterverkehr – Tarifaufhebungsgesetz) of 13 August 1993 concerned the amendment of the Goods Traffic Act.", "Paragraph 15 of that provision empowered the Federal Transport Minister to modify the decrees on freight tariffs following abolition of the tariffs. Paragraph 16 repealed paragraphs 20a to 23 of the Goods Traffic Act which dealt with the fixing of tariffs. Paragraphs 38 and 39, which amended sections 58 and 59 of the Goods Traffic Act, set forth the new functions of the new Federal Office for Goods Traffic, among which were transport-market observation and statistics. 5. The State’s civil liability 26.", "Although the State’s liability is enshrined in Article 34 of the Basic Law read in conjunction with Article 839 of the Civil Code, it cannot be engaged, according to the relevant settled case-law of the Federal Court of Justice, in respect of a legislative measure (see, for example, the judgments of 29 March 1971 (no. III ZR 110/68), Reports of Judgments and Decisions (Entscheidungssammlung des Bundesgerichtshofs in Zivilsachen – BGHZ), volume 56, pp. 40 et seq., and of 24 October 1996 (no. III ZR 127/91), Reports, volume 134, pp. 30 et seq.).", "In its judgment of 12 March 1987 (no. III ZR 216/85), Reports, volume 100, pp. 136 et seq.) the Federal Court of Justice held that that line of authority applied even where the law giving rise to the alleged violation was unconstitutional. That judgment was upheld by the Federal Constitutional Court in a decision of 13 November 1987 (no.", "1 BvR 739/87). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 27. The applicant claimed that the length of the proceedings in the Federal Constitutional Court had exceeded the reasonable time-limit provided for in 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...” ... 2. The Court’s assessment 30.", "The Court reiterates that in order for Article 6 to apply there must have been a dispute over a 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. The outcome 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. Lastly, the right must be a civil one (see, for example, Le Compte, Van Leuven and De Meyere v. Belgium of 23 June 1981, Series A no. 43, pp.", "21-22, § 47; Z and Others v. the United Kingdom [GC], no. 29392/95, § 87, ECHR 2001-V; and, lastly, Gutfreund v. France, no. 45681/99, § 38, ECHR 2003-VII). 31. The Court reiterates also that, in accordance with its established case-law, proceedings can come within the scope of Article 6 § 1 even if they take place before a Constitutional Court (see Kraska v. Switzerland, judgment of 19 April 1993, Series A no.", "254‑B, pp. 48-49, § 26; Pauger v. Austria, judgment of 28 May 1997, Reports of Judgments and Decisions 1997‑III, p. 894, § 46; Pierre-Bloch v. France, judgment of 21 October 1997, Reports of Judgments and Decisions 1997‑VI, pp. 2222-23, § 48; Krčmář and Others v. Czech Republic, no. 35376/97, § 36, 3 March 2000; Klein v. Germany, no. 33379/96, § 26, 27 July 2000; Janković v. Croatia (dec.), no.", "43440/98, ECHR 2000‑X; Tričković v. Slovenia, no. 39914/98, §§ 36-41, 12 June 2001; and Diaz Aparicio v. Spain, no. 49468/99, 11 October 2001). 32. In that connection it matters little that the Constitutional Court considered the case on a referral of a question for a preliminary ruling (see Ruiz-Mateos v. Spain, judgment of 23 June 1993, Series A no.", "262, pp. 19-20, §§ 35‑38; Pammel and Probstmeier v. Germany, judgments of 1 July 1997, Reports 1997-IV, pp. 1109-10, §§ 53-58, and pp. 1135-36, §§ 48-53, respectively) or on a constitutional appeal lodged against judicial decisions (see Becker v. Germany, no. 45448/99, 26 September 2002, and Soto Sanchez v. Spain, no.", "66990/01, 25 November 2003). 33. The same is true, in theory, where the Constitutional Court examines an appeal lodged directly against a law if the domestic legislation provides for such a remedy (see Hesse-Anger and Anger v. Germany (dec.), no. 45835/99, pp. 362-64, ECHR 2001-VI, and, mutatis mutandis, Wendenburg and Others v. Germany (dec.), no.", "71630/01, 6 February 2003, sub 3; see also Süßmann v. Germany, judgment of 16 September 1996, Reports 1996-IV, p. 1171, § 40). (a) Recognised law 34. The Court notes that under German law the State’s liability cannot be engaged in respect of a law passed by the legislature. That is clear from the settled case-law of the Federal Court of Justice (see paragraph 27 above). The present case is therefore distinguishable from the Baraona judgment in which the Court had pointed out that “the applicant could claim on arguable grounds to have a right that is recognised under Portuguese law as he underst[ood] it”, given that “the Lisbon Administrative Court had given ... a preliminary decision ... declaring the case to be admissible ... and that State Counsel did not appeal” (see Baraona, cited above, p. 17, § 41).", "35. In the instant case the applicant complained that her professional occupation had ceased as a result of the Act in question and relied in that connection on Articles 12 and 14 of the Basic Law which guaranteed the right to freely practise one’s profession and the right of property respectively. The dispute therefore concerned the very existence of rights which could be said, on arguable grounds, to be recognised under domestic law (see Kraska, cited above, p. 48, § 24). The Court reiterates that the right being determined within the meaning of Article 6 § 1 of the Convention does not necessarily have to attract the protection of the Convention (see Editions Périscope v. France, judgment of 26 March 1992, Series A no. 234‑B, p. 64, § 35, and H. v. Belgium of 30 November 1987, Series A no.", "127-B, p. 31, § 40). 36. The fact that the proceedings before the Federal Constitutional Court did not involve an individual right but concerned the review of an Act should not in theory alter that finding (see Procola v. Luxembourg, judgment of 28 September 1995, Series A no. 326, p. 14, §§ 36-37), particularly as the applicant in the present case had alleged that the Act in question infringed her fundamental rights guaranteed by the Basic Law (see, by converse implication, Giesinger und Kopf GmbH & Co. KG and Alfons Giesinger v. Austria, no. 13062/87, Commission decision of 29 May 1991, Decisions and Reports 70, p. 152).", "The Court also notes that the Federal Constitutional Court found it necessary to communicate the appeal to the Government and the Working Party on freight-tariff control companies, before giving a twelve-page ruling on the merits. Moreover, in its decision of 14 June 1994 refusing to order the temporary suspension of the Tariff Abolition Act, the Federal Constitutional Court held that the appeal was neither manifestly inadmissible nor manifestly ill-founded on the merits and that it raised serious issues regarding the scope and extent of freedom of occupation where measures taken by the State which did not amount to a “classic” interference with the exercise of that right were concerned. Furthermore, in accordance with Article 93 § 1, paragraph 4 (a) of the Basic Law (see paragraph 22 above), a constitutional appeal can only be lodged where the party concerned considers that the public authorities have infringed one of his or her fundamental rights. 37. In conclusion, it can hardly be claimed that the proceedings concerned neither the existence nor the extent or manner of exercise of a right recognised by domestic law.", "Accordingly, the Court considers that the proceedings concerned a right recognised under domestic law. (b) Genuine and serious dispute directly decisive for the right in question 38. The Government submitted that, even in the event of a decision of the Federal Constitutional Court declaring the law in question to be unconstitutional, the applicant could not have engaged the civil liability of the State. The proceedings had not therefore been decisive for the right on which the applicant had relied, namely the right to obtain damages. 39.", "The Court notes that, according to the case-law of the Federal Court of Justice, which was upheld by the Federal Constitutional Court, the State’s civil liability cannot be engaged if the measure giving rise to the alleged violation is a law, albeit an unconstitutional one (see paragraph 26 above). In this respect the present case may be distinguished from the above-mentioned Procola case (p. 15, § 39), where the annulment of the impugned orders would have enabled the applicant association to bring proceedings in the civil courts to recover the sums claimed. 40. It also notes that the Constitutional Court has power to judge whether a law is compatible with the Basic Law either on the application of a domestic court for a preliminary ruling or on a constitutional appeal lodged directly against the law within one year of its enactment. An issue arises as to the consequences that the annulment of the Act in question by the Federal Constitutional Court might have had.", "The Court notes that, in concluding that a law is unconstitutional, the Federal Constitutional Court usually confines itself to ordering the legislature to modify the impugned provision or provision, possibly within a specified period. The Federal Constitutional Court also has power, under section 32 of the Federal Constitutional Court Act (see paragraph 23 above), to order interim measures not only suspending implementation of a provision but also having the effect of a temporary law pending the entry into force of a new law. 41. The Court considers that an assessment of the consequences of a decision “favourable” to the applicant would be purely speculative even if it seems unlikely that the Constitutional Court, several years later, would have simply repealed the Act in question and ordered the reintroduction of the tariff system, especially as the abolition of the tariffs was part of the process of establishing the internal market of the European Economic Community. 42.", "The Court considers, however, that the Government have not shown that a decision declaring the Act in question unconstitutional would have had no effect on the applicant’s occupational status. In her constitutional appeal she complained of the lack of a transitional period which would have helped her to adjust to the changes and relied on the principle of the protection of legitimate expectation. It can hardly be claimed that had the Federal Constitutional Court given a decision within a reasonable time allowing the applicant’s appeal, it would not have had any means at its disposal to improve her position. It does not immediately appear to be beyond the bounds of possibility that it might have ordered the legislature to insert into the Act in question a provision for compensation in some cases or for a transitional period. Moreover, the Federal Constitutional Court could have ordered interim measures.", "Although, in its decision of 14 June 1994, it refused to do so, it nevertheless found that the applicant’s constitutional appeal was neither manifestly inadmissible nor manifestly ill-founded and that it raised serious issues regarding the scope and extent of freedom of occupation. 43. The Court accordingly holds that the proceedings before the Federal Constitutional Court were directly decisive for the right asserted by the applicant. (c) Determination of a civil right 44. The Court reiterates that in ascertaining whether a case concerns the determination of a civil right, only the character of the right at issue is relevant (see König v. Germany, judgment of 28 June 1978, Series A no.", "27, p. 30, § 90). It notes that in the present case the applicant relied both on the right of property and the right to freely practise one’s profession, guaranteed by Articles 14 and 12 of the Basic Law respectively. Although the right of property is in theory a civil right, the present case is different. Indeed, like the Federal Constitutional Court, the Court noted that this case concerned the expectation of future gains which could not be regarded as a possession within the meaning of Article 1 of Protocol No. 1 (see Voggenreiter v. Germany (dec.), no.", "7538/02, 28 November 2002). However, the right to freely practise one’s profession and to continue to practise it does constitute a civil right (see König, cited above, pp. 31-32, §§ 91-95; Le Compte, Van Leuven and De Meyere, cited above, pp. 21-22, §§ 46-48; H. v. Belgium, cited above, pp. 32-34, §§ 44-48; and Kraska, cited above, p. 48, §§ 23-25; see also Ferrazzini v. Italy [GC], no.", "44759/98, § §§ 25-28, ECHR 2001‑VII, CEDH 2001-VII). Accordingly, the proceedings in question concerned a civil right. 45. In conclusion, Article 6 § 1 of the Convention is applicable in the instant case. ... FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Holds that Article 6 of the Convention is applicable in the instant case; ... Done in French, and notified in writing on 8 January 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerIreneu Cabral Barreto,RegistrarPresident" ]

[ "SECOND SECTION CASE OF DOLGUN v. TURKEY (Application no. 67255/01) JUDGMENT STRASBOURG 13 June 2006 FINAL 13/09/2006 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 Dolgun v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrR.", "Türmen,MrM. Ugrekhelidze,MrsE. Fura-Sandström,MsD. Jočienė,MrD. Popović, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 23 May 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 67255/01) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Göktekin Dolgun (“the applicant”) on 15 November 2000. 2. The applicant was represented by Mr Mahmut Akdoğan, a lawyer practising in Mersin. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.", "3. On 15 September 2004 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1934 and lives in Mersin.", "5. On 20 July 1993 the General Directorate of National Roads and Highways expropriated two plots of land belonging to the applicant in Mersin in order to build a motorway. A committee of experts assessed the value of the plot of land and the relevant amount was paid to the applicant when the expropriation took place. 6. Following the applicant’s request for increased compensation, on 16 June 1994 the Mersin Civil Court awarded him additional compensation in the amount of 343,826,000 Turkish liras (TRL), plus interest at the statutory rate, applicable at the date of the court’s decision, running from 20 July 1993, the date of transfer of the title deeds.", "7. On 1 June 1998 the Court of Cassation upheld the judgment. 8. On 17 May 2000 the General Directorate of National Roads and Highways paid the applicant TRL 1,336,460,000, interest included. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 9. The relevant domestic law and practice are set out in the Akkuş v. Turkey judgment of 9 July 1997 (Reports of Judgments and Decision 1997-IV). THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 10.", "The applicant complained that the additional compensation for expropriation, which he had obtained from the authorities only after six years and ten months of court proceedings, had fallen in value, since the default interest payable had not kept pace with the very high rate of inflation in Turkey. He relied on Article 1 of Protocol No. 1, which reads insofar as relevant as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.” A. Admissibility 11. The Government asked the Court to dismiss the application as inadmissible for failure to comply with the six-month time-limit under Article 35 § 1 of the Convention.", "For the purposes of that provision, time had started to run on 1 June 1998. However, the applicant had not lodged his application with Court until 15 November 2000, which is more than 2 years and five months after the final domestic decision. 12. The Court notes that the complaint before it concerns solely the authorities’ delay in paying the additional compensation and the damage sustained by the applicant as a result. 13.", "Payment was finally made by the authorities on 17 May 2000. By lodging his application with the Court on 15 November 2000, the applicant complied with the requirement set out in Article 35 § 1 of the Convention. The preliminary objection of the Government must therefore be dismissed. 14. The Court finds that, in the light of the principles it has established in its case-law (see, among other authorities, Akkuş, cited above) and of all the evidence before it, this complaint requires examination on the merits and there are no grounds for declaring it inadmissible.", "B. Merits 15. 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). 16.", "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 the additional compensation awarded by the domestic courts was attributable to the expropriating authority and caused the owner to sustain a loss in addition to that of the expropriated land. As a result of that delay and the length of the proceedings as a whole, the Court finds that the applicant has had to bear an individual and excessive burden that has upset the fair balance that must be maintained between the demands of the general interest and the protection of the right to the peaceful enjoyment of possessions. 17. Consequently, there has been a violation of Article 1 of Protocol No.", "1. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 18. The applicant also complained under Article 6 § 1 of the Convention of the unreasonable length of the court proceedings. A. Admissibility 19.", "The Government again requested the Court to declare this complaint inadmissible for non-compliance with the six-month rule since the Court of Cassation upheld the first-instance court’s judgment on 1 June 1998, whereas the application was lodged with the Court on 15 November 2000. 20. The Court reiterates that it has accepted in cases concerning length of proceedings the principle that enforcement of a judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 (see the Di Pede v. Italy and Zappia v. Italy judgments of 26 September 1996, Reports 1996-IV, pp. 1383-1384, §§ 20-24, and pp. 1410-1411, §§ 16-20 respectively).", "21. The Court observes that the additional compensation awarded by the domestic courts was paid to the applicant on 17 May 2000. It therefore considers that the “determination” within the meaning of Article 6 ended on that date. The Court notes that the application was lodged less than six months later on 15 November 2000. 22.", "In the light of the foregoing, the Court dismisses the Government’s preliminary objection. 23. 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. B.", "Merits 24. In the light of its findings with regard to Article 1 of Protocol No. 1 above (paragraphs 15-17), the Court considers that no separate examination of the case under Article 6 § 1 is necessary. 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. Pecuniary and non-pecuniary damage 26. The applicant sought compensation for pecuniary damage in the sum of 6,541 US dollars (USD) (approximately 5,450 euros - EUR). He also claimed compensation for non-pecuniary damage of USD 5,000 (approximately EUR 4,160). 27. The Government contested his claim.", "28. Using the same method of calculation as in the Akkuş judgment (cited above, p. 1311, §§ 35-36 and 39) and having regard to the relevant economic data, the Court awards the applicant EUR 1,310 for pecuniary damage. 29. The Court considers that the finding of a violation of Article 1 of Protocol No. 1 constitutes in itself sufficient just satisfaction for any non‑pecuniary damage suffered by the applicant.", "B. Costs and expenses 30. The applicant also claimed USD 475.56 (approximately EUR 395) for the costs and expenses incurred before the domestic courts and USD 42 (approximately EUR 35) for those incurred before the Court. 31. The Government contested those claims.", "32. 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 were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 35 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 1 of Protocol No. 1 of the Convention; 3. Holds that there is no need to examine separately the complaint under Article 6 § 1 of the Convention; 4.", "Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final 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 1,310 (one thousand three hundred and ten euros) in respect of pecuniary damage; (ii) EUR 35 (thirty-five euros) in respect of costs and expenses; (iii) any taxes that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 13 June 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléJ.-P. CostaRegistrarPresident" ]

[ "FIFTH SECTION CASE OF SOTOŠEK v. SLOVENIA (Application no. 33333/11) JUDGMENT STRASBOURG 7 November 2013 This judgment is final but it may be subject to editorial revision. In the case of Sotošek v. Slovenia, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Angelika Nußberger, President,Boštjan M. Zupančič,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 an application (no. 33333/11) 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 Janez Stojan Sotošek (“the applicant”), on 5 May 2011.", "2. The Slovenian Government (“the Government”) were represented by their Agent. 3. On 26 September 2012 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1939 and lives in Ljubljana. 5. On 5 May 1986 the applicant instituted civil proceedings against six defendants before the Ljubljana Basic Court claiming non-pecuniary damages for defamation. 6.", "By 28 June 1994 when the Convention came into force in respect of Slovenia, the court had scheduled eight main hearings which were all adjourned. 7. A hearing was scheduled for 19 September 1994 but was adjourned after the applicant had on 15 September 1994 lodged a motion for the referral of the matter to a Labour and social Court. 8. On 19 September 1994 the applicant’s motion was dismissed.", "9. By 17 September 1998 when the Ljubljana District Court held a main hearing further four scheduled hearings had been postponed, one at the request of the applicant. On the latter date the court issued its decision, granting the applicant’s claim. The defendants appealed. 10.", "On 29 March 2000 the Ljubljana Higher Court upheld the appeal and dismissed the applicant’s claim. The applicant lodged an appeal on points of law. 11. On 8 March 2001 the Supreme Court granted the applicant’s appeal on points of law and remitted the case back to the second instance court which on 21 June 2002 issued a decision to remit the case back to the first instance court. 12.", "On 29 November 2002 the applicant requested that a scheduled main hearing be postponed due to health reasons. 13. The hearing scheduled for 10 March 2003 was postponed after the applicant had on 6 March 2003 lodged a motion for suspension of the presiding judge, a motion to have disciplinary proceedings instituted against the judge, a motion to have the presiding judge excluded and a motion to transfer the case to another court. 14. On 23 April 2003 the Ljubljana District Court imposed a fine on the applicant for abusing procedural rights and for contempt of court.", "15. On 25 May 2004 the applicant made a motion to have the case transferred to another court. On 24 June 2004 the Supreme Court dismissed the motion. 16. On 31 May 2004 a main hearing was held.", "The applicant did not appear at the hearing. 17. On 11 November 2004 the court held a main hearing and issued its decision, dismissing the applicant’s claim. The applicant appealed. 18.", "On 15 June 2006 the Ljubljana Higher Court dismissed the applicant’s appeal. The applicant lodged an appeal on points of law. 19. On 9 October 2008 the Supreme Court dismissed the applicant’s appeal on points of law. The applicant lodged a constitutional appeal.", "20. On 3 November 2010 the Constitutional Court dismissed the applicant’s constitutional appeal. The decision was served on the applicant on 6 November 2010. II. RELEVANT DOMESTIC LAW 21.", "For relevant domestic law, see the judgments Lesjak v. Slovenia (no. 33946/03, 21 July 2009) and Tomažič v. Slovenia (no. 38350/02, 13 December 2007). THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 22.", "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...” 23. 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 [this] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 24. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds (see, mutatis mutandis, Lesjak v. Slovenia, no.", "33553/02, §§ 47-53, 6 April 2006 and Tomažič v. Slovenia, no. 38350/02, 13 December 2007, §§ 41-45. It must therefore be declared admissible. B. Merits 1.", "Article 6 25. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 26. It notes that the period to be taken into consideration began on 28 June 1994, when the Convention entered into force with respect to Slovenia and ended on 6 November 2010 when the Constitutional Court’s decision was served on the applicant.", "The proceedings thus lasted sixteen years and four months at four levels of jurisdiction. 27. In assessing the reasonableness of the time that elapsed after the Convention came into force with respect to Slovenia, account must be taken of the state of proceedings at the time. The Court notes in this connection that at the relevant time the proceedings had already been pending for eight years. 28.", "The Court notes that the case concerned civil proceedings and that, in the absence of any arguments to the contrary put forward by the Government, it does not appear that the proceedings were particularly complex. 29. Examining the applicant’s behaviour, the Court observes that he lodged repeated requests for postponement of the hearings and motions for transfer of the case to another court as well as motions against the presiding judge. The Court further observes that a fine was imposed on the applicant for abusing procedural rights and for contempt of court. In this respect the Court recalls that while an applicant is entitled to make use of his procedural rights, he must bear the consequences when his exercise leads to delays (see, inter alia, Malicka-Wąsowsa v. Poland (dec.), no.", "41413/98, 5 April 2001, and Peryt v. Poland, no. 42042/98, 2 December 2003). In the circumstances of this case the Court finds that the applicant’s conduct had an adverse effect on the length of the proceedings. 30. Notwithstanding the applicant’s contribution to the delays, the Court cannot ignore the fact that within the Court’s jurisdiction ratione temporis it took the first-instance court an additional four years to deliver its judgment after the case had already been pending for eight years.", "The Court also notes that after the case had been remitted back from the second instance court it took the first instance court in a renewed set of proceedings more than two years to issue a decision. 31. Having regard to the foregoing and to its case-law on the subject (see Rumpf v. Germany, no. 46344/06, §§ 41-46, 2 September 2010, Tomažič v. Slovenia, no. 38350/02, §§ 54-61, 13 December 2007, Jazbec v. Slovenia, no.", "31489/02, §§ 64-69, 14 December 2006), the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. 2. Article 13 32. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no.", "30210/96, § 156, ECHR 2000-XI). In view of its findings in the cases Tomažič v. Slovenia (no. 38350/02, 13 December 2007, §§ 41-45) and Lesjak v. Slovenia (no. 33946/03, 21 July 2009), 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 their right to have their case heard within a reasonable time, as set forth in Article 6 § 1. II.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 33. Lastly, the applicant invoked Article 6 § 1 of the Convention with regard to the alleged unfairness of the proceedings and Article 14 of the Convention. 34. Having examined the above complaints, the Court finds, in the light of all the materials in its possession, and in so far as the matters complained of are within its competence, that they do not disclose any appearance of a violation of the Articles relied on by the applicant. It follows that the remaining complaints are 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.” A. Damage 36. The applicant claimed 41,719 euros (EUR) in respect of non-pecuniary damage.", "37. The Government contested these claims. 38. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards award him EUR 7,800 under that head.", "B. Costs and expenses 39. The applicant also claimed EUR 5,913 for the costs and expenses incurred before the domestic courts. 40. The Government contested the claim.", "41. Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses in the domestic proceedings. C. Default interest 42. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the complaint concerning the excessive length of the proceedings and lack of an effective remedy admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 and Article 13 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months EUR 7,800 (seven thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 7 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stephen PhillipsAngelika NußbergerDeputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF KIRILL MARCHENKO v. RUSSIA (Application no. 5507/06) JUDGMENT STRASBOURG 9 October 2008 FINAL 09/01/2009 This judgment may be subject to editorial revision. In the case of Kirill Marchenko v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 18 September 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 5507/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Kirill Aleksandrovich Marchenko (“the applicant”), on 5 January 2006.", "2. The applicant was represented by the International Protection Centre. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights. 3. On 26 March 2007 the Court decided to give notice of the application to the Government.", "It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3). 4. The Government objected to the joint examination of the admissibility and merits of the application. The Court examined and dismissed their objection. THE FACTS THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1977 and lives in Moscow. 6. The applicant’s father owned a flat in Moscow. In June 1993, a certain K., acting on behalf of the applicant’s father, sold the flat to L. In October 1993 the applicant’s father died. Later, L. made a gift of that flat to her son.", "7. In February 1995 the applicant lodged a court action with the Butyrskiy District Court of Moscow (“the District Court”) against K. and L. and L.’s son, seeking annulment of the contract of sale of his father’s flat. The Moscow department of housing policy, the registration service and the notary who had certified the power of authority delivered by the applicant’s father were invited as third parties to the proceedings. A. First examination of the case 8.", "Between 1995 and 1997 several hearings were listed, but they were adjourned for various reasons. In 1998 the examination of the case was postponed several times because the third parties or the defendants failed to appear. According to the Government, the hearing of 23 December was adjourned until 29 December because the applicant failed to appear. 9. On 29 December 1998 the District Court adjourned the applicant’s action generally on the grounds that the parties had failed to attend two court hearings.", "The applicant applied for reinstatement of the case on the grounds that he had not been duly summoned to the hearings. On 20 January 1999 the District Court quashed the decision of 29 December 1998, having found that the applicant had had a valid reason for failing to appear. It reinstated the case and scheduled the hearing for 23 March 1999. 10. In 1999 several hearings were adjourned for various reasons.", "On 26 May the case was adjourned until 14 July because the judge was involved in unrelated proceedings. According to the Government, the hearings of 30 November and 10 December did not take place because the applicant did not attend them. 11. In 2000 the hearings were postponed several times because the defendants or the third parties failed to appear. 12.", "On 13 March 2001 the applicant amended his claims. On the same date the District Court appointed, at his request, an expert examination of the power of authority signed by his father and suspended the proceedings pending the expert study. 13. On 4 June 2001 the proceedings were resumed and the hearing was fixed for 20 July 2001. On that date, according to the Government, the hearing did not take place because the applicant did not appear.", "14. At the hearing of 5 September 2001 the applicant rejected the expert study and returned to his initial claims. On the same date the District Court dismissed his claims in full. On 22 February 2002 the Moscow City Court (“the City Court”) quashed that judgment, finding that the first-instance court had failed to establish all relevant facts of the case. It remitted the case for a fresh examination to a different panel of the first-instance court.", "B. Second examination of the case 15. In the second round of proceedings, the District Court accepted the case for examination on 26 September 2002. The first hearing was fixed for 15 November 2002. On that date the hearing was adjourned until 10 January 2003 because the parties failed to appear.", "16. In 2003 six hearings were scheduled. Of these, the hearing of 6 August was adjourned until 29 October because the parties did not appear. However, on that date the defendants did not appear and the case was postponed until 20 January 2004. 17.", "In 2004 eight hearings were listed. Of these, at least five hearings were adjourned because the defendants failed to appear. On 30 June the court heard the parties and adjourned the case until 10 August at the applicant’s request. On that date the applicant amended his claims. This time he requested that the defendants be evicted from the flat in question.", "18. On 1 October 2004 the District Court adjourned the case generally on the grounds that the parties failed to appear at the hearings. On 5 October 2004 the District Court quashed that decision, having found that the applicant had received a delayed notification about the hearing. It reinstated the proceedings and fixed the hearing for 22 October 2004. 19.", "In 2005 three hearings were listed. The hearings of 28 January and 1 March were adjourned because the defendants failed to appear and because the judge was on leave. 20. On 22 April 2005 the District Court examined the case in the absence of the defendants and dismissed the applicant’s action. Both the applicant and his representative were present.", "The applicant appealed against that judgment. 21. The applicant submitted that on the morning of 5 July 2005 his mother had received a summons from the City Court. It said that the appeal hearing had been listed for 5 July 2005. By that time the applicant had already gone to work.", "22. On 5 July 2005 the City Court heard the case in the absence of the defendants and the applicant. The applicant’s grandmother, acting on his behalf, maintained his claims. On the same date the City Court upheld the judgment of 22 April 2005. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 23. The applicant complained that the domestic courts had failed to examine his claim within a reasonable time. The Court will examine that complaint under 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 ...” 24. The proceedings commenced in February 1995, when the applicant lodged his claim with the District Court. 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 be taken of the state of proceedings at the time. The period in question ended on 5 July 2005 with the decision of the City Court. Thus the Court has competence ratione temporis to examine the period of approximately seven years and two months. During that period the case was examined at two levels of jurisdiction. A. Admissibility 25.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 26.", "The Government firstly argued that the case was factually complex. They further submitted that numerous hearings had been adjourned due to the defendants’ failure to appear in spite of the proper notification. The applicant had also contributed to the length of the proceedings by failing to appear at several hearings, but also by amending his claims on several occasions; he requested an expert study and appealed against the first‑instance court decisions. The domestic courts had conducted the proceedings properly. The hearings had been scheduled at regular intervals.", "The domestic courts had examined the case at several levels. Some delays had occurred when the case had been reassigned to different judges. However, those delays had been justified because three judges had resigned and some of them had been on sick leave. Moreover, the judges had had a significant workload. 27.", "The applicant contested the Government’s submissions. He argued that the case was not very complex. The proceedings had to be conducted with special diligence as they concerned his deceased father’s flat. He admitted that he had failed to attend several hearings, but stated that this was mainly due to late notifications. Most of the hearings had not taken place because the defendants and the third parties had not been duly summoned or had failed to appear by their own fault.", "The authorities had not taken appropriate measures to discipline them. Several substantial delays in the proceedings were attributable to the domestic courts. 28. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "In addition, only delays attributable to the State may justify a finding of a failure to comply with the “reasonable time” requirement (see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 49, ECHR 2004-XI). 29. The Court is ready to accept that the proceedings at issue were of a certain complexity, as they concerned property claims and involved several parties. However, the Court cannot accept that the complexity of the case, taken on its own, was such as to justify the overall length of proceedings.", "30. As regards the applicant’s conduct, the Court notes that the parties are in dispute as to whether the applicant was at fault when he had failed to appear at several hearings. It considers that it is not necessary to determine whether or not the applicant had been duly summoned to those hearings, because, in any event, the resulting delays were not very significant. Furthermore, the Court is not convinced by the Government’s arguments that the applicant should be held responsible for amending his claims, requesting an expert opinion and lodging appeals. It has been the Court’s constant approach that an applicant cannot be blamed for taking full advantage of the resources afforded by the national law in the defence of his interests (see, mutatis mutandis, Yağcı and Sargın v. Turkey, judgment of 8 June 1995, Series A no.", "319-A, § 66). Accordingly, the Court considers that the applicant was not responsible for any substantial delays in the proceedings. 31. As regards the conduct of the judicial authorities, the Court notes the Government’s argument that during the period under consideration the domestic authorities examined the case twice at two levels. The Court observes in this respect that the second round of proceedings was due to the District Court’s failure to establish all relevant facts of the case during the first examination of the case.", "In any event, the fact that the domestic courts heard the case several times did not absolve them from complying with the reasonable time requirement of Article 6 § 1 (see Litoselitis v. Greece, no. 62771/00, § 32, 5 February 2004). 32. The Court further notes that the parties agreed that the defendants and third parties had failed to appear at numerous hearings and thus had caused certain delays in proceedings. However, the Government submitted that they had been duly notified of the hearings and the applicant argued that the courts had failed to duly inform them.", "The Court considers that it is not necessary to examine why the defendants and third parties failed to appear, as there are sufficient elements to conclude that the responsibility for most of delays in the proceedings, in any event, lies with the domestic authorities. 33. The Court observes that on two occasions, on 29 December 1998 and 1 October 2004 the District Court adjourned the case generally on the grounds that the applicant had failed to appear at hearings. Later it quashed those decisions and had reinstated the proceedings, having found that the applicant had not been duly summoned to the hearings. Those adjournments resulted in significant delays.", "34. The Court further observes that after the quashing on 22 February 2002 of the judgment of 5 September 2001, the District Court accepted the case for examination only on 26 September 2002 and fixed the first hearing for 15 November 2002. In 2003 and 2004 only six and eight hearings were scheduled respectively. Therefore, the Court cannot agree with the Government that the proceedings had been conducted properly. 35.", "The Court also notes the Government’s argument that the delays in the proceedings were caused to a certain extent by the judges’ significant workload and the reassignment of the case to different judges. In this respect the Court reiterates that it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision within a reasonable time (see, for instance, Löffler v. Austria, no. 30546/96, § 21, 3 October 2000). Therefore, the delays referred to by the Government are imputable to the State. 36.", "Finally, the Court observes that an important property interest was at stake for the applicant in the present case. The Court is of the opinion that the nature of the dispute called for particular diligence on the part of the domestic courts. 37. In the light of the criteria laid down in its case-law and having regard to all the circumstances of the case, 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 38. The applicant complained under Article 6 that he could not attend the appeal hearing of 5 July 2005 due to the late notification. He also complained about the outcome of the proceedings. 39.", "Having regard to all the material in its possession, and in so far as these complaints fall within its 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 40. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 41. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage. 42. The Government contested the claim. 43.", "The Court considers that the applicant must have suffered distress and frustration resulting from the excessive length of proceedings in his case. Making its assessment on an equitable basis, it awards him EUR 3,600 under that head, plus any tax that may be chargeable on that amount. B. Costs and expenses 44. The applicant did not make any claim in respect of costs and expenses.", "Accordingly, there is no call to make an award in this respect. C. Default interest 45. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 9 October 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachChristos Rozakis Deputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF TENCE v. SLOVENIA (Application no. 37242/14) JUDGMENT STRASBOURG 31 May 2016 FINAL 31/08/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Tence v. Slovenia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: András Sajó, President,Vincent A. De Gaetano,Boštjan M. Zupančič,Nona Tsotsoria,Paulo Pinto de Albuquerque,Krzysztof Wojtyczek,Egidijus Kūris, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 3 May 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 37242/14) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Ms Marinka Tence (“the applicant”), on 13 May 2014. 2. The applicant was represented by Mrs A. Jug, a lawyer practising in Nova Gorica. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney.", "3. The applicant alleged that the overly restrictive interpretation of domestic procedural rules amounted to a violation of her right of access to a court under Article 6 of the Convention. 4. On 14 October 2014 the complaint was communicated to the Government and the remainder of the application was declared inadmissible. THE FACTS 5.", "The applicant was born in 1950 and lives in Nova Gorica. I. THE CIRCUMSTANCES OF THE CASE 6. The facts of the case, as submitted by the applicant, may be summarised as follows. 7.", "On 29 October 2002 the applicant lodged a civil action against company X, her former employer, seeking payment of 3,285.89 euros (EUR) and statutory default interest in respect of contributions made by her into the employee share scheme (trajne vloge delavca). On 24 May 2011 the Nova Gorica Local Court (“the Local Court”) dismissed her claim and on 13 June 2011 the judgment was served on her lawyer. 8. The time-limit for appealing against the judgment expired at midnight on 28 June 2011. At 6.54 p.m. on that day the applicant’s lawyer sent a document of six pages by fax to the Local Court.", "The next day, after the expiry of the time-limit, the applicant’s lawyer sent the appeal against the first-instance judgment, consisting of six pages, by registered mail. On 12 July 2011 the Local Court rejected the appeal as out of time. It held that the applicant had lodged her appeal on 29 June 2011, which was after the time-limit. 9. On 30 July 2011 the applicant appealed against this decision, arguing that she had lodged her appeal by fax within the prescribed period.", "In this connection, she submitted a fax confirmation page according to which on 28 June 2011 at 6.54 p.m. her lawyer had sent a six-page document to the Local Court’s fax number. 10. On 12 August 2011, at the request of the Koper Higher Court (“the Higher Court”), the competent judge of the Local Court enquired about the faxes received by the registry of that court on 28 June 2011 from 6 to 7 p.m. The confirmation page showed that the Local Court had received a document of six pages from the applicant’s lawyer at 6.59 p.m. On 24 August 2011 the competent judge was informed that the fax from the applicant’s lawyer had been saved in the fax machine’s memory, but had not been printed out. Subsequently, this information was sent to the Higher Court.", "11. On 14 November 2011 the Higher Court dismissed the appeal, noting that the Local Court had received the documentation that had been lodged by mail only on 29 June 2011. It held that the appeal allegedly lodged on 28 June 2011 by fax would have been regarded as within the prescribed time-limit only if it had been delivered to the court before its expiry. The burden of proof that the appeal had been lodged in due time was on the applicant. The Higher Court acknowledged that the confirmation page submitted by the applicant indeed showed that on 28 June 2011 the applicant had sent a document of six pages by fax.", "However, the confirmation page made no reference to the type of document sent, its content and to which case it referred. 12. On 5 June 2012 the applicant lodged an appeal on points of law. She pointed out that section 112 of the Civil Procedure Act allowed the submission of an application by fax and that according to the existing case-law of the Supreme Court an application was deemed to be submitted in due time if delivered to the competent court before the expiry of the time-limit regardless of how it was subsequently handled by the court, which was a matter of the court’s internal organisation. The applicant submitted that the Local Court had received her appeal by fax in due time but then most probably failed to print it out and the document had automatically been deleted from the fax machine’s memory.", "Hence, she argued that the date when the fax had been sent should be considered as the date the appeal had been lodged and that she should not be made to bear the burden of proof in a case where the document had not been printed out by the court. She further emphasised that a timely delivery should not have any negative consequences for the parties to the proceedings. Furthermore, as regards her failure to prove the content of the fax that had been sent to the Local Court on 28 June 2011, the applicant submitted: firstly, that the confirmation page from her lawyer’s fax machine had showed the date of the transmission, the number of pages sent and the time it had taken to deliver the document to the receiving machine; secondly, on the following day, 29 June 2011, the applicant had lodged the relevant document by registered mail which, according to her, proved that the document in question was in fact the appeal against the judgment of 24 May 2011. The applicant added that, according to information given to her by a telecommunications company and a fax-machine manufacturer, it was not possible to prove the content of a document sent by fax as those transmissions were encrypted. 13.", "On 20 June 2013 the Supreme Court dismissed the applicant’s appeal on points of law. It referred to its decision of 4 April 2013 (II Ips 603/2009 and II Ips 718/2009) in which it had held that proof that a fax was sent did not necessarily mean proof of receipt of the document. In the Supreme Court’s opinion, there was a possibility that the court would not receive the relevant document in due time because of faults in the telecommunications network or similar technical reasons (lack of paper, an empty ink cartridge, the machine shutting down, and so on). Such a risk was borne by the applicant in the same manner as if the document were sent by regular – as opposed to registered – mail, whereby the risk of late receipt of a motion was borne by the sender. Since the applicant had failed to prove the content of the document sent by fax on 28 June 2011, the Supreme Court confirmed that the Higher Court had correctly taken into consideration only the appeal sent by registered post the next day.", "14. On 18 October 2013 the applicant lodged a constitutional complaint in which she reiterated the arguments raised before the Supreme Court. 15. On 11 November 2013 the Constitutional Court dismissed the constitutional complaint for lack of significant disadvantage and for not raising an important constitutional question. On 15 November 2013 this decision was served on the applicant.", "16. Meanwhile, on an unspecified date, the applicant requested that the Local Court reinstate her case. On 7 February 2012 the Local Court dismissed the applicant’s request. The applicant lodged an appeal which she subsequently withdrew. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 17. The relevant provisions of the Civil Procedure Act (zakon o pravdnem postopku, Official Gazette no. 73/07, as amended) state: Section 105.b “Applications shall be submitted in writing. An application in writing is an application which has been written or printed, and signed in person (application in physical form), or an application submitted in electronic form and signed by a secure electronic signature supported by a qualified certificate. An application in writing shall be submitted by mail, by electronic means, by use of means of communication technology, delivered directly to the authority, or by a person, who is engaged in serving applications as his or her activity (business supplier).", "An application in electronic form shall be submitted by electronic means to the information system. Receipt of the application shall be confirmed automatically by the information system. An application can also be made on a prescribed or otherwise pre-prepared form. Irrespective of any provisions of other regulations, documents in electronic form shall have the same content as the documents prescribed in physical form only. A uniform information system shall be set up for courts by the competent authority.", "The Minister of Justice shall prescribe the conditions and the manner for submission of applications in electronic form, or by electronic means, the form of the application in electronic form, and the organisation and performance of the information system. Irrespective of the provisions of the first and second paragraphs of the present Section, the Minister of Justice shall specify the applications that can also be made by telephone, or by electronic means without a secure electronic signature supported by a qualified certificate, and the means of identification of the parties in any such case ...” Section 112 “If an application is subject to a time-limit, it shall be deemed to have been lodged in due time if delivered to the competent court prior to the expiry of the time-limit. If an application is sent by registered mail or by telegraph, the date of posting shall be deemed the day of delivery to a court concerned. If an application is submitted by electronic means, the time of receipt by the information system shall be deemed to be the time of submission of the application to the court concerned ...” 18. The Court Rules (Official Gazette no.", "17/1995, in force from 26 March 1995, as amended) state, as far as relevant: Rule 99 “The court shall consider the parties’ applications sent by telegram or telefax within the context of the relevant procedural rules. Telegraph messages and applications of the parties may not derogate from the time-limits as defined by procedural rules.” Rule 100 “Messages and applications sent by parties by telefax shall be deemed written applications of the parties if they comply with the procedural laws and if the telefax allows the time of sending and the sender to be identified.” 19. In a decision of 13 October 2004 (II Ips 69/2004) the Supreme Court reiterated that applications lodged by electronic means were covered by the first paragraph of Section 112 of the Civil Procedure Act according to which an application was deemed to have been lodged in due time if delivered to the competent court prior to the expiry of the time-limit regardless of how it was subsequently handled by the court (which was a matter of the court’s internal organisation). In that case the appellant had lodged an application by fax in due time and, a day after the expiry of the time-limit, by registered mail. In rejecting the appellant’s motion as after the time-limit, the Higher Court did not take into account the confirmation page submitted by the appellant as evidence of timely delivery of the second-instance appeal.", "The Supreme Court quashed the decision for lack of reasoning and remitted the case for re-examination. 20. In a decision of 4 April 2013 (II Ips 603/2009 and II Ips 718/2009) the Supreme Court dismissed an appeal on points of law challenging the rejection of the documentation sent by fax on the last day of the time-limit, whereby the receipt was recorded in the court’s fax machine the day after the expiry of the time-limit. The Supreme Court held that proof that the fax was sent was not proof of receipt of the document by the addressee. In the Supreme Court’s view, there existed a possibility that the court would not receive the relevant document in due time on account of faults in the telecommunication network or similar technical reasons.", "Such a risk was to be borne by the party sending the application by fax. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 21. The applicant complained that due to an overly restrictive interpretation of the domestic procedural rules she had been deprived of access to a court as provided in Article 6 § 1 of the Convention. The relevant part of the provision reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 22.", "The Government contested that argument. A. Admissibility 23. 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 24. The applicant stated that the lodging of applications by fax had been in place since 1999 and was quite common. She further asserted that according to the existing domestic case-law (namely the Supreme Court’s decision of 13 October 2004, II Ips 69/2004, see paragraph 19 above) her application lodged by fax should have been treated as lodged in due time and that the Supreme Court’s interpretation of the domestic procedural rules in her case had been arbitrary and unreasonable.", "25. In particular, according to the applicant, the imposition of the requirement that the applications must also be printed out by the relevant court placed the risk of faulty functioning of the court’s fax machine on the parties to the proceedings, which was unreasonable and impracticable. The applicant submitted that the court was in the position to simply not print out such an application, thus depriving the parties of their statutory right to choose the manner in which an application was made. 26. The applicant stated that she had sent her application by fax in due time, as apparent from the Local Court’s confirmation page submitted by the Government confirming the time of delivery and the sender’s identity.", "The applicant maintained that neither her fax machine nor that of the Local Court had shown any error in the transmission of the relevant document which means that both machines had functioned without fault. The Local Court had thus received the application in question but failed to print it out. (b) The Government 27. The Government submitted that the risk of faults in the telecommunication network or similar technical reasons leading to potential non-receipt of an application by a court had to be borne by the person submitting the application. The Government acknowledged that the applicant’s documentation had been received in the fax memory but had not been printed out by the machine.", "Hence, the applicant had not been able to prove the content of the faxed document. 28. The Government further asserted that the President of the Local Court had informed them that it was not a large court; usually parties did not lodge applications with the court by fax; if they did, an employee in the mail room housing the fax machine examined the application with diligence and then handed it over to the legal officer of the competent department. Thus, every application lodged by fax was examined twice before being handed over to the judge. The caseload was steady and on a scale that made it possible to determine from the content of an application – even if incomplete – to which case it referred.", "The Local Court further noted that before this incident the fax machine had never displayed an “OK” sign without printing out the document. The Local Court did not know the reason why this had occurred. 29. In the Government’s view, the Local Court could not have taken into consideration the appeal sent by the applicant’s lawyer by fax, as the document had not been printed out and the court was not able to anticipate the content or to which party the document related. Accordingly, the appellate court had deemed correctly that the applicant’s appeal lodged one day after the time-limit had to be rejected.", "2. The Court’s assessment 30. The Court reiterates at the outset that the “right to a court”, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. However, these limitations must not restrict or reduce a person’s access in such a way or to such an extent that the very essence of the right is impaired; further, such limitations will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Brualla Gómez de la Torre v. Spain, 19 December 1997, § 33, Reports of Judgments and Decisions 1997‑VIII). 31.", "Furthermore, the rules on time-limits for appeals are undoubtedly designed to ensure the proper administration of justice and compliance with, in particular, the principle of legal certainty. Those concerned must expect those rules to be applied. However, the rules in question, or the application of them, should not prevent litigants from making use of an available remedy (see Pérez de Rada Cavanilles v. Spain, 28 October 1998, § 45, Reports 1998‑VIII). 32. As regards the instant case, the Court notes, based on the confirmation pages submitted by the parties, that the applicant’s lawyer successfully transmitted by fax a document consisting of six pages to the Local Court at 6.54 p.m. on 28 June 2011, the last day of the time-limit for appealing.", "The document was received by the Local Court’s fax machine on the same day at 6.59 p.m., but it was not printed out for reasons which could not be explained by the Government. The following day, when the time-limit had already expired, the applicant sent an appeal (likewise consisting of six pages) by registered mail. The applicant’s appeal was rejected as out of time, as were her subsequent objections that it had been sent by fax within the prescribed time-limit. The domestic courts only took into account the document sent by registered mail, noting that the applicant was unable to prove the content of the document sent by fax. Furthermore, the Supreme Court emphasised that any faults in the transmission of a document sent by fax, even if attributable to the court, had to be borne by the party submitting such a document.", "33. As regards the submission of applications by means of fax, it is noted that the Slovenian Civil Procedure Act does not contain any specific provisions thereon; however, it is a matter of settled domestic case-law that the parties may lodge their applications by fax in addition to written and electronic correspondence. Accordingly, it was not in dispute in the present case that the applicant had been entitled to lodge her appeal by fax. However, their opinions differed as to whether an application successfully transmitted to the Local Court’s fax machine could be considered delivered if it was not printed out and, consequently, no conclusive proof existed of its content, and to who was to bear the risk of any error or malfunction of the Local Court’s fax machine resulting in the failure to print. The applicant took the view that, since the confirmation pages showed that the document in question had been received by the Local Court’s fax machine, she should not have borne this risk.", "By contrast, the Government argued that any risks of technical failure in the transmission of documents by fax should be borne by the person submitting such a document. 34. The Court notes that the Government’s view reflects the view expressed by the Supreme Court in its 2013 decision in which it held that any risk of a fault in the telecommunication network or similar technical issue was to be borne by the party sending the application by fax (see paragraph 20 above). However, it cannot be overlooked that this view was adopted subsequent to the date on which the applicant lodged her application by fax; in its initial 2004 decision on the issue, the Supreme Court limited its findings to the issue of whether an application submitted by fax was to be treated as duly lodged (see paragraph 19 above). The court confirmed that such applications should be accepted and considered as delivered if they were submitted within the prescribed time-limit.", "However, the question of what constituted successful delivery of an application by fax was not addressed in that first decision. Accordingly, at the time of the applicant’s appeal there was no basis for her to consider that what was recorded as a successful and timely fax transmission could nonetheless result in the rejection of the appeal as out of time. 35. The Court is of the view that a party should bear the consequences of an appeal that arrives after the time-limit, where the errors are attributable to that party (see Pérez de Rada Cavanilles v. Spain, cited above, § 47, and Platakou v. Greece, no. 38460/97, § 39, ECHR 2001‑I; contrast Rodriguez Valin v. Spain, no.", "47792/99, § 28, 11 October 2001). However, in the present case the parties did not dispute that a document of six pages had reached the Local Court on 28 June 2011. It appears that the applicant’s properly dispatched fax was saved in the memory of the Local Court’s fax machine, which was borne out by the confirmation pages from both the sending and receiving fax machines and by the registry of the Local Court (see paragraph 10 above). In view of these circumstances, the Court considers that the applicant had good reason to believe that the document was submitted to the Local Court in accordance with the rules of domestic civil procedure on time-limits. As to the subsequent handling of the document in question by the Local Court, the applicant had no influence on whether it would be printed out or indeed whether the fax machine functioned properly.", "36. It is further noted that the Government, relying on the grounds for the rejection of the applicant’s appeal given by the domestic courts, argued that she could not prove that the document she had sent by fax was in fact the appeal in question. However, according to her undisputed information, fax transmissions are encrypted and thus their content cannot be proved (see paragraph 12 above). While a direct analysis of the content of the document in question was thus not possible, the applicant submitted to the domestic courts the confirmation page showing that on 28 June 2011 her lawyer had faxed a document of six pages to the competent court. She further pointed out that the document was the same size as the appeal lodged the next day by registered post.", "Notwithstanding the fact that it is primarily the role of the competent national authorities to decide upon the admissibility and relevance of evidence (see Schenk v. Switzerland, 12 July 1988, § 46, Series A no. 140, and Engel and Others v. the Netherlands, 8 June 1976, § 91, Series A no. 22), the Court considers that the above considerations, coupled with the fact that the technical issue resulting in the incomplete delivery of the document in question to the Local Court was not attributable to the applicant but to the Local Court, render the domestic courts’ approach of placing the entire burden of proof on the applicant overly rigid. 37. In the Court’s view, this approach taken by the domestic courts made it practically impossible for the applicant to be successful in her appeal.", "It follows that the applicant has been made to bear a disproportionate burden (see, mutatis mutandis, Pérez de Rada Cavanilles, cited above, § 49; Tricard v. France, no. 40472/98, § 33, 10 July 2001; and Zedník v. the Czech Republic, no. 74328/01, § 33, 28 June 2005). 38. Having regard to the circumstances taken as a whole, the Court finds that the domestic courts’ decisions deprived the applicant of her right of access to a court, and, consequently, of her right to a fair trial, within the meaning of Article 6 § 1 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 39. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 40. The applicant claimed 12,500 euros (EUR) in respect of pecuniary damage corresponding to her civil claim which had not been examined on the merits by the domestic courts, as well as non-pecuniary damage corresponding to the distress she suffered as a result of the breach of the Convention at issue.", "41. The Government contested the amount of the claim. In their view, the applicant had not provided any evidence that she would have succeeded with her claim in the civil proceedings. 42. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.", "Nor can it speculate on what the outcome of the proceedings would have been if the applicant’s appeal had been examined on the merits by the domestic courts. Accordingly, the Court makes no award under this head. 43. The Court, however, considers that the applicant suffered non-pecuniary loss arising from the breach of the Convention found in this case. Therefore, ruling on an equitable basis, it awards the applicant EUR 2,500 in that respect.", "Moreover, while the Slovenian legislation does not explicitly provide for reopening of civil proceedings following a judgment by the Court finding a violation of the Convention (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 27, ECHR 2015), the Court has already stated that the most appropriate form of redress in cases where it finds that an applicant has not had access to court in breach of Article 6 § 1 of the Convention would be for the legislature to provide for the possibility of reopening the proceedings and re-examining the case in keeping with all the requirements of a fair hearing (see, mutatis mutandis, Kardoš v. Croatia, no. 25782/11, § 67, 26 April 2016; and Perak v. Slovenia, no. 37903/09, § 50, 1 March 2016).", "B. Costs and expenses 44. The applicant also claimed all costs and expenses incurred before the domestic courts without, however, specifying this claim. 45. The Government contested that claim as unfounded.", "46. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings as unsubstantiated. 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 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 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage. 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 31 May 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Fatoş Aracı András Sajo Deputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge E. Kūris is annexed to this judgment. A.S.F.A. CONCURRING OPINION OF JUDGE KŪRIS 1. The applicant was unable to prove the content of the document sent by fax. The Government expressed doubts as to whether the document sent by fax was in fact the appeal in question.", "A conspiracy theory could be put forward whereby the applicant’s lawyer, not yet ready to lodge the final version of the appeal in due time, faxed some other six pages in order to gain time for finalising the requisite document, which he subsequently sent by registered mail. This, however, would be mere speculation, and the Government did not resort to it. Instead, they argued that the burden of proof that the fax transmission was indeed the same document which was sent by registered mail on the following day ought to be borne by the applicant. 2. Given that that the content of documents sent by fax is encrypted and cannot be proved, it would not be unreasonable for courts to require that the sender take measure which, in the event of a dispute, could prove that the document submitted by fax had a particular content.", "A mobile-telephone photograph of a fax-sent document, with an indication of the date and time, would probably suffice. Or a document could be scanned and sent by electronic mail to a fax server. There must also be other possibilities. Which would be the most appropriate, or the most efficient, is not for me to suggest. 3.", "However, the Slovenian authorities had to have been aware of the technological peculiarity that the content of documents sent by fax cannot be proved. Consequently, they could reasonably have foreseen that disputes as to the content of such a document could arise. Nevertheless, the Court Rules (see paragraph 18 of the judgment) took no account whatsoever of the realistic possibility of such a turn of events and did not oblige the senders to take any precautionary measures in this regard. Hence, the placement of the burden of proof on the applicant was not only “overly rigid” (as is rightly stated in paragraph 37), but also legally unsubstantiated and unfair. 4.", "More generally, Rules 99 and 100 lag behind life. They mention telegrams and telefax, but keep silent on their Internet-based alternatives, which have displaced these older versions of communication. The use of fax machines is steadily decreasing, but they are still employed. As to telegraph messages, many countries discontinued their telegram services years ago. This is how Wikipedia describes telegraph services in Slovenia: “[Slovenian Post] provides a telegram service still commonly used for special occasions such as births, anniversaries, condolences, graduations, etc.", "... Telegrams are usually printed in a typewriter font on greeting or condolences cards delivered in a specific yellow envelope. It is also possible to send gifts (e.g. chocolates, wine, plush toys, flowers) together with a message. The telegrams can be sent from local post offices, over the phone or online to addresses in Slovenia only.” (https://en.wikipedia.org/wiki/Telegraphy, accessed 13 May 2016). In this reality, imagination fails me when trying to envisage what an appeal sent by telegram to a Slovenian court by someone endeavouring to avail himself or herself of Rules 99 and 100 would look like.", "5. I began this opinion by putting forward a conspiracy theory. As I have already made clear, this theory is mere speculation with regard to the applicant and his lawyer, and I do not wish to be misunderstood on this count. But as long as Rules 99 and 100 remain as they stand today, this theory may serve, to my regret, as a tip for someone who indeed might seek to benefit dishonestly from the lawmakers’ oversight or slowness. Intervention by the legislature would be welcomed, not least by Slovenian taxpayers, especially if it occurs before a similar application is lodged with this Court – with a more or less (but rather more) predictable outcome." ]

