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[ "CASE OF ÇAKICI v. TURKEY (Application no. 23657/94) JUDGMENT STRASBOURG 8 July 1999 In the case of Çakıcı v. Turkey, The European Court of Human Rights, sitting, in accordance with Article 27 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), as amended by Protocol No. 11[1], and the relevant provisions of the Rules of Court2, as a Grand Chamber composed of the following judges: MrL. Wildhaber, President,MrsE. Palm,MrL.", "Ferrari Bravo,MrL. Caflisch,MrJ.-P. Costa,MrW. Fuhrmann,MrK. Jungwiert,MrM. Fischbach,MrB.", "Zupančič,MrsN. Vajić,MrJ. Hedigan,MrsW. Thomassen,MrsM. Tsatsa-Nikolovska,MrT.", "Panţîru,MrE. Levits,MrK. Traja,MrF. Gölcüklü, ad hoc judge, and also of Mrs M. de-Boer-Buquicchio, Deputy Registrar, Having deliberated in private on 24 March and 17 June 1999, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case was referred to the Court, as established under former Article 19 of the Convention[3], by the European Commission of Human Rights (“the Commission”) on 14 September 1998, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention.", "It originated in an application (no. 23657/94) against the Republic of Turkey lodged with the Commission under former Article 25 by a Turkish national, Mr İzzet Çakıcı, on 2 May 1994. The Commission’s request referred to former Articles 44 and 48 and to the declaration whereby Turkey recognised the compulsory jurisdiction of the Court (former Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 2, 3, 5, 13, 14 and 18 of the Convention. 2.", "In response to the enquiry made in accordance with Rule 33 § 3 (d) of former Rules of Court A[2], the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (former Rule 30). 3. As President of the Chamber which had originally been constituted (former Article 43 of the Convention and former Rule 21) in order to deal, in particular, with procedural matters that might arise before the entry into force of Protocol No. 11, Mr R. Bernhardt, the President of the Court at the time, acting through the Deputy Registrar, consulted the Agent of the Turkish Government (“the Government”), the applicant’s lawyer and the Delegate of the Commission on the organisation of the written procedure. Pursuant to the order made in consequence, the Registrar received the applicant’s memorial on 23 December 1998 and the Government’s memorial on 4 January 1999.", "4. After the entry into force of Protocol No. 11 on 1 November 1998 and in accordance with the provisions of Article 5 § 5 thereof, the case was referred to the Grand Chamber of the Court. The Grand Chamber included ex officio Mr R. Türmen, the judge elected in respect of Turkey (Article 27 § 2 of the Convention and Rule 24 § 4 of the Rules of Court), Mr L. Wildhaber, the President of the Court, Mrs E. Palm, Vice-President of the Court, and Mr J.-P. Costa and Mr M. Fischbach, Vice-Presidents of Sections (Article 27 § 3 of the Convention and Rule 24 §§ 3 and 5 (a)). The other members appointed to complete the Grand Chamber were Mr L. Ferrari Bravo, Mr L. Caflisch, Mr W. Fuhrmann, Mr K. Jungwiert, Mr B. Zupančič, Mrs N. Vajić, Mr J. Hedigan, Mrs W. Thomassen, Mrs M. Tsatsa-Nikolovska, Mr T. Panţîru, Mr E. Levits and Mr K. Traja (Rule 24 § 3 and Rule 100 § 4).", "5. On 7 January 1999, Mr Wildhaber exempted Mr Türmen from sitting; the latter had withdrawn following a decision taken by the Grand Chamber under Rule 28 § 4. On 10 February 1999, the Government informed the Registrar of the appointment of Mr F. Gölcüklü as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 6. At the Court’s invitation (Rule 99), the Commission delegated one of its members, Mrs J. Liddy, to take part in the proceedings before the Grand Chamber.", "7. In accordance with the President’s decision, a hearing took place in public in the Human Rights Building, Strasbourg, on 24 March 1999. There appeared before the Court: (a)for the GovernmentMrsD. Akçay, Agent,Mr B. Calişkan,Mr E. Genel,Ms A. Günyakti,Mr H. Mutaf,Advisers; (b)for the applicantMs F. Hampson,Ms A. Reidy,Counsel; (c)for the CommissionMrs J. Liddy,Delegate. The Court heard addresses by Mrs Liddy, Ms Hampson and Mrs Akçay.", "THE FACTS I. the circumstances of the case A. The applicant 8. The applicant, Mr İzzet Çakıcı, is a Turkish citizen who was born in 1953 and is at present living in Diyarbakır in south-east Turkey. His application to the Commission was brought on his own behalf and on behalf of his brother Ahmet Çakıcı, who, he alleges, has disappeared in circumstances engaging the responsibility of the State. B.", "The facts 9. The facts surrounding the disappearance of the applicant’s brother are disputed. 10. The facts presented by the applicant are contained in Section 1 below. In his memorial to the Court, the applicant relied on the facts as established by the Commission in its report (former Article 31 of the Convention) adopted on 12 March 1998 and his previous submissions to the Commission.", "11. The facts as presented by the Government are set out in Section 2. 12. A description of the materials submitted to the Commission is contained in Part C. A description of the proceedings before the domestic authorities regarding the disappearance of the applicant’s brother as established by the Commission is set out in Part D. 13. The Commission, with a view to establishing the facts in the light of the dispute over the circumstances surrounding the disappearance of the applicant’s brother, conducted its own investigation pursuant to former Article 28 § 1 (a) of the Convention.", "To this end, the Commission examined a series of documents submitted by both the applicant and the Government in support of their respective assertions and appointed three delegates to take the evidence of witnesses at hearings conducted in Ankara on 3 and 4 July 1996 and in Strasbourg on 4 December 1996. The Commission’s evaluation of the evidence and its findings thereon are summarised in Part E. 1. Facts as presented by the applicant 14. On 8 November 1993, the applicant’s brother, Ahmet Çakıcı, was detained during an operation in the village of Çitlibahçe carried out by gendarmes and village guards. When the operation commenced early in the morning, Ahmet Çakıcı hid in a house near the fountain while the other men were gathered in an open area.", "The security forces began setting fire to the houses. Ahmet Çakıcı retrieved money, 4,700,000 Turkish liras (TRL), which he had hidden in the roof of his house and was caught leaving the house. Ahmet Çakıcı was taken from the village by the security forces. This was witnessed by the other villagers. The money was taken from Ahmet Çakıcı by a first lieutenant.", "Remziye Çakıcı, Ahmet Çakıcı’s wife, was told by a boy from the village that he had seen a gendarme take money from Ahmet Çakıcı. 15. Ahmet Çakıcı was first taken to Hazro, where he was kept overnight before being taken to Diyarbakır. In Diyarbakır, he was detained at the provincial gendarmerie headquarters. After about six to seven days, he was held for sixteen to seventeen days in the same room as Mustafa Engin, Abdurrahman Al and Tahsin Demirbaş, who had been taken into custody on 8 November 1993 by the security forces in an operation at Bağlan.", "Ahmet Çakıcı had been beaten, a rib being broken and his head split open. He was taken out of the room for interrogation on several occasions, when he received electric shocks and was beaten. Mustafa Engin was also told by Ahmet Çakıcı that a first lieutenant had taken money from him. At the end of this period, the other three detainees were brought before the court. Engin and Demirbaş were released and Abdurrahman Al was remanded in custody.", "Engin did not see Ahmet Çakıcı again. 16. After eighty-five days at the provincial gendarmerie headquarters, in or about late January-early February 1994, Ahmet Çakıcı was taken back to Hazro where he was detained for several months. From there he was moved to the gendarmerie station at Kavaklıboğaz. During a period of thirteen days in or about spring or early summer 1994, Hikmet Aksoy, who was also detained at Kavaklıboğaz, saw Ahmet Çakıcı when they were taken out of the cells for meals.", "At the end of that period, Hikmet Aksoy was transferred to Lice. 17. In May 1996, following the transmission of Government submissions, the applicant learned for the first time that it was claimed by the authorities that Ahmet Çakıcı had been killed in a clash between 17 and 19 February 1995 on Kıllıboğan Hill, Hani. The identification appeared to be based solely on the claim that Ahmet Çakıcı’s identification card was found on one of the bodies. 2.", "Facts as presented by the Government 18. The Government recall that at this time the PKK (the Workers’ Party of Kurdistan) had destroyed numerous villages, inflicted suffering on thousands of innocent victims and exerted intolerable oppression over the population of the south-east region. 19. They state that Ahmet Çakıcı was not taken into custody by the security forces during the operation carried out at Çitlibahçe on 8 November 1993 and was not held in detention over any subsequent period. The custody records indicated that he was not held at Hazro or at Diyarbakır provincial gendarmerie headquarters.", "Nor was he was taken to the gendarmerie station at Kavaklıboğaz. 20. Ahmet Çakıcı was a militant member of the PKK organisation. Following an armed clash between the PKK and the security forces on 17 to 19 February 1995, he had been found dead with fifty-five other militants at Kıllıboğan Hill. Ahmet Çakıcı had been implicated in the killing on 23 October 1993 of five teachers from Dadaş whom he had reportedly described as “servile dogs of the State”.", "He most probably disappeared after this incident with the intention of escaping justice and continuing his activities for the PKK. 21. No complaint was made to the public prosecutor at Hasro by any member of the applicant’s family in respect of the alleged disappearance. C. Materials submitted by the applicant and the Government to the Commission in support of their respective assertions 22. In the proceedings before the Commission, the applicant and the Government submitted a number of statements by the applicant, which he had made to the Human Rights Association in Diyarbakır (HRA) and to the public prosecutor at Diyarbakır.", "Statements had also been taken by the HRA and the public prosecutor from Remziye Çakıcı, the wife of Ahmet Çakıcı, and Mustafa Engin, who had been detained from 9 November to 1 December 1993 at Diyarbakır provincial gendarmerie headquarters. Mustafa Engin had also made a statement to a police officer. Statements had been taken by Osman Baydemir, on behalf of the applicant, from Abdurrahman Al, who had been detained at the same time as Mustafa Engin, and from two villagers, Mehmet Bitgin and Fevzi Okatan. 23. The Government also provided an arrest report dated 8 November 1993 concerning the apprehension of Mustafa Engin, Abdurrahman Al and Tahsin Demirbaş, two operation reports dated 7 and 8 November 1993 respectively concerning the operation at Çitlibahçe village, documents concerning the witness Hikmet Aksoy whom the Commission’s delegates had summoned to give evidence but who did not appear and documents relating to inquiries made by the authorities into the allegations.", "24. The Commission requested copies of the custody records for the relevant period for Hazro gendarmerie station, Lice gendarmerie station, Diyarbakır provincial gendarmerie headquarters and the gendarmerie station at Kavaklıboğaz. The Commission’s delegates further requested the opportunity to inspect the original records of Hazro, Diyarbakır and Kavaklıboğaz. The Government provided the original custody record of the Hazro central gendarmerie station as well as copies of the custody record of Lice gendarmerie headquarters and Diyarbakır provincial gendarmerie headquarters for the relevant period. The Government did not provide the Commission’s delegates with sight of the original custody record for Diyarbakır provincial gendarmerie headquarters, or with either a copy of, or sight of, the original custody record for the gendarmerie station of Kavaklıboğaz.", "D. Proceedings before the domestic authorities 25. On 22 December 1993, Tevfik Çakıcı, the father of the applicant and Ahmet Çakıcı, submitted a handwritten petition to the Diyarbakır National Security Court requesting information as to what had happened to Ahmet Çakıcı, who had been taken into custody on 8 November 1993 by the security forces at the same time as Mustafa Engin, Abdurrahman Al and Tahsin Demirbaş, who had been released twenty-four days later. An oral reply was given to him that Ahmet Çakıcı was not on the list of persons in custody. 26. By letter dated 4 April 1994, the Hazro public prosecutor, Aydın Tekin, informed the Chief Public Prosecutor at the Diyarbakır National Security Court that, on examination of their records, Ahmet Çakıcı had not been taken into custody or detained on 8 November 1993.", "27. By letter dated 19 April 1994 to the Chief Public Prosecutor at the Diyarbakır National Security Court, the Hazro public prosecutor, Aydın Tekin, confirmed his letter of 4 April 1994 and stated that no application had been filed by Ahmet Çakıcı’s family to the effect that he was missing. 28. By letter dated 18 August 1994, the Ministry of Justice (General Directorate for International Law and External Relations), referring to correspondence from the Foreign Ministry of 19 July 1994 outlining the complaints made by the applicant to the European Commission of Human Rights, requested the Diyarbakır Attorney-General to have the applicant’s complaints investigated and evaluated according to law. 29.", "On 9 September 1994, the applicant’s statement was taken by a public prosecutor at Diyarbakır. In his statement, he stated that his brother Ahmet Çakıcı had been taken into custody by soldiers on 8 November 1993 and that he had been seen by Mustafa Engin and Tahsin Demirbaş, who were also detained. On 25 November 1994, the public prosecutor took a statement from Remziye Çakıcı. She stated that gendarmes had taken away her husband during an operation on 8 November 1993. 30.", "By letter dated 1 December 1994, Colonel Eşref Hatipoğlu of Diyarbakır provincial gendarmerie command informed the Diyarbakır Attorney-General, in reply to a letter of enquiry of 22 November 1994, that their records indicated that Ahmet Çakıcı had not been detained on 8 November 1994 [error for 1993]. 31. By letter dated 8 December 1994, Colonel Eşref Hatipoğlu reported to the Diyarbakır provincial authorities on the subject of the applicant’s application to the European Commission of Human Rights. It was reported, inter alia, that police officers had been unable to find the addresses of the applicant, his father, Ahmet Çakıcı, Mustafa Engin, Abdurrahman Al or Tahsin Demirbaş for the purpose of taking their statements. It had been established that Ahmet Çakıcı, who was alleged to be missing, was involved with the PKK, having participated in killings.", "He was reported to have been a member of the PKK mountain team which, on 23 October 1993, kidnapped seven persons (five teachers, an imam and the imam’s brother) from Dadaş village and killed five of them. Their headquarters were looking for him. 32. By letter dated 1 March 1995, Colonel Eşref Hatipoğlu forwarded to Hazro district gendarmerie command documents found in the area and upon the bodies of fifty-six terrorists found dead as a result of an operation carried out in the Kıllıboğan region from 17-19 February 1995. 33.", "By letter dated 14 March 1995, Hazro public prosecutor Mustafa Turhan requested that the Lice public prosecutors investigate whether Mustafa Engin and Tahsin Demirbaş were detained by the gendarmes on 8 November 1993, and that they seek observations from Mustafa Engin concerning Ahmet Çakıcı, who was alleged to have disappeared in custody. 34. By letter dated 14 April 1995, Hazro public prosecutor Mustafa Turhan requested the Hazro district gendarmerie command urgently to inform him concerning the operation carried out in Çitlibahçe on 8 November 1993 and to investigate and establish whether Ahmet Çakıcı had been detained along with Mustafa Engin, Abdurrahman Al and Tahsin Demirbaş. 35. By letter dated 17 May 1995, the Hazro district gendarmerie command informed the Hazro public prosecutor in reply that the operation on 8 November 1993 had been intended to capture members of the PKK and those aiding and abetting them and that their records indicated that Ahmet Çakıcı, Mustafa Engin, Abdurrahman Al and Tahsin Demirbaş had not been detained.", "36. By letter dated 22 May 1995, the Hazro public prosecutor requested the Hazro district gendarmerie command as a matter of urgency to establish the whereabouts of Ahmet Çakıcı. 37. By letter dated 23 June 1995 to the Hazro public prosecutor, the district gendarmerie command at Hazro referred to the prosecutor’s enquiry dated 22 May 1995 about the whereabouts of Ahmet Çakıcı and to the letter dated 1 March 1995 from the Diyarbakır provincial gendarmerie command. It stated that Ahmet Çakıcı had been a member of the PKK.", "Following an operation carried out at Kıllıboğan Hill on 17-19 February which resulted in the deaths of fifty-six terrorists, Ahmet Çakıcı’s identity was established by the identity card located amongst the documents found on the body of a terrorist. It was concluded that he was one of the terrorists. 38. By letter dated 27 June 1995, the Hazro public prosecutor informed the Diyarbakır Attorney-General, in reference to their letter of 1 December 1994 and the letter of the Ministry of Justice of 18 August 1994, that an operation had been carried out on 8 November 1993 in order to apprehend members of the PKK and those assisting them and that Ahmet Çakıcı, Mustafa Engin and Tahsin Demirbaş had not been detained as claimed. Referring to the letter of 23 June 1995 above, it was stated that Ahmet Çakıcı was a member of the PKK and found dead during operations carried out in the Kıllıboğan Hill region, Hani district, on 17-19 February 1995.", "The Lice public prosecutor had been requested to obtain a statement from Mustafa Engin, a response to which was still awaited. 39. By letter dated 4 July 1995, the Hazro public prosecutor’s office informed the Ministry of Justice (Directorate of International Law and Foreign Affairs) of the information provided by the Hazro gendarmes (see paragraph 37 above). It stated that a preliminary investigation (no. 1994/191) had been started and was still pending.", "40. By letter dated 5 March 1996, the Hazro public prosecutor informed the Ministry of Justice that upon its request the Diyarbakır Attorney-General had been instructed to take a statement from Mustafa Engin. 41. On 12 March 1996, a police officer took a brief statement from Mustafa Engin in which it was stated that he had not seen Ahmet Çakıcı for three years. On 13 May 1996, a public prosecutor at Diyarbakır took a statement from Mustafa Engin.", "In this statement, he stated, inter alia, that he had not seen Ahmet Çakıcı in custody though Ahmet Çakıcı might have seen him and referred to himself having been given electric shocks once while he was detained at Diyarbakır provincial gendarmerie headquarters. 42. By decision of 13 June 1996, Hazro public prosecutor Mustafa Turhan issued a decision of lack of jurisdiction and transferred the file to the District Administrative Council. The decision named the applicant and Remziye Çakıcı as the complainants and identified the victim as Ahmet Çakıcı. The offence was described as ill-treatment, torture and confiscation of money of a detainee and the defendants as unidentified individuals of Hazro gendarmerie station and village guards.", "It stated that the complainants claimed that soldiers from Hazro gendarmerie command arrived in Çitlibahçe on the morning of 8 November 1993 and detained the victim, that the victim had been taken to Diyarbakır where he was tortured and that a lieutenant had removed TRL 4,280,000 from him. The investigation had established that the victim was a member of the PKK terrorist organisation and that following an operation by the security forces in the Kıllıboğan Hill region on 17 and 19 February the victim’s identity card had been located on one of the dead terrorists, thus confirming the individual’s identity as Ahmet Çakıcı without doubt. Mustafa Engin had made a statement to the effect that he had not seen Ahmet Çakıcı. The suspects fell under the Law on the prosecution of civil servants and following the withdrawal by the Hazro prosecution the documentation was transferred to the Presidency of Hazro District Administrative Council for the necessary action. E. The Commission’s evaluation of the evidence and its findings of fact 43.", "Since the facts of the case were disputed, particularly concerning the events in or around November 1993, the Commission conducted an investigation, with the assistance of the parties, and accepted documentary evidence, including written statements and oral evidence taken from eleven witnesses: the applicant; Fevzi Okatan, previous muhtar of Çitlibahçe; Remziye Çakıcı, the wife of Ahmet Çakıcı; Mustafa Engin, who had been detained at Diyarbakır provincial gendarmerie headquarters from 9 November to 1 December 1993; Ertan Altınoluk, who had been gendarmerie commander of Hazro in November 1993 and had commanded the operation at Çitlibahçe on 8 November 1993; Mehmet Bitgin, a villager from Çitlibahçe; Mustafa Turhan, public prosecutor in Hazro from November 1994; Aytekin Türker, the Hazro central station commander at Hazro district gendarmerie headquarters from July 1993 to August 1994; Ahmet Katmerkaya, the gendarme responsible for keeping the custody records at Diyarbakır provincial gendarmerie headquarters since August 1992; Kemal Çavdar, a gendarme who had served at Kavaklıboğaz station from July 1993 to August 1995; and Abdullah Cebeci, the brother of the imam who had been kidnapped with five teachers from Dadaş. A further six witnesses had been summoned but did not appear: Aydın Tekin, Hazro public prosecutor in 1994; Colonel Eşref Hatipoğlu, Diyarbakır provincial gendarmerie commander; Hikmet Aksoy, who was alleged by the applicant to have seen his brother in detention at Kavaklıboğaz; Tevfik Çakıcı, the father of the applicant and Ahmet Çakıcı; Tahsin Demirbaş and Abdurrahman Al, who had both been detained at Diyarbakır provincial gendarmerie headquarters from 8 November to 1 December 1993. It appeared that Tevfik Çakıcı had died prior to the hearing. The Government claimed that they were unable to locate the witness Hikmet Aksoy for the hearing in July 1996 despite the fact that they had been provided with information from the applicant that he was detained in Konya Prison. The Government stated that Hikmet Aksoy was served with the summons for the hearing to take place before the delegates on 20 November 1996 but that he refused to sign the acknowledgment of service and was released from prison on 18 November 1996.", "The Government failed to provide the Commission with any explanation as to the timing and reason for his release. Aydın Tekin had informed the Commission by letter that he had no direct or indirect knowledge of the incident and that he did not consider himself obliged to attend. At the hearing in July 1996, the Government Agent explained to the delegates that they were unable to require public prosecutors to attend, nor could they oblige a senior officer such as Eşref Hatipoğlu to attend either. The Commission made a finding in its report (at paragraph 245) that the Government had fallen short of their obligations under former Article 28 § 1 (a) of the Convention to furnish all the necessary facilities to the Commission in its task of establishing the facts. It referred to (i) the Government’s failure to provide the Commission’s delegates with the opportunity to view original custody records (see paragraph 24 above); (ii) the Government’s failure to facilitate the attendance of the witness Hikmet Aksoy; (iii) the Government’s failure to secure the attendance of the witnesses Aydın Tekin and Eşref Hatipoğlu.", "44. In relation to the oral evidence, the Commission was aware of the difficulties attached to assessing evidence obtained orally through interpreters. It therefore paid careful attention to the meaning and significance which should be attributed to the statements made by witnesses appearing before its delegates. In a case where there were contradictory and conflicting factual accounts of events, the Commission particularly regretted the absence of a thorough domestic judicial examination. It was aware of its own limitations as a first-instance tribunal of fact.", "In addition to the problem of language adverted to above, there was also an inevitable lack of detailed and direct familiarity with the conditions pertaining in the region. Moreover, the Commission had no power to compel witnesses to appear and testify. In the present case, while seventeen witnesses had been summoned to appear, only eleven gave evidence. The lack of documentary materials is adverted to above. The Commission was therefore faced with the difficult task of determining events in the absence of potentially significant testimony and evidence.", "The Commission’s findings may be summarised as follows. 1. The operation in Çitlibahçe village on 8 November 1993 45. Çitlibhaçe was in a district where terrorist activity was intense in 1993. On or about 23 October 1993, members of the PKK kidnapped five teachers, an imam and the imam’s brother, Abdullah Cebeci, from the village of Dadaş and marched them across country, passing near the village of Bağlan.", "Mustafa Engin was required to shelter one of the teachers, who was of Kurdish origin, overnight before allowing him to leave. The PKK shot and killed the remaining four teachers and the imam, while Abdullah Cebeci, though wounded, was able to reach safety. He gave the gendarmes at Lice gendarmerie headquarters descriptions of the persons whom he had seen, including the villagers who had brought food and stood guard. Bağlan was a village under the jurisdiction of Lice gendarmes. The kidnap victims had also passed close to the village of Çitlibahçe, less than a kilometre from Bağlan, but which was under the jurisdiction of the Hazro gendarmes.", "46. The gendarmes from Hazro and Lice conducted a coordinated operation on 8 November 1993. This operation concerned the collecting of evidence and information relating to the kidnapping and murder and the apprehension of persons suspected of involvement. Ertan Altınoluk was in command of the gendarmes from Hazro. The operation order drawn up by him on 7 November 1993 indicated that the purpose of the operation was the capture of PKK terrorists and their collaborators and the destruction of shelters, and it named Çitlibahçe as the place of the operation.", "The Commission rejected the testimony of Ertan Altınoluk that they were not looking for Ahmet Çakıcı when they went to Çitlibahçe. The delegates assessed his evidence as evasive and unhelpful, and demonstrating a lack of sincerity. The Commission had regard to the evidence from two other gendarmes that Ahmet Çakıcı was already wanted by the authorities in relation to suspected PKK involvement before this operation and found that in all probability the Hazro gendarmes went to Çitlibahçe with the intention of locating and apprehending Ahmet Çakıcı in relation to the kidnapping incident. 47. The Commission assessed the evidence of the witnesses from the village, Remziye Çakıcı, Fevzi Okatan and Mehmet Bitgin, who stated that they saw Ahmet Çakıcı being taken from the village by the gendarmes, as being on the whole consistent, credible and convincing.", "They found the Government’s objections to their credibility to be unfounded on examination. Accordingly, the Commission found that when the gendarmes arrived in Çitlibahçe on 8 November 1993, Ahmet Çakıcı attempted to hide but was found and taken from the village in custody by the Hazro gendarmes. Meanwhile, in Bağlan village, the Lice gendarmes took into detention three individuals, Mustafa Engin, Abdurrahman Al and Tahsin Demirbaş. 2. The alleged detention and ill-treatment of Ahmet Çakıcı 48.", "Mustafa Engin, Abdurrahman Al and Tahsin Demirbaş were taken to Lice gendarmerie headquarters where they spent the night. They were not entered into the custody records. The next day, on 9 November 1993, they were taken to Diyarbakır provincial gendarmerie headquarters, where entries in the custody record stated that they had been detained on that day. 49. The Hazro gendarmerie station custody record made no entry on 8 November with respect to Ahmet Çakıcı.", "Nor did the copies of the entries for the period November to December 1993 at the Diyarbakır provincial gendarmerie headquarters. The Commission examined in detail the entries for both. It found disturbing discrepancies. In particular, it found that entries were not in sequential or chronological order; that all the entries in the Diyarbakır custody record were in the same handwriting; and that the number of persons recorded as detained in Diyarbakır exceeded the officially available number of cells. This gave rise, inter alia, to a strong suspicion that entries were not made contemporaneously.", "The oral explanations of Ahmet Katmerkaya, who was responsible for the Diyarbakır provincial gendarmerie records, were found by the Commission to be highly unsatisfactory, indicating that an entry in the register did not necessarily indicate the physical presence of a suspect and that no entries were made to reflect the movements of suspects in and out of the custody area. It concluded that the record did not constitute an accurate or comprehensive record of the persons who might have been detained over that period and the absence of Ahmet Çakıcı’s name in the Hazro and Diyarbakır records was not sufficient to prove that he had not been taken into custody. 50. The Commission accepted the oral evidence of Mustafa Engin, who stated that while he was detained at Diyarbakır provincial gendarmerie headquarters he saw and spoke to Ahmet Çakıcı, who was detained over a period of sixteen to seventeen days in the same room. It also accepted his evidence that Ahmet Çakıcı looked in a bad condition, with dried blood on his clothes, and that Ahmet Çakıcı had told him that he had been beaten, one of his ribs broken, his head split open and that he had been given electric shocks twice.", "Supporting evidence for the fact that Ahmet Çakıcı had been detained and ill-treated was to be found in the written statement of Abdurrahman Al, taken by the HRA. The Commission gave consideration to the written statements made by Mustafa Engin and relied on by the Government as undermining his oral testimony. It found the first statement taken from Mustafa Engin by a police officer on 12 March 1996 to be a brief and imprecise denial. The statement taken by a public prosecutor on 13 May 1996 was also brief and contained contradictory and ambiguous phrasing. It concluded that this statement was not a full and frank reflection of Mustafa Engin’s testimony and did not destroy the credibility of his evidence to the delegates.", "It accordingly found it established that Ahmet Çakıcı was taken after his apprehension at Çitlibahçe to Hazro where he spent the night of 8 November 1993 and that he was transferred to Diyarbakır provincial gendarmerie headquarters where he was last seen by Mustafa Engin on or about 2 December when the latter was released. 51. The Commission made no findings as to the allegation made by the applicant that Ahmet Çakıcı was taken from Diyarbakır provincial gendarmerie headquarters to Hazro and from Hazro to Kavaklıboğaz gendarmerie station. These allegations were based on oral statements made to the applicant by Hikmet Aksoy, who did not appear before the delegates and who had not produced any written statement. While there were some supporting elements, the Commission found that the evidence failed to reach the requisite standard of proof.", "3. The reports of Ahmet Çakıcı’s death 52. The family of Ahmet Çakıcı were not informed of his alleged death in a clash between the PKK and the security forces on 17 to 19 February 1995. Although Colonel Eşref Hatipoğlu had been requested to provide the authorities with information as to the whereabouts of Ahmet Çakıcı, he made no official report as to the alleged finding of Ahmet Çakıcı’s identity card on the body of one of the dead terrorists at Kıllıboğan Hill. The first report as to the finding of the identity card was made by the Hazro gendarmes, who had been passed information that the clash had occurred, accompanied by unspecified documents, by Colonel Hatipoğlu.", "There were however no documents provided to the Commission relating to the identification of the body or release of the body for burial. The Commission was not prepared to find it established that Ahmet Çakıcı was killed as alleged or that his body was amongst those found at Kıllıboğan Hill. 4. The investigation into the alleged disappearance of Ahmet Çakıcı 53. The Commission found that the applicant and his father, Tevfik Çakıcı, made petitions and enquiries to the National Security Court prosecutor at Diyarbakır in relation to the disappearance of Ahmet Çakıcı.", "The only steps taken by the authorities were to verify whether the National Security Court records contained the name of Ahmet Çakıcı and for an enquiry to be sent to the Hazro public prosecutor, who examined his records. 54. Following communication of the application to the Government, further enquiries were made by the Diyarbakır and Hazro public prosecutors. Statements were taken from Mustafa Engin, Remziye Çakıcı and the applicant. The addresses of Tahsin Demirbaş and Abdurrahman Al were not discovered.", "The Commission found that the Hazro public prosecutor made enquiries from the Hazro district gendarmerie as to their alleged apprehension of Ahmet Çakıcı but that he did not inspect the original custody record. Nor was any inspection carried out by a public prosecutor of the Diyarbakır provincial gendarmerie custody records. No steps were taken to verify the information submitted by the Hazro district gendarmerie that Ahmet Çakıcı was amongst the dead terrorists at Kıllıboğan Hill. 55. In reaching his decision of lack of jurisdiction of 13 June 1996, the Hazro public prosecutor had available to him the statements taken from Mustafa Engin, Remziye Çakıcı and the applicant and the information from the Hazro gendarmerie with regard to the alleged discovery of Ahmet Çakıcı’s body.", "He also may have had documents relating to the applicant’s application to the Commission and copies of custody records. II. relevant domestic law and practice 56. The Government have not submitted in their memorial any details on domestic legal provisions which have a bearing on the circumstances of this case. The Court refers to the overview of domestic law derived from previous submissions in other cases, in particular the Kurt v. Turkey judgment of 25 May 1998, Reports of Judgments and Decisions 1998-III, pp.", "1169-70, §§ 56-62, and the Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, pp. 1512-13, §§ 25-29. A. State of emergency 57. Since approximately 1985, serious disturbances have raged in the south-east of Turkey between the security forces and the members of the PKK (Workers’ Party of Kurdistan).", "This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces. 58. Two principal decrees relating to the south-eastern region have been made under the Law on the State of Emergency (Law no. 2935, 25 October 1983). The first, Decree no.", "285 (10 July 1987), established a regional governorship of the state of emergency in ten of the eleven provinces of south-eastern Turkey. Under Article 4 (b) and (d) of the decree, all private and public security forces and the Gendarmerie Public Peace Command are at the disposal of the regional governor. 59. The second, Decree no. 430 (16 December 1990), reinforced the powers of the regional governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8: “No criminal, financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree, and no application shall be made to any judicial authority to this end.", "This is without prejudice to the rights of individuals to claim indemnity from the State for damage suffered by them without justification.” B. Constitutional provisions on administrative liability 60. Article 125 §§ 1 and 7 of the Turkish Constitution provides as follows: “All acts or decisions of the administration are subject to judicial review ... … The administration shall be liable to make reparation for any damage caused by its own acts and measures.” 61. This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose liability is of an absolute, objective nature, based on the theory of “social risk”.", "Thus, the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property. 62. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing. C. Criminal law and procedure 63. The Turkish Criminal Code makes it a criminal offence: – to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants); – to issue threats (Article 191); – to subject an individual to torture or ill-treatment (Articles 243 and 245); – to commit unintentional homicide (Articles 452, 459), intentional homicide (Article 448) and murder (Article 450).", "64. For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not to bring a prosecution (Article 153). Complaints may be made in writing or orally. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.", "D. Civil-law provisions 65. Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Pursuant to Article 41 of the Code of Obligations, an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 of the Code of Obligations and non-pecuniary or moral damages awarded under Article 47. E. Impact of Decree no.", "285 66. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey. 67. The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region. Decree no.", "285, Article 4 § 1, provides that all security forces under the command of the regional governor (see paragraph 58 above) shall be subject, in respect of acts performed in the course of their duties, to the Law of 1914 on the prosecution of civil servants. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non-jurisdiction and transfer the file to the Administrative Council. These councils are made up of civil servants, chaired by the governor. A decision by the Council not to prosecute is subject to an automatic appeal to the Supreme Administrative Court. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case.", "PROCEEDINGS BEFORE THE COMMISSION 68. Mr İzzet Çakıcı applied to the Commission on 2 May 1994. He alleged that his brother Ahmet Çakıcı had been taken into custody by the security forces and had since disappeared and that these events had not been adequately investigated by the authorities. He relied on Articles 2, 3, 5, 13, 14 and 18 of the Convention. 69.", "The Commission declared the application (no. 23657/94) admissible on 15 May 1995. In its report of 12 March 1998 (former Article 31 of the Convention), it expressed the opinion that there had been a violation of Article 2 in respect of the disappearance of the applicant’s brother (unanimously); that there had been a violation of Article 3 in respect of the applicant’s brother (unanimously); that there had been a violation of Article 5 in respect of the disappearance of the applicant’s brother (unanimously); that there had been a violation of Article 3 in respect of the applicant (by twenty-seven votes to three); that there had been a violation of Article 13 (unanimously); and that there had been no violation of Articles 14 and 18 of the Convention (unanimously). The full text of the Commission’s opinion and of the partly dissenting opinion contained in the report is reproduced as an annex to this judgment[3]. FINAL SUBMISSIONS TO THE COURT 70.", "The applicant requested the Court in his memorial to find that the respondent State was in violation of Articles 2, 3, 5, 13, 14 and 18 of the Convention and that it had not fulfilled its obligations under former Article 28 § 1 (a). He requested the Court to award him and his brother’s wife and heirs just satisfaction under Article 41. 71. The Government, for their part, requested the Court in their memorial to reject the case as inadmissible on account of the applicant’s failure to exhaust domestic remedies. In the alternative, they argued that the applicant’s complaints were not substantiated by the evidence.", "THE LAW I. the court’s assessment of the facts 72. The Court recalls its established case-law that under the Convention system prior to 1 November 1998 the establishment and verification of the facts were primarily a matter for the Commission (former Articles 28 § 1 and 31). While the Court is not bound by the Commission’s findings of fact and remains free to make its own assessment in the light of all the material before it, it is only in exceptional circumstances that it will exercise its powers in this area (see, amongst other authorities, the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1214, § 78). 73. The Government, in their memorial and oral pleadings, submitted that the Commission’s evaluation of the evidence was defective in that it had, inter alia, failed to take into account certain contradictions and weaknesses in the testimony of the applicant, Remziye Çakıcı and Mustafa Engin and had taken into account irrelevant matters, such as the alleged defects in custody records.", "They invited the Court to reconsider the Commission’s findings of fact. 74. In the instant case, the Court recalls that the Commission reached its findings of fact after a delegation had heard evidence in Ankara and in Strasbourg (see paragraph 43 above). It finds that the Commission approached its task of assessing the evidence before it with the requisite caution, giving detailed consideration to the elements which supported the applicant’s account and those which cast doubt on its credibility. In particular, the Commission scrutinised carefully the evidence deriving from Mustafa Engin and Ertan Altınoluk, the gendarmerie officer who conducted the operation at the village of Çitlibahçe.", "75. In the Court’s view, the criticisms made by the Government do not disclose any matter of substance which might warrant the Court exercising its own powers of verifying the facts. In these circumstances, the Court accepts the facts as established by the Commission. 76. In addition to the difficulties inevitably arising from a fact-finding exercise of this nature, the Commission was unable to obtain certain documentary evidence and testimony that it deemed essential for the fulfilment of its functions.", "The Commission found that the Government had failed to provide the Commission’s delegates with the opportunity to inspect original custody records, to facilitate the attendance of the witness Hikmet Aksoy and to secure the attendance before the delegates of two State officials, Aydın Tekin (a public prosecutor) and Colonel Eşref Hatipoğlu (a gendarmerie officer) (see paragraph 43 above). The Court notes that it is of the utmost importance for the effective operation of the system of individual petition instituted under former Article 25 of the Convention (now replaced by Article 34) not only that applicants or potential applicants are able to communicate freely with the Convention organs without being subjected to any form of pressure from the authorities but also that States furnish all necessary facilities to enable a proper and effective examination of applications (see former Article 28 § 1 (a) of the Convention, which concerned the fact-finding responsibility of the Commission, now replaced by Article 38 of the Convention as concerns the Court’s procedures). The Court also notes the lack of explanation given by the Government with regard to the custody records, and finds the explanations given by the Government in respect of the witnesses unsatisfactory and unconvincing. Consequently, it confirms the finding, reached by the Commission in its report, that in this case the Government fell short of their obligations under former Article 28 § 1 (a) to furnish all necessary facilities to the Commission in its task of establishing the facts. II.", "the government’s preliminary objection 77. The Government maintained that the applicant had not exhausted domestic remedies as required by Article 35 of the Convention by making proper use of the redress available through the procedure of instituting criminal proceedings, or by lodging claims before the civil or administrative courts. They invoked the Court’s judgment in the Aytekin case (Aytekin v. Turkey judgment of 23 September 1998, Reports 1998-VII) as establishing that the Turkish authorities showed no reluctance in instituting criminal proceedings against members of the security forces and that civil and administrative remedies were effective. They submitted, in particular, that the applicant did not petition the public prosecutor as claimed in respect of the alleged disappearance of his brother, since the petition of 22 December 1993 bore no address, or any stamp of receipt or registration indicating that it had been received by the prosecutor’s office. 78.", "The applicant’s counsel at the hearing maintained that the applicant’s father had presented a petition at the Diyarbakır National Security Court public prosecutors’ office and stated that there was no invariable practice of registering such petitions. Further, the petition clearly identified the applicant’s claim that his brother had been taken by the security forces and identified three witnesses to that fact. 79. The Commission, rejecting the Government’s arguments in its decision on admissibility, found that the applicant could be regarded as having brought his complaints before the relevant and competent authorities, who were under an obligation under Turkish law to investigate, and he was consequently not required to pursue any other legal remedy. 80.", "The Court observes that the Commission found that the applicant and his father had made petitions and enquiries to the National Security Court prosecutor in relation to the disappearance of Ahmet Çakıcı. The Court is also satisfied that their concerns were known to the prosecutors at both the Diyarbakır National Security Court and Hazro, since it is apparent that enquiries had been made from the former to the latter, as demonstrated by letters of 4 and 19 April 1994 (see paragraphs 26-27 above). However, the reaction of the authorities to the serious allegations in issue was marked notably by inertia. Notwithstanding that the applicant maintained his complaints in his statement to the public prosecutor of 9 September 1994, which were confirmed in Remziye Çakıcı’s statement of 12 November 1994, no measures were taken by public prosecutors beyond enquiries as to possible entries in custody records in Hazro and Diyarbakır and obtaining two brief, ambiguous statements from Mustafa Engin. Later, in 1995, there were no steps taken to verify the report that Ahmet Çakıcı’s body had been found or to seek documentary confirmation of the purported identification, by requesting copies of any autopsy report or burial records.", "In the absence of an effective investigation into the alleged disappearance and in light of the authorities’ repeated denial that Ahmet Çakıcı had ever been in custody, the Court finds that there was no basis for any meaningful recourse by the applicant to the civil and administrative remedies referred to by the Government, and the applicant must be regarded as having done everything that could reasonably be expected of him to exhaust the domestic remedies available to him (see the Kurt v. Turkey judgment of 25 May 1998, Reports 1998-III, pp. 1175-77, §§ 79-83). Consequently, the Court dismisses the Government’s preliminary objection. III. alleged violations of article 2 of the convention 81.", "The applicant alleged that his brother had been taken into unacknowledged detention and had since disappeared in circumstances which disclosed a violation of Article 2 of the Convention. This provision provides: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.", "Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Arguments of those who appeared before the Court 1. The applicant 82. The applicant referred to the Commission’s findings that his brother Ahmet Çakıcı had been ill-treated during an unacknowledged detention and that the authorities had claimed that he was dead as disclosing a very strong probability that his brother had died in circumstances for which the authorities were responsible. The applicant submitted that in respect of detained persons a government assumed a special obligation for their safety and their right to life and that there was a positive obligation on them to account for the detainee and produce him alive.", "Further, once it was determined that a suspicious death had occurred, there was an obligation on the State to conduct a thorough and effective investigation. In the present case, the public prosecutor took no steps even to investigate the claimed finding of Ahmet Çakıcı’s body. This was part of a systematic failure by public prosecutors to discharge their obligations under the Convention. 2. The Government 83.", "The Government submitted that Article 2 could not be properly invoked in the present case, relying, inter alia, on the Court’s approach in the Kurt case (Kurt judgment cited above, p. 1182, § 107), where there was found to be a lack of concrete indications that the applicant’s son had met his death during his unacknowledged detention. The Government also referred to the McCann case (McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324) as demonstrating the applicability of Article 2 in circumstances where the security forces were established as having caused the death of the person concerned, which, they argued, was not the position in this case. They repeated their criticisms of any findings which relied on the inconsistent statements of the applicant and Mustafa Engin concerning the alleged detention or ill-treatment of Ahmet Çakıcı. 3.", "The Commission 84. The Commission was of the opinion that in the circumstances of this case there was a very strong probability that Ahmet Çakıcı was no longer alive and that this, since it arose in the context of an unacknowledged detention and findings of ill-treatment, disclosed a failure by the authorities to comply with their obligations under Article 2. B. The Court’s assessment 85. The Court has accepted above the Commission’s establishment of the facts in this case, namely, that Ahmet Çakıcı was the victim of an unacknowledged detention and serious ill-treatment.", "As the Commission pointed out, very strong inferences may be drawn from the authorities’ claim that his identity card was found on the body of a dead terrorist. The Court finds on this basis that there is sufficient circumstantial evidence, based on concrete elements, on which it may be concluded beyond reasonable doubt that Ahmet Çakıcı died following his apprehension and detention by the security forces. This case is therefore to be distinguished from the Kurt case (Kurt judgment cited above, p. 1182, §§ 107-08), in which the Court examined the applicant’s complaints about the disappearance of her son under Article 5. In the Kurt case, although the applicant’s son had been taken into detention, no other elements of evidence existed as regarded his treatment or fate subsequent to that. 86.", "The Court reiterates that Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention and, together with Article 3 of the Convention, enshrines one of the basic values of the democratic societies making up the Council of Europe (see the McCann and Others judgment cited above, pp. 45-46, §§ 146-47). The obligation imposed is not exclusively concerned with intentional killing resulting from the use of force by agents of the State but also extends, in the first sentence of Article 2 § 1, to imposing a positive obligation on States that the right to life be protected by law. This requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, among other authorities, the Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2438, § 98). 87.", "As Ahmet Çakıcı must be presumed dead following an unacknowledged detention by the security forces, the Court finds that the responsibility of the respondent State for his death is engaged. It observes that no explanation has been forthcoming from the authorities as to what occurred following his apprehension, nor any ground of justification relied on by the Government in respect of any use of lethal force by their agents. Liability for Ahmet Çakıcı’s death is therefore attributable to the respondent State and there has accordingly been a violation of Article 2 on that account. Furthermore, having regard to the lack of effective procedural safeguards disclosed by the inadequate investigation carried out into the disappearance and the alleged finding of Ahmet Çakıcı’s body (see paragraphs 80 and 105-07), the Court finds that the respondent State has failed in its obligation to protect his right to life. Accordingly, there has been a violation of Article 2 of the Convention on this account also.", "IV. alleged violations of article 3 of the convention A. Concerning the applicant’s brother, Ahmet Çakıcı 88. The applicant alleged that his brother had been the victim of breaches by the respondent State of Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 89. The applicant submitted that his brother had been subjected to serious ill-treatment, amounting to torture, while detained at Hazro and at Diyarbakır provincial gendarmerie headquarters.", "He had, inter alia, been beaten and subjected to electric shocks. The applicant further submitted that the failure to provide an effective investigation into the circumstances of Ahmet Çakıcı’s detention disclosed an additional breach of Article 3, relying on Assenov and Others v. Bulgaria (judgment of 28 October 1998, Reports 1998-VIII, p. 3179, § 102). 90. The Government’s submissions on this aspect were restricted to their criticisms of the Commission’s assessment of the facts and of its alleged failure to apply a strict standard of interpretation in keeping with the case-law regarding Article 3 of the Convention. 91.", "The Commission considered that the evidence of Mustafa Engin, who had witnessed the after-effects of the ill-treatment of Ahmet Çakıcı and to whom Ahmet Çakıcı had spoken of being beaten and subjected to electric shocks, provided a sufficient basis for finding that Ahmet Çakıcı had been tortured. It expressed the consideration that in cases of unacknowledged detention and disappearance independent, objective medical evidence or eyewitness testimony was unlikely to be forthcoming and that to require either as a prerequisite of a finding of a violation of Article 3 would undermine the protection afforded by that provision. 92. The Court notes that Mustafa Engin’s evidence to the delegates was judged to be reliable and credible. This witness was detained in the same room as Ahmet Çakıcı for a period of sixteen to seventeen days and had the opportunity to see and talk to Ahmet Çakıcı.", "His evidence (see paragraph 50 above) was that he saw bloodstains on Ahmet Çakıcı’s clothing and that Ahmet Çakıcı was in a very poor physical condition. Ahmet Çakıcı told him that he had been beaten, that one of his ribs had been broken and his head split open. He was taken from the room in which they were held together and informed Mustafa Engin on his return that he had twice been given electric shocks, which treatment Mustafa Engin also stated that he received during interrogation. The Court shares the Commission’s opinion that this evidence supports a finding to the required standard of proof, i.e. beyond reasonable doubt, that Ahmet Çakıcı was tortured during his detention.", "There has, consequently, been a violation of Article 3 of the Convention in respect of the applicant’s brother, Ahmet Çakıcı. 93. The Court does not deem it necessary to make a separate finding under Article 3 in respect of the alleged deficiencies in the investigation, as it examines this aspect under Article 13 of the Convention below. B. Concerning the applicant 94.", "Relying, inter alia, on the Court’s judgment in the Kurt case (Kurt judgment cited above, pp. 1187-88, §§ 130-34), the applicant complained that the disappearance of his brother constituted inhuman treatment in relation to himself and other members of the family, including Remziye, Ahmet Çakıcı’s wife, and their children. He referred to the lack of information given to them by the authorities in answer to their enquiries and to the prolonged period of uncertainty as to the fate of Ahmet Çakıcı which continued to trap the family in a cycle of unfounded hope and inhibited the grieving process. 95. The Government disputed that the applicant might claim to be an indirect victim of a violation of the rights of his brother.", "In any event, they submitted that the links between the brothers were not particularly close and that this aspect of the application had not been the subject of any detailed examination necessary to reaching any findings on the point. 96. The majority of the Commission, referring to the long period of uncertainty, doubt and apprehension suffered by the applicant and to the failure of the authorities to account for what had happened to Ahmet Çakıcı, found that the applicant could claim to have been subjected to inhuman and degrading treatment contrary to Article 3 of the Convention. A minority of the Commission considered that the emotional stress caused to the applicant could not raise a separate issue, since otherwise the notion of victim would be extended unacceptably to a wide circle of those indirectly affected by violations of the Convention. 97.", "The Court notes that this complaint was examined before the Commission solely in relation to the applicant. According to the Commission’s decision on admissibility, no complaint was made in respect of Ahmet Çakıcı’s wife and children. The compass of the case before the Court being delimited by the Commission’s decision on admissibility (see, amongst other authorities, the McMichael v. the United Kingdom judgment of 24 February 1995, Series A no. 307-B, p. 50, § 71), the Court will accordingly examine this aspect of the application in relation to the applicant alone. 98.", "The Court observes that in the Kurt case (Kurt judgment cited above, pp. 1187-88, §§ 130-34), which concerned the disappearance of the applicant’s son during an unacknowledged detention, it found that the applicant had suffered a breach of Article 3 having regard to the particular circumstances of the case. It referred particularly to the fact that she was the mother of a victim of a serious human rights violation and herself the victim of the authorities’ complacency in the face of her anguish and distress. The Kurt case does not however establish any general principle that a family member of a “disappeared person” is thereby a victim of treatment contrary to Article 3. Whether a family member is such a victim will depend on the existence of special factors which gives the suffering of the applicant a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation.", "Relevant elements will include the proximity of the family tie – in that context, a certain weight will attach to the parent-child bond –, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. The Court would further emphasise that the essence of such a violation does not so much lie in the fact of the “disappearance” of the family member but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities’ conduct. 99. In the present case, the applicant was the brother of the disappeared person.", "Unlike the applicant in the Kurt case, he was not present when the security forces took his brother, as he lived with his own family in another town. It appears also that, while the applicant was involved in making various petitions and enquiries to the authorities, he did not bear the brunt of this task, his father Tevfik Çakıcı taking the initiative in presenting the petition of 22 December 1993 to the Diyarbakır National Security Court. Nor have any aggravating features arising from the response of the authorities been brought to the attention of the Court in this case. Consequently, the Court perceives no special features existing in this case which would justify finding an additional violation of Article 3 of the Convention in relation to the applicant himself. Accordingly, there has been no breach of Article 3 as concerns the applicant in this case.", "V. alleged violations of article 5 of the convention 100. The applicant submitted that the disappearance of his brother gave rise to multiple violations of Article 5, 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; ... 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.” 101. The applicant submitted that his brother, Ahmet Çakıcı, was detained by the security forces, being taken to Hazro for one night and then to Diyarbakır provincial gendarmerie headquarters where he was detained until at least 2 December 1993. His detention was not recorded in the relevant custody records and was denied by the authorities, thus depriving him of the safeguards that should accompany detention. He was not brought before a judicial officer within a reasonable time as required by Article 5 § 3, was denied access to a lawyer, doctor or relative, and was unable to challenge the lawfulness of his detention, as required by Article 5 § 4.", "There was also no prompt and effective investigation by the authorities into the family’s claim that Ahmet Çakıcı had been taken into custody, which, in the applicant’s view, constituted a separate violation of Article 5. 102. The Government, denying that Ahmet Çakıcı was taken into custody, maintained that the authorities furnished to the applicant all available information concerning his brother, in particular as regards the fact that his name did not appear in any custody record. They submitted that the Commission’s criticism of the custody registers was irrelevant to the facts of this case and, in any event, disproportionate. They took the view that it would not be possible to hold persons in detention for the period alleged without properly recording them in the relevant registers or instituting the appropriate judicial procedures.", "They also referred to their derogation under Article 15, citing the Aksoy case (Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI) in which the Court acknowledged the existence of a public emergency threatening the life of the nation as a result of the terrorist threat in south-east Turkey. 103. The Commission, finding that Ahmet Çakıcı had been arbitrarily deprived of his liberty by the security forces, held that the Government had not provided a credible or substantiated explanation of what had happened to him. When examining the safeguards in place to protect a detained person from involuntary disappearance, it observed that the custody registers for Lice, Hazro and Diyarbakır provincial gendarmerie headquarters disclosed omissions, irregularities and inconsistencies such that they could no longer be regarded as reliable or accurate. It was also not satisfied that the gendarmes were properly aware of, or put into practice, correct and effective registration procedures.", "104. The Court has frequently emphasised the fundamental importance of the guarantees contained in Article 5 for securing the rights of individuals in a democracy to be free from arbitrary detention at the hands of the authorities (see, amongst others, the Kurt judgment cited above, pp. 1184-85, § 122). In that context, it has repeatedly stressed that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrary detention (see, amongst other authorities, the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1864, § 118). To minimise the risks of arbitrary detention, Article 5 provides a corpus of substantive rights intended to ensure that the act of deprivation of liberty is amenable to independent judicial scrutiny and secures the accountability of the authorities for that measure.", "As the Court previously held in the Kurt case (Kurt judgment cited above, p. 1185, § 124), the unacknowledged detention of an individual is a complete negation of these guarantees and discloses a most grave violation of Article 5. Given the responsibility of the authorities to account for individuals under their control, Article 5 requires them to take effective measures to safeguard against the risk of disappearance and to conduct a prompt and effective investigation into an arguable claim that a person has been taken into custody and has not been seen since. 105. In the light of those considerations, the Court recalls that it has accepted the Commission’s findings that Ahmet Çakıcı was apprehended by the security forces, taken to Hazro where he spent the night of 8 November 1993 and transferred to Diyarbakır provincial gendarmerie headquarters where he was detained until at least 2 December 1993 (see paragraph 50 above). This detention was not recorded in the Hazro or Diyarbakır custody records, nor was there any other official record of his whereabouts or fate.", "The recording of accurate holding data concerning the date, time and location of detainees, as well as the grounds for the detention and the name of the persons effecting it, is necessary for the detention of an individual to be compatible with the requirements of lawfulness for the purposes of Article 5 § 1. The lack of records of this applicant discloses a serious failing, which is aggravated by the Commission’s findings as to the general unreliability and inaccuracy of the records in question. The Court also shares the Commission’s concerns with regard to the practices applied in the registration of holding data by the gendarme witnesses who appeared before the Commission’s delegates – the fact that it is not recorded when a person is held elsewhere than the officially designated custody area or when a person is removed from a detention area for any purpose or held in transit. It finds unacceptable the failure to keep records which enable the location of a detainee to be established at a particular time. 106.", "Further, the Court notes that, notwithstanding that the applicant’s family brought to the attention of the authorities that there were three eye-witnesses to the detention of Ahmet Çakıcı, no steps were taken to seek any evidence, beyond enquiring as to entries in custody records, until after the application was communicated to the Government by the Commission. The Court has already commented on the restricted number of enquiries which resulted even at that stage and on the lack of any investigation into the report that Ahmet Çakıcı’s body had been found (see paragraph 80 above). There was neither a prompt nor a meaningful inquiry into the circumstances of Ahmet Çakıcı’s disappearance. 107. Accordingly, the Court concludes that Ahmet Çakıcı was held in unacknowledged detention in the complete absence of the safeguards contained in Article 5 and that there has been a particularly grave violation of the right to liberty and security of person guaranteed under that provision.", "VI. alleged violation of article 13 of the convention 108. The applicant complained that he was deprived of an effective remedy in respect of the disappearance of his brother, as a direct victim himself and on behalf of his brother, and alleged a breach of Article 13, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 109. The applicant submitted that he was denied an effective remedy due to the dilatory and superficial investigation conducted into the disappearance of his brother. He referred, inter alia, to the failure of the public prosecutors to inspect directly the original custody records and the reliance of the public prosecutor in his decision of non-jurisdiction on the unsubstantiated report that Ahmet Çakıcı’s body had been found after a clash with terrorists.", "110. The Government maintained that the system of criminal, civil and administrative justice offered effective redress, when utilised properly by applicants acting in good faith, referring in particular to the Aytekin case (Aytekin judgment cited above). The applicant in the present case did not seriously attempt to seek a remedy from the domestic authorities, who, contrary to his assertions, took the necessary and appropriate steps in relation to his allegations once they had been brought to their attention. 111. The Commission concluded that there had been a violation of Article 13 since the public prosecutors had not investigated promptly or effectively the disappearance of the applicant’s brother, ignoring or discounting the evidence which supported the applicant’s claims.", "At the hearing, the Delegate of the Commission sought to place this case in the context of the previous fifteen judgments rendered by the Court in which allegations of failure to protect life, disappearance, ill-treatment and destruction of homes in south-east Turkey were associated with failures to provide an effective remedy, in particular a reluctance to pursue investigations into allegations of wrongdoing by the security forces and a readiness to accept the unsubstantiated assertions of the security forces at face value. Findings had been made concerning inadequate investigative procedures in all of those cases, save the Aytekin case, which differed in that there was an identified perpetrator of the lethal shooting of the applicant’s husband from the outset of the incident. 112. The Court recalls that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. Article 13 thus requires the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although the 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 also varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see the Aksoy judgment cited above, p. 2286, § 95; the Aydın v. Turkey judgment of 25 September 1997, Reports 1997-VI, pp. 1895-96, § 103; and the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, pp. 329-30, § 106). 113.", "The Court has confirmed the Commission’s findings in the present case concerning the unacknowledged detention, ill-treatment and disappearance of the applicant’s brother in circumstances that give rise to the presumption that he has died since those events. Given the fundamental importance of the rights in issue, the right to protection of life and freedom from torture and ill-treatment, Article 13 imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation apt to lead to those responsible being identified and punished and in which the complainant has effective access to the investigation proceedings (see the Yaşa judgment cited above, p. 2442, § 114). 114. It follows that, in the instant case, the authorities had an obligation to carry out an effective investigation into the disappearance of the applicant’s brother. Having regard to paragraphs 80 and 106 above, the Court finds that the respondent State has failed to comply with this obligation, which failure undermined the effectiveness of any other remedies which might have existed.", "Consequently, there has been a violation of Article 13 of the Convention. VII. Alleged violations of articleS 14 and 18 of the convention 115. The applicant submitted that the disappearance of his brother illustrated the discriminatory policy pursued by the authorities against Kurdish citizens and the existence of an authorised practice, in violation of Articles 14 and 18 of the Convention respectively. 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.” Article 18 provides: “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.” 116.", "The Commission concluded that the applicant’s allegations under these provisions were unsubstantiated and disclosed no violations. The Government were of the same view. 117. The Court, on the basis of the facts as established by the Commission, finds no violation of these provisions either. vIII.", "Alleged practice by the authorities of infringing article 13 118. The applicant argued that there was evidence that practices, tolerated at the highest level, in violation of the Convention existed in Turkey and that the degree of official tolerance evident in these practices rendered the system of remedies in south-east Turkey wholly ineffective, such that there was a practice of violating Article 13. 119. The Government rejected the applicant’s allegations in this regard. 120.", "The Delegate of the Commission, while referring to the Court’s previous judgments in Turkish cases containing findings of ineffective remedies, pointed out that the Commission had not yet found a practice in the light of its own extensive experience, although it could not be excluded that the Commission could yet do so in the cases examined before its office expired at the end of October 1999. 121. The Court considers that the scope of examination of the evidence undertaken in this case and the material on the case file are not sufficient to enable it to determine whether the authorities have adopted a practice of violating Article 13 of the Convention. IX. application of article 41 of the Convention 122.", "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. Pecuniary damage 123. The applicant requested that pecuniary damages be paid for the benefit of his brother’s surviving spouse and children. He claimed a sum of 282.47 pounds sterling (GBP) representing 4,700,000 Turkish liras (TRL), which it is alleged was taken from Ahmet Çakıcı on his apprehension by a first lieutenant, and GBP 11,534.29 for loss of earnings, this capital sum being calculated with reference to Ahmet Çakıcı’s estimated monthly earnings of TRL 30,000,000. 124. The Government disputed that the sum of TRL 4,700,000 should be paid having regard to the source of the information, Mustafa Engin, whose evidence, in the Government’s view, was contradictory and unreliable.", "They submitted that it would be inappropriate to pay loss of earnings in respect of Ahmet Çakıcı since it had not been established that he was dead and, in any event, an award could not be made to Ahmet Çakıcı’s heirs since they were not applicants in this case. 125. The Court observes that the applicant introduced this application on his own behalf and on behalf of his brother. In these circumstances, the Court may, if it considers it appropriate, make awards to the applicant to be held by him for his brother’s heirs (see the Kurt judgment cited above, p. 1195, § 174). 126.", "As regards the claim of TRL 4,700,000, the Court notes that the Commission did not make any finding of fact as regarded the allegation that a gendarmerie officer had removed money from Ahmet Çakıcı. The Court recalls that this claim derives from the evidence of Mustafa Engin who stated that Ahmet Çakıcı told him, while they were detained together at Diyarbakır provincial gendarmerie headquarters, that a first lieutenant had taken the money from him. Remziye Çakıcı also claimed that a boy from the village had told her that he had seen a gendarme take money from Ahmet Çakıcı (see paragraphs 14 and 15 above). The Court has accepted the Commission’s opinion that these witnesses were generally credible but notes that neither witness was a direct eyewitness of the alleged confiscation but rely on what they were told by others. The Court is not satisfied that this furnishes a sufficiently substantiated basis for making an award of pecuniary damage in this regard.", "127. As regards the applicant’s claims for loss of earnings, the Court’s case-law establishes that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention and that this may, in the appropriate case, include compensation in respect of loss of earnings (see, amongst other authorities, the Barberà, Messegué and Jabardo v. Spain judgment of 13 June 1994 (Article 50), Series A no. 285-C, pp. 57-58, §§ 16-20). The Court has found (paragraph 85 above) that it may be taken as established that Ahmet Çakıcı died following his apprehension by the security forces and that the State’s responsibility is engaged under Article 2 of the Convention.", "In these circumstances, there is a direct causal link between the violation of Article 2 and the loss by his widow and children of the financial support which he provided for them. The Court notes that the Government have not queried the amount claimed by the applicant. Having regard therefore to the detailed submissions by the applicant concerning the actuarial basis of calculation of the appropriate capital sum to reflect the loss of income due to Ahmet Çakıcı’s death, the Court awards the sum of GBP 11,534.29 to be held by the applicant on behalf of his brother’s surviving spouse and children. B. Non-pecuniary damage 128. The applicant claimed GBP 40,000 for non-pecuniary damage in relation to the violations of the Convention suffered by his brother, referring to previous awards made for unlawful detention, torture and lack of effective investigation.", "129. The Government submitted that awards should not be a means of enrichment for applicants and should properly take into account the socio-economic circumstances of the region as well as the age and social situation of the alleged victim and applicant. There was no justification, in their view, to award the colossal sums claimed by the applicant. 130. The Court recalls that in the Kurt judgment (cited above, p. 1195, §§ 174-75) the sum of GBP 15,000 was awarded for violations of the Convention under Articles 5 and 13 in respect of the disappearance of the applicant’s son while in custody, which sum was to be held by the applicant for her son and his heirs, while the applicant received an award of GBP 10,000 in her own favour, due to the circumstances of the case which had led the Court to find a breach of Articles 3 and 13.", "In the present case, the Court has held, in addition to breaches of Articles 5 and 13, that there has been a violation of the right to respect for life guaranteed under Article 2 and torture contrary to Article 3. Noting the awards made in previous cases from south-east Turkey concerning these provisions (see, concerning Article 3, the Aksoy judgment cited above, pp. 2289-90, § 113, the Aydın judgment cited above, p. 1903, § 131, the Tekin judgment cited above, pp. 1521-22, § 77; and, concerning Article 2, the Kaya judgment cited above, p. 333, § 122, the Güleç v. Turkey judgment of 27 July 1998, Reports 1998-IV, p. 1734, § 88, the Ergi v. Turkey judgment of 28 July 1998, Reports 1998-IV, p. 1785, § 110, the Yaşa judgment cited above, pp. 2444-45, § 124, and Oğur v. Turkey [GC], no.", "21594/93, § 98, ECHR 1999-III) and having regard to the circumstances of this case, the Court has decided to award the sum of GBP 25,000 in total in respect of non-pecuniary damage to be held by the applicant for his brother’s heirs. As regards the applicant, the Court has not found a breach of Article 3 in his own regard (see paragraph 99 above). However, he undoubtedly suffered damage in respect of the violations found by the Court and may be regarded as an “injured party” for the purposes of Article 41. Having regard to the gravity of the violations and to equitable considerations, it awards GBP 2,500 to the applicant. C. Costs and expenses 131.", "The applicant claimed a total of GBP 32,205.17 for fees and costs incurred in the application. This included fees and costs incurred in respect of attendance at the taking of evidence before Commission delegates at a hearing in Ankara and a hearing in Strasbourg and attendance at the hearing before the Court in Strasbourg. A sum of GBP 3,520 is listed as incurred fees and administrative costs in respect of the Kurdish Human Rights Project (KHRP) in its role as liaison between the legal team in the United Kingdom and the lawyers and the applicant in Turkey, as well as a sum of GBP 3,600 in respect of work undertaken by three lawyers in Turkey. The applicant requested that the Court provide reasons for the award which it gave, or at least for departing from the sums claimed, in order to promote legal certainty and assist future applicants and their legal representatives. 132.", "The Government disputed that any sum should be awarded in respect of the KHRP, whose function is insufficiently elaborated. They contested the appropriateness of awarding high fees and costs in respect of lawyers from outside Turkey and also contended that the fees claimed in respect of work done by lawyers in Turkey were excessive in comparison with local rates, in particular the claimed hourly rate of GBP 60 which contrasted markedly with the hourly rate of GBP 25 claimed by domestic lawyers in the Kurt case cited above. They also challenged that they should be liable to fund case-law research and analysis which the applicant’s lawyers would be able to utilise in other cases. 133. In relation to the claim for costs, the Court, deciding on an equitable basis and having regard to the details of the claims submitted by the applicant, awards him the sum of GBP 20,000, together with any value-added tax that may be chargeable, less the 7,000 French francs received by way of legal aid from the Council of Europe.", "C. Default interest 134. The Court considers it appropriate to take the statutory rate of interest applicable in the United Kingdom at the adoption of adotion of the present judgment, namely 7.5% per annum. FOR THESE REASONS, THE COURT 1.Dismisses unanimously the Government’s preliminary objection; 2.Holds unanimously that there has been a violation of Article 2 of the Convention; 3.Holds unanimously that there has been a violation of Article 3 of the Convention in respect of the applicant’s brother; 4.Holds by fourteen votes to three that there has been no violation of Article 3 of the Convention in respect of the applicant; 5.Holds unanimously that there has been a violation of Article 5 of the Convention; 6.Holds by sixteen votes to one that there has been a violation of Article 13 of the Convention; 7.Holds unanimously that there has been no violation of Article 14 of the Convention; 8.Holds unanimously that there has been no violation of Article 18 of the Convention; 9.Holds unanimously (a) that the respondent State is to pay the applicant, within three months, the following sums, to be converted into Turkish liras at the rate applicable at the date of settlement: (i) 11,534 (eleven thousand five hundred and thirty-four) pounds sterling and 29 (twenty-nine) pence for pecuniary damage to be held by the applicant for his brother’s surviving spouse and heirs; (ii) 25,000 (twenty-five thousand) pounds sterling for non-pecuniary damage, which sum is to be held by the applicant for his brother’s heirs, and 2,500 (two thousand five hundred) pounds sterling for non-pecuniary damage in respect of the applicant; (b) that simple interest at an annual rate of 7.5% shall be payable from the expiry of the above-mentioned three months until settlement; 10.Holds by twelve votes to five (a) that the respondent State is to pay the applicant, within three months, in respect of costs and expenses, 20,000 (twenty thousand) pounds sterling together with any value-added tax that may be chargeable, less 7,000 (seven thousand) French francs to be converted into pounds sterling at the rate applicable at the date of delivery of this judgment; (b) that simple interest at an annual rate of 7.5% shall be payable from the expiry of the above-mentioned three months until settlement; Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 8 July 1999. Luzius WildhaberPresident Maud de Boer-buquicchioDeputy Registrar In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a)partly dissenting opinion of Mrs Thomassen joined by Mr Jungwiert and Mr Fischbach; (b)partly dissenting opinion of Mr Gölcüklü. L.W.M.B.", "PARTLY DISSENTING OPINION OF JUDGE THOMASSEN JOINED BY JUDGES JUNGWIERT AND FISCHBACH The majority found no violation of Article 3 of the Convention in relation to the applicant himself. I am unable to share this view and voted for a violation. The Government were responsible for the disappearance, torture and death of the applicant’s brother. The applicant was convinced, as may be regarded as reasonable in the circumstances, that his brother was tortured while he was in the custody of the security forces. Afterwards his brother disappeared.", "The Government did not respond to the applicant’s requests for information and even denied that his brother was ever in custody. When the applicant’s brother was allegedly found dead, the Government claimed after some time that he was killed in a clash. Nevertheless, they made no contact at all with the family as regards identification or arrangements for burial. All the efforts of the applicant to find out what happened to his brother were callously disregarded by the authorities, thus leaving him in uncertainty and pain for over five and a half years. In such a case, I do not doubt that the applicant felt that he was being subjected by the Turkish Government to inhuman treatment.", "The majority indicate that for a violation of Article 3 of the Convention it is not enough that a member of the family of a person who has disappeared should experience emotional distress, since this may be regarded as an inevitable consequence for the relatives of a victim of a serious human-rights violation. Whether a family member is a victim will, in the majority’s view, depend on the existence of special factors which give the applicant’s suffering a dimension and character distinct from that emotional distress (see paragraph 98 of the judgment). Without going into the merits of this criterion, I am not convinced that these special factors are not present in this case. In the judgment, the majority draws a distinction between the instant case and the Kurt case (see the Kurt judgment of 25 May 1998, Reports of Judgments and Decisions 1998-III), in which the Court found a violation of Article 3 in relation to the mother of a person who had disappeared. It is obvious that the pain of a mother who sees her son arrested and then has to live in uncertainty about his fate because of the acts and negligence of the authorities must be unbearable.", "However, a brother can also suffer deeply in face of the uncertainty of the fate of a sibling. In this context, I also do not find convincing the reference made in the judgment to the fact that the applicant was not present when the security forces took his brother, as he lived with his own family in his own town. Nor do I find it persuasive that reliance is placed on the circumstance that, while the applicant was involved in making various petitions and enquiries to the authorities, he did not bear the brunt of this task, his father taking the initiative in presenting the petition of 22 December 1993 to the Diyarbakır National Security Court. As far as the latter is concerned, I am more impressed by the fact that from the moment of the disappearance of his brother the applicant was actively involved in submitting various petitions and enquiries to the authorities and that he made the application to our Court. The Turkish Government have been found responsible for one of the gravest possible violations of human rights, a failure to respect the right to life.", "Moreover, they left the applicant in uncertainty, doubt and apprehension about his brother for more than five and a half years. In doing so, they demonstrated a cruel disregard for his feelings and his efforts to find out about his brother’s fate. Apart from failing in their obligation to respect his brother’s right to life, the Government must also be held responsible for the severe mental distress and anguish the applicant has suffered for a prolonged and continuing period of time as a consequence of their acts and negligence. I find that these are factors which do amount to a violation of Article 3 in relation to the applicant himself. partly dissenting opinion of JUDGE gölcüklÜ (Translation) To my great regret, I cannot agree on certain points with the opinion of the majority, for the following reasons.", "As I explained in my partly dissenting opinion in the case of Ergi v. Turkey (judgment of 28 July 1998, Reports of Judgments and Decisions 1998-IV), when the Court finds a violation of Article 2 of the Convention on the ground that no effective inquiry has been conducted into the death complained of I consider that no separate issue arises under Article 13, because the fact that there was no satisfactory and appropriate inquiry into the death forms the basis of the applicant’s complaints under both Article 2 and Article 13. In that connection, I refer to my dissenting opinion in the Kaya v. Turkey case (judgment of 19 February 1998, Reports 1998-I) and the opinion expressed by a large majority of the Commission on the question (see Aytekin v. Turkey, application no. 22880/93, 18 September 1997; Ergi v. Turkey, application no. 23818/94, 20 May 1997; Yaşa v. Turkey, application no. 22495/93, 8 April 1997).", "[1]Notes by the Registry -2. Protocol No. 11 and the Rules of Court came into force on 1 November 1998. [3]3. Since the entry into force of Protocol No.", "11, which amended Article 19, the Court has functioned on a permanent basis. [2]. Note by the Registry. Rules of Court A applied to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and from then until 31 October 1998 only to cases concerning States not bound by that Protocol.", "[3]. Note by the Registry. For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry." ]

[ "THIRD SECTION CASE OF MAJHEN v. SLOVENIA (Application no. 75773/01) JUDGMENT STRASBOURG 30 March 2006 FINAL 30/06/2006 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 Majhen v. Slovenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrJ. Hedigan, President,MrB.M.", "Zupančič,MrL. Caflisch,MrsM. Tsatsa-Nikolovska,MrE. Myjer,MrDavid Thór Björgvinsson,MrsI. Ziemele, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 9 March 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 75773/01) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Branko Majhen (“the applicant”) on 24 July 2000. 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 8 September 2003 the Court decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect to the Government.", "Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS 5. The applicant was born in 1953 and lives in Velenje. 6. On 17 March 1986 the applicant was injured in an accident at work in a lignite mine.", "Following two separate court settlements made in 1987 and 1992, the applicant received compensation for the injuries sustained. 7. On 5 April 1994 the applicant instituted civil proceedings against his employer, a company called RLV, in the Celje Labour Court (Sodišče združenega dela v Celju) seeking damages in the amount of 2,315,789 tolars (approximately 9,600 euros) for the injuries sustained in the accident of 1986, but which only became apparent after the settlements. Between 1 June 1994 and 10 February 1997 the applicant lodged ten preliminary written submissions and/or adduced evidence. Between 1 June 1994 and 13 December 1996 he made four requests that a date be set for a hearing.", "Of the five hearings held between 9 January 1995 and 25 March 1997 none was adjourned at the request of the applicant. During the proceedings the court appointed a medical expert and a financial expert. The court also sought an additional opinion from the appointed experts. 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 1 April 1997.", "8. On 10 April 1997 the applicant appealed to the Higher Labour and Social Court (Višje delovno in socialno sodišče). RLV cross-appealed. On 3 December 1999 the court allowed the appeals in part and remitted the case to the first-instance court for re-examination. The judgment was served on the applicant on 17 January 2000.", "9. The hearing before the Celje Labour Court scheduled for 2 March 2000 was adjourned until 30 March 2000 at the applicant’s request. Between 29 March 2000 and 21 March 2001 the applicant lodged three preliminary written submissions. On 20 June 2000 the court sought an additional opinion from the appointed medical expert. On 24 May 2001 the court held a hearing and concluded the case.", "The judgment, upholding the applicant’s claim in part, was served on the applicant on 21 June 2001. 10. On 26 June 2001 the applicant appealed to the Higher Labour and Social Court. He also sought an exemption from court fees. RLV cross-appealed.", "On 24 August 2001 the Celje Labour Court rejected the applicant’s request for exemption from court fees. On 4 September 2001 the applicant appealed against the decision concerning court fees to the Higher Labour and Social Court. On 3 October 2003 the Higher Labour and Social Court upheld the first-instance court decision concerning court fees. On the same day the court rejected the appeals against the first-instance court’s judgment. 11.", "On 30 October 2003 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). On 15 June 2004 the court dismissed the applicant’s appeal. The judgment was served on the applicant on 28 June 2004. THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 12.", "The applicant complained about the excessive length of the proceedings. Article 6 § 1 of the Convention reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 13. In substance, the applicant further complained that the remedies available for excessive legal proceedings in Slovenia were ineffective. Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 14. The Government pleaded non-exhaustion of domestic remedies.", "15. The applicant contested that argument, claiming that the remedies available were not effective. 16. 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. 17. 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.", "18. 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 19. The period to be taken into consideration began on 5 April 1994, the day the applicant instituted proceedings with the Celje Labour Court, and ended on 28 June 2004, the day the Supreme Court decision was served on the applicant. It therefore lasted nearly ten years and three months and decisions were rendered on five instances. 20.", "The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 21. Having examined all the material submitted to it, and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable-time” requirement. There has accordingly been a breach of Article 6 § 1.", "2. Article 13 22. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). It notes that 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.", "23. 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 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 10,000 euros (EUR) in respect of non-pecuniary damage. 26. The Government contested the claim. 27.", "The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 2,400 under that head. B. Costs and expenses 28. The applicant also claimed approximately EUR 1,210 for the costs and expenses incurred before the Court.", "29. The Government argued that the claim was too high. 30. 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 31. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 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 2,400 (two thousand four hundred euros) in respect of non-pecuniary damage and EUR 1,000 (one thousand euros) in respect of costs and expenses, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 30 March 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Vincent BergerJohn HediganRegistrarPresident" ]

[ "FOURTH SECTION CASE OF OLIVEIRA MODESTO AND OTHERS v. PORTUGAL (Application no. 68445/10) JUDGMENT STRASBOURG 29 January 2019 This judgment is final but it may be subject to editorial revision. In the case of Oliveira Modesto and Others v. Portugal, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Egidijus Kūris, President,Paulo Pinto de Albuquerque,Iulia Antoanella Motoc, judges, and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 8 January 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 68445/10) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by 251 Portuguese nationals listed in the Annex (“the applicants”), on 17 November 2010.", "2. The first applicant represented all the applicants and was authorised to do so by the President of the former Second Section of the Court, in accordance with Rule 36 § 3 of the Rules of Court. The Portuguese Government (“the Government”) were represented by their Agent, Ms M.F. da Graça Carvalho, Deputy Attorney General. 3.", "On 22 March 2012 the Government were given notice of the application. 4. The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it. THE FACTS 5.", "The applicants are former employees and heirs of former employees of company F. - C.M.E. S.A. (hereinafter “company F.”), which owned a factory making engines and electric alternators in Aveiro. The company experienced a series of financial problems in 1985, leading to it being unable to continue paying salaries to its staff. A. Insolvency and judicial liquidation proceedings 6.", "On 4 October 1994 the Coimbra Court of Appeal declared company F. insolvent. On 8 May 1995 the case was remitted to the Aveiro Court. 7. By a decision that was made public on 3 July 1995 the Aveiro Court ordered that creditors wishing to declare their claims (reclamação de créditos) should be summoned. 8.", "Having learnt that a site division and urban development plan (plano de pormenor) encompassing the land of company F. had been drawn up by the municipality of Aveiro, former employees of the company, including some of the applicants, applied to the Aveiro Court on 12 December 1997, requesting that it wait for the plan to be approved before ordering the sale of company F.’s assets. They hoped that the plan would lead to a rise in the land’s value and thus increase the prospects of their recovering what they were owed. 9. On 24 March 2000 the Aveiro Court issued a decision on the classification of the various claims (sentença de graduação de créditos). Some of the creditors appealed against that decision to the Coimbra Court of Appeal.", "10. In a decision of 7 November 2000 the Aveiro Court authorised the suspension of the sale (see paragraph 8 above) until the approval of the site division and urban development plan. 11. In a judgment of 23 January 2001 the Coimbra Court of Appeal delivered a judgment on the classification of the former employees’ claims. On 9 February 2001 the first applicant appealed against that judgment to the Supreme Court of Justice.", "12. On 19 February 2001 the applicant Rosa Rodrigues Casal (applicant no. 199 in the appended table) lodged an application with the Aveiro Court, seeking to register a claim against the insolvent company. 13. On 6 December 2001 the Supreme Court of Justice delivered a judgment confirming the classification of claims by the Coimbra Court of Appeal (see paragraphs 9 and 11 above).", "14. On 27 November 2002 the judicial liquidator informed the Aveiro Court that he had suspended his activities following another court’s decision. In a decision of 29 January 2003 the court appointed a new liquidator. 15. On 15 April 2009, as part of a redraft of the court-distribution map (setting out the geographical areas over which courts had jurisdiction), the proceedings were transferred to the Aveiro Commercial Court.", "16. On 29 July 2009 the municipality of Aveiro, the body of creditors and company G. entered into an agreement for the exchange of land between company F., company G., a neighbouring company, and the Aveiro municipality. 17. On an unspecified date a part of the land measuring 17,629.10 sq. m and a separate plot were put up for sale.", "18. On 14 July 2011 a session at which offers to purchase could be made took place, and no offers were received. The court ordered the judicial liquidator to submit the documentation concerning that session and the proposal for sale within ten days. 19. On 6 December 2011 the court ordered the judicial liquidator to provide information on the state of the proceedings.", "20. Since the judicial liquidator had not replied to the previous request, on 6 March 2012 the court ordered him to urgently provide information on the state of the proceedings, giving him a ten-day time-limit. 21. In the absence of any reply to the two previous requests, on 17 April 2012 the court ordered the judicial liquidator to provide information on the state of the proceedings, and also ordered that he would be fined if he did not provide such a reply. 22.", "On 23 April 2012 the judicial liquidator informed the court that no offers to purchase had been received, and he proposed to initiate contact with companies which specialised in the real-estate sector. 23. On 2 May 2012 the court ordered the judicial liquidator to establish contact with real-estate companies, and gave him a ten-day time-limit. 24. On 29 May 2012 the judicial liquidator informed the court that he had contacted some real-estate companies, but he requested ten more days in order to finalise the task.", "On 4 June 2012 he was informed that his request had been granted. 25. On 12 June 2012 the judge ordered the judicial liquidator to draw up a report indicating the detailed amounts to be allocated to each creditor in the light of the Supreme Court of Justice’s judgment (see paragraph 13 above). 26. Following the Aveiro Commercial Court insisting that the judicial liquidator provide information on the progress regarding contact with real-estate companies by way of three notifications (sent to him on 27 September, 19 October and 19 November 2012), on 16 January 2013 he informed the court that only one real-estate company had expressed interest in mediating the sale of the property.", "27. On 6 March 2013 the court invited the judicial liquidator to initiate new contact with real-estate companies by email, since until then contact with the real-estate companies had been established in person. 28. On 18 December 2013 the judicial liquidator informed the court that contact by email had been made with 119 real-estate companies, and offers to acquire the property were to be received until 15 January 2014. In the meantime, the court had sent him three notifications in that regard – on 21 May, 10 July and 11 November 2013.", "29. On 17 June 2014 the judicial liquidator replied to the 12 June 2012 court order (see paragraph 25 above). He informed the court that most former employees had not detailed the origin of their claims, and therefore it was not possible for him to provide a detailed plan on payment. On the same date the judicial liquidator informed the court that only three real-estate companies had replied and that those replies were negative. He then suggested that a new procedure for a sale by private agreement should be initiated, this time for 50% of the previously requested amount.", "30. In reply to the judicial liquidator’s information, on 11 July 2014 the judge ordered him to provide information on the amount already obtained as proceeds of the liquidation (produto da liquidação), by reference to real estate or movable property, in order to assess the practical effects of distributing those amounts among the creditors. As the judicial liquidator did not reply to that request, on 1 July 2015, 21 April 2016 and 13 June 2016 the court insisted that he do so. 31. Meanwhile, on 30 September and 9 October 2015 the judicial liquidator was summoned in two sets of tax enforcement proceedings against company F. 32.", "On 23 November 2016 the judicial liquidator informed the court of the two sets of tax enforcement proceedings which were ongoing. 33. On 6 July 2017 the court notified the judicial liquidator that he should provide information on the state of the proceedings within ten days. 34. On 1 September 2017 the court insisted that the judicial liquidator provide information on the state of the proceedings.", "35. On 20 September 2017 the judicial liquidator informed the court that a new tax issue was an obstacle in the insolvency proceedings. 36. According to the latest information received by the Court on 21 May 2018, the insolvency proceedings were, on that date, still ongoing. B.", "Application no. 34422/97 37. On 11 September 1996 the applicants and other individuals (represented in the present case by their heirs) identified by numbers 1 to 131 in the Annex lodged an application with the Court to complain about the duration of the proceedings at issue before the Aveiro Court. 38. In a judgment of 8 June 2000, the Court found a violation of Article 6 § 1 of the Convention on account of the excessive length of the proceedings, awarding each applicant the sum of 900,000 Portuguese escudos (PTE – about EUR 4,489) in respect of non-pecuniary damage and PTE 313,840 (about EUR 1,565) to the first applicant for costs and expenses.", "39. The just satisfaction was paid to the applicants on 11 and 12 December 2000. 40. By Resolution CM/ResDH(2016)149 adopted on 8 June 2016 at the 1259th meeting of the Ministers’ Deputies, the Committee of Ministers declared that it had exercised its functions under Article 46, paragraph 2 of the Convention in respect of application no. 34422/97, and decided to close the examination of its enforcement.", "II. RELEVANT DOMESTIC LAW 41. The relevant part of the Portuguese Code on special procedures for the recovery of companies and insolvency (Código dos Processos Especiais de Recuperação da Empresa e de Falência – CPEREF), in the version in force at the material time (Legislative Decree no. 132/93, of 23 April 1993), provided as follows: Article 128Decision to declare insolvency “1. In the decision declaring insolvency, the court shall: ... (e) Define a time-limit going from 20 to 60 days for the creditors’ declaration of claims.", "...” THE LAW I. PRELIMINARY ISSUES The locus standi of the heirs of the deceased applicants 42. By letters of 3 October 2017 and 21 May 2018 the first applicant informed the Court about the death of the following applicants: Mr Rafael Policarpo Neves da Silva, Ms Maria Odete Vieira de Sousa, Ms Isaura Pereira Cortês, Mr António da Costa Santos, Mr Manuel da Loura Gamelas, Mr Arlindo de Sousa Rodrigues da Silva, Mr António Nobre Machado, Mr Carlos Alberto Simões Instrumento, Ms Maria Clara Costa Mesquita, Ms Maria Vitória Branco Rodrigues da Rocha, Ms Maria Carolina Sousa Almeida Neto, Mr João Marques Rodrigues, Ms Lídia Lopes, Ms Fernanda Pais da Cruz Silva, Ms Ana Clara dos Santos Silva Ferreira, Ms Maria da Soledade Freire Pinto Nogueira, and Mr Jorge Alberto Pinto Nogueira. 43. The Court takes note of the wish of those applicants’ relatives (identified in the Annex) to pursue the proceedings in their stead.", "To that end, the first applicant submitted notary inheritance certificates (habilitações de herdeiros notariais) in respect of all the late applicants except Mr João Marques Rodrigues, certifying that the relatives are their heirs. The first applicant also submitted copies of requests made by the relatives of all the late applicants asking the Aveiro Court to continue the proceedings on their behalf. 44. Regarding the late applicant Mr João Marques Rodrigues, the first applicant also submitted documents (namely the late applicant’s death certificate and his wife’s birth certificate) to show that he had been married to Ms Maria Teresa dos Anjos Aires Rodrigues at the date of his death. 45.", "The Court reiterates that where applicants die during the examination of a case, their heirs or next-of-kin may in principle pursue the application on their behalf (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII; see also Ječius v. Lithuania, no. 34578/97, § 41, ECHR 2000-IX, where the applicant’s widow had a legitimate interest in pursuing the application). Furthermore, in some cases concerning the length of proceedings, the Court has recognised the right of the applicant’s heirs or close family members to pursue the application (see, for example, Horváthová v. Slovakia, no. 74456/01, §§ 26-27, 17 May 2005).", "46. The Court notes that the rights at stake in the present case are very similar to those at the heart of the cases referred to above. Nothing suggests that the rights which the applicants sought to protect through the Convention mechanism were eminently personal and non-transferable (see, mutatis mutandis, Malhous, decision cited above). 47. The Court also notes that the Government have not disputed that the applicants’ relatives are entitled to pursue the application on their behalf and the Court sees no reason to hold otherwise.", "48. In view of the above, the Court finds that the applicants’ relatives identified in the Annex have standing to pursue the proceedings in the deceased applicants’ stead. 49. However, for practical reasons, the Court will continue to refer to the initial applicants as “the applicants” (see, mutatis mutandis, Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999-VI).", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 50. The applicants complained that the length of the proceedings since 8 June 2000 had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 1. The Government’s submissions 51. The Government argued that the application was inadmissible as an abuse of the right of petition.", "According to the Government, by requesting that the proceedings be stayed pending the outcome of the site division and urban development plan, the applicants were themselves responsible for a delay in the proceedings. 52. The Government also argued that the applicant Ms. Rosa Rodrigues Casal was not a party to the proceedings and was therefore not a victim of the alleged violation, as she had not declared her claims at the stage of the proceedings when she was supposed to. In fact, when she had lodged her requests to have her claims recognised, her claims had not been admissible. 53.", "The applicants did not reply to these objections. 2. The Court’s assessment (a) The Government’s objection as to abuse of the right of petition 54. In relation to the Government’s argument that the applicants abused the rights set out in the Convention within the meaning of Article 35 § 3 (a), the Court reiterates that an application may only be rejected as an abuse of process in extraordinary circumstances, notably when there is persistent use of insulting or provocative language by an applicant (see Felbab v. Serbia, no. 14011/07, § 56, 14 April 2009), when the application was knowingly based on untrue facts, or when incomplete and thus misleading information concerning the very core of the case was submitted to the Court (see Gross v. Switzerland [GC], no.", "67810/10, § 28, ECHR 2014). 55. Having regard to its case-law, the Court considers that the applicants’ requests regarding the site division and urban development plan (see paragraph 8 above) during the domestic proceedings are not of such a nature as would justify the application being declared inadmissible as an abuse of the right of petition. 56. It follows that the Government’s objection as to the alleged abuse of the right of petition must be rejected.", "(b) The Government’s objection regarding the applicant Ms Rosa Rodrigues Casal 57. The Court notes that, while the creditors had been summoned for the purpose of declaring their claims (see paragraph 7 above) the applicant Rosa Rodrigues Casal only declared her claims on 19 February 2001 (see paragraph 12 above), long after the time-limit fixed by the domestic law had expired (see paragraph 41 above). As her claims were inadmissible because they had been lodged out of time, she could no longer become a party to the insolvency proceedings. 58. It follows that this particular applicant cannot claim to be a victim of a violation of the Convention within the meaning of Article 34 of the Convention, and the application should be rejected in so far as it concerns her, pursuant to Article 35 §§ 3 and 4 of the Convention.", "(c) Conclusion 59. Having regard to the above, the Court notes that the application in respect of all applicants except the applicant Rosa Rodrigues Casal is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The period to be taken into consideration 60. The Court notes that the applicants complained about the length of the proceedings as of 8 June 2000, the date on which the Court’s judgment regarding application no. 34422/97 was delivered (see paragraph 38 above). At that time, the case was pending before the Coimbra Court of Appeal and the claims were awaiting classification. The latest information made available to the Court (dated 21 May 2018 – see paragraph 36 above), indicated that the insolvency proceedings were still ongoing.", "61. The period to be taken into consideration within the framework of the examination of the present application thus extends over approximately seventeen years and eleven months. 2. The reasonableness of the length of the proceedings 62. The Government argued that the length of the proceedings was mostly due to the fact that the Aveiro Court had accepted to act in the applicants’ interest at their request.", "They also argued that the insolvency proceedings had been delayed by the tax enforcement proceedings, as they were an obstacle to the sale procedure (see paragraphs 31 and 35 above). 63. At the outset, 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, and Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 19, ECHR 2000-IV).", "64. In the present case, the Court notes that the stage of the proceedings concerning the classification of the former employees’ claims was conducted in a speedy and efficient way. Indeed, on 23 January 2001 the Coimbra Court of Appeal delivered a judgment on that issue (see paragraph 11 above), and on 6 December 2001 the Supreme Court of Justice ruled on the first applicant’s appeal (see paragraph 13 above). As far as this stage of the proceedings is concerned, the Court is unable to detect any significant delays imputable to the authorities. 65.", "Turning to the proceedings to liquidate the assets of company F., the Court observes that on 12 December 1997 former employees of company F., including some of the applicants, requested that the Aveiro Court wait for the approval of a site division and urban development plan that had been drawn up by the municipality of Aveiro before ordering the sale of company F.’s assets, hoping that the plan would lead to a rise in the value of the land and thus increase their prospects of recovering their debts (see paragraph 8 above). That request led the Aveiro Court to authorise the suspension of the sale of company F.’s assets on 7 November 2000 (see paragraph 10 above). The proceedings could not be resumed until 29 July 2009, when the body of creditors, including the applicants, concluded an agreement with the Aveiro municipality and companies F. and G. (see paragraph 16 above). 66. The Court reiterates that only delays attributable to the State may justify a finding of failure to comply with the “reasonable time” requirement (see, among other authorities, Humen v. Poland [GC], no.", "26614/95, § 66, 15 October 1999, and Proszak v. Poland, 16 December 1997, § 40, Reports of Judgments and Decisions 1997-VIII). 67. In the instant case, the period between 8 June 2000 and 29 July 2009 consisted of a protraction of the case requested by the applicants and accepted by the court for their own benefit. That protraction cannot be imputed to the respondent Government. It remains to be ascertained whether there has been a breach of the “reasonable time” requirement in respect of the subsequent eight years, nine months and twenty-two days that elapsed between 30 July 2009 and 21 May 2018.", "68. The Court accepts that this stage of the proceedings was of some complexity, owing to the number of parties involved. However, the Court considers that this element alone cannot explain the length of the proceedings. 69. In respect of the applicants’ conduct, the Court considers that they cannot be deemed responsible for any delays encountered since 30 July 2009.", "70. Turning to the conduct of the national authorities, the Court notes that there were some periods of inactivity on the part of the judicial liquidator for which the Government have provided no explanation, notably: - it took almost four months (from 27 September 2012 until 16 January 2013) for the judicial liquidator to reply to the court order on establishing contact with real-estate companies (see paragraph 26 above); - it took him more than nine months (from 6 March 2013 until 18 December 2013) to reply to the court order on establishing new contact with real-estate companies by email (see paragraphs 27 and 28 above); - it took him two years (from 12 June 2012 until 17 June 2014) to reply to the court order on the report indicating the detailed amounts to be allocated to each creditor in the light of the Supreme Court of Justice’s judgment (see paragraphs 25 and 29 above); - it took him more than one year (from 30 September 2015 until 23 November 2016) to inform the Aveiro Commercial Court that he had been summoned in two sets of tax enforcement proceedings against company F. (see paragraphs 31 and 32 above). 71. Even assuming that the liquidator enjoyed a considerable amount of operational and institutional independence and did not act as a State agent, thus not rendering the respondent State directly responsible for his acts (see, mutatis mutandis, Kotov v. Russia [GC], no. 54522/00, §§ 91-107, 3 April 2012), it cannot be overlooked that the domestic courts were responsible for ensuring that he complied with the relevant rules (ibid., § 107).", "Indeed, the liquidator was working in the context of judicial proceedings, supervised by a court which remained responsible for the preparation and speedy conduct of the trial (see, mutatis mutandis, and with respect to court-appointed experts, Billi v. Italy, 26 February 1993, § 19, Series A no. 257-G, and Scopelliti v. Italy, 23 November 1993, § 23, Series A no. 278; see also Terebus v. Portugal, no. 5238/10, § 49, 10 April 2014). 72.", "The Court understands from the facts as submitted by the parties that another main reason for the delay in the proceedings was the existence of two sets of tax enforcement proceedings which also concerned company F.’s assets. The Court notes, however, that the Government have not explained exactly how those proceedings constituted an obstacle to the insolvency proceedings, nor have they shown that the tax enforcement proceedings, which were allegedly decisive as regards the protractedness of the insolvency proceedings, were conducted diligently by the courts (see, mutatis mutandis, Jama v. Slovenia, no. 48163/08, § 36, 19 July 2012). In any event, the Aveiro Commercial Court was informed of the tax proceedings only on 23 November 2016 (see paragraph 32 above). 73.", "The Court reiterates that it is for the State to organise its judicial system in such a way as to enable its courts to comply with the requirements of Article 6 § 1 of the Convention (see Tusa v. Italy, 27 February 1992, § 17, Series A no. 231‑D, and Jama v. Slovenia, cited above, § 36), and the Court finds that no convincing arguments have been adduced by the Government to show that the length of the proceedings complained of was reasonable as required by that provision. 74. In the light of the foregoing, the Court concludes that the State authorities bear primary responsibility for the excessive length of the proceedings in question from 30 July 2009 until 21 May 2018. 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.", "75. There has accordingly been a breach of Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 76. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 77. In respect of pecuniary damage, the applicants claimed the same amounts they had claimed in the domestic proceedings and which they have not yet received. In addition, the applicants claimed an amount going from 4,500 euros (EUR) to EUR 8,000 in respect of non-pecuniary damage. 78. The Government contested these claims.", "79. The Court notes that the amounts claimed in respect of pecuniary damage can only be paid in the context of the domestic proceedings; it therefore rejects this claim. 80. As far as non-pecuniary damage is concerned, the Court notes that all the applicants, former employees of company F., were parties to the same domestic proceedings which concerned the liquidation of the assets of the company in question. In connection with this, the Court reiterates that where common proceedings have been found to be excessively long, it must take account of the manner in which the number of participants in such proceedings may influence the level of distress, inconvenience and uncertainty affecting each of them.", "Thus, a high number of participants will very probably have an impact on the amount of just satisfaction to be awarded in respect of non-pecuniary damage. Such an approach is based on the fact that the number of individuals participating in common proceedings before the domestic courts is not neutral from the perspective of the non-pecuniary damage that may be sustained by each of them as a result of the length of those proceedings when compared with the non-pecuniary damage that would be sustained by an individual who had brought identical proceedings on an individual basis. Membership of a group of people who have resolved to apply to a court on the same factual or legal basis means that both the advantages and disadvantages of common proceedings will be shared (see Arvanitaki-Roboti and Others v. Greece [GC], no. 27278/03, § 29, 15 February 2008). 81.", "It should also be reiterated that the Court enjoys a certain discretion in the exercise of the power conferred by Article 41, as is borne out by the adjective “just” and the phrase “if necessary” (see Guzzardi v. Italy, 6 November 1980, § 114, Series A no. 39). That being the case, and unless it concludes that the finding of a violation provides sufficient just satisfaction for the non-pecuniary damage sustained, the Court must ensure that the amount awarded is reasonable in terms of the seriousness of the violation that is found. In particular, in its assessment, it must take account of the amounts already awarded in similar cases, and, in the event of common proceedings, account of the number of applicants and the total sum awarded to them (see Arvanitaki-Roboti and Others, cited above, § 32). Given the Court’s principal task, namely securing respect for human rights, rather than compensating applicants’ losses minutely and exhaustively, in cases involving a significant number of victims placed in a similar situation, a uniform approach is to be adopted (see Gaglione and Others v. Italy, nos.", "45867/07 and 474 others, §§ 67-68, 21 December 2010). 82. The Court notes that in the ambit of the domestic proceedings, the applicants were all pursuing the same objective, namely obtaining a rise in the value of the land of company F. and thus increasing the prospects of their recovering what they were owed (see paragraph 8 above). The shared objective of the impugned proceedings was such as to alleviate the inconvenience and uncertainty experienced on account of their delay (see, mutatis mutandis, Arvanitaki-Roboti and Others, cited above, § 34, and, a contrario, Belev and Others v. Bulgaria, nos. 16354/02 and 40 others, § 112, 2 April 2009, where the applicants were not parties in common proceedings, but had lodged distinct and separate judicial claims).", "83. At the same time, the present case should be distinguished from those in which, instead of acting on their own behalf in judicial proceedings, affected individuals establish a legal entity to do so, a fact which can justify not taking into account the interests of individual members of the association when determining the amount of just satisfaction for non-pecuniary damage caused by the excessive length of civil proceedings (see, a contrario, Društvo Za Varstvo Upnikov v. Slovenia (dec.), no. 66433/13, §§ 54-64, 21 November 2017, where an association, and not individual creditors, brought an action against a company which had failed to meet its contractual obligations). Moreover, what was at stake for the applicants in the impugned proceedings, namely the recovery of what they were owed in respect of their work, was such as to exacerbate the prejudice sustained by them on account of the protracted nature of the proceedings (see, mutatis mutandis, Arvanitaki-Roboti and Others, cited above, § 35). 84.", "Having regard to the foregoing, the Court considers that the extension of the impugned proceedings beyond a “reasonable time” undoubtedly caused the applicants non-pecuniary damage which would justify an award. It also takes into consideration the number of applicants, the nature of the violation found, and the need to determine the amount in such a way that the overall sum is compatible with the relevant case-law and is reasonable in the light of what was at stake in the proceedings in question (see, mutatis mutandis, Arvanitaki-Roboti and Others, cited above, § 36). On the basis of the above considerations, and ruling on an equitable basis, the Court awards EUR 500 to each of the applicants under this head (see, mutatis mutandis, Gaglione and Others, cited above, §§ 69-70), as detailed in the appended table (account being taken of the fact that when several heirs are continuing an application on behalf of a deceased applicant, the amount shall be paid jointly). B. Costs and expenses 85.", "The first applicant, Ms Maria de Lurdes Ferreira de Matos Oliveira Modesto, also claimed EUR 2,011.14 for costs and expenses incurred in presenting the applicants’ case before the Court. 