[ "FOURTH SECTION CASE OF JAKUBIČKA AND MAGYARICSOVÁ v. SLOVAKIA (Application no. 16126/05) JUDGMENT STRASBOURG 18 December 2007 FINAL 18/03/2008 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 Jakubička and Magyaricsová v. Slovakia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrS.", "Pavlovschi,MrL. Garlicki,MsL. Mijović,MrJ. Šikuta,MrsP. Hirvelä, judges,and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 27 November 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 16126/05) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Slovak nationals, Mr Marcel Jakubička (“the first applicant”) and Ms Jana Magyaricsová (“the second applicant”) (together referred to as “the applicants”), on 13 April 2005. 2. The applicants were represented by Ms Ľ. Jakubičková, their mother.", "The Slovak Government (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3. On 12 March 2007 the President of the Fourth Section of the Court decided to give notice of the application to the Government. Applying Article 29 § 3 of the Convention, it was decided to rule on the admissibility and merits of the application at the same time. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.", "The applicants are siblings. They were born in 1973 and 1976 respectively and live in Bratislava. A. Factual background 5. The applicants' parents are divorced.", "Their father had been ordered by the Bratislava III District Court (then Obvodný súd, at present Okresný súd) to contribute to their maintenance. 6. The father's obligation to contribute to the first applicant's maintenance ended when the first applicant finished his secondary studies and commenced his military service. 7. After his military service, the first applicant commenced his university studies and applied for a fresh maintenance order against his father.", "Jointly with the first applicant, the second applicant applied for an increase of her maintenance. 8. The applicants' father then filed a separate action to have his maintenance obligation terminated. 9. These two actions were determined in two separate sets of proceedings which are described below, the applicants' action being the main subject matter of the present application.", "10. As a consequence of the ongoing and still unresolved maintenance dispute the applicants found it difficult to provide for themselves during their studies. The second applicant finally had to abandon her post-secondary education in order to allow the first applicant to finish his studies. The second applicant later became a mother and was no longer completely free in her choice of school since she had to combine her studies with her family situation and commitments. Since a public sector college was not an option given her situation, she is currently studying at a private college where she has to pay an annual tuition fee of 45,000 Slovakian korunas[1] (SKK).", "B. The applicants' action 11. On 30 September 1994 the applicants' mother filed a motion against their father for a fresh maintenance order in respect of the first applicant and for an increase of the payments towards the maintenance of the second applicant. 12. On 30 November 1994 the applicants submitted powers of attorney in favour of their mother and provided further and better particulars specifying, inter alia, that the claim was in their own name but that they were acting through the intermediary of their mother.", "13. On 4 July 1996 the District Court held a hearing at which it allowed the applicants to continue the action directly in their own names. Further hearings were scheduled for 13 March and 3 April 1997. The former had to be adjourned due to the absence of the parties. The latter was adjourned to enable the applicants to amend their statement of claim, which they did on the same day.", "14. On 29 December 1998 the applicants requested that the proceedings be dealt with. On 20 May 1999 the District Court requested them to submit information concerning their school attendance and their mother's income. 15. On 19 February 2001 the District Court requested information from the employers of the applicants' mother and father concerning their respective incomes.", "16. On 20 March 2001 the District Court held a hearing at which the parties requested a three-week adjournment in order to explore the possibility of settling the case. The hearing was adjourned sine die. 17. On 9 April 2001 the applicants' lawyer informed the District Court that the attempts to settle the case had failed and requested that the proceedings be resumed and a hearing fixed promptly.", "She reiterated the request on 10 September 2001. 18. Another hearing was held on 9 October 2001 and was adjourned sine die, the defendant being ordered to produce evidence. The order was reiterated on 8 November 2001. 19.", "A hearing was fixed for 28 March 2002 and adjourned to 23 April 2002 and then again to 23 May 2002. 20. On 23 May 2002 the District Court held a hearing following which, on the same day, it issued a maintenance order in favour of the first applicant and increased the maintenance to be paid to the second applicant. At the same time it determined the period for which the maintenance should be paid and allowed the father to pay the arrears in instalments. 21.", "At the request of the District Court judge dealing with the case, the President of the District Court authorised an extension of the period for finalising the written version of the judgment until 30 July 2002. It was finally served on the parties in August 2002 and the defendant appealed. 22. The District Court obtained the applicants' observations in reply and the court fee from the defendant and, on 22 October 2002, submitted the case file to the Bratislava Regional Court (Krajský súd) for a decision on the appeal. 23.", "On 24 February 2003 the Regional Court returned the case file to the District Court without a decision on the ground that the latter had failed to deliver formally the decision of 4 July 1996 concerning the applicants' standing in the proceedings. 24. The District Court delivered and secured service on the parties of the decision in question. It became final on 16 July 2003. The case file was re‑submitted to the Regional Court on 9 September 2003.", "25. On 23 March 2004 the Regional Court heard the appeal. The hearing was adjourned with a view to obtaining the case file concerning the father's claim for cancellation of his maintenance obligation. 26. On 15 June 2004 the Regional Court quashed the first-instance judgment and remitted the matter to the District Court for the taking of further evidence and re-examination.", "27. In December 2005 the District Court requested the applicants to inform the court whether they were still full-time students or engaged in training for a future career. 28. The District Court held hearings on 20 and 24 April 2007. At the latter hearing it pronounced a judgment ordering the defendant to pay maintenance in favour of the first applicant, determining the period for which the maintenance should be paid, allowing the defendant to pay the arrears in instalments and dismissing the remainder of the action.", "The second applicant appealed and the proceedings concerning her are still pending. C. Constitutional complaint 29. On 13 July 2004 the applicants, who were represented by a lawyer, lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd) in respect of the length of the proceedings in their action. They directed the complaint against both the District Court and the Regional Court and claimed SKK 500,000[2] each in damages. 30.", "On 8 September 2004 the Constitutional Court declared the complaint admissible in so far as it was directed against the Regional Court and inadmissible in so far as it was directed against the District Court. In accordance with its established practice, the Constitutional Court found that the complaint in respect of the District Court was belated because the proceedings before that court had ended with its judgment of 23 May 2002. Since the proceedings had no longer been pending at the time when the constitutional complaint had been lodged, their examination could no longer serve to expedite them. 31. On 2 December 2004 the Constitutional Court found that there was no violation of the applicants' right to a hearing without unjustified delay (Article 48 § 2 of the Constitution).", "In line with its admissibility decision, the Constitutional Court examined exclusively the part of the proceedings before the Regional Court. It found no particular factual or legal complexity in the case and no delays attributable to the applicants. It further found that the Regional Court could not bear any responsibility for the proceedings in the period between 24 February and 9 September 2003 when the case file was with the District Court for the correction of procedural errors in connection with the decision of 4 July 1996. The Constitutional Court thus confined itself to the period after 9 September 2003 and found no significant delays on the part of the Regional Court. D. The applicants' renewed constitutional complaint 32.", "On 14 October 2004 the applicants lodged a fresh constitutional complaint about delays in the proceedings in their action before the District Court. They submitted that on 4 October 2004, that is to say after the above partial inadmissibility decision of 8 September 2004, they had been served with the Regional Court's decision of 15 June 2004 by which the first‑instance judgment had been quashed and the matter remitted to the District Court. Thus, neither they nor the Constitutional Court had been aware of the fact that, at the time of the Constitutional Court's partial inadmissibility decision, their action had in fact been again before the District Court. Therefore, the complaint about the length of the proceedings before the District Court had not been belated. 33.", "On 27 October 2004 the Constitutional Court declared the complaint inadmissible under sections 24 (a) and 25 § 2 of the Constitutional Court Act on the ground that it concerned a matter that was considered res iudicata. E. The father's action 34. On 5 June 1995 the applicants' father lodged a separate motion for the cancellation of his maintenance obligation in respect of the second applicant. 35. On 29 April 1996 the District Court allowed the motion.", "The second applicant appealed. 36. On 21 February 1997 the Regional Court declared the appeal inadmissible as being belated. The second applicant appealed on points of law (dovolanie) arguing that there had been a miscalculation of the period for filing the appeal. 37.", "The case file subsequently had to be re-assembled after having been misplaced. 38. On 26 August 2003 the Supreme Court quashed the decision of 21 February 1997 and remitted the matter to the Regional Court for a new determination of the second applicant's appeal against the judgment of 29 April 1996. The Supreme Court found that the Regional Court had erred in the calculation of the period for appealing and that the appeal had been lodged in due time. 39.", "On 26 February 2004 the Regional Court quashed the first-instance judgment and discontinued the proceedings following the father's withdrawal of the action. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 40. The applicants complained that the length of the proceedings in their action 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 41. The Government contested that argument.", "In particular, they argued that the applicants had failed to comply with the requirement under Article 35 § 1 of the Convention to exhaust domestic remedies in that they had not challenged the length of the proceedings before the District Court when these proceedings had still been pending and in that they had failed to contest any possible procedural delays in the period after the Constitutional Court's judgment (nález) of 2 December 2004 by way of a fresh complaint under Article 127 of the Constitution. 42. The applicants considered that they had complied with the requirements of Article 35 § 1 of the Convention as regards the exhaustion of domestic remedies. They submitted that the approach of the Constitutional Court to complaints about length of proceedings that took place over several instances was unclear and inconsistent. Given that their repeated recourse to the Constitutional Court had failed to produce any effect, the applicants considered that they were not required to file another complaint with it.", "As for the substance of the application, the applicants argued that the proceedings had throughout been marked by grave inefficiency on the part of the courts and pointed out that they were still pending. 43. The Court considers it appropriate to recapitulate the relevant part of its case-law in respect of length of proceedings in Slovakia. 44. Prior to 1 January 2002 there was no “effective remedy” in the Convention sense in respect of excessive length of proceedings in Slovakia (see, for example, Bánošová v. Slovakia (dec.), no.", "38798/97, 27 April 2000). 45. On 1 January 2002 a constitutional amendment entered into force which provided for a new remedy under Article 127 of the Constitution. This remedy is in principle considered “effective” in the Convention sense in respect of excessive length of proceedings (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).", "46. Having regard to the Constitutional Court's practice to examine separately the parts of proceedings which take place before several instances or institutions without providing an overall assessment of their length, the Court has stressed that a length of proceedings complaint under Article 127 of the Constitution can only be considered “effective” for Convention purposes if it is capable of leading in each individual case to an examination of the overall length of the proceedings (see Bako v. Slovakia (dec.), no. 60227/00, 15 March 2005). 47. The above practice of the Constitutional Court posed a general question as to whether a complaint under Article 127 of the Constitution was a remedy compatible with the requirements of Article 35 § 1 of the Convention in situations where the proceedings took place before several instances or institutions (see Šebeková and Horvatovičová v. Slovakia, no.", "73233/01, § 42, 14 February 2006 and Jakub v. Slovakia, no. 2015/02, § 47, 28 February 2006). 48. The European Court answered the above question on the basis of the most recent information concerning the relevant domestic practice. It found no reasons to doubt a priori and in general the effectiveness of the complaint under Article 127 of the Constitution as a remedy in respect of length of proceedings that took place before several instances or institutions and that this finding was not affected by the technical requirements of the Constitutional Court's approach to such situations (see Obluk v. Slovakia, no.", "69484/01, § 60, 20 June 2006). 49. Accordingly, the European Court has recognised that applicants are required to formulate their constitutional complaints in a way permitting the Constitutional Court to examine the overall length of the proceedings (see, a contrario, Obluk, cited above, §§ 61 and 62 and Šidlová v. Slovakia, no. 50224/99, § 53, 26 September 2006). 50.", "Turning to the circumstances of the present case, the Court observes that in their constitutional complaint of 13 July 2004 the applicants contested the length of the proceedings both before the District Court and the Regional Court. Represented by a lawyer, they formulated their complaint and its summary in accordance with the applicable procedural rules and established practice in a way which allowed the Constitutional Court to deal with the proceedings as a whole (see Obluk, cited above, §§ 61 and 62). However, by its decision of 8 September 2004 the Constitutional Court for policy reasons excluded from its examination the part of the proceedings which had taken place before the District Court and which, at the same time, represented a substantial part of the proceedings. The applicants' renewed constitutional complaint, lodged at the time when the proceedings were again pending before the first-instance court after the first judgment of the District Court had been quashed on appeal and the matter had been remitted to the District Court, failed to alter this outcome. 51.", "In the above circumstances and having regard to the principle that the Convention is intended to safeguard rights that are practical and effective (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, §§ 146-147), the Court finds that the applicants complied with the exhaustion of domestic remedies rule under Article 35 § 1 of the Convention and that requiring them to make use of the remedy under Article 127 of the Constitution for a third time would be too onerous a requirement under that provision of the Convention (see, for example, Sukobljević v. Croatia, no. 5129/03, § 52, 2 November 2006). It follows that that the Government's objection as to the exhaustion of domestic remedies has to be dismissed.", "52. The period to be taken into consideration began on 30 September 1994 and has not yet ended. It has thus lasted more than 13 years for two levels of jurisdiction. 53. 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 54. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the 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). 55. 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). 56. 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. APPLICATION OF ARTICLE 41 OF THE CONVENTION 57. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 58. The second applicant claimed SKK 225,000[3] in respect of pecuniary damage. This amount represented tuition fees for five years of her studies (see paragraph 10 above). The applicants also claimed SKK 750,000[4] each in respect of non-pecuniary damage. 59.", "The Government contested the claim concerning pecuniary damage as such and the claim concerning non-pecuniary damage as to its amount. 60. In so far as the claim in respect of pecuniary damage has been substantiated, the Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicants must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards to each of them 8,000 euros (EUR) under that head.", "B. Costs and expenses 61. The applicants also claimed SKK 40,653[5] for legal fees incurred before the ordinary courts and the Constitutional Court and SKK 10,000[6] for translation costs incurred before the Court. 62. The Government contested the claim as to legal fees but accepted the claim as to translation costs.", "63. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. 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 950 for legal fees before the Constitutional Court and EUR 300 for translation costs before the Court. Accordingly, it awards the applicants jointly EUR 1,250 under this head. C. Default interest 64.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares 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, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, each of the applicants EUR 8,000 (eight thousand euros) in respect of non-pecuniary damage and the applicants jointly EUR 1,250 (one thousand two hundred and fifty euros) in respect of costs and expenses, the above amounts to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above 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 18 December 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyNicolas BratzaRegistrarPresident [1] SKK 45,000 is equivalent to approximately 1,300 euros (EUR). [2] SKK 500,000 is equivalent to approximately EUR 15,000.", "[3] SKK 225,000 is equivalent to approximately EUR 6,800. [4] SKK 750,000 is equivalent to approximately EUR 22,700. [5] SKK 40,653 is equivalent to approximately EUR 1,200. [6] SKK 10,000 is equivalent to approximately EUR 300." ]

[ "FOURTH SECTION CASE OF ZAŚKIEWICZ v. POLAND (Application nos. 46072/99 and 46076/99) JUDGMENT STRASBOURG 30 November 2004 FINAL 30/03/2005 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 Zaśkiewicz v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President, MrM. Pellonpää, MrG.", "Bonello, MrJ. Casadevall, MrR. Maruste, MrS. Pavlovschi, MrL. Garlicki, judges, and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 9 November 2004, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in the applications (nos.", "46072/99 and 46076/99) 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 an Polish national, Mr Janusz Zaśkiewicz (“the applicant”), on 3 November 1998. 2. The Polish Government (“the Government”) were represented by their Agents, Mr K. Drzewicki and subsequently Mr J. Wołąsiewicz. 3. The applicant alleged, in particular, that the proceedings against company X exceeded a “reasonable time” within the meaning 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). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5. On 1 November 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). 6. By a decision of 17 June 2003 the Court declared the application partly admissible. 7. The applicant and the Government each filed observations on the merits (Rule 59 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8. On 21 February 1994 the applicant filed with the Łódź Regional Court (sąd wojewódzki) an action in which he claimed damages from one of his partners in a partnership allegedly responsible for a sale of the partnership's property without the applicant's prior approval. He sued also a certain company X which had purchased that property. 9.", "On 10 March 1994 the court exempted the applicant from court fees. 10. On 14 March 1994 it refused the applicant's request for an interim measure. His appeal against that decision was dismissed on 16 May 1994 by the Łódź Court of Appeal (sąd apelacyjny). 11.", "On 5 May 1994 the applicant submitted pleadings with a ninety-five-page annex. In July and October 1994, as well as in December 1995, he submitted further pleadings and requested the summoning of five witnesses. 12. The Regional Court held a hearing on 11 January 1996. It completed the examination of the case and informed the parties that it would pronounce its judgment on 25 January 1996.", "Subsequently, the applicant submitted pleadings containing motions concerning evidence. On 25 January 1996 the court resumed the examination of the case. 13. The hearing scheduled for 27 February 1996 was adjourned because of the absence of a lay judge. 14.", "On 27 March 1996 the court held a hearing. 15. On 10 April 1996 it declared its lack of jurisdiction over the applicant's claims in respect of his partner and transferred that part of the case to the Łódź District Court (sąd rejonowy). 16. The Regional Court held hearings on 26 November 1996, as well as on 29 January, 1 April and 23 July 1997.", "It ordered an expert opinion. 17. On 15 September 1997 the court refused the applicant's request for an interim measure. 18. The expert opinion was submitted on 5 February 1998.", "19. Subsequently, the applicant challenged that opinion. 20. At the hearing held on 11 May 1998 the court ordered a supplementary expert opinion. 21.", "At the hearing of 25 June 1998 the court completed the examination of the case. 22. Subsequently, the applicant filed a petition in which he complained about certain errors in the minutes from that hearing. On 7 July 1998 the court issued a decision concerning those errors. 23.", "On 6 July 1998 the applicant submitted pleadings. On 9 July 1998 the court resumed the proceedings and requested the applicant to specify his claim. 24. In September 1998 the applicant requested the court to summon a customs office to join the proceedings as an intervener for the applicant. 25.", "At the hearing held on 9 November 1998 the court dismissed that request. The applicant requested the written reasoning of that decision. On 18 November 1998 his request was rejected as not provided for by the law. 26. On 19 November 1998 the court gave judgment.", "It awarded the applicant 32,345.23 Polish zlotys with interest. Both the applicant and the defendant company appealed. 27. The Łódź Court of Appeal held hearings on 9 April and 1 June 1999. 28.", "On 15 June 1999 it gave judgment. The court amended the judgment of the first-instance court in that it dismissed the action filed by the applicant. He received a copy of the written reasoning of that judgment on 4 April 2000. On 4 May 2000 the applicant lodged with the Supreme Court a cassation appeal against that judgment. 29.", "On 16 January 2002 the Supreme Court dismissed that appeal. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 30. The applicant complained that the length of the proceedings was 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. The Parties' submissions 31.", "The Government were of the opinion that the case at issue had been rather complex. They made reference to an expert opinion supplemented by another one. They submitted that the applicant had contributed in part to the prolongation of the proceedings by his numerous procedural requests, concerning, inter alia, exemption from court costs, the appointment of a court expert and the correction of minutes. They noted that already after the completion of the examination of the case, the applicant had submitted pleadings, which necessitated the resumption of the proceedings. The Government observed that he had changed his claims in the course of the proceedings.", "They were of the view that the authorities had conducted the procedure with due diligence and had attempted to accelerate the preparation of an expert opinion by fixing a time-limit for the expert concerned. 32. The applicant pointed out that excessive periods of inactivity had occurred in the course of the proceedings. He mentioned, inter alia, the periods between 16 May 1994 and 11 January 1996, as well as between 10 April and 26 November 1996. The applicant noted that the preparation of an expert opinion took almost 16 months, from 23 July 1997 to 9 November 1998, and that he had had to wait for the written reasoning of the Court of Appeal's judgment from 15 June 1999 to 4 April 2000.", "The applicant submitted that the case had been simple and that his conduct had not prolonged the proceedings. B. The Court's assessment 1. Period to be taken into consideration 33. The Court notes that the proceedings began on 21 February 1994 and ended on 16 January 2002.", "They therefore lasted 7 years, 10 months and 23 days. 2. Reasonableness of the length of the proceedings 34. 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).", "35. The Court agrees that the case disclosed a degree of complexity. 36. As regards the applicant's conduct, the Court agrees with the Government's opinion that the applicant contributed to the delay. The applicant's numerous and, at times, voluminous pleadings, as well as the changes of his claim undoubtedly prolonged the examination of the case.", "37. Nonetheless, the Court observes that significant periods of inactivity occurred in the proceedings at issue, for instance: no action was taken by the domestic courts between 16 May 1994 and 11 January 1996 (almost 1 year and 8 months), as well as between 4 May 2000 and 16 January 2002 (1 year, 8 months and 12 days). 38. Even assuming that delays in the procedure before the Supreme Court can be explained as resulting from the pending reform of the cassation procedure in Poland (see, Kępa v. Poland (dec), no. 43978/98, 30 September 2003), the Court, assessing the circumstances of the case and having regard to the overall duration of the proceedings, finds that the “reasonable time” requirement laid down in Article 6 § 1 of the Convention was not complied with in the present case.", "39. There has accordingly been a violation of Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 40. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 41. The applicant sought an award of PLN 1,176,450. He submitted that this amount included, inter alia, the value of the property that had been damaged or that the applicant had lost as an allegedly unfair result of the proceedings. He also claimed PLN 1,176,450 for non-pecuniary damage. This amount related to suffering and distress caused by the excessive duration of the proceedings.", "The applicant did not supply any documents confirming these costs and expenses. 42. The Government submitted that there was no direct link between the pecuniary damage claimed and the alleged violation of the Convention. 43. As regards the pecuniary damage, the Court's conclusion, on the evidence before it, is that the applicant has 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 her under that head (see, mutatis mutandis Kudła v. Poland [GC], no. 30210/96, § 164, ECHR 2000-XI). 44. The Court further considers that the applicant certainly suffered non-pecuniary damage, such as distress and frustration on account of the protracted length of the proceedings, which cannot sufficiently be compensated by finding a violation. Taking into account the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant a total sum of EUR 2,300 under that head.", "B. Costs and expenses 45. The applicant also claimed PLN 3,310 for the costs and expenses incurred before the domestic courts and PLN 5,350 for the costs and expenses in connection with the proceedings before the Court. 46. The Government submitted that the legal costs and expenses claimed by the applicant were partly irrelevant to the proceedings at issue.", "The Government recalled that only the costs actually incurred in the preparation and defence of the applicant's case before the Court, not before the domestic courts, could be taken into consideration. 47. According to the Court's case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum. To be recoverable, the domestic costs and expenses must also be incurred to prevent or obtain redress for the violation found. 48.", "On the basis of the information in its possession, the Court finds no indication that in the present case any of the domestic costs and expenses claimed by the applicant had been incurred by him for this purpose. 49. The Court notes that the applicant was not represented by a lawyer in the proceedings before it. Making its own assessment on the material before it, the Court awards the applicant EUR 120 for translation and copying expenses which he incurred in the context of filing and pursuing his application. 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. Holds that there has been a violation of Article 6 of the Convention; 2. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 2,300 (two thousand and three hundred euros) in respect of non-pecuniary damage and EUR 120 (one hundred and twenty euros) in respect of costs and expenses, plus any tax that may be chargeable on the above amounts, to be converted into Polish zlotys at a 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 3. Dismisses the remainder of the applicant's claim for just satisfaction.", "Done in English, and notified in writing on 30 November 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O'BoyleNicolas BratzaRegistrarPresident" ]

[ "FIRST SECTION CASE OF TØNSBERGS BLAD AS AND HAUKOM v. NORWAY (Application no. 510/04) JUDGMENT STRASBOURG 1 March 2007 FINAL 01/06/2007 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 Tønsbergs Blad AS and Haukom v. Norway, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL.", "Loucaides,MrA. Kovler,MrsE. Steiner,MrK. Hajiyev,MrD. Spielmann,MrS.E.", "Jebens, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 8 February 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 510/04) 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 limited liability company established under Norwegian law, Tønsbergs Blad A/S, which publishes the newspaper Tønsbergs Blad, and its former editor, Mrs Marit Haukom, who is a Norwegian national (“the applicants”), on 23 December 2003. 2. The applicants were represented before the Court by Mr P.W.", "Lorentzen, a lawyer practising in Bergen. The respondent Government were represented, as Agent, by Mr Erlend Haaskjold, Attorney General's Office (Civil Matters). 3. The applicants alleged a violation of Article 10 of the Convention on account of the unfavourable outcome of defamation proceedings brought against them by a person who had been portrayed in a news item published by the newspaper on 8 June 2000. 4.", "On 3 May 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 5. A hearing took place in public in the Human Rights Building, Strasbourg, on 5 October 2006 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMrE.", "Haaskjold, Attorney, Attorney-General's Office(Civil Matters),Agent,MsA.C. Haug, Attorney, Attorney-General's Office(Civil Matters),Adviser; (b) for the applicantsMrP.W. Lorentzen, Advokat,MrT. Hatland, Advokat,Counsel. The Court heard addresses by Mr Lorentzen, Mr Hatland and Mr Haaskjold.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The first applicant, Tønsbergs Blad A/S, is the publisher of the newspaper Tønsbergs Blad. The second applicant, Mrs Marit Haukom, is its former editor-in-chief. She is a Norwegian national who was born in 1952 and lives in the city of Tønsberg in southern Norway.", "A. Background to the case 7. Tønsbergs Blad is a regional newspaper covering primarily the city of Tønsberg and eight surrounding municipalities in the County of Vestfold. The newspaper is 100% owned by Orkla Media A/S. It is published six days a week.", "In 2002 it had a daily average circulation of 33,314, corresponding to a 60% household coverage within its primary circulation area. 8. In a meeting held on 21 September 1999 the Standing Committee on Development and Environmental Affairs (a politically appointed body attached to the Municipal Council) of the Tjøme Municipality asked the municipal administration to provide a survey of properties whose owners were suspected of breaching permanent residence requirements. Under section 5(3) of the Concession Act (Lov om konsesjon ved erverv av fast eiendom) of 31 May 1974 (no. 19), such requirements applied to the extent that it was deemed necessary to prevent private properties intended for permanent residential use from being transformed into holiday homes.", "Provisions to this effect were further contained in Regulation (forskrift) no. 2089 of 14 December 1984, issued under the above-mentioned Act in respect of the Tjøme Municipality, one of the few municipalities in Norway which applied permanent residence requirements for all-year residences. The purpose was to fend off pressures exerted on the local community by the exceptionally high demand for holiday homes in the Tjøme area, an attractive holiday destination for a large number of people residing notably in the Oslo region. There was also a concern that too many residences were unoccupied during off-season periods. 9.", "On 11 October 1999 the municipal administration drew up a list which was entitled “Properties which should be verified in relation to the residence requirements. (Not public)”. It was a tip-off list based on information from inhabitants and local politicians in the Municipality and was presented to the Standing Committee at a meeting open to the public held the following day. The list included the name of Mr Tom Vidar Rygh, who at the time was the Executive Vice-President, the Head of Financial Investments and a member of the Executive Board of Orkla ASA, one of Norway's largest industrial companies. 10.", "The property in question had been acquired in 1987 and Mr Rygh's wife held title to it (a fact that was not deemed significant in the defamation proceedings summarised below). An all-year residence had been erected on the property in 1988 and the Rygh family had used it as their main residence for 10 years until 1998, when they had moved to Oslo because of Mr Rygh's professional situation. Before that, they had been given legal advice that using the property solely for holiday purposes would not conflict with the residence requirements under the relevant national law. 11. Mr Terje Wilhelmsen, a journalist, became aware of the process initiated by the Tjøme Municipality and received a copy of the above-mentioned list.", "He had a close network of contacts within the Municipality. From autumn 1999 he made a number of enquiries to the Municipality on the subject. On 7 June 2000 the journalist interviewed the director of the Municipality's Planning and Building Department (leder for plan- og bygningssaker), Mr Dag Dreyer Sæter. B. The contested publication of 8 June 2000, subsequent exchanges between those concerned and other publications 12.", "On 8 June 2000 the newspaper published as its main story an article written by Mr Wilhelmsen, which gave rise to the defamation proceedings brought against the applicants by Mr Rygh. On the front page there appeared an introduction to the article under the headline (all quotations below are translations from Norwegian): “May be forced to sell” and the sub-heading “[H.K.] and Tom Vidar Rygh will have to explain themselves on permanent residence requirements” The introduction read: “Permanent residence requirements: In the worst-case scenario [H.K.] may be forced to sell her property at Hvasser [an island next to Tjøme]. The same applies to Orkla director Tom Vidar Rygh.", "According to the understanding of Tønsbergs Blad, their properties are on a list which the Tjøme Municipality will submit to the County Governor [Fylkesmannen] in the very near future. The list includes properties whose use is thought not to be in conformity with the permanent residence requirements. Taking action: The Tjøme Municipality will now take a firm line towards house owners within the Municipality who do not comply with the permanent residence requirements. For a long time there has been a zero limit on concessions at Tjøme. This means that all-year residences must be inhabited all year.", "Those who breach this requirement may be forced to rent out or to sell their property. This is confirmed by the director of the Planning and Building Department, Mr Dag Dreyer Sæter.” The front page also contained photographs of Mrs H.K. (a famous singer) and of Mr Rygh. 13. The article continued inside the paper on page 3 with the following headlines: “Tjøme hunts for permanent residence sinners [H.K.]", "and Tom Vidar Rygh may be forced to sell” and an introduction: “TJØME: Both singer [H.K.] and Orkla director Tom Vidar Rygh may be forced to sell their properties in Tjøme. The reason is that, according to the Tjøme Municipality, they do not comply with the permanent residence requirements applicable to their properties.” 14. At the top of page 3 the paper published photographs of Mrs Rygh's and Mrs H.K. 's respective properties.", "Under the former photograph, to the left, there was a caption: “RESIDENCE REQUIREMENTS: Tom Vidar Rygh owns this property in Sandøsund at Hvasser. The Tjøme Municipality considers that the residence requirements are not satisfied.” Between the two above-mentioned photographs there was a small photo of Mr Rygh with this caption: “MUST PROVIDE AN EXPLANATION: - It must be due to a misunderstanding, says Tom Vidar Rygh” 15. The article stated: “The Tjøme Municipality is now in the process of tightening up the obligation to comply with the residence requirement in the municipality. A zero concession limit has long since been introduced. This means that year-round properties must be lived in all year.", "Confrontation In the near future the technical services department of the Tjøme Municipality will approach the County Governor in order to report its suspicion that the residence requirement is not being fulfilled for a number of properties. It is then up to the County Governor to confront the owners of these properties. The director of the Planning and Building Department, Mr Dag Dreyer Sæter, does not wish to comment to Tønsbergs Blad as to which properties are on the list they are sending to the County Governor. But from what Tønsbergs Blad has been given to understand, the property of Tom Vidar Rygh at Sandøsund on Hvasser island is on the list. The same applies to H.K.", "'s property, which is at Nes on Hvasser. Clearing up 'I cannot comment on individual properties at the present time. First we must write to the County Governor. This will occur in the near future.' 'But will the Tjøme Municipality now tighten up the obligation to comply with the residence requirement?'", "'Yes, indeed. This is an issue that has been discussed at both the administrative and the political levels for some time. Now we want to do something about it. We know that the residence requirements are not being complied with for several properties in the municipality. This is why we are now taking this initiative vis-à-vis the County Governor.", "Now we want to get this cleared up.' Can be rented out 'What are the owners of these properties risking?' 'To begin with, they will have to explain themselves to the County Governor. I would emphasise that it is not a requirement that the owners themselves live in the properties. It is enough for them to be rented out on a year-round basis.", "If this is not done, there may be a question of enforced sale,' says the director of the Planning and Building Department Dag Dreyer Sæter to Tønsbergs Blad. 'Misunderstanding' H.K. owns the property on Hvasser together with her husband ... He does not wish to comment on the matter to Tønsbergs Blad, in view of the fact that he has heard from neither the Municipality nor the County Governor. Tom Vidar Rygh told Tønsbergs Blad that if his property on Hvasser was on the Municipality's list of properties where the residence requirements are not being fulfilled, this had to be due to a misunderstanding.", "Beyond that he did not wish to comment.” 16. Below, on the same page, Tønsbergs Blad published another article based on interviews with local politicians: “Residence requirements are a two-edged sword TJØME: May-Sylvi Hansen, who is the leader of the Conservatives on Tjøme Municipal Council, thinks that the time is ripe for a new and thorough political debate on the question of residence requirements. Anne Vestad 'The whole question of residence requirements is a two-edged sword', she says. The Tjøme Conservatives have the maintenance of the residence requirements in their manifesto, but at the same time the party feels a need to have a broad political debate on the question. May-Sylvi Hansen, who in addition to being the leader of the Conservatives on Tjøme Municipal Council also sits on the Planning and Environment Committee, tells Tønsbergs Blad that at any rate she sees no reason for a tightening-up of the obligation to fulfil the residence requirements now.", "'The residence requirements issue is under discussion in the Tjøme Conservative Party, and the question is whether we should perhaps be a little more liberal in the time to come. But this is a two-edged sword. On the one hand we don't want to see year-round residences made into summer homes, but on the other hand we have had considerable migration to Tjøme in recent years – the population is growing fast,' says May-Sylvi Hansen. Not a problem any more 'In the seventies and eighties the residence requirements were entirely necessary in this municipality. But in my opinion, after the big migration to the municipality began, empty houses in the winter are no longer a problem.", "We should therefore undertake a serious review of the whole issue of residence requirements and ask whether, when all's said and done, it's just an old bogeyman,' says Hansen. Arne Fjellberg of 'The Tjøme List' independents, who chairs the Planning and Environment Committee, does not agree with May-Sylvi Hansen that the occupation provisions should be liberalised. 'Must tighten up' 'I fully support the director of the Planning and Building Department's view that it is necessary to tighten up the obligation that the residence requirements be fulfilled. With the mobility and flexibility that many now have in relation to their work, it shouldn't be a problem to live in Tjøme even if you work somewhere else. We want people to live in the houses of Tjøme, make no mistake about that,' says Fjellberg.", "'So you don't support May-Sylvi Hansen in her view that it is time for a general rethink of the residence requirements?' 'The Tjøme List wants to retain the residence requirements, but I'm willing to be a part of a discussion of the residence requirement in general. It could surely be useful,' says Arne Fjellberg.” 17. On 9 June 2000 Aftenposten, one of Norway's largest daily newspapers, published a brief item on the matter, stating, inter alia, that an Orkla director and a famous singer might be forced to sell their properties, without specifying their names. 18.", "On 12 June 2000 Mr Rygh addressed a letter to the Tjøme Municipality. Its Chief Executive Officer (Rådmannen), Mr Gunnar A. Hansø, replied by a letter of 22 June 2000, which stated inter alia: “The Tjøme Municipality is working on a survey of the status of the permanent residence requirements which have been implemented at Tjøme under section 5(3) of the Concession Act. Part of the reason why this work has started now are the enquiries from a number of local residents. These are neighbours to properties which are used, or should be used, for permanent residence but which, according to these enquiries, are not being used for this purpose. The list of properties that must be 'checked out' has now become quite extensive.", "A number of the enquiries result from the lack of knowledge about the contents of the regulations and the circumstances pertaining to the relevant users. Consequently, these properties are being checked out, which is an ongoing process. ... Your wife's property has been reviewed in the same way, and I can confirm that the property, on legal grounds, has now been removed from the list.” 19. On contacting the Tjøme Municipality on 29 June 2000, the journalist Mr Wilhelmsen was informed that the Chief Executive Officer had replied to Mr Rygh and that Mrs Rygh's property had been removed from the list.", "Mr Wilhelmsen received a copy of the above-mentioned letter of 22 June 2000. 20. On 30 June 2000 Tønsbergs Blad published an article entitled “No restrictions on new cottages Tjøme Chief Executive Officer points to major loopholes in the Concession Act” with the following introduction: “Escape: Singer [H.K.] and Orkla director Tom Vidar Rygh escape the permanent residence requirements in the Tjøme Municipality. They were included on the Municipality's list of properties that were subject to residence requirements, but have now been taken off.", "The reason is that they have built on their land themselves. Thus, the residence requirements do not apply. Major loopholes: Chief Executive Officer Gunnar Hansø (picture) at Tjøme asserts that the Concession Act is filled with holes the size of a barn door. He warns that the Municipality will take up the issue with the Ministry of Agriculture. By exploiting loopholes in the Concession Act, it is easy to get hold of an entirely new holiday home at Tjøme.", "All you need to do is to acquire a plot and build an all-year residence on it. Then no one can require permanent residence.” 21. The article continued on page 5, with the following headlines and introduction: “Residence requirements do not apply to new houses [H.K.] and Tom Vidar Rygh do not have to move to Hvasser.” “TJØME: Singer [H.K.] and Orkla director Tom Vidar Rygh do not have to take up permanent residence in the Tjøme Municipality.", "The reason: they have built on their properties themselves. Thus the Concession Act does not apply. This means that they do not have to reside here.” 22. In addition the coverage contained photographs of Mr Rygh and Mrs. H.K., with captions stating that they had “escaped” the residence requirements with regard to their properties.", "There were also photographs of the properties, with captions stating “No residence requirement” and adding that the properties, which had previously been on the Municipality's list of properties not complying with the residence requirements, had now been taken off the list. 23. The article reproduced an interview with the Municipality's Chief Executive Officer, Mr Hansø, who was reported to have said that he had absolutely no wish to comment on individual cases, but confirmed that some had been cleared and removed from the list: “We did this for legal reasons.” He had further stated, inter alia, that it was unfortunate that the Concession Act, which had loopholes the size of a barn door, did not apply to the purchase of undeveloped sites, but only to properties with buildings on. In practice, that meant that anyone building a year-round residence in the Tjøme Municipality did not have to live in the house at all and could not be forced to move in. They could use it as a summer holiday cabin if they wished.", "It was not until the residence had been used for a period as a year-round home that the residence requirement would apply, but then only in the event of resale of the property. It could not be fair that residence requirements applied to some properties but not to others. To change this he would raise the matter with the Ministry of Agriculture. 24. On 5 July 2000 Tønsbergs Blad published an article containing, inter alia, an interview with a former Minister of Agriculture, who stated that the loopholes in the Concession Act that had been detected in Tønsbergs Blad's articles were “completely unreasonable” and should be amended.", "25. On 5 and 6 July 2000 Mr Rygh conveyed to the newspaper orally and in writing his dissatisfaction with its 8 June 2000 coverage, including the fact that his name had been mentioned. The newspaper responded, orally and in writing. By a letter of 18 July 2000, Mr Rygh's lawyer demanded that Tønsbergs Blad publish a rectification and an apology. The newspaper replied that it had acted in accordance with the ethics of journalism and that, immediately after becoming aware that Mr Rygh's property had been removed from the list, it had accordingly published an article on the front page and had offered him space for his own viewpoints, an offer it had maintained for a period thereafter.", "An interview with Mr Rygh had not been published, as the newspaper had respected his decision that this was not desirable. 26. In a further article published on 8 August 2000, entitled “Tønsbergs Blad clarifies”, the paper stated that the properties belonging to Mrs H.K. and Mrs Rygh had been removed from the list in question, that the requirements at issue did not apply to their properties and that, accordingly, there had been no breach of the permanent residence requirements with regard to these properties. C. The defamation proceedings brought by Mr Rygh 27.", "On 15 September 2000 Mr Rygh instituted private criminal proceedings (privat straffesak) before the Tønsberg City Court (byrett). He requested that both the introduction on the front page and the article on page 3 be declared null and void under Article 253 of the Penal Code, that Tønsbergs Blad and its editor-in-chief (at the time of publication Mrs Marit Haukom) be punished under Articles 247 and 431 respectively of the Penal Code and that the newspaper and its editor-in-chief be ordered to pay compensation for non-pecuniary damage under section 3-6 of the Damage Compensation Act 1969. 28. By a judgment of 13 September 2001 the City Court acquitted the applicants and ordered Mr Rygh to pay 183,387 Norwegian kroner (NOK) in respect of their costs. It found that a defamatory allegation had been made but, with reference to Article 10 of the Convention, attached special importance to the public interest of the permanent residence issue and to the freedom of the press in respect of presentation and form.", "29. On 26 September 2001 Mr Rygh appealed against the judgment to the Agder High Court (lagmannsrett). 30. By a judgment of 21 May 2002 the High Court upheld Mr Rygh's claims in part. 31.", "As to the first issue, whether the impugned statements amounted to defamation for the purposes of Article 247 of the Penal Code, the High Court observed that it agreed with the City Court that, when considering the 8 June 2000 article in isolation and as a whole, the allegations in question must be understood to mean that the Municipality, after having made a specific assessment of the relevant properties, had taken the stance that a breach of the residence requirements had occurred with regard to Mr Rygh's property, among others, and that his name had therefore been entered on a list which the Municipality had decided to transmit to the County Governor for further processing. The report should therefore be perceived by the ordinary reader as an allegation that Mr Rygh had breached the obligation of residence. 32. As to the question whether this amounted to a defamatory accusation, the High Court held that a breach of the residence requirements did not constitute a criminal offence but that, in a place like Tjøme, many people would regard it as being immoral and an affront to the public interest. The High Court agreed with the City Court that the accusations were not of the most defamatory kind but, not least in view of the strong personal angle of the report, the High Court found that it was capable of damaging Mr Rygh's good name and reputation.", "An examination of whether it was capable of causing a loss of the reputation required for the exercise of his profession was not necessary. 33. The High Court did not find that the applicants had adduced sufficient proof of the defamatory accusation under Article 249 § 1 of the Penal Code to avoid liability for defamation under Article 247. In this connection it observed: “It is correct that Tom Vidar Rygh's name was mentioned on a list drawn up in October 1999 by the administration of the Tjøme Municipality for its Standing Committee on Development and Environmental Affairs. The heading of the list reads: 'Properties which should be verified in relation to the residence requirements'.", "Further, it was noted that the list was not public. Had the Tønsbergs Blad limited itself to stating this, it would have made an accusation that was true. ... Mr Rygh's name was put on the preliminary 'tip-off' list, based on tip-offs from inhabitants, local politicians and others. The High Court has no doubt that a number of local inhabitants could have believed that the residence requirements were breached in so far as Rygh's property was concerned, given the fact that it concerned an all-year residence which had been vacated and used as a holiday home. The mayor of the municipality has explained that he was of the opinion that the permanent residence requirements were breached, as has Mr Sæter, the director of the Planning and Building Department.", "However, Mr Sæter explained in the proceedings before the High Court that, at that time, he had not conducted a further investigation of the property. His view that the property was subject to the permanent residence requirements had been based on his belief that it had been converted from an older residence. He was fully aware that permanent residence requirements did not apply where a person had acquired an open plot of land and then built a house on it. Mr Sæter also explained that, when he had told the journalist Mr Wilhelmsen that a list would shortly be submitted to the County Governor, he was aware that the list would have to be examined first. According to the High Court's understanding of Mr Sæter, there had been no further elaboration of the preliminary tip-off list since autumn 1999.", "... Since Mr Sæter was well aware of the exception to the residence requirements for new buildings on open plots of land, he would have quickly discovered that no obligation of residence applied here. ... The High Court further notes that to date none of the names that were on the provisional tip-off list from the autumn of 1999 have been transmitted to the County Governor because the Municipality believed that there was a breach of the residence requirements. The allegations made by Tønsbergs Blad on 8 June 2000 were therefore demonstrably inaccurate.” 34.", "The High Court was divided as to the question whether the accusations were unlawful (rettstridige). A majority of four members found that that was the case, whereas a minority of three members agreed with the City Court. 35. However, a qualified majority of minimum five votes was required for finding liability under Article 247 of the Penal Code. Mr Rygh's claim that he had been the victim of unlawful defamation under Articles 247 and 431 by the newspaper and its editor-in-chief, respectively, was therefore rejected.", "36. On the other hand, under Article 253 of the Penal Code, which required only a simple majority, the High Court declared the following two statements, published respectively on the front page and on page 3 of the 8 June 2000 issue (see paragraphs 12 and 13 above), null and void: “Permanent residence requirements: In the worst–case scenario [H.K.] may be forced to sell her property at Hvasser [an island next to Tjøme]. The same applies to Orkla director Tom Vidar Rygh. According to the understanding of Tønsbergs Blad, their properties are on a list which the Tjøme Municipality will submit to the County Governor in the very near future.", "The list includes properties whose use is thought not to be in conformity with the permanent residence requirements.” “...Tom Vidar Rygh may be forced to sell their properties at Tjøme. The reason is that, according to the Tjøme Municipality, they do not comply with the permanent residence requirements applicable to their properties.” The High Court further decided that the applicants were jointly and severally liable, under section 3-6 of the Damage Compensation Act 1969, to pay Mr Rygh NOK 50,000 in compensation for non-pecuniary damage. The High Court in addition decided that no costs should be awarded with respect to the proceedings either before the City Court or the High Court. 37. The applicants appealed to the Supreme Court against the procedure followed by the High Court (saksbehandlingen), namely the fact that the issue of nullification had been determined by a simple majority, and against its application of the law (rettsanvendelesen).", "On 4 September 2002 the Appeals Leave Committee of the Supreme Court granted leave to appeal in so far as the latter ground was concerned but refused such leave with respect to the former ground. 38. By a decision of 1 July 2003 the Supreme Court dismissed the applicants' appeal and ordered them to pay Mr Rygh NOK 673,879 for his legal costs. When deciding on the question whether to declare parts of the newspaper article null and void, the Supreme Court applied Article 2 § 3 of the Code of Criminal Procedure. This limited the scope of the Supreme Court's review of the facts of the case (see further on this below).", "As far as the question of non-pecuniary damage was concerned, the appeal only referred to the application of the law. Therefore, even though the Code of Civil Procedure was to be applied in this regard, in accordance with Article 435 of the Code of Criminal Procedure, the Supreme Court had to base its examination on the same facts as the High Court in this connection too. 39. In his opinion, to which three other members subscribed, Mr Justice Støle held, inter alia: “(33) I shall first look at how the statements must be understood. It follows from case-law that the interpretation is part of the application of the law ....", "It is the statements whose nullification is requested which are to be interpreted. The question is how these must be assumed to have been understood by the readers of the newspaper. Taking the wording as our point of departure, we must then look at what perceptions the statements create in the ordinary newspaper reader. In my opinion there is no conflict between the case-law of the European Court of Human Rights and that of the Supreme Court as regards the subject matter of the interpretation; see the references to 'the ordinary reader' in the decisions of the European Court of Human Rights. (34) The statements to be interpreted are included in the newspaper's first story of 8 June 2000.", "In the usual way the statements must be interpreted in context with the rest of the news report, with its typography and use of pictures. Like the High Court, however, I find it clear that the subsequent articles, carried on 30 June and 8 August 2000, are not of significance for this purpose. I shall return to the significance of the follow-up reportage in another context. Here it is sufficient to show that these are not suitable for shedding light on the meaning of the statements whose nullification is being requested. ...", "The statements in the story of 30 June 2000 are more of the nature of a description of a subsequent development, namely that Mr Rygh has been 'cleared' in the case. I would add – not that my standpoint depends on it – that the distance in time to the article to which the nullification claim applies is also materially greater than in Norsk Retstidende ('Rt') 2002-764. (35) The unanimous High Court has summarised its interpretation as follows: 'When one accordingly considers the article of 8 June 2000 in isolation, the High Court agrees with the City Court that the statements, seen in isolation and as a whole, must be perceived by the ordinary reader as saying that the Municipality, after considering the relevant properties, has taken the position that there has been a breach of the residence requirements for, inter alia, A's property, and that his name has therefore been written down on a list that the Municipality has decided to refer to the County Governor for further action. The story must appear to the ordinary newspaper reader as a statement that Mr Rygh has breached the residence requirements.' (36) This by and large coincides with my own view.", "The core of the accusation was that Mr Rygh found himself on a list that the Tjøme Municipality had prepared, and which contained the names of persons whom the Municipality considered to have breached the residence requirements. I do not, however, concur with the majority of the High Court that the story 'must appear to the ordinary newspaper reader as a statement that Mr Rygh has breached his residence requirements'. It is clearly apparent from the article that it is the Municipality's opinion that is being reported, and that the list is to be sent to the County Governor for decision. (37) I agree with the High Court that the statements, as interpreted, contain a defamatory accusation; see Article 247 of the Penal Code. It is the first alternative in that provision that is relevant, and the allegation that the Municipality considered that the residence requirements had been breached was liable to damage his 'good name and reputation'.", "An accusation of a breach of the law of this nature must be regarded as defamatory. It is the public's moral judgment of the act that is decisive, and it is not a requirement that actual damage be demonstrated or substantiated. The High Court found that no evidence of the truth of the accusation was presented, and this conclusion is binding on the Supreme Court. ... (40) In the specific weighing of factors in our case, the point of departure must be that Tønsbergs Blad has published a defamatory accusation about factual matters, namely that the Municipality had considered Mr Rygh's property under the rules on residence requirements and was of the opinion that Mr Rygh had breached the residence requirements. In this connection I do not accord any independent weight to the fact that he was not the holder of title to the property.", "The Supreme Court must find that the accusation was untrue – that applies both to the Municipality's alleged perception that the residence requirements had been breached, and the allegation that Mr Rygh's name was entered on a list that the Municipality, on the basis of such a perception, had prepared of owners of properties in respect of which the residence requirements were supposed to have been breached. As regards the facts, a unanimous High Court has found that this was a provisional 'tip-off list' based on tips from inhabitants and local politicians in the Municipality. It had been drawn up by the municipal administration in October 1999, and bore the title 'Properties which should be verified in relation to the residence requirements. (Not public)'. The High Court also noted that the Municipality, at the time the newspaper published the article on 8 June 2000, had not 'undertaken any further processing of the provisional tip-off list from the autumn of 1999'.", "The Supreme Court is bound by this assessment of the evidence. (41) The main rule in both Norwegian defamation law and Article 10 of the European Convention on Human Rights is that non-proven defamatory allegations of fact are not protected by freedom of expression. As regards the European Court's case-law, I refer to the judgment of 20 May 1999 in Bladet Tromsø and Stensaas v. Norway (no 21980/93), § 66, and to the judgment of 7 May 2002 in McVicar v. United Kingdom (no. 46311/99), §§ 84 and 87; there must be special grounds for departing from this main rule. (42) There is also a distinction between transmission of other people's untrue accusations and the media's own presentation of non-proven defamatory allegations.", "Freedom of expression stretches further to cover transmission, depending, inter alia, on who has made the allegation that is transmitted. If it is a report from a public authority, as in the Bladet Tromsø case, freedom of expression enjoys stronger protection. (43) In our case it cannot be found that the newspaper has transmitted a defamatory accusation that was made by others. The article gives no source for the accusation, and the Supreme Court cannot depart from the High Court's (the majority's) assessment of evidence with regard to the newspaper's having based itself on an anonymous source in relation to the information that Mr Rygh was on the list that was to be sent to the County Governor and that his property was 'thus to be looked into with regard to a breach of the residence requirements'. The reliance on anonymous sources otherwise prevents the courts from testing whether the journalist displayed due care by employing that source; see Rt 1987-764, p. 771, and the European Court of Human Rights' judgment in McVicar, § 86.", "Referring to anonymous sources should therefore in this connection be equated with accusations made by the newspaper without giving sources. I will return later to the question of what grounds the newspaper had at the time of publication for the truth of the accusation. (44) The decision in Rt-2002-764 and the case-law of the European Court of Human Rights shows that the specific weighing of factors must take into consideration several criteria. Of these I would emphasise the degree of public interest, the nature of the accusation, including whether the accusation is classified as a 'value judgment' or a 'factual statement', whether it is directed against a public person or a private individual, and the degree of care, including the extent to which the media at the time of publication had factual support for considering the allegation to be true. In general, the protection of the expression will be stronger if it concerns matters of public interest, value judgments, imparting of information, a public person, and if there are strong reasons for holding the allegation to be true.", "Contrariwise: if the case concerns limited public interest, factual statements, the media's own presentation, private persons and weak grounds for holding the allegation to be true, the protection of the expression will be weaker. (45) That the expression containing the accusation is of public interest is in my view a fundamental criterion for regarding the media's own presentation of untrue defamatory allegations against private individuals about factual matters as being protected by freedom of expression. (46) It is immediately clear that the question of enforcement of the residence requirements for year-round residences in a coastal municipality like Tjøme is of public interest. For Tønsbergs Blad as the local newspaper in the region, this was naturally a topic for critical coverage. The fact that there existed a list of properties that there was a question of referring to the County Governor must also be regarded as being of interest for the residents of the region and the newspaper's readership.", "Which properties or owners were on the list, on the other hand, must in my opinion be regarded as of limited public interest. If any of the individuals who were entered on the 'tip-off list' – for example owing to their function, position of trust or participation in the public debate – had had a special connection to the issue of residence requirements, it might have been different. It may well be the case that the modern news industry makes considerable use of known persons to arouse the interest of the readers. But I agree with the High Court that the fact that Mr Rygh was a relatively famous person as the executive VP of Orkla does not mean that he can automatically be regarded as a public person in relation to the rules on residence requirements. The majority's emphasis on his not having involved himself in the public debate on this topic appears very consonant with the European Court of Human Rights' reasoning in its judgment of 25 November 1999 in Nilsen and Johnsen v. Norway (no.", "23118/93), § 52, first sub-paragraph, with its emphasis on Bratholm's 'participation in public debate' as the central theme. (47) I would then return to the question of the journalist's due care in the publication, and view this in the context of the use of an anonymous source and of what factual grounds he had at the time of publication for considering the allegation true. I would first remark that there did not exist any written documentation from the municipality's processing of the matter that could support the allegation, over and above what the unanimous High Court has characterised as 'the provisional tip-off list'. As mentioned, the Supreme Court must in my opinion base its decision on what the High Court has found with regard to the use of an anonymous source. I cannot therefore see that it can be found that the newspaper had other sources or other grounds for its allegation that Mr Rygh's name was on a list that the Municipality should 'in the near future refer to the County Governor'.", "This was the basis for the accusation that the Municipality considered that Mr Rygh had breached the residence requirements. Even if use of anonymous sources is a recognised tool of modern journalism, such use of sources will imply a stricter requirement of due care. Moreover, in such a situation, it must to a considerable degree be the newspaper's risk that the factual information conveyed may turn out to be untrue. (48) It is true that the same day the newspaper carried an interview with the director of the Municipality's Planning and Building Department, in which it was confirmed that the Municipality would in the near future be sending a list to the County Governor. But in my opinion the interview does not allow the conclusion to be drawn that the Municipality's processing was concluded and that a definitive list therefore existed.", "In this connection I would not lay any particular emphasis on the fact that representatives of the Municipality may – before consideration of the tip-off list – have considered that the residence requirement applied to the Rygh family's property. Nor did the journalist claim to have based his story on information from these people. Otherwise, in my view, there are generally grounds for emphasising the big difference between being on a so-called tip-off list that has not been considered by the Municipality and being on a list that the Municipality has decided, after processing and consideration, to refer to the County Governor, who is the central government's supervisory and administrative authority. (49) When Mr Rygh was contacted by the journalist immediately prior to the newspaper's running the story on 8 June 2000, his reaction was that the whole thing had to rest on a misunderstanding. Even if it is understandable that the newspaper may have wanted a broader statement from Mr Rygh, I cannot see that he can be blamed for his behaviour here.", "Without it having any importance for my view on the question I am discussing here, I would like to mention that it was subsequently discovered that Mr Rygh had obtained legal advice on the residence requirements in connection with his family's move to Oslo in 1998 in consequence of his work situation in Orkla. As the situation must have appeared to him, when he was contacted by the journalist immediately before the newspaper ran the story on 8 June 2000, his reaction was in my opinion understandable. The circumstance that I have mentioned here cannot in any event mean that the journalist may be regarded as having acted with due care. (50) The articles that Tønsbergs Blad carried on 30 June and 8 August 2000 are of negligible significance for the questions I have now discussed. The stories came a relatively long time after the initial article.", "And under Article 253 § 2 of the Penal Code, claims for nullification must be rejected when the person making the accusation 'withdraws it before the main hearing in a manner that the court finds satisfactory to the aggrieved person'. Tønsbergs Blad has not, however, requested the case to be dismissed from the courts, and I have no occasion to enter into any discussion of this question. I would, however, remark that Norwegian defamation law is based on the notion that a withdrawal of an allegation has significance in relation to the sanctions, and not the assessment of unlawfulness (rettstridsvurderingen). (51) As the case now stands, I cannot agree with Tønsbergs Blad that the newspaper's follow-up report means that there is on the whole a balanced presentation suggesting that the statements in the story of 8 June 2000 cannot be deemed unlawful. The story of 30 June 2000 was in particular angled in such a way as to make it less appropriate as a modification of the original statement's defamatory character; see the use of the expression that Mr Rygh 'is escaping' the residence requirements.", "In the discussion of 8 August 2000, under the headline 'Tønsbergs Blad clarifies', there is a more neutral correction, but it is not stated here either that Mr Rygh has not been on any list that has been considered by the Municipality. (52) By way of conclusion I see good reason to emphasise: as will be apparent from what I have reproduced from the first voting judge in Rt. 2002-764, in considering specific statements the press's role as a central practitioner of freedom of expression must be weighed against the interests of privacy, including the reputation of the individual. When the expression concerns a case of public interest, the role of the press as a 'public watchdog' means that interference with freedom of expression requires a weighty justification. In our case it is the protection of Mr Rygh's reputation that calls for the interference.", "The only way I can see the situation is that Tønsbergs Blad could have highlighted the residence requirements issue critically, as it did in the reportage of 8 June 2000, without the strong focus on Mr Rygh personally – a focus that rested on a deficient factual basis. (53) In the light of this I have concluded that the statements of which nullification is requested are not protected by Article 10 of the Convention and that the request must be granted. Since the special arguments regarding the compensation claim for non-pecuniary damage have not been maintained, it follows that this part of the judgment is also upheld.” 40. The dissenting judge, Mr Justice Rieber-Mohn, stated: “(56) ... I concur that in its news coverage of 8 June 2000 Tønsbergs Blad published a defamatory statement – an accusation of a factual character – for which there was no factual basis.", "I also agree with the first voting judge that the core of the accusation is that Mr Rygh found himself on a list that the Tjøme Municipality had drawn up, which contained the names of individuals whom the Municipality considered to have breached the residence requirements. This would, however – assuming it was correct – not have been a final declaration that there had been a breach of the residence requirements. For this reason, among others, I agree with the minority of the High Court and the City Court that the accusation lies in the lower stratum of what can be covered by Article 247 of the Penal Code. I also have the impression that the High Court's majority by and large agree with this. (57) When an untrue defamatory statement is made, the point of departure is also clear under the European Court of Human Rights' case-law concerning Article 10 of the European Convention: the accusation is not protected by freedom of expression.", "But exceptions to this may be contemplated. If the accusation is to enjoy protection under freedom of expression, it must at the least be demanded that the news coverage in which it is contained is of public interest and additionally that the necessary care was taken by the newspaper. I consider that these criteria were met in this case. (58) There can be no doubt that the general subject with which the newspaper was concerned, and with which the news coverage of 8 June 2000 really dealt, namely compliance with the rules on residence requirements, was and is of great public interest. The question is whether it is in the public interest to publicise a possible breach of the residence requirements on the part of Mr Rygh.", "I would first mention that in modern journalism it is a common and recognised method of popular education to illustrate general and usually difficult questions by means of the roles and fates of individuals, when they are considered especially relevant. When individuals are unwillingly brought forward, and are subjected to accusations of crime and so forth, a mass medium must have good reasons for this, for example if the person concerned has sought out the light of publicity in this area, or is a prominent person in society who must accept that special demands are made of his integrity and sense of responsibility to society. At the time in question Mr Rygh belonged to the top management of one of the country's biggest industrial conglomerates, and his name was not unfamiliar in the news. In my opinion individuals who have sought prominent positions in society, which require a special degree of trust from the public, must to some extent accept that the media will follow them with the eyes of Argus, not just in their professional activities but also when, in the more private sphere, they challenge laws and other regulations that are particularly meant to safeguard the interests of society. It is therefore possible to conceive of violations of the law by these individuals that in the circumstances will be of public interest, even if the breach carries no criminal responsibility or the penalties are minor.", "In this case the newspaper thought that Mr Rygh had broken the rules on residence requirements, which in public opinion was and is of major social importance, even if such a contravention is not a criminal offence. I have difficulty seeing that it was not a matter of public interest if such a very prominent person as Mr Rygh had not complied with the residence requirements with regard to his property in the Tjøme Municipality. (59) The question then becomes whether the newspaper has acted with the requisite care. It must be noted that the journalist used an anonymous source when he wrote that Mr Rygh was on the Municipality's list of those who were considered to have breached the residence requirements. It is undisputed that for a long while Tønsbergs Blad had been working on this topic, and that the journalist – who lived at Tjøme – had been in contact with several representatives of the Municipality.", "It must also be noted that the journalist, on application to the Municipality, received confirmation that there existed a list that the Municipality had drawn up, but the mistake was that this was a list of individuals who, according to external tip-offs, had breached the obligation, and not a list of individuals whom the Municipality had already found to have breached it. The newspaper thus confused the tip-off list, which contained Mr Rygh's name, with the list that the Municipality was indeed to refer to the County Governor for a decision on whether the residence requirements had been complied with. (60) I cannot see that the newspaper is much to be blamed for this confusion. The journalist had reason to believe that a municipal assessment had been carried out at that point. In the story of 8 June 2000 the director of the Planning and Building Department confirmed that technical services would 'in the very near future' write to the County Governor regarding individuals whom the Municipality suspected of breaching the residence requirements.", "The director also stated: 'We know that the residence requirements are not being complied with for several properties in the Municipality'. And the director did not wish to say 'which properties are on the list we are referring to the County Governor'. This last statement gave the clear impression that the list which the Municipality had assessed already existed. In addition, prominent representatives of the Tjøme Municipality – such as the mayor and the director of the Planning and Building Department – subsequently stated that, at the time when the newspaper had carried the controversial reportage, they had been of the opinion that Mr Rygh was in breach of the residence requirements. This is clearly apparent from the High Court's judgment, both the minority and majority remarks.", "Tønsbergs Blad was therefore close to the truth in its story of 8 June 2000. I would also mention that, according to the story, the newspaper had approached Mr Rygh for his view of the matter, but he did not want to comment beyond stating that the fact that his name was on the list must have been due to a misunderstanding.” II. RELEVANT DOMESTIC LAW AND PRACTICE 41. Under Norwegian defamation law, there are three kinds of response to unlawful defamation, namely the imposition of a penalty under the provisions in Articles 246 and 247 of the Penal Code, an order under Article 253 of the Code declaring the defamatory allegation null and void (mortifikasjon) and an order under the Damage Compensation Act 1969 to pay compensation to the aggrieved party. Only the latter two were at issue in the present case.", "42. Under Article 253 of the Penal Code, a defamatory statement which is unlawful and has not been proved true may be declared null and void by a court. In so far as relevant this provision reads: “1. When evidence of the truth of an allegation is admissible and such evidence has not been produced, the aggrieved person may demand that the allegation be declared null and void unless otherwise provided by statute.” 43. Such a declaration is applicable only with regard to factual statements, the truth of value judgments not being susceptible of proof.", "44. Although the provisions on orders declaring a statement null and void are contained in the Penal Code, such an order is not considered a criminal sanction but a judicial finding that the defendant has failed to prove its truth and is thus viewed as a civil-law remedy. 45. Section 3-6 of the Damage Compensation Act reads: “A person who has injured the honour or infringed the privacy of another person shall, if he has displayed negligence or if the conditions for imposing a penalty are fulfilled, pay compensation for the damage sustained and such compensation for loss of future earnings as the court deems reasonable, having regard to the degree of negligence and other circumstances. He may also be ordered to pay such compensation for non-pecuniary damage as the court deems reasonable.", "If the infringement has occurred in the form of printed matter, and the person who has acted in the service of the owner or the publisher thereof is responsible under the first subsection, the owner and publisher are also liable to pay compensation. The same applies to any redress imposed under the first subsection unless the court finds that there are special grounds for dispensation...” 46. Conditions for holding a defendant liable for defamation are further set out in Chapter 23 of the Penal Code, Article 247 of which provides: “Any person who, by word or deed, behaves in a manner that is likely to harm another person's good name and reputation or to expose him to hatred, contempt, or loss of the confidence necessary for his position or business, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding one year. If the defamation is committed in print or in broadcasting or otherwise under especially aggravating circumstances, imprisonment for a term not exceeding two years may be imposed.” A limitation to the applicability of Article 247 follows from the requirement that the expression must be “unlawful” (“rettsstridig”). While this is expressly stated in Article 246, Article 247 has been interpreted by the Supreme Court to include such a requirement.", "47. Further limitations to the application of Article 247 are contained in Article 249, which, in so far as is relevant, reads: “1. Punishment may not be imposed under Articles 246 and 247 if evidence proving the truth of the accusations is adduced. ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 48.", "The applicants complained under Article 10 of the Convention that the Supreme Court's decision of 1 July 2003 had entailed an interference with their right to freedom of expression that could not be regarded as necessary in a democratic society. Article 10 reads: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 49. The Government contested that argument. A. Admissibility 50. The Court finds that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Preliminary issue regarding the scope of the case 51. The Government pointed out that the Court was bound to rely on the facts as established by the national courts and should accordingly base its assessment and scrutiny on the same facts as established by the Supreme Court, which were the same as those found by the majority of the High Court.", "This related to the fact that the article had given no source for the accusation, and therefore the newspaper could not claim to have transmitted a defamatory accusation which had been made by others. 52. The applicants contested the Government's contention, which in their view was aimed at excluding evidence demonstrating that the newspaper's coverage had, in essence, been accurate. The applicants referred here to certain new evidence which they had unsuccessfully sought to adduce before the Supreme Court: notably declarations by the journalist, Mr Wilhelmsen, the director of the Tjøme Municipality's Planning and Building Department, Mr Sæter, and the mayor, Mr Tandberg, dated 28 January, 8 May and 13 May 2003 respectively, about the identity of the journalist's source(s) and the contents of the information provided by the source(s), plus an additional declaration made by Mr Sæter on an unintelligible date in 2003. On account of the national rules, the appeal to the Supreme Court had been examined in accordance with the rules of the Code of Criminal Procedure, with the result that the Supreme Court was bound to base its decision on the same facts as the High Court.", "53. The Court emphasises that a complaint is characterised by the facts alleged in it, not merely by the legal grounds or arguments relied on (see Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no. 172, p.13, § 29). Within the scope of the case, as delimited by the decision on the admissibility of the application, the Court has full jurisdiction, which encompasses any issue of fact or law that arises during the proceedings before it (see Guerra and Others v. Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998‑I, p. 223, §§ 43 and 44). 54.", "However, the new evidence in question comprised statements by sources who were anonymous during the proceedings before the High Court but who thereafter waived their anonymity and gave written statements for submission to the Supreme Court. Under the relevant national procedural rules the Supreme Court was prevented from relying on new evidence, unlike the City Court and the High Court, which had full jurisdiction to assess the evidence. This limitation on the Supreme Court's jurisdiction must have been foreseeable for the applicants. Moreover, the new evidence significantly altered the substance of their complaint under Article 10 of the Convention. As a result the national courts were not given a proper opportunity to review from the angle of Article 10 of the Convention the subject matter of the applicants' complaint as altered by this new evidence, which is the purpose of the requirement of exhaustion of domestic remedies in Article 35 § 1 of the Convention.", "This provision also requires that the complaints intended to be made subsequently at Strasbourg must first be 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 must be used (see Cardot v. France, judgment of 19 March 1991, Series A no. 200, p. 18, § 34; and Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996‑IV, p. 1210, § 66). Therefore, the Court considers that the witness statements in question fall outside the scope of its review and will accordingly not rely on them. If the Court were to accept such new evidence, it could lead to the unreasonable consequences of making it a forum for reopening of national proceedings. Such a function would not be consistent with its subsidiary role in the Convention protection system.", "C. Merits 55. The Court considers that the impugned measure constituted an “interference by [a] public authority” with the applicants' right to freedom of expression as guaranteed under the first paragraph of Article 10, but that the interference was “prescribed by law”, namely Articles 247, 431 and 253 of the Penal Code and section 3-6 of the Damage Compensation Act 1969 (see paragraphs 41 to 47 above), and pursued the legitimate aim of protecting “the reputation or rights of others”. It thus fulfilled two of the three conditions of justification envisaged by the second paragraph of Article 10. The dispute in the present case relates to the third condition – whether the interference was “necessary in a democratic society”. 1.", "Arguments of those appearing before the Court (a) The applicants 56. The applicants disputed the necessity of the measures ordered by the High Court and upheld on appeal by the Supreme Court, which in their view violated Article 10 of the Convention. 57. Firstly, they submitted that no allegation had been adopted by Tønsbergs Blad. In the article they had emphasised that the presentation was “[a]ccording to the understanding of Tønsbergs Blad”.", "It was apparent from the article that the information provided emanated from officials within the Municipality. For the most part, the newspaper was quoting from or directly referring to interviews with named officials. 58. Secondly, the statements contained in the article had not been presented as undisputable facts. On the contrary, the newspaper had expressed numerous reservations, after which no conclusion had been drawn in respect of the Rygh family's compliance with the permanent residence requirements.", "The Supreme Court had failed to take this into account. In essence, the impugned statements implied that Mr Rygh was under suspicion for potentially not complying with the permanent residence requirements, a wording used in the article. 59. The national courts, however, had derived another interpretation, which from the applicants' point of view was stricter. The Supreme Court had established that Mr Rygh had “found himself on a list that the Tjøme Municipality had prepared, and which contained the names of persons who the Municipality considered to have breached the residence requirements” (see paragraph 36 of the Supreme Court's judgment, quoted in paragraph 39 above).", "Subsequently, the Supreme Court had “tightened up” its interpretation by attributing to the applicants a more detailed knowledge of the form of procedure followed by the Municipality, as it stated: “... the interview does not allow the conclusion to be drawn that the Municipality's processing was concluded and that a definitive list therefore existed.” (see paragraph 48 of the Supreme Court's judgment quoted in paragraph 39 above) 60. The Supreme Court had then made a distinction between being on a tip-off list and being on a list “that the Municipality has decided, after processing and consideration, to refer to the County Governor” (see paragraph 48 of the Supreme Court's judgment quoted in paragraph 39 above). Hence, the Supreme Court had found that the applicants had anticipated the form of procedure followed by the Municipality and thereby reinforced the allegation against Mr Rygh. This assessment endorsed the Supreme Court's standpoint that “[a]n accusation of a contravention of the law of this nature must be regarded as defamatory” (see paragraph 37 of the Supreme Court's judgment in paragraph 39 above). In essence, according to the Supreme Court, the applicants had accused Mr Rygh of breaking the law.", "This meaning had been derived by the Supreme Court, however, not from the express terms but from the general tenor of the article. This interpretation had been in contradiction to the numerous reservations expressed in the article. 61. Moreover, the applicants argued, the impugned statements should be read in conjunction with the articles of 30 June and 8 August 2000, with the result that all suspicions against Mr Rygh should be eliminated. 62.", "In the applicants' opinion, the ordinary reader would expect a follow-up to the article of 8 June 2000, particularly in the light of the information provided that Mr Rygh would have to come forward with an explanation. This was, in itself, a valid argument for extending the period of time against which the impugned statements should be assessed. As the article of 30 June 2000 was a natural and predictable follow-up to the first article, this should also be taken into consideration in terms of interpretation. 63. Furthermore, the article of 8 June 2000 had been entirely accurate in its presentation of the case.", "While it had been evident to the City Court that the article in question had been based on interviews with director of the Planning and Building Department and other officials within the Municipality, the High Court, however, had attached particular importance to the fact that no “further investigation” of the Rygh property had been conducted by the Municipality. However, the journalist had not been informed of this at the crucial time. The Supreme Court had based itself heavily upon the High Court's assessment and had pointed out that no source for the impugned allegation had been presented in the article itself. 64. Should the Court take the Supreme Court's interpretation as the point of departure, the applicants still contended that Tønsbergs Blad's coverage was, in essence, correct.", "Should the Court instead fully endorse the Supreme Court's interpretation, the applicants contended that the inaccuracies in the newspaper article were, at the most, marginal. In this connection they relied on Mr Justice Rieber-Mohn's dissenting opinion (see paragraph 60 of the Supreme Court's judgment, quoted in paragraph 40 above): “Tønsbergs Blad was therefore close to the truth in its story of 8 June 2000.” 65. When the story had been published, it was based on information from the director of the Planning and Building Department that the list was due for dispatch. The director of the Building Department had not clarified in the interview of 7 June 2000 that the list had gone without being processed since October 1999, or that the Ryghs' property had not been specifically examined. No one had questioned that the mayor and the director of the Tjøme Municipality's Planning and Building Department were reliable witnesses.", "In the applicants' opinion, it was therefore not relevant for the majority of the Supreme Court to have elaborated on the reliability of anonymous and potentially unreliable sources (see paragraph 47 of the Supreme Court's judgment, quoted in paragraph 38 above). 66. The applicants stressed that, in the present case, the interference did not correspond to a pressing social need. The allegation had not been a particularly defamatory one and had, in fact, been dispelled in the following articles. No one could even suspect Mr Rygh, on the basis of Tønsbergs Blad's article of 8 June 2000, of any reprehensible conduct in this regard.", "He could easily and immediately have corrected the conception formed by the Municipality simply by providing information on the matter, for example by submitting the legal opinion he had obtained. 67. The articles had indeed focused on a matter of great public interest, after which public debate had been reinforced, resulting in a public discussion of the loopholes in the permanent residence requirements and the need for an amendment of the Concession Act. 68. The applicants acknowledged that the protection of a person's reputation was a legitimate aim to pursue.", "However, given that there had been minimal, if any, effect on Mr Rygh's reputation in the present case, the interference with the applicants' rights was disproportionate. By declaring the impugned statements null and void, the Supreme Court had significantly worsened the operating conditions of local newspapers by extensively limiting the use of reliable anonymous sources and the use of examples to illustrate matters of public interest. 69. Denying the press any latitude in daily news coverage would in itself have a chilling effect. In addition to declaring the impugned statements null and void, the Supreme Court had ordered the applicants to pay Mr Rygh compensation for non-pecuniary damage in the amount of NOK 50,000 and to reimburse his expenses in the amount of NOK 673,829.", "This part of the interference was under no circumstances proportionate to the aim pursued. 70. In the applicants' opinion, by omitting to take into account a number of significant arguments in its consideration of the case, the Supreme Court had failed to strike a proper balance and to adequately assess the necessity of the interference with their freedom of expression as protected by Article 10 of the Convention. (b) The Government 71. The Government maintained that the interference complained of clearly corresponded to a pressing social need.", "While the freedom of expression was a fundamental right in a democratic society, it was necessary to interfere with the exercise of that freedom where, as in the present case, it was abused by directing false and harmful accusations against a private individual. The national authorities had, inter alia under Article 12 of the Universal Declaration of Human Rights and Article 17 of the UN Covenant on Civil and Political Rights, an obligation to protect private individuals against unlawful attacks on their reputation. This obligation must be given priority when the interference, as in the present case, had no chilling effect on political debate. 72. The Government emphasised that the Supreme Court's judgment had been based on a correct interpretation of the allegations in question, in conformity with the principles established by the European Court in its case-law.", "The Supreme Court had correctly concluded that the allegations had had an adverse effect on Mr Rygh's reputation, as described in the High Court's judgment, and were defamatory. Since the national courts were better equipped than the European Court to assess the perceived meaning and effects of certain statements, these were issues that should be left to the assessment of the national courts. There was no reason for the Court to re-examine the Norwegian courts' findings on this point. 73. Nor was it for the Court to carry out a review of the High Court's finding, made on the basis of the immediate evidence presented to it in open court, that it was proven that the allegations were demonstrably incorrect.", "The Court should take as a premise that the Tjøme Municipality had never processed the list and that the statements made in the article were therefore incorrect. 74. As found by the Supreme Court, the allegations in question had been based on an anonymous source. No other sources supported the conclusion that Mr Rygh's name had been mentioned on a list that in the immediate future was to be sent to the County Governor for decision. The Supreme Court had correctly drawn a parallel to situations where allegations were put forward without any source.", "75. Moreover, the applicants had taken no precautions before publishing the article. The Supreme Court had correctly concluded that the applicants had failed to act in good faith when publishing the article. As followed directly from the Concession Act, persons in Mr Rygh's situation were exempted from the permanent residence requirements. Any possible misunderstanding in this respect could easily have been avoided by simply reading the Act.", "Despite having not worked under any time constraints, the newspaper had failed to take sufficient steps to fulfil its obligation to verify the truth of the factual allegation in question. The fact that Mr Rygh, on being contacted by the newspaper before publishing the article, had stated that the allegation must be due to a misunderstanding should have resulted in a stricter duty of care for the newspaper. The journalists' work had failed to meet the relevant standards of journalistic ethics. 76. As the applicants had made clear in their complaint, the implementation of the permanent residence requirements had over the last few years been the subject of great interest in the municipalities of Vestfold, and in other parts of Norway as well.", "Tønsbergs Blad was admittedly, as a regional newspaper, an important forum for discussions of topical subjects such as the present one. However, this had no bearing on the issue here. Tønsbergs Blad could perfectly well have attracted the public interest by publishing the article without mentioning Mr Rygh by name and printing his picture. In spite of this, Tønsbergs Blad had still, without any factual foundation, exposed him to public contempt as a “residence sinner”. The interference in the present case could not in any possible way have had a so-called chilling effect on the public debate on permanent residence regulations.", "77. The Government further stressed that, for the purposes of the present case, Mr Rygh ought to be regarded as a private individual. Neither before the publication of the article, nor at any other material time, had he participated in any way in the public debate on the subject of permanent residence regulations or exposed himself to public comment or criticism. His public exposure had been limited to his positions as Executive Vice-President, head of financial investments, and a member of the Executive Board of the Norwegian company Orkla ASA. In no way had the allegations in question been capable of contributing to a debate in a democratic society.", "The allegations had exclusively concerned Mr Rygh's behaviour as a private person and had no connection whatsoever with his position as a business executive. Mr Rygh should be regarded as a private individual in relation to the statements, to be assessed within the stricter limits of acceptable criticism. 78. The articles published on 30 June and 8 August 2000 were of no particular importance. They had been published a relatively long time after the disputed allegations had been made.", "The impression created, that the Tjøme Municipality considered Mr Rygh to have breached the permanent residence requirements, had by that time been firmly established. Apparently, the applicants had not tried to correct the false accusations set forth in the first article. On the contrary, the subsequent articles had given the impression that Mr Rygh had deliberately utilised a legal loophole. 79. In the Government's opinion, private individuals like Mr Rygh must be entitled to protection against false accusations of this kind, especially where the accusations had no or only limited public interest.", "Interference with press freedom as in the present case would have no chilling effect on the public and political debate. 80. In the light of the above, the Government contended that the respective interests of the applicants and the public in imparting and receiving false information regarding Mr Rygh's observance of the permanent residence requirements were not such as to outweigh the considerations relied on by the Supreme Court, which must be considered relevant and sufficient for the purposes of Article 10 § 2. Moreover, in finding the allegations in question defamatory and declaring them null and void, the Norwegian Supreme Court could not be said to have placed an excessive or unreasonable burden on the applicants. Regard should be had to the fact that the interference had solely concerned the particular allegations in question and had had no chilling effect on the public debate on the issue of permanent residence regulations.", "The Supreme Court had struck a fair balance between the fundamental right of freedom of expression, on the one hand, and the legitimate interests of a democratic State in ensuring that the rights and reputation of others be protected, on the other hand. It follows from this that the interference had been proportionate to the legitimate aim pursued. The disputed interference had therefore been necessary for the purposes of Article 10 § 2 of the Convention. 2. Assessment by the Court (a) General principles 81.", "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 Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 38, § 62). In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with 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.", "82. One factor of particular importance for the Court's determination in the present case is the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, p. 23, § 31; and De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports 1997-I, pp. 233‑34, § 37).", "In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, judgment of 26 April 1995, Series A no. 313, p. 19, § 38). In cases such as the present one the national margin of appreciation is circumscribed by the interest of democratic society in enabling the press to exercise its vital role of “public watchdog” in imparting information of serious public concern (see Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports 1996-II, p. 500, § 39). 83. In sum, the Court's task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (see, among many other authorities, Fressoz and Roire v. France [GC], no.", "29183/95, § 45, ECHR 1999-I). (b) Application of these principles 84. The Court observes from the outset that the disputed statements consisted of two introductory passages on the front page and on page 3 of the Tønsbergs Blad's issue of 8 June 2000, which the High Court, whose conclusion was upheld by the Supreme Court, declared null and void under Article 253 of the Penal Code (see paragraph 36 above): “Permanent residence requirements: In the worst-case scenario [H.K.] may be forced to sell her property at Hvasser [an island next to Tjøme]. The same applies to Orkla director Tom Vidar Rygh.", "According to the understanding of Tønsbergs Blad, their properties are on a list which the Tjøme Municipality will submit to the County Governor in the very near future. The list includes properties whose use is thought not to be in conformity with the permanent residence requirements.” “...Tom Vidar Rygh may be forced to sell their properties at Tjøme. The reason is that, according to the Tjøme Municipality, they do not comply with the permanent residence requirements applicable to their properties.” 85. According to the findings of the Supreme Court, at the heart of the impugned statements there was an allegation that Mr Rygh's name appeared on a list drawn up by the Municipality of persons whom the Municipality considered to have breached the permanent residence requirements. That allegation was false and constituted a public moral condemnation of Mr Rygh's conduct that was defamatory within the meaning of Article 247 of the Penal Code (see paragraphs 36 to 40 of the Supreme Court's judgment, quoted in paragraph 39 above).", "The Court finds no reason to doubt that the reasons relied on by the Supreme Court were relevant to the legitimate aim of protecting the rights and reputation of Mr Rygh. 86. As to the further question whether those reasons were sufficient for the purposes of Article 10, the Court must take into account the overall background against which the statements were made. In this regard it notes that the purpose of applying permanent residence requirements under section 5(3) of the Concession Act to all-year residences in the Tjøme Municipality was to prevent private property used for permanent residence from being transformed into holiday homes and thus to ease the pressure on the local community. There was also a wish to avoid depopulation of the Municipality during off-season periods (see paragraph 8 above).", "87. The Court is not convinced by the Government's argument that the portrayal of Mr Rygh in the article hardly corresponded to a public interest worthy of protection under Article 10 of the Convention. Whether or not a publication concerns an issue of public concern should depend on a broader assessment of the subject matter and the context of the publication. The newspaper article of 8 June 2000 had its background in concerns by local inhabitants and politicians about the failure of certain property owners within the Municipality to comply with applicable residence requirements. There was also a perception that affluent persons had found ways of circumventing or exploiting loopholes in the rules.", "That had led the applicant newspaper to highlight the coverage by focusing on two prominent and well-known personalities, one, Mr Rygh, from the world of industry and the other, Mrs H.K., from the world of culture. The Court does not find that the article was intended to damage Mr Rygh's reputation (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 63, ECHR 1999‑III). Rather, the purpose was to illustrate a problem that the public had an interest in being informed about. His name (like that of Mrs H.K.)", "had featured on the provisional tip-off list drawn up by the Municipality of names of persons suspected by local inhabitants and politicians of having breached the residence requirements. While it is true that the information published about Mr Rygh did not directly address his role as an industrial leader, the Court is unable to agree with the Government's suggestion that it related exclusively to his private life. The Court shares the opinion of the dissenting judge of the Supreme Court, Mr Justice Rieber-Mohn (see paragraph 40 above), that a possible failure of a public figure to observe laws and regulations aimed at protecting serious public interests, even in the private sphere, may in certain circumstances constitute a matter of legitimate public interest (see Fressoz and Roire, cited above, § 50). It also agrees with the dissenting judge that such circumstances obtained in the present case. 88.", "The most careful scrutiny on the part of the Court is called for when, as in the present case, the measures taken or sanctions imposed by the national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern (see Jersild, cited above, pp. 25-26, § 35; and Bergens Tidende and Others v. Norway, no. 26132/95, § 52, ECHR 2000‑IV). 89. The Court observes in this connection that protection of the right of journalists to impart information on issues of general interest requires that they should act in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism (see, for example, Goodwin, cited above, p. 500, § 39; Fressoz and Roire cited above, § 54-I; Bladet Tromsø and Stensaas, cited above, § 65; and Pedersen and Baadsgaard v. Denmark [GC], no.", "49017/99, § 78, ECHR 2004‑XI). Under the terms of paragraph 2 of Article 10 of the Convention, freedom of expression carries with it “duties and responsibilities”, which also apply to the media even with respect to matters of serious public concern. These “duties and responsibilities” are significant when there is a question of attacking the reputation of a named individual and infringing the “rights of others”. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations (see, among other authorities, McVicar v. the United Kingdom, no.", "46311/99, § 84, ECHR 2002-III; Bladet Tromsø and Stensaas, cited above, § 66; and Pedersen and Baadsgaard, cited above, § 78). 90. The Court will consider the newspaper report as a whole and have particular regard to the words used in the disputed parts of the report and the context in which they were published, as well as the manner in which it was prepared (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 62, ECHR 1999‑IV).", "The Court must examine whether the applicants acted in good faith and complied with the ordinary journalistic obligation to verify a factual allegation. This obligation required that they should have relied on a sufficiently accurate and reliable factual basis which could be considered proportionate to the nature and degree of their allegation, given that the more serious the allegation, the more solid the factual basis has to be (see Pedersen and Baadsgaard, cited above, § 78). 91. First, the Court observes that the impugned assertions consisted of factual statements, not value judgments, to the effect that Mr Rygh's name was on the Municipality's list of persons whom it considered to be in breach of the residence requirements. This was a bare allegation presented without any criticism and only with a suggestion that Mr Rygh might be forced to sell his property.", "A breach of the residence requirements was not a criminal offence, only a regulatory matter. Both the City Court and the High Court considered that, locally, the conduct of which Mr Rygh was accused was likely to be viewed by many as being reprehensible from a moral and social point of view but that the accusation had not been of the most defamatory kind. 92. It should further be noted that the disputed allegations were presented with precautionary qualifications (emphasis added here): “According to the understanding of Tønsbergs Blad”; “The list includes properties whose use is thought not to be in conformity with the permanent residence requirements”; “may be forced to sell”. The headline on the front page indicates that Mr Rygh will have to explain himself (see paragraph 12 above).", "In the article inside the newspaper on page 3 there is a description of the procedure indicating that the Municipality will report to the County Governor properties suspected of not complying with the residence requirements and that it will then be for the County Governor to confront the owners. It should, moreover, be noted that the article inside the newspaper highlighted Mr Rygh's own comment that the mention of his name on the list must be due to a “misunderstanding” (see paragraph 15 above). In addition, at the bottom of the same page, the newspaper published another article entitled “A two-edged sword”, reproducing comments by local politicians giving diverging views on the public need to maintain residence requirements in the Municipality (see paragraph 16 above). Even though the news item was presented in a somewhat sensationalist style, the overall impression given by the newspaper report was that, rather than inviting the reader to reach any foregone conclusion about any failure on Mr Rygh's part, it raised question marks with respect to both whether he had breached the said requirements and whether those requirements should be maintained, modified or repealed. 93.", "In the light of the above, the Court does not find that the impugned accusation was capable of causing such injury to personal reputation as could weigh heavily in the balancing exercise to be carried out under the necessity test in Article 10 § 2 of the Convention. 94. Nor does the Court find that the news coverage was presented without proper balance. In addition to the above-mentioned qualifications and counterbalancing elements contained in the 8 June 2000 issue, regard should be had to the fact that, on 30 June 2000, the day after the journalist was informed about the exchange of correspondence between Mr Rygh and the Municipality's Chief Executive Officer, Mr Hansø, the newspaper published a follow-up article based on an interview by the journalist with Mr Hansø. The article made it clear that Mr Rygh's name had been removed from the Municipality's list and stated the reasons why the residence requirements did not apply to the property used by him.", "This must have considerably reduced any injury to Mr Rygh's reputation caused by the report of 8 June 2000. In the article of 8 August 2000 the newspaper, referring to its previous news reports of 8 and 30 June 2000, further emphasised these clarifications. The Court is unable to share the Supreme Court's view that the reports of 30 June and 8 August 2000, although published some time after the 8 June 2000 issue, were of negligible significance for the newspaper coverage seen as a whole (see paragraph 51 of the Supreme Court's judgment quoted in paragraph 39 above). In this connection, the Court reiterates that news reporting based on interviews constitutes one of the most important means whereby the press is able to play its vital role of “public watchdog”. The methods of objective and balanced reporting may vary considerably, depending among other things on the medium in question; it is not for the Court, any more than it is for the national courts, to substitute its own views for those of the press as to what techniques of reporting should be adopted by journalists (see Jersild, cited above, pp.", "23-25, §§ 31 and 34; Bladet Tromsø and Stensaas, cited above, § 63; and Bergens Tidende and Others, cited above, § 57). 95. As to the further question whether the applicants acted in good faith and complied with the ordinary journalistic obligation to verify a factual allegation, the Court notes that, according to the High Court's assessment of the evidence, on which the Supreme Court relied, the defamatory accusation against Mr Rygh had originated from an anonymous source. The High Court reasoned that, in view of the impossibility for the courts to verify the extent to which the journalist had acted with due care in relying on the anonymous source, the defamatory allegation ought to be regarded as the newspaper's own. Similarly, the Supreme Court proceeded from the premise that in the use of anonymous sources a stricter duty of care applied and that it would largely be the risk of the newspaper if factual information originating from such sources were false (see paragraphs 43 and 47 of the Supreme Court's judgment quoted in paragraph 39 above).", "The Court accepts this reasoning and finds no special grounds for dispensing the newspaper from its ordinary obligation to verify factual statements that are defamatory of private individuals. 96. In respect of the question whether the journalist had acted in good faith, the following should, however, be noted. The journalist had worked on the item over a considerable period, since the autumn of 1999. He was in possession of the tip-off list (entitled “Properties which should be verified in relation to the residence requirements.", "(Not public)”). This was an official document drawn up by the municipal administration on 11 October 1999 and presented the following day to the Municipal Standing Committee at a meeting open to the public. From the autumn of 1999 he made a number of enquiries to the Municipality on the subject and on 7 June 2000 he interviewed the director of the Municipality's Planning and Building Department, Mr Sæter (see paragraphs 9 to 11 above). 97. It does not transpire from the interview with Mr Sæter that Mr Rygh's name was on the list in question and that the Municipality held the opinion that he had breached the residence requirements.", "However, at the High Court's hearing, both the director of the Municipality's Planning and Building Department and the mayor testified that they, at the time, had been of the view that Mr Rygh was in breach of the residence requirements (see paragraph 33 above). Thus, it was shown that two presumably representative and reliable officials within the Municipality assuming key roles in the handling of the residence matter in substance held the same opinion as that attributed to the Municipality as a whole in the impugned passages when they were published on 8 June 2000. 98. It was an undisputed fact that Mr Rygh did not live permanently on the property at issue. The only question at the time of the publication of the 8 June 2000 issue was whether the residence requirements applied at all to the property used by him.", "As already mentioned, key figures in the Municipality believed that they did. 99. In the light of the above, the Court finds there was substantial evidence to corroborate the newspaper's contention on 8 June 2000 that the Municipality at the time held the view that Mr Rygh was in breach of the relevant residence requirements. This is an issue that should be determined in the light of the situation as it presented itself to Tønsberg Blad then, rather than with the benefit of hindsight (see Bladet Tromsø and Stensaas, cited above, § 66), offered by the revelations made subsequently that Mr Rygh's name did not actually appear on any list to be transmitted to the County Governor as described in the interview with the director of the Planning and Building Department. Although the High Court stressed in its judgment that the latter had been aware when talking to the journalist on 7 June 2000 that he had to carry out further checks, there is nothing to indicate that this awareness had been imparted to the journalist or that the latter had knowledge of it from any other source by the time of publication.", "Thus, whether or not at the time of publication the director of the Planning and Building Department and the mayor held an informed opinion cannot be decisive for the truth of the newspaper's allegation about the substance of the Municipality's opinion at that time. 100. It was only on 29 June 2000, when the journalist was informed about the exchanges between Mr Rygh and the Municipality's Chief Executive Officer, that the Municipality made the journalist aware of its position as to how the provisions of the Concession Act ought to be interpreted and applied in relation to properties such as that used by Mr Rygh. When contacted by the journalist before publication of the disputed newspaper report, Mr Rygh had not offered any comments beyond stating that there must have been a misunderstanding as to the inclusion of his name on the list to be transmitted to the County Governor (see paragraph 15 above). 101.", "In these circumstances, the journalist cannot in the Court's view be blamed for not having ascertained for himself, before reporting on the Municipality's opinion on 8 June 2000, whether the residence requirements were applicable to the property used by Mr Rygh. On the contrary, having regard to the relatively minor nature and limited degree of the defamation at issue and the important public interests involved, the Court is satisfied that the newspaper took sufficient steps to verify the truth of the disputed allegation and acted in good faith. 102. Nonetheless, the applicants had to defend their cause in judicial defamation proceedings pursued at three judicial levels. The outcome was that the statements were declared null and void and the applicants were ordered to pay the plaintiff NOK 50,000 in compensation for non-pecuniary damage and to reimburse him NOK 673,829 for his legal expenses (see paragraphs 36 and 38 above), in addition to bearing their own costs.", "In the circumstances, the proceedings resulted in an excessive and disproportionate burden being placed on the applicants, which was capable of having a chilling effect on press freedom in the respondent State. 103. In short, the reasons relied on by the respondent State, although relevant, are not sufficient to show that the interference complained of was “necessary in a democratic society”. The Court considers that there was no reasonable relationship of proportionality between the restrictions placed by the measures applied by the Supreme Court on the applicants' right to freedom of expression and the legitimate aim pursued. Accordingly, there has been a violation of Article 10 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 104. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 105. The applicants did not seek an award for non-pecuniary damage but requested compensation for the pecuniary damage which they had suffered as a result of the Supreme Court's judgment of 1 July 2003 ordering them to pay to Mr Rygh NOK 50,000 in compensation for non-pecuniary damage and NOK 673,829 for his costs and expenses (corresponding altogether to approximately 90,000 euros (EUR)).", "106. The Government did not offer any comment beyond stating that the finding of a violation constituted the primary remedy under the Convention. 107. The Court is satisfied that there is a causal link between the damage claimed and the violation of the Convention it has found, and awards the applicants EUR 90,000 under this head. B.", "Costs and expenses 108. The applicants also claimed NOK 1,082,033 (corresponding approximately to EUR 135,000) for the costs and expenses incurred before the domestic courts and NOK 896,928 (approximately EUR 112,000, not inclusive of value-added tax – “VAT”) for those incurred before the Court. 109. The Government did not offer any comments on the above beyond stating that they had no reason to doubt the amounts. 110.", "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 above criteria and the information in its possession, notably the absence of details as to the number of hours worked and the rate charged per hour, the Court is not convinced that all the costs incurred in the Strasbourg proceedings were necessarily incurred and were reasonable as to quantum. Making an assessment on an equitable basis, the Court awards the applicants EUR 35,000 for the proceedings before it (inclusive of VAT). The claim for costs and expenses in the domestic proceedings should be awarded in its entirety. C. Interest incurred during the proceedings before the national courts and the Court 111.", "The applicants in addition claimed various sums totalling NOK 256,115 (corresponding approximately to EUR 32,000) in simple interest, at estimated average rates (4%) applied by domestic commercial banks at the material time, on the sums they had paid in respect of damages and domestic costs and expenses, covering the period until 31 December 2006. 112. The Government did not offer any comments on the above beyond stating that they had no reason to doubt the amounts. 113. The Court finds that some pecuniary loss must have been occasioned by reason of the periods that elapsed from the time when the various sums were paid and the costs incurred until the Court's present award of just satisfaction (see, for example, Bladet Tromsø and Stensaas, cited above, § 83; Nilsen and Johnsen v. Norway [GC], no.", "23118/93, § 65, ECHR 1999‑VIII; and Bergens Tidende and Others, cited above, § 70). Making its assessment on an equitable basis, it awards the applicants EUR 20,000 with respect to their claim under this head. D. Default interest 114. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 10 of the Convention; 3 Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following sums: (i) EUR 90,000 (ninety thousand euros) in compensation for pecuniary damage; (ii) EUR 170,000 (one hundred and seventy thousand euros) in compensation for costs and expenses; (iii) EUR 20,000 (twenty thousand euros) for additional interest; (b) that these sums are to be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 1 March 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FIRST SECTION CASE OF TOMLJENOVIĆ v. CROATIA (Application no. 35384/04) JUDGMENT STRASBOURG 21 June 2007 FINAL 21/09/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Tomljenović v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL.", "Loucaides,MrsN. Vajić,MrK. Hajiyev,MrD. Spielmann,MrS.E. Jebens,MrG.", "Malinverni, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 31 May 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 35384/04) 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 Mate Tomljenović (“the applicant”), on 21 September 2004. 2. The applicant was represented by Mr T. Houška, a lawyer practising in Zagreb.", "The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. 3. On 2 May 2006 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 I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1934 and lives in Zagreb. 5. The applicant was teaching biology and chemistry and was the headmaster of V.N. Elementary School in Zagreb.", "By its decision of 22 December 1995 the Ministry of Education and Sport (Ministarstvo prosvjete i športa) relieved the applicant of his post of headmaster and dismissed him from work on account that he had reached the retirement age. 6. On 3 January 1996 the applicant brought an action in the Administrative Court (Upravni sud Republike Hrvatske) against that decision. 7. On 9 October 1997 the Administrative Court declined its jurisdiction in the matter, and on 6 May 1998 forwarded the case to the Zagreb Municipal Court (Općinski sud u Zagrebu).", "8. On 4 September 1998 the Municipal Court invited the applicant to supplement his claim, which the applicant did within the time-limit indicated. The court held hearings on 20 November 2000 and 5 February 2001. 