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. Regard being had to the documents in its possession and the above criteria, the Court considers that the sum claimed should be awarded 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.", "Holds that the applicants’ heirs identified in the appended table have standing to continue the present proceedings in the stead of the deceased applicants; 2. Declares the application inadmissible in so far as it has been lodged by Ms Rosa Rodrigues Casal; 3. Declares the remainder of the application admissible; 4. Holds that there has been a violation of Article 6 § 1 of the Convention; 5. Holds (a) that the respondent State is to pay, within three months, the following amounts: (i) EUR 500 (five hundred euros) to each of the applicants, or EUR 500 (five hundred euros) jointly to the heirs of the late applicants who continued the proceedings before the Court in their stead, as detailed in the appended table, plus any tax that may be chargeable, in respect of non-pecuniary damage: (ii) EUR 2,011.14 (two thousand eleven euros and fourteen cents) to the first applicant, plus any tax that may be chargeable to the first applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 29 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea TamiettiEgidijus KūrisDeputy RegistrarPresident ANNEX No. Applicant reference number Applicant name Date of birth and Residence Notes Non-pecuniary damage award 1 1 Maria de Lurdes Ferreira de Matos Oliveira Modesto 26/01/1952 AVEIRO EUR 500 2 2 Maria Clara Morgado Guerra Soares 27/10/1959 AVEIRO EUR 500 3 3 Fernanda Geraldo Fernandes de Carvalho 03/01/1951 CARREGAL EUR 500 4 4 Manuel Oliveira da Costa 16/04/1948 CACIA EUR 500 5 5 Olinda da Graça Carvalho 28/01/1958 AVEIRO EUR 500 6 6 Emanuel Lopes Lobo 04/10/1938 AVEIRO EUR 500 7 7 Rafael Policarpo Neves da Silva 17/04/1941 EIXO Ms Gisela Matzen Neves da Silva, Ms Daniela Matzen Neves da Silva Nogueira, Ms Ana Catarina Neves da Silva, and Ms Joana Rafael Neves da Silva, heirs of the applicant, pursue the application in his stead. EUR 500 (jointly) 8 8 Maria Leonor Rodrigues da Silva 07/09/1953 AVEIRO EUR 500 9 9 Joaquim António Teles Machado 10/04/1949 AVEIRO EUR 500 10 10 Ana Maria Rodrigues da Cruz 30/07/1958 AVEIRO EUR 500 11 11 Maria Ascenção Gonçalves Maio 03/10/1940 AVEIRO EUR 500 12 12 José Ferreira da Rocha 28/07/1932 AVEIRO EUR 500 13 13 Maria José da Costa Ferreira 18/01/1955 AVEIRO EUR 500 14 14 Benilde Catarina Peralta 05/05/1938 AVEIRO EUR 500 15 15 Maria Isabel Nunes da Silva Valente 28/06/1954 AVEIRO EUR 500 16 16 Maria Odete Vieira de Sousa 20/08/1950 S. BERNARDO Mr António Fernando de Lemos, Mr Nuno Filipe Vieira de Sousa Lemos, and Mr Renato Emanuel Vieira de Sousa Lemos, heirs of the applicant, pursue the application in her stead.", "EUR 500 (jointly) 17 17 José Fernando dos Santos Martins 27/04/1947 AVEIRO EUR 500 18 18 Zícia do Céu Benedita Peralta 10/04/1955 COSTA DO VALADO EUR 500 19 19 Celeste Glória Benedita Peralta Dias 14/10/1957 ESTARREJA EUR 500 20 20 Maria Fernanda dos Santos Saraiva 31/08/1959 AVEIRO EUR 500 21 21 Maria dos Anjos Pereira Ribães Rodrigues 10/03/1955 CACIA EUR 500 22 22 Isaura Pereira Cortez 28/08/1948 AVEIRO Mr António Dias Ribeiro and Nelson Renato Cortez Ribeiro, heirs of the applicant, pursue the application in her stead. EUR 500 (jointly) 23 23 Maria Pereira Cortês 23/03/1947 AVEIRO EUR 500 24 24 Olinda Rosa Pereira Cortês 14/08/1950 AVEIRO EUR 500 25 26 Maria Luisa dos Santos Oliveira 19/04/1941 SANTA JOANA EUR 500 26 27 Florinda dos Santos Oliveira Campos 02/05/1950 AVEIRO EUR 500 27 28 Maria Isabel Vizinho Freitas Brites 08/11/1952 ILHAVO EUR 500 28 29 António José Brites 15/06/1950 ILHAVO EUR 500 29 30 António Pedro Nunes de Carvalho 25/03/1945 ANGEJA EUR 500 30 31 Palmira Nascimento Fernandes Almeida 07/02/1958 CACIA EUR 500 31 32 Maria Helena Rodrigues dos Santos Garrido 29/05/1959 AVEIRO EUR 500 32 33 Maria Helena Morais Vaia Duarte 12/09/1959 AVEIRO EUR 500 33 34 Maria Preciosa Marques de Araújo Santos 16/08/1954 CACIA EUR 500 34 35 Virgílio Ferreira Souto Ratola 12/03/1957 MAMODEIRO EUR 500 35 36 Maria Fernanda Santos de Carvalho Ratola 05/03/1950 MAMODEIRO EUR 500 36 37 José Mário Gonçalves Carvalho 09/02/1944 AVEIRO EUR 500 37 38 Luis Manuel dos Reis Vinagre 25/12/1948 AVEIRO EUR 500 38 39 António Rufino Marques Ferreira 03/04/1949 AVEIRO EUR 500 39 40 Maria Alegria Branco Neves Ferreira 10/08/1949 AVEIRO EUR 500 40 41 Rosa Dias Nunes 27/01/1948 LUXEMBOURG EUR 500 41 42 Noémia Ferreira Dias Marques 28/02/1956 CACIA EUR 500 42 43 Maria Augusta Ferreira Monteiro 21/07/1954 AVEIRO EUR 500 43 44 Fernanda Augusta Pereira Monteiro Silva 30/11/1957 CACIA EUR 500 44 45 Maria de Fátima Marinho Teixeira Dinis 13/05/1952 AVEIRO EUR 500 45 46 Maria da Graça de Almeida Roque 12/02/1953 AVEIRO EUR 500 46 47 Maria Luísa Leal Bessa Frazão 01/07/1958 AVEIRO EUR 500 47 48 Maria Luísa Ferreira Vieira Morgado 12/10/1957 CACIA EUR 500 48 49 Aldina Maria Fonseca de Pinho 09/04/1955 GAFANHA DA NAZARÉ EUR 500 49 50 Manuel Soares Ferreira 01/12/1943 AVEIRO EUR 500 50 51 António da Costa Santos 23/08/1946 AVEIRO Ms Maria da Conceição da Silva Dias Santos and Mr Emanuel da Silva Santos, heirs of the applicant, pursue the application in his stead. EUR 500 (jointly) 51 52 Américo Pereira Galvão Seco 02/04/1946 EIXO EUR 500 52 53 Maria Isabel Pereira Oliveira Santos 25/01/1951 AVEIRO EUR 500 53 54 Guilhermina Conceição Almeida Oliveira 16/01/1960 AVEIRO EUR 500 54 55 Luísa da Silva Pereira 22/06/1954 CACIA EUR 500 55 56 José Maia Gonçalves 07/09/1941 AVEIRO EUR 500 56 57 Ermosa Maria Dunas Figueira Russo 18/06/1960 AVEIRO EUR 500 57 58 Armando Henrique da Silva Vinagre 21/08/1946 AVEIRO EUR 500 58 59 Maria José Pereira Coutinho 01/04/1953 AVEIRO EUR 500 59 60 Manuel Soares Reis Santos 11/10/1940 ÓIS DA RIBEIRA EUR 500 60 61 Ana Paula Santos Rodrigues Bartolomeu 04/01/1959 AVEIRO EUR 500 61 63 Rosa Maria Almeida Gonçalves Brandão 31/08/1956 AVEIRO EUR 500 62 64 Manuel da Loura Gamelas 13/01/1941 AVEIRO Mr José Manuel Teixeira Gamelas, heir of the applicant, pursues the application in his stead. EUR 500 63 65 Maria de Lurdes Maia Dias 18/03/1952 AVEIRO EUR 500 64 66 Maria de Lurdes Sousa Lopes Garcia 09/02/1936 AVEIRO EUR 500 65 67 Maria Henriqueta Calado Nunes Oliveira 11/06/1955 AVEIRO EUR 500 66 68 Rosa Maria Duarte Ramalho 20/11/1955 OLIVEIRINHA EUR 500 67 69 Maria Margarida Pereira Leiroz Guimarães 12/05/1943 ILHAVO EUR 500 68 70 Ana Luisa Fernanda Almeida Rosa 10/06/1956 EIXO EUR 500 69 71 Maria de Fátima de Oliveira Dinis Silva 17/10/1957 OVAR EUR 500 70 73 Maria Helena Nunes Videira da Cruz 04/09/1954 LOURE EUR 500 71 74 Maria Aldina Ferreira Monteiro Moreira 07/09/1952 ÁGUEDA EUR 500 72 76 Maria Rosália Gonçalves Genrinho 25/08/1940 AVEIRO EUR 500 73 78 Belarmino de Ornelas Resende 03/04/1930 AVEIRO EUR 500 74 79 António Rodrigues Ferreira 02/01/1935 OIà EUR 500 75 80 Maria Ascenção Barros Naia Fortes 01/02/1955 AVEIRO EUR 500 76 81 Francelina Marques Silva Alvarez 30/01/1954 AVEIRO EUR 500 77 82 Carlos Manuel Padre Fitorra 27/03/1952 AVEIRO EUR 500 78 83 Maria Augusta Pereira Pinto Fitorra 11/05/1958 AVEIRO EUR 500 79 84 Júlia Maria Ferreira da Cunha Matos 16/10/1958 S. BERNARDO EUR 500 80 85 Maria Carolina Pereira Coutinho Camarão 22/03/1955 AVEIRO EUR 500 81 86 Maria Helena Amaro Bonifácio 08/08/1957 ANGEJA EUR 500 82 87 Maria José Silva Nunes Ferreira 16/10/1958 AVEIRO EUR 500 83 88 Ilda Maria Calisto de Lima 25/09/1958 ILHAVO EUR 500 84 89 Ana Maria Calisto de Lima 28/10/1957 AVEIRO EUR 500 85 90 Rosa Maria Branco das Neves Ribeiro 18/11/1951 AVEIRO EUR 500 86 91 Adélia Pereira Brandão 20/05/1950 AVEIRO EUR 500 87 92 Maria Isabel Simões Sequeira 04/03/1953 AVEIRO EUR 500 88 93 Arlindo de Sousa Rodrigues da Silva 22/03/1938 ALBERGARIA-A-VELHA Ms Rosa Maria Rodrigues da Silva, Ms Anabela Rodrigues da Silva, and Ms Ana Alexandra Rodrigues da Silva Sachse, heirs of the applicant, pursue the application in his stead. EUR 500 (jointly) 89 95 António Nobre Machado 04/02/1924 AVEIRO Ms Noémia Maria Diniz Teles Machado, Mr Joaquim António Dinis Teles Machado, Mr Raul Diniz Teles Machado, Mr José Carlos Diniz Teles Machado, and Ms Ana Paula Diniz Teles Machado Pimenta, heirs of the applicant, pursue the application in his stead.", "EUR 500 (jointly) 90 96 Manuel Silva Costa Malafaia 26/08/1957 AVEIRO EUR 500 91 97 Ana Maria Almeida Dias Santos 11/01/1953 AVEIRO EUR 500 92 98 Rodrigo da Silva Ferreira 05/06/1944 AVEIRO EUR 500 93 99 Maria Fernanda da Costa 13/04/1951 AVEIRO EUR 500 94 100 Alfredo Ferraz Leal 28/12/1935 AVEIRO EUR 500 95 101 Carlos Alberto Simões Instrumento 13/05/1925 AVEIRO Mr João Francisco Rasoilo Simões, Mr Carlos Alberto Simões, and Mr Óscar Manuel Simões, heirs of the applicant, pursue the application in his stead. EUR 500 (jointly) 96 102 Jaime de Oliveira Fernandes Dias 21/02/1943 AVEIRO EUR 500 97 103 Alda Maria dos Santos Marques 20/02/1957 AVEIRO EUR 500 98 104 Irene Amarante de Jesus Romão 04/07/1958 AVEIRO EUR 500 99 105 Maria Adoração Oliveira Neto Carnaz 10/11/1946 AVEIRO EUR 500 100 106 Odelta Maria Dias da Silva Patinha 17/02/1957 ALBERGARIA-A-VELHA EUR 500 101 107 Maria Conceição Gonçalves Branco 28/06/1945 AVEIRO EUR 500 102 109 Maria Clara da Costa Mesquita 16/03/1960 AVEIRO Mr Carlos Manuel Marques Rosa, Ms Cláudia Susana Costa Marques, and Ms Cátia Daniela Costa Marques, heirs of the applicant, pursue the application in her stead. EUR 500 (jointly) 103 110 Maria Emília Soares Correia 16/11/1955 AVEIRO EUR 500 104 111 Emília Augusta Maia Soares Diogo 18/10/1956 AVEIRO EUR 500 105 112 Maria Vitória O. Marques Couras 27/02/1958 AVEIRO EUR 500 106 113 Maria Júlia Ferreira Monteiro 23/04/1958 AVEIRO EUR 500 107 114 Maria Irene Costa Ferreira 12/02/1951 AVEIRO EUR 500 108 115 Ana Maria Robalo Martins Abelho 05/08/1950 AZURVA EUR 500 109 116 José Maria Pereira Póvoa 02/01/1949 AVEIRO EUR 500 110 118 Fernanda Simões Sequeira Marques 01/03/1957 CACIA EUR 500 111 119 Maria Manuela Marques de Almeida 15/09/1959 AVEIRO EUR 500 112 120 Maria de Fátima Rodrigues Pinto 27/04/1939 AVEIRO EUR 500 113 121 Maria de Ascenção Dias Simões Gregório 28/04/1944 S. BERNARDO EUR 500 114 25 António Liberto dos Santos Oliveira 08/03/1956 AVEIRO The applicant intervenes in his capacity as heir of Ms Adoração dos Santos Oliveira, who died on 23 May 2002. EUR 500 115 62 Lídia Batista Neves 19/08/1932 FERMELà The applicants intervene in their capacity as heirs of Mr António Domingues Andrade Júnior, who died on 17 August 2009. EUR 500 (jointly) 116 Maria do Céu Neves de Andrade 19/10/1958 FERMELà 117 Carlos Manuel Neves de Andrade 21/07/1968 FERMELà 118 72 Celeste da Conceição Azevedo Gonçalves Amaro 06/12/1939 AVEIRO The applicants intervene in their capacity as heirs of Mr Adriano Pereira Amaro, who died on 27 June 2004.", "EUR 500 (jointly) 119 José Carlos Gonçalves Amaro 30/01/1968 AVEIRO 120 Célia Maria Gonçalves Amaro 30/06/1969 AVEIRO 121 75 Júlio de Campos Soares 30/10/1953 AVEIRO The applicants intervene in their capacity as heirs of Ms Maria Isabel Ferreira Soares, who died on 21 May 2001. EUR 500 (jointly) 122 Sílvia Raquel Ferreira Soares 15/08/1977 AVEIRO 123 77 Georgina Maria Rodrigues dos Santos 23/04/1928 AVEIRO The applicants intervene in their capacity as heirs of Mr Olegário Filipe dos Santos, who died on 1 February 2008. EUR 500 (jointly) 124 José Francisco Rodrigues dos Santos 23/06/1948 AVEIRO 125 Jorge Manuel Rodrigues dos Santos 22/08/1952 AVEIRO 126 Maria do Rosário Rodrigues Santos Nunes Campos 04/06/1958 AVEIRO 127 94 Rosa Maria Gomes Adrêgo Martins 24/07/1947 AVEIRO The applicants intervene in their capacity as heirs of Mr Manuel Martins Pinho, who died on 31 August 2008. EUR 500 (jointly) 128 Vitor Manuel Adrêgo Martins 08/09/1969 AVEIRO 129 Helena Maria Adrêgo Martins Bandeira 22/09/1974 AVEIRO 130 108 Maria Vitória Branco Rodrigues da Rocha 15/03/1941 AVEIRO The initial applicants intervened in their capacity as heirs of Mr António Tavares Teixeira, who died on 18 December 2009. The applicant Ms Maria Vitória Branco Rodrigues da Rocha (no.", "130) died while the application was pending before the Court. Mr António Manuel da Rocha Tavares Teixeira (applicant no. 131) is her only heir. The applicant Mr António Manuel da Rocha Tavares Teixeira therefore intervenes in his own capacity as heir of Mr António Tavares Teixeira and pursues the application in the stead of Ms Maria Vitória Branco Rodrigues da Rocha. EUR 500 131 António Manuel da Rocha Tavares Teixeira 05/01/1964 AVEIRO 132 122 Rosa Maria Branco Ferreira Tavares 31/07/1955 AVEIRO EUR 500 133 123 Rosa Maria Pinho de Almeida Ferreira 26/04/1959 ANGEJA EUR 500 134 124 Virgínia Maria Gonçalves Ruela 05/10/1958 AVEIRO EUR 500 135 126 Maria Leonor Marques Pereira 31/08/1953 AVEIRO EUR 500 136 127 Maria Lúcia da Graça Marinho 15/04/1954 GERMANY EUR 500 137 128 Maria Lúcia Ferreira dos Santos Nobre 06/09/1958 AVEIRO EUR 500 138 129 Maria Regina Barros Pereira Castro 22/01/1957 ESTARREJA EUR 500 139 130 Mário João Dias da Conceição Pedro 09/04/1939 AVEIRO EUR 500 140 131 Matilde Jesus Marques 06/12/1956 AVEIRO EUR 500 141 132 Nazaré Glória Gonçalves Morgado 29/09/1958 AVEIRO EUR 500 142 133 Maria Filomena Lima Calisto 28/10/1958 AVEIRO EUR 500 143 134 Maria Graciela da Costa Pereira 23/08/1955 ESTARREJA EUR 500 144 135 Maria Helena Barros Silva 30/06/1960 AVEIRO EUR 500 145 137 António Carlos Almeida Andias 22/05/1951 AVEIRO EUR 500 146 138 Maria Helena Oliveira da Silva Santos 19/06/1953 AVEIRO EUR 500 147 139 Belarmino Alves Santos Abreu 23/03/1954 FERMELà EUR 500 148 140 Rosa Maria Antunes Silva Jorge Ferreira 06/09/1960 AVEIRO EUR 500 149 145 Adília Pereira 13/02/1945 ANDORRE EUR 500 150 146 Amaro Fernando de Jesus Silveira 03/07/1949 AVEIRO EUR 500 151 147 Maria Silvina Romão Gonçalves da Loura Couto 11/03/1954 AVEIRO EUR 500 152 148 Maria Margarida Andrade Neves 10/08/1958 AVEIRO EUR 500 153 151 José Manuel dos Santos Figueiras 14/01/1957 CACIA EUR 500 154 154 Guilherme Augusto Freire Nunes Ribeiro 23/05/1948 GAFANHA DA NAZARÉ EUR 500 155 155 João Manuel Teixeira Rodrigues Carita 25/09/1951 AVEIRO EUR 500 156 156 Manuel Simões Neves 01/11/1937 GAFANHA DA NAZARÉ EUR 500 157 158 Francisco José da Silva Vinagre 01/09/1954 AVEIRO EUR 500 158 159 João Dias Fernandes 03/06/1929 AVEIRO EUR 500 159 160 Maria Fátima Santos Pereira 29/03/1959 AVEIRO EUR 500 160 161 Gertrudes Maria Rosado Grilo 26/01/1948 AZURVA EUR 500 161 162 Manuel Souto Silva 10/10/1957 ANGEJA EUR 500 162 163 Lavínia Maria Jesus Gouveia Costa 24/09/1948 AVEIRO EUR 500 163 164 Maria Armanda Cunha Silva Pereira 22/06/1956 AVEIRO EUR 500 164 165 Cristina Maria de Araújo Peixinho Rosas 02/11/1956 AVEIRO EUR 500 165 167 Maria Filomena Freire Nunes Ribeiro 04/12/1950 AVEIRO EUR 500 166 169 Maria Carolina de Sousa Almeida Neto 24/05/1957 AVEIRO Mr João Mário da Graça Azevedo Neto and Mr Fernando Miguel de Sousa Azevedo Neto, heirs of the applicant, pursue the application in her stead.", "EUR 500 (jointly) 167 170 Fernando Tavares Xavier 24/06/1944 AVEIRO EUR 500 168 171 Maria Joaquina Amorosa dos Reis 18/01/1946 AVEIRO EUR 500 169 172 Orlando Silva Matos 28/08/1942 CACIA EUR 500 170 173 Rosa Santos Nogueira Almeida 20/02/1945 CANADÁ EUR 500 171 174 Vitor Manuel Costa Domingues de Sá 20/10/1957 FERMELà EUR 500 172 176 Jaime Semedo 03/07/1948 AVEIRO EUR 500 173 178 João Marques Rodrigues 22/05/1952 ESTARREJA Ms Maria Teresa dos Anjos Aires Rodrigues, heir of the applicant, pursues the application in his stead. EUR 500 174 179 Manuel Fernandes das Bichas 26/08/1950 AVEIRO EUR 500 175 180 Luis Alberto Oliveira da Silva 29/07/1949 ILHAVO EUR 500 176 182 João de Oliveira Azevedo 07/07/1946 AVEIRO EUR 500 177 185 Armando de Pinho 24/05/1955 AVEIRO EUR 500 178 186 Maria Isabel Igreja Pereira Caldeira 01/03/1960 AVEIRO EUR 500 179 187 Brilhantina Simões da Silva Freire 14/06/1955 AVEIRO EUR 500 180 188 Eduardo José Sacramento Rocha 04/08/1946 AVEIRO EUR 500 181 189 Maria Luz dos Santos Tavares 22/12/1956 AVEIRO EUR 500 182 190 Maria Purificação Egreja Pereira 15/02/1958 AVEIRO EUR 500 183 191 Maria Fátima Marques Simão Madeira 29/08/1954 AVEIRO EUR 500 184 192 Maria Rosário Gonçalves de Carvalho Peralta 05/06/1957 AVEIRO EUR 500 185 193 Ana Rosa Jesus Oliveira 26/10/1953 ALBERGARIA-A-VELHA EUR 500 186 194 Abel Rocha Simões 09/06/1951 AVEIRO EUR 500 187 195 António Marques Tavares 26/04/1946 SEVER DO VOUGA EUR 500 188 196 Carminda Maria de Castro Vieira Mendes 21/08/1956 AVEIRO EUR 500 189 197 Deolinda Maria Peixoto Rodrigues Oliveira 13/03/1957 AVEIRO EUR 500 190 198 Fernando Miranda Gonçalves 29/06/1944 MIRA EUR 500 191 199 Maria Fátima Silva Valente 16/09/1958 SUISSE EUR 500 192 200 António Francisco Laranjeira 28/12/1953 AVEIRO EUR 500 193 201 Ricardo Jorge Fino Figueiredo 18/06/1953 ILHAVO EUR 500 194 202 José Piedade Ferreira 16/10/1927 S. JOÃO DO ESTORIL EUR 500 195 203 José Luis Ferreira Bio 15/10/1947 ILHAVO EUR 500 196 204 João Rodrigues Pereira 15/08/1927 AVEIRO EUR 500 197 205 Armando Emílio Coelho Regala 06/05/1943 AVEIRO EUR 500 198 206 Maria Graça Dias Rodrigues Pereira 28/02/1955 CACIA EUR 500 199 207 Rosa Rodrigues Casal 09/09/1926 AVEIRO EUR 500 200 125 Márcio Filipe Soares Oliveira 04/01/1979 CACIA The applicant intervenes in his capacity as heir of Ms Maria Leonor Silva Soares Oliveira, who died on 18 September 2005. EUR 500 201 136 Ermelando João de Almeida Vidal 27/09/1972 OLIVEIRINHA The applicants intervene in their capacity as heirs of Ms Maria Helena Almeida Andias, who died on 14 January 2004. EUR 500 (jointly) 202 Bruno Daniel de Almeida 28/02/1982 UNITED STATES OF AMERICA 203 141 Maria de Fátima Rodrigues Pinto 27/04/1939 AVEIRO The applicants intervene in their capacity as heirs of Mr Henrique Ferreira Teixeira, who died on 29 April 1988. EUR 500 (jointly) 204 Isabel Cristina Pinto Teixeira 06/03/1965 AVEIRO 205 142 Maria Teresa Silva Grilo dos Anjos 12/09/1949 ILHAVO The applicants intervene in their capacity as heirs of Mr Armando Manuel Matias dos Anjos, who died on 17 October 1989.", "EUR 500 (jointly) 206 Ricardo Manuel Silva dos Anjos 05/01/1971 ILHAVO 207 João Henrique Silva dos Anjos 30/06/1975 ILHAVO 208 Susana Catarina Silva dos Anjos 19/08/1976 ILHAVO 209 143 Dorinda Rosa Ferreira 24/02/1927 AVEIRO The applicants intervene in their capacity as heirs of Mr Manuel Alves Ribeiro Pinho, who died on 28 May 1987. EUR 500 (jointly) 210 Joaquim Ferreira de Pinho 15/01/1949 AVEIRO 211 Marília Ferreira de Pinho 01/01/1951 AVEIRO 212 José Manuel Ferreira de Pinho 10/08/1952 UNITED STATES OF AMERICA 213 João Manuel Ferreira de Pinho 31/01/1958 AVEIRO 214 António Manuel Ferreira de Pinho 14/02/1961 ALBERGARIA-A-VELHA 215 144 Maria Adelaide Dias Abrunhosa 07/12/1923 OLIVEIRINHA The applicant intervenes in her capacity as heir of Mr Vitorino Henriques da Silva, who died on 21 December 1992. EUR 500 216 149 Manuel Simões das Neves 01/11/1937 GAFANHA DA NAZARÉ The applicants intervene in their capacity as heirs of Mr Mário Rui Simões Neves, who died on 28 May 2007. EUR 500 (jointly) 217 Carlos Simões das Neves 28/03/1935 GAFANHA DA NAZARÉ 218 150 Maria Luísa dos Santos Oliveira 19/04/1941 AVEIRO The applicants intervene in their capacity as heirs of Mr Jorge de Pinho Branco, who died on 10 February 1993. EUR 500 (jointly) 219 Jorge Virgílio de Oliveira Branco 17/01/1963 SÃO BERNARDO 220 Rui Miguel Oliveira Branco 23/06/1971 SÃO BERNARDO 221 152 Maria do Rosário Garcia de Oliveira Moutinho 21/08/1936 AVEIRO The applicants intervene in their capacity as heirs of Mr Abel Limas Simões, who died on 2 December 1997.", "EUR 500 (jointly) 222 Ernesto de Oliveira Simões 10/06/1957 AVEIRO 223 Deolinda Maria de Oliveira Simões 11/01/1961 AVEIRO 224 153 Lucília Maria da Trindade Sarabando 21/09/1942 VAGOS The applicants intervene in their capacity as heirs of Mr Adérito Ramos Gonçalves, who died on 5 December 2000. EUR 500 (jointly) 225 Adérito Manuel da Trindade Gonçalves 29/01/1962 VAGOS 226 157 Lídia Lopes 15/01/1943 ILHAVO The initial applicants intervened in their capacity as heirs of Mr Carlos António Lopes Bastos, who died on 22 March 1998. The applicant Ms Lídia Lopes (no. 226) died while the application was pending before the Court. Mr Jorge Manuel Lopes Bastos and Ms Olga Maria Lopes Bastos (applicants nos.", "227 and 228) are her only heirs. The applicants Mr Jorge Manuel Lopes Bastos and Ms Olga Maria Lopes Bastos therefore intervene in their own capacity as heirs of Mr Carlos António Lopes Bastos and pursue the application in the stead of Ms Lídia Lopes. EUR 500 (jointly) 227 Jorge Manuel Lopes Bastos 25/08/1967 ILHAVO 228 Olga Maria Lopes Bastos 17/03/1969 OIà 229 166 Fernanda Pais da Cruz Silva 02/12/1943 AVEIRO The initial applicants intervened in their capacity as heirs of Mr José Silva Brilhante, who died on 3 July 1997. However, they died while the application was pending before the Court. Mr Júlio José da Cruz Simões, Ms Maria José da Cruz Simões Ventura, Mr João José das Neves Ferreira, Ms Joana Silva Ferreira, and Mr João Pedro Silva Ferreira, heirs of the applicants, pursue the application in their stead.", "EUR 500 (jointly) 230 Ana Clara dos Santos Silva Ferreira 27/02/1964 AVEIRO 231 168 Emília Alves Igreja 29/08/1922 AVEIRO The applicants intervene in their capacity as heirs of Mr Zacarias Gonçalves Pereira Júnior, who died on 26 February 2007. EUR 500 (jointly) 232 Maria da Purificação Egreja Pereira 15/02/1958 AVEIRO 233 Maria Isabel Egreja Pereira Caldeira 01/03/1960 AVEIRO 234 José Carlos Egreja Pereira 26/01/1964 AVEIRO 235 175 Ilda Nogueira Mota 06/01/1941 S. JOÃO DE LOURE The applicants intervene in their capacity as heirs of Mr. Avelino de Jesus Henriques da Silva, who died on 19 July 1997. EUR 500 (jointly) 236 Tércio Mota Henriques da Silva 13/05/1965 S. JOÃO DE LOURE 237 177 Maria da Soledade Freire Pinto Nogueira 08/04/1941 AVEIRO The initial applicants intervened in their capacity as heirs of Mr Jorge Marques Nogueira, who died on 20 August 2009. The applicants Ms Maria da Soledade Freire Pinto Nogueira and Mr Jorge Alberto Pinto Nogueira (nos. 237 and 239) died while the application was pending before the Court.", "Ms Deolinda Maria Pinto Nogueira (applicant no. 238), Ms Bárbara Esteves Nogueira, and Ms Cristiana Jorge de Figueiredo Nogueira are the only heirs of the deceased applicants. They therefore intervene in their own capacity as heirs of Mr Jorge Marques Nogueira and pursue the application in the stead of Ms Maria da Soledade Freire Pinto Nogueira and Mr Jorge Alberto Pinto Nogueira. EUR 500 (jointly) 238 Deolinda Maria Pinto Nogueira 20/10/1955 AVEIRO 239 Jorge Alberto Pinto Nogueira 12/12/1964 AVEIRO 240 181 Carla Cristina Gonçalves de Oliveira 13/04/1972 AVEIRO The applicants intervene in their capacity as heirs of Ms. Leopoldina da Costa Gonçalves, who died on 23 February 1994. EUR 500 (jointly) 241 Ana Maria Gonçalves de Oliveira 21/09/1973 AVEIRO 242 Maria Alice Gonçalves de Oliveira 26/11/1974 AVEIRO 243 Virgínia Maria Gonçalves de Oliveira 25/03/1978 AVEIRO 244 Patrícia Susana Gonçalves de Oliveira 17/04/1982 AVEIRO 245 Sandra Raquel Gonçalves de Jesus 16/11/1992 AVEIRO 246 183 Francisco Albino Ferreira Picado 12/02/1963 AVEIRO The applicants intervene in their capacity as heirs of Mr. Albino Picado, who died on 16 December 1997.", "EUR 500 (jointly) 247 Maria de Apresentação Ferreira Picado Instrumento 13/01/1970 AVEIRO 248 184 Maria Eugénia Fernandes da Silva Santos 30/05/1951 EIXO The applicants intervene in their capacity as heirs of Mr. Arménio Domingues da Silva, who died on 4 December 1995. EUR 500 (jointly) 249 Maria de La-Salete Fernandes da Silva Dinis 04/11/1952 AVEIRO 250 António Fernandes da Silva 22/02/1954 AVEIRO 251 Albano Arménio Fernandes da Silva 14/12/1961 AVEIRO" ]

[ "FIRST SECTION CASE OF KOROVINA v. RUSSIA (Application no. 24178/05) JUDGMENT STRASBOURG 25 February 2010 FINAL 25/05/2010 Cet arrêt est devenu définitif en vertu de l'article 44 § 2 de la Convention. Il peut subir des retouches de forme. In the case of Korovina v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 4 February 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "24178/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Antonina Sergeyevna Korovina (“the applicant”), on 27 May 2005. 2. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights. 3. On 25 January 2007 the President of the First Section decided to give notice of the application to the Government.", "It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1930 and lives in Syzran, Samara Region. 5.", "On 14 June 1994 the applicant opened a deposit account with a bank at 190% per annum for ten years on behalf of her granddaughter, a minor at the material time (she was born in 1986). 6. Subsequently the bank decreased the interest rate down to 16% and the applicant brought proceedings against it claiming the decrease unlawful. 7. On 21 April 2003 the Syzran Town Court of the Samara Region granted the applicant's claim in part, ordering the bank to make payments on the basis of the interest rate of 85% per annum.", "8. On 2 June 2003 the Samara Regional Court amended the judgment on appeal and granted the applicant's claims in full, ordering the bank to maintain the interest rate in accordance with the initial conditions of the deposit, namely 190% per annum. The appeal judgment became final on the same date. 9. After the deposit period expired on 18 June 2004, the appeal judgment was enforced and the applicant's granddaughter received the required sums.", "10. However, on the bank's initiative, on 20 January 2005 the Presidium of the Samara Regional Court quashed the previous judgments via supervisory review and remitted the case for fresh consideration, on the grounds that the lower courts had made errors in applying the domestic law. 11. On 7 February 2005 the town court dismissed the applicant's claim. 12.", "On 14 March 2005 the Samara Regional Court upheld the judgment on appeal. 13. On an unspecified date the bank was awarded back the sums paid to the applicant's granddaughter. II. RELEVANT DOMESTIC LAW 14.", "The relevant domestic law governing the supervisory review procedure at the material time is summed up in the Court's judgment in the case of Sobelin and Others v. Russia (nos. 30672/03, et seq., §§ 33-42, 3 May 2007). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 ON ACCOUNT OF SUPERVISORY REVIEW 15. The applicant complained in substance under Article 6 of the Convention that the final judgment of 21 April 2003, as amended by the appeal judgment of 2 June 2003, had been quashed by way of supervisory review.", "In so far as relevant, this Article reads as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” 16. The Government contested that argument. They argued, inter alia, that the supervisory review had been compatible with the Convention as it was aimed to correct a judicial error. A. Admissibility 17. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 18. The Court reiterates that for the sake of legal certainty implicitly required by Article 6, final judgments should generally be left intact.", "They may be disturbed only to correct fundamental errors. The mere possibility of there being two views on the subject is not a ground for re‑examination (see Ryabykh v. Russia, no. 52854/99, §§ 51-52, ECHR 2003‑IX). 19. The Court reiterates that it has frequently found violations of the principle of legal certainty and of the right to a court in the supervisory‑review proceedings governed by the Code of Civil Procedure in force since 2003 (see, amongst other authorities, Sobelin and Others, cited above, §§ 57-58, and Bodrov v. Russia, no.", "17472/04, § 31, 12 February 2009). 20. In the present case the Presidium disagreed with the assessment made by the first-instance and appeal courts which is not, in itself, an exceptional circumstance warranting the quashing of a binding and enforceable judgment (see Kot v. Russia, no. 20887/03, § 29, 18 January 2007). Accordingly, there has been a violation of Article 6 § 1 of the Convention.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 21. The applicant further complained in substance under Article 1 of Protocol No. 1 about the same quashing via supervisory review. She also complained under Article 6 and Article 1 of Protocol No.", "1 about the outcome of the proceedings. 22. Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 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.” 24. The applicant did not submit a claim for just satisfaction. Accordingly, the Court makes no award under Article 41 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaint under Article 6 concerning supervisory review admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 of the Convention on account of the quashing of the final judgment of 21 April 2003, as amended by the appeal judgment of 2 June 2003, via supervisory review. Done in English, and notified in writing on 25 February 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenNina VajićRegistrarPresident" ]

[ "THIRD SECTION CASE OF VIKULOV AND OTHERS v. LATVIA (Application no. 16870/03) JUDGMENT STRASBOURG 25 September 2012 FINAL 29/04/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Vikulov and Others v. Latvia, The European Court of Human Rights (Chamber), sitting as a Chamber composed of: Egbert Myjer, President,Corneliu Bîrsan,Alvina Gyulumyan,Ján Šikuta,Ineta Ziemele,Nona Tsotsoria,Kristina Pardalos, judges,and Marialena Tsirli, Deputy Section Registrar, Having deliberated in private on 4 September 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "16870/03) 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 three Russian nationals, Mr Sergey Vikulov, Mrs Galina Vikulova and Mr Anton Vikulov (“the applicants”), on 9 May 2003. 2. The applicants were represented by Mrs M. Portnova, a lawyer practising in Moscow. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine. 3.", "The applicants invoked, in particular, Article 3, Article 5 § 1 (f) and Article 8 of the Convention and complained about certain aspects of their detention in Rīga and Olaine. 4. By a decision of 25 March 2004 the above complaints were communicated to the Government and on 31 August 2006 the Court declared the application partly admissible concerning the aforementioned complaints. 5. The applicants and the Government each filed written observations on the merits and replied in writing to each other’s observations.", "In addition, third-party comments were received from the Government of the Russian Federation, who had exercised their right to intervene (Article 36 § 1 of the Convention). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The first applicant, Mr Sergey Vikulov, was born in Hungary in 1955. His wife, the second applicant, Mrs Galina Vikulova, was born in then the Russian Soviet Federative Socialist Republic in 1957.", "Their son, the third applicant, Mr Anton Vikulov, was born in then the Latvian Soviet Socialistic Republic (Latvian SSR) in 1986. They are now citizens of the Russian Federation and live in Kaliningrad. A. Background to the complaint 7. The first applicant was an officer of the Soviet army.", "In 1985 he and his wife, the second applicant, entered the territory of Latvian SSR where the first applicant, together with other military personnel, was responsible for the supervision of the Soviet radar station in Skrunda. 8. In August 1991 Latvia regained its independence from the Soviet Union and in December 1991 the latter ceased to exist. In 28 January 1992 the Russian Federation assumed jurisdiction over the former Soviet Union armed forces, including those stationed in the territory of Latvia. Afterwards the applicants acquired the citizenship of the Russian Federation.", "9. On 30 April 1994 the Republic of Latvia and the Russian Federation signed the treaty concerning the conditions, deadlines and procedure for the complete withdrawal of the armed forces of the Russian Federation from the Republic of Latvia, as well as their status during the withdrawal. On the same day both States entered into an agreement concerning the legal status and dismantling of the radar station in Skrunda, and the status of the military personnel deployed there. It provided that the radar station was to cease its operations by 31 August 1998 and that it was to be dismantled by 29 February 2000. 10.", "By an order of 29 September 1998 the first applicant was demobilised from the army with effect from 11 November 1998. The applicants’ service visas were due to expire on 30 November 1998. B. Proceedings concerning the applicants’ stay in Latvia 11. In October 1998 the second applicant, acting on behalf of the other applicants, asked the Office of Citizenship and Migration Affairs (Pilsonības un migrācijas lietu pārvalde) to issue them with a residence permit.", "In support of her request she relied on the fact that her elderly parents and her daughter lived in Latvia, and that the third applicant was a pupil at a State school. 12. On 8 April 1999 the Office of Citizenship and Migration Affairs dismissed the applicants’ request, stating that they had entered the territory of Latvia because of the first applicant’s military service. They were informed that in accordance with the Law on Aliens (Par ārvalstnieku un bezvalstnieku ieceļošanu un uzturēšanos Latvijas Republikā), there was no legal basis for them to obtain permanent residence permits in the Republic of Latvia, and that by virtue of the agreement concluded between the Republic of Latvia and the Russian Federation, the applicants had to leave the territory of Latvia. 13.", "The applicants appealed against that decision before the Rīga City Centre District Court, which dismissed their appeal. No further appeal was brought. 14. On 10 March 2000 the first and second applicants asked the Office of Citizenship and Migration Affairs to issue them with temporary residence permits. 15.", "On 23 May 2000 the Head of the Office of Citizenship and Migration Affairs issued an order for the applicants (the third applicant was mentioned in the order concerning the first applicant) to leave Latvian territory by 12 June 2000 and also imposed a five-year ban on their re-entering Latvia. 16. Appeals by the applicants against the orders were dismissed by the national courts at three levels of jurisdiction. The final decision was adopted by the Senate of the Supreme Court on 19 February 2003. 17.", "In a letter dated 25 February 2003 the Office of Citizenship and Migration Affairs reminded the first and second applicants of their obligation to leave the country or otherwise they would be deported in pursuance of section 47 of the Law on Aliens. C. Procedure concerning the execution of the order to leave Latvian territory 18. It appears from the material in the case file that on 14 March 2003, during an interview with the Head of the Office of Citizenship and Migration Affairs, the applicants were informed that the period within which they had to leave the territory of Latvia had been extended until 15 June 2003 to allow the third applicant to finish the current school year. 19. On 3 September 2003, in the course of the execution of the aforementioned orders, the applicants were arrested by officers of the State Border Guard Service.", "The records of their arrest referred to the orders to leave of 23 May 2000 (see paragraph 15 above) and relied on section 51(1)(1), of the Immigration Law (Imigrācijas likums) (see “Relevant domestic law” below). The applicants refused to sign the records of their arrest because they were drawn up in Latvian, a language which they allegedly did not understand. 20. On the same day the applicants were placed in the State Border Guard Service detention unit for illegal immigrants in Rīga (“the State Border Guard Service detention unit”). 21.", "On 8 September 2003 the Office of Citizenship and Migration Affairs, relying on section 47(1)(1) of the Immigration Law adopted a decision to deport the applicants. Pursuant to section 47(2) of the above law the decision was not subject to appeal. The applicants refused to take cognisance of the decision. 22. On 12 September 2003, by a decision of the Rīga City Zemgale District Court, the applicants’ detention was extended until 19 September 2003.", "The court established that at the time of their arrest the applicants had not presented any identity documents and that according to their Russian Federation passports, which they had presented only during the hearing, the applicants did not have a lawful basis to reside in Latvia. 23. On the same day the applicants were transferred to the accommodation centre for foreign detainees (Aizturēto ārzemnieku izmitināšanas centrs) in Olaine (“the Olaine accommodation centre”), where they stayed until 15 September 2003, when they were brought back to the State Border Guard Service detention unit. On 17 September 2003 the applicants were deported to the Russian Federation. D. The applicants’ account of the conditions of their detention 24.", "On 3 September 2003 the applicants were taken to a cell. They first described the conditions in the cell in their initial separate complaints to the Court and later on in their joint application form. The facts as set out in the applicants’ initial separate complaints are referred to below in so far as they supplement the factual information presented in their later submissions. 1. Conditions in the State Border Guard Service detention unit from 3 to 12 September 2003 and from 15 to 17 September 2003 (a) Size and furnishing of the cell 25.", "The applicants stated that on 3 September 2003, after they had been searched without witnesses in the State Border Guard Service detention unit, they had each received a dirty and thin flannel blanket and a bed sheet, and had been placed together in a cell which was small (3 m by 3 m) and dirty, with a small window. The cell contained two steel bunk beds which were so hard that the second applicant’s back was constantly aching. There were steel chairs and a table screwed to the floor. The air was foul from the lavatory pan and washbasin in the cell, and as a result the applicants suffered from headaches and their eyes were watering. There was an iron door with a small window used for handing the applicants food and supervising them.", "The light in the cell was on for twenty-four hours a day and during their fourteen days in the cell the applicants were only twice taken out for a walk, lasting ten to fifteen minutes. 26. According to the initial submissions of the first applicant, the sanitary facilities were separated from the rest of the cell by a low partition. This assertion was maintained in the applicants’ later joint observations. (b) Food 27.", "The applicants contended that the food at the State Border Guard Service detention unit was of bad quality, tasteless, insufficiently salty and not always fresh. Owing to the short periods between the meals (breakfast was at 10 a.m., lunch at 12 noon and dinner at 4 p.m.), the applicants were hungry in the evenings. Once they were given mouldy potatoes for dinner. 28. The third applicant added that they had been given metal tableware and that the cell was infested with ants, which were creeping everywhere.", "This allegation was repeated in the applicants’ joint observations, which stated that in the cells there were large numbers of ants creeping into the food and spoiling it. (c) Possibility for the applicants to meet relatives and to visit their former place of residence 29. During the applicants’ stay in the State Border Guard Service detention unit they were only twice authorised to meet their relatives. They were also not authorised to return to their former place of residence to collect their belongings before their deportation. In their later joint observations the applicants added that an officer of the State Border Guard Service had told them that they would have an hour to go home on condition that they signed the records of their arrest and deportation.", "(d) Privacy 30. On 9 September 2003 one of the detainees in the neighbouring cell behaved aggressively and the officers of the detention unit released a certain gas to calm him down. The applicants had to leave their cells and when they returned another woman was put into the applicants’ cell for twenty-four hours. In her initial separate complaint the second applicant noted that the incident took place in the afternoon and that another person stayed in their cell for one day. In their joint observations the applicants stated that the woman stayed in their cell for two days.", "31. In their joint observations the applicants furnished a plan of the cells in the State Border Guard Service detention unit, according to which cells nos. 1 and 2 (the applicants were held in the latter cell) were designed for four persons, cell no. 4 for two persons and cell no. 3, which was a isolation cell, for one person, although the latter cell was not used because the window pane was broken.", "On 9 September 2003, when one of the three detainees in cell no. 1 started to behave aggressively, the other two men were transferred to cell no. 4, and a woman from cell no. 4 was transferred to the applicants’ cell (no. 2).", "Their protests against the woman’s transfer were ignored. 32. On 16 September 2011, a day before their deportation to the Russian Federation, a man was placed in their cell (cell no. 1). The applicants protested but the guards ignored them.", "In the evening they were moved to cell no. 4, which was meant for two persons. The first applicant therefore had to sleep on the floor. (e) Outside walks 33. In the State Border Guard Service detention unit the applicants were only twice allowed to have walks of fifteen minutes in the inner courtyard, which was cemented over and surrounded by high concrete walls protected by barbed wire.", "On the second occasion, they were taken out of their cell after the incident referred to above (see paragraph 30 above) in order to air the cell after gas had penetrated into it. 2. Conditions in the Olaine accommodation centre from 12 to 15 September 2003 34. The applicants contended that the conditions in the Olaine accommodation centre were no better than in Rīga. They were held in a separate cell with three beds, two tables and chairs, and they were given bed clothes.", "The cell was very dirty with dilapidated walls covered in graffiti. There were grilles on the windows. Outside there was a very high fence with barbed wire, and behind it was a watchtower. The applicants were given a bucket and a draining rack to wash the cell. They were given old dishes and food to last five days, which included approximately 2-3 kg of potatoes, 500 g of pasta, 300 g of rice, three small chicken legs, three small fish, 300 g of vegetable oil, bread and other vegetables.", "They had to do their own cooking in a kitchen which had a four-ring stove for ten people. 35. In their joint observations the applicants alleged that on the second day of their stay at the centre a man had been put in their cell. It appears from the first applicant’s separate complaint and the later observations that the aforementioned incident took place at the State Border Guard Service detention unit rather than in Olaine (see paragraph 32 above). 3.", "Medical assistance and transport to the border 36. According to the applicants, on the morning of 17 September 2003, when they were informed of their deportation to the Russian border, the second applicant had a heart attack. For the previous two days she had complained of heart pain and headaches but did not receive any treatment. In support of their allegation that the first and second applicants had already raised health-related complaints at the time of their detention, the applicants furnished copies of records of 3 September 2003 concerning all three applicants and records of 15 September 2003 concerning the second applicant, which stated that, on returning to the State Border Guard Service detention unit, she had complained of heart pain, intercostal neuralgia, low blood pressure and headaches. 37.", "Immediately after her heart attack on 17 September 2003, the second applicant received some injections and pills from the doctor of the State Border Guard Service detention unit. The applicants were put in a vehicle which was supposed to drive them to the border. It was stuffy, noisy and jolty in the car and the second applicant had another heart attack during the journey. When they stopped at the Olaine accommodation centre the second applicant was examined in the medical unit and received an injection and medication. Without having been given permission, the first applicant called for an ambulance, whose crew examined the second applicant.", "38. In her separate complaint the second applicant noted that the ambulance crew had examined her and concluded that she had not had a heart attack. 39. After the medical check the applicants had to continue the five-hour-long trip to Zilupe, where they were kept detained until 9 p.m., and then took a train to Moscow in an ordinary carriage. They were hungry because that day they had received food in the morning only, and they did not have any money or belongings because the authorities had prevented them from taking anything with them or saying goodbye to their relatives.", "E. The Government’s account of the detention conditions 1. Conditions in the State Border Guard Service detention unit 40. The Government to a large extent contested the applicants’ account of the facts. They relied on a report of 19 June 2004 addressed by the head of the Rīga Department of the State Border Guard Service to the Agent of the Government (for the relevant parts of the report see the admissibility decision in the present case: Vikulov and Others v. Latvia (dec.), no. 16870/03, 31 August 2006, section 4 (a)(ii) of the “Facts” part).", "41. In their additional observations the Government furnished technical inventory documents and photos of the cell where the applicants were held. According to the inventory documentation held by the State Border Guard Service detention facilities, there were three cells measuring 17.7 sq. m, 14.6 sq. m and 11.3 sq.", "m, and an isolation cell measuring 7.1 sq. m. The windows were not narrower than 0.8 m. According to the inventory documents and photos, the sanitary facilities were separated from the rest of the cell by a brick partition. According to the Regulations of 1 March 2002 on the State Border Guard Service short-term detention facilities, the partition was not higher than 1.2 m. 42. As to pest control, the Government submitted a copy of a report according to which inspections for rats and other parasites were carried out once a month. During the inspection on 4 September 2003 no parasites had been detected.", "43. Concerning the adequacy of the food, the Government submitted copies of various internal regulations in force at the material time, which set out the type and quantity of dry products distributed to detainees during the weekend (for the relevant parts of these regulations see Vikulov and Others (dec.), cited above). The instruction concerning the daily regime of detainees in the State Border Guard Service detention unit provided as follows: morning routine, followed by an inspection of the cells from 7 to 9 a.m.; breakfast from 9 to 10 a.m.; meetings with officials of the State Border Guard Service from 10 a.m. to 4 p.m., with a lunch break from 12 noon to 1 p.m. Dinner was provided from 4 to 5 p.m., followed by free time from 5 to 10.30 p.m., which included cleaning and inspection of cells. Night hours began at 11 p.m. 44. With regard to outside walks, the Government relied on a report of an official of the State Border Guard Service who confirmed that walks were not regulated and that any time except between 10 p.m. and 6 a.m. could be used for walks in the inner courtyard, on condition that women, men and families were to have walks separately, and that outdoor exercise did not exceed one hour at a time.", "45. As to the right to meet relatives, the Government furnished certified copies of the applicants’ requests of 3, 4, 7, 15 and 16 September 2003 for authorisation to meet their relatives and to make phone calls to them. It appears from the copies that all the requests are marked as having been authorised. They also furnished copies of extracts from the register of visitors and parcels in the State Border Guard Service detention unit, according to which on 5, 9 and 11 September 2003 the applicants were visited by family members; on 5, 6, 9 and 11 September 2003 they received parcels; and on 16 September 2003 a representative of the Embassy of the Russian Federation visited them. 46.", "The Government submitted a report of 11 September 2003 drawn up by an officer of the State Border Guard Service, who reported to a superior officer that on 10 and 11 September 2003 he had visited the applicants in the State Border Guard Service detention unit in order to serve them with the deportation order, but that they had refused to sign it. The report also stated that the officer had offered to drive the applicants to collect their identity documents but they had not responded to this offer. 47. The Government further submitted a report of 16 September 2003 by the same officer, who informed that on the same day the applicants had dismissed his offer to drive them to their former place of residence. The documents also contained a copy of a universal power of attorney dated 16 September 2003 and certified by a notary public in her premises in Rīga, in which the first applicant vested his daughter with broad powers in relation to, inter alia, his and the third applicant’s property.", "2. Conditions in the Olaine accommodation centre 48. In addition to the factual information provided in their earlier observations (see Vikulov and Others (dec.), cited above, section 4(b)(ii) of the “Facts” part) the Government furnished photocopies of a plan and pictures of the Olaine accommodation centre. 3. Medical assistance and transport to the border 49.", "The Government furnished copies of the records drawn up during the applicants’ detention as well as medical reports. According to the records of 3 September 2003 concerning the examination of detained aliens, the second applicant complained of a headache, psoriasis and rheumatic heart disease, and the third applicant complained of psoriasis. According to the same records, on 12 September 2003 at 5.50 p.m. the first and second applicants confirmed in writing that they had received their belongings, such as keys, money and mobile phones which, at the time of their arrest, had been deposited with the State Border Guard Service detention unit. 50. According to the medical records of 12 September 2003, on arrival at the Olaine accommodation centre none of the applicants complained of any health problems.", "51. According to the copies of the applicants’ medical records, it was on 15 September 2003, at 11.20 a.m., that the second applicant complained of a headache. After having her blood pressure checked, the second applicant received one unit of spasmalgon, one unit of tempalgin and three units of panangin. On 16 September 2003 at 1.05 p.m. the second applicant repeatedly complained of a headache and intercostal neuralgia. She received an injection of diclofenac, one unit of tempalgin, corvalol and three units of panangin.", "52. Lastly, at 12.15 p.m. on 17 September 2003, the day of the applicants’ deportation, the second applicant complained of a headache. According to the medical report, she also showed signs of tachycardia and psycho-emotional reaction. Her blood pressure was measured twice, with a thirty-minute interval. She received an injection of spasmalgon, one unit of nitrong, panangin and valocordin drops.", "She also received at least seven units of three types of medication to take with her “to the border”. 4. Other relevant information 53. Following a request by the Government Agent for information as to the existing remedies at the material time in respect of complaints concerning conditions of detention in centres for illegal immigrants, the Prosecutor’s Office stated that pursuant to section 56 of the Immigration Law, it could receive complaints regarding any issue. It also noted that the domestic law did not explicitly provide for a right to complain about conditions of detention; nevertheless, applicants could avail themselves of the right to submit a complaint by virtue of the Law on Enquiries (“Par iesniegumu, sūdzību un priekšlikumu izskatīšanas kārtību valsts un pašvaldību institūcijās”).", "In response to a similar request the Office of Citizenship and Migration Affairs replied that questions concerning the arrest and detention of persons did not fall within its sphere of competence. II. RELEVANT DOMESTIC LAW A. Immigration Law, as in force at the material time 54. Section 51(1) of the law provides that an official of the State Border Guard Service has the right to detain an alien: (1) if he or she has illegally crossed the State border of the Republic of Latvia or otherwise violated the procedures prescribed by regulatory enactments for the entry into and residence of aliens in the Republic of Latvia; (2) if the alien poses a threat to State security and public order; (3) in order to implement an order regarding removal of an alien from the Republic of Latvia.", "As a result of the amendments of 21 June 2007, which became effective as from 19 July 2007, section 51 was subjected to merely textual changes. 55. By section 54(1), an official of the State Border Guard Service has the right to detain an alien for a period not exceeding ten days in the cases referred to in section 51 of the law. 56. Section 56 provides that in defence of their legitimate interests, foreign detainees have the right to appeal to the Prosecutor’s Office, to contact a consular institution of their own country and to receive legal assistance.", "Aliens must be informed of these rights at the time of their detention. B. Other relevant provisions of domestic law 57. Other provisions of domestic law that are relevant to the issues raised in the present case, such as the Immigration Law, Law of the Office of the Prosecutor and Law on Enquiries, can be found in Slivenko v. Latvia [GC], no. 48321/99, §§ 49-63, ECHR 2003‑X, and Vikulov and Others (dec.), cited above, part B. III.", "REPORTS BY THE CPT 58. The relevant parts of the report of 10 May 2005 to the Latvian Government on the visit to Latvia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“the CPT”) from 25 September to 4 October 2002 can be found in Vikulov and Others (dec.), cited above, part C. THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 59. The applicants complained in general about the conditions in which the State authorities had deported them from Latvia. In particular, they submitted that the conditions of detention in the State Border Guard Service detention unit and the Olaine accommodation centre and the lack of adequate medical assistance, and privacy there had led to treatment prohibited by Articles 3 and 8 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 8 “1.", "Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The Government’s preliminary objection 60. In the admissibility decision in the present case (see Vikulov and Others (dec.), cited above) the Court dismissed the non-exhaustion argument raised by the Government according to which the applicants had the possibility of complaining to the Prosecutor’s Office about the conditions in short-term detention facilities for illegal immigrants.", "In response to an additional question from the Court as to whether there existed a specific remedy by which to complain about the conditions in which foreigners were detained, the Government reiterated that the applicants could have submitted a complaint to the Prosecutor’s Office on the basis of section 15 of the Law on the Prosecutor’s Office, section 56 of the Immigration Law or section 1 and 8 of the Law on Enquiries (see “Relevant domestic law” above). Alternatively, they could have relied, inter alia, on the same provisions in order to lodge a complaint with the State Border Guard Service and the Migration Board. 61. The applicants reiterated that they had not been aware of any domestic procedures for challenging the conditions of detention. 62.", "The Court observes that the Government have not submitted any new arguments which could persuade it to depart from its previous conclusions as to the ineffectiveness of complaints under the Law on the Prosecutor’s Office and the Law on Enquiries in the particular circumstances of the case. The same applies to the other types of remedies referred to by the Government (see paragraph 53 above). As confirmed by the Court’s case-law no legislative instrument at the material time provided for an explicit procedure whereby detainees, including foreigners, could complain about the conditions of their detention (see Kadiķis v. Latvia (no. 2), no. 62393/00, §§ 60‑63, 4 May 2006).", "Moreover, the Court has already found that complaints to a higher administrative authority do not constitute an effective remedy (see also Ņikitenko v. Latvia, no. 62609/00, §§ 28-30, 16 July 2009). 63. The objection must therefore be dismissed. B.", "The merits 1. Submissions of the parties 64. A description of the parties’ and the third party’s initial observations is set out in Vikulov and Others (dec.), cited above, section 2(a) of the “Law” part. 65. In response to an additional question from the Court, the applicants furnished evidence in support of their allegations concerning the placement of other persons in their cells (see paragraph 31 above).", "They reiterated the allegation made for the first time in their earlier observations that they were offered the opportunity to recover their personal belongings before their deportation only on condition that they sign the official record. 66. The Government submitted various copies of documents concerning detention conditions in the State Border Guard Service detention unit (see paragraphs 40-47 above). They noted that the complaint as to the restrictions on the applicants’ recovery of their personal belongings had not been declared admissible by the Court and that in any event this complaint was ill-founded. 2.", "Submissions of the third party 67. In addition to their initial submissions, the Government of the Russian Federation maintained that the conditions at the State Border Guard Service detention unit had violated the applicants’ rights under Article 3, especially as regards the quality of food, the provision of medical assistance and the failure to allow daily walks. They argued that there had also been a violation of Article 8 owing to the fact that other persons had been placed in the applicants’ cells. As concerns the Olaine accommodation centre, the third party referred to cases such as Valašinas v. Lithuania (no. 44558/98, ECHR 2001‑VIII) and Kalashnikov v. Russia (no.", "47095/99, ECHR 2002‑VI), in which the conditions of detention had been better than those complained of in the present case. 3. Establishment of the facts (a) General principles 68. The Court notes the parties’ disagreement concerning the conditions in both detention facilities, as well as the quality of the medical assistance rendered there. In assessing the evidence and establishing facts the Court applies the standard of “beyond reasonable doubt”.", "The Court has established that in proceedings before it there are no procedural barriers to the admissibility of evidence or predetermined formulae for its assessment (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005‑VII). The Court adopts the conclusions that are, in its view, supported by free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions (ibid.). According to its case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25).", "69. While mindful of the objective difficulties of detained persons in substantiating their complaints concerning conditions of detention, the Court has consistently held that they are nevertheless required to submit a credible and reasonably detailed description of the facts (see Fetisov and Others v. Russia, nos. 43710/07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, § 90, 17 January 2012) which is consistent and, as far as possible, supported by evidence (see, among other authorities, Tarariyeva v. Russia, no. 4353/03, § 108, ECHR 2006‑XV, and, more recently, Iglin v. Ukraine, no. 39908/05, § 53, 12 January 2012), whereas failure by the Government to provide information in their possession capable of corroborating or refuting such allegations may give rise to the drawing of interferences as to the well-founded character of the applicant’s complaints (see Tahsin Acar v. Turkey [GC], no.", "26307/95, § 254, ECHR 2004‑III). 70. In the light of the above principles the Court will first address the dispute between the parties as to the factual circumstances of the various aspects of the conditions of the applicants’ detention and medical treatment. (b) Disputed evidence 71. The Court notes that in their initial observations the applicants insisted that the veracity of their submissions as to the conditions of their detention could be proved by questioning witnesses and launching a fact-finding mission.", "However, apart from the report of an officer of the State Border Guard Service and the CPT report, both examined below, the applicants did not contest the credibility or reliability of the documents furnished by the Government. The Court observes that the copies of the medical records, the documents relating to the applicants’ detention and the inventory documents held by the detention facility contain references to the original documents (see, by contrast, Kondratishko and Others v. Russia, no. 3937/03, §§ 48 and 91, 19 July 2011). In the absence of any indications which may raise doubts as to the credibility of the evidence, they are therefore to be considered a valid source of factual information. 72.", "As concerns the applicants’ argument that the CPT report in respect of the detention conditions at the Olaine accommodation centre fell short of reflecting the genuine situation there and was not public, the Court notes that the above report became public on 10 May 2005 (see paragraph 58 above). Moreover, the applicants have not made any substantive comments contesting the conclusions drawn up by the CPT. 73. The applicants further contested the validity of the report by the officer of the State Border Guard Service (see paragraph 46 above). According to the applicants, the officer had reported on his visit to Olaine accommodation centre.", "However, such a visit could not have taken place, since the applicants were taken to Olaine two days after the date of the report. The Court observes that, as appears from the copy of the contested report, it concerns the officer’s visit to the State Border Guard Service detention unit and not the Olaine accommodation centre, as was alleged by the applicants. It is not disputed that at the material time the applicants were held in the State Border Guard Service detention unit. 74. In the light of the above the Court will therefore, if necessary, rely on the above reports in establishing the facts.", "(c) Conditions in the State Border Guard Service detention unit 75. The Court notes certain inconsistencies in the applicants’ submissions concerning the physical conditions in the State Border Guard Service detention unit, in particular with respect to the sanitary facilities and their partitioning (see paragraphs 25-26 above). Having regard to the parties’ submissions, the Court finds it established that the cell where the applicants were held from 2 to 12 September 2003 measured 14.6 sq. m, the window there was not narrower than 0.8 m and the lavatory was separated from the rest of the cell by a brick partition which was at least 1.2 m high (see paragraph 41 above), in contrast to the conditions in Melnītis v. Latvia (no. 30779/05, §§ 61-63, 28 February 2012), where the alleged partitioning of the sanitary facilities in a cell was not reflected in the inventory documents.", "76. The parties also disagreed as to the existence and the functioning of the ventilation system. In this connection the Court notes that certain impressions about the effectiveness of the ventilation system derive from the facts the applicants provided in relation to other complaints, in particular their complaint that they had to leave their cell for fifteen minutes so that it could be ventilated after gas had penetrated into it (see paragraphs 30 and 33 above). Observing that the applicants did not complain about the quality of the air after their return to the cell, the Court infers that the premises were ventilated to evacuate the substances concerned in a relatively short period, which would thus imply that the ventilation was functioning, at least to a certain extent. 77.", "Concerning walks outside, the applicants contended that they had been allowed to have them only twice during their stay at the State Border Guard Service detention unit. The Government submitted a copy of the detention unit’s internal regulations, which stated that detainees had free time every day from 5 to 7 p.m. In a letter of 21 November 2006 an officer of the detention unit explained that at any time from 6 a.m. until 10 p.m. detainees could have daily walks. The Court doubts, however, whether the applicants could indeed take walks at any time they wished and therefore disobey the internal regulations, of which they were informed on their arrival and which did not provide for outdoor activities. 78.", "The Government further denied that any other persons had been placed in the applicants’ cell in the State Border Guard Service detention unit at any time. The Court observes that the applicants’ allegations are corroborated by the report on the composition of detainees in the detention centre (see Vikulov and Others (dec.), cited above, section A 4(ii) of the “Facts” part). However, their submissions are inconsistent as regards the length of the periods during which other persons were placed in their cells (see paragraphs 30 and 32 above). The Court will assume that for two periods, neither of which exceeded twenty-four hours, another person was placed in the applicants’ cell. 79.", "As to the presence of insects, the Court observes that in his initial complaint the third applicant alleged that “ants were everywhere” in the State Border Guard Service detention unit (see paragraph 28 above). No such complaints were raised in the applicants’ combined application form. Further to a specific question from the Court, the applicants stated in December 2006 that ants had crept into the food in their cell, whereas according to the additional evidence furnished by the Government, pest-control measures had been taken throughout 2003 (see paragraph 42 above). Noting the absence of submissions on behalf of the applicants and the Government’s uncontested arguments, the Court is not prepared to draw inferences as to the alleged failure to effectively control the presence of insects. 80.", "A similar conclusion is to be reached as regards the alleged restriction on visits from relatives, seeing that the Government submitted copies of requests made by the applicants from which it can be concluded that none of the requests were rejected and that the applicants met their relatives at various times during their stay in the detention unit (see paragraph 45 above). 81. As to the applicants’ complaints that on the day they were deported to Russia they received food in the morning only, the Court observes that according to undisputed records, on 17 September 2003 at 12.15 p.m. the applicants were still in the premises of the State Border Guard Service detention unit, where the second applicant received medical assistance (see paragraph 52 above). Owing to the fact that her health check lasted not less than thirty minutes (ibid. ), it appears that the applicants remained there at least until 1 p.m.", "According to the applicants’ own submissions, lunch was served in the detention unit from 12 noon to 1 p.m. on working days. The Court therefore assumes it likely that on the day of their deportation (which was a working day) the applicants were provided with breakfast and lunch. 82. Finally, the parties disagreed as to the alleged restrictions and conditions imposed upon the applicants concerning the recovery of their belongings before their deportation. The Court notes that the applicants on 10 and 11 September 2003 refused to sign the official records of their detention and deportation (see paragraph 46 above), and there is no information as to what records they were allegedly told to sign on 16 September 2003 as a precondition to their return to their former place of residence.", "On the contrary, the Court observes that on the same day the first applicant was authorised to visit an office of the public notary in Rīga where he issued a general power of attorney in favour of his daughter (see paragraph 47 above). This may imply that, if the applicants had wished to, they would also have been taken to their former place of residence. In the light of the above, the Court is not able to establish beyond reasonable doubt the veracity of the above allegation. (d) Medical assistance and transport 83. The applicants disputed the Government’s initial allegation that they had not had any health problems until 15 September 2003.", "The applicants contended that on 15 September 2003 the second applicant had received insufficient medical assistance, whereas on 17 September 2003 she had not received any medical assistance. Finally, their representative emphasised that given the second applicant’s health complaints, transporting her to the border in an old minivan should be held to amount to inhuman treatment. 84. The Court notes that, contrary to the Government’s submissions, it appears from the records furnished by the Government themselves that the applicants had already raised health-related issues at the time of their arrest (see paragraph 49 above). The Court also observes that the applicants have not disputed the credibility of the medical reports submitted by the Government which set out in detail the medical assistance provided to the second applicant (see paragraphs 51-52 above).", "It cannot disregard the second applicant’s remark that as a result of an independent medical examination it was concluded that she had not had a heart attack (see paragraph 50 above). 4. Compliance with Article 3 (a) General principles 85. The Court reiterates that Article 3 of the Convention enshrines an absolute prohibition of torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000‑IV).", "86. The Court further reiterates that, in accordance with its case-law, the ill-treatment must attain a minimum level of severity in order to fall within the scope of Article 3 of the Convention, and that the assessment of this minimum level depends on all the circumstances of the case, such as the stringency of the measure complained of, the objective pursued and its effects on the person concerned (Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000‑XI). Among the other circumstances to be considered are the length of the period during which a person is detained in the conditions complained of (see Fetisov and Others, cited above, § 129) and whether the purpose of the treatment was to humiliate or debase the victim, however the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see Labita, cited above, § 120). 87.", "As concerning the detention conditions, Article 3 of the Convention requires the State to ensure that the conditions are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject the detainees to distress or hardships of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given practical demands of imprisonment, their health and well-being are adequately secured (see Kudła, cited above, § 94). (b) Application to the present case 88. In the light of the foregoing principles and relying on the facts as established above, the Court will assess whether the conditions of detention in the State Border Guard Service detention unit and the Olaine accommodation centre, as well as the medical assistance provided there, were compatible with the rights protected under Article 3 of the Convention. 89. At the outset the Court notes that the applicants relied on Article 8 in relation to their complaint that the authorities failed to respect their family privacy in the State Border Guard Service detention unit (see paragraph 30 above).", "In this connection the Court refers to its well-established case-law to the effect that while lawful detention by its nature imposes limitations on private and family life, it is an essential part of prisoners’ right to respect for family life that prison authorities assist them in maintaining effective contact with close family members (see Farrell v. the United Kingdom, no. 9013/80, Commission decision of 11 December 1982, Decisions and Reports (DR) 30, p. 96, and, more recently, Messina v. Italy (no. 2), no. 25498/94, § 61, ECHR 2000‑X). As a consequence the Court normally applies Article 8 in examining complaints of alleged interferences with detainees’ rights to establish and develop relationships with other persons (see X v. Iceland, no.", "6825/74, Commission decision of 18 May 1976, DR 5, p. 86). It may nevertheless happen that the circumstances relating to complaints of infringements of the right to respect for private and family life are closely linked to other complaints concerning detention conditions, such as overcrowding and poor hygiene and sanitary conditions. Therefore, in the present case the Court will take into consideration all the circumstances as a whole in order to assess whether the ill-treatment complained of attained the minimum level of severity prohibited under Article 3 of the Convention. The Court will accordingly examine this part of the complaint under Article 3. 90.", "The Court observes that in total the applicants spent thirteen days in a cell in the State Border Guard Service detention unit. Neither the size of the cell nor its furnishings and sanitary facilities can be considered incompatible with the requirements enshrined in Article 3 of the Convention (see paragraph 41 above). The fact that the cell contained properly partitioned sanitary facilities cannot as such raise a problem, especially as the applicants have not complained about the height of the partition. These circumstances must, nevertheless, be examined in conjunction with the applicants’ complaints that the cell was poorly ventilated and that they were not allowed to have regular outside walks. The Court has not been able to establish beyond reasonable doubt that the ventilation did not function properly (see paragraph 76 above).", "However, it has established that at the material time no particular measures were taken to organise outside walks (see paragraph 77 above), despite the fact that the State Border Guard Service detention unit had adequate facilities for such activities. The Court nevertheless observes that in the particular circumstances of the case this shortcoming does not reach the level of severity enshrined by Article 3 of the Convention and that the applicants could maintain regular contacts with other persons, including their family members (contrary to, for example, the situation in Poltoratskiy v. Ukraine, no. 38812/97, § 145, ECHR 2003‑V). 91. This leads to the examination of the applicants’ complaint concerning the presence of other persons in their family cell.", "As noted above, the Court has established that for two periods, neither of which exceeded twenty-four hours, another person was placed in the applicants’ cell (see paragraphs 30, 32 and 78 above). At the outset, the Court is satisfied that from the beginning of their detention the authorities of the State Border Guard Service made arrangements to protect the applicants’ family unity by placing them together in a separate cell. It considers that, once family unity has been ensured, it should be preserved, given the practical demands of detention. In this connection the Court notes that on two occasions the authorities were forced by unforeseen circumstances to temporarily put another person in the applicants’ cell. The Court does not find any indication that such placements were intended to humiliate the applicants or to arouse feelings of discomfort in them.", "The Court further notes that the above-mentioned circumstances were not aggravated by other physical conditions of detention. In particular, as concerns the first instance when a woman was placed in the applicants’ cell, the Court observes that the cell was designed and equipped for four persons. In the other instance, in order to protect the applicants’ family unity they were transferred to a cell designed for two persons, but it has to be noted that such circumstances persisted for less than twenty-four hours. 92. As regards the applicants’ complaints concerning the times at which food was served, the Court notes that even though, according to the internal rules, the meals in the detention unit were distributed at relatively short intervals (see paragraph 43 above), there is no evidence that the applicants were prevented from themselves adjusting the times at which they consumed the food.", "According to the records of the detention unit, the applicants were provided with tableware in the cell (see paragraph 28 above) and there are no indications that there were any obstacles impeding them from storing the food in their cell until later. Nevertheless, the Court has established that on the day of the applicants’ deportation they were provided only with breakfast and lunch (see paragraph 81 above). In contrast to such cases as Moisejevs v. Latvia (no. 64846/01, § 80, 15 June 2006), where the detainee was regularly deprived of proper food at the end of the day, and Jeronovičs v. Latvia (no. 547/02, § 38, 1 December 2009), in which the detainee suffered from hunger for a period of more than twenty-seven hours, in the instant case the Court notes that, with the exception of the relatively short period mentioned above, the applicants were not in an especially vulnerable situation.", "According to their own submissions, at 9 p.m. on the day of their deportation they took a train in an ordinary carriage, where they were not subjected to any restrictions or limitations similar to those imposed on persons held in custody. In this connection the Court notes that, according to the records, the applicants confirmed that at the time of their release from the detention unit they received their belongings, including money, a fact which therefore casts doubt on their allegation that on the day of their deportation they had no means of subsistence (see paragraph 49 above). Besides, it has not been established that the applicants were prevented from returning to their previous place of residence in order to take any belongings they considered necessary (see paragraph 82 above). 93. As to the overall adequacy of the Olaine accommodation centre, the Court refers to the CPT’s conclusions (see paragraph 58 above).", "Despite the fact that the CPT visited the centre a year before the applicants were placed there, in the absence of any reasonably precise allegations to the contrary, the Court accepts that the report reflects the situation in the centre at the material time and concludes that the detention conditions there were adequate. 94. With respect to the medical assistance provided to the second applicant, the Court, having assessed the second applicant’s claims and the medical assistance rendered to her (see paragraph 84 above), does not find any indication of negligence on the part of the authorities, which, among other steps, obtained authorisation from independent medical personnel to continue the deportation procedure (see paragraph 52 above). 95. In the light of the above, the Court concludes that there has been no violation of Article 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 96. The applicants alleged that their arrest had been unlawful in that they had been arrested on 3 September 2003, whereas the decision on their arrest and detention had been adopted only on 8 September 2003, thus leading to a violation of Article 5 § 1 of the Convention, the relevant parts of which read as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (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.” 97.", "In addition to their initial submissions, the applicants maintained that they had been arrested without clear legal grounds in that even though they had been told that their arrest had been effected because of their illegal crossing of the border and unauthorised stay in the country, they had lived in their flat since 1989 and this fact was well known to the authorities. 98. The Government reiterated that the applicants had been detained by the State Border Guard Service on the basis that they had not complied with the order obliging them to leave the territory of Latvia by 15 June 2003. Accordingly, by the time of their arrest on 3 September 2003 the applicants had already been staying illegally on the territory of Latvia for several months. The Government further contended that the authorities had carried out the removal procedure within the time-limits set by the domestic law.", "They emphasised that the applicants had hindered the proceedings by refusing to cooperate with the national authorities and to disclose the location of their travel documents. 99. The Government of the Russian Federation stressed that the applicants’ arrest had been unlawful in that the decision to deport them had been adopted five days after their arrest. 100. The Court refers to the recent case of Longa Yonkeu v. Latvia (no.", "57229/09, §§ 119-121 and 134, 15 November 2011), in which it reiterated the relevant principles applicable when examining complaints under Article 5 § 1 of the Convention. 101. In the Longa Yonkeu case the Court examined the quality of the provisions of the Immigration Law from the perspective of Article 5 § 1 (f) of the Convention. Even though that case concerned the removal of a failed asylum seeker and not aliens who had overstayed a residence permit, as in the present case, the applicable removal procedures were the same (see Longa Yonkeu, cited above, § 138). 102.", "Two removal procedures were examined in the Longa Yonkeu case. Under the first of them, the Office of Citizenship and Migration Affairs was authorised to issue an order to leave, followed by a deportation order if an alien did not comply voluntarily with the order to leave. Under the second procedure, the same authority was authorised to issue a deportation order if an alien had been detained by the State Border Guard Service for having infringed the rules of entry into and residence in the country (ibid., § 139). In respect of Mr Longa Yonkeu, another removal procedure than that expressly provided for in the Immigration Law had initially been applied, with the result that the legal grounds for his detention with a view to his deportation fell short of the “quality of law” standard required under the Convention (ibid., §140). Later on, however, the domestic authorities chose the second removal procedure, which was expressly laid down in the Immigration Law; it was sufficiently clear and precise: if an alien was detained for having infringed the rules on residence in the country, he or she faced deportation (ibid., § 142).", "103. The Court notes that the removal procedures under the Immigration Law as applied to the applicants in the present case in 2003 and as applied to Mr Longa Yonkeu in 2009, did not substantially change over time (see paragraphs 54-56 above). 104. Turning to the facts of the present case, the Court observes that the orders for the applicants to leave were adopted on 23 May 2000 and became effective from 19 February 2003, when the Senate of the Supreme Court upheld them (see paragraph 16 above; for detailed factual information on the substance of the domestic courts’ decisions, see Vikulov and Others (dec.), cited above, section A 2 of the “Facts” part). On 3 September 2003 the applicants were detained and the records of their detention referred to their failure to comply with the order of 23 May 2000, which had led to an infringement of the rules regulating residence in the Republic of Latvia.", "Section 51(1)(1) of the Immigration Law served as a legal basis for detention for a maximum period of ten days, the constitutionality of which had not been challenged by the applicants. The Court notes that in the present case the applicants were given ample opportunities to comply voluntarily with the order to leave and that the authorities extended the time-limit within which the applicants had to leave the country (see paragraph 18 above). Following persistent non-compliance with the orders, they were detained on the legal grounds set out in the Immigration Law which, as the Court has previously recognised, was sufficiently precise in this respect (see paragraph 102 above). 105. The Court notes that the national court had already established that the applicants had failed to cooperate with the authorities by providing the necessary identification documents (see paragraph 22 above), a fact which was likely to cause certain delays in the deportation proceedings.", "In the absence of any arbitrariness in the domestic court’s reasoning, the Court reiterates its subsidiary role in the reassessment of factual circumstances already established by national courts. 106. In the light of the above, it follows that there has been no violation of Article 5 § 1 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Dismisses the Government’s preliminary objection; 2.", "Holds that there has been no violation of Article 3 of the Convention; 3. Holds that that there has been no violation of Article 5 § 1 of the Convention. Done in English, and notified in writing on 25 September 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliEgbert MyjerDeputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF IOSUB CARAS v. ROMANIA (Application no. 7198/04) 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 Iosub Caras v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President, MrJ.", "Hedigan, MrL. Caflisch, MrC. Bîrsan, MrsA. Gyulumyan, MrE. Myjer, MrDavid Thór Björgvinsson, judges, and Mr R. Liddell, Section Registrar, Having deliberated in private on 6 July 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 7198/04) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Israeli and Romanian nationals, Mr Andrei Dorian Iosub Caras (“the first applicant”) and Iris Iosub Caras (“the second applicant”), on 28 November 2003. 2. The applicants were represented by Mr A. Nantel, a lawyer practising in Hod Hasharon, Israël. The Romanian Government (“the Government”) were represented by their Agents, Mrs R. Rizoiu succeeded by Mrs B. Rămăşcanu from the Ministry of Foreign Affaires.", "3. On 16 November 2004, the President of the Third Section decided, under Rule 41 of the Rules of the Court to give priority to the application. 4. On 25 May 2005 the Court (the Third Section) decided to communicate the complaints concerning the right to respect for family life, access to a court and the protection of property to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The first applicant was born in 1972 and lives in Petah Tikva, Israel. The second applicant, the daughter of the first applicant, was born in 2001. She currently lives in Romania.", "6. The first applicant and his wife, both Romanian and Israeli citizens, have had their permanent residence in Israel since 1997. Their child Iris was born there, in 2001, and acquired Israeli citizenship from birth. 7. In September 2001, the family visited Romania.", "On 11 October 2001, the date scheduled for the return of the family to Israel, only the first applicant left, while the wife and the second applicant remained in Romania. Subsequently, the first applicant filed for the return of the child, under the Hague Convention (proceedings described under no. 1 below), while the wife filed for divorce and custody of the child with the Romanian courts (proceedings described under no. 2 below). 1.", "Proceedings for the return of the child 8. On 22 November 2001, upon arrival in Israel, the father filed a request for the return of his child under the Hague Convention of 25 October 1980 on the civil aspects of international child abduction (“the Hague Convention”). The request was submitted through the Israeli Ministry of Justice to the Romanian Ministry of Justice (“the Ministry”) which received it on 26 November 2001. The first applicant claimed that his wife was wrongfully retaining their daughter in Romania, without his consent. He also informed the Ministry that he had heard his wife had filed for divorce with the Romanian courts.", "9. On 27 November 2001, he asked the Ministry to apply for a stay in the divorce proceedings (see infra, §§ 12-17), for as long as the Hague proceedings were pending. 10. On 11 January 2002, the Ministry, acting as the Central Authority for the purpose of the Hague Convention, instituted proceedings on behalf of the first applicant before the Bucharest District Court of the Sixth Precinct. Based on the evidence adduced in the case, the district court found that the retention of the child in Romania was illegal, under Article 3 of the Hague Convention.", "However, it considered that, due to the political situation in Israel, which had worsened constantly since September 2000, there was a great risk that the return would expose the child to physical or psychological harm. Therefore, in a judgment of 15 April 2002, the district court rejected the request for the return of the child under Article 13 (b) of the Convention. 11. On 17 December 2002, the Bucharest County Court allowed the appeal lodged by the Ministry and ordered the return of the child on the grounds that the retention was illegal and that the mother had not proved the grave risk that the child would be exposed to, if returned to her father. 12.", "On 21 February 2003, the mother filed an appeal against this decision, allowed by the Bucharest Court of Appeal in a final decision of 5 June 2003. The court rejected the request for return on the ground that, since the date of the commencement of the Hague proceedings, another Romanian court had ruled on the divorce of the parents and had granted sole custody of the child to the mother, in a final decision of 18 September 2002. It also considered that, bearing in mind the child’s age, namely two years and four months, her return would be against her interests in so far as she had effectively been living in Romania, with her mother, since she was 7 months old. Lastly, on the basis of witness testimony, the court found it proved that the father had consented initially to remain in Romania and to establish there the domicile for the whole family. Therefore, the court found that the child had legally resided in Romania since 12 September 2001.", "2. Divorce and custody proceedings 13. On 10 October 2001, the first applicant’s wife filed for divorce, custody of their daughter and maintenance before the Bucharest District Court of the Sixth Precinct. 14. The court found that, except for the first hearing, the first applicant had been correctly summoned at his address in Israel through the Ministry, as required by the Code of Civil Procedure.", "The first applicant was not present at any of the four hearings held in the case. 15. In the judgment of 18 September 2002, as rectified on 6 November 2002, the district court granted divorce on the grounds of fault by the first applicant, awarded the custody of the child to the mother and ordered the first applicant to pay monthly maintenance of 824 American dollars for his daughter. 16. On 11 December 2002 the district court sent the judgment to the first applicant’s address.", "17. In the absence of appeals against it, the judgment became final. 18. The first applicant informed the Court that he had not received any of the summonses sent to him or the judgment of 18 September 2002. It appears that he did not appeal at any point against the judgment.", "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW 1. The Hague Convention on the Civil Aspects of International Child Abduction Article 3 “The removal or the retention of a child is to be considered wrongful where a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. (...)” Article 7 “Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures - a) to discover the whereabouts of a child who has been wrongfully removed or retained; b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues; d) to exchange, where desirable, information relating to the social background of the child; e) to provide information of a general character as to the law of their State in connection with the application of the Convention; f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access; g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers; h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child; i) to keep other each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.” Article 11 “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.", "If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.” Article 12 “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.” Article 13 “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal of retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.", "In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” Article 16 “After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under the Convention is not lodged within a reasonable time following receipt of the notice.” Article 17 “The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention.” Article 18 “The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.” 2. Explanatory Report on the 1980 Hague Child Abduction Convention drafted by Elisa Pérez-Vera in 1980 Paragraph 121 of the Explanatory Report on the 1980 Hague Convention comments on Article 16 of the Hague Convention as follows: “This article, so as to promote the realisation of the Convention’s objectives regarding the return of the child, seeks to prevent a decision on the merits of the right to custody being taken in the State of refuge.” 3. The Code of Civil Procedure Article 87 § 8 “Unless otherwise provided in a treaty, international convention or special law, persons who are abroad and whose home address abroad is known shall be summoned to appear by registered mail. Article 1141 (4) applies accordingly... In all cases in which those who are abroad have a known representative in Romania, the latter shall be summoned...” Article 1141 § 4 “Persons resident abroad... shall be informed [through the summons] of the obligation to establish residence in Romania for the purpose of service of procedural acts.", "If they do not comply with this requirement, service shall be effected by registered mail, the proof that the letter was presented to a Romanian post office being sufficient evidence that the summoning procedure was respected.” Article 614 “The parties [in divorce proceedings] shall be present before the courts ruling on the merits, except where one of the spouses... resides abroad; in the latter situation the parties may participate through a representative.” THE LAW I. PRELIMINARY OBJECTION 19. The Government submitted that the first applicant was not entitled to lodge the application on behalf of the second applicant, as he did not have custody of his daughter. 20. The first applicant contested the argument and recalled that he had lost custody of his child as a result of court proceedings that had contravened the Hague Convention and recalled that prior to the retention of the child, the two parents had had joint custody of their child.", "Neither of them had superior parental rights over their daughter. 21. The Court recalls that in principle a person who is not entitled under domestic law to represent another may nevertheless, in certain circumstances, act before the Court in the name of the other person. In particular, minors can apply to the Court even, or indeed especially, if they are represented by a parent who is in conflict with the authorities and criticises their decisions and conduct as not being consistent with the rights guaranteed by the Convention. In such cases, the standing as the natural parent suffices to afford him or her the necessary power to apply to the Court on the child’s behalf, too, in order to protect the child’s interests (see Scozzari and Giunta v. Italy [GC], nos.", "39221/98 and 41963/98, § 138, ECHR 2000-VIII, Iglesias Gil and A.U.I. v. Spain (dec.), no. 56673/00, 5 March 2002 and Sylvester v. Austria (dec.), nos. 36812/97 and 40104/98 (joined), 26 September 2002). 22.", "This principle applies in the present case, especially as the first applicant also contested the way in which the Romanian courts had decided on the custody rights, which, in his view, had violated his Article 8 rights. 23. In conclusion the Court finds that the first applicant has standing to act on his daughter’s behalf. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 24.", "The applicants complained that their right to respect for their family life, as provided in Article 8 § 1 of the Convention, had been violated by the courts that had dealt with both the Hague Convention and the divorce proceedings. In particular, they claimed that the courts had ignored the provisions of Articles 16 and 17 of the Hague Convention. According to these Articles no decision on the merits of the custody matter could have been taken as long as the Hague proceedings were pending and, at the same time, the courts should not have been bound by a custody decision when assessing the request for the return of the child. Furthermore, the authorities had not acted expeditiously in the Hague proceedings. In so far as the custody and divorce proceedings were concerned, the first applicant contested the fact that he had been deprived of his guardianship and visiting rights and of any possibility to participate in the education of his daughter.", "The absence of any legal documents attesting to the divorce had made it impossible for him to update the civil register, with the risk of being accused of bigamy should he have tried to remarry. He considered that the amount of alimony had been arbitrarily fixed by the courts. He could not pay it and, therefore, risked being imprisoned for non respect of his obligations, should he visit Romania. This prohibited him from seeing his daughter and his parents who were still living in Romania. Lastly, the first applicant complained, on behalf of his daughter, of a violation of the child’s Article 8 rights by reason of the fact that the two sets of proceedings that took place before the Romanian courts deprived her of the right to see her father and her paternal grandparents and thus to establish normal relations with them.", "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.” 25. The Court finds that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. 26. The Government considered that the interference with the applicants’ family life caused by the Hague proceedings was in accordance with the law, namely Article 13 (b) of the Hague Convention, and recalled that, on the one hand, the right to return of the child was not absolute and that, on the other hand, the domestic courts enjoyed wide margins of appreciation when called upon to interpret and apply the domestic law. They relied on authorities such as Winterwerp v. the Netherlands (judgment of 24 October 1979, Series A no.", "33, p. 20, § 46), Iglesias Gil and A.U.I. v. Spain (no. 56673/00, § 61, ECHR 2003‑V) and De Diego Nafría v. Spain (no. 46833/99, § 39, 14 March 2002). Lastly, in so far as the divorce proceedings were concerned, they claimed that according to Romanian law, it was in the child’s interest that, in case of divorce, one of the parents was entrusted with the child’s custody.", "However, the other parent, in this case the first applicant, preserved the right to have personal ties with the child and to watch over her education. They concluded that no breach of Article 8 had occurred in the case. 27. The applicants contested the argument. In particular they considered that the interference with their family life had not been in accordance with the law or necessary in a democratic society.", "In their view, the authorities had not acted expeditiously for the return of the child and for the stay of the divorce proceedings, violating thus their obligations under Article 7 of the Hague Convention. 28. The Court notes, firstly, that it is common ground that the relationship between the applicants comes within the sphere of family life under Article 8 of the Convention. 29. The Court reiterates that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 (see Monory v. Romania and Hungary, no.", "71099/01, § 70, 5 April 2005). 30. The events under consideration in the instant case, in so far as they give rise to the responsibility of the respondent State, amounted to an interference with the applicants’ right to respect for their family life, as it restricted the enjoyment of each other’s company. 31. The Court must accordingly determine whether there has been a breach of the applicants’ right to respect for their family life.", "1. Proceedings for the return of the child under the Hague Convention 32. The Court reiterates that, although the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there are in addition positive obligations inherent in effective “respect” for family life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are nonetheless similar.", "In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and in both contexts the State enjoys a certain margin of appreciation (see Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000‑I, Iglesias Gil and A.U.I., cited above, § 48 and Sylvester v. Austria, no. 36812/97, 40104/98, § 51, 24 April 2003). 33. The positive obligations imposed on States by Article 8 include taking measures to ensure a parent’s reunification with his or her child (see Ignaccolo-Zenide, cited above, § 94, and Nuutinen v. Finland, no.", "32842/96, § 127, ECHR 2000‑VIII). The Court has already interpreted these positive obligations in the light of the Hague Convention, Article 7 of which contains a non-exhaustive list of measures to be taken by States in order to secure the prompt return of the child, including the institution of judicial proceedings (see Ignaccolo‑Zenide, cited above, § 95). The same interpretation can be followed in the present case in so far as, at the material time, Romania was party to the Hague Convention (see Monory, cited above, § 73). 34. Under Article 7 of the Hague Convention, the authorities have the obligation to take all necessary measures to prevent further harm to the child or prejudice to the interested parties.", "However, in the present case, although the authorities had knowledge of the existence of the divorce proceedings before the Romanian courts, they did nothing to defer the judgment until the Hague proceedings would be finalised, contrary to Article 16 of the Hague Convention. 35. It is true that the first applicant did not inform the district court dealing with the divorce and custody proceedings of the Hague proceedings. However, the Court recalls that no law obliges him to do so. Moreover, it was reasonable for him to expect the Ministry to take action for at least the following two reasons: first, the Ministry was deemed to take all measures, including extra judicial, on his behalf, to secure the respect of the Hague Convention and, second, he expressly asked the Ministry to take the necessary steps for a stay of the divorce proceedings (see paragraph 9 above).", "On this point, the Court recalls that the Ministry acted both as Central Authority under the Hague Convention and as the authority responsible for the international summons procedure in the divorce proceedings. It therefore had knowledge of and to a certain extent participated in both sets of proceedings. Bearing in mind that the Hague Convention is an international instrument binding on States, it is primarily for the States and not for the private individuals to regulate their behaviour in such a way as to ensure respect for this Convention. 36. By failing to inform the divorce courts of the existence of the Hague proceedings, the authorities, in particular the Ministry, deprived the Hague Convention of its very purpose, that is to prevent a decision on the merits of the right to custody being taken in the State of refuge (see Article 16 of the Hague Convention and the annotation in the Explanatory Report).", "37. In this context, the Court expresses its concern that the domestic courts ruling on the Hague proceedings based their judgment, among other arguments, on the fact that the custody rights had been decided on the merits, while the Hague proceedings were still pending. This was not the sole argument that led the national jurisdiction to refuse to order the return of the child. The other arguments put forward by the courts, namely the child’s best interest and the evidence that the applicant had consented initially to remain in Romania, constitute an interpretation of the facts and evidence adduced in the case that does not appear to be arbitrary. With the Government, the Court recalls that it is not within the province of the European Court to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them (see, mutatis mutandis, Edwards v. the United Kingdom, judgment of 16 December 1992, Series A no.", "247‑B, pp. 34-35, § 34; and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I). 38. In matters pertaining to the reunification of children with their parents, the adequacy of a measure is also to be judged by the swiftness of its implementation, such cases requiring urgent handling, as the passage of time can have irremediable consequences for the relations between the children and the parent who does not live with them (see Ignaccolo‑Zenide, cited above, § 102, and Nuutinen, cited above, § 110).", "Indeed, Article 11 of the Hague Convention imposes a six-week time-limit for the required decision, failing which the decision body may be requested to give reasons for the delay. Despite this recognised urgency, in the instant case a period of more than eighteen months elapsed from the date on which the first applicant lodged his request for the return of the child to the date of the final decision. No satisfactory explanation was put forward by the Government for this delay. 39. It follows that the time it took for the courts to adopt the final decision in the present case failed to meet the urgency of the situation.", "40. Based on its conclusions reached at paragraphs 36 and 39 above, and notwithstanding the respondent States’ margin of appreciation in the matter, the Court concludes that the Romanian authorities failed to fulfil their positive obligations under Article 8 of the Convention. There has accordingly been a violation of that Article on this account. 2. Divorce and custody proceedings 41.", "The Court notes from the outset that there is a dispute between the parties as to whether the summoning procedure was respected in the instant case. While the first applicant claimed that none of the summonses had reached him, the Government contended that the documents had been correctly sent to his address in Israel. However, the Court has already held that whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8: “[W]hat ... has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Article 8.” (see the ... W. v. the United Kingdom judgment [of 8 July 1987, Series A no. 121-A], pp.", "28 and 29, §§ 62 and 64, McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307‑B, p. 55, § 87 and Ignaccolo‑Zenide, cited above, § 99). The facts of the present case indicate that, although he had knowledge, to a certain extent, of the existence of the divorce and custody proceedings, the first applicant did not participate at all in these proceedings and that the judgment of 18 September 2002 was never brought to his knowledge. Moreover, it seems very unlikely, under Article 1141 of the Code of Civil Procedure, that it would have been possible for him to obtain a reopening of the case before the national courts. 42.", "However, the Court does not find it necessary to resolve this matter as it has already found a violation of Article 8 in so far as the respondent State’s positive obligations are concerned (see paragraph 40 above). 3. Other aspects of the Article 8 complaint 43. Bearing in mind the violation of Article 8 already found in the case (paragraph 40 above), the Court considers that it is not necessary to examine the other aspects of the complaint raised by the applicants, namely: lack of visiting rights and access of the daughter to her paternal grandparents, impossibility for the first applicant to return to Romania and to resolve his marital status in Israel. III.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 44. The first applicant complained that his right to a fair trial guaranteed by Article 6 § 1 of the Convention had been infringed by the district court’s ruling on the divorce and custody matters, in so far as he had not been legally summoned to participate in the proceedings and the decision adopted had never been served on him. On behalf of his daughter he also complained that the two sets of proceedings that had taken place before the Romanian courts had deprived her of her right to see her father and her paternal grandparents and thus to establish normal relations with them. 45. Article 6 § 1 reads as follows, in so far as relevant: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” 46.", "The Government contested the arguments. They considered that the first applicant had been legally served with the summonses long before the hearings had taken place. Furthermore, they considered that the fact that he had mentioned the divorce proceedings when he had filed the application under the Hague Convention proved that he had been well aware of their existence. In any event, the absence of a summons would not have prohibited the applicant’s active participation in the proceedings. 47.", "The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 48. It further reiterates the difference in the nature of the interests protected by Articles 6 and 8 of the Convention. While Article 6 affords a procedural safeguard, namely the “right to a court” in the determination of one’s “civil rights and obligations”, Article 8 serves the wider purpose of ensuring proper respect for, inter alia, family life. The difference between the purpose pursued by the respective safeguards afforded by Articles 6 and 8 may, in the light of the particular circumstances, justify the examination of the same set of facts under both Articles (see for instance McMichael, cited above, p. 57, § 91 and Sylvester, cited above, § 76).", "49. However, in the instant case, the Court finds that the lack of respect for the applicants’ family life resulting from the non-involvement of the first applicant in the divorce and custody proceedings is at the heart of their complaint. Therefore, having regard to its above findings under Article 8 (see paragraph 40 above) and notwithstanding certain misgivings as to the conformity of Article 1141 of the Code of Civil Procedure with the access to court requirement of Article 6 § 1, the Court considers that it is not necessary to examine the facts also under Article 6 (see Sylvester, cited above, § 77). IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.", "1 50. Under Article 1 of Protocol No. 1 to the Convention, the first applicant complained of the procedure by which the alimony had been fixed, of the amount of alimony and of the fact that his daughter had never received it. He also contended that the second applicant can no longer receive benefits under the Israeli law. 51.", "Article 1 of the 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.” 52. The Government considered that no interference with the first applicant’s right to peaceful enjoyment of his possessions had occurred, in so far as Romanian law established a duty on the parents to provide for their underage children.", "Lastly, they recalled that the second applicant, through her legal guardian, had not requested the exequatur for the enforcement in Israel of the judgment of 18 September 2002. 53. The Court notes that this complaint is linked to the one examined under Article 8 above and must therefore likewise be declared admissible. 54. Having regard to its finding under Article 8 (see paragraph 40 above) and in view of the fact that the alleged violation of Article 1 of Protocol No.", "1 is the direct outcome of the proceedings that gave rise to the breach of Article 8 of the Convention, the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 1 (see, mutatis mutandis, Sylvester, cited above, § 77; and Glod v. Romania, no. 41134/98, § 46, 16 September 2003). V. ALLEGED VIOLATION OF ARTICLE 5 OF PROTOCOL NO. 7 55. Lastly, the first applicant complained that the aspects that caused a violation of his Article 8 rights also infringed the equality between spouses requirement of Article 5 of Protocol No.", "7 to the Convention, which reads: “Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.” 56. The Court recalls that it has previously decided that Article 5 of Protocol No. 7 essentially imposes a positive obligation on States to provide a satisfactory legal framework under which spouses have equal rights and obligations concerning such matters as their relations with their children (see Cernecki v. Austria, (dec.), no. 31061/96, 11 July 2000).", "57. In the present case, the first applicant does not question the legislative framework. His criticism only concerns the way in which the national courts applied it. The Court finds no indication that the law in question violates the equality clause provided for in Article 5 of Protocol No. 7 (see also Monory v. Romania (dec.), no.", "71099/01, 17 February 2004). 58. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 59.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 60. The first applicant claimed 1,355,000 euros (EUR) in respect of non‑pecuniary damage, divided as follows: EUR 200,000 for violation of his civil status, EUR 500,000 for the impossibility to exercise his parental rights and duties, EUR 195,000 for failure of the Romanian courts to grant him visiting rights, EUR 180,000 for the impossibility for him to preserve normal contact with his parents, EUR 80,000 in damages for the abduction of the child and the need to reconstruct the father-daughter relationship, EUR 200,000 for the anguish, distress, depression, loss of joy of life and faith in the family life. He further claimed under this head, on behalf of his daughter, EUR 1,364,382, in particular: EUR 300,000 in damages for loss of the Israeli medical care, EUR 9,382 for the monthly allowances that she should have received from the Israeli state, EUR 500,000 for the infringement of the right to enjoy the family life, EUR 195,000 for failure of the Romanian courts to establish visiting rights for her father, EUR 80,000 for the impossibility to see her paternal grandparents, EUR 180,000 of psychological damages, EUR 100,000 for the anguish, distress, depression, loss of joy of life and faith in the family life. 61.", "The Government considered the amounts unjustified and excessive. In their view, there was no causal link between the alleged violations and the damages claimed. They considered that the finding of a violation could constitute in itself sufficient just satisfaction for any non-pecuniary damage which the applicants may have suffered. 62. The Court sees no reason to doubt that the applicants suffered distress as a result of the impossibility to enjoy each other’s company.", "It considers that, in so far as the first applicant is concerned, sufficient just satisfaction would not be provided solely by a finding of a violation. Having regard to the sums awarded in comparable cases (see Ignaccolo-Zenide, §117; Sylvester, § 84; Iglesias Gil and A.U.I., § 67, and Monory, § 96, cited above, Sophia Gudrun Hansen v. Turkey, no. 36141/97, § 115, 23 September 2003, as well as Maire v. Portugal, no. 48206/99, § 82, ECHR 2003‑VII), and making an assessment on an equitable basis as required by Article 41, the Court awards the first applicant EUR 20,000 under this head. As to the second applicant, the Court considers that the finding of a violation provides sufficient just satisfaction for any non-pecuniary damage she may have suffered as a result of the violation of her Article 8 rights (see Sylvester, cited above, § 80).", "Lastly, the Court considers that the remainder of the claims for compensation under Article 41 of the Convention are unsubstantiated. B. Costs and expenses 63. The first applicant also claimed EUR 141,500 for the costs and expenses incurred before the domestic courts and before the Court, namely EUR 61,500 for the costs incurred with doctors, psychologists, groups of support, EUR 60,000 in legal fees for lawyers and EUR 20,000 for plane tickets, phone calls and telecommunications. On behalf of his daughter, he asked the Court to award a reasonable sum in legal fees for lawyers, leaving the exact amount at the Court’s discretion.", "64. The Government recalled that the applicants did not justify the expenses. 65. 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 applicants submitted the claims without any supporting documents except for a letter of 2 August 2005, in which the representative asked the first applicant to pay EUR 47,000 and 6,750 Swiss francs in respect of the application submitted to the Court.", "However, no bill was submitted to the Court concerning these sums or any other sum that the first applicant might have paid or have to pay. Therefore the full claim cannot be awarded. Nevertheless, the Court accepts that the first applicant must have incurred some legal costs and expenses. Accordingly, regard being had to the information in its possession, the above criteria and the awards made by the Court in similar cases, it considers it reasonable to make an award of EUR 1,500 in this respect to the first applicant. C. Default interest 66.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints concerning the right to respect for family life, access to court and the peaceful enjoyment of possessions admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 8 of the Convention; 3. Holds that there is no need to examine the complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1; 4. Holds (a) that the respondent State is to pay the first applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 20,000 (twenty thousand euros) in respect of non-pecuniary damage and EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the 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. Roderick LiddellBoštjan M. ZupančičSection RegistrarPresident" ]