9. On 17 December 2001 the Municipal Court, considering that it lacked jurisdiction in the matter, made an application to the Supreme Court (Vrhovni sud Republike Hrvatske) with a view to resolving the negative conflict of jurisdictions.", "10. On 22 January 2002 the Supreme Court ruled that the Administrative Court was competent to hear the applicant's case. 11. Following the transfer of the case back to the Administrative Court, on 31 October 2002 that court ruled in favour of the applicant. It quashed the impugned decision of 22 December 1995 and remitted the case to the Ministry.", "12. Since the Ministry failed to give a new decision within the statutory time-limit of 30 days, on 5 November 2003 the applicant requested the Administrative Court to do so (see paragraph 16 below). In their reply to his request, the Ministry submitted that it was no longer competent to issue such a decision owing to the change in legislation governing primary education. On 6 May 2004 the Administrative Court, acting as a court of full jurisdiction, issued a decision entirely substituting for that of the Ministry. It dismissed the applicant's request by accepting that the Ministry no longer had competence in the matter.", "However, it found that in those circumstances the Ministry should have forwarded the case-file to a body authorised under the new legislation to issue such a decision – the school board of the V.N. Elementary School. The Ministry did so on 26 June 2006. 13. It appears that the case is currently pending before the school board.", "14. Meanwhile, on 8 March 2004 the applicant lodged a constitutional complaint about the length of the proceedings. On 1 July 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant's complaint. It examined only the length of the proceedings in their part between the introduction of the applicant's request to the Administrative Court on 5 November 2003 and the lodging of the constitutional complaint. The Constitutional Court dismissed the constitutional complaint finding that the proceedings had lasted only four months and three days.", "II. RELEVANT DOMESTIC LAW A. The Constitutional Court Act 15. The relevant part of 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 whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual's rights and obligations or a criminal charge against him or her within a reasonable time ... (2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits... (3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ...", "The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.” B. The Administrative Disputes Act 16. The relevant provisions of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/92 and 77/92) provide as follows: Section 64(1) provides that, in the execution of the Administrative Court's judgment, the administrative authority shall issue its decision immediately but at the latest within 30 days. Otherwise, a party may by a special submission request it to do so.", "If the authority does not issue a decision within seven days following that request, a party may apply to the Administrative Court. Section 64(2) provides that if such an application was made, the Administrative Court shall first ask the administrative authority to give reasons for its omission. The authority shall reply immediately but at the latest within seven days. If the authority fails to do so, or if the reasons given do not justify the failure to decide, the Administrative Court shall give a decision entirely substituting for the decision of the administrative authority. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 17. 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...” 18. The Government contested that argument. 19. The Court considers that the period to be taken into consideration began on 6 November 1997, the day after the entry into force of the Convention in respect of Croatia.", "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 this connection the Court notes that the proceedings commenced on 3 January 1996, when the applicant brought an action in the Administrative Court challenging his dismissal. Consequently, they were already pending for one year and ten months before the ratification. 20. The period in question has not yet ended.", "It has so far lasted more than nine and a half years after the ratification during which the case has been examined on the merits before two levels of jurisdiction. 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 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, Cocchiarella v. Italy [GC], no. 64886/01, § 68, to be published in ECHR 2006; and Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "It further reiterates that special diligence is necessary in employment disputes (Ruotolo v. Italy, judgment of 27 February 1992, Series A no. 230-D, p. 39, § 17). 23. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, for example, Šundov v. Croatia, no. 13876/03, 13 April 2006; and Pitra v. Croatia, no.", "41075/02, 16 June 2005). 24. 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 5 § 1 OF THE CONVENTION 25. The applicant also complained under Article 5 § 1 that his right to liberty and security of person had been violated because he had lost his job, which had left him without means of subsistence. 26. In the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court considers that the present case does not disclose any appearance of a violation of the Article of the Convention relied on.", "It follows that this complaint is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 27. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 28.", "The applicant claimed 254,774.19 Croatian kunas (HRK) in respect of pecuniary damage on account of the loss of earnings, and 15,000 euros (EUR) in respect of non-pecuniary damage. 29. The Government contested these claims. 30. The Court does not discern any causal link between the violation found and the pecuniary damage alleged.", "It therefore rejects this claim. On the other hand, it awards the applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 31. The applicant also claimed HRK 13,420 for the costs and expenses incurred before the Court.", "32. The Government contested the claim. 33. 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 1,000 for the proceedings before the Court, plus any tax that may be chargeable on that amount.", "C. Default interest 34. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the excessive length of the proceedings 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, the following amounts which are to be converted into the national currency of the respondent State at a rate applicable at the date of settlement: (i) EUR 6,000 (six thousand euros) in respect of non-pecuniary damage; (ii) EUR 1,000 (one thousand 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 21 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "SECOND SECTION CASE OF SOLMAZ v. TURKEY (Application no. 27561/02) JUDGMENT STRASBOURG 16 January 2007 FINAL 16/04/2007 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 Solmaz v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrA.B. Baka, President,MrR.", "Türmen,MrM. Ugrekhelidze,MrsA. Mularoni,MrsE. Fura-Sandström,MsD. Jočienė,MrD.", "Popović, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 12 December 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 27561/02) 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 Sami Solmaz (“the applicant”), on 17 June 2002. 2. The applicant was represented by Ms F.G. Yolcu, Ms G. Altay and Mr H. Karakuş, lawyers practising in Istanbul.", "The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. 3. On 29 June 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 I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1966 and lives in Ankara. 5. On 23 January 1994 the applicant was arrested and placed in police custody by officers from the Anti-Terrorist Branch of the Istanbul Security Headquarters, on suspicion of being involved in the activities of an illegal armed organisation, namely the TKP/ML (Türkiye Komünist Partisi/Marksist Leninist, Turkish Communist Party / Marxist Leninist). 6.", "On 7 February 1994 he was brought before the public prosecutor and then the investigating judge at the Istanbul State Security Court. The same day, the investigating judge remanded the applicant in custody. 7. On 31 March 1994 the public prosecutor filed an indictment charging the applicant and four others with membership of an illegal armed organisation and involvement in activities which undermined the constitutional order of the State. 8.", "At the time of the events, a similar case concerning certain activities of the TKP/ML was pending before the third chamber of the Istanbul State Security Court. Following a jurisdictional conflict between two chambers of the court, on 14 March 1995 the Court of Cassation decided to join the applicant's case to the one pending before the third chamber. Consequently, the number of accused was increased to sixteen people. 9. The applicant did not attend a number of hearings.", "10. In the course of the proceedings, the court held forty-eight hearings. At the end of each hearing the State Security Court rejected the applicant's requests for release pending trial, having regard to the nature of the offence, the state of the evidence and the content of the case file. 11. On 12 June 2000 the Istanbul State Security Court convicted the applicant as charged and sentenced him to life imprisonment.", "12. On 15 May 2001 the Court of Cassation quashed the decision for procedural reasons. The case was remitted to the Istanbul State Security Court for further examination and the applicant remained in detention. The case was resumed with 15 accused, including the applicant. 13.", "On 8 February 2002 the applicant's lawyer requested the court to release the applicant pending trial due to his poor health. He submitted a medical report certifying that Mr Solmaz was suffering from Wernicke-Korsakoff syndrome (a brain disorder caused by thiamine deficiency, usually associated with alcoholism). The court dismissed the lawyer's request, maintaining that the applicant could be treated in prison. Moreover, it held that, considering the nature of the offence, the state of the evidence and the content of the file, the applicant should continue to be detained pending trial. 14.", "Following an objection by the applicant's lawyer, the court reconsidered its decision of 8 February 2002. On 18 February 2002, relying on a medical report and considering the length of the period which the applicant had already spent in detention, the court ordered his release pending trial. It further held that it was likely that the final decision of the court would be in favour of the applicant. 15. State Security Courts were abolished by constitutional amendments introduced on 7 May 2004.", "Subsequently, the applicant's case was resumed before the Istanbul Assize Court. 16. After holding seventeen hearings, on 31 January 2005 the Istanbul Assize Court convicted the applicant and sentenced him to life imprisonment in accordance with Article 146 of the Criminal Code. 17. However, on an unknown date the Court of Cassation quashed the decision of the first-instance court once again.", "The case was resumed before the Istanbul Assize Court, where it is still pending. II. RELEVANT DOMESTIC LAW 18. Article 63 of the Criminal Code (Law no. 5237) provides: “ Any term served due to circumstances which occurred before the judgment became final and which resulted in the restriction of personal liberty shall be deducted from the sentence.", "(...)” THE LAW I. ADMISSIBILITY 19. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. II.", "ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 20. The applicant complained that his detention had exceeded the “reasonable time” requirement of Article 5 § 3, which reads, in so far as relevant, as follows: 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.” 21. The Government maintained that the applicant's detention had been reviewed at regular intervals. However, in view of the seriousness of the charges against him and the evidence in the case file, the court had had to extend his detention pending trial.", "22. The applicant argued that the length of his detention had been unreasonable. He further contended that the domestic court's decisions ordering his continued detention had not justified its excessive length. A. Period to be taken into consideration 1.", "Recapitulation of the relevant case-law 23. The Court reiterates that the word “conviction”, for the purposes of Article 5 § 1 (a), is to be understood as signifying both a finding of guilt, after it has been established in accordance with the law that an offence has been committed, and the imposition of a penalty or other measure involving a deprivation of liberty (see Van Droogenbroeck v. Belgium, judgment of 24 June 1982, Series A no. 50, p. 19, § 35). The detention of a person convicted at first instance, whether or not he or she has been detained up to this moment, falls under Article 5 § 1 (a), which provides: “1. Everyone has the right to liberty and security of person.", "No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; ...” 24. Thus, if an applicant has been detained pending trial under Article 5 § 3, that form of custody would end on the day on which the charge is determined, even if only by a court of first instance (see Wemhoff v. Germany judgment of 27 June 1968, Series A no. 7, p. 23 § 9). The Court additionally observes that a person who had cause to complain of continued detention after conviction pending a delayed appeal may not be able to rely on Article 5 § 3 but could possibly allege a breach of the “reasonable time” requirement of Article 6 § 1 of the Convention (ibid.). 25.", "This general principle asserted in Wemhoff has been confirmed in B. v. Austria (judgment of 28 March 1990, Series A no. 175, p. 23, § 9). Given the essential link between paragraph 3 and sub-paragraph 1 (c) of Article 5, a person convicted at first instance and detained pending appeal cannot be considered to be detained for the purpose of bringing him or her before the competent legal authority on reasonable suspicion of having committed an offence. 26. There exist important differences among the Contracting States on the question whether a person convicted at first instance has started serving a prison sentence while an appeal is still pending.", "However, the Court held in B. v Austria that the important guarantees of Article 5 § 3 of the Convention are not dependent on national legislation (ibid., § 39). Thus, even if the domestic law of a member State provides that a sentence only becomes final on completion of all appeals, detention comes to an end for the purposes of the Convention with the finding of guilt and the sentence imposed at first instance. 27. In Neumeister v. Austria (judgment of 27 June 1968, Series A no. 8, p. 37, § 6), the applicant's initial period of detention ended more than six months before the date on which he lodged his application with the Commission.", "Therefore the Court considered that it could not examine whether the first period was compatible with the Convention. However, it went on to say that, in the event of an applicant being convicted, the first period would normally be deducted from any term of imprisonment imposed; it would thus reduce the actual length of imprisonment which might be expected. The Court accordingly decided that the first period should be taken into account in assessing the reasonableness of the applicant's later detention (ibid.). In doing so, it explained that it would be excessively formalistic to require an applicant complaining about the length of his or her detention in the same criminal proceedings to lodge a new application with the Convention organs after the end of each pre-trial detention period (see Neumeister, p. 38, § 7). Moreover, it observed that such a requirement would overburden the Convention system with multiple applications lodged by the same applicant with the same complaint concerning different yet consecutive detention periods (ibid.).", "28. It can be inferred from the above explanations that the Wemhoff and Neumeister judgments (pronounced on the same day) complement each other, as the former determines when the relevant period under Article 5 § 3 ceases to apply, while the latter clarifies the application of the six-month rule under Article 35 § 1 of the Convention and the calculation of the total length of pre-trial detention periods. 29. The Court has followed the same approach in more recent judgments. It has held that where an accused person is detained for two or more separate periods pending trial, the “reasonable time” guarantee of Article 5 § 3 requires a global assessment of the accumulated periods (see Kemmache v. France (no.", "1 and no. 2), judgment of 27 November 1991, Series A no. 218, § 44; I.A. v. France, judgment of 23 September 1998, Reports of Judgments and Decisions 1998‑VII, p. 2979, § 98; Vaccaro v. Italy, no. 41852/98, §§ 31‑33,16 November 2000; and Mitev v. Bulgaria, no.", "40063/98, § 102, 22 December 2004). In these cases, unlike the Neumeister judgment, no reference was made to the application of the six-month rule. 30. However, until recently, the approach adopted in Turkish cases examined by the Court under Article 5 § 3 has been slightly different from that above. If an application was lodged more than six months after the end of initial periods of detention, the Court declared the complaints regarding these periods inadmissible.", "Nevertheless, when deciding on the reasonableness of the last period of detention, account was taken of the previous periods of detention to which the applicant had already been subjected (see, among others, Kalay v. Turkey, no. 16779/02, § 34, 22 September 2005; Gıyasettin Altun v. Turkey, no. 73038/01, § 28, 24 May 2005; Çiçekler v. Turkey, no. 14899/03, § 61, 22 December 2005; Bahattin Şahin v. Turkey (dec.), no. 29874/96, ECHR 17 October 2000, and Köse v. Turkey (dec.), no.", "50177/99, ECHR 2 May 2006). 31. Again, in the recent Baltacı v. Turkey judgment (no. 495/02, §§ 44‑46, 18 July 2006) the Court reinstated the global approach by making an assessment of the accumulated periods of detention, without mentioning the six-month rule. 32.", "From the above recapitulation of its case-law, the Court concludes that confusion has grown regarding the application of the six-month rule in cases of the present kind. It reiterates that this rule, in reflecting the wish of the Contracting Parties to prevent past decisions being called into question after an indefinite lapse of time, serves the interests not only of the respondent Government but also of legal certainty as a value in itself. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible. It is therefore not open to the Court to set aside the application of the six-month rule solely because the Government concerned have not made a preliminary objection based on it (see Walker v. United Kingdom (dec.), no. 34979/97, ECHR 2000-I).", "33. In the light of the above explanations, the Court wishes to clarify the application of the six-month rule in cases of multiple detention periods, for the purposes of Article 5 § 3 of the Convention, through its examination of the present case. 2. The approach in the instant case 34. The Court observes that, in the present case, the applicant's pre-trial detention began when he was arrested on 23 January 1994.", "He was detained for the purposes of Article 5 § 3 of the Convention until his conviction by the Istanbul State Security Court on 12 June 2000. From that date until 15 May 2001, when the Court of Cassation quashed the decision of the first-instance court, he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and therefore that period of his detention falls outside the scope of Article 5 § 3 (see B. v Austria, cited above, §§ 33‑39, and Kudła v. Poland [GC], no. 30210/96, § 104, ECHR 2000-XI). From 15 May 2001 until his release pending trial on 18 February 2002, the applicant was again in pre-trial detention for the purposes of Article 5 § 3 of the Convention. 35.", "The Court notes that, in the absence of domestic remedies, the six-month time-limit starts to run from the act being complained of. It nevertheless reaffirms and emphasises the Neumeister considerations cited above (see paragraph 27 above), in particular the need to avoid excessive formalism and the imposition of an excessive burden on not only the applicant but also the Convention supervisory mechanism (see Neumeister, cited above, p. 38, § 7). This is especially so in the circumstances of the present case where the criminal proceedings were pending at the appeal stage and the applicant continued to be deprived of his liberty, albeit under Article 5 § 1 (a) of the Convention. 36. Consequently, the Court considers that, in the instant case, the multiple, consecutive detention periods of the applicant should be regarded as a whole, and the six-month period should only start to run from the end of the last period of pre-trial custody, namely 18 February 2002.", "37. The Court further notes that, pursuant to Article 63 of the Criminal Code, any period of imprisonment served before a judgment depriving an individual of personal liberty becomes final shall be deducted from the sentence (see paragraph 18 above). In order to assess the reasonableness of the length of the applicant's pre-trial detention, the Court should therefore make a global evaluation of the accumulated periods of detention for the purposes of Article 5 § 3 of the Convention (see, mutatis mutandis, Neumeister, cited above, p. 37, § 6). Consequently, the Court concludes that, after deducting the periods when the applicant was detained after conviction for the purposes of Article 5 § 1 (a) of the Convention from the total time that he was deprived of his liberty, the period to be taken under consideration in the instant case is nearly seven years and two months. B. Reasonableness of the length of detention 1.", "Principles established under the Court's case-law 38. The Court reiterates that the question of whether or not a period of detention is reasonable cannot be assessed in the abstract. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the need to respect individual liberty as guaranteed by Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], cited above, §§ 110-11). 39.", "It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end, they must examine all the facts arguing for or against the existence of the above-mentioned requirement of public interest justifying a departure from the rule in Article 5, and must set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the well-documented facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000-IV, and Kudła, cited above, § 110). 40.", "The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. The Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings. The complexity and special characteristics of the investigation are factors to be considered in this respect (see, for example, Scott v. Spain, judgment of 18 December 1996, Reports 1996-VI, pp. 2399-400, § 74, and I.A.", "v. France, judgment of 23 September 1998, Reports 1998-VII, p. 2978, § 102). 2. Application of the principles to the circumstances of the present case 41. The Court observes that the Istanbul State Security Court examined the applicant's continued detention at the end of every hearing, either of its own motion or upon the applicant's request. It notes however, from the material in the case file, that the court ordered the applicant's continued detention using identical, stereotyped terms, such as “having regard to the nature of the offence, the state of the evidence and the content of the file” at the end of most of the hearings.", "Although, in general, the expression “the state of evidence” may be a relevant factor for the existence and persistence of serious indications of guilt, in the present case it nevertheless, alone, cannot justify the length of the detention of which the applicant complains (see Letellier v. France, judgment of 26 June 1991, Series A no. 207; Tomasi v. France, judgment of 27 August 1992, Series A no. 241-A; and Demirel v. Turkey, no. 39324/98, § 59, 28 January 2003). 42.", "In this context, the Court notes that the State Security Court failed to indicate to what extent the applicant's release would have posed a risk, after - by then - well over eight years of detention (including the periods of imprisonment after conviction), in its last decision to extend the applicant's detention pending his re-trial at first instance (see Demirel, cited above, § 60). 43. The foregoing considerations are sufficient to enable the Court to conclude that the grounds given for the applicant's pre-trial detention were not “sufficient” and “relevant” to justify holding him in custody for nearly seven years and two months. In these circumstances it is not necessary to examine whether the proceedings were conducted with special diligence. 44.", "There has accordingly been a violation of Article 5 § 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 45. The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings, which are still pending after more than twelve years. Article 6 § 1, in so far as relevant, provides: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 46.", "The Government submitted that the case was complex, considering the charges against the applicant and the need to organise a large-scale trial involving sixteen defendants and numerous witnesses. They contended that these factors explained the length of the proceedings and that no negligence or delay could be imputed to the judicial authorities. They alleged that the applicant had contributed to the length of the proceedings by not appearing at a number of hearings. Furthermore, they maintained that his lawyer had failed to submit defence statements at five consecutive hearings. 47.", "The applicant contended that he could not appear at some of the hearings because of his illness. He maintained however that he could not be held responsible for the total length of the proceedings. 48. The Court observes that the proceedings began on 23 January 1994 with the applicant's arrest and are still pending before the Istanbul Assize Court. They have thus already lasted twelve years and eleven months for two levels of jurisdiction, which examined the case twice.", "49. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to that in the present application (see Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II, and Ertürk v. Turkey, no. 15259/02, 12 April 2005). 50.", "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. 51. There has accordingly been a breach of Article 6 § 1 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 52.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the 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 53. The applicant claimed 25,000 euros (EUR) in respect of pecuniary damage and EUR 12,500 for non-pecuniary damage. 54. The Government disputed these claims.", "55. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it accepts that the applicant must have suffered some non-pecuniary damage on account of the undue length of his pre-trial detention and the criminal proceedings, which cannot be sufficiently compensated by the finding of violations alone. Taking into account the circumstances of the case and having regard to its case-law, the Court awards the applicant EUR 10,000 under this head. B.", "Costs and expenses 56. By way of costs and expenses in relation to his representation, the applicant claimed 400 new Turkish liras (TRY) (EUR 200) in respect of communication and translation costs, and TRY 6,700 (EUR 3,350) for legal expenses. He submitted that this amount included the visiting and travel expenses of his lawyer, as well as the work relating to the proceedings before the Court in preparing the application and the observations on admissibility and merits. He claimed that his representative had applied the scale recommended by the Istanbul Bar for applications to the Court. 57.", "The Government contested the applicant's claim as being unsubstantiated by any documentation. 58. On the basis of the material in its possession and ruling on an equitable basis, the Court awards the applicant EUR 2,500 in respect of costs and expenses. C. Default interest 59. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 5 § 3 of the Convention; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, 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 10,000 (ten thousand euros) in respect of non-pecuniary damage; (ii) EUR 2,500 (two thousand five hundred euros) in respect of costs and expenses; (iii) any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points 5.", "Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 16 January 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléA.B. BakaRegistrarPresident" ]

[ "FIRST SECTION CASE OF MAMAZHONOV v. RUSSIA (Application no. 17239/13) JUDGMENT STRASBOURG 23 October 2014 FINAL 23/03/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mamazhonov 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 30 September 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "17239/13) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Uzbek national, Mr Ikromzhon Makhkamovich Mamazhonov (“the applicant”), on 8 March 2013. 2. The applicant was represented by Mrs N. Yermolayeva and Mr A. Gladkikh, lawyers practising in Moscow and Orenburg respectively. 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 extradition to Uzbekistan he risked being subjected to ill-treatment. 4. On 11 March 2013 the Acting President of the First Section indicated to the respondent Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited to Uzbekistan until further notice. It was also decided to grant this case priority under Rule 41 of the Rules of Court. 5.", "On 10 May 2013 the complaint concerning an alleged risk of treatment contrary to Article 3 of the Convention in the event of the applicant’s extradition to Uzbekistan was communicated to the Government and the remainder of the application was declared inadmissible. 6. On 25 May 2013 the Government informed the Court that the authorities had taken the relevant steps to guarantee that the applicant would not be extradited to Uzbekistan until further notice. 7. On 13 June 2013 the applicant’s representatives informed the Court of his alleged disappearance and possible abduction following his release from a detention centre in Orenburg.", "8. On 14 June 2013 the President of the First Section asked the Government, under Rule 54 § 2 of the Rules of Court, to provide additional factual information concerning the circumstances of the applicant’s alleged disappearance and possible abduction. 9. On 5 July 2013 the requested factual information was submitted by the Government. 10.", "On 8 July 2013 the President of the First Section invited the parties to submit further written observations in respect of the applicant’s alleged disappearance and abduction. 11. On 9 July 2013 the Court informed the Committee of Ministers of the communication of the case to the Government and the applicant’s alleged disappearance and abduction. The Court’s letter was accompanied by the applicant’s representatives’ letter of 13 June 2013 and the Government’s reply of 5 July 2013, and by the Statement of facts and questions to the parties and a list of additional questions the parties were requested to deal with in their written observations. 12.", "Subsequently, the parties provided the Court with submissions on the admissibility and merits of the case both in respect of an alleged risk of ill‑treatment in the event of the applicant’s extradition to Uzbekistan, and his alleged disappearance and abduction following his release from detention. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 13. The applicant was born in 1968 in Khanabad, Uzbekistan. 14.", "In 2008, in the face of potential prosecution for religious extremism, he fled Uzbekistan with a forged Kyrgyz passport under an assumed name. On 19 April 2008 he entered the territory of the Russian Federation. 15. On 6 September 2009 he obtained a Russian passport using forged documents. A.", "Prosecution of the applicant in Uzbekistan 16. On 26 January 2009 and 28 September 2012 the applicant was indicted by the investigative authorities of Uzbekistan on charges of terrorism, inciting religious hatred, encroaching upon the constitutional order, illegally crossing the State border, organising a criminal group, producing and disseminating material threatening public security and order, participating in religious extremist, separatist, and fundamentalist movements, and smuggling. Since the Uzbek authorities could not locate him he was indicted in absentia. 17. According to the Uzbek investigative authorities, in 2006 and 2007 the applicant had been actively involved in operating the terrorist organisation ‘Islamic Movement of Uzbekistan’, which has extensive ties with Al-Qaeda, Islamic Jihad and Libyan Jamaat.", "He allegedly took part in recruiting and training terrorists, smuggling extremist material into Uzbekistan, organising gatherings where extremist material, including video and audio recordings, were viewed and distributed, fundraising for terrorist acts, training recruits in using firearms and hand-grenades, and facilitating illegal border crossings by the leaders of the Islamic Movement of Uzbekistan. The Uzbek authorities further contended that members of the above-mentioned group had been involved in terrorist acts that had taken place in Khanabad and Andizhan on 25 and 26 May 2009. 18. On 27 January 2009 the Andizhan Criminal Court ordered the applicant’s pre-trial detention. The order was issued in absentia and the reasons given were the gravity of the charges against the applicant and the fact that he could not be located.", "On the same day an investigator issued an international search and arrest warrant against him. B. The applicant’s apprehension and extradition proceedings 19. In March 2010 the Uzbek investigative authorities sent a notification to the Ministry of Internal Affairs Anti-Extremism Department in the Orenburg Region that according to their intelligence, the applicant was living in the region. 20.", "On 10 March 2010 the applicant’s name and his two aliases were put in the ‘RM’ public transport search and identification system. The record mentioned his alleged association with radical and extremist organisations. 21. On 11 June 2012 the ‘RM’ system registered the sale of a ticket for a passenger train going from Moscow to Bishkek. The ticket had been bought under the applicant’s assumed name, which he used in his Russian passport.", "An alert was sent to the Ministry of Internal Affairs. 22. On 13 June 2012 at approximately 2.45 a.m. the applicant was apprehended at Orenburg railway station by officers of the Ministry of Internal Affairs Anti-Extremism Department and Federal Security Service (FSB). During the initial identity check, he used his Russian passport bearing an assumed name. 23.", "After the applicant’s true identity had been established, an ‘express interview’ was conducted with him by Orenburg’s assistant transport prosecutor, Mr M. The applicant stated during the interview that he had fled Uzbekistan after learning that he was suspected of taking part in watching extremist material, while his prosecution was actually politically motivated. He further stated that since his entry into Russia, he had been living on various construction sites in Moscow, Tula and Orenburg. 24. At 4.10 a.m. a record of apprehension of a person under an international search and arrest warrant was drawn up and the applicant was officially informed of his rights and the nature of the charges in Uzbekistan. 25.", "On the same day at 1.40 p.m. he was once again interviewed by Mr M. During the interview, he was informed of the right not to incriminate himself and that he would be provided with an interpreter if needed. He expressed his wish to give answers in Russian. The interview record was verified and signed by him. 26. The applicant stated during the interview that in 2008 he had decided to leave Uzbekistan because of possible prosecution for watching video material which was considered extremist by the Uzbek authorities.", "He further stated that he had procured a forged Kyrgyz passport under an assumed name, which he had used to enter Russia and obtain Russian citizenship. In particular, the interview record contained the following passages: “... Until 2008 my permanent income came from exchanging currency in Khanabad and selling fruit... In April 2008 an acquaintance [working] in law enforcement informed me that my name was on the list of people suspected of extremism. Aware that my acquaintances had been prosecuted for watching extremist material and sentenced to lengthy prison terms, I decided to evade law enforcement, since I had also watched that material... In June 2012 I decided to return to Uzbekistan because I no longer wished to be a fugitive and it was necessary to make contact with the law enforcement bodies in Uzbekistan to resolve the situation surrounding [their] search [for me].", "As to the criminal case against me I learnt of its existence from my wife during a phone conversation in 2009...I did not understand what the charges against me were, but presumed that I had been prosecuted for watching the extremist videos. I did not commit any of the crimes I am accused of, except illegally crossing the Uzbek border. In spring 2008 I watched a documentary at home with some of my acquaintances about the killing of Muslims in Afghanistan and Iraq by US soldiers – I presume they were Muslims because the majority of population in those countries are followers of Islam. We did not like the actions of the American soldiers and we discussed that. I do not think I committed any crime...", "I did not request political asylum or refugee status in the Russian Federation... I believe that my prosecution is politically motivated, because I do not like Uzbekistan’s policies on entrepreneurs; an opinion I expressed to the State institutions of Uzbekistan.” 27. Later that day the applicant was placed in a pre-trial detention facility, SIZO-3 in Orenburg, pursuant to the detention order issued by the Andizhan Criminal Court. The Embassy of Uzbekistan in the Russian Federation was notified of the arrest. 28.", "On 12 July 2012 an extradition request under the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 1993 (“the Minsk Convention”) was lodged by the Prosecutor General’s Office of Uzbekistan. Making reference to the provisions of the Minsk Convention and Uzbek legislation, the request included the following assurances: (a) The applicant would not be extradited to any third country or prosecuted for any crime which did not serve as the basis for his extradition without Russian authorities’ agreement. He would be free to leave Uzbekistan after the trial and serving his sentence. (b) The Uzbek legislation in force prohibited criminal proceedings on a discriminatory basis, the use of torture or ill-treatment, and guaranteed respect for defence rights. (c) He would be provided with medical assistance if necessary.", "29. On 13 July and 6 December 2012 and on 6 March 2013 the applicant’s detention was extended by the Promyshlenniy District Court of Orenburg. 30. On 12 November 2012 the Deputy Prosecutor General of the Russian Federation examined the merits of the extradition request and authorised it in respect of the charges of terrorism, participating in an armed group, and illegally crossing the Uzbek border. The request was refused in respect of the other charges due to a lack of evidence and/or their being no comparable crimes under Russian law.", "The extradition authorisation did not examine any risks to which the applicant might have been exposed in Uzbekistan and merely stated that “no obstacles to extraditing Mr Mamazhonov under international law or the legislation of the Russian Federation had been established”. 31. On 28 November 2012 the applicant’s representative Mr Gladkikh lodged a complaint against this decision, alleging that the applicant was at a heightened risk of being subjected to torture if extradited to Uzbekistan. The complaint stressed that since the applicant’s asylum application had not been definitively dismissed on appeal, any extradition authorisation was unlawful. 32.", "The complaint alleged that contrary to the interpretation of the law in force provided by Ruling no. 11 of 14 June 2012 of the Plenum of the Supreme Court of the Russian Federation (see paragraphs 98 below), the prosecutor had neglected his incumbent duty to consider the risk of torture in Uzbekistan, having regard to the general situation in the destination country and the applicant’s personal situation, and the fact that the text of the extradition authorisation gave no reasons in this regard. 33. The applicant’s representative also referred directly to eleven of the Court’s judgments issued between 2008 and 2012 in which a violation under Article 3 of the Convention had been found in similar circumstances. He argued that the prosecution authorities had disregarded the Court’s conclusion that individuals accused of crimes concerning politics and religion constituted a “risk group” systematically exposed to ill-treatment in Uzbekistan.", "Accordingly, their extradition, just like the applicant’s, had been contrary to the Russian Federation’s obligations under the Convention. 34. Referring to reports by the United Nations agencies, Amnesty International, Human Rights Watch and CIVICUS in the last nine years, the applicant’s representative alleged that the use of torture and ill-treatment was commonplace in respect of people accused of religiously and politically motivated crimes. 35. Lastly, relying on the official position of certain Russian State institutions, Mr Gladkikh highlighted the fact that the Ministry of Foreign Affairs in its note of August 2009 “On human rights in Uzbekistan” stated: “... criminal trials are characterised by a dependence on forced confessions, and a lack of adequate legal representation... it is also noted that people convicted of anti-State, religious and politically motivated crimes are incarcerated in much stricter regimes than others...” 36.", "The complaint also quoted a March 2011 letter from the head of the Third CIS Department of the Ministry of Foreign Affairs to the director of the Federal Migration Service: “... Considering the reasoning of the European Court of Human Rights, it is actually possible to state that currently the extradition, deportation or administrative removal to Uzbekistan of any person wanted by the law enforcement agencies... will constitute a violation of the Convention...” 37. On 27 December 2012 the Orenburg Regional Court dismissed the complaint. It stated that the approval of the request was lawful, properly reasoned, and took into account the assurances of the Uzbek authorities. Furthermore, it considered that the ill-treatment allegations were merely a defence strategy of the applicant, who had procured a forged Kyrgyz passport under an assumed name, illegally crossed the Russian border on 19 April 2008, obtained Russian citizenship under an assumed name, and lodged an asylum request only after his apprehension under the international search and arrest warrant.", "The court noted that he had been convicted in Russia on 1 October 2012 of forgery and fined 6,000 Russian roubles (RUB) (150 euros (EUR)) (see paragraphs 40-41 below). It also stated that the extradition authorisation given by the Deputy Prosecutor General did not presume an automatic transfer of the applicant to Uzbekistan, and that no extradition could take place before his asylum proceedings had finished. 38. On 28 December 2012 the applicant’s representative Mr Gladkikh appealed to the Supreme Court against the Regional Court’s decision, relying on essentially the same arguments as presented before. In addition, he stated in his appeal that contrary to the decision of the Regional Court, the Uzbek authorities had not explicitly stated that the applicant would not be subjected to torture, but had limited their assurance to a statement that the legislation in force prohibited it (see paragraph 28 above).", "The representative referred the Supreme Court to the Court’s judgment in the case of Khaydarov v. Russia ( no. 21055/09, § 105, 20 May 2010), where the existence of domestic and international law provisions prohibiting ill‑treatment was not considered to be a sufficient assurance in itself. 39. On 12 March 2013 the Supreme Court of the Russian Federation dismissed the appeal and upheld the lower court’s decision and extradition authorisation. The relevant parts of the decision read as follows: “... [In his appeal] Mr Mamazhonov indicates that [the Regional Court] ignored the fact that ... he had requested asylum and thus may not be returned to Uzbekistan.", "The court did not examine all the circumstances and adopted a wrong decision... The attorney Mr Gladkikh requests in the interests of Mr Mamazhonov...that extradition proceedings be terminated. The attorney believes that [the Regional Court] violated Russian and international asylum law and did not examine the fact that the applicant had requested asylum. The court also did not examine any evidence proving that Mr Mamazhonov might be subjected to torture...in Uzbekistan. In his opinion, the case file does not contain guarantees that [the applicant] would not be subjected to unlawful actions and [the decision must therefore be quashed as unreasoned]...", "When the Prosecutor General’s Office decided to transfer Mr Mamazhonov to the law enforcement agencies of Uzbekistan, his asylum request was denied. [Furthermore, the Supreme Court restated the reasons for the denial of asylum and the assurances provided by the Uzbek authorities.] ... The arguments of Mr Mamazhonov and his counsel that in Uzbekistan he will be persecuted on religious and political grounds are unfounded, since there is no objective proof. The material in the case file demonstrates that Mr Mamazhonov’s prosecution by the Uzbek authorities is of a general nature and is not related to the policies of that State.", "Mr Mamazhonov did not submit to the court any convincing arguments giving weighty grounds to believe that the Uzbek authorities might subject him to torture, inhuman or degrading treatment or punishment, or that he might be persecuted on the grounds of race, religious beliefs, citizenship, ethnicity, belonging to a social group, or political convictions. [The Supreme Court] finds no grounds to annul the decision...” C. Prosecution of the applicant in Russia 40. On 10 July 2012 a criminal investigation was initiated by the Russian authorities in respect of the use of forged identification papers by the applicant. 41. On 1 October 2012 the Justice of the Peace for the 8th Circuit of the Promyshlenniy District of Orenburg convicted the applicant of using of forged documents (a Russian passport) and fined him RUB 6,000 (EUR 150).", "During the trial, he acknowledged his guilt, but stated that the procurement of false Kyrgyz and Russian identification papers had been a necessary measure to avoid his arbitrary prosecution in Uzbekistan for the crimes he had not committed. D. Asylum proceedings 42. On 3 August 2012 Mr Gladkikh applied on the applicant’s behalf for asylum, alleging that the criminal charges against him had been “fabricated” after he, a successful businessman, had refused to pay bribes and provide pay‑offs to the Uzbek authorities. 43. On 20 August 2012 the applicant was interviewed by the immigration authorities and his answers were recorded in an asylum questionnaire.", "44. On 24 August 2012 the Orenburg Regional Department of the Federal Migration Service refused to consider the merits of his request, because in their opinion it had been lodged only to evade prosecution in Uzbekistan, and the applicant had failed to substantiate his alleged fear of return. The relevant parts of the decision read as follows: “... In the questionnaire, Mr Mamazhonov states that the reasons for his arrival in Russia were the extortionist demands of the authorities, unlawful persecution for his business success, and fear for his life. He submitted no other reasons, and stated that he had never been a member of religious, political or non-governmental organisations.", "According to the questionnaire, there were no incidents of violence against him Uzbekistan; he never complained of persecution to the law enforcement or State institutions in Uzbekistan or to human rights organisations. He explains his unwillingness to return to the country of origin by his fear of prosecution for serious offences by the law enforcement authorities in Uzbekistan... The fact that Mr Mamazhonov, expressing his wish to receive protection from the Russian Federation... did not lodge his asylum request at the border crossing in 2008... or attempt to legalise his status during the lengthy period thereafter, and [did so] only after his apprehension [under the warrant] for crimes committed in Uzbekistan, demonstrates that the objective reason for...his arriving in Russia was to evade prosecution for crimes committed outside of Russia... During his stay in Russia between June 2008 and August 2012, Mr Mamazhonov had also committed an offence by [being in possession of] forged documents and unlawfully obtaining a Russian passport... It follows that the analysis of the reasons given in the asylum questionnaire, case file and search for the applicant for the crimes committed outside of Russia... does not lead to a conclusion [that there is any risk of him being persecuted in Uzbekistan].” 45. On 16 October 2012 the Leninskiy District Court of Orenburg in reviewing the above decision, established that the applicant had illegally crossed the Russian border on 19 April 2008, procured a forged Kyrgyz passport under an assumed name, obtained Russian citizenship under that name, and lodged an asylum request only after his apprehension under the international search and arrest warrant.", "On that basis the court rejected his complaint against the immigration authorities’ decision. 46. On an unspecified date the applicant appealed against the District Court’s decision. He alleged that both the immigration authorities and District Court had failed to consider his claims that he risked ill-treatment if returned to Uzbekistan. 47.", "On 11 January 2013 the Orenburg Regional Court dismissed the appeal and upheld the lower court’s decision and immigration authorities’ refusal to consider the asylum request. In particular, it stated: “Information from reputable international human rights organisations concerning the unfavourable political climate in Uzbekistan and practice of malicious persecution of those accused of crimes against the State was not proven by objective evidence within the framework of Mr Mamazhonov’s case and may not serve as a basis for the annulment of a judicial decision... Moreover, a competent State institution deciding on asylum status independently evaluates the situation in a specific country relying on its own sources, and the opinion of human rights organisations is not determinative of such a decision...” 48. On 7 February 2013 the applicant lodged a request for temporary asylum in Russia, but it was denied by the immigration authorities on 6 March 2013. E. Interim measure under Rule 39 of the Rules of Court 49.", "On 8 March 2013 the applicant’s representative Mrs Yermolayeva submitted to the Court a request for the application of an interim measure under Rule 39 of the Rules of Court to stay the applicant’s extradition to Uzbekistan until further notice. The request specified that the applicant’s extradition would expose him to a risk of treatment contrary to Article 3 of the Convention. The evidence and arguments presented to the Court were essentially the same as the evidence and arguments previously presented to the national authorities. 50. On 11 March 2013 the Acting President of the First Section indicated to the respondent Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited to Uzbekistan until further notice.", "51. By a letter of 15 May 2013 the Russian Government informed the Court that they had taken relevant steps to guarantee that the applicant would not be extradited to Uzbekistan until further notice. In particular, the Prosecutor General’s Office, departments of the Ministry of Internal Affairs, and Border Guards Service had been ordered to prevent the applicant’s extradition or removal from Russia, and other law enforcement agencies had been instructed to comply with the measure applied. F. The applicant’s release and disappearance 52. On 11 June 2013 the applicant’s representative Mr Gladkikh was informed that the applicant would be released on 12 June 2013.", "However, since it was a public holiday in Russia the release was rescheduled to 9 a.m. the following day. Mr Gladkikh was informed in person. 53. A decision to release the applicant dated 13 June 2013 was issued by the Prosecutor General’s Office. It restated the procedural history of the case available to the Russian authorities at that time and explicitly mentioned the application of an interim measure by the Court.", "In the absence of any further legal grounds for the applicant’s detention, his release was ordered. 54. According to statements submitted to the Court by the applicant’s representative, he arrived at the detention facility on 13 June 2013 at 6 a.m. Despite his previous enquiries about the time of release, Mr Gladkikh was informed at 7.30 a.m. that the applicant had been released at 7.15 a.m. and had left in an unknown direction. According to the Government’s submissions, the release had taken place at 6.30 a.m. 55.", "Later the same day Mr Gladkikh lodged a request with the Investigative Committee of the Orenburg Region. The relevant parts of the request read as follows: “... [On 12 June 2013] officers at the checkpoint [of SIZO-3] informed me that... Mr Mamazhonov was going to be released on 13 June, no earlier than 9 a.m. Relying on the veracity of the information provided, I arrived this morning at SIZO-3, where I was informed at 7.15 a.m. [sic] that Mr Mamazhonov had already been released and had departed in an unknown direction. I was refused information about the precise time of release [sic]. At the present moment I’m not aware of the whereabouts of my client. I draw your attention to the fact that during a private conversation, Mr Mamazhonov asked me to be personally present during his release and to further support him until the regularisation [of his immigration status] in Russia; he strongly denied any possibility of returning to Uzbekistan voluntarily.", "Having regard to these facts, and the fact that there have previously been instances of disappearances from Russia of Uzbek nationals charged with State crimes, whose extradition was being sought [by the Uzbek authorities], I have grounds to believe that Mr Mamazhonov was abducted by interested parties with a view to transferring him to Uzbekistan. Accordingly, I request [that]: 1. An inquiry is initiated into these allegations. 2. Criminal proceedings are initiated into the suspected [abduction]...” 56.", "Similar requests were lodged with the Prosecutor General’s Office, Border Guards Service of the FSB, and the police. 57. On 14 June 2013 the administration of the detention facility SIZO‑3 sent a letter to the Embassy of Uzbekistan, informing it of the applicant’s release. 58. Following Mr Gladkikh’s request a preliminary inquiry into the applicant’s alleged disappearance was initiated by the Internal Affairs Department OP-4 in Orenburg.", "59. On 17 June 2013 the inquiry was handed over to the Investigative Committee, since the crime suspected fell under their jurisdiction. The inquiry case file reached them on 19 June 2013. 60. On 19 June 2013 the investigator examined the applicant’s cell in SIZO-3 and seized from the administration the applicant’s personal file and the available video surveillance recordings.", "61. On the same day he questioned four officers working at the detention centre who were present during the applicant’s release. They stated that the applicant (i) had been released at the expiry of the court-ordered detention, (ii) had been informed of his obligation to register with the immigration authorities, (iii) had not made any complaints or requests during his release, and (iv) had not been approached after his release by anyone in uniform, Asian-looking or anyone else. 62. On 20 June 2013, in reply to the investigator’s request, the Federal Migration Service informed him that there was no record of the applicant in their databases, and the Border Guards Service of the FSB stated that due to the absence of any IT systems at the borders of the Orenburg Region it was not possible to provide information about a specific person.", "63. On 21 June 2013 the period of inquiry was extended by ten days to collect further evidence. 64. On the same day, in reply to the investigator’s request, the Internal Affairs Department in Orenburg Region stated that since 13 June 2013 the applicant had not been apprehended or detained by the police. 65.", "On 26 June 2013 the applicant’s cellmate in SIZO-3, Mr G., was interviewed after being cautioned about criminal liability for perjury. The relevant part of the interview record stated as follows: “.... In June 2013 he was released... He did not know about his release from detention because he was woken up early in the morning and told that he was being released...he did not inform me of his future plans. I am not aware where he might be.” 66.", "On 26 June 2013 an officer of the Anti-Extremism Department in the Orenburg Region, Mr Ab., who was involved in apprehending the applicant, was questioned after being cautioned about criminal liability for perjury. He stated, in particular, that (i) the applicant was of no interest to his agency since there was no evidence of his involvement in criminal activities in Orenburg, (ii) that he was not aware of the applicant’s possible whereabouts, and (iii) that there had been no contact or exchange of information between his agency and the Uzbek law enforcement agencies. 67. On the same day the investigator requested from the Transport Prosecutor’s Office in Orenburg a copy of the extradition case file, in order to fully consider the possibility of the applicant’s forced removal to Uzbekistan. It was provided on 28 June 2013.", "68. On the same day, in reply to the investigator’s repeated request, the Federal Migration Service informed him that there was no record of the applicant crossing the State border after 11 June 2013. 69. On 27 June 2013 an officer of the FSB in the Orenburg Region, Mr St., who was involved in apprehending the applicant, was questioned after being cautioned about criminal liability for perjury. His statements were essentially the same as those provided previously by Mr Ab., the officer of the Anti-Extremism Department in the Orenburg Region (see paragraph 66 above).", "70. On the same day the applicant’s representative Mr Gladkikh was interviewed after being cautioned about criminal liability for perjury. The relevant part of the interview records stated as follows: “On 12 June 2013 I arrived at SIZO-3 in Orenburg with Mr Al. and Mr R.M., who lives in Uzbekistan but works in Moscow and who is a brother of Mr Mamazhonov... I was told [by officers of the detention facility] that the client’s release would not take place that day, since the papers were not ready... [I was told to return the next day by 9 a.m.] ...", "While Mr Mamazhonov was detained in SIZO-3 I frequently visited him, but he never informed me of any visits from law enforcement agents or anyone else [or] the use of unlawful investigative measures or torture. If something like that had happened to him, he would have told me about it. I personally have also never been contacted about Mr Mamazhonov by agents of the State or other services of Russia or Uzbekistan; from what I know the same applies to his relatives... ... [O]n 13 June 2013 I arrived at SIZO-3 at around 6 a.m. The officer on duty refused to provide me with any information on Mr Mamazhonov... [she] told me that at 7.15 a.m. he was being released... At 9 a.m. I called SIZO-3 and was informed that Mr Mamazhonov had been released at 8 a.m. To date I have not been aware of his whereabouts, his relatives do not have this information either, as he did not make any contact.", "I am saying that his Russian passport has been seized and his Uzbek passport has been lost. Before his release Mr Mamazhonov did not inform me of an intention to move somewhere after his release; on the contrary, he wanted to regularise his status in Russia. I personally believe that certain parties from Uzbekistan interested in his return are implicated in [his] disappearance. There have been similar cases in Russia in the past.” 71. Later that day, in reply to the investigator’s request, the Transport Department of the Ministry of Internal Affairs in Orenburg stated that there was no record of the applicant buying train or plane tickets between 13 and 27 June 2013.", "72. On 27 June 2013, relying on the results of the preliminary inquiry, the Investigative Committee initiated criminal proceedings in respect of the applicant’s disappearance and suspected murder. The investigation was assigned to a group of investigators from the Investigative Committee, the FSB, and the regional Ministry of Internal Affairs. 73. On 1 July 2013 a detailed plan of the investigation was adopted by the group of investigators, presided by Mr L. The plan contained several dozen investigative measures each assigned to specific investigators.", "The measures were aimed at detecting the current whereabouts of the applicant, discovering information and evidence, and verifying five existing theories about the applicant’s disappearance. The theories adopted were that: (a) the applicant was alive, but was voluntarily avoiding contact to evade the law enforcement agencies; (b) the applicant was alive, but could not contact anyone due to serious illness; (c) the applicant had left Russia to further engage in terrorist activities in Uzbekistan, Kyrgyzstan and other countries; (d) the applicant had died and his death had been caused by an illness, accident or other non-criminal circumstances; or (e) the applicant had become the victim of a crime (murder or kidnapping). 74. Later that day an investigator examined the area around SIZO-3 and established that there had been no outside video surveillance cameras placed there. 75.", "On 8 July 2013 the applicant’s representative Mr Gladkikh challenged the opening of an investigation into his client’s disappearance and suspected murder, arguing that the investigation should be based on his suspected abduction. On 27 July 2013 he was informed by the investigator that there was no evidence to substantiate the suspected abduction. 76. Later that day the applicant’s representative Mr Gladkikh was once again interviewed after being cautioned about criminal liability for perjury. His statement was essentially the same as his previous one (see paragraph 70 above).", "77. On 9 July 2013 the release officer of SIZO-3, Mrs L.S., was questioned after being cautioned about criminal liability for perjury. The relevant parts of the interview records read as follows: “... [The prosecutor’s decision to release Mr Mamazhonov on 13 June 2013 due to expiry of the maximum period for his detention] arrived at SIZO-3 on 11 June 2013 at around 5.30 p.m. ... During the afternoon of 11 June 2013, the lawyer Mr Gladkikh...called me to inquire about the date of release... [Mrs L.S. informed him that it would be 13 June 2013]... Around 10 a.m. on 12 June 2013 I was informed by officers at the checkpoint that Mr Gladkikh had visited [SIZO-3 to inquire about Mr Mamazhonov’s release]... On 13 June 2013 I arrived at work at around 6.30 a.m. at the request of the head of SIZO-3, Mr L.A.... [and immediately took part in Mr Mamazhonov’s release]... During the release, Mr Mamazhonov asked me whether his lawyer was waiting for him, but I could not tell [him] because I did not know...” 78. On the same day the head of SIZO-3, Mr L.A., was questioned after being cautioned about criminal liability for perjury.", "The relevant parts of the interview records read as follows: “... During Mr Mamazhonov’s detention in SIZO-3 and after the prosecutor’s decision to release him, I was made aware of [his] concerns for his safety after release. Accordingly, in order to ensure his safety I made the decision to release [him] before regular working hours... I took part in [his] release...as an officer in charge of supervising the release procedure... [After release] Mr Mamazhonov left the premises of SIZO-3. He left the area and passed the guards alone... I am not aware if anyone was meeting him...” 79.", "On 15 July 2013 three security guards of SIZO-3 who were present during the applicant’s release were questioned after being cautioned about criminal liability for perjury. They all stated that the release had taken place at around 6.30 a.m. and were not aware if anyone had been expecting the applicant, since they could not leave their duty stations in the building. 80. On 12 July 2013, in reply to the request of 8 July 2013, the administration of SIZO-3 informed the investigation that while there were video surveillance cameras covering the building and adjacent area, the recordings of 13 June 2013 were no longer available due to the expiry of their storage period. However, the recording from the camera at the checkpoint of the detention facility covering the period between 5 and 6.57 a.m. that day was available (see paragraphs 91-95 below), since a local copy had been saved following a request in the course of the preliminary inquiry.", "81. On 17 and 20 July 2013 the FSB in the Orenburg Region informed the chief investigator that they had complied with the investigative tasks assigned to them. They stated that they had contacted the National Security Service of Uzbekistan in order to obtain information about the applicant’s possible whereabouts, establish a list of his relatives, and procure the necessary background information. They further stated that according to their sources, the applicant might have been assisted in illegally crossing the Russian border by Mr Al., with whom he had previously collaborated extensively in illegal activities. 82.", "On 1 August 2013 the applicant’s cellmate in SIZO-3, Mr G., was repeatedly questioned after being cautioned about criminal liability for perjury. He mostly confirmed his previous statements, supplementing them with the following relevant passages: “... Mr Mamazhonov told me that in Uzbekistan he had been prosecuted for terrorism. He told me that in Uzbekistan he might have been sentenced to 18 to 19 years’ imprisonment... [He] also told me that in the summer of 2012 he had decided to travel to Uzbekistan by train, because he was worried about his two or three wives and seven children... ... He had only learnt of the international search warrant after his apprehension... [He] did not want to return to Uzbekistan, because he would have been sentenced to lengthy imprisonment there... [He] also mentioned that if there was no possibility of him staying in Russia, he would travel to Kyrgyzstan or Kazakhstan, where he had acquaintances... [A day before his release he was informed of it] Mr Mamazhonov told me that his lawyer was going to inform his friends and relatives of the day of release and that they were going to come and meet him... [He was convinced that his friends and relatives] were going to help him relocate to another country if he was not able to stay in Russia, because he did not want to return to Uzbekistan...” 