[ "FOURTH SECTION CASE OF KANEVA v. BULGARIA (Application no. 33606/05) JUDGMENT STRASBOURG 13 November 2012 This judgment is final but it may be subject to editorial revision. In the case of Kaneva v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a committee composed of: George Nicolaou, President,Ledi Bianku,Vincent A. De Gaetano, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 6 November 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "33606/05) 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, Ms Velichka Zheleva Kaneva (“the applicant”), on 9 September 2005. 2. The applicant was represented by Ms S. Razboynikova, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs N. Nikolova, of the Ministry of Justice. 3.", "On 2 November 2010 the President of the Fifth Section decided to give notice of the application to the Government. 4. The application was later transferred to the Fourth Section of the Court, following the re‑composition of the Court’s sections on 1 February 2011. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1951 and lives in Tryavna. A. Background 6. In 1999 the relations between the applicant and her partner N.B., a local police officer, deteriorated and they separated. 7.", "On an unspecified date in 2000 the applicant filed a request to the district prosecutor to open criminal proceedings against N.B. for physical and psychological abuse. That was refused by a decision of 4 March 2002. B. The applicant’s first placement in a psychiatric hospital 8.", "On 27 July 2000 G.I. and D.M., who according to the applicant were friends of N.B., filed complaints against the applicant to the district prosecutor, stating that she was harassing them as she was mentally ill. The prosecutor sent the complaints to the police to gather information concerning the applicant’s mental state. He instructed them, in particular, to interview friends and family of the applicant. 9.", "On 8 August 2000 the police reported to the prosecutor that the applicant should be subjected to compulsory psychiatric treatment. On 28 September 2000 the district prosecutor ordered the applicant’s psychiatric examination with a view to establishing whether it was necessary to initiate judicial proceedings for her compulsory psychiatric treatment. The applicant maintains that she never received a summons to voluntarily appear before the authorities in order to undergo any such examination. 10. In the morning of 4 October 2000 a police officer visited the applicant in her house and requested her appearance at the police station in relation to her complaint against N.B.", "The applicant contends that when she arrived at the police station, she was forced into an ambulance. There she was served with a prosecutor’s order for her detention in a psychiatric hospital in order to undergo a psychiatric examination. 11. On the same day the applicant was taken to the Sevlievo State Psychiatric Hospital where she was kept for a month for a psychiatric examination. The doctors noted in their opinion that the applicant was suffering from certain, apparently not very serious, disorders.", "They did not express an opinion on the need for the applicant’s confinement. The applicant was discharged from the hospital on 3 November 2000. 12. On 13 November 2000 the prosecutor decided not to request the applicant’s committal for compulsory psychiatric treatment, noting that the applicant did not suffer from a mental disease. 13.", "On an unspecified date in 2001 the applicant filed a complaint to the Supreme Cassation Prosecutor’s Office, claiming that her detention in a psychiatric hospital constituted an abuse of office on the part of the district prosecutor. The complaint was referred to the regional prosecutor who dismissed it on 22 April 2002. He stated, in particular, that the actions of the district prosecutor in respect of the applicant’s detention had been lawful. C. The applicant’s second placement in a psychiatric hospital 14. On 29 August 2001 G.I.", "filed a fresh complaint to the district prosecutor, claiming again harassment on the part of the applicant. Following another police inquiry, on 20 September 2001 the district prosecutor ordered the applicant’s psychiatric examination. 15. In a letter of 26 September 2001 the director of the Sevlievo State Psychiatric Hospital required the applicant’s appearance in order to undergo a psychiatric examination. The applicant did not respond to the letter.", "16. On 23 January 2002 the applicant appeared before the local police station in order to obtain her new identification document when she was detained and sent to the Sevlievo State Psychiatric Hospital. The applicant was kept there for a month for another examination. The doctors noted the same disorders as in their previous opinion. They did not express an opinion on the need for the applicant’s confinement.", "The applicant was discharged from the hospital on 22 February 2002. 17. In an order of 25 February 2002 the district prosecutor decided not to proceed with the matter as the applicant did not suffer from a mental disease. 18. Upon the applicant’s initiative, on 6 March 2002 experts from the Forensic Psychiatry and Psychology Clinic in Sofia issued a report concerning her mental state.", "They concluded that the applicant did not suffer from a mental disease. The experts further noted that her detention in a psychiatric hospital had considerably traumatised her. D. The proceedings against the police and the Prosecutor’s Office 19. Relying on the Convention, the Bulgarian Constitution, section 1 of the 1988 State Responsibility for Damage Caused to Citizens Act (see Relevant domestic law, below) and the Court’s judgments in the cases of Varbanov v. Bulgaria (no. 31365/96, ECHR 2000‑X) and Kepenerov v. Bulgaria (no.", "39269/98, 31 July 2003), on 7 May 2003 the applicant lodged claims for damages with the Dryanovo District Court against the police and the Prosecutor’s Office. The applicant claimed, in particular, that her first detention had been in breach of the relevant procedure as she had never been officially requested to appear before the authorities (see paragraph 9 above). She further maintained, referring to the Court’s findings in the abovementioned judgments, that both detentions had been unlawful within the meaning of Article 5 § 1 of the Convention, which had a priority over the domestic legislation in case of discrepancy with its provisions, and that she had not had access to a court. She also argued that the actions of the police and the prosecutor had interfered with her right to a good reputation in violation with the Bulgarian Constitution and Article 8 of the Convention. 20.", "In a judgment of 13 February 2004 the District Court allowed the claims. The court observed that when detaining the applicant the police had acted without a written order and thus in breach of section 1 of the 1988 Act. The court also discussed the impossibility for the applicant to have her detention be examined by a court. The court further held that by ordering the applicant’s detentions the prosecution authorities had acted in violation of Article 5 of the Convention. In view of that the court awarded compensation for the sustained damage.", "21. The respondents appealed. In a final judgment of 15 March 2005 the Gabrovo Regional Court quashed the lower court’s ruling and dismissed the applicant’s claims. As regards the claim against the police, the court stated that the police had acted lawfully and in execution of the prosecutor’s orders. As regards the actions of the Prosecutor’s Office, the court found that they had been lawful.", "The court further acknowledged that the national legislation was deficient in that it did not provide for judicial control over the prosecutor’s order for forced psychiatric examination. However, any claims for compensation in this regard should have been brought against the State and not the Prosecutor’s Office. II. RELEVANT DOMESTIC LAW 22. The relevant domestic law regarding placement in a psychiatric hospital by virtue of a prosecutor’s order, as in force at the relevant time and following the legislative reform of 1 January 2005, was summarised in the judgment in the case of Kayadjieva v. Bulgaria (no.", "56272/00, §§ 17-19, 22, 23, 28 September 2006). 23. Section 1(1) of the State Responsibility for Damage Caused to Citizens Act 1988 (Закон за отговорността на държавата за вреди, причинени на граждани), in July 2006 renamed the State and Municipalities Responsibility for Damage Act (Закон за отговорността на държавата и общините за вреди – “the 1988 Act”), as in force at the material time, provided that the State was liable for damage suffered by private individuals as a result of unlawful decisions, actions or omissions by state officials, committed in the course of or in connection with the performance of administrative action. Section 1(2) provided that compensation for damage resulting from unlawful decisions might be claimed after those decisions have been quashed in prior proceedings. The court which examined the claim for damages would, however, set aside decisions which had been null and void ab initio or any unlawful actions or omissions of the authorities.", "24. Section 2(1)(1) provides that the State is liable for damage caused to individuals by the investigation or the prosecution authorities or the courts through unlawful detention, provided that such detention has been set aside for lack of legal grounds. THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 25. The applicant complained, relying on Article 5 §§ 1, 4 and 5 and Articles 8 and 13 of the Convention about her confinement on two occasions in a psychiatric hospital and the alleged lack of remedies in this respect.", "26. The Court considers that these complaints fall to be examined under Article 5 §§ 1, 4 and 5 of the Convention, which, in so far as relevant, reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (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; ... 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.", "5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. Admissibility 27. The Government maintained that the complaints were inadmissible as the applicant had failed to observe the six-month time limit. They stated, in particular, that the claim under the 1988 Act was not capable to bring her redress and to remedy her grievances and that, therefore, the applicant should not have made recourse to it. 28.", "The applicant did not comment. 29. The Court reiterates that in accordance with Article 35 § 1 of the Convention it may only deal with a matter within a period of six months of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset that no effective remedy was available to the applicant, the period runs from the date of the acts or measures complained of. Article 35 § 1 cannot be interpreted, however, in a manner which would require an applicant to bring a complaint before the Court before his position in connection with the matter has been finally determined at the domestic level (see Pavlenko v. Russia, no.", "42371/02, § 70, 1 April 2010). 30. The Court observes that the application was introduced on 9 September 2005, several years after the applicant’s release. However, the introduction date was less than six months after the date on which the proceedings under the 1988 Act were completed (see paragraph 21 above). 31.", "In the majority of cases against Bulgaria treating placement in a psychiatric establishment on the strength of a prosecutor’s order, the question whether the six-month time limit was observed did not pose any problem as the applicants had submitted their application either within six months of their release (see D.V. v. Bulgaria, no. 31365/96, Commission decision of 16 April 1998; and Kayadjieva v. Bulgaria, no. 56272/00, § 28, 28 September 2006) or of proceedings on appeal before the higher police authority (see Kepenerov v. Bulgaria (dec.), no. 39269/98, 12 September 2002).", "In the absence of a Government’s objection in this respect, the Court did not have the opportunity to examine whether a claim under the 1988 Act could have remedied the raised grievances. It should be noted, however, that in the very similar case of Stoychev v. Bulgaria ([Committee], no. 29381/04, 30 November 2010) the applicant had availed himself of the possibility to bring proceedings under the 1988 Act and the Court calculated the six‑month period as starting from the date of the final decision rendered in those proceedings. 32. In the Court’s view in the case at hand it need not examine in abstract whether the 1988 Act could be regarded as a remedy to be exhausted for the alleged violations of Article 5.", "The salient issue is whether in the particular circumstances it was reasonable for the applicant to suggest that the domestic court would review the legality of her detention and award compensation for any damage sustained. In respect of that it should be noted that when in 2003 the applicant brought an action against the police and the Prosecutor’s Office she relied, inter alia, on section 1 of the 1988 Act, claiming breaches in the domestic procedure and thus unlawfulness of the actions of the police. She also relied on Article 5 of the Convention and on several judgments against Bulgaria (see paragraph 19 above). In those judgments the Court, after examining similar complaints, found that the relevant domestic legislation was falling foul of the requirements of the Convention and thus detention ordered on the strength of it was unlawful for the purposes of Article 5. 33.", "The Court observes that the domestic courts dealing with the claim under the 1988 Act examined the facts and dealt with the merits of the applicant’s complaints. It is noteworthy that the first-instance court allowed the claim (see paragraph 20 above). 34. Therefore and in the light of the above considerations the said proceedings cannot be regarded as inappropriate or misconceived (see, conversely, Fernie v. the United Kingdom (dec.), no. 14881/04, 5 January 2006).", "35. In these circumstances the judgment in the 1988 Act proceedings was the final decision within the meaning of Article 35 § 1 of the Convention. Therefore, noting that the present application was lodged less than six months after the end of those proceedings, the Court finds that the six-month time-limit was observed. 36. The Government’s objection is therefore dismissed.", "37. The Court further notes that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B.", "Merits 38. The Government contended that with the adoption of the new Health Act in 2005 the Bulgarian legislation provided sufficient safeguards for protection against the alleged violations. 39. The applicant maintained her complaints. 1.", "Article 5 § 1 40. The Court observes that the applicant was placed in a psychiatric hospital in execution of a prosecutor’s order and against her will on two occasions: from 4 October to 3 November 2000 and from 23 January to 22 February 2002. It is not disputed between the parties that the applicant’s compulsory confinement in a psychiatric hospital constituted “deprivation of liberty” within the meaning of Article 5 § 1 of the Convention. 41. The Court has already found that Bulgarian law governing detention ordered by a prosecutor for the purpose of a psychiatric examination, as in force at the relevant time and until the legislative reform of 1 January 2005, was deficient notably as it did not require seeking the opinion of a medical expert (see Varbanov, cited above, §§ 50-53; Kayadjieva, cited above, §§ 33-41; Krushev v. Bulgaria, no.", "66535/01, §§ 41 and 44, 3 July 2008; Stoychev, cited above, §§ 27-28). 42. The Court sees no reason to distinguish from this position in the present case. On two occasions the applicant was detained in a psychiatric establishment on the strength of prosecutor’s orders without a prior medical opinion and in accordance with deficient legal provisions. It also appears that a prior appraisal by a psychiatrist was possible.", "This is even more so, seeing that there was no indication or claim that the case involved any emergency. 43. In these circumstances, the Court finds that the applicant’s detention in the period from 4 October to 3 November 2000 and from 23 January to 22 February 2002 was not “the lawful detention ...of [a person] of unsound mind” within the meaning of Article 5 § 1 (e). 44. There has been therefore a violation of Article 5 § 1 (e).", "2. Article 5 § 4 45. As in a number of similar cases (see the cases cited in paragraph 41 above), in the case at hand the district prosecutor’s orders were subject to appeal solely to higher prosecutors, not to a court. The domestic legislation, as it stood at the relevant time and as interpreted by the domestic courts in the present case (see paragraphs 20 and 21 above), did not provide for a judicial review of the placement in a psychiatric hospital. It cannot be considered, therefore, that the remedy required by Article 5 § 4 of the Convention was available to the applicant.", "The necessary supervision of lawfulness was thus neither incorporated in the initial decision for the applicant’s detention nor ensured through the existing possibilities to appeal. 46. The Court therefore finds that there has been a violation of Article 5 § 4 of the Convention. 3. Article 5 § 5 47.", "The Court notes that in the present case the applicant’s placement in a psychiatric hospital entailed a violation of Article 5 §§ 1 (e) and 4. It follows that Article 5 § 5 is applicable. The Court must therefore establish whether or not Bulgarian law afforded the applicant an enforceable right to compensation for the breaches of Article 5 in her case. 48. The Court observes that the applicant brought an action under the State Responsibility Act.", "However, the Regional Court, acting as a last instance, found that the actions of the police and the prosecutor had been lawful despite deficiencies in the domestic law and did not award any compensation (see Stoychev, cited above, §§ 43-44). It has no been alleged that other remedies were available to obtain compensation. 49. The Court thus finds that Bulgarian law did not afford the applicant an enforceable right to compensation, as required by Article 5 § 5 of the Convention. There has therefore been a violation of that provision.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 50. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 51. The applicant claimed 10,000 euros (EUR) in respect of non‑pecuniary damage.", "52. The Government contested this claim as excessive. 53. The Court considers that the applicant must have suffered anxiety and frustration as a result of the violations found. Accordingly, deciding on an equitable basis, it awards her EUR 5,500.", "B. Costs and expenses 54. The applicant claimed 1,727.14 Bulgarian levs ((BGN) 883.30 euros (EUR)) for the costs and expenses incurred before the domestic courts of which BGN 1,100 (EUR 562.60) in legal fees and BGN 627.14 (EUR 320.70) in court fees and lawyer’s travel expenses when travelling to hearings in Dryanovo and Gabrovo. In support of these claims she presented a contract for legal representation with her lawyer and the relevant receipts, some of which indicated that the lawyer’s travel expenses were on the account of the Bulgarian Lawyers for Human Rights Foundation 55. For the proceedings before the Court, she claimed EUR 2,320 for legal work by her lawyer and EUR 40 for postage, photocopying and stationery material.", "In support of these claims she submitted a legal fees agreement between her and her lawyer, a time sheet, according to which for the proceedings before the Court her lawyer had charged her for 29 hours of work at the hourly rate of EUR 80 and the relevant invoices. 56. The applicant requested the costs and expenses to be transferred directly into the bank account of her representative. 57. The Government contested these claims as excessive.", "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. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 covering costs under all heads to be paid directly into the bank account of Ms S. Razboynikova. C. Default interest 59. 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 (e) of the Convention; 3. Holds that there has been a violation of Article 5 § 4 of the Convention; 4. Holds that there has been a violation of Article 5 § 5 of the Convention; 5.", "Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement: (i) EUR 5,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, payable directly into the bank account of the applicant’s legal representative; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 13 November 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıGeorge NicolaouDeputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF OGORODNIK v. UKRAINE (Application no. 29644/10) JUDGMENT STRASBOURG 5 February 2015 FINAL 05/05/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ogorodnik v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President,Boštjan M. Zupančič,Ganna Yudkivska,Vincent A. De Gaetano,André Potocki,Helena Jäderblom,Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 13 January 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 29644/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Maksym Anatoliyevych Ogorodnik (“the applicant”), on 5 May 2010. 2. The applicant, who had been granted legal aid, was represented by Ms Y. Zaikina and Mr L. Gulua, lawyers practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their then Acting Agent, Mr Markiyan Bem.", "3. The applicant alleged, in particular, that he had been ill-treated by the police and that there had been no effective domestic investigation into the matter. He also complained that his right to enjoy the privilege against self-incrimination had been violated and that he had been denied access to a lawyer during the initial stages of the criminal proceedings against him. 4. On 10 December 2012 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1983 and is currently serving a sentence of imprisonment in Berdychiv Prison no. 70. 6.", "At the time of the events the applicant had four criminal convictions for theft, in particular. He had been released from prison in October 2007. 7. From January 2008 onwards, a number of armed robberies and thefts were committed in the Kyiv and Vinnytsia regions. 8.", "On 16 July 2008 the Vinnytsia Police Department for Combating Organised Crime, having received some preliminary reports concerning the possible involvement of the applicant in the aforementioned crimes, arrested him together with his brother and an acquaintance. The police approached them when they were in a car at a fuel station. They attempted to flee, but without success. The police broke the side window and, having overcome the resistance of those inside, took them out by force and handcuffed them. Two passers-by witnessed this and gave written explanations to that effect to the police, in which they confirmed the above.", "9. Several guns, gas sprays, some jewellery and several pairs of gloves were found in the car. 10. The officers wrote a report stating that the detainees had demonstrated manifest disobedience to their orders and had attempted to escape, in response to which martial arts techniques had been practised and handcuffs had been applied to them. The report noted that no firearms had been used.", "11. On the same day, 16 July 2008, the applicant confessed to several counts of theft and robbery. He also wrote a note stating that he had no complaints against the police and that no physical or psychological coercion had been applied to him. 12. On 17 July 2008 the police drew a report on an administrative offence (a minor offence under Ukrainian legislation) committed by the applicant.", "It stated that during his arrest he had manifested malicious disobedience to a lawful order given by police officers in breach of Article 185 of the Code of Administrative Offences (see paragraph 67 below). 13. On the same day the applicant wrote a statement to the effect that during his arrest he had resisted the police and had tried to escape and that he regretted his behaviour. 14. Still on that day the Zamostyanskyy District Court of Vinnytsia (“the Zamostyanskyy Court”) found the applicant guilty under Article 185 of the Code of Administrative Offences and sentenced him to ten days’ administrative detention commencing at 11:20 a.m. on 16 July 2008.", "15. It appears from the material in the case file (see paragraph 42 below) that on 17 July 2008 the applicant was examined by doctors after his admission to the Vinnytsia Temporary Detention Facility (ITT). The examination revealed scratches and bruises on his right shoulder. No complaints or requests for medical assistance from the applicant were recorded. 16.", "On 16, 17, 18, 19 and 22 July 2008 the applicant confessed to numerous counts of theft and robbery committed in the Vinnytsia and Kyiv regions. All his confessions were accompanied by written statements by the investigator co-signed by the applicant to the effect that the latter had had his rights explained to him. Furthermore, each confession was accompanied by a written waiver by the applicant of his right to legal assistance. 17. On 25 July 2008 the investigator detained the applicant on suspicion of banditry, numerous counts of theft and armed robbery, money laundering, hooliganism, and illegal arms possession and handling.", "The applicant signed the report and stated that he agreed with his detention. 18. On 25 and 26 July 2008 the applicant confessed to some other episodes of theft and robbery. 19. On 26 July 2008 he was examined by a general practitioner on duty in Central Vinnytsia City Hospital no.", "2. The applicant did not raise any complaints and the examination did not reveal any injuries or pathologies. 20. On the same day the applicant was transferred to Vyshgorod in the Kyiv region, where he was detained till 7 August 2008 in the local temporary detention centre (the “ITT”) described by him as a metal cage in the police station. 21.", "On 28 July 2008 the Zamostyanskyy Court remanded the applicant in custody as a preventive measure pending trial. 22. On 30 July 2008 the applicant had his chest X-rayed in a tuberculosis dispensary, with no anomalies having been revealed. 23. On 2, 3, 4, and 5 August 2008 he reiterated his earlier confessions and confessed to yet more crimes.", "Like before, all those confessions were accompanied by written confirmation of the explanation to the applicant of his rights and by the applicant’s waiver of his right to a lawyer. 24. On 7 August 2008 the applicant was taken to the Brovary Town Police Department in the Kyiv region. He underwent a standard initial medical examination there. As noted in the respective journal, he raised no complaints and the examination revealed no bruises, lice or scabies.", "25. On 14 August and on 2 September 2008 the applicant again reiterated his confessions and waived his right to legal representation. 26. On 3 September 2008 an ambulance was called for him. This was recorded as entry no.", "370 in the medical assistance journal. The copy of the journal provided to the Court by the Government ends at entry no. 369. No further information is available concerning the applicant’s condition on 3 September 2008 (see also paragraph 57 below). 27.", "On 9 September 2008 an ambulance was again called for the applicant. According to a memo issued by the governor of the Brovary ITT on 27 October 2008, this was done in response to the applicant’s complaining of headache. 28. According to the applicant, on 11 September 2008 he complained to the Brovary Town Prosecutor’s Office about his ill-treatment, but his complaint remained without response. 29.", "On 11 September 2008 the applicant was transferred from Brovary to Vyshgorod. It appears from the material in the case file (see paragraph 42 below) that he was examined by a doctor at his arrival in the Vyshgorod ITT. Some bruises on his shoulders, an abrasion on his right temple and an abrasion on his right elbow were documented. According to the examination report, the applicant raised no complaints and did not seek medical assistance. 30.", "On 16, 22 and 26 September 2008 the applicant reiterated his earlier confessions and confessed to yet more crimes. He also signed reports confirming that his rights had been explained to him and waived his right to a lawyer. 31. On 25 September 2008 the applicant refused to accept a food parcel from his parents handed to him by the Vinnytsia ITT administration. As confirmed by notes written by the applicant’s cell mates, he did so because the cigarettes and the food had been cut into small pieces.", "The applicant refused to sign any report or write any explanation. 32. On 30 September 2008 the pre-trial investigation was declared complete and the case was referred to court for trial. 33. On 7 October 2008 the applicant complained to the Vinnytsia Regional Prosecutor’s Office that from 16 to 26 July 2008 he had been ill-treated by the police in the Vinnytsia ITT.", "The alleged ill-treatment included being beaten, strangled with a plastic bag and suspended from an iron bar. The applicant also submitted that he had received the threat that, if he did not confess, his brother would be imprisoned for life on a false charge of murder. Accordingly, the applicant contended that he had been coerced into signing numerous confessions and waivers of legal assistance. He further complained that from 26 July to 7 August 2008 his ill-treatment had continued in the Vyshgorod ITT. He noted that, although his parents had hired a lawyer for him, he had continuously been forced to waive his right to legal assistance.", "Lastly, the applicant complained about having suffered psychological pressure and humiliations from the Brovary ITT personnel from 7 to 30 August 2008. He noted that his complaint to the Brovary Prosecutor had been without reply. 34. On 13 October 2008 the applicant complained to the Vinnytsia Regional Police Department about the attitude of the Vinnytsia ITT personnel towards him, which he considered humiliating. He referred, in particular, to the incident with the food parcel of 25 October 2008.", "35. On an unspecified later date the chief of the aforementioned police department issued an internal inquiry report stating that no food parcels for the applicant had been received during the period of his detention in the ITT from 16 to 30 July 2008 and that the applicant had been arrogant and rude to the administration. 36. On 14 October 2008 the investigator of the Vinnytsia police department dealing with the applicant’s case gave written explanations to the regional prosecution in respect of the applicant’s allegations of ill-treatment. He submitted that the applicant and those detained as his accomplices had given their confessions and waived their right to a lawyer in a voluntary manner.", "Since legal representation was not mandatory in the circumstances, those waivers had been accepted. The other police officers concerned gave similar explanations. 37. On 15 October 2008 the applicant complained to the Minister of the Interior that he had been subjected to various kinds of ill-treatment and humiliation in all the detention facilities. He alleged, in particular, that on 11 September 2008 he had been ill-treated by the Vinnytsia police officers for about eight hours and that his ill-treatment had included beatings, strangling with a plastic bag, hanging from an iron bar and the insertion of a baseball bat into his anus.", "The applicant also submitted that the Vinnytsia police had failed to deliver a food parcel to him, had extorted a bribe from him and had not allowed him to see the lawyer contracted by his parents. 38. On 18 October 2008 ‒ in response to the applicant’s complaint of ill-treatment ‒ the Vinnytsia Regional Prosecutor’s Office issued a ruling announcing its refusal to institute criminal proceedings against the police officers of the local police department. The officers concerned had been questioned and had contested the applicant’s allegations as untruthful. As noted in the ruling, there was no indication that the applicant had sustained any injuries or that he had complained previously.", "It was therefore considered clear that he had given his confessions voluntarily. 39. On 27 October 2008 the governor of the Brovary ITT issued a memo, apparently at the prosecutor’s request, about the applicant’s detention in that facility. It stated that no physical force had been used against the applicant. The memo noted the fact that an ambulance had been called for the applicant following his complaints of headaches on 9 September 2008, but with no further details.", "40. On 31 October 2008 K., the lawyer contracted by the applicant’s parents on an unspecified earlier date, asked the Staromiskyy Court for a meeting with the applicant. On the same date that request was allowed. 41. On 7 November 2008 the applicant was examined by doctors in the Vinnytsia SIZO.", "They found him in good health. The examination report noted that the applicant did not raise any complaints and that there were no injuries on him. It should be noted that the copy of the aforementioned report in the case file before the Court, as it stood prior to the communication of the application to the Government, was of very poor quality. Moreover, the report was written in barely legible handwriting. According to the summary of the facts prepared by the Court at that stage, the report in question had referred to several bruises on the applicant.", "However, as it has since emerged, there were two reports copied on the same page: one of 7 November 2008 and one of 5 February 2009, and it was the latter report which had noted the applicant’s injuries (see paragraph 54 below). 42. On 10 November 2008 a senior official of the Vinnytsia Regional Police Department for Combating Organised Crime delivered a report on the internal investigation into the applicant’s complaints of ill-treatment (as summarised in paragraph 37 above). The investigation had consisted mainly of questioning of the police officers involved, who had denied any ill-treatment of the applicant. The report noted that the medical examinations of the applicant of 17 July and 11 September 2008 had revealed some injuries which had been inflicted in unestablished circumstances (for more details see paragraphs 15 and 29 above).", "It was decided that the internal investigation be considered complete, the conclusion being that it had not established any evidence to support the applicant’s complaints. 43. On 19 November 2008 the Vinnytsia Regional Prosecutor’s Office refused to institute criminal proceedings against the officials of the Vinnytsia ITT in respect of the allegedly inadequate conditions of the applicant’s detention and his ill-treatment there. It was noted in the ruling that the ITT officials had been questioned and had denied any ill-treatment of the applicant. They had also submitted that he had been detained in adequate conditions.", "44. On 20 November 2008 the Vinnytsia Regional Prosecutor issued another ruling refusing the institution of criminal proceedings ‒ this time against the police officers of the Vinnytsia Regional Police Department for Combating Organised Crime, who had been involved in the applicant’s apprehension and the subsequent investigative measures ‒ for the lack of corpus delicti in their actions. The officers submitted that the applicant and his accomplices had manifested malicious disobedience to the orders of the police on 16 July 2008. As a result, “measures of physical intervention and ... handcuffing” had been applied to them. Furthermore, according to the police officers’ statements, the detainees had made their confessions voluntarily.", "Lastly, the prosecutor noted that the applicant had been examined by doctors on 26 and 30 July 2008, when no injuries were documented or complaints raised (see paragraphs 19 and 22 above). 45. On 4 December 2008 the Vyshgorod Town Prosecutor’s Office refused to institute criminal proceedings against the Vyshgorod police officers, for the lack of corpus delicti in their actions. The prosecutor noted that the officers in question had denied the veracity of the applicant’s allegations of ill-treatment. Furthermore, it appeared that the applicant himself had eventually retracted his complaints.", "46. On the same day the Brovary Town Prosecutor’s Office also refused to institute criminal proceedings against the Brovary police as regards the conditions of the applicant’s detention in the local ITT. The decision was based on the explanations of the respective police officers. 47. On 5 January 2009 the applicant refused the services of the lawyer retained by his parents and asked the Staromiskyy Court to allow his parents time to find a new lawyer for him.", "48. On 15 January 2009 he repeated the above refusal and asked the court to conduct its hearing with the participation of his sister, who had earlier been admitted in the proceedings as his “civil defender”. 49. On 15 January 2009 the applicant complained to the Staromiskyy Court that he had been subjected to ill-treatment by the police on 16 July 2008 and thereafter. He submitted that all his confessions and waivers of legal assistance had been given under duress.", "50. On the same date the applicant also complained of his ill-treatment in police custody to the Prosecutor General’s Office. 51. On 27 January 2009 the Staromiskyy Court appointed a free lawyer for the applicant, since his parents had not retained a new lawyer for him. 52.", "On 4 February 2009 the Staromiskyy Court instructed the Kyiv and Vinnytsia Regional Prosecutor’s Office to investigate the applicant’s complaints of ill-treatment. 53. On 4 February 2009 the applicant was examined by a doctor, who recorded the absence of any injuries, apart from some old scars on both forearms. No further details concerning this examination are available. 54.", "On 5 February 2009 the applicant underwent another medical examination which revealed bruises on his buttocks measuring 7x10 cm and 15x10 cm respectively, as well as abrasions on his wrists caused by handcuffs. Another bruise measuring about 15 x ? cm was recorded (the copy of the report in the case file is illegible in this respect; nor is it possible to read where that bruise was located). It is not clear in what circumstances and where that examination was carried out. It has not been commented on by any of the parties.", "55. On 5 March 2009 the Vyshgorod Town Prosecutor’s Office refused to institute criminal proceedings against the police officers in the light of their statements denying the veracity of the applicant’s complaints. 56. On 11 March 2009 the Kyiv Regional Prosecutor’s Office quashed the aforementioned ruling as premature and superficial. It criticised the prosecutor’s failure to clarify when and on what grounds the applicant had been taken to the Vyshgorod ITT before his further transfer to the Brovary ITT, when he had been detained in the Brovary ITT, which of the police officers had been assigned to him and when.", "Furthermore, it observed that it was essential to question all the doctors who had examined the applicant and had provided him with medical assistance. According to the applicant, it was after his detention in the Vyshgorod ITT that he had requested medical assistance. It was also necessary to analyse all the records pertaining to the ambulance calls made for the applicant, as well as the report on his initial medical examination in the Brovary ITT. Lastly, the applicant’s complaints concerning the refusal to allow a lawyer to see him warranted investigation. 57.", "On 24 March 2009 a senior officer in the Vyshgorod police department issued a memo noting that he had visited the Brovary ITT, where he had consulted the medical examination and assistance journal. Two records, those of 7 August and 3 September 2008, concerned the applicant. The ambulance doctor had been questioned. She had recognised her signature next to the record of 3 September 2008 and had verbally explained that she had provided the applicant with the assistance documented in the record. However, she had refused to make any written statements.", "The memo in question did not contain any further details as to the applicant’s condition on 3 September 2008 or what medical assistance had been provided to him (see also paragraph 26 above). 58. On 6 May 2009 the Staromiskyy Court found the applicant guilty on seventeen counts of aggravated theft and robbery and sentenced him to eleven and a half years’ imprisonment, as well as confiscation of all his personal property. The confiscated property included a house and a car which had been purchased by the applicant’s parents, but which the court considered to have been bought using the revenue from his criminal activities. The applicant was acquitted of the charges of banditry, money laundering, hooliganism and illegal arms handling.", "The court noted that the applicant had cooperated with the investigation. At the court hearing, the applicant commented on only two of the charges against him: he denied his participation in one episode of theft and one episode of robbery and submitted that he had earlier confessed to those two episodes under duress. The court dismissed that allegation as unsubstantiated. 59. The applicant appealed, submitting that he had voluntarily confessed to the criminal offences in question and had shown remorse.", "Referring to his cooperation with the investigation, as well as the fact that he had a child who was a minor, the applicant sought mitigation of his sentence. He also contested the confiscation-related part of the verdict. 60. On 16 July 2009 the Vinnytsia Regional Court of Appeal rejected his appeal. 61.", "On 16 December 2009 the applicant lodged an appeal on points of law. He submitted that the lower courts’ decisions should be quashed as being contrary to Article 59 of the Constitution (right to legal assistance – see paragraph 65 below) and Article 398 of Code of Criminal Procedure (listing grounds for the annulment of a judgment – see paragraph 66 below). The applicant contended that he had not committed the crimes of which he had been found guilty and that he had incriminated himself after succumbing to “psycho-physical influence and deception by the police”. 62. On 26 February 2010 the Supreme Court rejected the applicant’s request for leave to appeal on points of law.", "As to his submission on the ostensibly involuntary nature of his confessions, the Supreme Court noted that the first-instance court had not established any facts showing any coercion of the applicant and he had not disputed that in his appeal. The Supreme Court furthermore observed that the applicant’s allegation of breach of the criminal procedural legislation were too vague. 63. On 18 August 2010 the Prosecutor General’s Office wrote to the applicant stating that it had instructed the Vinnytsia Regional Prosecutor’s Office to investigate his complaints of ill-treatment. 64.", "On 2 September 2010 the Vinnytsia Regional Prosecutor’s Office also wrote to the applicant stating that it had already dismissed his complaints, namely on 20 November 2008 (see paragraph 44 above). The prosecutor also referred to a similar ruling by the Kyiv Regional Prosecutor’s Office of 7 November 2008 (the case file before the Court does not contain a copy of the quoted ruling and there is no information about its contents). II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution of Ukraine of 1996 65.", "The relevant provisions of the Constitution read: Article 59 “Everyone has the right to legal assistance. Such assistance is provided free of charge in cases provided for by law. Everyone is free to choose the defender of his or her rights. In Ukraine, advocacy acts to ensure the right to mount a defence against an accusation, and to provide legal assistance during the determination of cases by courts and other State bodies.” Article 63 “A person shall not bear responsibility for refusing to testify or to explain anything about himself or herself, members of his or her family or close relatives in the degree determined by law. A suspect, an accused, or a defendant shall have the right to mount a defence.", "A convicted person shall enjoy all human and citizens’ rights, except for the restrictions determined by law and established in court judgments.” B. Code of Criminal Procedure 1960 66. Relevant provisions of the Code of Criminal Procedure as worded at the material time read: Article 395 Scope of review of the case by the court of cassation “The court of cassation shall review the lawfulness and reasonableness of the court judgment... or the part [thereof] which was appealed against. The court of cassation may exceed the scope of an appeal on points of law, as long as doing so would not prejudice the situation of the convicted or acquitted person...” Article 396Outcome of consideration of a case by the court of cassation “Having considered a case in cassation, the court of cassation shall adopt one of the following decisions: (1) a decision leaving the judgment, resolution or ruling unchanged and dismissing the appeal on points of law; (2) a decision quashing the judgment, resolution or ruling and remitting the case for additional investigation or fresh trial or consideration on appeal; (3) a decision quashing the judgment, resolution or ruling and discontinuing the proceedings; (4) a decision modifying the judgment, resolution or ruling.” Article 398 Grounds for annulment or modification of a judgment, decision or ruling “Grounds for annulment or modification of a judgment, decision or ruling shall be: (1) substantial breach of the criminal procedure legislation; (2) incorrect application of the criminal law; (3) disproportion between the selected penalty and the gravity of the offence and the character of the convicted person. A judgment given by the court of appeal as a first-instance court may be annulled or modified [on the grounds of] bias, or the incompleteness of any inquiry, pre-trial or trial investigation, or inconsistency between the court’s reasoning as cited in the judgment and the factual circumstances of the case...” C. Code of Administrative Offences 1984 67.", "The relevant provision of the Code of Administrative Offences, as worded at the material time, reads: Article 185 Malicious disobedience to a lawful order or demand by a police officer [...] “Malicious disobedience to a lawful order or demand by a police officer who is carrying out his official duties... Shall be punished by a fine in an amount between eight and fifteen non-taxable individual minimum incomes; or by correctional work for a period from one to two months with the deduction of 20% of earnings; or, where these measures are found to be insufficient in the particular circumstances of the case and with regard to the offender’s character, by an administrative detention of up to fifteen days.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 68. The applicant complained that he had been severely ill-treated in police custody. He also complained of the ineffectiveness of the domestic investigation into the matter. The applicant 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 69.", "The Government submitted that the applicant’s complaints of ill-treatment had been too vague and not supported by any evidence. They therefore invited the Court to declare them inadmissible on those grounds. 70. The applicant contested that submission and argued that he had provided the Court with all the medical evidence he had been able to collect in support of his complaints. 71.", "Having regard to all the material in the case file, especially the medical reports confirming the applicant’s injuries, the Court does not consider his complaints under this heading to be entirely without basis. It further notes that they raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes, therefore, that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other grounds for declaring them inadmissible have been established. They must therefore be declared admissible.", "B. Merits 1. Alleged ill-treatment of the applicant (a) The parties’ submissions 72. The applicant maintained his complaint. He referred to the factual account of his alleged ill-treatment as summarised in his domestic complaints.", "The applicant also submitted that the veracity of his complaints had been confirmed by the medical evidence. He noted in this connection, in particular, that an ambulance had been called for him several times on account of his grievous bodily injuries. 73. The Government contended that the applicant had failed to provide any detailed arguments or evidence in support of his complaints. They further noted that it was an established fact that the applicant had resisted the police prior to his arrest on 16 July 2008 and that legitimate force had been applied to him.", "This explained the injuries which had been revealed in the examination carried out on 17 July 2008. The Government also referred to a number of other medical examinations of the applicant, namely those of 26 and 30 July, 7 August and 7 November 2008, and 4 February 2009, which had not revealed any injuries. They argued that the present case was similar to that of Aleksandr Smirnov v. Ukraine, in which the Court had found no violation of Article 3 of the Convention under its substantive limb for the absence of conclusive evidence in the case file in support of the applicant’s complaint of ill-treatment (no. 38683/06, §§ 52-55, 15 July 2010). (b) The Court’s assessment 74.", "The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see Kudła v. Poland [GC], no. 30210/96, § 90, ECHR 2000‑XI). 75. In assessing evidence of ill-treatment, 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, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events at issue lie wholly or in large part within the exclusive knowledge of the authorities, as in the case of those under their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as lying with the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII).", "76. Turning to the facts of the present case, the Court notes that some of the applicant’s allegations concerning the injuries sustained at the hands of the police (such as is strangling with a plastic bag, hanging from an iron bar and rape with a baseball bat) are not supported by any documentary evidence. At the same time, it is evident from the case file that the applicant sustained a number of injuries at various times while in police custody. 77. While the applicant’s medical examinations of 26 July and 7 August 2008 did not reveal any injuries, on 3 and 9 September 2008 an ambulance was called for him and on 11 September 2008 a medical examination revealed bruises on his shoulders, and abrasions on his right temple and right elbow (see paragraphs 26, 27 and 29 above).", "Apart from the authorities’ general remark that on 9 September 2008 the applicant complained of headaches, no information is available as to what necessitated those ambulance calls. Although the domestic investigation acknowledged the fact that the applicant had sustained the aforementioned injuries, it contented itself with a finding that those injuries “had been inflicted in unestablished circumstances” even though the applicant had been held in police custody throughout that time (see paragraph 42 above). 78. It also appears from material in the case file ‒ about which the parties have made no comment, however ‒ that on 5 February 2009 a medical examination of the applicant established that he had several large bruises on his buttocks and abrasions on his wrists. It is significant that only a day before, on 4 February 2009, the applicant had undergone another such examination which had not revealed any injuries.", "It can therefore be assumed that he sustained the aforementioned injuries between 4 and 5 February 2009. Coincidentally or not, that was immediately after the trial court had instructed the prosecution authorities to investigate the applicant’s complaints of ill-treatment (see paragraphs 52-54 above). It does not escape the Court’s attention that the applicant appeared reluctant to pursue his complaint thereafter in the framework of his trial. Given the aforementioned medical evidence, it cannot be ruled out that his further ill-treatment dissuaded him from doing so. 79.", "The Court acknowledges the absence of comprehensive factual details and medical evidence regarding all the applicant’s injuries in the present case. It is sufficiently established, however, that he did sustain injuries several times while in police custody and that their origin has never been explained. This is what makes this case different from that of Aleksandr Smirnov, with which the Government tried to draw an analogy (see paragraph 73 above). In the cited case the applicant had ‒ by contrast ‒ been released and it was never established when exactly he had been injured: while in detention or only after his release (§§ 52-55). In the present case, however, the applicant was under the control of the police all the time.", "80. In these circumstances, and given that the burden lies with the State to provide a plausible explanation for injuries sustained by a person under the control of the police, the Court concludes that the Government have not satisfactorily established that the injuries sustained by the applicant, in particular, in September 2008 and February 2009 were caused other than by ill-treatment while in police custody. 81. Accordingly, there has been a violation of Article 3 under its substantive limb. 2.", "Alleged ineffectiveness of the domestic investigation (a) The parties’ submissions 82. The applicant submitted that the domestic authorities had made no meaningful effort to establish the truth regarding his ill-treatment by the police or to punish the officers concerned. He noted that the investigation authorities had never questioned him as a victim of the alleged ill-treatment, whereas the police officers had been questioned and their statements had been accepted at face value. 83. The applicant noted that even his allegation of as serious an instance of ill-treatment as rape with a baseball bat had never been verified and no medical examination had been ordered in that respect.", "84. Overall, the applicant maintained that the investigation had been superficial and had lacked independence, being entrusted to authorities closely linked to the officers whom he had accused of ill-treatment. 85. The Government contended that each of the applicant’s complaints about ill-treatment by the police had triggered prompt and thorough investigation, which had included the examination of pertinent documents and the questioning of the police officers concerned. 86.", "The Government also observed that the applicant had not challenged any of the prosecution authorities’ rulings refusing the institution of criminal proceedings against the police following his complaints. (b) The Court’s assessment (i) General case-law principles 87. The Court reiterates that where an individual raises an arguable claim that he has been ill-treated by the State authorities in breach of Article 3, that provision ‒ read in conjunction with the State’s general duty under Article 1 of the Convention ‒ requires by implication that there should be an effective official investigation. For the investigation to be regarded as “effective”, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. The authorities must have taken the steps reasonably available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and so on.", "Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard, and a requirement of promptness and reasonable expedition is implicit in this context (see, among many authorities, Assenov and Others v. Bulgaria, 28 October 1998, §§ 102 et seq., Reports of Judgments and Decisions 1998‑VIII). For an investigation to be effective, those who bear responsibility for it and those who carry it out must be independent and impartial, in law and in practice. This calls for not only a lack of hierarchical or institutional connection with those implicated in the events but also a practical independence (see, for example, Kolevi v. Bulgaria, no. 1108/02, § 193, 5 November 2009). The investigation should result in a reasoned decision to reassure a concerned public that the rule of law has been respected (see, mutatis mutandis, Kelly and Others v. the United Kingdom, no.", "30054/96, § 118, 4 May 2001, and Lyapin v. Russia, no. 46956/09, § 126, 24 July 2014). Moreover, the notion of an effective remedy in respect of an allegation of ill-treatment also entails effective access for the complainant to the investigation procedure (see Assenov and Others, cited above, § 117). (ii) Application of the above principles to the present case 88. The Court notes that the applicant complained to the domestic authorities about his ill-treatment on several occasions from September 2008 onwards.", "The domestic investigation into the matter mainly consisted of the questioning of the police officers concerned, whereas at no point was it deemed necessary to question the applicant himself. Nor did the investigation authorities order the applicant to undergo forensic medical examinations with a view to verifying his allegations. 89. Overall, it appears that the manner in which the authorities approached the investigation of the applicant’s complaints was aimed at exculpating the suspected officers, rather than at establishing the objective circumstances in which his injuries had been sustained. 90.", "The Court notes that in the case of Kaverzin v. Ukraine (no. 23893/03, §§ 173-180, 15 May 2012) it found that reluctance on the part of the authorities to ensure that a prompt and thorough investigation of the ill-treatment complaints by the criminal suspects was carried out constituted a systemic problem within the meaning of Article 46 of the Convention. The Court considers that this problem has manifested itself in the circumstances of the present case too. 91. It follows that there has been a violation of Article 3 of the Convention under its procedural limb.", "II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION 92. 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 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 93. The Government submitted that the applicant’s complaint about his self-incrimination under duress was to be rejected as manifestly ill-founded. As to his complaint about the initial lack of legal assistance, the Government noted that the applicant had not raised that issue either in his appeal or in his appeal on points of law. They therefore argued that he had failed to exhaust the domestic remedies in compliance with by Article 35 § 1 of the Convention. In the alternative, the Government argued that if the applicant had believed that there had been no effective domestic remedies at his disposal after the pronouncement of the verdict by the first-instance court, he should have complained to the Court within a period of six months thereafter.", "94. The applicant contested those arguments. He submitted that he had raised the complaint concerning the initial restrictions upon his access to legal assistance sufficiently in his appeal on points of law and that the Supreme Court had had the requisite powers to correct any errors or omissions in the lower courts’ decisions. Accordingly, the six-month time-limit for his related complaint before this Court was to be calculated from the final decision given by the Supreme Court in the criminal proceedings against him. The applicant also considered the complaint about his self-incrimination under coercion to be sufficiently founded.", "95. The Court notes that it has assessed a similar situation in the case of Sergey Afanasyev v. Ukraine (no. 48057/06, §§ 50-53, 15 November 2012), where the applicant did not raise the issue of lack of access to a lawyer before the appellate court, but referred to it in substance in his appeal on points of law. The Court considered that the domestic authorities had been sufficiently informed about the complaint by the applicant and that they had been given an appropriate opportunity to remedy the issue before it was raised at international level. 96.", "The Court considers that the same conclusion is applicable in the present case, given that the applicant explicitly alleged a violation of his rights under Article 59 of the Constitution (right to legal assistance) in his appeal on points of law (see paragraphs 61 and 65 above). The Court therefore rejects this objection by the Government. 97. Furthermore, having regard to its findings on the applicant’s complaints under Article 3 of the Convention (see paragraphs 81 and 91 above), the Court does not accept the Government’s argument that his complaint about the violation of his right to enjoy the privilege against self-incrimination was entirely without basis. 98.", "The Court considers that the applicant’s complaints under Article 6 §§ 1 and 3 (c) are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1.", "The parties’ submissions 99. The applicant submitted that he had initially been detained for ulterior motives, allowing the police to exercise pressure on him and to deny him an access to a lawyer. He noted that the numerous confessions extracted from him by physical ill-treatment or psychological pressure ‒ which had continued even after his detention had been registered as criminal rather than administrative ‒ had been used for the purpose of securing his conviction. The applicant observed that the trial court had not dealt with his complaints of ill-treatment by the police. 100.", "The Government contended that the applicant’s rights had been duly explained to him at the outset of his detention and regularly thereafter, and that he himself had repeatedly waived his right to legal assistance. The Government also noted that the domestic courts had no reason to question the voluntary nature of the applicant’s confessions and their reliance on those confessions could not therefore be regarded as undermining his right to enjoy the privilege against self-incrimination. 2. The Court’s assessment (a) General principles 101. The Court has consistently viewed early access to a lawyer as a procedural guarantee of the privilege against self-incrimination and a fundamental safeguard against ill-treatment, noting the particular vulnerability of an accused in the early stages of proceedings, when he is confronted with both the stress of the situation and the increasingly complex criminal legislation involved.", "Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies (see Salduz v. Turkey [GC], no. 36391/02, § 54, ECHR 2008). 102. As a rule, access to a lawyer should be provided from the very first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of a case that there are compelling reasons to restrict this right (see Salduz, cited above, § 55).", "The right to defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (ibid). 103. The aforementioned principles of the right to defence and the privilege against self-incrimination are in line with the generally recognised international human rights standards (see paragraph 38 above) which are at the core of the concept of a fair trial and whose rationale relates in particular to the protection of the accused against abusive coercion on the part of the authorities. They also contribute to the prevention of miscarriages of justice and to the fulfilment of the aims of Article 6, in particular equality of arms between the investigating or prosecuting authorities and the accused (see Salduz, cited above, § 53, Bykov v. Russia [GC], no. 4378/02, § 92, 10 March 2009, and Pishchalnikov v. Russia, no.", "7025/04, § 68, 24 September 2009). The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resorting to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006‑IX, with further references). 104. Lastly, the Court reiterates that any waiver of a right guaranteed by the Convention – in so far as it is permissible – must not run counter to any important public interest, must be established in an unequivocal manner and must be attended by minimum safeguards commensurate with the waiver’s importance (see Sejdovic v. Italy [GC], no.", "56581/00, § 86, ECHR 2006‑II). (b) Application of the above principles to the present case 105. Turning to the facts of the present case, the Court observes that, as is clear from the evidence available, in July 2008 the police had information about the applicant’s involvement in a number of robberies and thefts. It was with a view to verifying that information that they apprehended the applicant, together with two other persons, on 16 July 2008. The applicant’s detention from 16 to 25 July 2008 was, however, registered as a penalty for the administrative offence of disobedience to police orders.", "106. The Court notes that during that period the applicant was de facto treated as a suspect in the criminal investigations. Almost every day during the period in question he gave numerous confessions to robberies and thefts and signed a number of waivers of legal assistance. 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 (see Kafkaris v. Cyprus [GC], no. 21906/04, § 116, ECHR 2008).", "107. 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. The Court found, in particular, that the Ukrainian authorities had often resorted to such practice with a view to circumventing the legal requirement of mandatory legal representation where applicable (see, for example, Leonid Lazarenko v. Ukraine, no. 22313/04, § 54, 28 October 2010, and Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 264, 21 April 2011).", "The present case is different since the applicant’s case did not warrant his obligatory legal representation even if he had been formally treated as a criminal suspect from the outset. Without analysing here the lawfulness of the applicant’s administrative detention as such, which does not fall within the ambit of his complaints under Article 6, the Court notes that it remained open for the applicant, be it in the context of the administrative offence proceedings or the criminal proceedings, to seek to be legally represented or to waive such legal representation. As already noted, he waived that right on a number of occasions. This would not necessarily raise any issue under Article 6 § 3 (c) of the Convention had his waivers been free and genuine. However, the Court’s findings on the applicant’s complaints under Article 3 of the Convention (see paragraphs 81 and 91 above) indicate that this was not the case.", "Nor can the applicant’s confessions while he was not legally represented be regarded as having been given in a cognisant and voluntary manner. 108. It does not escape the Court’s attention that the applicant in fact never retracted most of his confessions, even when he had legal representation. However, he can hardly be reproached for this, given his apparent vulnerability and the failure of the authorities to ensure his physical integrity and protection against intimidation and ill-treatment even at the trial stage (see paragraph 54 above). While it was the trial court’s duty to establish in a convincing manner whether or not the applicant’s confessions and waivers of legal assistance had been voluntary, no efforts appear to have been made in that regard.", "109. Likewise, the Supreme Court dealt with the applicant’s complaints about the violation of his procedural rights in a formalistic manner. 110. The Court therefore considers that the applicant’s rights to freedom against self-incrimination and to legal assistance were unduly restricted during the pre-trial investigation and that this restriction was not remedied in the course of his trial. 111.", "This suffices for the Court to conclude that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 112. The applicant further complained, without referring to any specific provision of the Convention, that his detention from 16 July to 5 November 2008 had been unlawful. He additionally complained under Article 6 of the Convention: that his lawyers had not duly performed their duties; that the courts dealing with his case had been biased and the appellate court judges had taken a bribe from him; and that his conviction was generally unfair.", "He next complained under the same provision about the length of proceedings. The applicant also complained that the confiscation ordered by the courts in conjunction with his conviction concerned property which did not in fact belong to him and with which he had no connection. Lastly, he complained of some problems with the dispatching of his outgoing correspondence from the pre-trial detention centre. 113. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.", "It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 114. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 115.", "The applicant claimed a retrial and 160,000 euros (EUR) in respect of non-pecuniary damage. 116. The Government contested this claim as unsubstantiated and in any event exorbitant. 117. Having regard to all the circumstances of the present case, the Court accepts that the applicant suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation.", "Making its assessment on an equitable basis, the Court awards the applicant EUR 12,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to him. 118. Furthermore, the Court notes that where an individual, as in the instant case, has been convicted by a court in proceedings which did not meet the Convention requirement of fairness, a retrial, a reopening or a review of the case, if requested, represents in principle an appropriate way of redressing the violation (see, for example, Leonid Lazarenko v. Ukraine, cited above, § 65). B. Costs and expenses 119.", "The applicant did not submit any claims under this heading apart from his request for legal aid. The Court therefore makes no award. 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 complaints under Article 3 and Article 6 §§ 1 and 3 (c) (concerning the right to legal assistance and privilege against self-incrimination) 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 under its substantive limb; 3. Holds that there has been a violation of Article 3 of the Convention under its procedural limb; 4. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) 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 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; this amount 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 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 5 February 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekMark VilligerRegistrarPresident" ]