83. On 5 August 2013 Mr R.M., the applicant’s brother, was officially recognised as a victim by the investigative authorities.", "84. On the same day the investigator sent a request for legal cooperation to the Uzbek authorities. The competent authorities were requested to inform Mr R.M. of his status in the investigation conducted in Russia and question him according to a non-exhaustive list of approximately thirty questions concerning the applicant’s background, state of health and mind, social and family ties, political and religious affiliations, and questions in respect of the events of 12 and 13 June 2013. Lastly, the Uzbek authorities were requested to collect a saliva sample from him for his DNA, in the event of a future need for identification.", "85. On 7 August 2013, in reply to the request of 5 August 2013, the Federal Migration Service informed the investigation that there was no record of Mr Mamazhonov crossing the Russian border. 86. According to the material in the Court’s possession, other investigative activities between June and August 2013 included a screening of the applicant’s possible contacts, a search for possible witnesses, monitoring of the sale of train and airline tickets, putting the applicant on the list of missing persons, and sending legal cooperation requests to neighbouring regions. 87.", "The applicant’s representatives’ submissions of 20 December 2013 addressed to the Court were accompanied by an undated letter by Mr Gladkikh (the applicant’s second representative). The relevant parts of the letter stated: “... in the beginning of September 2013 I received a phone call on my mobile from a man identifying himself as a relative of my client, Mr Mamazhonov. The man told me [the applicant] was being held in custody in Andizhan and that the criminal case would be sent to trial soon. Due to fears for his safety, he refused to provide me with detailed information on the case...or to state his full name. Furthermore, from a private conversation with an investigator, Mr L., I have learnt that he (the investigator) is preparing to go on a mission to Uzbekistan in order to get statements from Mr Mamazhonov himself concerning the circumstances of the criminal case opened following his disappearance.", "He further informed me that the statements...would be obtained by officials of the Uzbek law enforcement agencies, and that just he himself would be present during the interview.” 88. On 21 April 2014 the applicant’s representatives informed the Court of the recent developments in the case. In particular, the letter stated: “... The applicant’s lawyer Mr Gladkikh recently received a call from an unknown person...[who stated] that the applicant was currently being detained in Khanabad (Uzbekistan) and that the criminal case against him was about to be handed over to the court. The man also informed me that the applicant’s brother (who was acknowledged as a victim of the crime in the criminal investigation into the applicant’s abduction in Russia) was also currently being detained in Uzbekistan...", "The applicant’s representatives also pointed out that the initial authorities’ intention to conduct certain investigative measures in Uzbekistan was not realised for unknown reasons. The intention to visit Uzbekistan confirms in itself that the applicant was in Uzbekistan... The detention of the applicant’s brother, Mr R.M. (whose name was mentioned in the request for cooperation of 08.08.2013...) illustrates the reluctance of the Uzbek authorities to provide the Russian investigative authorities with an opportunity to get an independent statement from [him]...” 89. No other information is available to the Court regarding the progress of the criminal investigation.", "90. The applicant’s whereabouts are currently unknown. G. Recordings from the video surveillance camera in SIZO-3 91. The Government submitted as evidence to the Court a recording from the video surveillance camera placed inside SIZO-3 in Orenburg facing the checkpoint of the detention facility, opposite the only entrance to the building. The recording covers the period between 6.13 and 7 a.m. on 13 June 2013, the day of the applicant’s release.", "92. On the recording, at 6.17 a.m. a person identifying himself as Mr Ikromzhon Makhkamovich Mamazhonov is brought before an officer responsible for releasing detainees. He gives the same date and place of birth as those indicated (in paragraph 13) above, and gives an address in Orenburg as his place of residence. He is provided with an identity certificate, and after receiving it at 6.19 a.m. leaves, presumably after being released from the detention centre. 93.", "The recording of the next forty minutes shows several people approach and pass the checkpoint. 94. At 6.26 a.m. the following fragments of a conversation are audible: “Woman: Permission to enter. ... Man [over the phone]: Where are you? The exit?", "Alone? ... Woman: ... civilians... Man: Civilians? Woman: No... [he] is in uniform and two civilians...” 95. At 6.43 a.m. a senior officer approaches the checkpoint, presumably from outside the building: “Officer at the checkpoint: Good morning, Sir! Senior officer: Hello!", "Have you seen anything? Officer at the checkpoint: ... Senior officer: I am asking you if you have seen anything. Officer at the checkpoint: No. Senior officer: OK. I am asking just in case.” H. Committee of Ministers’ decision concerning the applicant’s disappearance 96.", "On 10 July 2013 the Ministers’ Deputies at the 1176th meeting, having considered the information and documents made available to them by the applicant’s representatives and the Court (see paragraph 11 above), adopted the following decision concerning the applicant’s disappearance: “The Deputies, Recalling the decisions adopted at their 1164th meeting (5-7 March 2013) (DH) and 1172nd meeting (4-6 June 2013) (DH) in the Garabayev group of cases against the Russian Federation, 1. noted with grave concern that a further incident involving allegations of kidnapping and illegal transfer of an applicant protected by an interim measure indicated by the Court under Rule 39 has been reported, this time in the context of the Mamazhonov case; 2. strongly insisted that light be shed on this incident and on the fate of the applicant as quickly as possible; 3. consequently insisted again on the pressing need to adopt as of now measures to ensure an immediate and effective protection of the applicants in a similar situation against kidnappings and irregular removals from the national territory; 4. recalled in this context the letter sent by the Chairman of the Committee of Ministers to the Minister of Foreign Affairs of the Russian Federation; 5. agreed that a draft interim resolution will be considered in the light of progress that would have been made, including the updated action plan submitted by the Russian authorities; this text will be circulated in the draft revised order of business of their 1179th meeting (24-26 September 2013) (DH).” II. RELEVANT INTERNATIONAL AND DOMESTIC LAW AND PRACTICE A. Extradition proceedings 97. The Code of Criminal Procedure 2002 regulates proceedings concerning extradition to other States. A summary of the relevant provisions has been previously provided by the Court in the case of Savriddin Dzhurayev v. Russia (no.", "71386/10, §§ 70-75, ECHR 2013). 98. Providing guidance to the national courts on dealing with extradition requests, the Plenum of the Supreme Court of the Russian Federation indicated in its Ruling no. 11 of 14 June 2012, with reference to Article 3 of the Convention, that extradition should be refused if there are serious reasons to believe that the person may be subjected to torture or inhuman or degrading treatment in the requesting country. Extradition may also be refused if exceptional circumstances disclose that it may entail a danger to the person’s life and health on account of, among other things, his or her age or physical condition.", "Russian authorities dealing with an extradition case should examine whether there are reasons to believe that the person concerned may be sentenced to the death penalty, subjected to ill-treatment or persecuted because of his race, religious beliefs, nationality, ethnic or social origin or political opinions. The Supreme Court further stated that the courts should assess both the general situation in the requesting country and the personal circumstances of a person whose extradition is being 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 United Nations agencies and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. B. Status of refugees 99.", "The relevant provisions of domestic and international law concerning the status of refugees have been previously provided by the Court in Savriddin Dzhurayev (ibid., § 92-99). C. Criminal investigation 100. On 4 March 2013 the provisions of Article 144 of the Code of Criminal Procedure 2002, which regulates preliminary inquiries into the reports of a crime, were significantly amended. Every report of a crime must be accepted, verified and decided upon within three days (extended to ten or thirty days under certain circumstances) by an inquiry officer, inquiry agency, investigator or prosecutor. 101.", "Prior to the amendments, Article 144 § 1 had provided that the investigative authorities could proceed with their inquiry, with expert assistance or on their own, to carry out documentary verifications, checks, and the examination of documents, objects or dead bodies, and could issue compulsory orders for operational search activities. The amendments introduced in 2013 significantly broadened these powers, essentially equalising them with the powers afforded by a criminal investigation. The new inquiry methods include collecting statements and samples for comparative examinations, requesting documents and objects, seizing them, and ordering forensic expert examinations. 102. Newly introduced paragraph 1.1 of the Article essentially equalised the legal status, rights and obligations of people involved in a preliminary inquiry with those of people involved in a criminal investigation.", "The provision specifically mentions the right of a person not to incriminate himself, his spouse or close relatives, the right to be represented by legal counsel, and the right to appeal against the actions (or inaction) of investigative authorities. These people may be requested to respect the confidentiality of the proceedings, and their safety may be ensured in the manner prescribed by the Code of Criminal Procedure. 103. New Section 1.2 of the Article states that the results of a preliminary inquiry may be used as evidence if they comply with the requirements of the Code of Criminal Procedure. It is specifically mentioned that after a criminal investigation has been formally initiated, the defence has a right to request an additional or repeat forensic expert examination, and that such a request must be granted.", "104. A criminal investigation may be initiated by an investigator or prosecutor following a complaint by an individual or on the investigating authorities’ own initiative, where there are reasons to believe that a crime has been committed (Articles 146 and 147). 105. Decisions by an investigator or prosecutor refusing to institute criminal proceedings or terminating a case, and other orders and acts or omissions which may infringe the constitutional rights and freedoms of the parties to criminal proceedings or to restrict access to justice, may be appealed against to a district court, which is empowered to check the lawfulness and grounds of the impugned decisions (Article 125). III.", "COUNCIL OF EUROPE TEXTS ON THE DUTY TO COOPERATE WITH THE COURT, THE RIGHT TO INDIVIDUAL PETITION AND INTERIM MEASURES 106. Subsequent to the resolutions adopted by the Parliamentary Assembly and Committee of Ministers on the duty to cooperate with the Court, the right to individual petition and interim measures, as presented in Savriddin Dzhurayev (cited above, §§ 108-20), three further relevant documents were adopted by the Council of Europe bodies. 107. The Committee of Ministers’ Interim Resolution CM/ResDH(2013)200, concerning execution of the Court’s judgments in the Garabayev group of cases against the Russian Federation, was adopted on 26 September 2013 at the 1179th meeting of Ministers’ Deputies. It reads as follows: “The Committee of Ministers...", "Considering the cases decided by the Court, in which the latter found violations by the Russian Federation due to the applicants’ abductions and irregular transfers from the Russian Federation to States where the applicants face a real risk of torture and ill‑treatment, and in breach of an interim measure indicated by the Court under Rule 39 of its Rules of Procedure; Recalling that given the number of communications received, including from the Court, relating to alleged similar incidents that have been reported, revealing an alarming and unprecedented situation, the Committee has been calling upon the Russian authorities to adopt as a matter of urgency special protective measures for applicants exposed to a risk of kidnapping and irregular transfer; Noting that the Russian authorities have taken a number of general measures to prevent abductions and illegal transfers from the Russian territory of persons in whose respect extradition requests were filed and the Court has indicated an interim measure under Rule 39 of its Rules; Deeply regretting that these measures do not appear to have been sufficient to address the need for urgent adoption of special preventive and protective measures that are effective; Deploring that to date, no reply has been received to the letter sent on 5 April 2013 by the Chairman of the Committee of Ministers to his Russian counterpart conveying the Committee’s serious concerns in view of the persistence of this situation and its repeated calls for the urgent adoption of such protective measures; Underlining that in its judgment in the Abdulkhakov case, the Court noted that “any extra-judicial transfer or extraordinary rendition, by its deliberate circumvention of due process, is an absolute negation of the rule of law and the values protected by the Convention”; Stressing that this situation has the most serious implications for the Russian domestic legal order, the effectiveness of the Convention system and the authority of the Court, CALLS UPON the Russian authorities to take further action to ensure compliance with the rule of law and with the obligations they have undertaken as a State party to the Convention, EXHORTS accordingly the authorities to further develop without further delay an appropriate mechanism tasked with both preventive and protective functions to ensure that applicants, in particular in respect of whom the Court has indicated an interim measure, benefit (following their release from detention) from immediate and effective protection against unlawful or irregular removal from the territory of Russia and the jurisdiction of the Russian courts.” 108. The Parliamentary Assembly’s Resolution 1991 (2014), entitled “Urgent need to deal with new failures to co-operate with the European Court of Human Rights”, was adopted on 10 April 2014. It reads as follows: “Parliamentary Assembly 1. Recalling its Resolution 1571 (2007) on member States’ duty to co-operate with the European Court of Human Rights and Resolution 1788 (2011) “Preventing harm to refugees and migrants in extradition and expulsion cases: Rule 39 indications by the European Court of Human Rights”, the Parliamentary Assembly stresses the importance of the right of individual application to the European Court of Human Rights (“the Court”). The protection of this right is the purpose of individual measures indicated by the Court under Rule 39 of its Rules of Court, which are designed to prevent the creation of a fait accompli.", "2. The Assembly considers any disrespect of legally binding measures ordered by the Court, such as interim measures indicated under Rule 39, as a clear disregard for the European system of protection of human rights under the European Convention on Human Rights (ETS No. 5, “the Convention”). 3. The Assembly therefore calls on all States Parties to the Convention to respect interim measures indicated by the Court and to provide it with all the information and evidence it requests.", "4. The Assembly strongly condemns instances of outright violations by several States Parties to the Convention (Italy, the Russian Federation, the Slovak Republic and Turkey) of the Court’s interim measures aimed at protecting applicants from extradition or deportation to countries where they would be at risk of, in particular, torture, as well as of the interim measures in relation to Russia’s military actions in Georgia (see Georgia v. Russia II). 5. The Assembly insists that international co-operation between law-enforcement bodies based on regional agreements, such as the Shanghai Cooperation Organisation, or on long-standing relations, must not violate a State Party’s binding commitments under the Convention. 6.", "The Assembly is therefore particularly concerned about the recent phenomenon, observed in the Russian Federation, of the temporary disappearance of applicants protected by interim measures and their subsequent reappearance in the country which had requested extradition. The clandestine methods used indicate that the authorities had to be aware of the illegality of such actions, which can be likened to the practice of “extraordinary renditions” repeatedly condemned by the Assembly. 7. The Assembly welcomes the increasing use, by the Court, of factual presumptions and the reversal of the burden of proof in dealing with refusals of States Parties to co-operate with it, which consist in their failure to provide full, frank and fair disclosure in response to requests by the Court for further information or evidence.” 109. Recommendation 2043 (2014) was adopted on 10 April 2014 by the Parliamentary Assembly on the basis of the above Resolution.", "It reads: “Parliamentary Assembly 1. The Parliamentary Assembly refers to its Resolution 1991 (2014) on the urgent need to deal with new failures to co-operate with the European Court of Human Rights, to Resolution CM/Res(2010)25 of the Committee of Ministers on member States’ duty to respect and protect the right of individual application to the European Court of Human Rights, adopted as a response to Assembly Resolution 1571 (2007) on member States’ duty to co-operate with the European Court of Human Rights, and to the Committee of Ministers’ decision regarding kidnappings and irregular removals from the national territory taken at its 1176th meeting on 10 July 2013. 2. The Assembly commends the Committee of Ministers for following up on a regular basis cases of non-respect of the interim measures of the European Court of Human Rights. 3.", "The Assembly invites the Committee of Ministers to continue insisting on the effective investigation of any violations of the Court’s interim measures, in particular irregular removals from the national territory, and to require the States Parties concerned to hold to account the perpetrators of any illegal acts.” IV. COMMITTEE OF MINISTERS’ DECISIONS UNDER ARTICLE 46 ON RELATED CASES CONCERNING RUSSIA 110. In addition to the Committee of Ministers’ decisions under Article 46 in cases concerning Russia cited in Savriddin Dzhurayev (cited above, § 121-126) and their decision on the applicant’s disappearance (see paragraph 96 above), the Minister’s Deputies adopted the following decision on 4-6 March 2014 during their 1193rd meeting: “The Deputies 1. expressed serious concern that, according to the Court, the repetitive nature of the violations established suggests that certain authorities developed a practice in breach of their obligations under Russian law and the Convention; 2. also expressed serious concern that, notwithstanding their interim resolution of September 2013 and the measures already adopted by the Russian authorities, the Committee has been seized of a new incident concerning Mr Azimov, reported to have been abducted on 3 December 2013 from a temporary accommodation centre under the authority of the Federal Migration Service; 3. further expressed serious concern that the current whereabouts of Mr Azimov have not yet been established and therefore urged the Russian authorities to reinforce their investigation efforts and to continue to keep the Committee informed of all developments; 4. noted with interest the recent diplomatic efforts undertaken by the Russian authorities with respect to other applicants who were allegedly abducted and subsequently reappeared in detention in other countries and strongly encouraged them to continue their efforts with a view to ensuring that these applicants are not subjected to treatment in breach of the Convention; 5. concerning general measures, recalled the letter of 5 April 2013 by the Chairman of the Committee of Ministers to the Russian Minister of Foreign Affairs and their interim resolution of September 2013; while noting the updated action plan subsequently submitted by the Russian authorities, regretted the slow progress to date and therefore strongly urged the Russian authorities to: provide information promptly on how they will ensure the practical implementation of the required protective and preventive mechanism (notably, as regards the application of protection measures available to victims and witnesses in criminal proceedings; the improvement of security guarantees in temporary accommodation centres; and providing assistance in the resettlement to third countries where there is no risk of treatment contrary to the European Convention); transmit further details on the measures aimed at improving the efficiency of investigations, in particular how they will ensure close scrutiny of these investigations at an appropriate official level as well as on the recent initiative of the Prosecutor General’s Office to put under special control the rapid reaction of prosecutors in the face of detected attempts of abductions from the territory of the Russian Federation; 6. decided to resume consideration of these issues at their 1208th meeting (September 2014) (DH).” 111. On 5 June 2014 during the 1201st meeting of the Minister’s Deputies, the following decision was adopted: “The Deputies 1. noted with grave concern that yet another applicant in this group of cases, Mr Yakubov, had allegedly been abducted in Moscow in April 2014 despite the repeated calls by the Committee of Ministers on the Russian authorities to take the necessary measures to prevent such incidents (see, in particular, Interim Resolution CM/ResDH(2013)200); 2. urged the Russian authorities to continue their investigation into Mr Yakubov’s disappearance in order to shed light on the circumstances of this incident, taking into account the findings of the European Court of Human Rights as regards the involvement of the State authorities in other cases, notably in the case of Savriddin Dzhurayev; 3. noted, with concern, that this incident casts doubts on the soundness of the preventive and protective arrangements set up by the Russian authorities in response to the Committee’s call in September 2013, and requested, in this context, the Russian authorities to ensure that relevant individuals are informed of the protective measures available; 4. further noted, with concern, that no information about any progress in the investigations into similar previous incidents in this group of cases has been provided; 5. invited the Russian authorities to provide information on the different issues raised in this group of cases in good time for their 1208th meeting (September 2014) (DH).” V. REPORTS ON THE SITUATION IN UZBEKISTAN 112. The relevant reports by the UN agencies and international NGOs on the situation in Uzbekistan during the period 2002 to 2011 are summarised in the case of Zokhidov v. Russia (no.", "67286/10, §§ 107-13, 5 February 2013). 113. In January 2013 Human Rights Watch released its annual World Report for 2013. The chapter entitled “Uzbekistan”, in so far as relevant, reads: “Criminal Justice, Torture, and Ill-Treatment 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 ... Human Rights Watch continues to receive regular and credible reports of torture, including suspicious deaths in custody in pre-trial and post-conviction detention. Freedom of Religion Although Uzbekistan’s Constitution ensures freedom of religion, authorities continued their multi-year campaign of arbitrary detention, arrest, and torture of Muslims who practice their faith outside state controls.", "Over 200 were arrested or convicted in 2012 on charges related to religious extremism.” 114. The chapter on Uzbekistan in Amnesty International’s 2013 annual report released in May 2013 reads, in so far as relevant, as follows: “Torture and other ill-treatment 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... Counter-terror and security 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.” 115.", "In its 2013 report “Return to Torture: Extradition, Forcible Returns and Removals to Central Asia”, Amnesty International stated as follows: “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. ... ... 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.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF EXPOSING THE APPLICANT TO A RISK OF ILL‑TREATMENT BY EXTRADITION TO UZBEKISTAN 116. The applicant complained under Article 3 of the Convention that the national authorities had failed to consider his claims that he risked ill‑treatment in the event of his extradition to Uzbekistan, and that if extradition was to take place it would expose him to that risk. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 117. The Government contested these arguments. A. Submissions by the parties 1.", "The Government 118. The Government in their submissions argued that the applicant’s allegations that he risked ill-treatment in the event of his extradition to Uzbekistan had been considered by the national authorities and dismissed on sufficient grounds. Referring to the decisions of the prosecution and immigration authorities and the domestic courts in the course of the extradition and asylum proceedings, the Government argued that his claims had been duly reviewed and found to be devoid of any proof. In their opinion, the assurances presented to the Russian authorities by the Prosecutor General’s Office of Uzbekistan were sufficient and coherent with the countries’ international obligations and domestic legal developments. 119.", "As regards the existence of this risk, the Government in their submissions considered the applicant’s claims to be overbroad, unfounded, and deceptive. Referring to the case of Mamatkulov and Askarov v. Turkey [GC] (nos. 46827/99 and 46951/99, § 73, ECHR 2005‑I) they stressed that while the resources available to the Court described the general situation in a country, specific allegations of an applicant had to be supported by other evidence; no such evidence had been submitted in the present case. They stated that situation in Uzbekistan was not so grave as to render any extradition impossible. Moreover, they highlighted the fact that nothing in the Court’s case-law supported the argument that any of the people actually extradited from Russia to Uzbekistan had ever been subjected to ill‑treatment.", "120. Turning to the applicant’s conduct, they stated that between 2008 and 2012 and until his apprehension, the applicant had made no effort to legalise his status in Russia or request protection and asylum. On the contrary, he had been engaged in criminal activities in Russia and convicted for using forged documents. They pointed to the inconsistency of the applicant’s statements in the extradition and asylum proceedings. During his apprehension on 13 June 2012, the applicant stated that he had left Uzbekistan to evade prosecution for watching extremist material, while in the asylum proceedings he had referred only to the extortionist demands of the authorities towards his business.", "They further mentioned that right after his apprehension, the applicant had stated that he intended to return to Uzbekistan to resolve the situation with his prosecution. Accordingly, in the Government’s opinion, the applicant had had no real fear of being exposed to ill-treatment in the event of his return to Uzbekistan. 2. The applicant 121. The applicant’s representatives in their submissions argued that the national authorities’ consideration of the claims regarding the risk of ill‑treatment had been formalistic and percursory.", "122. They referred to the absolute nature of protection afforded by Article 3 of the Convention and stated that in the present case, the national authorities had failed to discharge their obligation to duly review the applicant’s claims that he would face a real and imminent risk of ill‑treatment in Uzbekistan. In this connection, they specifically noted that the authorities’ outward reliance on the assurances provided by the Prosecutor General’s Office of Uzbekistan had been unjustified in view of their general nature and wording. They further stated that according to the Court’s case-law, assurances provided by national authorities were insufficient in themselves where there was reliable evidence of resorting to or tolerating treatment contrary to the principle of the Convention (Ryabikin v. Russia, no. 8320/04, § 119, 19 June 2008).", "In the opinion of the applicant’s representatives, the same approach disqualified the Government’s reliance on ratification by Uzbekistan of international human rights treaties and regular submissions to the United Nations bodies. 123. In reply to the Government’s argument about the applicant’s failure to present the national authorities with specific evidence pertaining to his personal situation and justifying his fear of ill-treatment in Uzbekistan, they contended that, considering the reports by international organisations and the Court’s judgments in similar cases, the existence of charges involving religious and politically motivated crimes directly and indisputably placed the applicant in the group of individuals systematically subjected to ill‑treatment. The applicant’s allegations before the national authorities had therefore been sufficiently supported by the available evidence. 124.", "The applicant’s representatives did not dispute the applicant’s statements on 13 June 2012 concerning his wish to return to Uzbekistan to clarify the situation with his prosecution, but they surmised that the Government had erred in their conclusions. The applicant, who had left Uzbekistan in 2008, had been largely unaware of any developments in his case, including the existence of a search and arrest warrant and, having had scarce contact with his family and relatives, he had been naturally inclined to remedy this lack of information. However, none of this proves that he had had no fear of ill‑treatment, especially considering his statements to a cellmate in Orenburg. 125. Lastly, they contended that the Government’s reliance on examining the applicant’s claims in the asylum proceedings was unfounded.", "In their opinion, these proceedings were incapable of preventing extradition and thus in principle did not provide for due and effective consideration of allegations of a risk of ill-treatment. Furthermore, the applicant’s asylum request had been dismissed in the preliminary consideration procedure and thus had never been properly considered on the merits. B. The Court’s assessment 1. Admissibility 126.", "The Court notes that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. 2. Merits (a) General principles 127.", "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 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). 128. However it is the Court’s settled case-law that expulsion or 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 individual concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3 (see Saadi v. Italy [GC], no.", "37201/06, § 125, ECHR 2008, and Soering v. the United Kingdom, 7 July 1989, § 91, Series A no. 161). 129. The assessment of whether there are substantial grounds for believing that the applicant faces a real risk of being subjected to treatment in breach of Article 3 inevitably requires the Court to assess the conditions in the destination country against the standards of that Convention provision (see Mamatkulov and Askarov [GC], cited above, § 67). 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 and depends on all the circumstances of the case (see Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001‑II). 130. In determining whether it has been shown that the applicant runs a real risk of suffering treatment proscribed by Article 3 if extradited, 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 extradition; the Court is not precluded, however, from having regard to information which comes to light subsequent to the extradition.", "This may be of value in confirming or refuting the assessment that has been made by the Contracting Party or the well-foundedness or otherwise of an applicant’s fears (see Cruz Varas and Others v. Sweden, 20 March 1991, §§ 75-76, Series A no. 201; Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 107, Series A no. 215; and Mamatkulov and Askarov [GC], cited above, § 69). 131. 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, cited above, § 112). 132. As regards the general situation in a particular country, the Court can attach a certain importance to the information contained in recent reports by independent international human rights protection associations or governmental sources (see Saadi, cited above, § 131, with further references). Furthermore, in assessing whether there is a risk of ill-treatment in the requesting country, the Court assesses the general situation in that country, taking into account any indications of improvement or worsening of the human-rights situation in general or in respect of a particular group or area that might be relevant to the applicant’s personal circumstances (see, mutatis mutandis, Shamayev and Others v. Georgia and Russia, no.", "36378/02, § 337, ECHR 2005‑III). 133. At the same time, reference to a general problem concerning human rights observance in a particular country cannot alone serve as a basis for refusal of extradition. 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, with reference to the individual circumstances substantiating his fears of ill-treatment (see Mamatkulov and Askarov [GC], cited above, § 73, and Dzhaksybergenov v. Ukraine, no. 12343/10, §37, 10 February 2011).", "134. In a case where assurances have been provided by the receiving State, they constitute a further relevant factor the Court will consider. However, assurances are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment. There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill‑treatment. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time (see Saadi, cited above, § 148, and Othman (Abu Qatada) v. the United Kingdom, no.", "8139/09, § 187, ECHR 2012). 135. In respect of the standard of review of ill-treatment claims on the domestic level the Court must be satisfied that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic material as well as by material originating from other reliable and objective sources such as, for instance, other Contracting or non‑Contracting States, agencies of the United Nations and reputable non‑governmental organisations (see Salah Sheekh, cited above, § 136, and Ismoilov and Others v. Russia, no. 2947/06, § 120, 24 April 2008). 136.", "In the recent cases against the Russian Federation examined under Article 3 concerning the extradition of applicants to Uzbekistan and Tajikistan, the Court identified the critical elements to be subjected to a searching scrutiny (see, among many other authorities, Iskandarov v. Russia, no. 17185/05, 23 September 2010; Savriddin Dzhurayev, cited above; Kasymakhunov v. Russia, no. 29604/12, 14 November 2013; Abdulkhakov v. Russia, no. 14743/11, October 2012; Muminov v. Russia, no. 42502/06, 11 December 2008; and Zokhidov, cited above).", "137. Firstly, it has to be considered whether an applicant has presented the national authorities with substantial grounds for believing that he faced a real risk of ill‑treatment in the destination country (see e.g. Garabayev v. Russia, no. 38411/02, § 78, 7 June 2007). Secondly, the Court would inquire into whether the claim has been assessed adequately by the competent national authorities discharging their procedural obligations under Article 3 of the Convention and whether their conclusions were sufficiently supported by relevant material (see e.g.", "Muminov v. Russia, no. 42502/06, § 87, 11 December 2008). Lastly, having regard to all of the substantive aspects of a case and the available relevant information, the Court would assess the existence of the real risk of suffering torture or treatment incompatible with the Convention standards (see e.g. Ismoilov and Others v. Russia, no. 2947/06, §§ 120-124, 24 April 2008).", "(b) Application of these principles to the present case (i) Existence of substantial grounds for believing that the applicant faced a real risk of ill-treatment 138. As has been stated above, the Court’s initial task is to satisfy itself that the national authorities were presented with sufficiently substantiated and specific grounds for believing that the applicant faced a real risk of ill‑treatment in the destination country. 139. At the outset, the Court notes that for more than a decade the United Nations agencies and international non-governmental organisations (see paragraphs 112-115) issued alarming reports concerning the situation of the criminal justice system in Uzbekistan, the use of torture and ill‑treatment techniques by law enforcement agencies, severe conditions in detention facilities, systemic persecution of political opposition, and harsh treatment of certain religious groups. This view of the situation in the country is also partly shared by the Russian authorities, since in 2009 the Russian Ministry of Foreign Affairs, describing the situation in Uzbekistan, recognised the reliance in criminal trials on forced confessions and much stricter regimes of incarceration for those convicted of anti-State, religious and politically motivated crimes (see paragraph 35 above).", "140. The Court has been previously confronted with other cases concerning removals from the Russian Federation to Uzbekistan of those accused by the Uzbek authorities of criminal, religious and political activities (see most recently, among many other authorities, Ermakov v. Russia, no. 43165/10, 7 November 2013; Kasymakhunov, cited above; and Ismailov v. Russia, no. 20110/13, 17 April 2014). In these and other similar cases, the Court systematically found that extradition or expulsion of the applicants to Uzbekistan in the face of their prosecution for extremism would run contrary to Article 3 of the Convention by exposing them to a risk of ill‑treatment at the hands of the law enforcement agencies, despite heinous nature of these crimes and threats to national security.", "141. Having regard to the above-mentioned reports by the international and non-governmental organisations and its case-law, the Court concludes that the Russian authorities had substantial grounds for believing that the individuals, whose extradition was sought by the Uzbek authorities on charges of religiously or politically motivated crimes, constituted a vulnerable group, running a real risk of treatment contrary to Article 3 of the Convention in the event of their transfer to Uzbekistan. 142. Turning to the present case, it is apparent that in the context of the extradition proceedings the applicant consistently and specifically argued that he had been prosecuted for religious extremism and faced a risk of ill‑treatment (see paragraphs 26 and 33 above). He thus directly stated his belonging to the above-mentioned vulnerable group.", "143. The Court is conscious of the fact that in the asylum proceedings, the applicant relied on a diverging account of the reasons which triggered his departure from Uzbekistan and the grounds underlying his fear of return (see paragraphs 26, 33, 42 and 44 above). Indeed, the Russian authorities had to deal with at least two versions of events, one construed about his entrepreneurial activities and the extortionist demands of the Uzbek authorities, and the other about his distant connection to political and religious opposition in his home country. 144. Despite this inconsistency in the applicant’s arguments, the Court considers that the Russian authorities had at their disposal a sufficiently substantiated account indicating a real risk of ill-treatment.", "The international search and arrest warrant and extradition request submitted by the Uzbek authorities were clear as to their basis, namely that he was wanted for prosecution in Uzbekistan on charges of terrorism, separatism, religious and political extremism. These allegations regarding his criminal conduct and its nature remained unchanged throughout the relevant proceedings in the Russian Federation. It follows that all of the documents submitted by the Uzbek law enforcement agencies to the Russian authorities in the context of legal cooperation on extradition unequivocally stated that the applicant had been accused of religiously and politically motivated crimes. 145. This fact alone, taken in the context of the international reports regarding the systemic ill-treatment of those accused of religious and political crimes, was sufficient to definitively place the applicant within the group of individuals at a severe risk of ill-treatment in the event of their removal to Uzbekistan.", "Furthermore, the validity of his claims was supported by the Court’s judgments regarding removals to Uzbekistan, where essentially similar claims were considered clear and sufficient to trigger European supervision under Article 3 of the Convention (see, among other authorities, Rustamov v. Russia, no. 11209/10, 3 July 2012; Umirov v. Russia, no. 17455/11, 18 September 2012; and Abdulkhakov, cited above). 146. The Russian Government stressed in their submissions that nothing in the Court’s case-law demonstrated that people previously extradited from Russia to Uzbekistan have ever been subjected to ill‑treatment.", "The Court has previously noted great difficulties encountered by the lawyers and relatives in obtaining any reliable information about the situation of some of such persons following their transfers to Uzbekistan, as well as allegations of ill-treatment (see Mamatkulov and Askarov, cited above, § 36; Ermakov, cited above, §§ 98-100; and Zokhidov, cited above, § 76). However, even in the absence of final evidence in some of the cases, one must not overlook the absolute nature of the protection provided by Article 3 and that a serious risk of torture, inhuman or degrading treatment is sufficient to trigger the protective mechanisms of the Convention. The assumption that certain people in a comparable situation might have been fortunate enough to avoid these risks may not lessen the weight attached by the national authorities or this Court to well substantiated claims of a real risk of ill-treatment. 147. In the context of the present case, the Court is satisfied that the applicant presented the Russian authorities with substantial grounds for believing that he faced a real risk of ill-treatment in Uzbekistan.", "(ii) Duty to adequately assess claims of a real risk of ill-treatment relying on sufficient relevant material 148. Having concluded that the applicant advanced at the national level a valid claim based on substantial grounds for believing in real risk of treatment contrary to Article 3 of the Convention, the Court must examine whether the authorities discharged their obligation to adequately assess this claim relying on sufficient relevant material. 149. The Court notes that the applicant argued before the domestic courts that his extradition would expose him to a real risk of being subjected to treatment contrary to Article 3, and in the Government’s opinion this argument had been adequately considered by the Prosecutor General’s Office and domestic courts and rejected. 150.", "The Court reiterates that where domestic proceedings have taken place, as in the present case, 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, among other authorities, Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 179-80, 24 March 2011). This should not lead, however, to abdication of the Court’s responsibility and a renunciation of all supervision of the result obtained from using domestic remedies, otherwise the rights guaranteed by the Convention would be devoid of any substance (see Open Door and Dublin Well Woman v. Ireland, 29 October 1992, § 69, Series A no. 246‑A, and Scordino v. Italy (no. 1) [GC], no.", "36813/97, § 192, ECHR 2006‑V). 151. Accordingly, the Court will first assess whether the applicant’s complaint received an adequate reply at the national level. 152. Turning to the present case, the Court considers that the domestic authorities did not carry out a rigorous scrutiny of the applicant’s claims that he risked ill-treatment in his home country (see De Souza Ribeiro v. France [GC], no.", "22689/07, § 82, 13 December 2012). The Court reaches this conclusion relying on two major aspects of the case. 153. Firstly, despite the applicant advancing a valid claim based on substantial grounds for believing in possible ill-treatment at the hands of the Uzbek law enforcement authorities, on 12 November 2012 the Deputy Prosecutor General of the Russian Federation authorised his extradition to Uzbekistan without examining any of the risks to him and merely referring to an absence of “obstacles” for transfer (see paragraph 30 above). No evidence has been presented by the Government to demonstrate that the Prosecutor General’s Office made any effort to evaluate the risks of extradition to the country where, according to reputable international sources, the use of torture is commonplace and defence rights are habitually circumvented.", "Furthermore, the Deputy Prosecutor General’s outright and unreserved reliance on the assurances provided by the Uzbek authorities was incompatible with the Court’s established position that in themselves these assurances are not sufficient (see paragraph 134 above) and that the national authorities need to treat with caution the assurances against torture given by a State where torture is endemic or persistent (see Yuldashev v. Russia, no. 1248/09, § 85, 8 July 2010 with further references). Accordingly, the Court finds itself unable to conclude that the applicant’s claims concerning his probable ill-treatment at the hands of the Uzbek authorities were duly considered by the prosecution authorities. 154. Secondly, the Court is of the opinion that the domestic courts had also failed to adequately assess the applicant’s claims under Article 3 of the Convention.", "155. At the outset, it should be noted that the applicant’s representative Mr Gladkikh, in challenging the Deputy Prosecutor General’s extradition authorisation in the domestic courts, consistently substantiated the risk of ill-treatment with a wide range of references to the Court’s case-law, UN agencies’ and non-governmental organisations’ reports on the situation in Uzbekistan, and the position of some Russian State institutions (see paragraphs 32-36 above). He further argued that the applicant belonged to a “risk group” and that the extradition authorisation had been contrary to the Supreme Court’s authoritative interpretation of the Russian law in its Ruling no. 11 of 14 June 2012, which demanded a rigorous examination of the relevant claims and taking into consideration of all available information. 156.", "On 27 December 2012 the Orenburg Regional Court, and on 12 March 2013 the Supreme Court of the Russian Federation, curtly dismissed all of the above arguments on appeal (see paragraphs 37 and 39 above). They rejected all of the claims pertaining to a risk of ill-treatment as “general” and lacking any “specific convincing arguments”. Furthermore, following the lead of the prosecution authorities, the domestic courts undisputedly attached significant weight to the assurances of the Uzbek law enforcement agencies and took them at face value, without engaging in an analysis of the context in which they were given. 157. The Court finds it difficult to reconcile the authoritative directions given by the Supreme Court to the lower courts in its Ruling no.", "11 of 14 June 2012 to engage in a thorough and comprehensive review of the serious claims of ill-treatment and the restrained position taken by the Regional Court and Supreme Court itself in the present case. 158. In the appeal judgment, the Supreme Court sketchily stated that the applicant and his representative had not submitted any “convincing arguments giving weighty grounds to believe that the Uzbek authorities might subject him to torture, inhuman or degrading treatment”. Accordingly the applicant’s substantial grounds for fear were summarily dismissed without reference to any specific circumstances or material capable of proving to the contrary. It needs to be stated in this regard that even if the national court considered the applicant’s arguments substantively unconvincing, it should have dismissed these arguments only after a thorough analysis.", "Nothing in the material in the Court’s possession gives reason to believe that the Supreme Court, confronted with substantial grounds for believing in a real risk of ill-treatment amply supported by various international sources, honoured this claim with due and sufficient attention. 159. Furthermore, the Court does not lose sight of the fact that the Supreme Court adopted a trivial attitude towards the applicant’s claim that he risked ill-treatment, while it had been undisputedly aware of an interim measure indicated to the Government of the Russian Federation under Rule 39 of the Rules of Court on 11 March 2013. It is beyond doubt that an indication of an interim measure by an international tribunal might not in itself create a res judicata effect for the national courts, but at the very least indirectly calls for searching rather than passing scrutiny of the relevant matters. 160.", "Having regard to the conclusion reached above, the Court considers that while the applicant sufficiently substantiated his claim that he risked ill‑treatment in Uzbekistan, the Russian prosecution authorities and courts failed to adequately assess his claims relying on sufficient relevant material. This failure opened the way for the applicant’s extradition to Uzbekistan, where he might have been subjected to ill-treatment. There has accordingly been a violation of Article 3 of the Convention. (iii) Existence of a real risk of ill-treatment 161. The Court is mindful of the failure of the national authorities to rigorously review serious and reasoned claims of the applicant, which is in itself an affront to the protection mechanism established under the Convention.", "It would be normally redundant for an international tribunal to engage in a further detailed substantive review of the relevant matters, since the abovementioned failure even taken alone is sufficient for finding of a violation of Article 3 of the Convention. However, having regard to the specific circumstances of the case, the Court finds itself compelled to further examine whether the applicant would be exposed to a real risk of ill‑treatment in the event of his transfer to Uzbekistan. 162. Turning to the present case, the Court once again notes that in the recent years, there has been no improvement in either the criminal justice system of Uzbekistan in general, nor in the specific treatment of those prosecuted for religiously and politically motivated crimes. It appears that the use of torture, forced confessions and the denial of access to lawyers remain commonplace (paragraphs 112-115 above).", "163. It has been established above that the applicant had presented the Russian authorities with evidence capable of proving that there were substantial grounds for his claims that he belonged to a group of people systematically subjected to ill-treatment in Uzbekistan in connection with their prosecution for religiously and politically motivated crimes. In a number of judgments cited above (paragraphs 140 and 145) the Court had concluded that removal to Uzbekistan of persons in a comparable situation would give rise to a violation of Article 3 of the Convention. 164. The Court finds that in the present case the Government have not put forward any argument capable of serving as a basis for the conclusions different from the cases cited above.", "As it had been established above the Russian authorities in the extradition proceedings failed to adequately assess the applicant’s claims of a risk of ill-treatment and relied heavily on the assurances of the Uzbek authorities, which failed to meet the Convention requirements. 165. Accordingly, having regard to the available material disclosing a real risk of ill-treatment to persons accused, like the applicant, of religiously and politically motivated crimes, the Court concludes that authorisation of the applicant’s transfer to Uzbekistan exposed him to a real risk of treatment contrary to Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S “DISAPPEARANCE” 166.", "The applicant’s representatives submitted under Article 3 of the Convention that the Russian authorities were implicated in the applicant’s disappearance, which in their opinion had resulted in his abduction and illegal transfer to Uzbekistan. They contended that the domestic authorities had failed to take the necessary measures to prevent the applicant’s disappearance. Lastly, they submitted that the investigation into the disappearance and possible abduction had been ineffective. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 167. The Government contested these arguments.", "A. Submissions by the parties 168. The applicant’s representatives contended that despite the application of an interim measure under Rule 39 of the Rules of Court, the applicant’s disappearance had resulted in his abduction and forcible removal to Uzbekistan performed with the assistance or at the very least the non‑intervention of the Russian national authorities. In support of their position, they relied on the applicant’s exceptionally early release from SIZO-3 in Orenburg, the unusual procedure followed by the administration of the detention centre, audible fragments of conversations from the video surveillance recordings and an anonymous phone call received by one of its staff. They contended that the investigation into the applicant’s disappearance had evidently been ineffective; it had not been independent due to the participation of the security services, the investigation’s theories were unrealistic, several obvious investigative actions had been omitted, and they had not been allowed to consult the material. Lastly, they stated that the Russian authorities, in this case as well as generally, had failed to establish a protective mechanism capable of preventing the applicant’s disappearance and possible transfer to Uzbekistan.", "169. The Government argued that these allegations were mere conjectures devoid of clear factual basis. They contended that nothing in the present case either indicated the involvement of the Russian authorities in the applicant’s disappearance or supported the claim that he had been forcibly removed to Uzbekistan. They further argued that there were certain grounds to believe that the applicant himself would be willing to avoid any contact with the national authorities, his family and representatives. Regarding the effectiveness of the investigation into his disappearance, the Government insisted that all the necessary action had been taken in a timely fashion, and that the running of the investigation had been treated with the utmost concern and attention by the law enforcement agencies.", "Regarding the measures taken by the authorities to protect the applicant from possible removal to Uzbekistan, they argued that the immigration and law enforcement agencies had been ordered to refrain from removing him, the Federal Migration Service had been considering his application for temporary asylum, and that each disappearance case had been investigated, with those responsible having made the best efforts possible. B. The Court’s assessment 1. Admissibility 170. The Court notes that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. 2. Merits 171. The Court observes that the parties’ arguments raise three distinct issues, namely whether the authorities (i) complied with their obligation to protect the applicant against the risk of treatment contrary to Article 3 of the Convention, (ii) conducted an effective investigation into the applicant’s disappearance, and (iii) should be held accountable for the applicant’s disappearance.", "172. Having regard to the complexity of the facts and distinctiveness of the applicable legal standards, the Court must examine each of these issues separately. (a) Whether the authorities complied with their obligation to protect the applicant against a risk of treatment contrary to Article 3 of the Convention 173. The Court reiterates at the outset that the obligation on Contracting Parties under Article 1 of the Convention, to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill‑treatment administered by private individuals (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 198, ECHR 2012, and Mahmut Kaya v. Turkey, no.", "22535/93, § 115, ECHR 2000‑III). Those measures should provide effective protection, in particular, to vulnerable people and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001‑V, and, mutatis mutandis, Osman v. the United Kingdom, 28 October 1998, § 115, Reports of Judgments and Decisions 1998-VIII). Where the authorities of a State party are informed of a real and immediate risk of exposure to torture and ill-treatment, they have an obligation under the Convention to take, within the scope of their powers, such preventive operational measures that, judged reasonably, might be expected to avoid that risk (see, mutatis mutandis, Osman, § 116, and Savriddin Dzhurayev, § 180, both cited above). 174.", "At the same time, it is a well-established position of the Court 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 (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 245, ECHR 2011 (extracts)). 175. The Court must start its examination by establishing whether the authorities were aware that the applicant faced a real and immediate risk of exposure to ill‑treatment after his release from detention on 13 June 2013. 176.", "It has been established above that the applicant belongs to a group of people systematically subjected to ill-treatment in Uzbekistan and Tajikistan in connection with their prosecution for religiously and politically motivated crimes. Furthermore, the factual pattern in the applicant’s case is appreciably similar to other cases where it has been established that people whose extradition had been sought on similar charges were forcibly transferred from the Russian Federation to one of the Uzbekistan and Tajikistan (see, among other authorities, Iskandarov; Abdulkhakov; Savriddin Dzhurayev, and Kasymakhunov, all cited above). 177. Without reflecting on the Russian Government’s consistent position on the absence of their involvement in these and other irregular transfers, the Court is convinced that at the very least, the authorities were aware of these incidents and judging by their experience and knowledge, must have reasonably considered that the applicant faced a similar real and imminent risk of disappearance and irregular transfer right after his release. This conclusion is further supported by the fact that on 11 March 2013 the Court indicated to the Government a relevant interim measure under Rule 39 of the Rules of Court preventing his extradition to Uzbekistan until further notice.", "178. The authorities’ awareness and sensitivity in similar factual situations should have also been advanced by the five Committee of Ministers’ decisions of 8 March, 6 June, 23 September, 6 December 2012 and 7 March 2013 regarding certain applicants’ abductions and forced transfers to Uzbekistan and Tajikistan (the relevant parts of which are reproduced in Savriddin Dzhurayev, cited above, §§ 122-26). In each of these decisions, the Russian authorities were invited to ensure that no similar incidents would occur in future by introducing special protective measures. 179. The authorities’ awareness of the existence of such risks in the present case is proven by the fact that indication of the interim measure under Rule 39 was explicitly mentioned in the Prosecutor General’s Office decision to release the applicant on 13 June 2013 (see paragraph 53 above).", "It is further confirmed beyond doubt by the statement of the head of the SIZO-3 detention facility to the investigating authorities that during detention and after the decision to release, he was aware of the applicant’s concerns for his safety after release (see paragraph 78 above). 180. Lastly, on 13 June 2013, the day the applicant was released and disappeared, his representative Mr Gladkikh immediately informed the Investigative Committee, Prosecutor General’s Office, Border Guards Service and FSB. He explicitly stated that the applicant was facing a risk of unlawful transfer to Uzbekistan (see paragraph 55 above). 181.", "Accordingly, the Court is satisfied that the Russian authorities were aware before and after the applicants’ release that he faced a real and immediate risk of forcible transfer and exposure to torture and ill-treatment. 182. It is evident for the Court that the present case differs significantly from the extradition to Uzbekistan and Tajikistan cases mentioned above, in the fact that the applicant disappeared after release without reliable proof of him being transferred to Uzbekistan. However, this difference is immaterial for the present analysis, since the Russian authorities by their own admission (see paragraph 176 above) were aware of the general situation and specific concerns of the applicant, and treated the risk as serious, real, and immediate. 183.", "The next step in the Court’s examination must be to analyse whether the State took preventive operational measures that, judged reasonably, might have been expected to avoid the risk of forcible transfer and exposure to torture and ill-treatment. 184. The Court notes that the Government failed to present evidence of any timely preventive measures taken by the law enforcement agencies to avert the risk of abduction after the applicant’s disappearance and only some indication of the measures taken prior to release. 185. Relying on the material in its possession, the Court is able to discern only one preventive measure taken by the administration of the detention facility SIZO-3 aimed at addressing the applicant’s fear for his safety after release, namely his release outside of regular working hours (see paragraph 78 above); however, the relevance and effectiveness of this measure were never explained.", "186. While an early morning release was considered by the head of SIZO‑3 to be an appropriate measure to ensure the applicant’s safety in the face of his fears, the Court fails to grasp the significance or expected benefit of this measure. On the contrary, it appears that letting out of the detention facility the person fearing unlawful and covert action, alone and outside of the normal working hours, might have been one of the contributing factors to his disappearance, partly because of the failure of Mr Gladkikh to meet his client. 187. It is not disputed by the parties that since 11 June 2013 until the day of the applicant’s release the applicant’s representative Mr Gladkikh consistently enquired about the date and time of release.", "This fact is definitively corroborated by the statement the release officer of the detention facility, Mrs L.S., made to the investigator (see paragraph 77 above). Furthermore, in the same statement she stated that during his release, the applicant had specifically enquired whether his lawyer had been present. 188. Admittedly, the Government is correct in highlighting certain inconsistencies in Mr Gladkikh’s statements to the national authorities and the Court made on 13 June 2013 concerning the events that day (see paragraphs 54 and 55 above), namely that he gave 7.15 a.m. and 7.30 a.m. as the time of the applicant’s release and whether he had been informed of the time of that release. They further pointed out that since Mr Gladkikh alleged that he had been in front of SIZO-3 on the day in question since 6 a.m., he had been bound to have encountered the applicant next to the only entrance to the building, despite the actual time of release.", "189. However, in the Court’s opinion, the factual relevance of these arguments does not render them decisive. The authorities decided to release the applicant early in the morning in the absence of Mr Gladkikh despite clear requests from both of them and consequently diminished the marginal value of the devised protective measure. Indeed, as the Government stressed in their submissions, the Russian legislation does not prescribe a detainee’s release in the presence of a lawyer, but nor does it prescribe his release at 6 a.m. Accordingly, it might not have been reasonably expected that the applicant’s early release in the light of the failure to secure the presence of his lawyer could counterbalance the risk of forcible transfer to Uzbekistan.", "190. Lastly, it has to be noted that despite the law enforcement agencies being notified by Mr Gladkikh of the applicant’s disappearance virtually immediately, nothing in the material in the Court’s possession indicates that any steps were taken by the authorities for several days. It is evident that in the event of a disappearance of a person belonging to a vulnerable group of people facing the risk of abduction, any protracted and unjustified delay diminishes the effectiveness of any subsequent action. In the present case, the Government failed to inform the Court of any timely preventive measure taken by the competent State authorities subsequent to the applicant’s disappearance, and it must therefore be inferred that no such measure had been implemented. 191.", "Having regard to the above findings, it must be concluded that the national authorities were aware before the applicants’ release of a real and immediate risk of forcible transfer and exposure to torture and ill-treatment, but failed to take any preventive protection measures against this risk. Accordingly, there has been a violation of Article 3 of the Convention on this account. (b) Whether the authorities conducted an effective investigation into the applicant’s “disappearance” 192. The Court reiterates that Article 3, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation into any arguable claim of torture or ill-treatment by State agents. 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, and El-Masri, cited above, § 182). 193. The investigation into serious allegations of ill-treatment must be both prompt and thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions (see Assenov and Others, cited above, § 103; Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004‑IV (extracts); and El-Masri, cited above, § 183).", "They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 104, ECHR 1999‑IV; Gül v. Turkey, no. 22676/93, § 89, 14 December 2000; and El-Masri, cited above, § 183). The investigation should be independent from the executive in both institutional and practical terms (see Ergi v. Turkey, 28 July 1998, §§ 83-84, Reports of Judgments and Decisions 1998‑IV; Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999‑III; and Mehmet Emin Yüksel v. Turkey, no.", "40154/98, § 37, 20 July 2004) and allow the victim to participate effectively in the investigation in one form or another (see, mutatis mutandis, Oğur, § 92, and El-Masri, §§ 184-85, both cited above). 