[ "FOURTH SECTION CASE OF SKOWROŃSKI v. POLAND (Application no. 52595/99) JUDGMENT (Friendly settlement) STRASBOURG 17 February 2004 This judgment is final but it may be subject to editorial revision. In the case of Skowroński v. Poland, 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 Mrs F. Elens-Passos, Deputy Section Registrar, Having deliberated in private on 27 January 2004, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no.", "52595/99) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Miroslaw Skowronski (“the applicant”), on 23 February 1999. 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs. 3. The applicant complained, inter alia, under Article 6 § 1 of the Convention about the length of a set of civil proceedings.", "4. By a decision of 26 August 2003, the Court declared the application partly admissible. 5. On 6 November 2003, after an exchange of correspondence, the Registrar suggested to the parties that they should attempt to reach a friendly settlement within the meaning of Article 38 § 1 (b) of the Convention. On 18 November and 11 December 2003 the applicant and the Government respectively submitted formal declarations accepting a friendly settlement of the case.", "THE FACTS 6. The applicant was born in 1955 and lives in Śniechy, Poland. 7. In 1987 the applicant filed with the Lipno District Court (Sąd Rejonowy) an action in which he requested that the co-ownership of an estate be dissolved. 8.", "On 9 December 1998, having held a number of hearings, the court gave judgment. It granted the sole ownership of the estate to the opposing party. THE LAW 9. On 11 December 2003 the Court received the following declaration from the Government: “I declare that, with a view to securing a friendly settlement of the above-mentioned case, the Government of Poland offer to pay PLN 15.000 to Mirosław Skowroński. This sum is to cover any pecuniary and non-pecuniary damage as well as costs, and it will be payable within three months from the date of delivery of the judgment by the Court pursuant to Article 39 of the European Convention on Human Rights.", "This payment will constitute the final resolution of the case. The Government further undertake not to request that the case be referred to the Grand Chamber under Article 43 § 1 of the Convention.” 10. On 18 November 2003 the Court had received the following declaration signed by the applicant: “I note that the Government of Poland are prepared to pay me the sum of PLN 15.000 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.” 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 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 17 February 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Françoise Elens-PassosNicolas BratzaDeputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF SAGHATELYAN v. ARMENIA (Application no. 7984/06) JUDGMENT STRASBOURG 20 October 2015 FINAL 20/01/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Saghatelyan v. Armenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Kristina Pardalos,Johannes Silvis,Iulia Antoanella Motoc,Branko Lubarda,Carlo Ranzoni,Armen Harutyunyan, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 29 September 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "7984/06) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Ms Anahit Saghatelyan (“the applicant”), on 8 February 2006. 2. The applicant was represented by Mr A. Ghazaryan, a non-practising lawyer, and Mr M. Danielyan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. 3.", "The applicant, a former judge, alleged in particular that she was deprived of access to court to challenge her dismissal from the judiciary. 4. On 16 June 2009 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1959 and lives in Vardenis. She worked as a judge at Gegharkunik Regional Court. 6. On 17 February 2004 the Minister of Justice filed a motion with the Council of Justice seeking to have the applicant dismissed from her post under Section 30 (8) of the Law on the Status of a Judge. The motion stated that the applicant had been severely reprimanded on three occasions, namely in 1997, 2000 and 2001, for various gross violations of the rules of criminal procedure and another set of disciplinary proceedings had been instituted against her on the same grounds in December 2003.", "7. On 2 March 2004 the Council of Justice examined the motion and decided to form a three-member commission to examine the factual basis of the motion and to report back to the Council. 8. On 27 April 2004 the Council of Justice adopted a conclusion recommending to the President of Armenia that the applicant be dismissed. 9.", "On 30 April 2004 the President of Armenia issued a decree dismissing the applicant from her post. 10. On 15 March 2005 the applicant lodged a claim with the Kentron and Nork-Marash District Court of Yerevan, seeking to annul the President’s Decree of 30 April 2004 as unlawful. She argued that her dismissal from work had been in violation of a number of provisions of domestic law and various European instruments relating to the status of a judge. In particular, the motion for dismissal filed by the Minister of Justice on 17 February 2004 had been based upon matters which had been the subject of earlier disciplinary proceedings and in respect of which penalties had already been imposed.", "The motion did not contain any reasoning and was not accompanied by any supporting documentation and was, therefore, unsubstantiated. She further argued that judicial decisions were not supposed to be subject to a review other than by way of an appeal procedure prescribed by law. Thus, the commission of gross violations of the law (the alleged grounds for her dismissal) could only have been found by a higher court (which had not happened in her case) and not by non-judicial bodies and officials, such as the Council of Justice or the Minister of Justice. Finally, she claimed that the question of her dismissal had been examined by the Council of Justice in her absence, in violation of the relevant rules. 11.", "On 26 May 2005 the Kentron and Nork-Marash District Court of Yerevan decided under Article 109 of the Code of Civil Procedure to terminate the proceedings on the ground that the applicant’s claim was not subject to examination by the courts of general jurisdiction. In doing so, the District Court referred, inter alia, to Article 100 (1) of the Constitution, Article 15 § 2 of the Civil Code and Article 160 § 1 of the Code of Civil Procedure (the CCP). 12. On 7 June 2005 the applicant lodged an appeal. 13.", "On 13 July 2005 the Civil Court of Appeal examined and dismissed the applicant’s claim as unsubstantiated. 14. On 5 August 2005 the applicant lodged an appeal on points of law. 15. On 23 September 2005 the Court of Cassation quashed the judgment of the Court of Appeal and decided to terminate the proceedings on the same grounds as the District Court.", "16. On 16 November 2006, in proceedings unrelated to this case, the Constitutional Court found the second paragraph of Article 160 § 1 of the CCP to be unconstitutional. II. RELEVANT DOMESTIC LAW A. The Constitution of Armenia of 1995 (as in force at the material time) 17.", "The relevant provisions of the Constitution read as follows: Article 38 “Everyone has the right to defend his rights and freedoms by any means not prohibited by law. Everyone has the right to judicial protection of his rights and freedoms guaranteed by the Constitution and laws.” Article 39 “Everyone has the right to a public hearing of his case by an independent and impartial court within a reasonable time in conditions of equality and with respect for all fair trial requirements in order to have his violated rights restored, as well as the validity of the charge against him determined.” Article 94 “The guarantor of independence of the judicial authorities is the President of [Armenia]. He shall preside over the Council of Justice. The Minister of Justice and the General Prosecutor shall be the vice-presidents of the Council. The Council shall be also composed of fourteen members appointed by the President of [Armenia] for a period of five years, including two legal scholars, nine judges and three prosecutors.", "...” Article 95 “The Council of Justice shall: ... (6) submit a proposal approving the termination of the term of office of a judge...” Article 100 “The Constitutional Court, in accordance with a procedure prescribed by law, shall: (1) decide on the conformity of laws, the resolutions of the National Assembly, the decrees and directives of the President of [Armenia] and the decrees of the Government with the Constitution; ...” Article 101 “Applications to the Constitutional Court can be submitted by: (1) the President of [Armenia]; (2) at least one third of the deputies of the National Assembly; (3) candidates for the office of the President of [Armenia] and for the National Assembly in connection with disputes related to election results; [and] (4) the Government...” B. The Constitution of Armenia of 1995 (following the amendments introduced on 27 November 2005 with effect from 6 December 2005) 18. The former Articles 38 and 39 of the Constitution were transformed into Articles 18 and 19 and read as follows: Article 18 “Everyone has the right to an effective remedy to have his rights and freedoms protected by the judicial and other public authorities. Everyone has the right to defend his rights and freedoms by any means not prohibited by law. ...” Article 19 “Everyone has the right to a public hearing of his case by an independent and impartial court within a reasonable time in conditions of equality and with respect for all fair trial requirements in order to have his violated rights restored, as well as the validity of the charge against him determined.", "...” As a result of the amendments, Article 101 reads as follows: “In conformity with the procedure set forth in the Constitution and the law on the Constitutional Court, an application to the Constitutional Court may be filed by: ... (6) every person in a specific case when the final judicial act has been adopted, when the possibilities of judicial protection have been exhausted and when the constitutionality of a law provision applied by the act in question is being challenged...” C. The Civil Code (in force from 1 January 1999) 19. The relevant provisions of the Civil Code read as follows: Article 3: The principles of the civil law “1. The civil legislation is based, inter alia, on the principle of freedom of contract. 2. Citizens and legal entities acquire and enforce civil rights of their own will and in their interests.", "They are free to determine their rights and obligations on the basis of a contract and stipulate any provision in a contract which is not incompatible with the law...” Article 15: Annulment of unlawful acts of public authorities or local self-government bodies “1. The acts of public authorities or local self-government bodies which are incompatible with laws or other legal acts and which violate the civil rights and lawful interests of a citizen or a legal person may be annulled by a court... 2. The Constitutional Court of Armenia shall, under Article 100 of the Constitution of Armenia, decide on the compatibility of laws, the resolutions of the National Assembly of Armenia, the decrees and directives of the President of Armenia, and the decrees of the Government of Armenia with the Constitution.” D. The Code of Civil Procedure (in force from 12 January 1999) 20. The relevant provisions of the Code of Civil Procedure, as in force at the material time, read as follows: Article 109: Grounds for terminating the proceedings “The court shall terminate the proceedings, if ... [inter alia] the dispute is not subject to be examined by the courts...” Article 159: Grounds for annulling the unlawful acts of public authorities, local self‑government bodies and their officials or for contesting their actions (inaction) “Unlawful acts of public authorities, local self-government bodies and their officials can be annulled or their actions (inaction) can be contested (hereafter, annulling the unlawful act) if the act in question contradicts the law and if there is evidence that the applicant’s rights and (or) freedoms guaranteed by the Armenian Constitution and laws have been violated. ...” Article 160: An application seeking to annul unlawful acts of public authorities, local self-government bodies and their officials “1.", "An application seeking to annul unlawful acts of public authorities, local self‑government bodies and their officials shall be submitted to a court dealing with civil cases or the Commercial Court depending on their jurisdiction over cases. The court cannot examine applications seeking to annul those acts, the determination of whose conformity with the Constitution of Armenia falls within the exclusive jurisdiction of the Constitutional Court. 2. The application may concern the unlawful act itself or any part of it. ...” E. The Law on the Council of Justice (no longer in force from 18 May 2007) 21.", "The relevant provisions of the Law, as in force at the material time, read as follows: Section 19 “The question of premature termination of the term of office of a judge shall be raised before the Council by the Minister of Justice... The following may serve as grounds for premature termination of the term of office of a judge upon the Council’s conclusion: (1) a gross violation of lawfulness; and (2) commission of an act incompatible with a judge’s title. The Minister of Justice ..., in cases envisaged by the first paragraph of this Section, shall submit to the Council the materials on which the proposal to terminate prematurely the term of office of a judge ... is based. ... The Council, when examining the question of premature termination of the term of office of a judge, shall summon and hear the judge.", "...” Section 23 “The President of the Council shall summon the Council’s hearings. The Council’s hearings shall be conducted by the President of the Council or, upon his instruction, the Minister of Justice or the General Prosecutor. If the President of the Council is not present at the Council’s hearing, then the hearings, in which questions related to judges are examined, shall be conducted by the Minister of Justice, while [the hearings], in which questions related to prosecutors are examined, shall be conducted by the General Prosecutor.” Section 25 “The Council, when performing its functions envisaged by ... [, inter alia, Article 19] of this Law, [shall adopt] conclusions.” Section 26 “The Council’s ... conclusions are adopted by the majority of votes of those present at the hearing. ... The Council’s conclusions are of a recommendatory nature.", "...” F. The Law on the Status of a Judge (no longer in force from 18 May 2007) 22. The relevant provisions of the Law, as in force at the material time, read as follows: Section 30: Grounds for terminating the terms of office of a judge “The term of office of a judge shall be terminated upon the proposal of the Council of Justice by the President of [Armenia] if: ... (8) [he or she] has committed a gross violation of the law when administering justice; ...” G. The decision of the Constitutional Court of 16 November 2006 on the Conformity of Article 160 of the Code of Civil Procedure with the Constitution, adopted on the basis of applications lodged by citizens Sofik Gasparyan and Artak Zeynalyan 23. On the basis of applications lodged by individuals, not judges, following the Constitutional amendments of 2005 the Constitutional Court found the second paragraph of Article 160 § 1 of the CCP incompatible with Articles 18 and 19 of the Constitution, as amended on 27 November 2005, because it failed to guarantee a balance of power, created a serious gap in terms of judicial control of legal acts and endangered the implementation of an individual’s right to judicial protection of his rights and freedoms as guaranteed by paragraph 1 of Article 18 of the Constitution. H. The Advocacy Act (in force from 22 January 2005) 24. According to Article 6, an advocate is entitled to receive remuneration for his services.", "The amount and mode of payment for legal services are decided by a written contract concluded between the advocate and the client in accordance with the Civil Code. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 25. The applicant complained under Articles 6 and 13 of the Convention that she was denied effective access to court to contest the early termination of her office of judge. The Court considers that this complaint essentially raises an issue of access to court and should therefore be examined from the standpoint of Article 6 § 1 of the Convention alone, 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. Admissibility 1.", "The parties’ arguments 26. The Government contended that Article 6 did not apply in the present case. Relying on the Court’s reasoning in its decision in the case of Pitkevich (Pitkevich v. Russia, no. 47936/99, 8 February 2001), they maintained that disputes relating to dismissal from the judiciary fall outside the scope of Article 6 of the Convention. The Government further argued that the applicant was expressly denied access to a court to challenge the President’s decree on her dismissal from office and that this exclusion was justified, based on the State interest in ensuring the independence and impartiality of the judiciary.", "27. The applicant contested the Government’s contention that Article 6 did not apply. She argued, in particular, that the denial of access to court was not justified on any objective grounds. 2. The Court’s assessment 28.", "The Court reiterates that, according to the principle established in the Vilho Eskelinen and Others judgment (Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, §§ 61 and 62, ECHR 2007‑II), in order for the respondent State to be able to rely before the Court on the applicant’s status as a civil servant in excluding the protection embodied in Article 6, two conditions must be fulfilled. Firstly, the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State’s interest. The mere fact that the applicant is in a sector or department which participates in the exercise of power conferred by public law is not in itself decisive.", "In order for the exclusion to be justified, it is not enough for the State to establish that a civil servant participates in the exercise of public power or that there exists, to use the words of the Court in Pellegrin (Pellegrin v. France [GC], no. 28541/95, § 65, ECHR 1999‑VIII), a “special bond of trust and loyalty” between the civil servant and the State, as employer. It is also for the State to show that the subject matter of the dispute in issue is related to the exercise of State power or that it has called into question the special bond. Thus, there can in principle be no justification for the exclusion from the guarantees of Article 6 of ordinary labour disputes, such as those relating to salaries, allowances or similar entitlements, on the basis of the special nature of the relationship between the particular civil servant and the State in question. There will, in effect, be a presumption that Article 6 applies.", "It will be for the Government to demonstrate, firstly, that a civil servant applicant does not have a right of access to a court under national law and, secondly, that the exclusion of the rights under Article 6 for the civil servant is justified. 29. The Court notes that in its decision on admissibility in the above‑cited Pitkevich case the Court found that the judiciary, while not being part of the ordinary civil service, was nonetheless part of typical public service. A judge had specific responsibilities in the field of administration of justice, which was a sphere in which States exercised sovereign powers. Consequently, a judge participated directly in the exercise of powers conferred by public law and performed duties designated to safeguard the general interests of the State.", "The Court concluded that the dispute concerning the dismissal of a judge did not concern her “civil” rights or obligations within the meaning of Article 6 of the Convention. 30. The Court notes, however, that following its decision in Pitkevich and in the light of the findings made in the Vilho Eskelinen judgment, Article 6 was found to apply to proceedings concerning the dismissal of a judge (see, for instance, Olujić v. Croatia, no. 22330/05, §§ 31-45, 5 February 2009; Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 87-91, ECHR 2013).", "31. Thus, the Vilho Eskelinen judgment, which intended that a presumption of Article 6 protection should exist, encompasses cases of dismissal, unless the domestic system excludes access to court in that respect (see Olujić, cited above, § 34). 32. As to the present case, the applicant sought to challenge the legality of the President’s Decree of 30 April 2004 concerning her dismissal from office and the courts eventually concluded that they did not have jurisdiction to examine a President’s decree in accordance with Article 160 § 1 of the CCP, Article 15 § 2 of the Civil Code and Article 100 (1) of the Constitution. 33.", "The Court notes that the Government have not mentioned any provision of the law which would expressly rule out judicial protection in connection with disciplinary proceedings against judges (compare, Olujić, cited above, § 35). 34. The Court further notes that the applicant was unable to dispute the lawfulness of the President’s Decree of 30 April 2004 concerning her dismissal because at the material time it was generally not open to individuals to challenge presidential decrees before the ordinary courts as a result of the application of the second paragraph of Article 160 § 1 of the CCP. Furthermore, at the material time it was not open to individuals to challenge presidential decrees before the Constitutional Court either. In such circumstances the applicant’s access to court was restricted in the same way as in the case of any other individual seeking to dispute a presidential decree in court.", "35. Against this background, the Court considers that the national law did not rule out access to court for the applicant based on her status as a holder of public power. Accordingly, the first condition of the Vilho Eskelinen test has not been fulfilled in the present case and therefore Article 6 applies under its civil head. 36. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ arguments 37.", "The applicant maintained that she had been deprived of access to court to challenge her dismissal from the judiciary since the courts did not examine the lawfulness of the President’s decree concerning her dismissal relying on Article 160 § 1 of the CCP which the Constitutional Court later found to be unconstitutional. The applicant argued that the Council of Justice with its composition at the material time could not be considered as an independent and impartial tribunal established by law which would satisfy the criteria under Article 6 § 1 of the Convention. In particular, before the major judicial reforms following the Constitutional amendments of 2005, the Council of Justice was presided over by the President of Armenia, the Prosecutor General and the Minister of Justice and was therefore fully dependent on the executive. 38. The Government argued that by its decision of 16 November 2006 the Constitutional Court found Article 160 § 1 of the CCP to be unconstitutional in so far as the practice of the courts of general jurisdiction was such that they refused to examine claims concerning the lawfulness of the acts of the President and the Government relying on the second paragraph of this provision.", "They maintained that this decision was not in any way concerned with claims concerning the compatibility of those acts with the Constitution, the determination of which is within the exclusive competence of the Constitutional Court and that at the material time individuals had no right of access to the Constitutional Court. 2. The Court’s assessment 39. The Court reiterates that when disputes to which Article 6 is applicable are determined by organs other than courts, the Convention calls at least for one of the following systems: either the jurisdictional organs themselves comply with the requirements of Article 6 § 1 or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6 § 1 (see Albert and Le Compte v. Belgium, 10 February 1983, § 29, Series A no. 58).", "40. In the present instance, the applicant’s case was examined and the resulting recommendation on her dismissal was submitted to the President of Armenia by the Council of Justice, which at the material time was presided over by the President, the Minister of Justice and the Prosecutor General. 41. Against this background, the Court must examine whether the Council of Justice could be considered an “independent and impartial tribunal” as required by Article 6 § 1. 42.", "The Court notes that in order to establish whether a tribunal can be considered “independent” within the meaning of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question of whether the body presents an appearance of independence. As to the question of “impartiality”, there are two aspects to this requirement. 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. The concepts of independence and objective impartiality are closely linked and the Court will often consider them together (see Findlay v. the United Kingdom, 25 February 1997, § 73, Reports of Judgments and Decisions 1997‑I; Brudnicka and Others v. Poland, no.", "54723/00, § 38, ECHR 2005‑II). 43. The Court further notes that the notion of the separation of powers between the executive and the judiciary has assumed growing importance in the case-law of the Court (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002‑IV and Oleksandr Volkov, cited above, § 103). 44.", "The Court finds it significant that at the time when the applicant’s case was examined by the Council of Justice, it was presided over by the representatives of the executive. Accordingly, the Council of Justice, as it was composed at the material time, cannot be regarded as an independent and impartial tribunal capable of ensuring compliance with the requirement of fairness laid down by Article 6 of the Convention. It follows that the applicant should have had the benefit of subsequent control of the decision reached by the President upon the recommendation of the Council of Justice by a judicial authority meeting the requirements of Article 6. 45. The Court reiterates 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, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard.", "Nonetheless, the limitations applied 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; lastly, 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, among other authorities, Levages Prestations Services v. France, 23 October 1996, § 40, Reports of Judgments and Decisions 1996‑V citing Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93; Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, § 59, Series A no. 316‑B and Stanev v. Bulgaria [GC], no. 36760/06, § 230, ECHR 2012). 46.", "The Court observes that the applicant was unable to contest before the domestic courts the lawfulness of the President’s Decree of 30 April 2004 dismissing her from her post within the judiciary, which was adopted on the basis of the recommendation of the Council of Justice. It further observes that although individuals enjoyed the right to seek the annulment of unlawful acts of public authorities in accordance with the provisions of Article 15 § 1 of the Civil Code and Article 159 of the CCP, because of the way the ordinary courts interpreted and applied the second sentence of the first paragraph of Article 160 of the CCP, it was their practice not to examine claims against the acts of certain public bodies and officials listed in Article 100 of the Constitution and Article 15 § 2 of the Civil Code, including the decrees of the President. 47. In line with this general practice which existed at the relevant time, the courts refused to examine the applicant’s claim against the Presidential Decree of 30 April 2004, notwithstanding the fact that she sought to dispute its unlawfulness as distinct from its compliance with the Constitution, the determination of the latter issue being within the exclusive competence of the Constitutional Court to which, in any event, the applicant had no right of access. 48.", "In such circumstances, and given the lack of access to the Constitutional Court for individuals at the material time, the applicant was completely denied access to any court or to any other competent body satisfying the requirements of Article 6 of the Convention in order to dispute the Presidential Decree concerning the early termination of her term of office. 49. The Court finally notes that by its decision of 16 November 2006, the Constitutional Court found the second paragraph of Article 160 § 1 of the CCP to be unconstitutional since, due to the way it was interpreted and applied by the courts, namely that with reference to it the courts of general jurisdiction would systematically refuse to review the lawfulness of the acts of certain public bodies and officials, this provision endangered, inter alia, the implementation of an individual’s right to judicial protection. This fact, however, does not have any bearing on the present case. 50.", "In view of the foregoing, the Court finds that the restriction imposed in the present case by the application of the second paragraph of Article 160 § 1 of the CCP, in limiting any judicial review of the Presidential Decree concerning the applicant’s dismissal from office, impaired the very essence of her “right to a court”. Having regard to this finding, the Court does not consider it necessary to examine whether the limitation of the applicant’s right of access to court pursued a legitimate aim and whether it was proportionate to any such aim. 51. There has accordingly been a violation of Article 6 § 1 of the Convention. II.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 52. Lastly, the applicant raised a number of other complaints under Article 6 of the Convention. 53. Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 54. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 55. The applicant claimed compensation for loss of income totalling 25,184,000 Armenian drams (AMD) (approximately 43,760 euros (EUR), including the salary of a judge, a salary premium and a supplemental allowance for working in a mountainous zone, in respect of pecuniary damage.", "She also claimed compensation for the distress and suffering caused by her unexpected dismissal from the judiciary which had heavily damaged her reputation and resulted in the deterioration of her health. The applicant left the determination of the amount of compensation for non‑pecuniary damage to the discretion of the Court. 56. The Government claimed that there was no causal link between the violation alleged and the pecuniary and non-pecuniary damage claimed. 57.", "The Court does not discern any causal link between the violation found concerning the lack of access to a court and the pecuniary damage alleged. Consequently, there is no justification for making any award under this head. The Court accepts that the applicant has suffered non‑pecuniary damage, such as distress and frustration, resulting from her inability to dispute the lawfulness of her dismissal, which is not sufficiently redressed by the finding of a violation of the Convention. Making its assessment on an equitable basis, the Court awards the applicant EUR 3,600 under this head. B.", "Costs and expenses 58. The applicant also claimed AMD 1,260,400 (EUR 2,350 at the time of conclusion of the agreement between the applicant and her representative) in reimbursement of legal costs incurred before the Court. The applicant submitted a contract for provision of legal services whereby she was bound to pay this sum only in the event of the Court finding in her favour and awarding her an amount in just satisfaction. She also submitted a detailed timesheet of legal services provided by her representative in relation to her application lodged with the Court. 59.", "The Government submitted that the applicant had not yet paid any amount to her lawyer and therefore the expenses claimed could not be considered to have been actually incurred. They further submitted that the expenses claimed by the applicant were not reasonable as to quantum. 60. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. 61.", "The Court notes that the applicant concluded an agreement with her representative concerning his fees which is comparable to a contingency fee agreement, an agreement whereby a lawyer’s client agrees to pay the lawyer, in fees, a certain percentage of the sum, if any, awarded to the litigant by the court. Such agreements may show, if they are legally enforceable, that the sums claimed are actually payable by the applicant (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 55, ECHR 2000‑XI; and Kamasinski v. Austria, 19 December 1989, § 115, Series A no. 168). 62.", "In the present case, the applicant agreed to pay her representative AMD 1,260,400 if the Court were to find a violation and award her just satisfaction. The Court notes that contingency agreements are enforceable under the Armenian law. In particular, the Advocacy Act does not set out any limitations on the type of agreement an advocate may enter into with his client, such agreements being regulated by the general provisions of the Civil Code, which states that the civil law is based, inter alia, on the principle of freedom of contract (see above, paragraphs 19 and 24). The Court, therefore, recognises the lawfulness of the arrangement entered into between the applicant and her representative, Mr Ghazaryan (contrast with Dudgeon v. the United Kingdom (Article 50), 24 February 1983, § 22, Series A no. 59).", "63. In the light of the above, the Court finds that the legal costs before the Court have been necessarily incurred in order to afford redress for the violation found. The Court reiterates, however, that legal costs are only recoverable in so far as they relate to the violation found (see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002). The Court notes that, in the present case, a violation of Article 6 was found only on one count, namely in respect of the lack of access to a court while the entirety of the written pleadings, including the initial application and the subsequent observations, concerned numerous other complaints under the same Article and also Article 13 of the Convention.", "Hence, the legal costs claimed by the applicant cannot be awarded in full as the Court has dismissed the applicant’s complaints in part. Regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,300 to cover the costs under this head. C. Default interest 64. 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 lack of access to a 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 from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Armenian drams at the rate applicable at the date of settlement: (i) EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,300 (one thousand three hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 20 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stephen PhillipsLuis López GuerraRegistrarPresident" ]

[ "SECOND SECTION CASE OF BATTISTA v. ITALY (Application no. 43978/09) JUDGMENT STRASBOURG 2 December 2014 FINAL 02/03/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Battista v. Italy, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Işıl Karakaş, President,Guido Raimondi,András Sajó,Nebojša Vučinić,Helen Keller,Egidijus Kūris,Robert Spano, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 4 November 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "43978/09) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr Alessandro Battista (“the applicant”), on 6 August 2009. 2. The applicant was represented by Mr A. Battista, a lawyer practising in Naples. The Italian Government (“the Government”) were represented by their Agent, Ms E. Spatafora. 3.", "On 11 April 2011 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1967 and lives in Naples. 5.", "While he was in judicial separation proceedings from his wife (D.L. ), a provisional residence order was issued to both parents in respect of the couple’s two children (G.L. and M.T.). 6. On 29 August 2007 the applicant asked the guardianship judge to issue him with a new passport, requesting that the name of his son, G.L., also be entered in it.", "His former wife objected, arguing that the applicant was not making the maintenance payments ordered by the president of the court at the time of the judicial separation. 7. By a decree of 18 September 2007, the guardianship judge rejected the applicant’s request, holding that it was inappropriate to issue the requested passport, given the imperative of protecting the children’s right to receive the maintenance payments. In this regard, he emphasised that the applicant, who was supposed to make a maintenance payment of 600 euros (EUR) per month, paid only a small amount (EUR 45 to 90) and that there was a risk that he would shirk his obligation completely if he were to travel abroad. 8.", "By a decision of 26 October 2007, the guardianship judge ordered that M.T.’s name be removed from the applicant’s passport. 9. On 31 October 2007 the Naples Police Commissioner (questore) ordered the applicant to hand in his passport to the police station and amended his identity card, making it invalid for foreign travel. 10. The applicant appealed to the Naples Court against the guardianship judge’s decision.", "He alleged that: – under the measures ordered by the president of the court at the time of the judicial separation, the children had been due to spend the period of 10 to 26 August, during the school holidays, with him; on that basis, he had planned to take them to Sicily by plane; however, this required that the names of his two children be included in his passport; – on account of his former wife’s objection and the guardianship judge’s decree, he and his children had been unable to go on holiday; – the children’s names were included in the mother’s passport; – the dismissal of his request amounted to a penalty that was not prescribed by law. 11. On 7 February 2008 the applicant asked the Naples guardianship judge to issue him with a new passport, explaining that his former wife had retained his identity card and his passport in the family home. 12. By a decree of 29 February 2008, the Naples guardianship judge dismissed the applicant’s request on the ground that he had not paid the maintenance sums due in respect of his children, and that it was to be feared that he was leaving the country only in order to evade his obligation entirely.", "The applicant also appealed against that decision to the Naples Court, alleging a breach of his right to freedom of movement. 13. By a decision of 5 February 2009, the Naples Court joined the appeals and dismissed them. The court noted, firstly, that the legal basis for the guardianship judge’s decision was Law no. 1185 of 21 November 1967, as amended by the Passports Act 2003 (Law no.", "3). 14. The court found that the guardianship judge did indeed have jurisdiction to rule on the applicant’s request for a passport and on the inclusion in it of his son’s name. As to the merits of the appeal, the court noted that the applicant was not complying with his obligation to pay maintenance and that this circumstance was one of the lawful grounds for refusing to issue a passport, in the children’s interests, in accordance with section 12 of the Passports Act. 15.", "On 4 November 2008 D.L. was ordered to pay a fine of EUR 100 for failing to bring the children to an appointment with the applicant. 16. By a decree of 8 April 2009, the guardianship judge issued D.L., at her request, with a passport in which the names of the two children were included. 17.", "On 21 August 2012 the applicant asked the Naples guardianship judge to issue individual passports to his children, in application of Legislative Decree no. 135 of 2009. 18. D.L. objected, arguing that the children did not need these passports; that the applicant had made no maintenance payments since 2007; and that, indeed, criminal proceedings were pending in that regard.", "19. By a decision of 3 October 2012, the guardianship judge rejected the applicant’s request. He considered that the proceedings for the separation of the applicant and D.L. were still pending and that, in the light of the considerations put forward by D.L., with whom the children resided, it was appropriate to stay any issue of passports to the children. The applicant did not appeal against that decision.", "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW 20. Law no. 1185 of 21 November 1967, as amended by the Passports Act 2003 (Law no. 3), provides: Section 3 “A passport cannot be delivered: (a) to children who are subject to parental authority, where the parents do not consent, or, in the absence of parental authority, where the guardianship judge does not consent; (b) to parents of minor children, in the absence of authorisation by the guardianship judge.", "Such authorisation shall not be necessary if consent has been given by the other parent, or if one of the two parents has sole custody... Section 12 A passport may be withdrawn from a person who is abroad and is unable to prove that he or she has made maintenance payments as ordered by a court decision in respect of his or her minor children...” 21. In practice, there are two exceptions in which a passport may nonetheless be issued: where the person concerned has shown the necessity for medical care in another country, or where he or she must travel abroad for professional reasons. 22. Legislative decree no.", "135 of 2009 made it obligatory for minor children to hold individual passports. Since 25 November 2009 it has therefore no longer been possible to include minor children on their parents’ passports. Entries made prior to that date remain valid, in accordance with the arrangements provided for in the legislation then in force. The validity of minor children’s passports varies depending on the child’s age: three years from children aged under three, and five years for children aged from three to eighteen. 23.", "Regulation (EC) no. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations proposes a series of measures aimed at facilitating the payment of maintenance claims in cross-border situations. 24. The Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance establishes a system of administrative cooperation between the authorities of the Contracting States and a system for the recognition and enforcement of maintenance decisions and agreements. 25.", "The New York Convention on the Recovery Abroad of Maintenance was adopted and opened for signature on 20 June 1956 by the United Nations Conference on Maintenance Obligations, convened pursuant to Resolution 572 (XIX) of the United Nations Economic and Social Council, adopted on 17 May 1955. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 TO THE CONVENTION 26. The applicant complained of an interference with his private life and his freedom of movement.", "In particular, he alleged that there was no statutory rule preventing parents who did not make maintenance payments from holding a passport or from having their children’s names added to it. He relied on Article 2 of Protocol No. 4 to the Convention, 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. 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.” 27.", "The Government contested the applicant’s arguments. A. Admissibility 28. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. The parties’ submissions 29. The applicant submitted that there was no legal basis for the authorities’ refusal to issue him with a passport. In particular, he argued that he had never been convicted for a violation of the obligations to assist one’s family (violazione degli obblighi di assistenza familiare), an offence punishable under Article 570 of the Criminal Code, and that no court had convicted him for failure to pay the sums due in maintenance.", "He also submitted that he had no criminal record. 30. The Government pointed out that Article 16 of the Constitution provided that the freedom of a citizen to leave the territory of the Republic was subject to compliance with the obligations provided for law. 31. They further considered that the interference in the applicant’s right was specifically provided for by law, namely section 3 (a) and (b) of Law no.", "1185 of 1967, and explained that it was intended to protect the children: it was intended to ensure that the applicant made his maintenance payments and to prevent the commission of an offence. In the Government’s opinion, this interference met the criterion of being “necessary in a democratic society”, especially in the light of the Court’s case-law on unpaid debts. 32. In this connection, the Government pointed out that the Naples Court had decided to transmit its decision of 22 October 2008 to the public prosecutor, in order to establish whether a judicial investigation could be opened for a violation of the obligations to assist one’s family, an offence punishable under Article 570 of the Criminal Code. 33.", "The Government indicated that the Constitutional Court, in its judgment no. 464 of 1997, had stated that the essence of the relevant section of Law no. 1185 of 1967 was “to ensure that the parent fulfils his or her obligations towards his or her children”. They added that, under the Court of Cassation’s case-law, the guardianship judge’s decision in this area was a measure of “non-contentious proceedings”, that is, it was not intended to settle a conflict between the parents’ subjective rights in a final manner. 34.", "The Government referred to the Court’s case-law on restrictions on freedom of movement in situations involving pending criminal trials, bankruptcy or violations of obligations with regard to military service. 2. The Court’s assessment 35. The Court observes at the outset that the present case raises a novel issue, in that it has not previously had occasion to consider measures restricting the freedom to leave a country on account of the existence of particularly significant debts to a third party, such as maintenance payments. 36.", "In previous cases examined under Article 2 of Protocol No. 4, the Court or the former European Commission of Human Rights considered such bans imposed in connection with, for example: – pending criminal proceedings (see Schmidt v. Austria, no. 10670/83, Commission decision of 9 July 1985, Decisions and Reports (DR) 44, p. 195; Baumann v. France, no. 33592/96, ECHR 2001‑V; Földes and Földesné Hajlik v. Hungary, no. 41463/02, ECHR 2006‑XII; Sissanis v. Romania, no.", "23468/02, 25 January 2007; Bessenyei v. Hungary, no. 37509/06, 21 October 2008; A.E. v. Poland, no. 14480/04, 31 March 2009; Iordan Iordanov and Others v. Bulgaria, no. 23530/02, 2 July 2009; Makedonski v. Bulgaria, no.", "36036/04, 20 January 2011; Pfeifer v. Bulgaria, no. 24733/04, 17 February 2011; Prescher v. Bulgaria, no. 6767/04, 7 June 2011; and Miażdżyk v. Poland, no. 23592/07, 24 January 2012); – enforcement of criminal sentences (see M. v. Germany, no. 10307/83, Commission decision of 6 March 1984, DR 37, p. 113); – the criminal conviction of the applicant, until such time as he had been rehabilitated (see Nalbantski v. Bulgaria, no.", "30943/04, 10 February 2011); – pending bankruptcy proceedings (see Luordo v. Italy, no. 32190/96, ECHR 2003‑IX); – refusal to pay customs penalties (see Napijalo v. Croatia, no. 66485/01, 13 November 2003); – failure to pay taxes (see Riener v. Bulgaria, no. 46343/99, 23 May 2006); – failure to pay judgment debts to private persons (see Ignatov v. Bulgaria, no. 50/02, 2 July 2009; Gochev v. Bulgaria, no.", "34383/03, 26 November 2009; and Khlyustov v. Russia, no. 28975/05, 11 July 2013); – knowledge of “State secrets” (see Bartik v. Russia, no. 55565/00, ECHR 2006‑XV); – failure to comply with military service obligations (see Peltonen v. Finland, no. 19583/92, Commission decision of 20 February 1995, DR 80‑A, p. 38, and Marangos v. Cyprus, no. 31106/96, Commission decision of 20 May 1997, unpublished); – mental illness of the person concerned, coupled with a lack of arrangements for appropriate care in the destination country (see Nordblad v. Sweden, no.", "19076/91, Commission decision of 13 October 1993, unpublished); – court orders prohibiting minor children from being removed to a foreign country (see Roldan Texeira and Others v. Italy (dec.), no. 40655/98, 26 October 2000, and Diamante and Pelliccioni v. San Marino, no. 32250/08, 27 September 2011); – ban prohibiting a Bulgarian from leaving the territory of Bulgaria for two years on account of breaches of the immigration laws of the United States (see Stamose v. Bulgaria, no. 29713/05, ECHR 2012). The Court considers that in spite of the differences between those cases and the present case, the principles laid down in them are also applicable here.", "37. Article 2 § 2 of Protocol No. 4 guarantees to any person the right to leave any country for any other country of that person’s choice to which he or she may be admitted. The domestic courts’ refusal to issue the applicant with a passport and the decision to invalidate his identity card for foreign travel constituted an interference with that right (see the decision in Peltonen, cited above, p. 43, and the above-cited judgments in Baumann, §§ 62-63; Napijalo, §§ 69-73; and Nalbantski, § 61). It must therefore be determined whether that interference was “in accordance with law”, pursued one or more of the legitimate aims set out in Article 2 § 3 of Protocol No.", "4, and whether it was “necessary in a democratic society” for the achievement of such an aim. 38. With regard to the lawfulness of the measure, the Court reiterates its settled case-law according to which the expression “in accordance with law” not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V). In order for the law to meet the criterion of foreseeability, it must set forth with sufficient precision the conditions in which a measure may be applied, to enable the persons concerned – if need be, with appropriate advice – to regulate their conduct.", "39. As the Government have emphasised, the interference was based on section 12 of the Passports Act 1967 (Law no. 1185 of 21 November 1967), as amended by Law no. 3 of 2003, regard being had to the fact that the applicant was failing to make the maintenance payments which he was required to pay for his children. The interference thus clearly had a legal basis in national law.", "In this regard, the Court also notes that the Constitutional Court, in its judgment no. 464 of 1997, stated that the essence of the relevant section of Law no. 1185 of 1967 is to “to ensure that the parent fulfils his or her obligations towards his or her children”. 40. The Court also considers that the imposition of the impugned measure was intended to guarantee the interests of the applicant’s children and that in principle it pursued a legitimate aim, namely the protection of the rights of others – in the present case, the children’s right to receive the maintenance payments.", "41. With regard to the proportionality of a restriction imposed on account of unpaid debts, the Court reiterates that such a measure is justified only so long as it furthers the pursued aim of guaranteeing recovery of the debts in question (see Napijalo, cited above, §§ 78 to 82, 13 November 2003). Furthermore, even were it justified at the outset, a measure restricting an individual’s freedom of movement may become disproportionate and breach that individual’s rights if it is automatically extended over a long period (see Luordo, cited above, § 96, ECHR 2003-IX, and Földes and Földesné Hajlik, cited above, § 35). 42. In any event, the domestic authorities are under an obligation to ensure that a breach of an individual’s right to leave his or her country is, from the outset and throughout its duration, justified and proportionate in view of the circumstances.", "They may not extend for long periods measures restricting an individual’s freedom of movement without regular re-examination of their justification (see Riener, cited above, § 124, and Földes and Földesné Hajlik, cited above, § 35). Such review should normally be carried out, at least in the final instance, by the courts, since they offer the best guarantees of the independence, impartiality and lawfulness of the procedures (see Sissanis v. Romania, no. 23468/02, § 70, 25 January 2007). The scope of the judicial review should enable the court to take account of all the factors involved, including those concerning the proportionality of the restrictive measure (see, mutatis mutandis, Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 60, Series A no. 43).", "43. Turning to the circumstances of the present case, the Court notes that the applicant has not had a passport or an identity card which is valid for foreign travel since 2008. It notes that he was refused a passport or an identity card which was valid for foreign travel on account of failure to make maintenance payments. The domestic courts (see paragraphs 11-12 above) emphasised that the applicant had not made the required maintenance payments in respect of his children, and that there was a risk that he would make no further payments if he travelled abroad. 44.", "As shown by the documents in the case file, and especially the relevant domestic decisions, the national courts did not consider it necessary to examine the applicant’s personal situation or his ability to pay the amounts due, and applied the impugned measure automatically. There seems to have been no attempt to balance the rights at stake. The only factor taken into consideration was the property interests of the maintenance recipients. 45. Moreover, the Court notes that there has been civil-law cooperation at European and international level on the issue of the recovery of maintenance payments.", "It points out that there exist methods for obtaining recovery of debts outside national boundaries, in particular Council Regulation (EC) no. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, and the New York Convention on the Recovery Abroad of Maintenance. Those instruments were not taken into account by the authorities when applying the impugned measure. They had merely emphasised that the applicant could have travelled abroad using his passport and thus succeeded in evading his obligation. 46.", "The Court further observes that, in the present case, the restriction imposed on the applicant did not ensure payment of the sums due in maintenance. 47. Accordingly, it considers that the applicant was subjected to measures of an automatic nature, with no limitation as to their scope or duration (see Riener, cited above, § 127). In addition, the domestic courts have not carried out any fresh review of the justification for and proportionality of the measure, having regard to the circumstances of the case, since 2008. 48.", "In the light of the foregoing, the Court does not consider that the automatic imposition of such a measure for an indeterminate period without any regard to the individual circumstances of the person concerned can be described as necessary in a democratic society. 49. It follows that there has been a violation of Article 2 of Protocol No. 4. II.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 50. The applicant alleged that the refusal to issue him with a passport amounted to interference with his right to respect for his private life as guaranteed by Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 51.", "The Court notes that this complaint, as put to it by the applicant, is closely linked to the complaint under Article 2 of Protocol No. 4, examined above, and must likewise be declared admissible. 52. Having regard to its conclusions under Article 2 of Protocol No. 4 (see paragraphs 48 and 49 above), the Court does not consider it necessary to examine it separately.", "III. OTHER ALLEGED VIOLATIONS 53. The applicant alleged that the mother of his children received preferential treatment in that, unlike him, she had been able to have the children’s names entered on her passport, a fact which, he submitted, was in breach of Article 5 of Protocol No. 7 to the Convention. 54.", "The Court notes at the outset that the applicant has failed to substantiate this complaint. In so far as it raises a separate issue from that examined above and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention. Accordingly, it declares this complaint inadmissible. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 55.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 56. The applicant claimed EUR 30,000 in respect of the non-pecuniary damage that he alleged he had sustained, on his own behalf and on behalf of his children, as a result of the fact that it was impossible to travel abroad. 57. The Government contested this claim.", "They considered that the amount claimed was, in any event, excessive and that it did not correspond to the criteria used by the Court. 58. The Court considers it appropriate to award the applicant EUR 5,000 in respect of non-pecuniary damage. B. Costs and expenses 59.", "The applicant also claimed EUR 20,000 for the costs and expenses incurred before the domestic courts and before the Court, without however submitting any supporting documents. 60. The Government considered this sum excessive and submitted that the applicant had not shown that the alleged costs and expenses had been necessary and reasonable. 61. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "In the present case, noting that the applicant did not produce any documents in support of his claims, the Court decides not to award any sum under this head. C. Default interest 62. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, 1. Declares, unanimously, the application admissible in respect of the complaints under Article 2 of Protocol No.", "4 to the Convention and Article 8 of the Convention; 2. Declares by a majority, the remainder of the application inadmissible; 3. Holds, unanimously, that there has been a violation of Article 2 of Protocol No. 4 to the Convention; 4. Holds, unanimously, that there is no need to examine the complaint under Article 8 of the Convention; 5.", "Holds, unanimously, (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses, by six votes to one, the remainder of the applicant’s claim for just satisfaction. Done in French, and notified in writing on 2 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel Campos Işıl KarakaşDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the statement of dissent of Judge Kūris is annexed to this judgment. A.I.K.A.C.", "STATEMENT OF DISSENT BY JUDGE KŪRIS I voted against points 2 and 6 of the operative part of the judgment. In my opinion, the issue touched upon in paragraphs 53 and 54 of the judgment merits scrutiny under Article 5 of Protocol No. 7 to the Convention. Consequently, this part of the application should have been declared admissible." ]