194. In the Court’s view, all the above principles apply to the situation of an individual’s exposure to a real and imminent risk of torture and ill‑treatment through his forcible transfer to another State. Where the authorities of a State party are informed of such an incident, they have an obligation under the Convention to conduct an effective investigation (see Savriddin Dzhurayev, cited above, § 190). 195.", "The Court acknowledges the recent legislative reforms, which resulted in a series of amendments to the Criminal Procedure Code, significantly broadening the powers of investigative authorities to conduct preliminary inquiries into the reports of a crime, improving the legal status of victims and witnesses and making it more possible to discover and secure evidence in a prompt and definitive manner (see paragraphs 100-103 above). The Court considers that these reforms, at least in principle, better equipped the law enforcement agencies to deal with the applicant’s reported disappearance and allegations of his abduction. 196. The Court notes that between 19 and 27 June 2013 the investigator conducting a preliminary inquiry into the applicant’s disappearance examined his cell in SIZO-3, seized his personal file and the available video surveillance recordings, questioned four officers of the detention facility who were present during the release, and obtained a copy of the extradition case file. He also questioned the applicant’s cellmate, representative, officers of the FSB and Anti-Extremism Department in the Orenburg Region, and contacted the Federal Migration Service, Border Guards Service and Transport Department of the Ministry of Internal Affairs to verify whether the applicant had been arrested, had crossed the State border or had bought train or airline tickets.", "197. On 27 June 2013 on the basis of the information obtained during the preliminary inquiry, a criminal investigation into the applicant’s disappearance was initiated. In the course of the following month and a half, the inter-agency investigative group repeatedly questioned all the detention facility officers present during the release, the applicant’s cellmate and representative, and officers of the law enforcement agencies involved in the applicant’s initial apprehension and extradition. They also sent requests for legal cooperation to the Uzbek authorities, located the applicant’s relatives, put the applicant’s name on the list of missing persons, monitored the sale of tickets and border crossings, and sent multiple information requests to various agencies. 198.", "While the Court notes the diversity and multiplicity of the actions taken during the preliminary inquiry and initial stage of the criminal investigation, it finds itself unable to conclude that the investigation into the applicant’s disappearance was effective for the following reasons. 199. Firstly, it is impossible for the Court to overlook the fact that there was an unexplained delay of six days between notification of disappearance by the applicant’s representative on 13 June 2013 and the first steps of the preliminary inquiry on 19 June 2013. It is beyond doubt that promptness is a key factor in investigating a disappearance and suspected international abduction and for this reason, the period of six days spent by the law enforcement agencies in settling jurisdictional issues and transferring the case file was evidently excessive and demonstrated a lack of diligence on their part. In the Court’s view, the delayed commencement of the inquiry resulted in a loss of precious time, which had a negative impact on the success of the investigation (see, mutatis mutandis, Mikheyev v. Russia, no.", "77617/01, § 114, 26 January 2006; Polonskiy v. Russia, no. 30033/05, § 111, 19 March 2009; and Dobriyeva and Others v. Russia, no. 18407/10, § 74, 19 December 2013). 200. Secondly, the Court observes that from the day of the applicant’s disappearance, his representative Mr Gladkikh consistently alleged that he might have been abducted in order to be forcibly transferred to Uzbekistan (see paragraph 55 and 70 above).", "Despite the authorities’ awareness of similar previous incidents, the investigation refused to entertain abduction as one of the possible theories for his disappearance, due to an alleged lack of evidence capable of substantiating it (see paragraph 75 above). The Court finds this approach of the investigative authorities disconcerting, since out of the five theories adopted by the investigation (see paragraph 73 above) there had seemingly been no evidence for the majority of them either. For example, while nothing in the material supplied by the parties indicates that the applicant was of poor health, his disappearance due to health-related reasons featured in two of the working theories of the investigation. By contrast, the applicant’s abduction for forcible transfer purposes had not been adopted even as a working theory, despite falling within the factual pattern of other cases involving stayed extraditions to Uzbekistan and Tajikistan. Accordingly, the Court concludes that the investigation in the applicant’s case was excessively restrictive in its interpretation of the events and ignored certain valid and plausible accounts of the events.", "201. Thirdly, as stated above the first two months after the applicant’s disappearance were marked by the multiplicity and diversity of the investigative actions within the preliminary inquiry and criminal investigation procedures. However, the Court is unaware of any developments in the investigation of the incident beyond August 2013. The applicant’s fate remains unresolved. The Government did not provide any information, and the applicant’s representatives alleged that there had effectively been no progress in the case.", "Under these circumstances, the Court must presume that after August 2013 the investigation stalled without any results being achieved, new actions planned or conclusions reached by the law enforcement agencies. No reasons were advanced by the respondent Government to justify this unexpected suspension of activities. Thus, despite the initial active approach of the investigative authorities, the Court concludes that the subsequent cessation of activities irreparably undermined the effectiveness of the investigation. 202. In view of the conclusions presented above, the Court finds that the authorities did not conduct an effective investigation into the applicant’s disappearance and possible forcible transfer to Uzbekistan, where he might be exposed to a real and imminent risk of torture and ill‑treatment, contrary to Article 3 of the Convention.", "(c) Whether the authorities are accountable for the applicant’s “disappearance” 203. At the outset, the Court notes that the obligation of a State to put in place the necessary protective measures for an applicant fearing abduction is an obligation of means and not of an end. It would be untenable to oblige a High Contracting Party to devise a system of measures capable of protecting a person from all eventualities of life and to ensure absolute success of these measures. Consequently, no direct and solid inference can be drawn from the Court’s conclusions that no adequate protective mechanism had been established and the fact that the applicant disappeared. 204.", "Considering the gravity of the allegation of State agents’ involvement in the forcible removal and concealment of the applicant, the Court deems it indispensable to have sufficient, clear and convincing evidence to reach the conclusion suggested by the applicant’s representatives. Previously, to be persuaded of similar allegations, the Court has relied on, among other factors, crossing the State border by regular flights despite border controls (see Iskandarov, §§ 113-15, and Ermakov v. Russia, § 180, both cited above) or the sudden inexplicable disappearance of an applicant from Russia with an almost immediate reappearance in the home country (see Savriddin Dzhurayev, cited above, § 202). None of the comparable factual and evidentiary arrangements can be observed in this case. 205. The applicant’s representatives attached a great deal of importance to irregularities in the applicant’s release and argued, by reference to previous cases, that the involvement of the State in the applicant’s disappearance could be surmised.", "In their submissions, they relied heavily on the contents of the video surveillance recording provided by the Government (see paragraphs 91–95 above), alleging that audible fragments of conversations among the officers of the detention facility supported their position. 206. The Court does not find itself able to concur with the applicant’s representatives in interpreting the recording. The audible fragments are patently inconclusive and, if anything, the recording proves the validity of the Government’s arguments that the applicant had indeed been released, and that it had happened within the time-frame indicated by the authorities of the respondent State. 207.", "Accordingly, in the present case, the Court does not find it possible to decide on the existence of an established practice of non‑compliance with interim measures by the Russian authorities, which had been supposed in the Minister’s Deputies decision at their 1193rd meeting on 4-6 March 2014. Nor does it consider indispensable, in the framework of this case, to resort to using the factual presumptions welcomed previously in the Parliamentary Assembly’s Resolution 1991 (2014) of 10 April 2014. Even if there were grounds to confirm the development, by certain authorities, of a practice of non-compliance with interim measures (see paragraph 110 above) the facts of each case must be assessed individually in order to attribute responsibility to the Respondent State. 208. While it’s regrettable that the applicant’s release had been marked by irregularities and most evidently by his early morning discharge from the detention facility, these facts alone or even in conjunction with an anonymous telephone call alleging that the applicant had been transferred to Uzbekistan are incapable of credibly proving the involvement of State agents in the applicant’s disappearance or their failure to act in the face of an unlawful removal by others.", "209. Having regard to all of the material in its possession, the parties’ arguments, the conclusions reached above, and a lack of any convincing reports on the applicant’s whereabouts, the Court does not find it possible to conclude that the Russian authorities were implicated in the applicant’s disappearance. Accordingly, in this respect there has been no violation of Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 210.", "The applicant complained under Article 13 of the Convention of a lack of effective domestic remedies in Russia in respect of his complaint under Article 3 of the Convention. Article 13 reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 211. In the Court’s opinion it raises the issues similar to those already examined under Article 3 of the Convention. In view of its reasoning and findings made under the latter provision (see paragraphs 160, 191 and 202 above), the Court does not consider it necessary to deal with the complaint under Article 13 of the Convention and decides to reject it under Article 35 §§ 3 and 4 of the Convention. IV.", "ALLEGED INTERFERENCE WITH RIGHT TO INDIVIDUAL APPLICATION UNDER ARTICLE 34 OF THE CONVENTION. 212. The applicant’s representatives alleged that his disappearance and possible unlawful removal from Russia, the failure of the Russian authorities to put in place the necessary protective measures, and the lack of an effective investigation into the matter had been in breach of the interim measure indicated by the Court under Rule 39. These claims, substantively focusing on a violation of the right to individual application, fall to be examined under Article 34 of the Convention, which reads as follows: “The Court may receive applications from any person, non-governmental organization 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.” 213.", "Rule 39 of the Rules of Court provides: “1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it. 2. Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the Committee of Ministers. 3.", "The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.” 214. The Court reiterates that, by virtue of Article 34 of the Convention, Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of the right of individual application, which has been consistently reaffirmed as a cornerstone of the Convention system. According to the Court’s established case-law, a respondent State’s failure to comply with an interim measure entails a violation of that right (see Mamatkulov and Askarov, §§ 102 and 125, and Abdulkhakov, § 222, both cited above). The Court does not find it necessary to once again elaborate at length on the importance of interim measures in the Convention system and their exceptional nature calling for maximal cooperation of the State, since these principles are distinctly well-established. 215.", "However, it is alarming that the authorities’ conduct appears to follow the same pattern, namely its failure to comply with an interim measure indicated under Rule 39 of the Rules of Court in respect of applicants criminally prosecuted in Uzbekistan and Tajikistan (see Kasymakhunov, §§ 183-89, and Savriddin Dzhurayev, §§ 216-19, both cited above). In the present circumstances, the Court will consider its previous judgments, the position of other Council of Europe institutions, and the unprecedented and recurring nature of related incidents as a decisive contextual factor in the present analysis. 216. The Government, in their opinion, fully complied with their obligations under Rule 39 of the Rules of Court and Article 34 of the Convention by informing the relevant law enforcement agencies of the indicated measure and refraining from removing the applicant to Uzbekistan. The Court finds itself unable to concur.", "217. As has been established above, the national authorities neither put in place the protective measures capable of preventing his disappearance and possible transfer to Uzbekistan, nor effectively investigated that possibility (see paragraphs 191 and 202 above). These conclusions, contrasted against the background of irregularities reoccurring in extradition cases against Russia, force the Court to conclude that at the very least the Russian authorities failed to comply with the indicated interim measure, by failing to act with the necessary and required diligence. 218. Evidently, the disappearance of an applicant creates a precarious situation whereby he is deprived of the protection afforded by the Convention mechanism and prevented from participating in the proceedings before the Court, and puts into question the execution of a judgment should it become final.", "219. Consequently, the Court concludes that Russia disregarded the interim measure indicated by the Court in the present case under Rule 39 of the Rules of Court and therefore failed to comply with its obligation under Article 34 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 220. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the 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 221.", "The applicant’s representatives claimed 30,000 euros (EUR) in respect of non-pecuniary damage. 222. The Government stated there was no explanation of the damage caused to the applicant, since there was no evidence that he had been transferred to Uzbekistan or subjected to treatment contrary to Article 3 of the Convention. 223. Having regard to the nature of the established violations of Article 3 of the Convention and specific facts of the present case, and acting on an equitable basis, the Court awards the applicant EUR 7,500 in respect of non-pecuniary damage.", "B. Costs and expenses 224. The applicant’s representatives also claimed EUR 6,400 for the costs and expenses incurred in the domestic proceedings and EUR 10,600 for those incurred before the Court. 225. The Government, referring to the case of McCann and Others v. the United Kingdom (27 September 1995, § 220, Series A no.", "324), alleged that the claimed costs had not been actually and necessarily incurred, and that they were rather vague and not based on supporting documents. They concluded that the claims were excessive and unsubstantiated. 226. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 6,400 covering costs and expenses in the domestic proceedings and EUR 5,000 for the proceedings before the Court, to be paid to the representatives’ bank accounts.", "C. Default interest 227. 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. VI. APPLICATION OF ARTICLE 46 OF THE CONVENTION 228. The relevant part of Article 46 of the Convention read: “Article 46.", "Binding force and execution of judgments 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....” 229. The Court notes that the present case disclosed several violations of one of the core rights protected by Article 3 of the Convention, disregard of the interim measure indicated under Rule 39 of the Rules of Court, and interference with the right to individual petition under Article 34 of the Convention.", "Furthermore the Court is mindful that the applicant’s whereabouts are still unknown and there is no indication that any progress had been reached by the national authorities in their attempts to investigate the relevant events. 230. Having regard to the above considerations, bearing in mind a precarious situation whereby the applicant is currently deprived of the protection afforded by the Convention mechanism and being concerned with ensuring binding force and execution of the present judgment, the Court finds itself compelled to examine certain aspects of the present case under Article 46 of the Convention. A. Payment of just satisfaction 231.", "In view of the fact that applicant’s whereabouts are still unknown, the Court is concerned, to begin with, about how the respondent State will discharge its obligation to pay just satisfaction. The Court has already been confronted with largely similar situations involving applicants that happened to be unreachable after their removal from the respondent State. In some of those cases, it has indicated that the respondent State must secure its payment of just satisfaction by facilitating contact between the applicants, their representatives and the Committee of Ministers (see Muminov v. Russia (just satisfaction), no. 42502/06, § 19 and point (c) of the operative part, 4 November 2010, and Kamaliyevy v. Russia (just satisfaction), no. 52812/07, § 14 and point 1(c) of the operative part, 28 June 2011).", "In other cases, the Court has ordered awards to be held by the applicants’ representatives in trust for the applicants (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 215, and point 12 of the operative part, ECHR 2012; Labsi v. Slovakia, no. 33809/08, § 155 and point 6 of the operative part, 15 May 2012; and Savriddin Dzhurayev, cited above, § 251 and point 6 of the operative part). 232. Turning to the present case, the Court observes that after the applicant’s disappearance, there was no contact between him and his representatives before the Court or his relatives.", "In view of this, the Court considers it appropriate that the amount awarded to him by way of just satisfaction be held for him in trust by his representative Mrs Yermolayeva until such time as payment to the applicant may be enforced. B. Individual remedial measures in respect of the applicant 233. The Court is of the view, however, that the obligation to comply with the present judgment cannot be limited to payment of the monetary compensation awarded under Article 41, which is only designed to make reparation for such consequences of a violation that cannot otherwise be remedied (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 250, ECHR 2000‑VIII).", "234. The Court reiterates that the primary aim of the individual measures to be taken in response to a judgment is to achieve restitutio in integrum, that is, to put an end to the breach of the Convention and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330-B). 235. The Court in mindful that the need to investigate the applicant’s disappearance had already been highlighted in the decision of the Ministers’ Deputies at their 1176th meeting, when they “strongly insisted that light be shed on this incident and on the fate of the applicant as quickly as possible” (see paragraph 96 above).", "236. While it must be left to the Committee of Ministers to supervise, on the basis of the information provided by the respondent State, the adoption of such individual measures that are feasible, timely, adequate and sufficient, the Court find it indispensable for the Russian Federation to vigilantly pursue the criminal investigation into the applicant’s disappearance and to take all further measures within its competence in order to put an end to the violations found and make reparations for their consequences. C. General measures to prevent similar violations 237. In respect of general measures, the Court reiterates that in Savriddin Dzhurayev (cited above, §§ 256-64) it stated that decisive general measures capable of resolving the recurrent problem with similar cases must be adopted without delay, including “further improving domestic remedies in extradition and expulsion cases, ensuring the lawfulness of any State action in this area, effective protection of potential victims in line with the interim measures indicated by the Court and effective investigation into every breach of such measures or similar unlawful acts” (ibid., § 258). 238.", "The Court is well aware of the legal, administrative, practical and security complexities entangled in the execution of its judgments, and therefore does not find it reasonable to develop any further the approach, which had been previously adopted in Savriddin Dzhurayev (cited above). 239. Nevertheless having regard to the present case the Court finds it important to state that in Savriddin Dzhurayev, cited above, § 259, it approvingly mentioned “the recent significant development of the domestic jurisprudence undertaken by the Supreme Court of the Russian Federation in its Ruling no. 11 of 14 June 2012”. The Ruling was considered as the tool allowing the judiciary to avoid such failings as those criticised in that judgment and further develop emerging domestic case-law that directly applies the Convention requirements through judicial practice.", "Despite finding in the present case that the Supreme Court itself fell short of applying its Ruling no. 11 of 14 June 2012 (see paragraph 157 above), the Court still maintains its opinion that a genuine and rigorous application of that Ruling by all Russian courts is capable of improving domestic remedies in extradition and expulsion cases. VII. APPLICATION OF AN INTERIM MEASURE UNDER RULE 39 OF THE RULES OF COURT 240. On 11 March 2013 the Acting President of the First Section indicated to the respondent Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited to Uzbekistan until further notice.", "The Government in their submissions stated that they had taken all the necessary steps to comply with the measure indicated by the Court. 241. Having regard to the fact that the applicant’s whereabouts are still unknown, the other circumstances of the present case, the established violations of the Convention rights, and in pursuit of the interests of the proper conduct of the proceedings, the Court considers it indispensable to maintain the application of the previously indicated measure under Rule 39 of the Rules of Court until such time as the present judgment becomes final. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints under Article 3 of the Convention admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 3 of the Convention on account of the authorities’ failure to duly examine the applicant’s claims that he risked a real and imminent risk of torture and ill-treatment in Uzbekistan; 3. Holds that there has been a violation of Article 3 of the Convention on account of exposing the applicant to a real and imminent risk of torture and ill-treatment by authorising his extradition to Uzbekistan; 4. Holds that there has been a violation of Article 3 of the Convention on account of the failure of the national authorities to put in place protective measures against the risk of exposure to torture and ill-treatment after the applicant’s release from the detention facility; 5. Holds that there has been a violation of Article 3 of the Convention on account of the lack of an effective investigation into the applicant’s disappearance; 6. Holds that there has been no violation of Article 3 of the Convention on account of the alleged involvement of the national authorities in the applicant’s disappearance; 7.", "Holds that the respondent State has disregarded the interim measure indicated by the Court under Rule 39 of the Rules of Court and therefore failed to comply with its obligations under Article 34 of the Convention. 8. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention,, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to be held for him in trust by his representative Mrs Yermolayeva until such time as payment to the applicant may be enforced; (ii) EUR 11,400 (eleven thousand four hundred euros), plus any tax that may be chargeable to the applicant, with EUR 6,400 (six thousand four hundred euros) to be paid to his representative Mr Gladkikh’s bank account and EUR 5,000 (five thousand euros) to his representative Mrs Yermolayeva’s bank account; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 9. Dismisses the remainder of the applicant’s claim for just satisfaction. 10.", "Decides to continue to indicate to the Government that it is desirable in the interests of the proper conduct of the proceedings to maintain application of previously indicated measure under Rule 39 of the Rules of Court until such time as the present judgment becomes final or until further order. Done in English, and notified in writing on 23 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]

[ "FOURTH SECTION CASE OF DINU v. ROMANIA (Application no. 64356/14) JUDGMENT STRASBOURG 7 February 2017 FINAL 07/05/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dinu v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: András Sajó, President,Vincent A. De Gaetano,Nona Tsotsoria,Krzysztof Wojtyczek,Egidijus Kūris,Iulia Motoc,Marko Bošnjak, judges,and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 17 January 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 64356/14) 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 Florian Dinu (“the applicant”), on 17 September 2014. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Romanian Ministry of Foreign Affairs. On 16 March 2016 the President of the Section granted the applicant leave to represent himself, pursuant to Rule 36 § 2 of the Rules of Court.", "3. Relying in substance on Article 3 of the Convention, and expressly on Articles 6 and 13 of the Convention, the applicant alleged that he had been ill‑treated by police officers, and that the subsequent criminal investigation into the incident had been ineffective, for reasons which included the fact that the Balş District Court had examined his complaint in private and without summoning the parties. 4. On 15 April 2015 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1972 and lives in Șopârlița. A. The parties’ version of events 1. The applicant 6.", "On 30 June 2013 the applicant’s sister called the emergency services and reported that the applicant was causing a disturbance in respect of his family (a făcut scandal ȋn familie). Two police officers from the Bobiceşti police, C.B. and M.D.B., were dispatched to the applicant’s home. 7. Once they arrived at the applicant’s home, the police officers proceeded to handcuff him in order to take him to the police station, because they claimed that he was aggressive towards them.", "The officers immobilised him and pushed him to the ground with his face down, even though he was not resisting arrest. They handcuffed him with his hands behind his back, dragged him towards a police car, and banged his head against a metal gate owned by a neighbour, M.V. 2. The Government 8. The Government acknowledged that the police officers had put the applicant to the ground and had forcibly handcuffed him.", "They stated, however, that the applicant’s allegations of ill-treatment and of being thrown against a metal gate by the police officers were contradicted by the available evidence. The evidence proved that his injuries were not caused deliberately by the police officers. B. Criminal investigation into the incident 9. On 30 June 2013 one of the police officers who had been dispatched to the applicant’s home produced a contravention report, and fined the applicant 1,000 Romanian lei (RON – approximately 230 euros (EUR)).", "According to the report, the applicant had offended his father, had been inebriated, and had admitted his actions. The report was signed by the applicant. 10. From 1 to 3 July 2013 the applicant was in Bagdasar‑Arseni Emergency Hospital in Bucharest. According to a medical report produced upon his discharge from hospital, he was diagnosed with a cervical spine injury and a minor cranial cerebral trauma.", "11. On 3 July 2013 the applicant’s father lodged a criminal complaint against police officers C.B. and M.D.B., on the grounds that they had physically abused his son. On 12 September 2013 the applicant took up (şi‑a ȋnsuşit) the criminal complaint lodged by his father against the police officers. 12.", "On 14 August 2013 the Olt prosecutor’s office interviewed the applicant’s father with regard to the circumstances of the case. He stated, inter alia, that his son had not been suffering from a psychological illness. On the day of the incident the applicant had been inebriated and had made a scene, but he had not hurt either of his parents. Neither parent had called the police, and the applicant’s father was unaware of who could have done so. The police officers had produced a contravention report in the applicant’s name and had asked him to sign the report without informing him why.", "The applicant had complied and had signed the contravention report. Subsequently, he had agreed to accompany the police officers to the hospital, but had informed them that he needed to go inside the house to get dressed. The police officers had stopped him from entering the house, pushed him to the ground with his face down, and handcuffed him. Afterwards, they had dragged him away and banged his head against a metal gate owned by M.V. When they had put the applicant in the ambulance he had had blood on his face, and they had left him in the ambulance face down and wearing handcuffs.", "The following day, Dr B. from the psychiatric unit of Slatina Emergency Hospital had informed him (the applicant’s father) that his son had been seriously beaten, and that he had been transferred to a different hospital because he had suffered a cervical spine injury. 13. On 12 September 2013 the Olt prosecutor’s office interviewed the applicant. In his statement, inter alia, he asked the investigating authorities to also interview his mother and N.B. with regard to the incident.", "He also stated that he had signed the contravention report produced by the two police officers, even though he had not been informed by them about its content. One of the police officers had travelled with him in the ambulance. That officer had refused to remove his handcuffs and had punched him in the face. 14. On the same date the Olt prosecutor’s office interviewed both the applicant’s mother and N.B.", "His mother stated, inter alia, that the police officers had not allowed her son to get dressed, had chased him through the courtyard, and had tripped him. After he had fallen to the ground they had twisted his hands behind his back and handcuffed him. Because the applicant had been agitated after he had been handcuffed, and had refused to accompany the police officers, they had repeatedly banged his head against the gate owned by M.V. One of the police officers had travelled with the applicant in the ambulance and had continued to beat him until he had been asked by the medical staff in the ambulance to stop the violence. 15.", "N.B. stated, inter alia, that he had been on the street on the day of the incident and had seen two police officers handcuff the applicant. Afterwards, they had grabbed him by his hands and had banged his head repeatedly on the gate owned by M.V. N.B. further stated that he had worked with the applicant, and he had not been suffering from any psychological condition or drinking alcohol.", "16. On an unspecified date in 2013 the Olt prosecutor’s office asked the Olt County Forensic Medical Service to examine the available medical documents and produce a forensic expert report in the case. The prosecutor’s office asked the forensic service to determine: the applicant’s injuries and their cause; the number of days of medical care needed for healing; if there was a direct link between the applicant’s injuries and their cause; and if the injuries could also have been caused by something other than intentional force. 17. On 31 October 2013 the Olt County Forensic Medical Service examined the applicant and the available medical documents.", "18. On 18 November 2013 the Olt County Forensic Medical Service produced a forensic expert report. It noted that on the day of the incident the applicant had been transferred by ambulance to Slatina Emergency Hospital because he had been extremely agitated and his breath had smelled of alcohol. Subsequently, he had been transferred to the hospital’s psychiatric unit and had been sedated. The following day he had started complaining of pain in his cervical spine area, and of paralysis of his right hand.", "He had been examined and had been diagnosed with a cervical spine injury. The interdisciplinary medical examination carried out by, inter alia, a neurologist, a surgeon and an orthopaedist had not identified any signs of trauma. Eventually, the applicant had been admitted to a specialist hospital and had been operated on in relation to the cervical spine injury. 19. The forensic report concluded that the applicant’s injury could have been caused on 30 June 2013.", "Most probably, the injury had been caused by a forced rotation movement of the neck when the applicant had been immobilised and handcuffed. No signs of trauma specific to intentional force had been identified on the applicant’s head, body or limbs during the interdisciplinary examinations carried out after his admissions to Slatina Emergency Hospital and Bagdasar-Arseni Emergency Hospital. The applicant had needed seventy to eighty days of medical care from the moment of his injury. 20. On 10 January 2014 a prosecutor attached to the Olt prosecutor’s office decided not to open a criminal investigation against the two police officers for abusive behaviour, on the grounds that their actions had lacked the elements of an offence.", "The prosecutor held that a third party had called the emergency services at the applicant’s sister’s request, because the applicant, who had a history of psychological problems and who had been drunk, had been aggressive and had endangered his own life and safety and that of his family. Once police officers C.B. and M.D.B. had arrived at the scene of the incident, they had asked the applicant to calm down and accompany them to the police station. The applicant had refused the police officers’ demand, and had become aggressive and had verbally abused them.", "21. The prosecutor further held that the applicant’s father had confirmed the fact that the applicant had been drunk at the time of the incident. However, his statements that his son had not been aggressive and that he had been unaware of the identity of the person who had called the emergency services had not been confirmed by the rest of the evidence adduced in the file. Moreover, in such a case, it would have been highly unlikely that an individual would call the emergency services for no reason. According to the prosecutor, those arguments were also supported by the fact that, in the medical report produced by the psychiatric unit of Slatina Emergency Hospital, where the applicant had been taken after the incident, it was stated that the applicant was suffering from a polymorphic personality disorder, which was aggravated by alcohol consumption.", "Also, his father had acknowledged that the applicant would generally act normally when he was sober, but transformed into a verbally and physically aggressive person once he drank alcohol. 22. The prosecutor also held that the applicant was known in his village as a violent and aggressive person with psychological problems. He had been investigated in relation to several other criminal files concerning alleged violent acts committed against the members of his family, and for theft, but the investigations had been discontinued after his parents had withdrawn their complaints. 23.", "The prosecutor noted that, according to the reports describing the police officers’ intervention and the use of force and handcuffs, once the officers had arrived at the applicant’s home they had realised that he was drunk, and they had been forced to immobilise him and take him to Slatina Emergency Hospital. Also, according to the available medical documents, the applicant had been transferred to the hospital by ambulance, he had been extremely agitated, and his breath had smelled of alcohol. Subsequently, he had been transferred to the hospital’s psychiatric unit and had been sedated. The following day he had started complaining of a cervical spine injury, which had eventually required surgical treatment. In addition, according to the information provided by the psychiatric unit of Slatina Emergency Hospital, since 1998 the applicant had repeatedly been admitted to the unit for similar reasons.", "24. The prosecutor held that the conclusions of the forensic expert report produced on 18 November 2013 contradicted N.B.’s and the applicant’s parents’ testimonies that the applicant’s head had repeatedly been banged against M.V.’s gate by the police officers. 25. By referring to Article 34 §§ 1 and 2 of Law no. 218/2002, but expressly citing the relevant provisions of Article 33 §§ 1 and 2 of the same aforementioned Law, the prosecutor further held that, given the available evidence, the police officers had not injured the applicant deliberately.", "His injuries could have been the result of a forced rotation of his neck, which could have happened at the moment when he had been immobilised by the officers. Also, the police officers had stated that they had not hurt the applicant, and had confirmed that he had been drunk, and that he had been transported and admitted to hospital. 26. The applicant challenged the decision of 10 January 2014 before a more senior prosecutor. 27.", "On 29 January 2014 a more senior prosecutor attached to the Olt prosecutor’s office dismissed the applicant’s challenge as ill-founded, and upheld the decision of 10 January 2014. 28. The applicant appealed against the decision of 29 January 2014 before the Slatina District Court. In his written submissions he argued that the forensic expert report produced in the case was incomplete and superficial. The report had failed to determine if his injury would have been possible considering the physical characteristics of the parties involved in the incident and the standard procedure which had to be followed in cases of handcuffing.", "Also, the report had not explained how the forced rotation of his neck had happened, as he would not have made such a painful movement instinctively. In addition, the prosecutor’s office had wrongfully dismissed his parents’ and N.B.’s testimonies, as those witnesses had confirmed the police violence, and the forensic report had acknowledged that his injury had most probably been caused as a result of the forced rotation of his neck. Consequently, the applicant argued that the available forensic expert report had to be complemented by another report (completat), and that the second report had to be submitted for the approval of a higher review commission. 29. The applicant further argued that none of the circumstances set out in sections 1 and 2 of Article 34 of Law no.", "218/2002 had applied in his case. Also, even assuming that he had resisted immobilisation, as claimed by the authorities, the handcuffing measure could only have been taken against him if there had been a reasonable suspicion that his behaviour could endanger the police officers’ physical integrity or lives. Even assuming that such a situation had existed, the police officers had still had a lawful duty to use their handcuffs without seriously injuring him. 30. Lastly, the applicant contended that the prosecuting authorities’ conclusion that the police officers had not hurt him intentionally had been ill‑founded, given that the officers had indirectly acted with intent.", "In particular, they had foreseen the result of their actions, and even if they had not intended that result, they had accepted that it was a possibility. 31. On 12 March 2014 the Slatina District Court referred the case to the Balş District Court for examination. 32. By a final judgment of 9 April 2014 the Balş District Court, sitting in private as a pre-trial chamber judge, and without the parties being present, dismissed the applicant’s appeal against the more senior prosecutor’s decision and upheld that decision.", "It noted that it had notified the parties about the date of the hearing, but they had failed to submit written observations. The court held that the Olt prosecutor’s office had correctly established that officers C.B. and M.D.B. had not committed the offence of abusive behaviour. Also, the available forensic report did not need to be complemented by an additional report or submitted for approval.", "The forensic report had examined extensively the available medical evidence, and had concluded that no evidence of trauma as a result of deliberate force had been identified on the applicant’s head, body or limbs during the multidisciplinary examinations. 33. The court further held that, according to the available medical evidence, the applicant had been in an extreme state of psychomotor agitation, and the cranial X-ray had not shown any post-traumatic injury of the skull. Consequently, the court considered that the existence of a minor cranial cerebral trauma had not contradicted the conclusions of the forensic medical report, which had taken that trauma’s presence into account. 34.", "The court also considered that it had been unnecessary for the forensic expert report to explain how the forced rotation of the applicant’s neck had happened, given that the victim would not have made such movements instinctively, because he had been drunk and extremely agitated at the time of the incident, and his behaviour could not have been compared with the normal behaviour of another person. 35. The court further considered that the prosecutor had correctly dismissed the testimonies in the case, given that, according to the forensic expert report, no trauma as a result of deliberate force had been identified, and the forensic pathologist had had the opportunity to consider the possibility of the applicant’s head being banged repeatedly against a metal gate. 36. The court held that it was true that the police officers had had a duty to use their handcuffs without seriously injuring the applicant.", "However, the applicant’s injuries had not been the direct result of the police officers’ actions. They had occurred in circumstances where he had been drunk, violent and extremely agitated, and therefore the police officers could not have controlled their actions towards him. 37. The court also held that the violent actions towards the applicant had been carried out by the police officers within the framework of their work duties. In addition, the actions had been lawfully justified in order to alleviate the danger the applicant had represented to society and himself, given that he had been drunk, agitated and aggressive, and had been suffering from an organic personality disorder as a result of drinking alcohol.", "The police officers had not acted with the intent of hitting or hurting the applicant. His injuries had been the result of his immobilisation and handcuffing measures to stop his aggressive actions and transport him to the hospital. Therefore, the police officers’ actions had been justified. 38. On 22 October 2014 the applicant underwent a medical examination at a private medical establishment, the Medical Civil Association for the Brain.", "According to a medical report produced by that establishment, the applicant had an organic personality disorder with “polymorphic decompensation” (decompensare polimorfă). The report noted that the applicant’s symptoms included a moderate intrapsychological tension, concentration difficulties, mixed insomnia and a low resilience to frustration and annoyances. It further noted, inter alia, that the applicant had repeatedly been admitted to psychiatric hospitals, had poor social and family support, and persistent symptoms for which he was receiving treatment. 39. On 6 January 2015 the applicant underwent a medical examination at Schitu-Greci Psychiatric Hospital, because he was suffering from psychomotor agitation, a conflicted personality disorder, headaches, dizziness and mixed insomnia.", "According to a medical report produced by the hospital, he was diagnosed with an organic personality disorder and received treatment for his condition. The report also noted that alcohol and coffee consumption, as well as conflict, amounted to risk factors in relation to the applicant’s medical condition. 40. On 26 May 2015 a neurologist attached to Bagdasar‑Arseni Emergency Hospital in Bucharest produced a medical report in respect of the applicant’s medical condition, following his operation for his cervical spine injury. According to the report, inter alia, the applicant continued to experience movement difficulties.", "Consequently, the report considered it appropriate that the applicant’s ability to work be assessed by a local expert commission, with a view to his potential retirement. 41. On 8 June 2015 the Caracal branch of an office specialising in expert medical assessment of a person’s ability to work, which was attached to the Olt Retirement Agency, acknowledged that the applicant was suffering from a serious functional deficiency and had completely lost his ability to work. II. RELEVANT DOMESTIC LAW 42.", "The relevant provisions of the Romanian Civil Code on civil liability in tort read: Article 1349 “1. Any individual has a duty to observe the rules of conduct required by law ... and not to interfere by his actions or inaction with the rights and legitimate interests of others. 2. A person with legal capacity who breaches the aforementioned duty is liable for all the consequent damage caused and must make full reparation for it. 3.", "In circumstances expressly provided for by law a person must make reparation for the damage caused by the act of another person, objects or animals under his control ...” 43. The relevant provisions of Law no. 218/2002 on the organisation and operation of the Romanian police read: Article 33 “1. Police officers may use ... handcuffs ... and other means of restraint which do not endanger life or cause serious bodily harm for deterring, preventing and neutralising the aggressive actions of individuals who disturb public order and peace, in the case of actions that cannot be prevented or stopped by employing other means. 2.", "The means described in section 1 may be used against individuals who: (a) carry out actions which endanger another person’s physical integrity, health or property; ... (c) abuse individuals who occupy positions which involve the exercise of public authority; (d) resist or do not obey, by any means, the lawful demands of police officers, only if there is a reasonable suspicion that they may endanger the lives or physical integrity of police officers by their actions ... 3. With the exception of extreme cases, the means described in section 1 shall be used gradually against people carrying out aggressive actions, after they are forewarned that such means shall be used and are given the necessary time to desist and comply with the police officers’ lawful demands... 4. The use of the means described in section 1 may not exceed the real need to prevent or neutralise aggressive actions.” 44. The relevant provisions of the former Romanian Criminal Code concerning abusive behaviour read: Article 250 “1. Offensive statements towards a person by a public servant during the exercise of his duties is punishable by imprisonment ... or a fine.", "... 5. Serious physical harm caused by a public servant in the circumstances described in paragraph 1 is punishable by imprisonment ...” 45. On 1 February 2014 a new Code of Criminal Procedure (“the CCP”) entered into force in Romania. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 46.", "Relying in substance on Article 3 of the Convention, and expressly on Articles 6 and 13 of the Convention, the applicant alleged that on 30 June 2013 he had been ill-treated by police officers, and that the subsequent criminal investigation into the incident had been ineffective for reasons which included the fact that the Balş District Court, in particular the pre‑trial chamber judge, had examined his complaint in private and without summoning the parties. 47. The Court reiterates that it is the master of the characterisation to be given in law to the facts of a case and is not bound by the characterisation given by an applicant or a government (see, for instance, Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012). 48.", "Having regard to the facts of the present application, the Court considers that the case must be examined solely under the substantive and procedural heads of Article 3 of the Convention (see Şercău v. Romania, no. 41775/06, § 62, 5 June 2012). This provision reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. The parties’ submissions (a) The Government 49. The Government submitted that the applicant had failed to exhaust the available domestic remedies.", "Given that the decision of the domestic authorities not to open a criminal investigation against the police officers had been based on the involuntary character of the aggression, the applicant could have initiated civil proceedings in order to obtain redress. 50. The Government submitted that the applicant’s injury had not been inflicted deliberately by the police officers. Consequently, they asserted that it could reasonably be argued that civil damages would in fact constitute an effective remedy in respect of ill-treatment in the absence of guilt, or ill‑treatment by a person who had acted with the lowest degree of culpability, and in circumstances where the victim had been aggressive and where a thorough criminal investigation had established a lack of intent. 51.", "The Government argued that, if the applicant had initiated civil proceedings, a civil court would have examined the facts of the case by applying the standards specific to civil-law cases. Thus, even if the investigating authorities had not established the police officers’ criminal liability, this would not have prevented the civil courts from establishing the officers’ civil liability and awarding the applicant damages. According to well‑established civil-law principles, a person who had caused damage to other people might be held liable and forced to pay compensation, even if that person had acted with the lowest degree of culpability. 52. The Government contended that the procedure provided for by the Romanian Civil Code had been adequate, efficient and effective.", "Also, it would not have been time-barred until June 2018. The applicant’s civil claims could also have covered the deterioration in his health, and would not have represented an excessive burden for him, because he could have used copies of the documents from the criminal file, and he would have been exempted from paying judicial tax. (b) The applicant 53. The applicant submitted that exhausting all the available remedies would have been unnecessary in his case, as the investigation had not been thorough and the witness testimonies had been dismissed. 2.", "The Court’s assessment 54. The Court reiterates that it has already established in the context of alleged excessive use of force by the police during an arrest, that the acts of State agents in breach of Article 3 of the Convention cannot be remedied exclusively through an award of compensation to the victim (see Holodenko v. Latvia, no. 17215/07, § 57, 2 July 2013), as such a remedy is aimed at awarding damages rather than identifying and punishing those responsible (see Balajevs v. Latvia, no. 8347/07, § 73, 28 April 2016). 55.", "In any event, the Court notes that the Government have not submitted any examples of domestic case-law dealing with compensation claims for damage caused as a result of the unlawful acts of State agents, and in particular examples concerning claims resulting from the allegedly excessive use of force by the police during arrest (contrast Holodenko, cited above, § 57). 56. The Court therefore dismisses the Government’s objection regarding non-exhaustion of domestic remedies. 57. 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 58.", "The applicant submitted that he had not been violent and had not resisted the police officers. Their behaviour had been disproportionate, unlawful and unjustified. Also, they could have restrained him without deliberately hurting him. He contended that the two police officers had assessed his situation superficially based on his medical history, and they had called an ambulance unnecessarily. 59.", "The applicant argued that the criminal investigation had not explained the exact cause of his injury, and had dismissed his claims without providing reasons. Also, he contested the authorities’ conclusion that the police officers had not acted with intent, given that they had acted unlawfully and should have realised that their actions would injure him. They should have acted with more restraint, given that they had outnumbered him, been fitter than him and been better equipped. 60. The applicant contended that the prosecuting authorities had unjustifiably ignored his medical situation, and had lacked impartiality.", "Also, they had refused to take into account the witness testimonies confirming the ill-treatment he had been subjected to by the police officers. 61. The applicant submitted that his health had worsened, both physically and mentally, and that he was cared for by his elderly parents. (b) The Government 62. The Government submitted that an assessment of the factual circumstances of the case should rely on the findings of the domestic judicial authorities.", "They argued that, in the applicant’s case, it had been acknowledged that he had been forcibly handcuffed by the police officers on 30 June 2013, after they had been alerted that he posed a danger to his relatives and public order. 63. The Government contended that the injuries suffered by the applicant during his immobilisation had not been caused intentionally by the State agents. The injuries had been the involuntary result of a lawful operation aimed at protecting the applicant and his relatives from his aggressive behaviour. Also, to a certain extent, the applicant’s medical history and his criminal record had justified the firm intervention by the police.", "64. The Government submitted that the police officers’ decision to immobilise and handcuff the applicant had not been taken hastily, and their actions had been based on an assessment of the facts, and had complied with the relevant legal provisions. They had been fully aware of the applicant’s criminal and psychological history, which in itself had rendered the need for additional caution when they arrived at his home. Also, when the applicant had been taken to hospital he had been aggressive, agitated, and had smelled of alcohol. 65.", "The Government submitted that the domestic authorities had investigated the circumstances of the incident of 30 June 2013 seriously and thoroughly. They had adduced a substantial amount of evidence for the file, such as the testimonies of witnesses and the parties, medical and criminal records, as well as a forensic expert report. Three witnesses had been interviewed on the applicant’s behalf. The authorities had also taken statements from the two police officers involved in the incident, and the officers had denied the applicant’s accusations. 66.", "The Government argued that the witness testimonies confirming that the applicant had been thrown against a metal gate had been made by individuals interested in the outcome of the investigation, and had been contradicted by a well-reasoned forensic report concluding that the applicant had not had injuries on his body which had been caused deliberately. The report had also concluded that his injury had been caused by an overstretch of his cervical spine during the incident. 67. The Government submitted that the domestic authorities had taken numerous procedural steps in order to clarify the circumstances of the case, and the mere fact that the applicant disagreed with the outcome of the investigation could not render the investigation inadequate or ineffective. Also, according to the relevant legal provisions in force at the material time, a new forensic expert report could have been ordered if the investigating authorities or the court had had doubts in respect of the clarity of the conclusions of the existing report.", "2. The Court’s assessment (a) General principles 68. The relevant principles concerning the State’s obligation inherent in Article 3 of the Convention in cases of police violence, including in circumstances of allegations that the force used by the police during an arrest was excessive, are set out in Bouyid v. Belgium ([GC] no. 23380/09, § 81, 28 September 2015) and Samachişă v. Romania (no. 57467/10, §§ 60‑64, 16 July 2015).", "(b) The application of those principles to the instant case (i) Alleged ill-treatment by the police 69. The Court notes that some of the applicant’s allegations in his statement given to the investigating authorities concerning the injuries he sustained at the hands of the police, namely being punched in the face in the ambulance which transported him to the hospital, are not supported by any available medical evidence. That being so, both the medical evidence produced shortly after the incident and the subsequent forensic expert report attested that the applicant had suffered a minor cranial cerebral trauma and a cervical spine injury, and that the latter injury had required seventy to eighty days of medical care. 70. In their submissions, the Government relied on the findings of the domestic authorities.", "Consequently, they did not dispute that on 30 June 2013, at the time of the incident, the applicant had been under the control of State agents, or that the injuries he had suffered had been the result of the police officers’ actions. 71. However, the parties disagreed about how and when the applicant’s injury had actually come about. The Government submitted that the injuries had been inflicted during his handcuffing, as a result of his obstinate resistance, whilst the applicant argued that they had been sustained as a result of ill-treatment by the police, both during and after his handcuffing. 72.", "Although the Court is not in a position to determine the exact timing and cause of the applicant’s injuries, it remains to be considered whether the force used by the police in his case was necessary and proportionate. 73. The Court notes that, according to the available evidence, particularly the witness statements, the contravention report and the conclusions of the prosecutor’s office (see paragraph 20 above), the applicant’s initial conduct during his conversations with the police officers, although uncooperative and agitated, was neither violent nor disproportionate. 74. The violence erupted when the police officers asked the applicant to accompany them to the police station, at which point he did not comply with their demand.", "75. The Court further notes that there is no evidence in the file that the two police officers involved in the incident were injured in any way by the applicant. However, it appears that the applicant was inebriated and agitated both before and after the police officers arrived at his home, and that he showed some resistance to them. 76. In these circumstances, the Court is prepared to accept that some form of restraint was needed in order to avoid further outbursts from the applicant, and to prevent him from becoming physically violent.", "However, even if his restraint as such was rendered necessary by his obstinate behaviour, the domestic authorities did not provide sufficient explanation on whether the measure was proportionate. 77. In this connection, the Court notes that the two officers who were present at the applicant’s home in order to control the situation were fully trained and equipped. Moreover, it notes that the Government’s account of the arrest, which relied on the findings of the domestic investigation, is quite general. It does not determine the exact sequence of events, or the individual roles of the particular officers in restraining the applicant.", "Likewise, it does not explain which specific techniques were applied, and how they correlated to the applicant’s particular actions (see, Danilov v. Ukraine, no. 2585/06, § 65, 13 March 2014, and Klaas v. Germany, judgment of 22 September 1993, §§ 13, 17 and 30-31, Series A no. 269). Furthermore, while the medical evidence found that the applicant’s more serious injury had probably been caused by a forced rotation movement of the neck, and the domestic court hinted that the rotation had been the result of the applicant’s voluntary movement, the authorities dismissed the applicant’s request for additional expert evidence that could have dispelled any speculation or doubt on whether a person, even one in the applicant’s condition, could have withstood a voluntary rotation of his neck to such an extent as to incur such a serious injury without immediately desisting from such a rotation. 78.", "The Court also notes that none of the available evidence indicates that the applicant resisted being handcuffed to such an extent as to justify such a severe response – a response which necessitated seventy to eighty days of medical care and caused him a serious functional deficiency, leaving him unable to work. 79. Consequently, the Court considers that neither the domestic authorities investigating the case nor the Government have convincingly shown that, in the particular circumstances of the present case, the force employed by the police officers against the applicant was proportionate (see, mutatis mutandis, Sarigiannis v. Italy, no. 14569/05, § 65, 5 April 2011 and contrast Ðekić and Others v. Serbia, no. 32277/07, § 28, 29 April 2014).", "Consequently, it considers that the measures taken against the applicant amounted to inhuman and degrading treatment. 80. Accordingly, there has been a breach of Article 3 of the Convention under its substantive limb. (ii) Alleged ineffectiveness of the investigation 81. The Court observes that, following the applicant’s complaint, the domestic authorities carried out an inquiry into his allegations of ill‑treatment.", "The Court accepts that the authorities reacted to the complaints of the applicant and his family; it is not, however, convinced that their response to his allegations was sufficiently thorough or “effective” to meet the requirements of Article 3. 82. In this connection, the Court notes that, although the applicant’s father lodged a criminal complaint against the two police officers three days after the incident of 30 June 2013, no other steps to clarify the circumstances of the case, except interviewing the applicant’s father, seem to have been taken by the authorities before 12 September 2013, when the applicant took up his father’s criminal complaint against the officers and the authorities proceeded to interview two other witnesses to the incident at the applicant’s request. In this connection, the Court reiterates that it has repeatedly underlined the importance of contacting and questioning witnesses in the immediate aftermath of such incidents, when memories are fresh (see, for example, Doiciu v. Romania, no. 1454/09, § 62, 5 May 2015).", "Furthermore, a forensic expert report was produced in the case four and a half months after the incident, and more than two months after the applicant had taken up his father’s criminal complaint against the officers. 83. The Court also notes that in examining the applicant’s case the authorities dismissed his request for expert evidence on whether a person could have been capable of a voluntary rotation of his neck to such an extent as to incur such a serious injury without immediately desisting from such a rotation, even though an in-depth examination of the matter would have alleviated any speculation or doubt with regard to the exact circumstances of the incident involving him. 84. The Court further notes that the domestic authorities acknowledged that the police officers had immobilised and handcuffed the applicant, and considered that the officers had acted within the framework of their work duties.", "However, while in examining the circumstances of the case the domestic authorities automatically applied the relevant legal provisions, they did not consider the question of the proportionality of the force used by the police officers (see Petruş Iacob v. Romania, no. 3524/05, § 49, 4 December 2012). 85. The Court considers that the examination of the question of the proportionality of the force used by the police officers would have been even more important, given that the relevant domestic legislation relied on by the domestic authorities allowed for such interventions in various situations, and required that certain procedural steps be observed in the process. 86.", "In view of the above findings, the Court considers that the investigation cannot be said to have been thorough and “effective”. Accordingly, there has been a violation of Article 3 of the Convention under its procedural limb. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 87. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the 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 88. The applicant claimed 20,000 euros (EUR) in respect of pecuniary damage for the significant deterioration in his physical and intellectual abilities following his ill-treatment by the police officers. In addition, he claimed a pension for life of EUR 700 per month (pensie viageră), because from the moment he had been ill-treated by the police officers he had needed a special carer (ȋnsoțitor special). He submitted: several receipts for fuel (allegedly purchased during his journeys between his village and Bucharest for medical examinations) and tests, amounting to RON 1,182 (approximately EUR 275); a restaurant receipt for a meal allegedly purchased for the witnesses who had testified on his behalf, amounting to RON 59 (approximately EUR 14); and a receipt for a magnetic resonance imaging scan, amounting to RON 480 (approximately EUR 112). He also claimed EUR 700,000 in respect of non-pecuniary damage for the treatment he had been subjected to by the authorities at the time of his arrest.", "89. The Government argued that the documents submitted by the applicant in support of his just satisfaction claims were only travel and restaurant receipts, which could only support his claims for costs and expenses. Moreover, the applicant’s diminished physical and intellectual capacity and his inability to work meant that Law no. 448/2006 on the rights of people with disabilities was applicable. That law contained provisions in respect of the financial benefits which individuals with disabilities could enjoy, including financial provision for special carers.", "Furthermore, the Government argued that the applicant’s claims in respect of non-pecuniary damage were not justified by the circumstances of the case, and in any event were excessive. 90. The Court notes that the applicant supported part of his claim for pecuniary damage by submitting travel and restaurant receipts. Like the Government, the Court considers that those documents are better suited to support the applicant’s claim for costs and expenses. Moreover, the Court notes that the applicant has not submitted any medical documents attesting that he has been prescribed or advised to have a special carer and there is no evidence in the file that he initiated proceedings by relying on the relevant domestic legislation in order to obtain such aid.", "It therefore rejects this part of the applicant’s claim in respect of pecuniary damage. He did, however, submit an invoice totalling EUR 112 for a magnetic resonance imaging scan, and the Court therefore awards him that amount in respect of pecuniary damage, plus any tax that may be chargeable. 91. The Court also accepts that the applicant suffered some non‑pecuniary damage as a result of the infringement of his rights under Article 3 of the Convention. Making an assessment on an equitable basis, it awards the applicant EUR 11,700 under this head, plus any tax that may be chargeable.", "B. Costs and expenses 92. The applicant also claimed EUR 1,250 for costs and expenses incurred in respect of legal assistance and legal proceedings. In addition to the transport and restaurant receipts mentioned above (see paragraph 88), he also submitted invoices for a lawyer’s fee totalling RON 1,000 (approximately EUR 233), and two receipts for translation services totalling RON 233 (approximately EUR 54), paid for by his father. 93.", "The Government argued that the applicant had not submitted any relevant documents to support his claim for the lawyer’s fee. 94. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, having regard to the above criteria, the supporting documents submitted, the nature of the issues dealt with, the fact that the applicant was granted permission to represent himself in the case, and the fact that he must have incurred some travel and translation expenses, the Court considers it reasonable to award the sum of EUR 329 to cover the applicant’s costs and expenses. C. Default interest 95.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 3 of the Convention both under its substantive and procedural limbs; 3. Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the national currency of the respondent State at the rate applicable on the date of settlement: (i) EUR 112 (one hundred and twelve euros), plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 11,700 (eleven thousand seven hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 329 (three hundred and twenty-nine 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; 4.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 7 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea TamiettiAndrás SajóDeputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF WILLROIDER v. AUSTRIA (Application no. 22635/09) JUDGMENT STRASBOURG 5 December 2013 This judgment is final but it may be subject to editorial revision. In the case of Willroider v. Austria, The European Court of Human Rights (First Section), sitting as a Committee composed of: Linos-Alexandre Sicilianos, President,Elisabeth Steiner,Ksenija Turković, judges, and André Wampach, Deputy Section Registrar, Having deliberated in private on 12 November 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 22635/09) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Gerhard Willroider (“the applicant”), on 2 April 2009.", "2. The applicant was represented by Mr H. Pochieser, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of European and International Affairs. 3. On 30 May 2011 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1963 and lives in Leithen. 5. In 2007, the applicant was recipient of emergency relief payments (Notstands­hilfe) under the Unemployment Insurance Act (Arbeitslosen­versicherungs­gesetz).", "6. On 18 September 2007 the Salzburg Labour Market Service (Arbeitsmarkt­service) withdrew payments of emergency relief for eight weeks finding that the applicant had thwarted an employment offer. The applicant appealed contesting the establishment of facts by the authority and requesting the taking of further evidence. 7. On 24 October 2007 the Salzburg Regional Labour Market Service, without holding an oral hearing, dismissed the appeal as unfounded.", "It found that the applicant’s information to the potential employer to be only available for work until 4 p.m. due to continuing education that the applicant followed at the time was effectively a frustration of an attempt to find employment. 8. The Constitutional Court (Verfassungsgerichtshof) dismissed the applicant’s request for legal aid to lodge a complaint on 28 February 2008. 9. However, after having been awarded legal aid, the applicant lodged a complaint with the Administrative Court (Verwaltungs­gerichtshof), explicitly requesting an oral hearing.", "10. On 2 July 2008 the Administrative Court dismissed the applicant’s complaint as unfounded. On the merits it found that the applicant had not acted sufficiently seriously interested in the employment offer at issue and therefore had thwarted an attempt to find employment. The withdrawal of the emergency relief by the authorities, based on the Unemployment Insurance Act, had therefore not been unlawful. With regard to the decision not to hold an oral hearing the Administrative Court stated that, since the relevant facts had already been established and since the legal questions were sufficiently answered by existing case-law, an oral hearing had not been necessary.", "11. That judgment was served on the applicant’s counsel on 3 October 2008. II. RELEVANT DOMESTIC LAW 12. Section 39 § 1 of the Administrative Court Act (Verwaltungs­gerichts­hofgesetz) provides that the Administrative Court is to hold a hearing after its preliminary investigation of the case where a complainant has requested a hearing within the time-limit.", "Section 39 § 2 (6) provides however: \"Notwithstanding a party’s application, the Administrative Court may decide not to hold a hearing when (...) 6. It is apparent to the Court from the written pleadings of the parties to the proceedings before the Administrative Court and from the files relating to the prior proceedings that an oral hearing is not likely to contribute to clarifying the case, and if this is not against Article 6 § 1 of the European Convention on Human Rights.\" THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 13. The applicant complained that no oral hearing before the Administrative Court had taken place.", "He relied on Article 6 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by [a] tribunal ...” 14. No observations were submitted by the Government. A. Admissibility 15. 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 16. The Court reiterates that the applicant was entitled in principle to have a public hearing (see inter alia Malhous v. the Czech Republic [GC], no. 33071/96, § 55, 12 July 2001).", "It further observes that the administrative authorities dealing with the proceedings presently at issue are not “tribunals” within the meaning of Article 6 of the Convention. Only the Administrative Court – and the Constitutional Court – could qualify as such “tribunals” (see Fischer v. Austria, 26 April 1995, § 43, Series A no. 312, mutatis mutandis Pauger v. Austria, 28 May 1997, § 59, Reports of Judgments and Decisions 1997‑III and Bakker v. Austria, no. 43454/98, § 29, 10 April 2003). 17.", "The Court further found before that in the course of proceedings in which exclusively legal or highly technical questions are at stake, the requirements of Article 6 may be fulfilled even in the absence of an oral hearing (see Schuler-Zgraggen v. Switzerland, 24 June 1993, § 58, Series A no. 263, Varela Assalino v. Portugal (dec.), no. 64336/01, 25 April 2002 and Schelling v. Austria, no. 55193/00, § 30, 10 November 2005). 18.", "In the present case the Court firstly observes that the applicant expressly requested an oral hearing before the Administrative Court and can therefore not be considered to have waived that right. Furthermore, there do not appear to have been any exceptional circumstances that might have justified dispensing with a hearing. The Administrative Court was the first and only judicial body that accepted the applicant’s case; it was able to examine the merits of his complaint, and the review not only addressed issues of law but also important factual questions. This being so, the Court considers that the applicant’s right to a “public hearing” included an entitlement to an “oral hearing” (see Abrahamian v. Austria, no. 35354/04, § 26, 10 April 2008).", "19. There has accordingly been a violation of Article 6 § 1 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 20. The applicant further alleged, under Article 6 of the Convention, a violation of the principle of equality of arms in that he did not have sufficient access to his administrative files.", "And he complained that the withdrawal of the emergency relief payments for eight weeks violated Articles 3 and 1 of Protocol No. 1 of the Convention. 21. In the light of all the material in its possession, and insofar as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention 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 22. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 23. The applicant claimed 1,290.91 euros (EUR) in respect of pecuniary and EUR 5,000 in respect of non-pecuniary damage.", "24. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. As regards the claim for non-pecuniary damage the Court considers that the finding of a violation constitutes sufficient just satisfaction (see Bakker, cited above, § 36 and Abrahamian, cited above, § 33). B. Costs and expenses 25.", "The applicant also claimed EUR 3,870.16 for the costs and expenses incurred before the domestic courts and before the Court. 26. The Court reiterates that an applicant is entitled to reimbursement of his costs and expenses only insofar as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case it does not appear from the documents submitted or the applicant’s comments that any specific costs were incurred in relation to the request for an oral hearing. Therefore no award can be made under this head in relation to costs incurred before the domestic courts.", "27. However, and with regard to the documents in its possession, the Court awards to the applicant the sum of EUR 1,979.52 as regards the costs and expenses incurred in the proceedings before the Court. This sum includes VAT. C. Default interest 28. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint concerning Article 6 § 1 about the lack of an oral hearing before the Administrative Court 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, EUR 1,979.52 (one thousand nine hundred and seventy nine euros and fifty two 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 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 December 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachLinos-Alexandre SicilianosDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF DAVIES v. THE UNITED KINGDOM (Application no. 42007/98) JUDGMENT STRASBOURG 16 July 2002 FINAL 16/10/2002 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Davies v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: MrM. Pellonpää, President,SirNicolas Bratza,MrA.", "Pastor Ridruejo,MrsE. Palm,MrM. Fischbach,MrJ. Casadevall,MrS. Pavlovschi, judges,and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 26 September 2000, 23 October 2001 and 2 July 2002, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1.", "The case originated in an application (no. 42007/98) against the United Kingdom of Great Britain and Northern Ireland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a United Kingdom national, Vernon John Davies (“the applicant”), on 29 October 1997. 2. The applicant was represented before the Court by Ms J. Rickards and Mr J.P. Gardner, solicitors practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms Helen Upton, Foreign and Commonwealth Office.", "3. The applicant alleged, in particular, a breach of his right under Article 6 § 1 to a fair hearing within a reasonable time. 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 originally allocated to the Third Section of the Court, which declared it partly inadmissible on 26 September 2000. On 23 October 2001 the Third Section declared the application admissible insofar as the applicant complained about the length of the “Blackspur” proceedings, and declared the remainder of the application inadmissible. 6.", "On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1 of the Rules of Court) and the application was allocated to the newly composed Fourth Section of the Court (Rule 52 § 1). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. 7. The applicant, but not the Government, filed observations on the merits (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine).", "On 15 April 2002 the Government submitted observations in connection with the applicant's claims under Article 41 of the Convention. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8. The Blackspur group of companies (collectively, “Blackspur”), was formed by the applicant and others in September 1987 and at various times the applicant acted as director and chairman. Blackspur went into receivership in July 1990 with an estimated deficit of GBP 34 million.", "9. On 1 July 1992, on the last day of the applicable two year limitation period, the Secretary of State for Trade and Industry (“the Secretary of State”) issued proceedings against the applicant and four others (“the Blackspur proceedings”) under section 6 of the Company Directors Disqualification Act 1986 (“the CDDA”: see paragraphs 19-20 below). 10. The Secretary of State's evidence was not complete at the time he commenced proceedings, and he applied for an extension of time for the serving of evidence (see paragraph 21 below). The applicant refused to consent to an extension being granted and instead, on 13 October 1992, together with two other defendants, applied to strike out the proceedings.", "11. The Secretary of State's evidence was completed and served on the applicant on 14 December 1992. The application for permission to file the evidence out of time, and the cross-application to strike out the proceedings, were not heard by the Registrar until 20 May 1993, when they were adjourned to 29 July 1993. On 27 January 1994 the Registrar granted the Secretary of State's application for an extension of time and dismissed the applicant's strike-out application. The applicant appealed to the High Court.", "12. Related criminal charges had been brought against the four other defendants in the Blackspur proceedings, but not the applicant, on 1 July 1992. The criminal trial took place between March and June 1994, during which period the disqualification proceedings were adjourned generally, with liberty to restore. At the conclusion of the criminal trial, two defendants were acquitted and two were convicted. On appeal, the two convictions were quashed in February 1995.", "13. By letters dated 19 July and 16 September 1994 the defendants to the Blackspur disqualification proceedings wrote to the Secretary of State inviting him to reconsider whether to carry on with the proceedings. On 15 December 1994 the Treasury Solicitor replied that the Secretary of State had decided that it remained expedient in the public interest to continue. 14. Once the criminal trial had been concluded, the applicant's appeal to the High Court against the Registrar's decision of 27 January 1994 could proceed and was dismissed on 2 May 1995.", "In November 1995 the applicant was granted leave to appeal out of time to the Court of Appeal, and his substantive appeal was dismissed by that court on 24 May 1996. The Court of Appeal found that the reasons for the Secretary of State's failure to complete his evidence before the proceedings were commenced had been “far from satisfactory”, but considered nonetheless that the case should proceed since it was in the public interest to determine the “particularly serious” allegations of false accounting and trading while insolvent made against the defendants. In addition, the court observed that the delay by the Secretary of State had not affected the timing of the hearing or prejudiced the applicant, and that, once the proceedings had commenced, “the respondents' main concern was to delay the proceedings until after the conclusion of the criminal trial, not to hurry them on”. 15. On 1 July 1996 the Registrar directed that the defendants should serve their evidence in response to that of the Secretary of State by 29 November 1996.", "That order was not complied with, and on 9 December 1996 the Registrar ordered that if the defendants had not served their evidence by 17 January 1997, they would be debarred from adducing any evidence. 16. The defendants served their evidence on 17 January 1997. On 20 January 1997 the Registrar directed that the Secretary of State should serve his evidence in reply by 17 March 1997. On 14 April 1997 the Registrar granted the Secretary of State a time-extension for the serving of evidence in reply until 30 June 1997, and this evidence was in fact served on 10 July 1997.", "At a further directions hearing on 4 August 1997 the defendants were given permission to adduce additional evidence in rejoinder by 1 December 1997. The applicant failed to comply with this order and on 8 December 1997 he was granted an extension of time until 9 February 1998. 17. In the event, however, the Blackspur proceedings against the applicant were discontinued on 12 January 1998, after a “Carecraft” agreement (see paragraph 23 below) was reached between the applicant and the Secretary of State in other proceedings under the CDDA. As part of the settlement, the applicant agreed to pay the Secretary of State's costs of GBP 94,000.", "II. RELEVANT DOMESTIC LAW 18. The Company Directors Disqualification Act 1986 (“the CDDA”) empowers the court, in specified circumstances, to disqualify a person from being a director, liquidator or administrator of a company, a receiver or manager of a company's property or in any way, whether directly or indirectly, to be concerned in the promotion, formation or management of a company for a specified period starting from the date of the order (section 1(1)). 19. Under section 6 of the Act, it is the duty of the court to make a disqualification order against a person, “... in any case where, on an application under this section, it is satisfied - (a) that he is or has been a director of a company which has at any time become insolvent (whether while he was a director or subsequently), and, (b) that his conduct as a director of that company (either taken alone or taken together with his conduct as a director of any other company or companies) makes him unfit to be concerned in the management of a company.” The minimum period of disqualification under this section is two years, and the maximum is fifteen years.", "20. Section 7(1) of the CDDA provides, inter alia, that the Secretary of State may apply for a section 6 order to be made against a person if it appears to the Secretary of State that such an order would be expedient in the public interest. Under section 7(2), proceedings under section 6 may not be commenced more than two years after the insolvency of the company. 21. Rule 3 of the Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987 reads as follows: “(1) There shall, at the time when the summons is issued, be filed in court evidence in support of the application for a disqualification order, and copies of the evidence shall be served with the summons on the respondent.", "(2) The evidence shall be by one or more affidavits, except where the applicant is the official receiver, in which case it may be in the form of a written report (with or without affidavits by other persons) which shall be treated as if it had been verified by affidavit by him and shall be prima facie evidence of any matter contained in it. (3) There shall in the affidavit or affidavits or (as the case may be) the official receiver's report be included a statement of the matters by reference to which the respondent is alleged to be unfit to be concerned in the management of a company.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 22. The applicant complained about the length of the proceedings against him under Article 6 § 1 of the Convention which provides, as relevant: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 23. The Government submitted that the Blackspur proceedings were extremely complex.", "They commenced on 1 July 1992 and ended on 12 January 1998. The Government attributed a substantial proportion of the delay to the applicant's unsuccessful attempts to strike out the proceedings and his refusal to consent to the Secretary of State's late filing of evidence. Further delay was inevitably caused by the criminal proceedings. It had been open to the applicant to agree to a “Carecraft” settlement at any time during the course of the proceedings. This procedure, named after the case of Re Carecraft Construction Co. Ltd [1994] 1 WLR 172, allowed the parties to proceedings under the CDDA to submit to the court an agreement that a disqualification order should be made for a specified period on the basis of undisputed (but not necessarily agreed) facts.", "Instead of adopting this procedure, the applicant delayed the proceedings by attempting to persuade the Secretary of State to accept his undertaking not to act as a company director. 24. The applicant submitted that he could not be held responsible for the delays in the proceedings. He pointed out that, despite the fact that the proceedings were commenced on the very last day of the two year limitation period, the Secretary of State had failed to comply with the requirement to file his evidence at the same time, and therefore needed the leave of the court to file it out of time. That application, together with the applicant's cross-application to have the proceedings struck out, was first before the court on 20 May 1993, when it was adjourned to 29 July 1993, and again until 27 January 1994, that is, over a year and a half after the proceedings were commenced.", "The applicant appealed against the Registrar's decision, but the appeal was adjourned pending the criminal trial of his co-defendants. At the conclusion of the trial the applicant and his co-defendants wrote to the Secretary of State asking whether he still wished to pursue the disqualification proceedings; the Secretary of State took five months to reply to that letter. The applicant's appeal was not therefore heard by the High Court until 2 May 1995 (15 months after the Registrar's decision). The applicant then appealed to the Court of Appeal, which, in its judgment on 24 May 1996, found that the Secretary of State's reasons for failing to file his evidence in time were “far from satisfactory”. The proceedings were finally concluded only when the applicant agreed to make various admissions so as to reach a “Carecraft” settlement in other proceedings against him under the CDDA.", "By that time the Blackspur proceedings had lasted five and a half years, coming to an end almost seven and a half years after the events on which they were based. 25. As regards the applicability of Article 6 § 1, it was not disputed between the parties that the proceedings under the CDDA determined “civil rights and obligations” and the Court is of the same opinion (see also D.C., H.S. and A.D. v. the United Kingdom (dec.), no. 39031/97, 14 September 1999, unpublished, and E.D.C.", "v. the United Kingdom (Commission Report), no. 24433/94, 26 February 1997, unpublished). 26. The Court recalls that the reasonableness of the length of proceedings is to be assessed in the light of the circumstances of the case, having regard in particular to its complexity and the conduct of the parties to the dispute and of the relevant authorities (see, among many other authorities, the Robins v. the United Kingdom judgment of 23 September 1997, Reports of Judgments and Decisions 1997-V, § 33). In the present case, the Court must also bear in mind that, given that the applicant was a company director and that disqualification proceedings would have had a considerable impact on his reputation and his ability to practise his profession, special diligence was called for in bringing the proceedings to an end expeditiously (see the above-mentioned E.D.C.", "Report). 27. The Blackspur proceedings, at issue in this case, commenced on 1 July 1992 when, on the last day of the statutory two-year time-limit, the Secretary of State issued a summons against the applicant and four others (see paragraph 9 above). The proceedings came to an end on 12 January 1998, when they were discontinued following the conclusion of a “Carecraft” settlement in another case against the applicant under the CDDA (see paragraph 17 above). The proceedings were, therefore, in progress for approximately five and a half years.", "It is note-worthy that in the above-mentioned E.D.C. case, the Commission expressed the opinion that proceedings under section 6 of the CDDA lasting four years and five months were too long to be compatible with Article 6 § 1. 28. Some of the delay in the present case is attributable to the applicant's conduct of the proceedings. He cannot be criticised for refusing to consent to the Secretary of State's request to file his evidence late and for making the strike-out application, but it must be acknowledged that the need to dispose of these preliminary applications inevitably contributed to the overall length.", "In addition, the applicant delayed some five months before appealing to the Court of Appeal against the High Court's rulings on the preliminary application and cross-application, and was two months late in filing his evidence in response to that of the Secretary of State. 29. Nonetheless, the State must be held responsible for the greater part of the delay. The Court accepts that the Secretary of State's case against the applicant was based on complex evidence. However, as a matter of domestic procedural law, an outline of this evidence should have been served with the summons on 1 July 1992 (see paragraph 21 above).", "The Secretary of State's failure to comply with this time-limit was described by the Court of Appeal as “far from satisfactory”. In the event, the evidence was served some five months later, on 14 December 1992, but the Secretary of State's application for leave to serve the evidence out of time, together with the applicant's cross-application to have the proceedings struck out, were not decided at first instance until 27 January 1994. The applicant appealed against the Registrar's order, but this appeal was not finally determined by the Court of Appeal until 24 May 1996 (almost four years after commencement). For four months (March-June 1994) the civil proceedings were adjourned whilst a criminal trial against some of the co-defendants - but not the applicant - took place. A further five months elapsed after the criminal proceedings had come to an end while the Secretary of State decided whether or not it was in the public interest to continue the disqualification proceedings against the applicant.", "30. In all the circumstances, the Court does not consider that the proceedings against the applicant were pursued with the diligence required by Article 6 § 1. There has accordingly been a violation of that provision, in that the applicant's “civil rights and obligations” were not determined within “a reasonable time”. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 31.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 32. The applicant claimed that he should not have had to pay the costs of proceedings which violated his rights under Article 6 § 1. He asked to be reimbursed the GBP 94,000 which he had paid towards the Secretary of State's costs (see paragraph 17 above), together with his own domestic costs totalling GBP 185,344.23, inclusive of value added tax (“VAT”). 33. The Government submitted that, as part of the “Carecraft” settlement (see paragraph 17 above) the applicant had voluntarily agreed to pay his own and the Secretary of State's costs.", "34. The Court recalls the well established principle underlying the provision of just satisfaction for a breach of Article 6, that the applicant should as far as possible be put in the position he would have enjoyed had the proceedings complied with the Convention's requirements. The Court will award monetary compensation under Article 41 only where it is satisfied that the loss or damage complained of was actually caused by the violation it has found, since the State cannot be required to pay damages in respect of losses for which it is not responsible (see Kingsley v. the United Kingdom (No. 2) [GC], no. 35605/97, § 40, ECHR 2002- ... ).", "35. The applicant's complaints about the fairness of the proceedings and of the Secretary of State's decisions to bring the proceedings in the first place and to continue with them despite the applicant's offers of undertakings were declared inadmissible on 26 September 2000. The only issue under the Convention in respect of which the Court has found a violation is the length of the Blackspur proceedings. The Court accepts the Government's argument that the applicant voluntarily agreed to pay the costs in issue as part of the “Carecraft” settlement. Moreover, it cannot be said that this pecuniary loss was attributable to the unreasonable length of the proceedings.", "The Court therefore rejects the applicant's claim under this head. B. Non-pecuniary damage 36. In addition, the applicant claimed compensation for the stress and distress caused by having the disqualification proceedings hanging over him for such a long time. 37. The Government contended that the applicant was not entitled to any compensation under this head, because he had not shown that he had suffered any stress or distress as a result of the violation.", "38. The Court observes that some forms of non-pecuniary damage, including emotional distress, by their very nature cannot always be the object of concrete proof (see the Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 94, § 96). This does not prevent the Court from making an award if it considers that it is reasonable to assume that an applicant has suffered injury requiring financial compensation (ibid.). In the present case, it is reasonable to assume that the applicant suffered distress, anxiety and frustration exacerbated by the unreasonable length of the proceedings.", "The Court awards 4,500 euros under this head. C. Costs and expenses 39. Finally, the applicant claimed the costs and expenses of the Strasbourg proceedings, totalling GBP 58,719.83, inclusive of VAT. 40. The Government submitted that this claim was grossly excessive, given that only a small part of the application had been declared admissible.", "They questioned, moreover, why it had been necessary to employ an “ECHR expert”, in addition to counsel and solicitors, and pay him GBP 20,000. 41. The Court notes that the majority of the applicant's complaints were declared inadmissible as manifestly ill-founded, whereas Article 41 permits the award of just satisfaction only “[i]f the Court finds that there has been a violation of the Convention or the protocols thereto ...”. In connection with the part of the claim for costs relating to the finding of violation, it must be satisfied that the sums claimed were actually and necessarily incurred and reasonable as to quantum. In the light of the foregoing and given that the Court has only upheld the complaint concerning the length of the Blackspur proceedings, it awards GBP 10,000 in respect of costs and expenses, together with any value added tax that may be payable.", "C. Default interest 42. As regards the sum awarded in euros, the Court considers that the default interest should be fixed at an annual rate equal to the marginal lending rate of the European Central Bank plus three percentage points. For the sum awarded in pounds sterling, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment applies, namely 7.5% per annum. FOR THESE REASONS, THE COURT 1. Holds unanimously that there has been a violation of Article 6 § 1 of the Convention; 2.", "Holds unanimously (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts: (i) EUR 4,500 (four thousand, five hundred euros) in respect of non-pecuniary damage; (ii) GBP 10,000 (ten thousand pounds sterling) in respect of costs and expenses, together with any value added tax that may be payable; (b) that simple interest at an annual rate equal to the marginal lending rate of the European Central Bank plus three percentage points shall be payable in respect of the sum awarded in euros from the expiry of the above-mentioned three months until settlement; (c) that simple interest at an annual rate of 7.5% shall be payable in respect of the sum awarded in pounds sterling from the expiry of the above-mentioned three months until settlement. 3. Dismisses unanimously the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 16 July 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O'BoyleMatti PellonpääRegistrarPresident" ]

[ "THIRD SECTION CASE OF VREČKO v. SLOVENIA (Application no. 25616/02) JUDGMENT STRASBOURG 21 December 2006 FINAL 21/03/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Vrečko v. Slovenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrC. Bîrsan, President,MrB.M.", "Zupančič,MrV. Zagrebelsky,MrsA. Gyulumyan,MrDavid Thór Björgvinsson,MrsI. Ziemele,MrsI. Berro-Lefèvre, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 30 November 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 25616/02) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mrs Vera Vrečko (“the applicant”), on 20 June 2002. 2. The applicant was represented by Mrs M. Nosan, a lawyer practising in Celje, Slovenia. 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 she was a party was excessive. In substance, she 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 13 September 2005 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 examine the merits of the application at the same time as its admissibility. THE FACTS 5. The applicant was born in 1963 and lives in Škofja Vas. 6. On 15 October 1996 the Celje Local Court (Okrajno sodišče v Celju) issued a decision in the inheritance proceedings finding the applicant and her mother heiresses of the property of the applicant's deceased father.", "7. On 27 January 1999 the applicant instituted non-contentious civil proceedings in the Celje Local Court against her brother S.V. seeking the division of the land which they owned jointly. On 22 November 1999 the court held a hearing and decided to appoint two experts, one in construction engineering and the other in agriculture, to assess the value of the real estate at issue. On 26 February and 1 March 2000 the experts submitted their opinions.", "On 22 February 2000 the applicant lodged a request for an interlocutory measure. On 19 May 2000 the court held a hearing where the applicant withdrew her request concerning the interlocutory measure. The court decided to issue a written judgment. The judgment dividing the real estate was served on the applicant on 5 July 2000. 8.", "On 14 July 2000 the applicant appealed. Her adversary cross-appealed. On 28 March 2002 the Celje Higher Court (Višje sodišče v Celju) allowed the appeals, set aside the first-instance court's judgment and remitted the case for fresh examination. The decision was served on the applicant on 19 April 2002. 9.", "On 19 April, 16 September and 28 October 2002 the applicant requested the Celje Local Court to set a date for a hearing. The hearing scheduled for 29 November 2002 was adjourned at the request of the applicant. On 28 May 2003 the court held a hearing. The hearing scheduled for 21 November 2003 was adjourned at the request of the applicant, because the parties retained an expert in an attempt to settle the case out of the court. On 10 January 2005 the parties informed the court that the out-of-court settlement was not reached.", "On 2 March 2003 the court held a hearing. On 21 August 2006 the parties to the proceeding settled the case outside the court. THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 10. 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...” 11. 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 12. The Government pleaded non-exhaustion of domestic remedies. 13.", "The applicant contested that argument, claiming that the remedies available were not effective. 14. The Court notes that the present application is similar to the cases of Belinger and Lukenda (see 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. 15. 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. 16.", "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 17. The period to be taken into consideration began on 27 January 1999, the day the applicant instituted proceedings with the Celje Local Court, and ended on 21 August 2006, the day the parties settled the case outside the court. The relevant period therefore lasted nearly seven years and seven months and three instances were involved. 18. 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). 19. The Court considers that the period of nearly one year and two months, when the parties attempted to settle the case outside the court, cannot be attributed to the first-instance court. The Court also notes that another hearing was adjourned at the request of the applicant. 20.", "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 nevertheless excessive and failed to meet the “reasonable-time” requirement. There has accordingly been a breach of Article 6 § 1. 2. Article 13 21. 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. 22. 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 her 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 23. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 24. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. 25.", "The Government contested the claim. 26. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 1,200 under that head. B.", "Costs and expenses 27. The applicant, who was represented by a qualified lawyer in the proceedings before the Court, made no claim under this head. Accordingly, the Court considers that there is no call to award her any sum on that account. C. Default interest 28. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 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 1,200 (one thousand two hundred 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; 5.", "Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 21 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerCorneliu BîrsanRegistrarPresident" ]

[ "SECOND SECTION CASE OF ESKİ v. TURKEY (Application no. 8354/04) JUDGMENT This version was rectified on 10 July 2012 under Rule 81 of the Rules of Court STRASBOURG 5 June 2012 FINAL 05/09/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Eski v. Turkey, The European of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, 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 15 May 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "8354/04) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Gökhan Eski (“the applicant”), on 6 February 2004. 2. The applicant was represented by Mr S. Cengiz, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent. 3.", "On 1 October 2009 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 1975 and lives in İzmir.", "5. On 29 December 2002 at midnight, the applicant, who was drunk, had a fight with his friend in a taxi. The driver of the taxi stopped in front of a police station and the applicant’s friend entered the station to make a complaint. The applicant followed. 6.", "According to the applicant, when they entered the police station, his friend complained to the police officers that the applicant had stolen his cell phone. Stepping on the applicant’s foot, a police officer told the applicant to return his friend’s cell phone. The applicant pushed him back. Subsequently, several police officers attacked the applicant. He was blindfolded, handcuffed and beaten with wooden sticks and truncheons for half an hour.", "7. At 1.40 a.m. the applicant was taken to the Buca Health Clinic. The doctor who examined the applicant noted the presence of a widespread bruise on his back, bruises on both legs, bruises on his left arm, swelling on the right side of his forehead, and swelling on his right arm and fingers. Suspecting that the applicant’s right hand could be fractured, he ordered the applicant’s transfer to a hospital. 8.", "According to the report of the Izmir Training Hospital issued at 2.15 a.m., there was swelling on the applicant’s right wrist and sensitivity on his left knee. An x-ray revealed that the applicant’s right arm was broken. 9. The report of the İzmir Forensic Medicine Institute, drafted on 30 December 2002 at 3.47 a.m., which took into account the two medical reports drafted on the same night, stated that the applicant had numerous widespread bruises on his back, a swelling and a bruise on the right side of his forehead, bruises on the back of his legs, a bruised region on his upper left arm and a swelling and a bruise on one of his fingers on the right hand. It was also noted that the applicant’s right arm had been fractured.", "The report concluded that the injuries rendered the applicant unfit for work for fifteen days. 10. The toxicology report of 30 December 2002 noted that the applicant had 0.98 per mille of alcohol in his blood. 11. On 2 January 2003 the applicant’s lawyer visited him in prison and noted the signs of ill-treatment on his body.", "On that day, the applicant submitted to his lawyer a detailed account of the alleged ill-treatment. 12. On 24 January 2003 the applicant lodged an official complaint with the İzmir public prosecutor’s office, requesting the prosecution of the police officers who had ill-treated him. 13. On 5 February 2003 the applicant was examined by a doctor at the İzmir Forensic Medicine Institute.", "The report which was produced took into account the applicant’s previous medical reports and X-rays and noted that his right arm was still bandaged and that his injuries were still visible. It was concluded that the injuries rendered the applicant unfit for work for fifteen days. 14. On 12 March 2003 the İzmir public prosecutor filed an indictment against ten police officers, accusing them of ill-treating the applicant. The applicant joined the proceedings as a civil party.", "15. On 29 June 2004 the İzmir Criminal Court, on the basis of witness statements and medical reports, found four police officers guilty of ill‑treating the applicant under Article 245 of the Criminal Code. Six other police officers on duty that day were acquitted. The court found it established that when the applicant arrived at the police station he was drunk. He started swearing and threatening the officers, threw himself right and left and hit a couple of police officers.", "In order to stop him, the police officers handcuffed, blindfolded and gagged the applicant. One police officer, M.G.I., hit the applicant with a truncheon. He also told the other police officers to hit the applicant. Three other police officers consequently hit the applicant with truncheons. Based on this finding, the court held that the actions of the four police officers who had beaten the applicant had constituted a breach of Article 245 of the Criminal Code.", "Considering that the swearing and threats of the applicant amounted to provocation within the meaning of Article 51 of the Criminal Code, the court then reduced their sentences and accordingly sentenced each of them to a fine. Furthermore, the court decided to suspend the execution of their sentences pursuant to Section 6 of Law no. 647 on the basis that the accused officers did not show any likelihood of reoffending. 16. On 7 March 2007 the Court of Cassation upheld the first-instance court’s judgment as regards the acquittal decisions and quashed the judgment as to the convictions for a reconsideration of the case in the light of the new Code of Criminal Procedure (Law no.", "5271) which had entered into force on 1 June 2005. 17. The case was accordingly remitted to the İzmir Criminal Court. On 17 January 2008 the İzmir Criminal Court once again found the four accused police officers guilty of ill-treating the applicant, and sentenced them each to a fine. The court further suspended the execution of their sentence pursuant to Law no.", "647, considering that they were unlikely to break the law again. Upon appeal, on 17 September 2008 the Court of Cassation quashed that judgment as well, maintaining that the first-instance court should have considered whether the pronouncement of the judgment could have been suspended for a period of five years pursuant to Article 231 of the Code of Criminal Procedure. 18. On 9 March 2009 the İzmir Criminal Court once again found it established that the accused four police officers had ill-treated the applicant. Accordingly, pursuant to Article 245 of the Criminal Code it initially sentenced them each to three months’ imprisonment.", "Considering that the swearing and threats of the applicant amounted to provocation within the meaning of Article 51 of the Criminal Code, the court then reduced their sentences to twenty five days’ imprisonment and banned them from public service for twenty five days. The court subsequently suspended the pronouncement of the judgment in accordance with Article 231 of the Code of Criminal Procedure. The applicant’s objection was dismissed on 20 March 2009. II. RELEVANT DOMESTIC LAW AND PRACTICE 19.", "A description of the relevant domestic law and practice concerning prosecution for ill-treatment in force at the material time can be found in Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 96-98, ECHR 2004‑IV (extracts)). 20. The deferral of the execution of a sentence is governed by Section 6 of Law no. 647 on the Execution of Sentences, which in so far as relevant reads: “The court may decide to defer the execution of a fine and/or a prison sentence of up to one year... if it is convinced, taking into account the offender’s criminal record and potential to commit crime, that there is little risk of any further offence being committed, and provided that the offender has never been sentenced to anything other than a fine.", "The reasons for deferring the execution of a sentence must be stated in the decision.” 21. The suspension of the pronouncement of the judgment is regulated by Article 231 of the Code of Criminal Procedure (Law no. 5271), the relevant paragraphs of which read as follows: “... (5) If the accused, who had been tried for the charges against him, was sentenced to a judicial fine or to imprisonment of less than two years, the court may decide to suspend the pronouncement of the judgment ... The suspension of the pronouncement of the judgment entails that the judgment does not have any legal consequences for the offender. (6) Suspension of the pronouncement of the judgment may be decided provided that; a) the offender has never been found guilty of a wilful offence, b) the court is convinced, taking into account the offender’s personal traits and his behaviour during the proceedings, that there is little risk of any further offence being committed, c) the damage caused to the victim or to society is repaired by way of restitution or compensation.", "... (8) If the pronouncement of the judgment is suspended, the offender will be kept under supervision for the following five years. ... (10) If the offender does not commit another wilful offence and abides by the obligations of the supervision order, the judgment, of which the pronouncement has been suspended, will be cancelled and the case discontinued. (11) If the offender commits another wilful offence or acts in violation of the obligations of the supervision order, the court imposes the sentence. Nevertheless, the court may evaluate the offender’s situation and may decide that a certain part of the sentence, up to the half of the total sentence, will not be executed. If the conditions so permit, the court may also suspend the execution of the imprisonment or commute it to other optional measures.", "(12) An objection may be filed against the decision to suspend the pronouncement of the judgment.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 22. The applicant alleged that he had been subjected to ill-treatment while in police custody. He also complained about the length of the criminal proceedings against the accused police officers and the suspension of the pronouncement of the judgment pursuant to Article 231 of the Code of Criminal Procedure. In respect of his complaints, the applicant relied on Articles 3, 6 and 13 of the Convention.", "23. The Court considers that these complaints should be examined from the standpoint of Article 3 of the Convention, which reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 24. The Government argued that the application should be rejected for non-exhaustion of domestic remedies. In this connection, they stated that the applicant should have brought compensation proceedings before the administrative or civil courts to seek compensation for the harm he had allegedly suffered. 25.", "The Court reiterates that it has already examined and rejected the Government’s preliminary objections in similar cases (see, in particular, Atalay v. Turkey, no. 1249/03, § 29, 18 September 2008). It reaffirms its earlier conclusions that the remedies referred to by the Government cannot be regarded as sufficient for a Contracting State’s obligations under Article 3 of the Convention. The Court therefore finds no particular circumstances in the instant case which would require it to depart from its previous findings. Accordingly, it rejects the Government’s preliminary objection.", "26. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The substantive aspect of Article 3 27. The Government contested the applicant’s allegations. In particular, they maintained that his allegations were unsubstantiated. 28.", "The Court recalls that where allegations of ill-treatment are made under Article 3 of the Convention, it must apply a particularly thorough scrutiny. 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 Gäfgen v. Germany [GC], no. 22978/05, § 93, ECHR 2010, and Derman v. Turkey, no. 21789/02, § 25, 31 May 2011). 29.", "In assessing the treatment to which the applicant was subjected by the police officers, the Court observes that after acquainting itself with the evidence in the case file, in its judgment the Izmir Criminal Court found it established that the applicant had been ill-treated by four of the accused police officers (see paragraphs 15-18 above). 30. In the light of the foregoing, the Court also concludes that the State is responsible under Article 3 of the Convention because the applicant was ill-treated by four police officers who were acting in the course of their duty and as a result suffered the injuries detailed in the medical reports. It therefore follows that there has been a substantive violation of Article 3 of the Convention on account of the inhuman treatment to which the applicant was subjected. 2.", "The procedural aspect of Article 3 31. The Government argued that the suspension of the pronouncement of the judgment against the police officers pursuant to Article 231 of Law no. 5271 could not be regarded as an amnesty law. In this connection, they maintained that the sentences of the police officers would be executed if they committed another wilful offence during the five-year period following the judgment. 32.", "The Court recalls that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. Such an investigation should be capable of leading to the identification and punishment of those responsible (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV). According to the established case-law, this means that the domestic judicial authorities must on no account be prepared to let the physical or psychological suffering inflicted go unpunished. This is essential for maintaining the public’s confidence in, and support for, the rule of law and for preventing any appearance of the authorities’ tolerance of or collusion in unlawful acts (see Okkalı v. Turkey, no.", "52067/99, § 65, ECHR 2006‑XII (extracts), and Derman, cited above, § 27). 33. It is beyond doubt that a requirement of promptness and reasonable expedition is implicit in this context. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Batı and Others, cited above, § 136). 34.", "The Court also recalls that when an agent of the State is accused of crimes that violate Article 3, any ensuing criminal proceedings and sentencing must not be time-barred and the granting of amnesty or pardon should not be permissible. It further reiterates that where a State agent has been charged with crimes involving torture or ill-treatment, it is of the utmost importance that he or she be suspended from duty during the investigation and trial, and should be dismissed if convicted (see, mutatis mutandis, Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2 November 2004, and Serdar Güzel v. Turkey, no. 39414/06, § 42, 15 March 2011). 35.", "Turning to the facts of the present case, the Court observes that upon the complaint of the applicant, on 12 March 2003 the public prosecutor initiated criminal proceedings against the accused police officers. These proceedings were terminated on 9 March 2009, after almost six years, a delay that runs contrary to the promptness required to punish those responsible. There is also no indication in the case file that the police officers were suspended from duty during that period. Nor did the authorities take any disciplinary action against them. 36.", "The next issue to be decided by the Court is whether and to what extent the national authorities have done everything within their powers to prosecute and punish the police officers responsible for the applicant’s ill-treatment and whether they have imposed adequate and deterrent sanctions on them. In this connection, the Court reiterates the absolute nature of the prohibition of torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Accordingly, provocation can never be regarded as justification for the infliction of severe ill-treatment on an individual, in breach of Article 3 of the Convention (Atalay, cited above, § 43). In this connection, the Court firstly notes that the İzmir Criminal Court considered that the swearing and threats of the applicant at the police officers had amounted to provocation within the meaning of Article 51 of the former Criminal Code, and as a result the sentences of the police officers, who were found guilty of ill-treatment, were reduced. Secondly, the pronouncement of the judgment was suspended pursuant to Article 231 of the Criminal Procedure Code (see paragraphs 17 and 18 above).", "In the Court’s opinion, these two shortcomings cannot be considered as compatible with the Convention standard of protection from ill-treatment. According to the Court’s case-law, suspension of such sentences undeniably falls into the category of the “measures” which are unacceptable as its effect is to render convictions ineffective (see Okkalı, cited above, §§ 73-78, and Zeynep Özcan v. Turkey, no. 45906/99, §§ 40-46, 20 February 2007). In this respect, the Court notes that the suspension of the pronouncement of the judgment, regulated by Article 231 of the Code on Criminal Procedure (Law no. 5271), has a stronger effect than the deferral of the execution of the sentence and results in the impunity of the perpetrators.", "That is because the former’s application removes the judgment with all its legal consequences, including the sentence, provided that the offender abides by the suspension order, whereas in the latter, neither the sentence nor the judgment ceases to exist. The Court considers therefore that the impugned court decision suggests that the judges exercised their discretion to minimise the consequences of an extremely serious unlawful act rather than show that such acts could in no way be tolerated. In the light of the foregoing, the Court considers that as a result of the shortcomings observed in the prosecution of the police officers, combined with the fact that no disciplinary measures had been taken against them, the Contracting State failed to fulfil its procedural obligation under Article 3 of the Convention. 37. There has accordingly been a procedural violation of Article 3 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION A. Damage 38. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage. 39.", "The Government contested the claim. 40. The Court finds that the applicant must have suffered pain and distress which cannot be compensated for solely by the Court’s finding of a violation. Having regard to the nature of the violation found and ruling on an equitable basis, it awards the applicant EUR 19,500 in respect of non-pecuniary damage. B.", "Costs and expenses 41. The applicant’s representative stated that he had received EUR 883 in legal aid from the Izmir Bar Association. In this connection, he maintained that pursuant to the legal aid rules of the Izmir Bar, the applicant would have to pay back this amount to the Izmir Bar if at the end of the proceedings the applicant were awarded just satisfaction by the Court. He would further need to pay 5% of the total compensation amount to the legal aid board of the Izmir Bar[1]. The applicant’s representative also claimed EUR 78 for the costs and expenses incurred before the Court.", "42. The Government contested the 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 considers it reasonable to award the sum of EUR 1,000, 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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a substantive violation of Article 3 of the Convention; 3.", "Holds that there has been a procedural violation of Article 3 of the Convention; 4. Holds (a) that the respondent State is to pay to the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Turkish liras at the rate applicable on the date of settlement: (i) EUR 19,500 (nineteen thousand five hundred euros), plus any tax that may be chargeable to him, in respect of non-pecuniary damage; (ii) EUR 1,000 (one thousand euros) plus any tax that may be chargeable to him, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 5 June 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithFrançoise TulkensRegistrarPresident [1]1.", "Rectified on 10 July 2012. The sentence “He would further need to pay 5% of the total compensation amount to his representative as a legal fee.” has been changed into “He would further need to pay 5% of the total compensation amount to the legal aid board of the Izmir Bar.”" ]