[ "FOURTH SECTION CASE OF BAŃCZYK AND SZTUKA v. POLAND (Application no. 20920/09) JUDGMENT STRASBOURG 13 November 2012 This judgment is final. It may be subject to editorial revision. In the case of Bańczyk and Sztuka v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: George Nicolaou, President,Ledi Bianku,Vincent A. De Gaetano, judges,and Fatos Aracı, Deputy Section Registrar, Having deliberated in private on 23 October 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 20920/09) 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 two Polish nationals, Mr Józef Bańczyk and Mr Jan Sztuka (“the applicants”), on 10 April 2009. 2. The applicants were represented by Mr T. Gurbierz, a lawyer practising in Raciborz. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.", "3. On 13 January 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 THE CIRCUMSTANCES OF THE CASE 4. The applicants Mr Józef Bańczyk and Mr Jan Sztuka were born in 1941 and in 1974 respectively and live in Bienkowice.", "A. Criminal proceedings against R.H., M.O., J.R. and M.B. (case no. II K 815/03) 5. On 24 November 2003 the prosecution lodged a bill of indictment with the Kędzierzyn-Koźle District Court (Sąd Rejonowy).", "R.H., M.O., J.R. and M.B were charged with fraud and embezzlement. 6. On an unspecified date between 17 December 2003 and 10 March 2004 the applicants joined the proceedings as a civil party and lodged a claim for compensation against the defendants (powództwo adhezyjne). 7. The bill of indictment was only read out on 14 September 2005.", "In the following years 8 hearings were adjourned or cancelled due to various reasons (the health problems of one of the accused, illness of a defence lawyers, maternity leave of one of the trial judges, etc.). 8. On 14 September 2011 the Kędzierzyn-Koźle District Court acquitted M.O., J.R. and M.B of all charges. On the same date the court discontinued the proceedings in respect of R.H., who had died in April 2011. As regards the applicants’ civil claims, they were left without examination.", "9. On 19 January 2012 the applicants appealed against the first-instance judgment. 10. On 12 June 2012 the Opole Regional Court upheld the challenged judgment. B.", "Proceedings under the 2004 Act (case no. VI S 21/09) 11. On 14 April 2009 the applicants lodged with the Opole Regional Court a complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). 12. On 15 June 2009 the Opole Regional Court dismissed the applicant’s complaint stating that there were no significant periods of unjustified inactivity for which the Kędzierzyn-Koźle District Court had been responsible.", "The court held that the case no. II K 815/03 was a complex one. There were four co-accused, who faced numerous charges. 136 witnesses needed to be heard. Furthermore, the duration of proceedings was extended due to R.H.’s health problems, which necessitated many hearings to be postponed, and due to a maternity leave of one of the trial judges.", "THE LAW I. THE GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION 13. On 9 May 2012 the Government submitted a unilateral declaration similar to that in the case Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, ECHR 2003-VI) and informed the Court that they were ready to accept that there had been a violation of the applicants’ rights under Article 6 § 1 of the Convention as a result of the unreasonable length of the proceedings in which the applicants had been involved. In respect of non-pecuniary damage, the Government proposed to award each of the applicants PLN 18,000 (the equivalent of approx.", "EUR 4,400). The Government invited the Court to strike the application out of its list of cases in accordance with Article 37 of the Convention. 14. The applicants did not agree with the Government’s proposal and requested the Court to continue the examination of the case. They maintained that the amount offered was too low.", "15. The Court observes that, as it has already held on many occasions, it may be appropriate under certain circumstances to strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government even if the applicant wishes the examination of the case to be continued. It will depend on the particular circumstances whether the unilateral declaration offers a sufficient basis for finding that respect for human rights as defined in the Convention and its Protocols does not require the Court to continue its examination of the case (see Tahsin Acar, cited above, § 75; and Melnic v. Moldova, no. 6923/03, § 22, 14 November 2006). 16.", "According to the Court’s case-law, the amount proposed in a unilateral declaration may be considered a sufficient basis for striking out an application or part thereof. The Court will have regard in this connection to the compatibility of the amount with its own awards in similar length of proceedings cases, bearing in mind the principles which it has developed for determining victim status and for assessing the amount of non-pecuniary compensation to be awarded where it has found a breach of the reasonable‑time requirement (see Cocchiarella v. Italy [GC], no. 64886/01, §§ 85‑107, ECHR 2006‑...,; Scordino v. Italy (no.1) [GC], no. 36813/97, §§ 193-215, ECHR-2006-...; and Dubjakova v. Slovakia (dec.), no. 67299/01, 10 October 2004).", "17. On the facts and for the reasons set out above, in particular the amount of compensation proposed, the Court finds that the Government have failed to provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the case (see, conversely, Spółka z o.o. WAZA v. Poland (striking out), no. 11602/02, 26 June 2007). 18.", "This being so, the Court rejects the Government’s request to strike the application out of its list of cases under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS 19. 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...” 20. The Government refrained from submitting observations on the admissibility and merits of the complaint.", "21. The period to be taken into consideration began on 10 March 2004 at the latest and ended on 12 June 2012 when the second-instance judgment was given. It thus lasted eight years and four months for two levels of jurisdiction. A. Admissibility 22. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 23. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no.", "30979/96, § 43, ECHR 2000-VII). 24. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). Furthermore, the Court considers that, by not taking into account the overall period of the proceedings, the Łódź Court of Appeal failed to apply standards which were in conformity with the principles embodied in the Court’s case-law (see Majewski v. Poland, no. 52690/99, § 36, 11 October 2005).", "25. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 26. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 27. The applicants’ lawyer claimed 65,867.89 zlotys (PLN) for Jan Sztuka and PLN 99,347.88 for Józef Bańczyk in respect of pecuniary damage and PLN 30,000 for each applicant in respect of non-pecuniary damage. 28.", "The Government did not express an opinion on the matter. 29. 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 that the applicants must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards each of them EUR 7,500 under that head.", "B. Costs and expenses 30. In the applicants’ claims for pecuniary damage some claims for costs and expenses were included. They each claimed, in particular PLN 100 for the court fees they had to pay for their length complaint lodged under the 2004 Act, PLN 200 for the costs of translation of some documents submitted to the Court and PLN 7,000 as costs they had to incur to go on numerous occasions from their domicile to the trial court. The applicants’ lawyer also produced two invoices for “legal service” for PLN 2,952 and PLN 4,428.", "However, he made no particular claim in this respect; in particular it is unknown whether this invoice concerns the applicants’ representation before the domestic courts or before the Court. 31. The Government did not express an opinion on the matter. 32. 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 each of the applicants the sum of EUR 500 under this head. C. Default interest 33. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Rejects the Government’s request to strike the application out of its list of cases; 2.", "Declares the application admissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds (a) that the respondent State is to pay to each of the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 7,500 (seven 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 to the applicants, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses unanimously the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 13 November 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Fatoş AracıGeorge Nicolaou Deputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF HORVÁTHOVÁ v. SLOVAKIA (Application no. 74456/01) JUDGMENT STRASBOURG 17 May 2005 FINAL 12/10/2005 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Horváthová v. Slovakia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrG. Bonello,MrK.", "Traja,MrS. Pavlovschi,MrL. Garlicki,MsL. Mijović,MrJ. Šikuta, judges,and Mr M. O’Boyle, Section Registrar, Having deliberated in private on 26 April 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 74456/01) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovakian national, Mrs Mária Horváthová (“the applicant”), on 5 September 2001. 2. The applicant was represented by Ms Z. Kupcová, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mr P. Kresák, succeeded by Ms A. Poláčková.", "3. On 8 April 2004 the President of the Chamber decided to give priority treatment to the application in accordance with Rule 41 of the Rules of Court. 4. On 7 September 2004 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the length of the proceedings and the lack of an effective remedy in that respect to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the remainder of the application at the same time.", "THE FACTS THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1950 and lived in Bratislava. She committed suicide on 28 September 2004. On 25 October 2004 the applicant’s heirs, Ms V. Čillíková (the sister of the applicant) and Mr J. Bôbik (the applicant’s brother) informed the Court of their wish to pursue the application in the applicant’s stead. 1.", "Enforcement proceedings brought on 1 March 2000 6. By a decision which became final on 28 January 1998 the applicant’s and her former husband’s joint tenancy in respect of a flat was terminated. The Bratislava Regional Court decided that the applicant’s former husband should remain the sole tenant of the flat and ordered the applicant to move out of it within fifteen days after she has been provided with alternative accommodation. In the reasons for the judgment the Regional Court explicitly held that the applicant was entitled to use the flat until her former husband found appropriate accommodation for her. However, her former husband did not allow the applicant to enter the flat.", "She was therefore obliged to temporarily stay at different places including her sister’s flat. 7. On 1 March 2000 the applicant requested the Bratislava IV District Court to enforce the above judgment. 8. On 18 January 2002 the President of the Bratislava Regional Court admitted, in reply to the applicant’s complaint, that the case had not been proceeded with effectively between 1 March 2000 and 10 January 2002.", "9. On 9 December 2002, on 16 and 31 January 2003, on 31 March 2003 and on 28 April 2003 the Bratislava IV District Court adjourned the case as the applicant’s former husband failed to appear. The judge had unsuccessfully attempted to have the defendant brought by the police to the hearings held between January and April 2003. According to the applicant, those attempts were unsuccessful also due to the fact that the court had incorrectly indicated the address of the defendant’s employer to the police. 10.", "A hearing was held on 26 May 2003. Both parties attended. The defendant challenged the District Court judge. 11. On 6 October 2003 the Bratislava Regional Court decided on the request for exclusion of the District Court judge.", "The decision was served on the defendant on 28 November 2003. 12. A hearing scheduled for 4 March 2004 was adjourned as the District Court judge was ill. 13. On 22 April 2004 the applicant filed an enforcement request under a different provision of the Code of Civil Procedure under which a court can, where possible, authorise the person seeking the enforcement of a judicial decision to have a service carried out by a third person at the expense of the debtor. She also withdrew the authority of her lawyer.", "14. On 22 July 2004 the Bratislava IV District Court dismissed the applicant’s request for enforcement of 1 March 2004. The decision stated that the judgment to be enforced did not explicitly order the defendant to put accommodation at the applicant’s disposal within a specific time-limit. On 24 September 2004 the applicant appealed. In January 2005 the applicant’s lawyer informed the Court that the proceedings were still pending before the Bratislava Regional Court.", "2. Proceedings before the Constitutional Court 15. On 8 April 2002 the applicant filed a complaint about delays in the proceedings pursuant to Article 127 of the Constitution. She also claimed 200,000 Slovakian korunas (SKK) as just satisfaction. 16.", "On 10 July 2002 the Constitutional Court found that the applicant’s right to a hearing without undue delay guaranteed by Article 48(2) of the Constitution and by Article 6 § 1 of the Convention had been violated. The Constitutional Court held that the case was not complex and that no delays could be imputed to the applicant’s conduct. It noted that the only action taken by the Bratislava IV District Court had been a request that the applicant pay the court fee dated 16 November 2001. 17. The Constitutional Court granted the applicant SKK 18,000[1] as just satisfaction.", "The decision stated that the amount was determined on an equitable basis with regard to the particular circumstances of the case according to the practice of the European Court of Human Rights under Article 41 of the Convention. Its purpose was to attenuate the non-pecuniary damage sustained by the applicant. The sum was to be paid by the Bratislava IV District Court within two months after the Constitutional Court’s decision became final. In the decision the Constitutional Court also ordered the Bratislava IV District Court to proceed with the applicant’s case without further delay. The decision became final on 12 August 2002.", "18. On 28 October 2002 the applicant filed a new complaint with the Constitutional Court. She alleged a violation of her right to a hearing within a reasonable time in that the Bratislava IV District Court had failed to proceed with the case without delay. She further alleged a violation of her right to a fair hearing within a reasonable time and of her property rights in that the District Court had not paid the sum to her as ordered by the Constitutional Court’s decision of 10 July 2002. 19.", "On 29 January 2003 the Constitutional Court dismissed the applicant’s second complaint. It found that the applicant had, in separate proceedings, requested the enforcement of the sum granted to her and that it therefore could not examine her complaints in that respect. The Constitutional Court further held that, following the final effect of its first finding on 12 August 2002, there had been a delay of more than two months in the enforcement proceedings brought in 2000. However, the overall length of the period under consideration, that is after the delivery of the first finding of the Constitutional Court, was not excessive in the particular circumstances of the case. 3.", "Other relevant facts 20. As the sum granted to her by the Constitutional Court’s finding of 10 July 2002 was not paid to her, the applicant requested that that sum be enforced on 19 November 2002. 21. On 17 December 2002 the District Court paid the sum indicated in the Constitutional Court’s decision to the applicant. 22.", "On 4 June 2003 and on 17 July 2003 the applicant complained to the police that her former husband had denied her access to the flat in which she was entitled to live. The police found that the conduct of the applicant’s former husband could be qualified as a minor offence and transferred the case to the Bratislava IV District Office. The applicant unsuccessfully complained about the way in which the police had dealt with the case to public prosecutors at two levels. 23. On 24 September 2003 the applicant asked the Bratislava IV District Office to order her former husband not to disturb her in her right to use the flat in question.", "On 29 December 2003 the Bratislava IV District Office set the case aside. The decision stated that the administrative authority could not deal with it as (i) enforcement proceedings on the point at issue were pending before the District Court and (ii) the Bratislava IV police department were dealing with criminal complaints which the applicant and her former husband had filed against each other and on which no final decision had yet been taken. 24. On 24 October 2003 the applicant claimed compensation for pecuniary damage from the Ministry of Justice before the Bratislava IV District Court. She relied on the State Liability Act of 1969 and on the Constitutional Court’s finding of 10 July 2002 and claimed a sum corresponding to the rent for the flat in which she had the right to live and which she could not use.", "After the applicant’s death her siblings expressed the wish to join the proceedings as plaintiffs in her stead. The proceedings are pending. THE LAW I. AS TO THE LOCUS STANDI OF Ms ČILLÍKOVÁ and Mr BÔBIK 25. The applicant’s siblings, Ms Čillíková and Mr Bôbik expressed the wish to pursue the application following the death of their sister.", "They explained that they were the only heirs of the applicant and that they had provided accommodation to the applicant who had had no stable place to live since 1998. As a result, they had partially experienced the harm which the applicant had suffered due to the protracted length of proceedings under consideration. 26. The Court recalls that in a number of cases in which an applicant died in the course of the proceedings it has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings before the Court. It has done so most frequently in cases which primarily involved pecuniary, and, for this reason, transferable claims.", "However, the question whether such claims are transferable to the persons seeking to pursue an application is not the exclusive criterion. In fact, human rights cases before the Court generally also have a moral dimension and persons near to an applicant may have a legitimate interest in seeing to it that justice is done even after the applicant’s death (see, with further references, Karner v. Austria, no. 40016/98, §§ 22 and 25, ECHR 2003‑IX and Mihailov v. Bulgaria (dec.), no. 52367/99, 9 September 2004). 27.", "Having regard to the particular circumstances of the case, the Court accepts that the applicant’s heirs have a legitimate interest in pursuing the application in the late applicant’s stead. It will therefore continue dealing with the case at their request. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 28. 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...” 29.", "The Government admitted, with reference to the above finding of the Constitutional Court, that there had been undue delays in the proceedings. They argued, however, that the applicant could no longer be considered as a victim as the Constitutional Court had afforded appropriate redress to her. 30. The applicant and her heirs disagreed with the Government’s objection and maintained, in particular, that the just satisfaction granted by the Constitutional Court was disproportionately low. 31.", "The period to be taken into consideration began on 1 March 2000 and has not yet ended. It has thus lasted for more than 5 years and 1 month at two levels of jurisdiction. A. Admissibility 32. As to the Government’s argument that the applicant could not be considered as a victim, the Court recalls that an applicant’s status as a victim within the meaning of Article 34 of the Convention depends, inter alia, on whether the redress afforded at domestic level on the basis of the facts about which he or she complains before the Court was adequate and sufficient having regard to the awards of just satisfaction provided for under Article 41 of the Convention. While there is no requirement under the existing case-law that the domestic authorities should award the same sum by way of compensation as the Court would be likely to award under Article 41 of the Convention, the level of just satisfaction granted at national level must nevertheless not be manifestly inadequate in the particular circumstances of the case (see Jensen and Rasmussen v. Denmark (dec.), no.", "52620/99, 20 March 2003 and Bako v. Slovakia (dec.), no. 60227/00, 15 March 2005). 33. In the present case the Constitutional Court awarded the applicant the equivalent of approximately EUR 450 as just satisfaction for the violation of her constitutional right to a hearing without unjustified delay. Having regard to its case-law and the particular circumstances of the case, the Court finds that this sum is not sufficient to deprive the applicant of the status of a victim for the purpose of Article 34 of the Convention.", "The Government’s objection must therefore be dismissed. 34. The Court further notes that the application is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 35. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities 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). 36. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).", "37. Having examined all the material submitted to it, the Court finds no argument capable of persuading it to reach a different conclusion in the present case. Having regard to what was at stake for the applicant and to its case-law on the subject, the Court considers that in the instant case the length of the proceedings has been excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. III.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 38. Lastly, the applicant complained that she had no effective remedy at her disposal as regards her complaint under Article 6 § 1 of the Convention. She relied on Article 13 of the Convention which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 39. The Government submitted that the applicant had an effective remedy at her disposal, namely a complaint under Article 127 of the Constitution. 40.", "The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 41. The applicant was able to obtain partial redress before the Constitutional Court which found a violation of Article 6 § 1, granted the applicant a certain sum as just satisfaction and ordered the ordinary court concerned to proceed with the case without further delay. In these circumstances, and having regard to its above finding under Article 6 § 1 of the Convention, the Court finds that it is not necessary to examine separately the applicant’s complaint under Article 13 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 42. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 43. The heirs of the applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage. 44.", "The Government contested the claim. 45. The Court notes that the applicant was able to obtain only partial reparation at domestic level. Ruling on an equitable basis, it awards the applicant’s heirs the global sum of EUR 4,000 in respect of non-pecuniary damage sustained by the applicant. B.", "Costs and expenses 46. The applicant’s heirs also claimed EUR 500 for the costs and expenses incurred before the domestic courts and the Court. 47. The Government contested the claim. 48.", "The Court notes that the applicant was represented by a lawyer and awards the sum claimed under this head in full. 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. Holds that the applicant’s heirs have standing to continue the present proceedings in her stead; 2.", "Declares the remainder of the application admissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds that a separate examination of the complaint under Article 13 of the Convention is not called for; 5. Holds (a) that the respondent State is to pay the applicant’s heirs, 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) in respect of non-pecuniary damage and EUR 500 (five hundred euros) in respect of costs and expenses, the above sums 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; 6. Dismisses the remainder of the claim for just satisfaction.", "Done in English, and notified in writing on 17 May 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O’BoyleNicolas BratzaRegistrarPresident [1] The equivalent of approximately 450 euros." ]

[ "FIRST SECTION CASE OF AGANIKYAN v. ARMENIA (Application no. 21791/12) JUDGMENT STRASBOURG 5 April 2018 This judgment is final but it may be subject to editorial revision. In the case of Aganikyan v. Armenia, The European Court of Human Rights (First Section), sitting as a Committee composed of: Aleš Pejchal, President,Armen Harutyunyan,Jovan Ilievski, judges, and Renata Degener, Deputy Section Registrar, Having deliberated in private on 13 March 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 21791/12) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an American national, Mr Hrayr Aganikyan (“the applicant”), on 2 April 2012.", "2. The applicant was represented by Mr A. Ghazaryan, a lawyer practising in Yerevan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Government of Armenia to the European Court of Human Rights. 3. On 16 November 2016 the complaint concerning the length of the proceedings was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.", "THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1953 and lives in Yerevan. 5. On 30 December 2004 an investigator decided to institute criminal proceedings in connection with alleged usury by the applicant, proscribed by Article 213 § 1 of the Criminal Code (“the CC”). 6.", "On 10 January 2005 the Kentron and Nork-Marash District Court of Yerevan ordered a search of the applicant’s apartment. 7. On 20 June 2005 the applicant was formally charged under Article 213 § 2 (1) and (2) of the CC with performing usury as a profession which resulted in dire financial consequences for the injured parties. On the same day the investigator decided, as a preventive measure, to have the applicant give a written undertaking not to leave his place of residence. 8.", "On 23 June 2005 the investigator decided to confiscate for security the applicant’s property. 9. On 10 August 2005 the investigator sent the bill of indictment to the Kentron and Nork-Marash district prosecutor (“the prosecutor”) for approval but on 15 August 2005 the prosecutor refused to approve it and returned the case to the investigator for further investigation. 10. On 15 October 2005 the investigator initiated another set of criminal proceedings, under Article 178 § 2 (2) of the CC, concerning the acquisition of property rights through fraud by the applicant.", "On the same day this case was merged with the case on usury. 11. On 8 and 29 December 2005 respectively the investigator ordered forensic handwriting examinations to be conducted. The results of these examinations were received on 13 and 20 January 2006 respectively. 12.", "On 7 March 2006 the investigator decided to amend the applicant’s charges and to bring new charges against him under Article 178 §§ 2 (2) and 3 (1), Article 182 § 3 (2), Article 213 § 2 (1) and (2), and Article 349 § 1 of the CC on account of fraud in large and particularly large amounts, extortion in particularly large amounts, usury performed as a profession which resulted in dire financial consequences for the injured parties, and forgery of evidence. 13. On the same date the investigator lodged an application with the Kentron and Nork-Marash District Court of Yerevan, seeking to have the applicant detained for a period of two months, which was rejected by the District Court. However, upon an appeal by the prosecutor, on 28 March 2006 the Court of Appeal overturned the District Court’s decision and ordered the applicant’s detention for a period of two months. 14.", "On 29 and 30 March and 13 April 2006 the investigator lodged applications with the District Court for a search warrant and to confiscate information covered by bank secrecy. These applications were granted on 29 and 31 March and 13 April 2006. 15. On 14 July 2006 the supervising prosecutor approved the bill of indictment and the case was sent to the District Court, which took it over on 24 July 2006. 16.", "By the District Court’s decision of 18 August 2006 the case was set for trial. Between 25 August 2006 and 11 October 2007, the court held twelve hearings which were adjourned because of the absence of victims and/or witnesses. In addition, on ten occasions the hearings were adjourned because of applications by the prosecutor or on the court’s own motion, and on nine occasions because the applicant’s applications were granted. On three occasions the court decided to have the absent witnesses and/or victims brought by force to the hearing. 17.", "On 9 July 2007 the District Court granted an application by the applicant’s counsel to have him released on bail. 18. On 15 October 2007 the powers of the judge in charge of the applicant’s case were suspended. On 1 November 2007 another judge took over the case and the examination of the case started anew. 19.", "Between 21 November 2007 and 23 December 2010, the court held forty hearings which were adjourned because of the absence of the applicant or his lawyer or because of applications lodged by them. In addition, on thirty-five occasions the hearings were adjourned because of the absence of the victims or witnesses or because of applications lodged by them, and on thirty-two occasions because the prosecutor’s applications had been granted or because the court had decided to adjourn the case of its own motion. On five occasions the court decided to have the absent witnesses and victims brought by force to the hearing. 20. On 28 August 2009 and 12 October 2010 respectively the prosecutor decided to amend the charges and/or to bring new charges against the applicant.", "21. In March and June 2010 the District Court partially granted or refused applications, introduced by the applicant and one of the victims, requesting that it order a forensic examination. 22. On 31 January 2011 the District Court gave judgement, finding the applicant guilty of five counts of the offences set out in Article 178 § 3 (1) (fraud), Article 182 § 3 (2) (extortion), Article 213 § 2 (1) and (2) (usury), and Article 349 § 1 (forgery of evidence) of the CC and sentenced him to nine years’ imprisonment, confiscated half of his property and imposed a fine of 400,000 Armenian drams (AMD). It appears that during the proceedings the District Court examined forty-seven witnesses, about thirty pieces of documentary evidence and five expert opinions, one of which was ordered by the District Court.", "23. The applicant and the prosecutor appealed against this judgment. 24. On 3 October 2011 the Criminal Court of Appeal rejected the appeals and upheld the District Court’s judgment. 25.", "The applicant’s counsel lodged an appeal on points of law. 26. On 21 November 2011 the Court of Cassation declared the appeal inadmissible for lack of merit. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 27.", "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 ...” 28. The Government contested that argument. A. Admissibility 29. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 30. The period to be taken into consideration began on 30 December 2004 when the investigator instituted criminal proceedings against the applicant and ended on 21 November 2011 when the Court of Cassation delivered the final decision in the case. It thus lasted almost six years and eleven months at three levels of jurisdiction.", "31. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, and the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). 32. The Government argued that the case had been complex due to the nature of the charges as well as the number of victims and witnesses heard: there had been eight victims and thirty-four individuals had been questioned as witnesses both during the pre-trial investigation and the trial.", "The participation of many victims and witnesses at the trial had been possible only after the use of coercive measures ordered by the District Court. Moreover, the investigation of the matter had required several forensic examinations and the volume of the evidence collected had been extensive. 33. The Government noted that the pre-trial investigation phase had lasted some eighteen months and that it had not contained any periods of inactivity. The modification of charges during the pre-trial investigation and the trial had not generated any delay.", "Although the time-limits for the investigation had been prolonged five times, this had been necessitated by the need, inter alia, to conduct forensic examinations, to find the property belonging to the applicant, to interrogate all victims and witnesses, and to carry out enquiries and searches. As to the trial, the District Court phase had taken about four and a half years during which time 136 court hearings had taken place and had been finally adjourned. The District Court had generally granted the different applications of the parties, which naturally had prolonged the proceedings. Both the applicant and his lawyer had been absent from four hearings; on thirteen occasions the applicant’s lawyer had been absent and the case had been therefore adjourned; and once the case had been adjourned in order to involve another lawyer in the proceedings. 34.", "The applicant argued that all the applications lodged by him had been done in good faith and that half of them had related to guaranteeing his right to a fair trial. In contrast, the prosecutor had failed to appear in court on a number of occasions without any good reason and the presiding judge had also adjourned the case many times for reasons unconnected to this case. Almost a half of the 136 adjournments had been due to the repeated non-appearance of victims and witnesses, most of which had been called by the prosecutor. Securing their appearance had clearly been the responsibility of the State. Moreover, the trial had to be restarted from the beginning after one year and three months since the powers of the first presiding judge had been suspended.", "Also the modifications of the charges had had the same delaying effect. 35. The Court notes that, in the present case, the pre-trial investigation phase as well as the appeal phase was concluded quite rapidly but the District Court phase took about four and a half years. Although the District Court phase did not contain any particularly long periods of inactivity on the authorities’ side, the problem was that the case was adjourned 136 times, the proceedings were restarted from the beginning after one year and three months of the trial, and the charges were amended or new ones were brought at that stage of proceedings. Although some of these elements may have been beyond the District Court’s control, it was nevertheless in its power to decide whether or not to accept the applications for adjournment lodged by both parties and to properly secure the appearance of all parties.", "It is for the Contracting States to organise their judicial systems in such a way that the courts can meet the “reasonable time” requirement under Article 6 (see, for instance, Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 142, ECHR 2016 (extracts)). 36. Moreover, even though the case was of some complexity due to its extensive volume and the number of victims and witnesses involved, it cannot be said that this in itself justified the entire length of the proceedings. 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 Pélissier and Sassi, cited above). 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 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. 39.", "There has accordingly been a breach of Article 6 § 1. 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 claimed 3,000 euros (EUR) in respect of non-pecuniary damage. 42. The Government considered that the amount claimed was excessive and that it should be reduced. 43. The Court considers that the applicant must have sustained non-pecuniary damage.", "Ruling on an equitable basis, it awards him EUR 865 under that head. B. Costs and expenses 44. The applicant also claimed 720,000 Armenian drams (AMD – approximately EUR 1,259) for the costs and expenses incurred before the Court. 45.", "The Government observed that the submitted contract did not provide any information on the hours worked or the hourly rate, and that there was no proof that the amount of AMD 720,000 had in fact been paid. Therefore no costs and expenses had actually been incurred in the present case. The Government thus considered that the claim for costs and expenses should be rejected. 46. Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses for lack of itemisation.", "C. Default interest 47. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months, the following amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: EUR 865 (eight hundred and sixty-five 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 5 April 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Renata DegenerAleš PejchalDeputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF VOJNITY v. HUNGARY (Application no. 29617/07) JUDGMENT STRASBOURG 12 February 2013 FINAL 12/05/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Vojnity v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Peer Lorenzen,Dragoljub Popović,András Sajó,Nebojša Vučinić,Paulo Pinto de Albuquerque,Helen Keller, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 22 January 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "29617/07) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Péro Vojnity (“the applicant”), on 9 July 2007. 2. The applicant was represented by Mr A. Cech, 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, in particular, that the complete withdrawal of his access rights amounted to an unjustified and disproportionate interference with his right to respect for family life, contrary to Article 8 of the Convention, read alone and in the light of Articles 9 and 14 . 4. On 20 March 2012 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1948 and lives in Szeged. 6. On 8 June 2000 the applicant, an adherent of the religious denomination Hit Gyülekezete (Congregation of the Faith), divorced from his wife, and their son, born in 1994, was placed with the mother. The applicant was granted access rights.", "7. The applicant lodged a motion with the Szeged District Court to reclaim custody or have his access rights re-regulated. The two psychiatric opinions prepared in the course of the ensuing proceedings established that the father’s visits did not impose a burden on the child and suggested loose but regular contact between the applicant and his son. Nonetheless, the court rejected his request on 13 October 2003. Another similar motion of the applicant was also dismissed on 20 June 2004 by the same court, which stated that the child’s removal from his social environment would not be in his interest and that the applicant’s circumstances were not satisfactory for the upbringing of a child.", "Nonetheless, the court found that the applicant’s behaviour was not malicious towards his son and his access rights should not be withdrawn, as requested by the mother, on the ground of his religious devotion. 8. On 11 January 2006 the Szeged Guardianship Authority filed an action to have the child placed with his older brother, the mother having been considered unfit. In respect of a potential placement with the applicant, the Authority had regard to its observations that his heavy-handed proselytism vis-à-vis the son and his inadequate housing conditions represented a danger for the boy. 9.", "The Szeged District Court appointed an expert psychologist. In his opinion of 5 September 2006 the expert found, having examined the applicant, the mother, their son and his older brother, that the boy had strong emotional ties to his siblings and his mother but none to his father. According to the expert, the applicant held unrealistic educational ideas hallmarked by religious fanaticism which rendered him unfit to provide the son with a normal upbringing; indeed, he forced his beliefs on his son to an extent that it resulted in the latter’s alienation from him. 10. On 12 September 2006 the District Court placed the child with his brother, but maintained the applicant’s access rights.", "This decision was upheld by the Csongrád County Regional Court, acting as a second-instance court, on 2 October 2006. 11. Subsequently the brother filed an action against the applicant seeking deprivation of his access rights. 12. The District Court appointed an expert psychologist.", "In his opinion of 14 September 2007 the expert submitted, after examining the brother and the son – but not the applicant –, that the applicant’s participation in the boy’s life was harmful, notably because of his insistence on proselytism. He was of the view that the applicant was unfit to contribute to the son’s normal development and that the applicant should be subjected to examination by an expert psychiatrist. He suggested that the applicant’s access rights should be removed altogether, because his visits – which went beyond the authorised occasions – were of a vexatious nature and harmful for the child. 13. The District Court then gave judgment and removed the applicant’s access rights altogether.", "Relying essentially on the expert’s opinion, it held that his vexatious and harmful appearances in his son’s life amounted to an abuse of his access rights and seriously endangered the child’s development and upbringing. 14. On appeal, on 4 February 2008 the Csongrád County Regional Court upheld the first-instance judgment. It held that even considering the acknowledged mutual interest of the child and his father in maintaining a family tie based on affection, this consideration was not applicable in the case, since the applicant abused his rights to influence the child in pursuit of his own religious beliefs, which triggered anxiety and fear in the boy and endangered his development. In particular, the Regional Court found, relying on the expert opinion, that the applicant’s “irrational worldview made him incapable of bringing up his child” and that he “did not exercise his right of access in accordance with its purpose ... but to impose his religious convictions on the child”.", "II. RELEVANT DOMESTIC LAW 15. Act no. IV of 1952 on Marriage, Family and Guardianship (“the Csjt.”) provides as follows: Section 1 “(2) In the application of this Act the minor child’s interest shall always be taken into account and his or her rights shall be safeguarded.” Section 92 “(1) The child shall have the right to maintain direct contact in person with his or her parent living separately. Maintenance of regular contact with the child is a right and obligation of the parent living separately (access rights).", "The parent or any other person bringing up the child shall be under the obligation of ensuring undisturbed maintenance of contact. (2) A parent shall – unless [subject to a restraining order] – have the right to maintain contact with his or her child even where the parent’s custody rights are suspended. (3) In exceptionally justified cases, in the interest of the child, the parent whose custody was withdrawn by the court or ceased under section 48 (3) and the child has not been adopted may also be entitled to maintain contact with his or her child. Such a decision shall be delivered by the court which terminated the parent’s custody or – where the child has been placed in permanent foster care – by the guardianship authority. (4) In absence of agreement between the parents, or in case of dispute between the parents and the guardian, the decision on the maintenance of contact shall be taken by the guardianship authority.", "The guardianship authority or the court proceeding in marriage- or child-placement-related cases may restrict or terminate this right or suspend its exercise. (5) Where the decision on the maintenance of contact was taken by a court, amendment of the court’s decision may only be sought before a court, within two years from its having become final. (6) The execution of the court decision on the maintenance of contact shall be arranged for by the guardianship authority.” 16. Government Decree no. 149/1997.", "(IX. 10.) on Child Custody Boards, Child Protection Procedure and Child Custody Board Procedure provides as follows: Section 27 “(1) The aim of the access rights is: a) to maintain family contact between the child and the persons entitled to access according to paragraph (1) of section 28, and b) that the parent having access rights follow continuously and support, by doing his/her utmost, the upbringing and the growth of the child.” Section 28 “(1) The parents, the grandparents, the major siblings ... are all entitled to access.” Section 30 “(6) The guardianship authority or the court may appoint as the place of exercising access rights the [premises of the child welfare centre].” Section 30/A “(1) If the parents ... cannot find an agreement about the time or manner of exercising access rights, the guardianship authority shall draw the parties’ attention to the possibility of availing themselves of ‘mediation with a view to protecting the child’ (gyermekvédelmi közvetítői eljárás).” Section 31 “(5) The guardianship authority or the court may – upon request – withdraw the access rights of the person with access if he or she exercises the access rights in grave violation of the interest of the child or the person having custody and by this conduct gravely endangers the child’s upbringing and development.” Section 32 “(1) The re-regulation of access rights – not including the restriction, suspension or withdrawal of the access rights – may be requested within two years from the date on which the decision thereon became final, if the circumstances underlying the decision of the court or the guardianship authority have later significantly changed and the re-regulation of the access rights serves the interest of the child... (4) In the proceedings for the re-regulation of the access rights the guardianship authority or the court may, upon request, in the interest of the child, lift the restrictions imposed on the access rights and may restore the access rights where the circumstances on which the decision was based no longer prevail.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 READ IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION 17. The applicant complained that the denial of his access rights in respect of his son had been based on his adherence to the religious denomination Hit Gyülekezete, amounting to a differential treatment in respect of the enjoyment of his right to respect for family life.", "He claimed in this respect a violation of his rights under Article 8 of the Convention, both taken alone and read in conjunction with Article 14. He further complained that his right to freedom of thought, conscience and religion had been violated, since the impugned measure had been directly linked to the manifestation of his religious belief and thus fell within the ambit of Article 9 of the Convention. Article 8 reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2.", "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 9 provides as follows: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” Article 14 reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 18. The Government contested these arguments.", "19. The Court considers that it is appropriate to examine the applicant’s complaints under Article 14 read in conjunction with Article 8 of the Convention (see, e.g., mutatis mutandis, Zaunegger v. Germany, no. 22028/04, § 34, 3 December 2009). A. Admissibility 20. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ arguments a.", "The applicant 21. The applicant submitted that he had been treated differently due to his religious convictions in respect of the enjoyment of his rights under Article 8 of the Convention from other persons seeking access rights to their children following divorce or separation. In particular, he submitted that the domestic authorities’ decision withdrawing his access rights in respect of his son on the basis of his religious beliefs had amounted to an unjustifiable interference with his right to respect for family life. 22. The applicant moreover argued that access to his son had been refused not in the interest of the child’s physical or mental integrity but due to his religious convictions.", "Relying in particular on the decision of the Csongrád County Regional Court, he claimed that the domestic courts had found deficiencies in his methods and ideas of upbringing since he had intended to transfer his religious worldview to his son. 23. Furthermore, the applicant submitted that although several less restrictive measures existed under Hungarian law, the domestic authorities had failed to examine them. b. The Government 24.", "The Government acknowledged that there had been an interference with the applicant’s right to family life. They stressed however that intervention by the domestic courts had been prescribed by law, namely section 92 (4) of the Csjt. (see paragraph 15 above). Moreover, it pursued a legitimate aim, that is, the protection of the child’s interests, and was necessary in a democratic society. They added that in this field the child’s interests were paramount, overriding the interests of the parents.", "25. The Government moreover disputed the allegation that in the instant case the applicant had been treated differently. They pointed out that the domestic courts had taken into account, in accordance with the Hungarian law, the child’s best interest alone, and the decisions of the Szeged District Court and the Csongrád Court of Appeal had been based on the fact that, in the circumstances of the case, the maintenance of the applicant’s contact rights would not have served the child’s interest. 26. The Government concluded that the domestic courts, in reaching their decision, had had regard exclusively to the overriding interest of the child and not the applicant’s religious beliefs.", "Thus, the applicant had not been discriminated against in any manner. 2. The Court’s assessment 27. The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby.", "Although the application of Article 14 does not presuppose a breach of those provisions, there can be no room for its application unless the facts at issue fall within the ambit of one or more of them (see, among many other authorities, Camp and Bourimi v. the Netherlands, no. 28369/95, § 34, ECHR 2000‑X). 28. The Court notes at the outset that in the instant case the applicant had regular contact with his son until the decision of the Csongrád County Regional Court of 4 February 2008 which deprived him of all access rights (see paragraph 14 above). In this respect, the Court recalls that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (see Eriksson v. Sweden, 22 June 1989, § 58, Series A no.", "156). The applicant having been deprived of this element, the Court finds that the Regional Court’s decision constituted an interference with the applicant’s right to respect for family life. Thus the case falls within the ambit of Article 8 of the Convention. 29. The Court further reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations (see Hoffmann v. Austria, 23 June 1993, § 31, Series A no.", "255‑C). In other words, the notion of discrimination includes in general cases where a person or group is treated, without proper justification, less favourably than another (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 82, Series A no. 94). 30. Consequently, it must first be determined whether the applicant can complain of such a difference in treatment in regard to his right to respect for family life.", "31. The Court will first ascertain whether or not the applicant’s access rights were removed essentially on account of his religious conviction. It is true that the domestic courts had regard above all to the child’s interest when granting the request for the withdrawal of the applicant’s access rights (see paragraph 13 above). However, the Court notes that when deciding on the applicant’s suitability to contribute to his son’s development, the domestic authorities added to their consideration the factor – for that matter, evidently the decisive one – of the applicant’s religious conviction and its possible effects on the child. In particular, the Regional Court based its ruling on the expert opinion stating that the applicant’s “irrational worldview made him incapable of bringing up his child”.", "Furthermore, the Regional Court held against the applicant that during his contacts with the child, he had intended to transfer his religious convictions to him (see paragraph 14 above). It does not appear that other points of fact or law were considered in depth. In this connection, the Court has already held that a distinction based essentially on a difference in religion alone is not acceptable (see Hoffmann, cited above, § 36). Therefore, in the Court’s view, the applicant’s religious convictions had a direct bearing on the outcome of the matter in issue. Consequently, there has been a difference of treatment between the applicant and other parents in an analogous situation, which consisted of reproaching the applicant for his strong religious convictions.", "32. As has been well established in the Court’s case-law, such a difference in treatment is discriminatory in the absence of an “objective and reasonable justification”, that is, if it is not justified by a “legitimate aim” and if there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, among other authorities, Palau-Martinez v. France, no. 64927/01, § 39, ECHR 2003‑XII). 33. The Court is of the opinion that the aim pursued in the instant case, namely the protection of the health and rights of the child, is legitimate.", "34. It remains to be determined whether there was a reasonable relationship of proportionality between the means employed, namely depriving the father of his access rights altogether, and the legitimate aim pursued. 35. The Court recalls that Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the circumstances, the subject matter and its background (see Zaunegger, cited above, § 50).", "36. The Court notes that the subject matter of this case is the applicant’s differential treatment in the context of the total removal of his access rights to his son, and this to a decisive extent on account of the applicant’s religious beliefs. It considers that, in the light of the importance of the rights enshrined in Article 9 of the Convention in guaranteeing the individual’s self-fulfilment, such a treatment will only be compatible with the Convention if very weighty reasons exist. The Court has applied a similar approach in the context of differences in treatment on the basis of sex (see Abdulaziz, Cabales and Balkandali, cited above, § 50), birth status (see Inze v. Austria, 28 October 1987, § 41, Series A no. 126), sexual orientation (see L. and V. v. Austria, nos.", "39392/98 and 39829/98, § 50, ECHR 2003‑I) and nationality (Gaygusuz v. Austria, 16 September 1996, § 42, Reports of Judgments and Decisions 1996‑IV). 37. In the present case, the Government have pointed to the importance of protecting the child’s psychological health from the purported stress exerted by the applicant’s intensive efforts to transfer his convictions to him. While the Court accepts that the domestic authorities may have showed legitimate concern in this respect, it has reservations as to whether this consideration qualifies as a very weighty reason allowing for differential treatment. It would add that the rights to respect for family life and religious freedom as enshrined in Articles 8 and 9 of the Convention, together with the right to respect for parents’ philosophical and religious convictions in education, as provided in Article 2 of Protocol No.", "1 to the Convention, convey on parents the right to communicate and promote their religious convictions in the bringing up of their children. The Court adds in this context that this would be an uncontested right in the case of two married parents sharing the same religious ideas or worldview and promoting them to their child, even in an insistent or overbearing manner, unless this exposes the latter to dangerous practices or to physical or psychological harm, and it sees no reason why the position of a separated or divorced parent who does not have custody of his or her child should be different per se. 38. The Court observes that in the present case there is no evidence that the applicant’s religious convictions involved dangerous practices or exposed his son to physical or psychological harm. It is true that the expert appointed by the District Court considered that the applicant’s participation in the boy’s life was harmful, notably because of his insistence on proselytism (see paragraph 12 above) but no convincing evidence was presented to substantiate a risk of actual harm, as opposed to the mere unease, discomfort or embarrassment which the child may have experienced on account of his father’s attempts to transmit his religious beliefs.", "The Court notes in this connection that the expert did not examine the applicant, nor was his suggestion that the applicant should be examined by a psychiatrist followed up. It further notes that while the Regional Court, in upholding the first-instance judgment, referred to the child’s “anxiety and fear”, it deprived the applicant of his access rights essentially on account of the applicant’s “irrational worldview” and his attempts to impose his religious convictions on the child, without explaining what real harm these caused to the child. 39. In any event, even assuming that the authorities’ concern about the psychological damage the applicant’s child may have suffered amounts to a very weighty reason for the purposes of assessing the differential treatment in question, the Court considers that the solution chosen by the authorities in the face of this problem cannot be accepted for the following reasons. 40.", "In respect of restrictions on family life, the Court reiterates that as regards restrictions placed by authorities on parental rights of access, a stricter scrutiny is called for than in the context of custody (see Görgülü v. Germany, no. 74969/01, § 42, 26 February 2004). It is in a child’s interest for its family ties to be maintained, as severing such ties means cutting a child off from its roots (see Gnahoré v. France, no. 40031/98, § 59, ECHR 2000‑IX). 41.", "The Court observes that the domestic courts’ decisions on the removal of the applicant’s access rights rendered impossible any form of contact and the establishment of any kind of further family life. It is to be recalled that a measure as radical as the total severance of contact can be justified only in exceptional circumstances (see B. v. the United Kingdom, 8 July 1987, § 77, Series A no. 121). 42. In the instant case, the Court considers that the Government have not demonstrated the presence of such exceptional circumstances.", "This is all the more troubling in the face of the fact that – although the domestic courts examined the psychological strain which his father’s religious practice would represent for the child (see paragraph 14 above) – they gave no consideration to the question whether the mere suspension of the applicant’s access for a certain period of time or any other less severe measure that exists under Hungarian law (such as the exercise of access rights in controlled circumstances) would have been sufficient to allow the child to regain his emotional balance. Instead, they decided to apply an absolute ban on the applicant’s access rights. For the Court, the approach adopted by those authorities amounted to a complete disregard of the principle of proportionality, requisite in this field and inherent in the spirit of the Convention. 43. In sum, in view of the fact that the domestic courts applied a very restrictive measure to the applicant’s detriment, without giving due consideration to possible alternatives, the Court concludes that in respect of the measure at issue there was no reasonable relationship of proportionality between a total ban on the applicant’s access rights and the aim pursued, namely the protection of the best interest of the child.", "Consequently, the applicant has been discriminated against on the basis of his religious convictions in the exercise of his right to respect for family life. There has accordingly been a violation of Article 14 of the Convention, taken together with Article 8 in the instant case. II. ALLEGED VIOLATION OF ARTICLE 8 TAKEN ALONE OR ARTICLE 9 TAKEN ALONE OR IN CONJUNCTION WITH ARTICLE 14 44. The applicant further complained that there had been an interference with his freedom of religion within the meaning of Article 9 of the Convention, and that this interference was discriminatory within the meaning of Article 9 taken in conjunction with Article 14.", "He also complained that there had been a breach of Article 8 taken alone. 45. The Court considers that, while these complaints are also admissible, no separate issue arises under these provisions, since the factual circumstances relied on are the same as those for the complaint examined under Article 14 taken in conjunction with Article 8, in respect of which a violation has been found. III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 46.", "Lastly, invoking Article 6 of the Convention, the applicant complained that the courts had dealt with his case in an unfair manner, accepting unsubstantiated allegations about his capacity to contribute to the upbringing of his child. 47. The Court considers that, while this complaint is also admissible, no separate issue arises under this provision, since the factual circumstances relied on are the same as those for the complaint examined under Article 14 taken in conjunction with Article 8, in respect of which a violation has been found. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 48.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 49. The applicant claimed 642,857 euros (EUR) in respect of non-pecuniary damage. 50. The Government contested this claim.", "51. The Court considers that the applicant must have suffered some non-pecuniary damage and awards him, on the basis of equity, EUR 12,500 under this head. B. Costs and expenses 52. The applicant also claimed EUR 6,429 for the costs and expenses incurred before the Court.", "This sum corresponds to 42 hours of legal work billable by his lawyer charged at an hourly rate of EUR 120 plus VAT (that is, EUR 6,400.80) as well as travel costs in the amount of EUR 28.84. 53. The Government contested this claim. 54. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 covering costs under all heads. C. Default interest 55. 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 14 read in conjunction with Article 8 of the Convention; 3. Holds that no separate issue arises under Article 8 of the Convention taken alone or under Article 9 taken alone or in conjunction with Article 14; 4. Holds that no separate issue arises under Article 6 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 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (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 12 February 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithGuido RaimondiRegistrarPresident" ]