[ "FIRST SECTION CASE OF NEMTSOV v. RUSSIA (Application no. 1774/11) JUDGMENT STRASBOURG 31 July 2014 FINAL 15/12/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Nemtsov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Elisabeth Steiner,Paulo Pinto de Albuquerque,Linos-Alexandre Sicilianos,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 8 July 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "1774/11) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Boris Yefimovich Nemtsov (“the applicant”), on 10 January 2011. 2. The applicant was represented by Ms O. Mikhaylova and Mr V. Prokhorov, 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 that his arrest at a demonstration and his subsequent detention had violated his right to peaceful assembly, freedom of expression and liberty. He also alleged that the administrative proceedings before the Justice of the Peace and the court had fallen short of guarantees of a fair hearing. He further complained of appalling conditions at the detention facility, which he regarded as inhuman and degrading. 4. On 10 January 2011 the Court decided to apply Rule 41 of the Rules of Court and grant priority treatment to the application.", "On the same day the Court gave notice of this application to the Government in accordance with Rule 40 of the Rules of Court. 5. On 21 October 2011 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6.", "The applicant was born in 1959 and lives in Moscow. He is a professional politician who has held in the past the posts of Nizhniy Novgorod governor, Deputy Prime Minister, and Minister for Energy. He later became one of the best-known opposition leaders, a founder of the political party the Union of Right Forces, and subsequently of the political movement Solidarnost. A. Public demonstration on 31 December 2010 and the applicant’s arrest 7.", "On 10 December 2010 eight individuals, none of whom are applicants in the present case, submitted notice of a public demonstration to the mayor of Moscow. They indicated, in particular, that a meeting would be held from 6 p.m. to 7.30 p.m. on Triumfalnaya Square, Moscow. They estimated that about 1,500 people would take part in the event. The notice stated that the proposed demonstration was intended “to demand respect for the constitutional right to peaceful demonstration and assembly guaranteed by Article 31 of the Constitution of the Russian Federation”. The organisers indicated, inter alia, that it would not be necessary to divert the traffic.", "8. On 22 December 2010 the Moscow Government’s Department for Liaison with Security Authorities informed the organisers that the event had been approved by the deputy mayor of Moscow. The number of participants had been limited to 1,000, and a particular sector of Triumfalnaya Square had been designated for the event: “in the area between the First and the Second Brestskaya Streets, opposite the Pekin Hotel and the adjacent road leading to the Tchaikovsky Concert Hall”. 9. In the meantime, on 16 December 2010 another group of three individuals, none of whom are applicants in the present case, submitted notice of an alternative public demonstration to the mayor of Moscow, at the same time and place as the authorised event and with the same title.", "It appears that this second public demonstration was not authorised, but on 22 December 2010 a number of alternatives as to the time and place were offered to the organisers. Moreover, none of its organisers could go to the venue on 31 December 2010 because two of them had been arrested earlier on the same day; the third had been abroad. 10. The authorised meeting began at 6 p.m. on 31 December 2010 at Triumfalnaya Square, as planned. According to the applicant, the perimeter of the square was cordoned off and was guarded by the riot police.", "The only access to the meeting venue was at Tverskaya Street. The applicant claimed that he had arrived at the meeting with his daughter; he had parked his car at Tverskaya Street and they had entered Triumfalnaya Square from Tverskaya Street through the only opening in the cordon. 11. During the meeting the applicant addressed the participants with a speech in which he criticised the criminal conviction of Mikhail Khodorkovskiy, the former owner of the Yukos oil company, and Platon Lebedev, his associate. He also condemned the corruption in the State administration.", "He chanted the slogans “The authorities to resign!”, “Putin to resign!”, “Happy New Year without Putin!” 12. At the end of the meeting the applicant, accompanied by his daughter, headed across Triumfalnaya Square towards Tverskaya Street. At the exit he saw the riot police arresting one of the participants in the demonstration. Shortly afterwards the applicant was also arrested and put into a police vehicle. 13.", "The parties disagreed as to the circumstances of the applicant’s arrest. 14. The applicant claimed that on the way to his car his passage had been obstructed by police officers and he and his daughter had found themselves in a crowd. They heard the police instruction over a loudspeaker calling for people to stay calm and to pass through. The applicant saw two people being arrested and put in police vans, and then he was arrested too, without any warning or explanation.", "The applicant claimed that he had not disobeyed or resisted the police; on the contrary, he had followed their instructions “to pass through”. He had been arrested by an officer who had been wearing a fur hat, an indication of his higher rank, as opposed to the crash helmets worn by the riot police troops guarding the cordon. 15. The applicant alleged that there existed at least three video recordings of his arrest, including the events immediately leading up to it; they had been produced by two media channels and one independent photographer, Mr T. He also maintained that there existed an official video of the public demonstration and the ensuing arrests, which had allegedly been shot by the police and kept at the Moscow Department of the Interior. 16.", "According to the Government, at the end of the meeting the applicant had headed towards Tverskaya Street and had begun calling passers-by to take part in another, unauthorised, meeting while shouting out anti-government slogans. They alleged that two police officers, Sergeant X and Private Y, had warned the applicant; they had ordered him to stop agitating the crowd and to return to the authorised meeting. They further contended that the applicant had ignored the warning and had continued shouting out the slogans and disobeying the police. Confronted with this behaviour, X and Y arrested him. 17.", "At 7 p.m. on the same day the applicant was taken to the police station of the Tverskoy District Department of the Interior. At 7.10 p.m. Private Y drew up a report stating that the applicant had been escorted to the police station “in order to draw up the administrative material”. Also at 7.10 p.m., the on-duty police officer drew up a report on the applicant’s administrative arrest under Article 27.3 of the Code of Administrative Offences, stating, like the other report, that he had been arrested “in order to draw up the administrative material”. The applicant signed both reports, indicating his disagreement with their content.", "18. Both X and Y produced identical duty reports stating, in so far as relevant, as follows: “... on 31 December 2010 at 18.30 Boris Yefimovich Nemtsov was apprehended [because] he had disobeyed a lawful order of the police in connection with [X and Y] performing [their] duty of maintaining public order and safeguarding the public. He (Nemtsov) stood at 31 Tverskaya Street and began to shout “Down with Putin!”, “Russia without Putin!” as well as insults to President Medvedev, catching people’s attention and calling them to come to the Mayakovskiy monument for a meeting. [X and Y] approached Nemtsov, introduced themselves and warned him that it was unacceptable to hold a meeting at Triumfalnaya Square. They invited him to proceed to the authorised event that was taking place between the First and the Second Brestskaya Streets, opposite the Pekin Hotel.", "Nemtsov did not react and continued to shout out slogans and call people to hold a meeting. Nemtsov deliberately refused to comply with the lawful orders to cease his actions breaching public order, and continued them ostentatiously. To prevent him from organising an unauthorised meeting at Triumfalnaya Square and to prevent the unlawful acts, he was invited to enter a police van. In response to [these] lawful orders to enter the police van, Nemtsov began to break loose. He pushed us away and shouted insults to us: “Down with the police state!”, “Free-for-all cops!”, attempting to cause mayhem among the citizens surrounding him.", "By doing so he demonstrated his refusal to carry out the lawful order of the police and prevented them from carrying out their duty, thus committing an offence under Article 19.3 of the Code of Administrative Offences”. 19. At 7.30 p.m. X and Y made witness statements, essentially copying the text of their duty reports. 20. At the same time the district police inspector drew up a report on the administrative offence, stating that the applicant had disobeyed a lawful order of the police in breach of Article 19.3 of the Code of Administrative Offences.", "The applicant signed that report with the remark “100% lies”. 21. On the same day the head of the same police station issued a decision to transfer the administrative case file to the Justice of the Peace. 22. On the same day at about 7.15 p.m. the NTV television channel reported on the series of arrests following the demonstration at Triumfalnaya Square.", "Police Colonel B. commented on the applicant’s arrest, stating that he had been arrested for instigating an unauthorised meeting. B. The applicant’s detention at the Tverskoy District police station 23. The applicant remained in detention at the police station until 2 January 2011, pending the determination of the charges against him. 24.", "The applicant described the conditions of his detention at the police station as extremely poor. He was detained in a solitary cell measuring 1.5 by 3 metres, with a concrete floor, without windows and with very bleak artificial lighting, which was insufficient for reading. The cell was not equipped with ventilation or furniture, except for a narrow wooden bench without a mattress or any bedding. The walls in the cell had been coated with “shuba”, a sort of abrasive concrete lining. The cell was not equipped with a lavatory or wash basin.", "The applicant had been obliged to call the wardens to take him to the lavatory when they were available. He was not provided with food or drink; he received only the food and drinking water that was passed to him by his family. 25. The Government submitted that from 31 December 2010 to 10 a.m. on 2 January 2011 the applicant had been detained in an administrative‑detention cell measuring 5.6 sq. m equipped with artificial lighting and mandatory ventilation.", "They claimed that the applicant had been provided with drinking water and food, as well as with a sleeping place and bedding, but had refused to take them because he had received everything necessary from his family and friends. 26. On 1 January 2011 two members of a public commission for the monitoring of detention facilities visited the police station to check the conditions of the applicant’s detention. Their report stated that the applicant had been detained in a cell without a window, which was poorly lit, lacked ventilation and had no sanitary facilities, sleeping place, mattress or bedding. They found that the cell was not adequate for a two-day confinement and noted that the applicant had not been receiving hot food.", "27. On 2 January 2011, following his conviction for an administrative offence, the applicant was transferred to another detention facility until 15 January 2011. 28. The applicant claimed that the poor conditions of detention had had a negative impact on his health. He submitted a medical certificate indicating that between 3 and 12 January 2011 he had sought medical assistance every day.", "C. Administrative proceedings 29. On 2 January 2011 the Justice of the Peace of circuit no. 369 of Tverskoy District of Moscow scheduled the hearing of the applicant’s case to take place on the same day. 30. At 11.30 a.m. the applicant was brought before the Justice of the Peace, who examined the charges.", "31. In the courtroom the applicant discovered that there was no seat for him and he remained standing during the hearing, which lasted for over five hours. The parties disagreed as to the reasons why the applicant had remained standing. According to the applicant, the Justice of the Peace had ordered him to stand. The Government contested that allegation and claimed that the Justice of the Peace had repeatedly asked if anyone in the audience could give their seat to the applicant, but the applicant and his counsel had objected and insisted that he remain standing.", "32. The applicant claimed that standing throughout the trial had been humiliating and physically difficult, especially after having spent two days in detention in poor conditions. He also alleged that it had prevented him from participating effectively in the proceedings because he could only address the judge in writing and had been obliged to write his submissions while standing up. This had further aggravated his fatigue and hampered the conduct of his defence. 33.", "The applicant pleaded not guilty and claimed that he had been detained for no reason other than political oppression. He contested the content of the police reports, in particular the statement that the police had given him a warning or an order which he could have disobeyed. 34. At the hearing the applicant lodged a number of motions. He requested in particular that the court admit as evidence the video footage of his arrest broadcast by two media channels.", "He also requested that the recording made by Mr T., an independent photographer, be admitted as evidence (see paragraph 15 above). 35. The applicant also requested that the court obtain from the prosecution the video recording made by the Moscow police at the scene of the public demonstration. 36. The applicant further requested that the court call and cross-examine Police Colonel B. about the circumstances of the applicant’s arrest, which he had commented on in the media (see paragraph 22 above).", "37. The Justice of the Peace dismissed the applicant’s request to admit the video recordings on the grounds that the provenance of the recordings was not supported by evidence. The court also refused to order that the video recording made by the police be admitted as evidence, stating that the applicant’s request was not “specific enough” and that the applicant had failed to prove the existence of any such recordings. Lastly, the court refused to call and examine Police Colonel B. as a witness, having considered that request irrelevant. 38.", "At the applicant’s request the court called and examined thirteen witnesses who had been at the scene of the authorised demonstration. They testified that they had heard the applicant addressing the meeting and that after his speech he had said farewell and left; he had not made any calls to go on to another meeting. Six of those witnesses testified that they had left the meeting at the same time as the applicant and had witnessed his arrest. They explained that the exit from the meeting had been blocked by the riot police and the crowd had begun to build up because those who wanted to leave Triumfalnaya Square could not do so. When the applicant arrived at the cordon the police surrounded him so as to separate him from others wanting to leave the meeting, and arrested him.", "Eight witnesses stated that the applicant had not been shouting any slogans and had not been acting against the police orders before being surrounded and arrested. One of those witnesses, M.T., stated that she had heard the applicant asking the riot police why the exit had been blocked. She had also heard him shouting that Article 31 of the Constitution guaranteed the freedom of assembly, but he had not shouted any calls or obscenities. The remaining witnesses had not seen the actual arrest. In particular, the applicant’s daughter and her friend testified that they had been walking back to the car with the applicant and talking about the plans for New Year’s eve, and when they had arrived at the police cordon they had lost sight of the applicant in the crowd; one or two minutes later they had called him on his mobile phone and had found out that he had been arrested.", "39. The court called and examined two policemen, sergeant X and private Y, who had signed the reports stating that they had arrested the applicant because he had disobeyed their orders. They testified that on 31 December 2010 they had been on duty maintaining public order at Triumfalnaya Square. They had seen the applicant at 31 Tverskaya Street. He had been shouting anti-government slogans and calling people around him to hold an unauthorised meeting.", "They had approached the applicant and requested him to stop agitating outside the authorised meeting; they had asked him to return to the place allocated for the meeting and to speak there. The applicant had not reacted to their requests, so they had asked him to proceed to the police van. The applicant had disobeyed that order and had been arrested; he had put up resistance while being arrested. 40. On the same day the Justice of the Peace found that the applicant had disobeyed the police orders to stop chanting anti-government slogans and had resisted lawful arrest.", "The Justice of the Peace based her findings on the witness statements of X and Y, their written reports of 31 December 2010, their written statements of the same date, the report on the administrative arrest of the same date, the notice of the public demonstration of 16 December 2010 and the reply of 22 December 2010 indicating that it had not been authorised (it appears that this reference concerned the events described in paragraph 9 above). The Justice of the Peace dismissed the applicant’s testimony on the grounds that as a defendant, he would have sought to exonerate himself from administrative liability. She also dismissed the testimonies of seven eyewitnesses on the grounds that they had contradicted the policemen’s testimonies and because those witnesses had been acquainted with the applicant, had taken part in the same demonstration and therefore must have been biased towards the applicant. The testimonies of the remaining six witnesses were dismissed as irrelevant. 41.", "The applicant was found guilty of having disobeyed a lawful order of the police, in breach of Article 19.3 of the Code of Administrative Offences. He was sentenced to fifteen days’ administrative detention. 42. On 3 January 2011 the applicant wrote an appeal against the judgment and submitted it to the detention facility administration unit. It appears that despite his counsel’s numerous attempts to lodge the appeal directly with the court, it was not accepted before 9 January 2011.", "On 11 January 2011 his counsel submitted a supplement to the points of appeal. 43. In his appeal the applicant claimed that his arrest and conviction for the administrative offence had been in breach of the domestic law and in violation of the Convention. He alleged that his right to freedom of expression and freedom of assembly had been violated. He contested the findings of fact made by the first instance as regards his conduct after he had left the meeting.", "He challenged, in particular, the court’s refusal to admit the photographic and video materials as evidence or to obtain the footage of the demonstration shot by the police. In addition, he complained about the manner in which the first-instance hearing had been conducted. In particular, he alleged that the Justice of the Peace had ordered him to stand throughout the hearing, which had been humiliating and had made it difficult to participate in the proceedings. The applicant also complained about the conditions of his detention at the police station from 31 December 2010 to 2 January 2011. 44.", "On 12 January 2011 the Tverskoy District Court examined the appeal. At the applicant’s request the court kept the verbatim records of the hearing. 45. During the appeal hearing the applicant complained of the alleged unlawfulness of his arrest and the poor conditions of his detention at the police station. He asked the court to declare the acts of the police who had detained him for over forty hours before bringing him before a court unlawful.", "46. As regards the merits of the administrative charges, the applicant reiterated before the appeal instance his requests that the court admit three video recordings of his arrest as evidence and that it obtain the video recording made by the Moscow police. He also requested that two photographs of his arrest be admitted as evidence. He asked the court to call and examine photographers T. and V. as witnesses and to cross-examine police officers X and Y again. The court granted the requests to admit one video recording and two photographs as evidence, and decided to call and examine photographer T. as a witness, but rejected all the other requests.", "47. Photographer T. testified at the hearing that he had gone to the meeting to film it and had been waiting for the applicant at the exit from the meeting because he had wanted to interview him. When the applicant approached the exit a big group of policemen rushed over to block his way and there had been a minute’s pause when a crowd began to build up against the cordon, blocking the passage. Then one person was arrested, and about thirty seconds later someone else, and then the applicant. T. saw the applicant’s arrest as he was filming it from a distance of about five or six metres.", "He was separated from the applicant by several rows of people, of which two rows consisted of policemen. The recording began a few minutes before the arrest and continued without any interruption until the applicant had been put in the police van. He specified that the applicant had not put up any resistance to the officers arresting him. He identified on the photograph the officer wearing a fur hat, who had arrested the applicant, and explained that that person had taken the applicant out of the crowd and then passed him on to another policeman in order to put the applicant into the police van. He also stated that the applicant had not shouted any slogans or insults.", "The applicant had repeated “Easy, easy” to the policemen while being escorted to the van. T. also testified that the applicant had been standing throughout the first-instance hearing, while his counsel had been sitting on a chair. 48. The court watched the video recording made by T. However, it decided not to take cognisance of T.’s testimonies, his recording or the photograph, on the following grounds: “... the footage begins with the image of a large number of people gathered at 31 Tverskaya Street in Moscow, with Mr Nemtsov at the centre. A policeman addresses the citizens through a loudspeaker with a request to disperse and not to block the passage, but Mr Nemtsov remains standing in one place addressing the gathered citizens.", "The video operator is at such a distance from the applicant that he is separated from him by several rows of people, including the gathered citizens and the riot police, and it is impossible to understand what these citizens and the applicant are saying. Subsequently the recording of the applicant is interrupted as the camera points away onto the policemen putting the first arrested person, and then another one, into the police vans. Only afterwards does the video recording show the applicant being led to a police van by policemen, and he puts up no resistance at this moment of the footage. In this respect, and taking into account that the footage does not show Mr Nemtsov’s actions immediately before his placement in the police van, the video and the accompanying audio do not depict Mr Nemtsov addressing the citizens before he was detained. The court concludes that the submitted footage does not refute the testimonies of the policemen, and [T.’s] testimony cannot refute them either because he observed only those actions of Mr Nemtsov that appear on the footage.", "... The photographs submitted during the appeal hearing that depict Mr Nemtsov surrounded by policemen, one of whom is supporting his arm, cannot be considered by the court as refuting the event of the offence or the evidence, including the testimonies of [X and Y], because of the absence of information on the exact time of its taking, or on its connection with the place ... ” 49. On the same day the court dismissed the applicant’s appeal and upheld the first-instance judgment. It found, in particular, on the basis of the testimonies and reports of X and Y, that the applicant had indeed been guilty of having disobeyed a lawful order of the police. It upheld the reasoning of the first-instance court whereby it rejected the testimonies of thirteen witnesses called at the applicant’s request.", "As regards the testimonies of X and Y, on the other hand, it found no reason to mistrust them because they had had no personal interest in the outcome of the applicant’s case. 50. In its appeal decision the court addressed the lawfulness of the applicant’s detention pending the first-instance trial and considered that there had been no breach: “... after the report on the administrative offence had been drawn up, the information necessary for establishing the circumstances of the committed offence was collected, including the explanations of [X and Y], the notice of the place of the public demonstration of 31 December 2010, the [mayor’s] reply to that notice, as well as the personal characteristics of the person in relation to whom the administrative offence report had been drawn up. A ruling was made by the Justice of the Peace of 2 September 2010 convicting the applicant of an offence under Article 19.3 of the Code of Administrative Offences. Therefore the applicant’s detention during less than 48 hours was not in breach of Article 27.5 § 2 of the Code of Administrative Offences.” 51.", "As regards the conditions of the applicant’s detention between 31 December 2010 and 2 January 2011, the court found that his complaints had been outside the scope of the current proceedings, holding that another type of legal action should have been brought by the applicant to challenge those acts. The court did not specify what procedure the applicant should have followed as an avenue for those complaints. 52. On 31 March 2011 the applicant lodged before the Tverskoy District Court a complaint under Chapter 25 of the Code of Civil Procedure. He challenged his initial arrest and complained of the poor conditions of detention for over forty hours.", "53. On 4 April 2011 the court refused to accept the applicant’s action, holding that the questions concerning the lawfulness of the police acts had to be examined in the relevant administrative proceedings, but could not be dealt with in civil proceedings. 54. On 14 April 2011 the applicant appealed against the refusal to accept his complaint. The Moscow City Court dismissed his appeal on 22 July 2011.", "It relied, in particular, on Ruling no. 2 of 10 February 2009 by the Plenary Supreme Court of the Russian Federation and held, in so far as relevant, as follows: “... the courts may not examine complaints lodged under Chapter 25 of the Code of Civil Procedure against acts or inaction connected with the application of the Code of Administrative Offences, Chapter 30 of which provides for the procedure for challenging them; or acts or inaction for which the Code of Administrative Offences does not provide for a procedure by which they may be challenged. Acts or inaction that are inseparable from the administrative case may not be subject to a separate challenge (evidence in the case, [including] reports on the application of precautionary measures to secure the course of justice in the administrative case). In this case the arguments against the admissibility of a particular piece of evidence or the application of a precautionary measure to secure the course of justice may be put forward during the hearing of the administrative case or in points of appeal against the judgment or ruling on the administrative case. However, if the proceedings in the administrative case are terminated, the acts committed in the course of these proceedings, if they entailed a breach of an individual’s or a legal person’s rights or freedoms, or hindered the exercise of their rights and freedoms, or imposed an obligation after the proceedings had been terminated, [they] may be challenged under Chapter 25 of the Code of Civil Procedure.", "Under the same procedure one may challenge the acts of officials if no administrative file has been opened.” 55. The applicant also attempted to challenge the acts of the judiciary involved in his case before the Judiciary Qualification Board of Moscow. His attempts were, however, unsuccessful. II. RELEVANT DOMESTIC LAW 56.", "The relevant provisions of the Code of Administrative Offences of 30 December 2001, as in force at the material time, read as follows: Article 19.3 Refusal to obey a lawful order of a police officer ... “Failure to obey a lawful order or demand of a police officer ... in connection with the performance of their official duties related to maintaining public order and security, or impeding the performance by them of their official duties, shall be punishable by a fine of between five hundred and one thousand roubles or by administrative detention of up to fifteen days.” Article 27.2 Escorting of individuals “1. The escorting or the transfer by force of an individual for the purpose of drawing up an administrative offence report, if this cannot be done at the place where the offence was discovered and if the drawing up of a report is mandatory, shall be carried out: (1) by the police ... ... 2. The escort operation shall be carried out as quickly as possible. 3. The escort operation shall be recorded in an escort operation report, an administrative offence report or an administrative detention report.", "The escorted person shall be given a copy of the escort operation report if he or she so requests.” Article 27.3 Administrative detention “1. Administrative detention or short-term restriction of an individual’s liberty may be applied in exceptional cases if this is necessary for the prompt and proper examination of the alleged administrative offence or to secure the enforcement of any penalty imposed by a judgment concerning an administrative offence. ... ... 3. Where the detained person so requests, his family, the administrative department at his place of work or study and his defence counsel shall be informed of his whereabouts. ... 5.", "The detained person shall have his rights and obligations under this Code explained to him, and the corresponding entry shall be made in the administrative arrest report.” Article 27.4 Administrative detention report “1. The administrative detention shall be recorded in a report ... 2. ... If he or she so requests, the detained person shall be given a copy of the administrative detention report.” Article 27.5 Duration of administrative detention “1. The duration of the administrative detention shall not exceed three hours, except in the cases set out in paragraphs 2 and 3 of this Article.", "2. Persons subject to administrative proceedings concerning offences involving unlawful crossing of the Russian border ... may be subject to administrative detention for up to 48 hours. 3. Persons subject to administrative proceedings concerning offences punishable, among other administrative sanctions, by administrative detention may be subject to administrative detention for up to 48 hours ...” THE LAW I. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION 57.", "The applicant complained that his arrest and detention on 31 December 2010, as well as his conviction for an administrative offence, had violated his right to freedom of expression and to freedom of peaceful assembly guaranteed by Articles 10 and 11 of the Convention, which read as follows: Article 10 (freedom of expression) “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2.", "The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Article 11 (freedom of assembly and association) “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.” A. Admissibility 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 59. The applicant alleged that he had been arrested after having taken part in an authorised political rally and had been placed in custody and subsequently convicted for an administrative offence as a reprisal for publically expressing his political views. He insisted that after having addressed the authorised meeting he had not planned or attempted to call for another, unauthorised, meeting. He contended that he had been simply walking towards the exit from the cordoned-off area when the police had obstructed the way out and arrested him without giving any warning or reason. He referred to the testimonies of thirteen witnesses given before the Justice of the Peace, which had corroborated his version of events and which the courts had discarded as irrelevant or biased.", "60. The Government accepted that the applicant’s arrest and his conviction for an administrative offence had constituted an interference with his freedom of expression and his freedom of assembly. However, they maintained that those measures had been lawful, had pursued the legitimate aim of maintaining public order and had been proportionate to that aim for the purposes of Articles 10 § 2 and 11 § 2 of the Convention. They claimed that the applicant had attempted to conduct an unauthorised public demonstration and referred to the notice filed by three individuals on 16 December 2010 which had not been approved by the mayor of Moscow. Given that the organisers of that event had received a proposal to change the venue and time of the demonstration, the limitations on the freedom of assembly had been proportionate in this case.", "They maintained that the police’s demand that the applicant stop the alleged agitation had therefore been lawful, whereas he had persisted with his allegedly illegal conduct and had to be forced to stop. 2. The Court’s assessment (a) The scope of the applicant’s complaints 61. The Court notes that, in the circumstances of the case, Article 10 is to be regarded as a lex generalis in relation to Article 11, a lex specialis (see Ezelin v. France, 26 April 1991, § 35, Series A no. 202, and Kasparov and Others v. Russia, no.", "21613/07, §§ 82-83, 3 October 2013). 62. On the other hand, notwithstanding its autonomous role and particular sphere of application, Article 11 must, in the present case, also be considered in the light of Article 10. The protection of personal opinions, secured by Article 10, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 (see Ezelin, cited above, § 37). (b) The Court’s assessment of the evidence and establishment of the facts 63.", "The Court observes that, according to the Government, the applicant incurred sanctions for attempting to hold an unauthorised meeting and failing to obey police officers’ orders to stop agitating. The applicant, on the contrary, contended that he had committed no such acts and that the true aim of his arrest and conviction had been to discourage him and others from participating in opposition demonstrations. The Court observes that in the domestic proceedings and before the Court the applicant has firmly and consistently contested the factual findings of the domestic courts, and this dispute is central to the present case. In these circumstances, the Court will need to review the facts established in the domestic proceedings. 64.", "In doing so, the Court remains 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 McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000, and Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, § 135, 24 February 2005). 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. The Court, however, is not bound by the findings of the domestic courts, although in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Klaas v. Germany, judgment of 22 September 1993, Series A no.", "269, pp. 17-18, §§ 29-30, and Avşar v. Turkey, no. 25657/94, § 283, ECHR 2001‑VII (extracts)). The Court has previously applied this reasoning in the context of Articles 10 and 11 of the Convention (see, mutatis mutandis, Europapress Holding d.o.o. v. Croatia, no.", "25333/06, § 62, 22 October 2009, and Hakobyan and Others v. Armenia, no. 34320/04, §§ 92-99, 10 April 2012). 65. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions.", "According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005‑VII). 66. As regards the events of 31 December 2010, it finds that the parties have expressly or implicitly agreed on certain facts which may be summarised as follows. From about 6 p.m. to 6.30 p.m. the applicant took part in an authorised and peaceful public demonstration at Triumfalnaya Square.", "The place designated for the meeting was cordoned off by the riot police, and the only exit from the meeting was at Tverskaya Street; the exit was heavily guarded by the riot police. During the meeting the applicant addressed the participants with a speech expressing strong political views that could have been seen by the officials as controversial and even provocative. Having finished his speech he headed towards the exit, accompanied by his daughter and her friend. The applicant was arrested at the exit to Tverskaya Street before he could leave the restricted area. The time between the moment when the applicant, his daughter and her friend reached the police cordon in front of the exit to Tverskaya Street and the applicant’s arrest did not exceed one or two minutes.", "This time-frame, stated by the applicant’s daughter and her friend at the trial and not challenged at any stage, appears to constitute common ground between the parties. The foregoing account as a whole is, moreover, coherent with the witness testimonies and the police reports. Accordingly, the Court considers these circumstances as well-established facts. 67. The dispute between the parties concerns, in particular, the events that occurred between the applicant’s arrival at the cordon and his placement in a police van one or two minutes later.", "The applicant asserted that as soon as he had arrived at the cordon he had been arrested without any reason or pretext. The Government, for their part, reiterated the account given by the two policemen, whereby the applicant began addressing passers-by at Tverskaya Street, calling them to hold a spontaneous meeting; it was alleged that he had shouted anti-government slogans and ignored the warnings of the police and their requests to return to the authorised meeting, and that he had continued agitating until he was arrested. 68. The official account left it unexplained why the applicant had begun calling for a public meeting immediately after having spoken at the authorised demonstration. Nor did it explain who the “passers-by” inside the police cordon were.", "It follows from the witness testimonies that the people gathered at the cordon were the participants of the authorised meeting who were willing but unable to leave the restricted area. The official account also sits at odds with the time-frame established above, as such a sequence of actions and the arrest would have had to have been carried out within one or two minutes. Moreover, for most of that period the applicant featured on the footage filmed by photographer T., showing no signs of agitating or disobeying, according to the Tverskoy District Court’s own finding (see paragraph 48 above). 69. Furthermore, none of the eyewitnesses, except the two policemen, saw or heard the applicant calling for a meeting or agitating.", "In particular, M.T. testified that she had heard the applicant asking the riot police why the exit had been blocked and then shouting out that Article 31 of the Constitution guaranteed freedom of assembly (see paragraph 38 above). In the same vein, photographer T. testified that the applicant had been intercepted by the police immediately on his arrival at the cordon (see paragraph 47 above). Both witnesses’ accounts corroborate the applicant’s version of events. 70.", "The courts’ finding that the applicant must have nevertheless committed the unlawful acts, supposedly in the marginal time not covered by T.’s footage, was based solely on the statements of the two policemen and on their own written reports. Crucially, their testimonies outweighed those of the applicant and of all other witnesses. However, given the role of those policemen in the applicant’s alleged offence, the Court cannot share the domestic courts’ perception of these officers as neutral observers and sees no justification for affording their testimonies stronger evidentiary value. 71. In view of the above, the Court considers that there are cogent elements in the present case prompting it to doubt the credibility of the official reason for the applicant’s arrest, detention and administrative charges.", "The materials at its disposal contain insufficient evidence of the applicant’s attempt to call a second public meeting, whether legal or illegal, or of his disobedience towards the police. On the other hand, it finds the applicant’s allegations sufficiently convincing and corroborated by evidence. On the basis of all evidence submitted by the parties it finds that the applicant had arrived at the police cordon and found himself in a crowd of people willing to leave the meeting but unable to do so because the exit had been blocked or narrowed down by the riot police. At this point he enquired about the reasons for the exit to be restricted and shouted out that Article 31 of the Constitution guaranteed freedom of assembly. He was arrested and taken to the police van; he did not resist the arrest.", "(c) Whether there was interference with the exercise of the freedom of peaceful assembly and whether the interference was justified 72. The Court reiterates that the right to freedom of assembly is a fundamental right in a democratic society and is one of the foundations of such a society (see, among numerous authorities, Galstyan v. Armenia, no. 26986/03, § 114, 15 November 2007). This right, of which the protection of personal opinion is one of the objectives, is subject to a number of exceptions which must be narrowly interpreted and the necessity for any restrictions must be convincingly established. The essential object of Article 11 is to protect the individual against arbitrary interference by public authorities with the exercise of the rights protected (see Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom, no.", "11002/05, § 37, 27 February 2007). Accordingly, where the State does intervene, such 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. 73. The term “restrictions” in paragraph 2 of Article 11 must be interpreted as including both measures taken before or during the public assembly, and those, such as punitive measures, taken afterwards (see Ezelin, cited above, § 39, and Galstyan, cited above, § 101). 74.", "The Court considers that the applicant’s arrest and detention constituted an interference with his right to peaceful assembly, as did the ensuing administrative charges brought against him. The Court observes, moreover, that the Government did not dispute the existence of the interference with the right to peaceful assembly in the present case. 75. In the light of these principles the Court will examine whether the interference with the applicants’ right to peaceful assembly was lawful, pursued a legitimate aim and was necessary in a democratic society. It considers that in this case the questions of lawfulness and of the existence of a legitimate aim are indissociable from the question whether the interference was “necessary in a democratic society” (see, mutatis mutandis, Christian Democratic People’s Party v. Moldova, no.", "28793/02, § 53, ECHR 2006‑II), and it considers it unnecessary to examine them separately. 76. The Court notes that the legal basis for the applicant’s arrest and the subsequent administrative charges brought against him was Article 19.3 of the Code of Administrative Offences, which prescribed an administrative penalty for disobeying the lawful orders of a police officer. However, the reference to this provision was contested by the applicant on the grounds that the underlying events had not, in fact, taken place, and the Court has upheld this view (see paragraph 71 above). In particular, it has found above that the authorities had not proven that the applicant had received an order from the police, or that it was lawful, or that the applicant had disobeyed it (ibid.).", "On the contrary, it found that the applicant had arrived at the police cordon and was arrested after having shouted out that Article 31 of the Constitution guaranteed freedom of assembly, without having received any orders or having disobeyed them. The Court therefore concludes that the arrest and the ensuing administrative liability were imposed on the applicant without any connection with the intended purpose of the legal provision for disobeying lawful orders of the police. The interference with the applicant’s right to freedom of peaceful assembly on such a legal basis could only be characterised as arbitrary and unlawful (see Hakobyan and Others, cited above, § 107). 77. The Court further notes the lack of any acknowledgments that the acts imputed to the applicant by the police, namely an attempted call for a spontaneous demonstration and the chanting of anti-government slogans, were by themselves protected by Articles 10 and 11 of the Convention.", "An order to stop those actions – had they truly occurred – required strong justification in order to be lawful. The courts dispensed with those considerations. The administrative proceedings against the applicant and his ensuing detention had the effect of discouraging him from participating in protest rallies or indeed from engaging actively in opposition politics. 78. Undoubtedly, those measures had a serious potential also to deter other opposition supporters and the public at large from attending demonstrations and, more generally, from participating in open political debate.", "The chilling effect of those sanctions was further amplified by the fact that they targeted a well-known public figure, whose deprivation of liberty was bound to attract broad media coverage. In view of the foregoing the Court finds that the applicant’s arrest and the charges against him had not been justified by a pressing social need. 79. In view of these findings, the Court concludes that the interference with the applicant’s right to peaceful assembly could not be justified under the requirements of Article 11 § 2 of the Convention (see paragraph 75 above). 80.", "There has accordingly been a violation of Article 11 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF THE CONVENTION 81. The applicant further complained that he had not received a fair hearing in the determination of the charges against him. In particular, he claimed that the administrative proceedings had fallen short of equality of arms: they had not been public, and the applicant had been unable to participate in them effectively or to obtain the attendance of witnesses on his behalf under the same conditions as the witnesses against him.", "He relied on Article 6 §§ 1 and 3 (d) of the Convention, which provide, in so far as relevant, as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal ... ... 3. Everyone charged with a criminal offence has the following minimum rights: (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 82. The Court reiterates that in order to determine whether an offence qualifies as “criminal” for the purposes of Article 6 the Convention, it is necessary to ascertain whether or not the provision defining the offence belongs, in the legal system of the respondent State, to the criminal law; next the “very nature of the offence” and the degree of severity of the penalty risked must be considered (see Menesheva v. Russia, no. 59261/00, § 95, ECHR 2006‑III).", "Deprivation of liberty imposed as punishment for an offence belongs in general to the criminal sphere, unless by its nature, duration or manner of execution it is not appreciably detrimental (see Engel and Others v. the Netherlands, 8 June 1976, §§ 82-83, Series A no. 22, and Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, §§ 69-130, ECHR 2003-X). 83. In the present case, the applicant was convicted of an offence which was punishable by detention, the purpose of the sanction being purely punitive.", "Moreover, he served a fifteen-day prison term as a result of his conviction. This offence should accordingly be classified as “criminal” for the purposes of the Convention. It follows that Article 6 applies (see Menesheva, cited above, §§ 94-98; Malofeyeva v. Russia, no. 36673/04, §§ 99-101, 30 May 2013; and Kasparov, cited above, §§ 39-45). 84.", "The Court also considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. Thus, it should be declared admissible. B. Merits 85.", "The Government contested the allegation that the proceedings in this administrative case had been conducted in breach of Article 6 of the Convention. They argued that the applicant had been given a fair opportunity to state his case, to obtain the attendance of thirteen witnesses on his behalf, to cross-examine the police officers whose statements formed the basis of the charges and to present other evidence. The applicant was given an opportunity to lodge written requests and he availed himself of that right. They also pointed out that the hearing had been open to the public and that the hearing room had been full to its capacity of about twenty to twenty-five people. 86.", "The applicant maintained his complaint that his conviction for an administrative offence had been arbitrary and had not been based on an adequate assessment of the relevant facts. He alleged that the outcome of his trial had been predetermined and, essentially, there had been no adversarial proceedings. He claimed, in particular, that all the evidence against him had been taken into account, despite its provenance from the two policemen, whereas any evidence in his favour had been either expressly dismissed or given no weight. Although he had been given the opportunity to call and examine witnesses on his behalf, the court had dismissed their testimonies as biased or irrelevant, whereas the testimonies of the police officers had been accepted as reliable and objective. He pointed out that his requests concerning the examination of video materials had not been fully allowed, despite the fact that the material examined by the courts had contained no proof of his offence.", "87. The Court reiterates that it is not its task to take the place of the domestic courts, which are in the best position to assess the evidence before them, establish facts and interpret domestic law. The Court will not, in principle, intervene, 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, mutatis mutandis, Van Kück v. Germany, no. 35968/97, §§ 46-47, ECHR 2003-VII and Khamidov v. Russia, no. 72118/01, § 170, ECHR 2007‑XII (extracts)).", "88. Although it is not the Court’s function under Article 6 § 1 to deal with errors of fact or law allegedly committed by the domestic courts, decisions that are “arbitrary or manifestly unreasonable” may be found incompatible with the guarantees of a fair hearing (see Khamidov, cited above, § 107; Berhani v. Albania, no. 847/05, §§ 50-56, 27 May 2010; Ajdarić v. Croatia, no. 20883/09, § 47-52, 13 December 2011; and Anđelković v. Serbia, no. 1401/08, §§ 26-29, 9 April 2013).", "89. The Court has found above that in the present case there existed cogent elements that led it to depart from the findings of fact reached by the domestic courts. In particular, it has established that the applicant’s conviction for an administrative offence was arbitrary and therefore in breach of Article 11 of the Convention (see paragraphs 76 and 80 above). It will consider below whether the procedure by which the domestic courts reached their decisions has also breached Article 6 of the Convention. 90.", "In reaching the conclusion that the applicant’s conviction was arbitrary, the Court has taken into account the domestic courts’ manner of evaluation of evidence, in particular the reasons for attributing weight only to the statements of the two policemen who were “victims” of the applicant’s alleged disobedience while disregarding all defence witnesses (see paragraph 70 above). 91. The Court has also noted the ample and coherent evidence presented for the defence (see paragraph 69 above) and the reasons for their dismissal, in particular the assumption that the witnesses who participated in the same public demonstration as the applicant were biased towards him, which the Court finds it hard to justify. By applying this criterion the domestic courts disqualified ab initio any potential eyewitness in this case, irrespective of their individual situations or their attitude towards the applicant. The overall implausibility of the official version, compounded by the lack of any material corroborating the policemen’s account, has been obvious to the Court.", "In sum, the Court considers that the domestic decisions were not based on an acceptable assessment of the relevant facts. 92. The Court further holds that by dismissing all evidence in the applicant’s favour, the domestic courts placed an extreme and unattainable burden of proof on the applicant, so that his defence could not, in any event, have had even the slightest prospect of success. This ran contrary to the basic requirement that the prosecution has to prove its case and one of the fundamental principles of criminal law, namely, in dubio pro reo (see, mutatis mutandis, Barberà, Messegué and Jabardo v. Spain, 6 December 1988, § 77, Series A no. 146; Lavents v. Latvia, no.", "58442/00, § 125, 28 November 2002; and Melich and Beck v. the Czech Republic, no. 35450/04, § 49, 24 July 2008). 93. Lastly, the Court observes that the courts limited the scope of the administrative case to the applicant’s alleged disobedience, having omitted to consider the “lawfulness” of the police order (cf. Makhmudov v. Russia, no.", "35082/04, § 82, 26 July 2007). They thus absolved the police from having to justify the interference with the applicant’s right to freedom of assembly and sanctioned the applicant for actions which – had they truly occurred – would have been protected by the Convention (see paragraph 77 above). 94. The foregoing considerations are sufficient to enable the Court to conclude that the administrative proceedings against the applicant, taken as a whole, constituted a violation of his right to a fair hearing under Article 6 § 1 of the Convention. 95.", "In view of these findings the Court does not consider it necessary to address the remainder of the applicant’s complaints under Article 6 §§ 1 and 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 4 OF THE CONVENTION 96. The applicant further complained that his arrest and detention had been arbitrary and that there had been no effective judicial review thereof. He relied on Article 5 §§ 1 and 4 of the Convention, which provides: “1.", "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. ... 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 97. 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 98. The Government claimed that at about 6.30 p.m. on 31 December 2010 the applicant had been arrested in accordance with Article 27.3 § 1 of the Code of Administrative Offences.", "He was then taken to the police station as required by Article 27.2 § 1 of the Code to draw up a report on the administrative offence. His subsequent detention pending trial did not exceed the forty-eight hour time-limit set forth in Article 27.5 § 3 of the Code. They considered that the police had fully complied with the procedure prescribed by law. They further pointed out that the applicant had been able to challenge his detention before the Tverskoy District Court of Moscow and that on 12 January 2011 it had dismissed the applicant’s appeal, including the point concerning the lawfulness of his detention. 99.", "The applicant disagreed with the Government. He considered that his arrest on 31 December 2010 had not fallen under sub-paragraphs (a) to (f) of Article 5 § 1 and therefore had been unlawful. Moreover, he contended that there had been no grounds to detain him pending trial for up to forty‑eight hours after the police reports had been drawn up. He relied, in particular, on his arrest report, which stated that he had been detained for the purpose of drawing up an administrative offence report. He further claimed that he had been unable effectively to challenge the decision to detain him for forty-eight hours pending trial.", "100. The Court reiterates that Article 5 of the Convention guarantees the fundamental right to liberty and security. That right is of primary importance in a “democratic society” within the meaning of the Convention (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 65, Series A no. 12, and Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33).", "101. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see Saadi v. the United Kingdom [GC], no. 13229/03, § 67, ECHR 2008). While the Court has not previously formulated a global definition as to what types of conduct on the part of the authorities might constitute “arbitrariness” for the purposes of Article 5 § 1, key principles have been developed on a case‑by‑case basis. Moreover, the notion of arbitrariness in the context of Article 5 varies to a certain extent, depending on the type of detention involved (see Mooren v. Germany [GC], no.", "11364/03, § 77, ECHR 2009‑...). In this connection, mere mistakes are to be distinguished from a flagrant denial of justice undermining not only the fairness of a person’s trial, but also the lawfulness of the ensuing detention. According to the Court’s case-law, detention following a conviction imposed in manifestly unfair proceedings amounting to a flagrant denial of justice is unlawful and automatically implies a breach of Article 5 § 1 of the Convention (see Stoichkov v. Bulgaria, no. 9808/02, §§ 51 and 58-59, 24 March 2005, and Shulgin v. Ukraine, no. 29912/05, § 55, 8 December 2011).", "102. In particular, the condition that there be no arbitrariness demands that both the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of Article 5 § 1 (see Winterwerp, cited above, § 39; Bouamar v. Belgium, judgment of 29 February 1988, Series A no. 129, § 50; O’Hara v. the United Kingdom, no. 37555/97, § 34, ECHR 2001-X; and Hakobyan and Others, cited above, §§ 107 and 123). 103.", "In the present case, the Court is mindful of its finding above that the applicant was subjected to a measure, namely arrest and detention followed by a short‑term prison sentence, which was arbitrary and unlawful. It pursued aims unrelated to the formal grounds relied on to justify the deprivation of liberty and implied an element of bad faith on the part of the police officers. Furthermore, there were sufficient elements to conclude that the domestic courts that imposed the detention also acted arbitrarily in reviewing both the factual and the legal basis for the applicant’s detention (see paragraphs 76 and 93 above). In such circumstances, the Court cannot but conclude that the applicant’s deprivation of liberty as a whole was arbitrary and therefore unlawful within the meaning of Article 5 § 1. 104.", "Accordingly, there has been a violation of Article 5 § 1 of the Convention. 105. In view of the nature and the scope of its finding above, the Court does not consider it necessary to rule separately on whether the judicial review of the applicant’s detention complied with Article 5 § 4 of the Convention. IV. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF DETENTION 106.", "The applicant alleged that Article 3 had been violated on account of the appalling conditions in which he had been detained at the police station of the Tverskoy District Department of the Interior from about 7.30 p.m. on 31 December 2010 to 10 a.m. on 2 January 2011. Article 3 of the Convention read as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The applicant also claimed that he had not had at his disposal an effective remedy for this violation of the guarantee against ill-treatment, as required 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 ....” 107. The Government argued that the applicant had failed to exhaust an effective remedy that had been open for him to complain about the alleged violations of his rights under Article 3 of the Convention, at least in so far as he complained of a lack of bedding and food and insufficient light and ventilation. They considered that a complaint to the prosecutor’s office would have allowed the competent authority to resolve his situation. 108.", "As to the substance, the Government contested the applicant’s description of his conditions of detention in the cell at the police station and provided an alternative account, set out in paragraph 25 above. They claimed that the conditions of the applicant’s detention had complied with the requirements of Article 3 of the Convention. 109. The applicant disagreed with the Government’s allegation that he had not exhausted domestic remedies and claimed that he had attempted several avenues of redress. He maintained that he had not had an effective remedy for his complaint concerning the inadequate conditions of detention.", "He pointed out that on 4 April 2011 the Tverskoy District Court had refused to examine his complaint concerning the conditions of detention on the grounds that it was a matter that could be addressed only in the course of the administrative proceedings; he had previously attempted to pursue that avenue, but his complaint had been dismissed without examination. As regards the divergence between the Government’s account of his conditions of detention and his own, he pointed out that the Government’s claim had not been supported by evidence, whereas he had provided a report by a public commission for the monitoring of detention facilities, which had corroborated his allegations. A. Admissibility 110. The Government raised an objection in respect of non-exhaustion of domestic remedies by the applicant. The Court considers that the question of exhaustion of domestic remedies is closely linked to the merits of the applicant’s complaint that he did not have at his disposal an effective remedy for his complaints concerning inhuman and degrading treatment on account of being detained in inadequate conditions.", "The Court thus finds it necessary to join the Government’s objection to the merits of the applicant’s complaint under Article 13 of the Convention. 111. The Court further notes that this part of application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. Exhaustion of domestic remedies and alleged violation of Article 13 of the Convention 112. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring a case against the State before the Court to first use 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 to deal with the substance of an “arguable complaint” under the Convention and to provide appropriate relief. Moreover, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000‑XI, and Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24). 113.", "The Court observes that it has on many occasions examined the effectiveness of the domestic remedy suggested by the Government. It found, in particular, that even though review by a supervising prosecutor plays an important part in securing appropriate conditions of detention, a report or order by a prosecutor is primarily a matter between the supervising authority and the supervised body and is not geared towards providing preventive or compensatory redress to the aggrieved individual. Since the complaint to a prosecutor about unsatisfactory conditions of detention does not give the person using it a personal right to the exercise by the State of its supervisory powers, it cannot be regarded as an effective remedy (see Dirdizov v. Russia, no. 41461/10, § 76, 27 November 2012, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 104, 10 January 2012.", "114. The Court also observes that the applicant’s complaints about the poor conditions of his detention were rejected by the Tverskoy District Court on two occasions without examination on the merits. First, in its appeal decision of 12 January 2011 the court considered the complaints as falling outside of the scope of the administrative proceedings against the applicant; then, on 4 April 2011, in reply to the applicant’s separate action, it stated that the complaints should have been considered during those administrative proceedings (see paragraphs 51 and 53 above). It did not follow from those decisions that the applicant had any further possibility of seeking redress. The Court notes, in particular, that they did not mention that the prosecutor’s office would have been the most appropriate authority in the circumstances.", "115. In the light of the above considerations, the Court concludes that the legal avenue put forward by the Government did not constitute an effective remedy that could have been used to prevent the alleged violations or their continuation and to provide the applicant with adequate and sufficient redress for his complaints under Article 3 of the Convention. Accordingly, the Court dismisses the Government’s objection of non‑exhaustion of domestic remedies. 116. The Court also finds that the applicant did not have at his disposal an effective domestic remedy for his complaint about the poor conditions of detention, in breach of Article 13 of the Convention.", "2. Alleged violation of Article 3 of the Convention 117. The Court observes that the Government did not accept the applicant’s description of the conditions of detention at the police station. However, it agrees with the applicant that the Government have failed to corroborate the alternative account with any evidence. Moreover, they did not challenge the authenticity or the accuracy of the report issued by two members of a public commission for the monitoring of detention facilities, who had visited the police station on 1 January 2011 specifically to inspect the conditions of the applicant’s detention.", "The Court has no reason to doubt the findings of the commission and will accept their report as a basis for establishing the facts relating to the conditions of the applicant’s detention pending trial. 118. It follows that the applicant was detained for about forty hours in a solitary cell measuring about 5 sq. m, which was poorly lit, had a concrete floor, no window, no ventilation, no sanitary equipment and no furniture except for a bench. Likewise, it considers it established that the applicant was not provided with a mattress, bedding or hot food and had to rely on provisions brought by his family.", "119. The Court reiterates that it has already examined the conditions of detention obtaining in police stations in various Russian regions and found them to be in breach of Article 3 (see Kuptsov and Kuptsova v. Russia, no. 6110/03, § 69 et seq., 3 March 2011; Nedayborshch v. Russia, no. 42255/04, § 32, 1 July 2010; Khristoforov v. Russia, no. 11336/06, §§ 23 et seq., 29 April 2010; Shchebet v. Russia, no.", "16074/07, §§ 86-96, 12 June 2008; Fedotov v. Russia, no. 5140/02, § 67, 25 October 2005; Ergashev v. Russia, no. 12106/09, §§ 128-34, 20 December 2011; and Salikhov v. Russia, no. 23880/05, §§ 89-93, 3 May 2012). It found a violation of Article 3 in a case where an applicant had been kept for twenty‑two hours in an administrative‑detention police cell without food or drink or unrestricted access to a toilet (see Fedotov, cited above § 68).", "In a different case, it noted that a similar cell designed for short-term administrative detention not exceeding three hours was not suitable for four days’ detention because by its design, it lacked the amenities indispensable for prolonged detention. The cell did not have a toilet or a sink. It was solely equipped with a bench, there being no chair or table or any other furniture, and the applicant’s food was brought by relatives (see Ergashev, cited above, § 131). 120. In the present case the Court finds the same deficiencies.", "Having regard to the cumulative effect of the factors analysed above, it considers that the conditions in which the applicant was held at the police station diminished his dignity and caused him distress and hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. It follows that the conditions of the applicant’s detention amounted to inhuman and degrading treatment. 121. There has therefore been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention at the Tverskoy District police station from 31 December 2010 to 2 January 2011. V. ALLEGED VIOLATION OF ARTICLES 3 AND 6 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS AT THE COURT HEARING 122.", "The applicant alleged that at the beginning of the hearing on 2 January 2011 the Justice of the Peace had ordered him to stand during the trial because apparently there had been no seat for him. The Government, for their part, confirmed that the applicant had been standing during the hearing but denied that he had been obliged to do so by the judge. 123. The Court reiterates that in order to fall within the scope of Article 3 ill-treatment must attain a minimum level of severity, which depends on all the circumstances of the case (see T. v. the United Kingdom [GC], no. 24724/94, § 68, 16 December 1999).", "Allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006‑IX). 124. In the present case, the applicant has submitted no proof, such as statements by eyewitnesses present in the courtroom, that the judge had compelled him to remain standing during the hearing.", "The Court considers that although a court order for a defendant to stand throughout the trial could, in principle, raise an issue under Article 3 of the Convention, in the circumstances of the present case the applicant has failed to substantiate this claim. The Court finds that this part of the application is manifestly ill‑founded and should be rejected, pursuant to Article 35 §§ 3 and 4 of the Convention 125. In so far as the applicant could claim that being obliged to stand had affected his participation in the administrative proceedings, the Court refers to its finding of a violation of Article 6 on account of the gross overall arbitrariness of these proceedings and to its decision to dispense with examining the applicant’s other specific complaints under Article 6 §§ 1 and 3 of the Convention (see paragraph 95 above). Accordingly, there is no need to examine this complaint from the standpoint of Article 6. VI.", "ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION 126. The applicant complained that his arrest and detention on administrative charges had pursued the aim of undermining his right to freedom of assembly and freedom of expression. He relied on Article 18 of the Convention, which reads as follows: “The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” 127. In their submissions under this head the parties reiterated their arguments as regards the alleged interference with the right to freedom of assembly, the reasons for the applicant’s deprivation of liberty and the guarantees of a fair hearing in the administrative proceedings against him. 128.", "The Court notes that this complaint is linked to the complaints examined above under Articles 5, 6, and 11 of the Convention and must therefore likewise be declared admissible. 129. It has found above that the applicant had been arrested, detained and convicted of an administrative offence arbitrarily and unlawfully and that this had had an effect of preventing or discouraging him and others from participating in protest rallies and engaging actively in opposition politics (see paragraphs 77-78 and 103 above). 130. Having regard to those findings, the Court considers that the complaint under Article 18 of the Convention raises no separate issue and it is not necessary to examine whether, in this case, there has been a violation of that provision.", "VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 131. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 132. The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage.", "133. The Government contested this claim as unreasonable and excessive. They considered that it was out of line with the Court’s awards in similar cases and considered that a finding of a violation would constitute sufficient just satisfaction to the applicant. 134. The Court observes that it has found a violation of Articles 3, 5, 6, 11 and 13 in respect of the applicant.", "In these circumstances, the Court considers that the applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, it awards the applicant EUR 26,000 in respect of non‑pecuniary damage. B. Costs and expenses 135. The applicant also claimed 100,000 roubles (RUB) for the costs and expenses incurred before the Court.", "He submitted a legal services agreement between him and Ms O. Mikhaylova and copies of payment receipts. 136. The Government pointed out that costs and expenses may only be awarded if a violation had been found. They did not contest the amounts claimed. 137.", "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 for the proceedings before the Court. C. Default interest 138. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the complaints concerning the applicant’s arrest, detention and conviction for an administrative offence, the complaint about the conditions of his detention and the absence of an effective remedy and the complaint about the undue purposes of the above restrictions admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 11 of the Convention; 3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the arbitrary conviction of the applicant for an administrative offence; 4. Holds that there has been a violation of Article 5 § 1 of the Convention on account of the arbitrary arrest and detention of the applicant; 5. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of detention; 6.", "Holds that there has been a violation of Article 13 in conjunction with Article 3 of the Convention; 7. Holds that there is no need to examine the remainder of the complaints under Articles 5 and 6 of the Convention; 8. Holds that there is no need to examine the complaint under Article 18 of the Convention; 9. 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 26,000 (twenty-six thousand euros), plus any tax that may be chargeable to the applicant, in respect of non-pecuniary damage; (ii) EUR 2,500 (two thousand and 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; 10. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 31 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]