[ "SECOND SECTION CASE OF ÜÇPINAR v. TURKEY (Application no. 41479/05) JUDGMENT STRASBOURG 21 July 2009 FINAL 21/10/2009 This judgment may be subject to editorial revision. In the case of Üçpınar v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Vladimiro Zagrebelsky,Danutė Jočienė,Dragoljub Popović,Nona Tsotsoria,Işıl Karakaş, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 30 June 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 41479/05) 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 İsmet Üçpınar (“the applicant”), on 10 November 2005.", "2. The applicant was represented by Ms H. Müslümoğlu and Mr K. Yaz, lawyers practising in Konya. The Turkish Government (“the Government”) were represented by their Agent. 3. On 1 July 2008 the Court declared the application partly inadmissible and decided to communicate to the Government the complaint concerning the damage allegedly sustained by the applicant as a result of the various insufficient interest rates compared to the high inflation rate.", "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 1947 and lives in Aksaray. 5.", "In 1995 the Municipality of Konya decided to expropriate the applicant’s property. The title was transferred to the Municipality of Konya on 26 August 1996. 6. On 1 May 2003 the applicant brought an action before the Konya Court of First Instance for increased compensation. On 21 June 2004 the Konya Court of First Instance partly accepted the applicant’s claim and awarded him additional compensation of 1,861,980,000[1] Turkish liras (TRL), which bore statutory interest running from 26 August 1996.", "On 29 December 2004 the Court of Cassation upheld the judgment. 7. The applicant requested rectification. On 18 April 2005 the Court of Cassation dismissed the request for rectification and notified the applicant on 10 May 2005. 8.", "On 22 June 2005 the authorities paid the applicant 13,783 Turkish liras (TRY)[2]. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 9. The applicant complained that the various rates of default interest applied to the additional compensation awarded for the expropriation of his property had not been sufficient in view of the rate of inflation.", "10. The Government contested this argument and maintained that the applicant had not raised this issue before the domestic authorities. 11. The Court notes that the legal interest rates applied to State debts are prescribed by law. Thus, it is obvious that even if the applicant had raised his complaint concerning the legal interest rates before the domestic authorities he would not have been compensated (see Reçber v. Turkey, no.", "52895/99, § 18, 2 February 2006). 12. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "13. As regards the merits of the case, the Court has found a violation of Article 1 of Protocol No. 1 in a number of cases that raise similar issues to those arising here (see Aka v. Turkey, 23 September 1998, §§ 50‑51, Reports of Judgments and Decisions 1998‑VI). Having examined the facts and arguments presented by the Government, the Court considers that there is nothing to warrant a departure from this conclusion reached in the previous cases. It finds that the difference between the values of the amounts due to the applicant when his property was expropriated and when they were actually paid caused him to sustain a loss which upset the fair balance that should have been maintained between the protection of the right to property and the demands of the general interest.", "14. Consequently, there has been a violation of Article 1 of Protocol No. 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 15.", "The applicant claimed TRY 133,000[3] in respect of pecuniary damage. The Government contested this claim and asserted that it was excessive and speculative. 16. Using the same method of calculation as in the Aka judgment (cited above, §§ 53-57) and having regard to the relevant economic data, the Court awards the applicant EUR 21,700 in respect of pecuniary damage. 17.", "The applicant did not submit a claim for non-pecuniary damage or costs and expenses. Accordingly, the Court concludes that there is no call to award him any sum on these accounts. 18. 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 admissible; 2. Holds that there has been a violation of Article 1 of protocol No.1; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 21,700 (twenty-one thousand seven hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 21 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Sally DolléFrançoise TulkensRegistrarPresident [1]. Approximately 1,031 euros (EUR). [2]. On 1 January 2005 the Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL). TRY 1 = TRL 1,000,000.", "The sum above was therefore equivalent to TRL 13,783,000,000 and approximately EUR 8,375 at the material time. [3]. Approximately EUR 63,300." ]

[ "FIFTH SECTION CASE OF BAYSAKOV AND OTHERS v. UKRAINE (Application no. 54131/08) JUDGMENT STRASBOURG 18 February 2010 FINAL 18/05/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Baysakov and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Renate Jaeger,Karel Jungwiert,Mark Villiger,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva, judges,Mykhaylo Buromenskiy, ad hoc judge,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 26 January 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "54131/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Kazakhstani nationals, Mr Yesentay Daribayevich Baysakov (the first applicant), Mr Zhumbai Deribayevich Baysakov (the second applicant), Mr Arman Vladimirovich Zhekebayev (the third applicant), and Mr Sergei Leonidovich Gorbenko (fourth applicant), on 12 November 2008. 2. The applicants were represented before the Court by Mr A. Bushchenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Zaitsev, of the Ministry of Justice. 3.", "On 13 November 2008 the Vice-President of the Fifth Section indicated to the respondent Government that the applicant should not be extradited to Kazakhstan unless and until the Court has had the opportunity further to consider the case (Rule 39 of the Rules of Court). He granted priority to the application on the same date (Rule 41). 4. On 31 March 2009 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to maintain the application of Rules 39 and 41 until further notice and to examine the merits of the application at the same time as its admissibility (Article 29 § 3).", "5. Written submissions were received from Interights, the International Centre for the Legal Protection of Human Rights, which had been granted leave by the President to intervene as a third party (Article 36 § 2 of the Convention and Rule 44 § 2 of the Rules of Court). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicants were born in 1962, 1960, 1971 and 1963 respectively and currently live in Kyiv.", "7. At the end of 2002 the applicants left Kazakhstan, allegedly because of political persecution by the authorities. They arrived in Ukraine in 2005 and have remained there. 8. By four separate decisions of 28 March 2006, the Ukrainian State Committee on Nationalities and Migration granted the applicants’ requests for refugee status, finding that there were legitimate grounds to fear that the applicants would risk political persecution in Kazakhstan for their activities in 2001-02.", "In particular, the Committee noted that in November 2001 several top political and business figures in Kazakhstan had formed the opposition group Democratic Choice of Kazakhstan. The applicants took part in the activities of that group, mainly by providing it with financial and technical support, particularly through a television company owned by the first and second applicants. The fourth applicant held posts in the governing body (political council) of that group. Shortly afterwards, the Kazakh authorities arrested the leaders of the group. The authorities also instituted criminal proceedings against the applicants on various charges, including conspiracy to murder, abuse of power and fraud, annulled the broadcasting licence of their television company, and blocked the activities of their other companies.", "As pressure from the authorities mounted, the applicants fled the country. 9. By four separate requests issued in September 2007 and April and May 2008, the Office of the General Prosecutor of the Republic of Kazakhstan requested the applicants’ extradition with a view to criminal prosecution for organised crime and conspiracy to murder (first applicant, Articles 28, 96 and 237 of the Criminal Code of the Republic of Kazakhstan), tax evasion and money laundering (second and third applicants, Articles 193 and 222 of the Criminal Code) and abuse of power (fourth applicant, Articles 307 and 308 of the Criminal Code). Pursuant to Article 96 of the Criminal Code of the Republic of Kazakhstan, murder was punishable by deprivation of liberty for a term of from ten to twenty years or by the death penalty, or by life imprisonment with or without confiscation of property. As regards other crimes of which the applicants were accused, the relevant provision of the Criminal Code provided for punishment not exceeding ten years’ imprisonment.", "The Kazakh prosecutors provided assurances that the criminal prosecution of the applicants was not related to their political views, race, nationality or religion, and that the prosecutors would not request the domestic courts to sentence the first applicant to death for the crimes for which he was wanted. 10. On 19 and 21 May 2008 the Deputy Prosecutor General lodged objections (protests) with the State Committee on Nationalities and Religion (the former State Committee on Nationalities and Migration) seeking reconsideration and subsequent annulment of its decisions of 28 March 2006. She submitted that the applicants were wanted by the Kazakh authorities on charges of “grave” crimes and that the Office of the General Prosecutor of the Republic of Kazakhstan guaranteed that the criminal prosecution of the applicants was not related to their political views, race, nationality or religion. 11.", "On 30 May 2008 the Committee rejected the objections and confirmed its previous findings. 12. On 17 June 2008 the Deputy General Prosecutor lodged two separate administrative claims with the District Administrative Court of Kyiv seeking annulment of the Committee’s decisions of 28 March 2006. The prosecutor also requested the court to suspend the contested decisions. On 4 July 2008 the court opened the proceedings and informed that it would decide on the prosecutor’s request for suspension of the Committee’s decisions at one of its next hearings.", "13. On 24 November 2008 the court dismissed the prosecutor’s claims. On 22 January 2009 the Kyiv Administrative Court of Appeal upheld the first-instance court’s decision. No copies of the decisions were provided by the parties. 14.", "On 11 February 2009 the Office of the General Prosecutor of Ukraine lodged an appeal in cassation with the Higher Administrative Court, the outcome of which is unknown. 15. By a letter of 25 May 2009, the First Deputy General Prosecutor of the Republic of Kazakhstan sent the Deputy General Prosecutor of Ukraine assurances that in accordance with the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, if extradited to Kazakhstan the applicants would not be subjected to ill‑treatment, that they would receive a fair trial, and that if necessary they would be provided with adequate medical aid and treatment. 16. The Government submitted that they had received assurances from the Office of the General Prosecutor of Ukraine that no decision on the applicants’ extradition would be taken before the Court had considered the case.", "II. RELEVANT DOMESTIC LAW and practice A. Constitution of Ukraine, 1996 17. The relevant extracts from the Constitution provide as follows: Article 26 “Foreigners and stateless persons who are lawfully in Ukraine enjoy the same rights and freedoms and also bear the same duties as citizens of Ukraine, with the exceptions established by the Constitution, laws or international treaties to which Ukraine is a party. Foreigners and stateless persons may be granted asylum under the procedure established by law.” Article 55 “Human and citizens’ rights and freedoms are protected by the courts.", "Everyone is guaranteed the right to challenge in court the decisions, actions or omission of bodies exercising State power, local self-government bodies, officials and officers. ...After exhausting all domestic legal remedies, everyone has the right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant. Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.” Article 92 “The following are determined exclusively by the laws of Ukraine: (1) human and citizens’ rights and freedoms, the guarantees of these rights and freedoms; the main duties of the citizen; ... (14) the judicial system, judicial proceedings, the status of judges, the principles of judicial expertise, the organisation and operation of the prosecution service, the bodies of inquiry and investigation, the notary, the bodies and institutions for the execution of punishments; the fundamentals of the organisation and activity of the advocacy; ...” B. The United Nations Convention Relating to the Status of Refugees, 1951 18. Ukraine joined the Convention on 10 January 2002.", "The relevant extracts from the Convention provide as follows: Article 1 “For the purposes of the present Convention, the term “refugee” shall apply to any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear is unwilling, to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or owing to such fear, is unwilling, to return to it.” Article 32 “1. The Contracting States shall not expel a refugee who is lawfully in their territory save on grounds of national security or public order. 2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law...” Article 33 “1. No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.", "2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” C. European Convention on Extradition, 1957 19. The Convention entered into force in respect of Ukraine on 9 June 1998. Its relevant provisions read as follows: Article 1 Obligation to extradite “The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order.” Article 3 Political offences “Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested Party as a political offence or as an offence connected with a political offence. The same rule shall apply if the requested Party has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons.", "The taking or attempted taking of the life of a Head of State or a member of his family shall not be deemed to be a political offence for the purposes of this Convention. This article shall not affect any obligations which the Contracting Parties may have undertaken or may undertake under any other international convention of a multilateral character.” 20. Ukraine’s reservation in respect of Article 1 of the Convention contained in the instrument of ratification deposited on 11 March 1998 reads as follows: “Ukraine reserves the right to refuse extradition if the person whose extradition is requested cannot, on account of his/her state of health, be extradited without damage to his/her health.” D. The CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters 1993, amended by the Protocol to that Convention of 28 March 1997 (“the Minsk Convention”) 21. The Convention was ratified by the Ukrainian Parliament on 10 November 1994. It entered into force in respect of Ukraine on 14 April 1995 and in respect of Kazakhstan on 19 May 1994.", "The relevant extracts from the Convention provide as follows: Article 56. Obligation of extradition “1. The Contracting Parties shall ... on each other’s request extradite persons who find themselves on their territory, for criminal prosecution or to serve a sentence. 2. Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties, and which entail at least one year’s imprisonment or a heavier sentence...” Article 57.", "Refusal to extradite “1. No extradition shall take place if: a) the person whose extradition is sought is a citizen of the requested Contracting Party; b) at the moment of receipt of the request [for extradition] criminal prosecution may not be initiated or a sentence may not be executed as time-barred or for other reasons envisaged by the legislation of the requested Contracting Party; c) concerning the same crime there has been a judgment or a decision which has entered into the force of law discontinuing the proceedings against the person whose extradition is sought, on the territory of the requested Contracting Party; d) the legislation of the requesting and requested Contracting Parties envisages that criminal prosecution for [the crimes of which the person is accused] may be initiated [only upon a victim’s complaint]. 2. Extradition may be refused if the crime in connection with which it is sought, was committed on the territory of the requested Contracting Party. 3.", "In the event of refusal to extradite the requesting Contracting Party shall be informed of the reasons for the refusal.” Article 58. Request for extradition “1. A request for extradition shall include the following information: (a) the title of the requesting and requested authorities; (b) a description of the factual circumstances of the offence, the text of the law of the requesting Contracting Party which criminalises the offence, and the punishment sanctioned by that law; (c) the [name] of the person to be extradited, the year of birth, citizenship, place of residence, and, if possible, a description of his appearance, his photograph, fingerprints and other personal information; (d) information concerning the damage caused by the offence. 2. A request for extradition for the purpose of criminal prosecution shall be accompanied by a certified copy of a detention order...” Article 59.", "Additional information “1. If a request for extradition does not contain all the necessary data, the requested Contracting Party may ask for additional information, for the submission of which it shall set a time-limit not exceeding one month. This time-limit may be extended for up to a month at the request of the requesting Contracting Party...” E. Code of Administrative Justice, 2005 22. Article 2 of the Code provides that the task of the administrative judiciary is the protection of the rights, freedoms and interests of individuals and the rights and interests of legal entities in the sphere of public law relations from violations by State bodies, bodies of local self-government, their officials and other persons in the exercise of their powers. Under the second paragraph of this Article, any decisions, actions or omissions of the authorities may be challenged before the administrative courts.", "23. Pursuant to Article 117, an administrative court may suspend a disputed decision by way of application of an interim measure, on a party’s own initiative. This measure may be applied if there exists a real danger of harm to the plaintiff’s rights, freedoms and interests, or if there are grounds to believe that the failure to apply the measure would render impossible the protection of such rights, freedoms and interests or would require considerable efforts and expense for their restoration. It can also be applied if it is evident that the contested decision is unlawful. F. Prosecution Service Act, 1991 24.", "The relevant provisions of the Prosecution Service Act provide as follows: Section 21. Objection (protes)t by a prosecutor “An objection to [the decision] shall be lodged by a prosecutor or his deputy with the body which issued [that decision] or with a higher authority... In [his] objection a prosecutor raises a question of annulment of [the disputed decision] or of bringing it into compliance with the law... An objection by a prosecutor suspends [the decision] in respect of which it was introduced and must be examined by the relevant authority ... within ten days... In case the protest was rejected or was not examined, a prosecutor may challenge [the decision] before a court ... [w]ithin fifteen days... The introduction of such a complaint [by a prosecutor] suspends ... [the decision].” G. Refugees Act 1991 25.", "The relevant extracts from the Refugees Act provide as follows: Section 1. Glossary of terms “...a refugee is a person who is not a citizen of Ukraine and who, due to well‑founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable to avail himself of the protection of that country or, due to such fear, is unwilling to avail himself of such protection, or who, not having a nationality and being outside the country of his former permanent residence, is unable or unwilling to return to it because of the said fear...” Section 2. Legislation on refugees “Matters relating to refugees are regulated by the Constitution of Ukraine, this law, and other normative acts, as well as by international treaties which have been agreed by the Verkhovna Rada of Ukraine. If an international treaty which has been agreed to be binding by the Verkhovna Rada of Ukraine provides for rules other than those envisaged in this law, the rules of the international treaty shall apply.” Section 3. Prohibition of expulsion or forced return of a refugee to the country from which he came and where his life or freedom is endangered “No refugee may be expelled or forcibly returned to a country where his life or freedom is endangered for reasons of race, religion, ethnicity, nationality, membership of a particular social group or political opinion.", "No refugee may be expelled or forcibly returned to a country where he may suffer torture and other severe, inhuman or degrading treatment or punishment, or [to a country] from which he may be expelled or forcibly returned to a country where his life or freedom is endangered for reasons of race, religion, ethnicity, nationality, membership of a particular social group or political opinion. This article shall not apply to a refugee convicted of a serious crime in Ukraine.” H. Resolution no. 16 of the Plenary Supreme Court of 8 October 2004 on certain issues relating to the application of legislation governing the procedure and length of detention (arrest) of persons awaiting extradition 26. The relevant extracts from the resolution read as follows: “... 2. Having regard to the fact that the current legislation does not allow the courts independently to give permission for extradition of persons and that, pursuant to Article 22 of the European Convention on Extradition and similar provisions of other international treaties to which Ukraine is a party, the extradition procedure is regulated solely by the law of the requested State; the courts are not empowered to decide on this issue.", "They [the courts] cannot on their own initiative decide on preventive measures applicable to persons subject to rendition or transfer, including their detention, as these matters are to be decided by the competent Ukrainian authorities...” I. Resolution no. 1 of the Plenary Higher Administrative Court of 25 June 2009 on the judicial practice of consideration of disputes concerning refugee status, removal of a foreigner or a stateless person from Ukraine, and disputes connected with a foreigner’s or stateless person’s stay in Ukraine 27. The relevant extracts from the resolution read as follows: “... 2. ...The administrative courts enjoy jurisdiction over all disputes concerning claims by a foreigner or a stateless person challenging decisions, actions or inactivity of the authorities carrying out extradition ... except for cases concerning the authorities’ requests for arrest or detention with a view to extradition ... which fall to be considered in the framework of criminal proceedings... 16.", "Before deciding on an administrative case, the court ... may apply the measures envisaged by Article 117 of the Code of Administrative Justice... In particular, [the measures may be applied] if there exists a danger of harm to the interests of a foreigner or a stateless person, or if failure to apply the measures would render difficult or impossible the protection of a person’s rights... Given the provisions of part 4 of section 21 of the Prosecution Services Act ... the courts should take into account that the introduction of a claim by the prosecutor under the procedure envisaged by this provision has a suspensive effect on the contested decision. Therefore, in such a case there is no need to decide on the application of the [interim] measures... 23. ...In the course of consideration of a case in which a decision granting refugee status ... is being challenged, the court may find such a decision unlawful, annul it and order the respondent [authority] to re-examine a request for refugee status with due regard to the circumstances on the basis of which the court annulled the decision.", "With the annulment of the decision granting refugee status the person [concerned] may not be forcibly removed or extradited before the procedure concerning [the request for] refugee status is completed... 28. ...In the course of the consideration of a dispute in which a foreigner or a stateless person challenges a decision, actions or inactivity of the authorities carrying out extradition ... the courts should take into account that the prohibition of removal of a person under international law on human rights and protection of refugees’ rights takes precedence over any obligation to extradite... If an extradition is requested by the State of origin of a refugee, the courts should take into account that according to Article 33 (1) of the [United Nations] Convention [Relating to the Status of Refugees] of 1951 no extradition of such a person shall be carried out. In such cases the principle of non-refoulement ... provides for a complete prohibition of extradition, if it has not been established that [a refugee’s personal situation] provided for one of the exceptions [to this rule]...” J. Instruction on the procedure of consideration of extradition requests by prosecution bodies, approved by the Prosecutor General on 23 May 2007 28. The relevant provisions of the instruction read as follows: “1.", "General provisions ... The procedure ... established by the Instruction ... is aimed at [introducing] uniform approaches to [dealing with] ... foreign States’ extradition requests [and] ensuring appropriate consideration and preparation of necessary documents, securing of rights and lawful interests of persons whose extradition is requested... 3. Procedure of consideration of foreign States’ requests 3.1. Upon receipt of information concerning an arrest on the territory of Ukraine of a person wanted for crimes committed in other countries [the prosecutor responsible for the consideration of a particular request] shall immediately, and at least within three days, prepare a relevant notification of the competent body of the foreign State, in which he should ask for confirmation of the [latter’s] intention to submit a request for removal of the person. In this context, [the prosecutor] must establish the qualification of the unlawful acts, for which extradition ... will be requested, and check whether the criminal proceedings are time-barred in accordance with the legislation of Ukraine.", "At the same time, for the purposes of securing the rights of the arrested person ... the relevant prosecutors’ offices shall be given instructions to carry out a thorough examination of the lawfulness of the person’s arrest and to check if there are any circumstances capable of preventing the arrested person’s removal... If in the course of an inquiry it is established that the arrested person is a Ukrainian national or a stateless person permanently residing on the territory of Ukraine or that there are other circumstances which according to the law render the person’s extradition impossible, [the prosecutor] shall immediately submit to the Deputy Prosecutor General ... a proposal for the person’s release or for remanding the person in custody and initiating criminal proceedings in Ukraine. The foreign authority shall be informed of such circumstances and, if there are [relevant] grounds, it shall be invited to consider the possibility of transferring the criminal [case to Ukraine]... 3.3. Upon [submission by] the regional prosecutors’ offices of materials of the inquiry and information concerning any obstacles to extradition ... the prosecutor [dealing with an extradition request] shall study all the documents concerning the matter, being mindful of the need to establish certain circumstances, in particular whether: - it has been established ... which language the wanted person speaks... - in the [written] explanations of the offender the date and purpose of his arrival in Ukraine, his place of residence and registration, his nationality, any requests for asylum or refugee status, his state of health, notification of the reasons of his arrest in Ukraine are mentioned; - the lawfulness of his arrest ... has been ensured... - information has been received on the arrested person’s ability to remain in detention ... - it has been thoroughly checked if if the arrested person is a Ukrainian national, actually residing on a permanent basis in Ukraine ... [and if there are] other circumstances which could constitute an obstacle to removing the person; - a reasoned opinion concerning the matter has been received from the State body [responsible for nationality matters]. Having examined [the documents] the prosecutor ... has prepared a reasoned opinion concerning the decision to be taken by the Office of the General Prosecutor concerning the extradition request... 3.4.", "The offender ... shall be notified of the decision taken by the Office of the General Prosecutor concerning the extradition request. 3.5. If a decision to extradite is taken ... instructions concerning the organisation of the person’s transfer abroad shall be prepared... 3.7. If the person or his lawyer has lodged with the court a complaint challenging the actions of the Office of the General Prosecutor ... or its decision [to extradite], [the prosecutor] shall make available, at the court’s request, materials confirming the lawfulness and reasonableness of the decision...” III. Relevant international materials concerning the human rights situation in KAZAKHSTAN A.", "Concluding observations of the United Nations Committee against Torture (“the CAT”) of 12 December 2008 29. At its forty-first session (3-21 November 2008) the CAT considered its second periodic report on Kazakhstan. The relevant extracts from its concluding observations provide as follows: “6. While the Committee acknowledges the efforts made by the State party to enact new legislation incorporating the definition of torture of the Convention [against Torture] into domestic law, it remains concerned that the definition in the new article 347-1 of the Criminal Code [of the Republic of Kazakhstan] does not contain all the elements of Article 1 of the Convention, restricts the prohibition of torture to acts by “public officials” and does not cover acts by “other persons acting in an official capacity”, including those acts that result from instigation, consent or acquiescence on the part of a public official. The Committee notes further with concern that the definition of Article 347-1 of the Criminal Code excludes physical and mental suffering caused as a result of “legitimate acts” on the part of officials... 7.", "The Committee is concerned about consistent allegations concerning the frequent use of torture and ill-treatment, including threat of sexual abuse and rape, committed by law enforcement officers, often to extract “voluntary confessions” or information to be used as evidence in criminal proceedings, so as to meet the success criterion determined by the number of crimes solved... 8. The Committee is particularly concerned about allegations of torture or other ill‑treatment in temporary detention isolation facilities (IVSs) and in investigation isolation facilities (SIZOs) under the jurisdiction of the Ministry of Internal Affairs or National Security Committee (NSC), especially in the context of national and regional security and anti-terrorism operations conducted by the NSC. The Committee notes with particular concern reports that the NSC has used counter-terrorism operations to target vulnerable groups or groups perceived as a threat to national and regional security, such as asylum seekers and members or suspected members of banned Islamic groups or Islamist parties... 9. The Committee is deeply concerned at allegations that torture and ill-treatment of suspects commonly takes place during the period between apprehension and the formal registration of detainees at the police station, thus providing them with insufficient legal safeguards. The Committee notes in particular: (a) the failure to acknowledge and record the actual time of the arrest of a detainee, as well as unrecorded periods of pre-trial detention and investigation; (b) Restricted access to lawyers and independent doctors and failure to notify detainees fully of their rights at the time of apprehension; (c) The failure to introduce, through the legal reform of July 2008, habeas corpus procedure in full conformity with international standards... 10.", "The Committee expresses concern that the right of an arrested person to notify relatives of his/her whereabouts may be postponed for seventy-two hours from the time of detention, in the case of so-called “exceptional circumstances”... 11. The Committee notes with concern the Government’s acknowledgement of frequent violations of the Code of Criminal Procedure by State party officials as regards the conduct of an interview within a twenty-four-hour period, detention prior to the institution of criminal proceedings, notification of relatives of the suspect or accused person of that person’s detention within twenty-four hours, and the right to counsel. The Committee is also concerned that most of the rules and instructions of the Ministry of Interior, the Prosecutor’s Office and especially the National Security Committee are classified as “for internal use only” and are not in the realm of public documents. These rules leave many issues to the discretion of the officials, which results in claims that, in practice, detainees are not always afforded the rights of access to fundamental safeguards... 13. The Committee is concerned that Article 14 of the Code of Criminal Procedure provides for forced placement of suspects and defendants at the stage of pre-trial investigation in medical institutions in order to conduct a forensic psychiatric expert evaluation.", "The Committee notes with further concern that the grounds for making such a decision are subjective and that the law fails to regulate the maximum duration of forced placement into a medical institution, as well as to guarantee the right to be informed of and to challenge methods of medical treatment or intervention... 17. The Committee expresses concern that sentences of those convicted under Part 1 of article 347-1 of the Criminal Code are not commensurate with the gravity of the offence of torture as required by the Convention... 18. The Committee is also concerned that despite the criminalisation of torture in 2002 in a separate article of the Criminal Code, it appears that when prosecuted, law enforcement officials continue to be charged under Articles 308 or 347 of the Criminal Code (“Excess of authority or official power” or “Coercion into making a confession” respectively)... 21. The Committee welcomes the successful reform of much of the Kazakh penitentiary system through the adoption of programmes conducted in close cooperation with international and national organisations, as well as the enactment of new laws and regulations. It further notes that this reform resulted in a decrease in the rate of pre-trial detention, an increased use of alternative sanctions to imprisonment, more humane conditions of detention, and a marked improvement in the conditions of detention in post-conviction detention facilities.", "However, the Committee remains concerned at: (a) The deterioration of prison conditions and stagnation in the implementation of penal reforms since 2006; (b) Persistent reports of abuse in custody; (c) Poor conditions of detention and persistent overcrowding in detention facilities; (d) Excessive use of isolation with regards to pre-trial detainees and prisoners and lack of regulation of the frequency of such isolation; (e) Instances of group self-mutilation by prisoners reportedly as a form of protest for ill-treatments; (f) Lack of access to independent medical personnel in pre-trial detention centres and reported failure to register signs of torture and ill-treatment or to accept detainee’s claims of torture and ill-treatment as the basis for an independent medical examination; (g) Persistent high incidence of death in custody, in particular in pre-trial detention (such as the case of the former KNB General Zhomart Mazhrenov), some of which are alleged to have followed torture or ill-treatment... 22. While welcoming the creation in 2004 of the Central Public Monitoring Commission and in 2005 of regional independent public monitoring commissions with the power to inspect detention facilities, the Committee remains concerned that their access to IVSs is neither automatic nor guaranteed and that their access to medical institutions has yet to be considered. Furthermore, it has been reported that the commissions have not been granted the right to make unannounced visits to detention facilities, that they are not always given unimpeded and private access to detainees and prisoners, and that some inmates have been subjected to ill-treatment after having reported to the commissions’ members... 23. The Committee welcomes the creation of the Human Rights Commissioner (Ombudsman) in 2002 with a broad mandate and notably the competence to consider communications of human rights violations and to conduct visits of places of deprivation of liberty. The Committee notes however with concern that the ombudsman’s competencies are substantially limited and that it lacks independence due to the fact that it does not have its own budget.", "The Committee notes with further concern that the mandate of the Human Rights Commissioner does not empower it to investigate action taken by the Prosecutor’s office... 24. The Committee notes with concern that the preliminary examinations of reports and complaints of torture and ill-treatment by police officers are undertaken by the Department of Internal Security, which is under the same chain of command as the regular police force, and consequently do not lead to prompt and impartial examinations. The Committee notes with further concern that the lengthy period for preliminary examination of torture complaints, which can last up to two months, may prevent timely documentation of evidence... 25. While noting with satisfaction the introduction of many fundamental legislative amendments, the Committee remains concerned about allegations, as reported by the Special Rapporteur on the independence of judges and lawyers in 2005 (see E/CN.4/2005/60/Add.2), of a lack of independence of judges since the designation of oblast and rayon judges rests entirely with the President... 26. While welcoming the adoption of a recent legal amendment transferring the power of issuing arrest warrants to courts solely, the Committee expresses concern, however, at the preeminent role performed by the Procuracy.", "The Committee reiterates the concerns expressed in its previous concluding observations (A/56/44, para. 128(c)) regarding the insufficient level of independence and effectiveness of the Procurator, in particular due to its dual responsibility for prosecution and oversight of proper conduct of investigations and failure to initiate and conduct prompt, impartial and effective investigations into allegations of torture and ill-treatment... 27. The Committee notes with concern the report by the Special Rapporteur on the independence of judges and lawyers that defence lawyers lack adequate legal training and have very limited powers to collect evidence, which conspires to hamper their capacity to counterbalance the powers of the Prosecutor and impact on the judicial process. The Committee notes with further concern allegations that the procedure of appointing a lawyer lacks transparency and independence... 28. While welcoming the information provided by the delegation that victims of torture have the opportunity to be compensated, the Committee is concerned, nevertheless, at the lack of examples of cases in which the individual received such compensation, including medical or psychosocial rehabilitation... 29.", "While welcoming the assurance given by the delegation that judges reject such evidence in court proceedings, the Committee notes however with grave concern reports that judges often ignore the complaints of torture and ill-treatment, do not order independent medical investigations, and often proceed with the trials, therefore not respecting the principle of non-admissibility of such evidence in every instance...” B. Extracts from the reports of Human Rights Watch and Amnesty International concerning criminal prosecution of leaders of the Democratic Choice of Kazakhstan opposition party and others in opposition to the Kazakh authorities 30. In its 2004 report “Political Freedoms in Kazakhstan”, Human Rights Watch made the following observations: “...On November 18, 2001, the day after Abliazov lost his bid for control of Halyk Savings Bank, he and Zhakianov founded Democratic Choice of Kazakhstan (DVK). The new organisation’s platform included broadening the parliament’s powers, establishing direct elections of regional political leaders, instituting electoral and judicial reform, and expanding media freedoms. As of the end of 2003, it reportedly had about 32,000 members. The central government’s response to the establishment of DVK was to immediately dismiss its members who held government posts and to prosecute others.", "On November 20, just two days after DVK’s formation was announced, Zhakianov was abruptly dismissed from his post as governor of Pavlodar. Other DVK founding members and principals who were also senior government officials – including a deputy prime minister, the deputy minister of defence, the minister of labour, and a deputy finance minister – were also dismissed. Zhakianov’s four deputies from the Pavlodar governor’s office were immediately fired, and almost twenty other Pavlodar provincial and local government members perceived as DVK supporters were alleged to have submitted \"voluntary\" resignations in the wake of the DVK’s founding. In late December 2001, state authorities brought charges of abuse of position against two of Zhakianov’s Pavlodar administration deputies, Sergei Gorbenko and Aleksandr Riumkin. A few days later, on January 4, 2002, the same charges were brought against Zhakianov.", "Confrontation between the DVK and the Nazarbaev government was heated during the early days after its founding. On January 19-20, 2002, the DVK joined forces with other opposition groups and led large-scale meetings in Almaty, attracting about 1,000 participants. At the meeting, Zhakianov and other prominent political figures delivered speeches that criticized the Nazarbaev government, and Zhakianov called for a referendum on the direct election of regional political leaders. President Nazarbaev countered on January 25 with a speech criticising the meeting, and demanded that law enforcement agencies take steps to stop \"the buffoonery\". The government also moved to restrict information about the DVK and its calls for reform.", "Television stations that had covered DVK activities, including the Almaty‑based Tan and Pavlodar-based Irbis were abruptly taken off the air. Publishing houses came under pressure from the government, and as a result refused to print DVK material. Committee for National Security (KNB) and other security officials interrogated meeting participants in at least five provinces. In the days that followed the Almaty gathering, criminal charges of abuse of position and financial mismanagement were brought against Mukhtar Abliazov. Then, on March 27 2002, following publication of materials on “Kazakhgate” in Abliazov-controlled media, Abliazov himself was arrested.", "Five months later, both Abliazov and Zhakianov were convicted on charges of abuse of office and sentenced to six and seven-year prison terms respectively, during trials that international observers called grossly flawed...” 31. Several Amnesty International reports dating back to 2002 referred to politically motivated prosecutions of persons who openly disagreed with and criticised the Kazakh authorities. In particular, in its report ‘Concerns in Europe and Central Asia: January - June 2002’, published on 1 September 2002, Amnesty International observed that: “...[In Kazakhstan] [i]n the period under review, criminal cases were opened on charges of “abuse of office” and financial crimes against two well-known leaders of the opposition party Democratic Choice for Kazakstan (DCK), Mukhtar Ablyazov - the former Minister of Energy, Industry and Trade - and Galymzhan Zhakiyanov - the former Governor of the Northern Pavlodar region. There were reports that the charges were brought to punish them for their peaceful opposition activities. Mukhtar Ablyazov was detained on 27 March [2002], and on 28 March [2002] a criminal case was reportedly opened against Galymzhan Zhakiyanov.", "Galymzhan Zhakiyanov subsequently sought refuge in the French embassy in Almaty from 29 March to 3 April [2002]. He reportedly agreed to leave the embassy and be placed under house arrest on condition that he had free access to lawyers and that embassy representatives of European Union states could visit him freely. On 10 April [2002] police transferred him to the town of Pavlodar, where he was also kept under house arrest.” 32. Its next report “Concerns in Europe and Central Asia: July - December 2002”, published on 1 July 2003, contained the following observations: “...Mukhtar Ablyazov and Galymzhan Zhakiyanov, two former senior government officials and well-known leaders of the opposition Democratic Choice for Kazakstan movement, were sentenced to six and seven years’ imprisonment respectively, on charges of “abuse of office” and financial crimes, including misappropriation of state funds. Mukhtar Ablyazov was convicted on 18 July [2002] by the Supreme Court of Kazakstan and Galymzhan Zhakiyanov was convicted on 2 August [2002] by Pavlograd city court...", "Reportedly, the trials of both men did not conform to international fair trial standards. There were allegations of limited access to both men by lawyers and family members before and after the trial... Despite a sharp deterioration in Galymzhan Zhakiyanov’s health as a result of interrogations in May and June [2002], the investigator had reportedly insisted on continuing interrogating him... Mukhtar Ablyazov and Galymzhan Zhakiyanov were apparently targeted because of their peaceful opposition activities... Forty-nine-year old Sergey Duvanov – independent journalist and editor of a human rights bulletin – was arrested by police on 28 October [2002], accused of having raped a minor. The trial against him opened on 24 December [2002] in Karasay district court in Almaty region. There were allegations that the rape charge was brought to discredit him and that the case was politically motivated.", "Reportedly, Sergey Duvanov had been targeted before to punish him for his independent journalism. He had been interrogated by the security service in Almaty on 9 July [2002] and subsequently charged with “insulting the honour and dignity of the President” (Article 318 of the Criminal Code of Kazakhstan), reportedly in connection with an article implicating governmental officials in financial crimes; on 28 August [2002] he was assaulted by three unidentified men in plainclothes and had to be hospitalised...” 33. In November 2008 Amnesty International submitted its briefing ‘Kazakhstan: Summary of Concerns on Torture and Ill-treatment’ to the CAT to complement the information concerning the human rights situation in Kazakhstan provided by various domestic and international NGOs with the aim of assisting the CAT in the examination of the Kazakhstan’s second periodic report under Article 19 of the Convention against Torture (see above). This briefing covered the period 2002-08 with more emphasis on recent years, and focused on Amnesty International’s “most pressing concerns about the failures of the authorities in Kazakhstan to implement fully and effectively Articles 2, 3, 4, 11, 12, 13, 15 and 16 of the Convention against Torture”. The relevant extracts from the briefing read as follows: “...Amnesty International has ... received allegations in some high-profile criminal cases linked to the prosecution and conviction in absentia of the former son-in-law of President Nazarbaev, Rakhat Aliev, for planning an alleged coup attempt and several other charges, that associates or employees of Rakhat Aliev were arbitrarily detained by NSS officers, held incommunicado in pre-charge and pre-trial detention facilities where they were tortured or otherwise ill-treated with the aim of extracting “confessions” that they had participated in the alleged coup plot.", "In at least one case, relatives have alleged that the trial was secret and that the accused did not have access to adequate defense...” 34. The same document also contained more general observations relating to the issue of torture and ill-treatment in Kazakhstan: “...Amnesty International remains concerned that despite efforts by the authorities of Kazakhstan to fulfill their obligations under the CAT and implement recommendations made by the Committee in 2001 torture and other ill-treatment remain widespread and such acts continue to be committed with virtual impunity... According to reports received by Amnesty International from domestic and international non-governmental organizations (NGOs) and inter-governmental organizations (IGOs), lawyers, diplomats, citizens and foreign nationals, beatings by law enforcement officers, especially in temporary pre-charge detention centers, in the streets or during transfer to detention centers, are still routine. From interviews Amnesty International conducted in 2006 and 2008 with concerned organizations and individuals it has emerged that torture or other ill-treatment in detention continues to be widespread, despite the safeguards against torture or other ill-treatment which the authorities have introduced and the education, reform and training programs for law enforcement forces and the judiciary often run in conjunction and in cooperation with NGOs and IGOs. While, by all accounts, Kazakhstan had implemented a successful reform of its penitentiary system - starting with the transfer of the prison system to the Ministry of Justice in late 2001 - with significant improvements in the conditions of detention in post-conviction detention centers, the last two years have reportedly seen a decline in prison conditions, and many of the abusive practices reoccurring more and more often.", "Comparatively few law enforcement officers – even according to official figures – have been brought to trial and held accountable for violations they have committed, including torture, and yet scores of people throughout the country routinely allege that they have been arbitrarily detained and tortured or ill-treated in custody in order to extract a “confession”. Evidence based on such “confessions” is still routinely admitted in court. Corruption in law enforcement and the judiciary is believed to contribute largely to a climate of impunity. This climate of impunity leads to a lack of public confidence in the criminal justice system. It was reported to Amnesty International that people only rarely lodge complaints as they feel that they will not obtain justice, nor get compensation.", "Many are not willing to testify against law enforcement officers out of fear of reprisals against themselves or their relatives and associates...” 35. As regards the application of the death penalty in Kazakhstan, Amnesty International made the following observations: “...In May 2007 the scope of the application of the death penalty permitted by the constitution was reduced from 10 \"exceptionally grave\" crimes to one – that of terrorism leading to loss of life. The death penalty also remains a possible punishment for \"exceptionally grave\" crimes committed during times of war. A person sentenced to death in Kazakhstan retains the right to petition for clemency. A moratorium on executions, which had been imposed in 2003, remained in force and no death sentences were passed during 2007 and the first 10 months of 2008.", "All 31 prisoners on death row had their sentences commuted to life imprisonment...” THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTION 36. The Government submitted that as there had been no decision to extradite the applicants they did not have victim status in the present case. The Government further stated that the Office of the General Prosecutor of Ukraine had provided assurances that no decision on extradition would be taken before the Court considered the case. 37.", "The Government also noted that the applicants had obtained refugee status and argued that the fact that the proceedings concerning the lawfulness of the decisions granting them refugee status were pending did not mean that those decisions were not in force. 38. The applicants contended that they could still claim to be victims within the meaning of Article 35 of the Convention, as the extradition proceedings against them were still pending, the ongoing Strasbourg proceedings in their case having been the only obstacle to their extradition to Kazakhstan. 39. They also submitted that their refugee status in reality did not prevent the Ukrainian authorities from extraditing them.", "In this respect, the applicants referred to a case currently pending before the Court, Kuznetsov v. Ukraine, no. 35502/07, in which the Ukrainian prosecutors dealing with extradition matters had removed a person from Ukraine despite his refugee status. 40. The Court notes that the extradition proceedings against the applicants have not been discontinued and, according to the Government, are informally suspended pending the outcome of the Strasbourg proceedings. The Kazakh authorities’ requests for the applicant’s extradition are still valid.", "41. The Court further observes that there is no clarity in the national law or the practice of its application as regards the legal effect of challenges by the prosecutors to decisions granting refugee status. In particular, given the relevant provisions of the Prosecution Service Act and the position of the Plenary Higher Administrative Court, it may not be excluded that the introduction of an administrative claim by the prosecutors has a suspensive effect on any contested decision, including a decision granting refugee status (see paragraphs 24 and 27 above). Moreover, the Government did not contest the applicants’ submission concerning the removal from Ukraine of an applicant in another case pending before the Court, despite his refugee status. 42.", "In the light of the foregoing, the Court is of the opinion that the applicants are still under threat of extradition, notwithstanding their refugee status, and therefore have not lost their victim status (compare with Novik v. Ukraine (dec.), no. 48068/06, 13 March 2007; Svetlorusov v. Ukraine, no. 2929/05, §§ 37-38, 12 March 2009; and Dubovik v. Ukraine, nos. 33210/07 and 41866/08, §§ 40-41, 15 October 2009). The Court accordingly dismisses this objection by the Government.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 43. The applicants complained that, if extradited, they would face a risk of being subjected to torture and inhuman or degrading treatment by the Kazakh law-enforcement authorities, which would constitute a violation of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 44. The Government contested that argument. A. Admissibility 45.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 46.", "The applicants submitted that they were wanted by the Kazakh authorities for their political activities in that country and alleged that if extradited to Kazakhstan they would be tortured by the authorities with the aim of extracting their confessions and subjected to the unacceptable conditions of detention. According to them, the Kazakh legal system did not guarantee either effective protection against torture and ill-treatment or adequate investigation of allegations of ill-treatment. In this respect they referred to reports of various international organisations and governmental bodies concerning the human rights situation in Kazakhstan. The applicants, citing the Court’s judgment in Soldatenko v. Ukraine (no. 2440/07, § 73, 23 October 2008), argued that the assurances against ill-treatment provided by the Office of the General Prosecutor of Kazakhstan were not legally binding on that State.", "47. The Government contended that they had received sufficient assurances from the Kazakh authorities that the applicants’ rights under Article 3 of the Convention would not be violated if they were extradited to Kazakhstan. The Government also stated that they had never received complaints about ill-treatment by the Kazakh authorities from people who had been extradited to Kazakhstan in the past. According to the Government, the applicants’ prosecution in that country was not of a political nature. 48.", "The Court reiterates that that extradition by a Contracting State may give rise to an issue under Article 3 and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question would, if extradited, face a real risk of being subjected to treatment contrary to Article 3 in the receiving country (see Soldatenko, cited above, § 66). In line with its case‑law, the Court needs to establish whether there exists a real risk of ill‑treatment of the applicants in the event of their extradition to Kazakhstan. 49. In this context, the Court observes that according to the information concerning the human rights situation in that country obtained from the UN Committee Against Torture, Human Rights Watch and Amnesty International (see paragraphs 29-34 above) there were numerous credible reports of torture, ill-treatment of detainees, routine beatings and the use of force against criminal suspects by the Kazakh law-enforcement authorities to obtain confessions. All the above reports equally noted very poor prison conditions, including overcrowding, poor nutrition and untreated diseases.", "50. Furthermore, it appears that people associated with the political opposition in Kazakhstan were and continue to be subjected to various forms of pressure by the authorities, mainly aimed at punishing them for, and preventing them from engaging in, opposition activities. In this respect, the Court observes that the applicants’ allegations of political persecution in Kazakhstan were confirmed by the Ukrainian authorities in the decision by which the applicants were granted refugee status (see paragraph 8 above). The Court does not doubt the credibility and reliability of the above information and the respondent Government failed to adduce any evidence or arguments capable of rebutting the assertions made in the reports. 51.", "Finally, the Court considers that the assurances that the applicants would not be ill-treated given by the Kazakh prosecutors cannot be relied in the present case, for the same reasons as in Soldatenko (cited above, § 73). In particular, it was not established that the First Deputy Prosecutor General of Kazakhstan or the institution which he represented was empowered to provide such assurances on behalf of the State and, given the lack of an effective system of torture prevention, it would be difficult to see whether such assurances would have been respected. 52. Accordingly, the Court concludes that the applicants’ fears of possible ill-treatment in Kazakhstan are well-founded and holds that their extradition to that country would give rise to a violation of Article 3 of the Convention. III.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 53. The applicants complained that if they were extradited to Kazakhstan they were likely to be subjected to an unfair trial, and that by extraditing them Ukraine would violate Article 6 of the Convention, which reads, 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 an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2.", "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.” 1. Submissions by the parties (a) The Government 54. The Government, referring to the Court’s judgment in Soering v. the United Kingdom (7 July 1989, § 113, Series A no.", "161), submitted that the present case did not concern ‘exceptional’ circumstances calling for a consideration of the applicants’ allegations of the risk of suffering a flagrant denial of justice. 55. According to the Government, they were not in a position to assess how the judicial system actually operates in Kazakhstan. Nonetheless, they argued that Kazakh legislation provided for adequate guarantees of a fair trial and that they had obtained assurances from the Kazakh authorities that the applicants’ procedural rights would be respected. (b) The applicants 56.", "The applicants reiterated that they were wanted by the Kazakh authorities for their political activities in that country. In particular, their criminal prosecution was aimed at punishing them for supporting the political opposition and also at extracting information from them to be used against the former opposition leaders. 57. According to the applicants, the persecutions of those in opposition to the Kazakh authorities took the form of criminal proceedings, in the course of which no fair trial guarantees were available to such people. The latter were often tortured with the aim of extracting confessions from them; they were denied access to a lawyer or were not given adequate time to prepare their defence.", "The judges dealing with politically motivated criminal cases were neither independent nor impartial and did not observe the principles of rule of law and fair trial. In this respect, the applicants referred to reports from various international organisations, including Amnesty International and Human Rights Watch (see paragraphs 30-34 above). 58. The applicants argued that in such circumstances, if extradited to Kazakhstan, they would be exposed to a flagrant denial of justice. They also alleged that their extradition by the Ukrainian authorities without a careful examination of the real situation in the field of administration of justice in Kazakhstan would be contrary to Article 6 of the Convention.", "(c) The third party 59. The submissions of the third party concerned the application of the principle of non-refoulement in situations where there was a risk of a flagrant denial of fair trial rights. 60. According to the third party, it was generally recognised by the Court, other international tribunals and some national courts, that no extradition of individuals facing a real risk of a flagrant denial of justice should take place. In particular, they referred to the judgment in Drozd and Janousek, in which the Court held that “the Contracting States are ... obliged to refuse to cooperate if it emerges that the conviction is the result of a flagrant denial of justice” (see Drozd and Janousek v. France and Spain, 26 June 1992, § 110, Series A no.", "240). They noted however that this position was not further elaborated in the Strasbourg proceedings. Thus, the third party requested the Court to examine this aspect of the case on the merits, given the importance of the Article 6 guarantees for the assessment of the refoulement matters. 2. The Court’s assessment 61.", "The Court reiterates that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country (see Soering, cited above). In this context, the Court notes that in cases raising issues similar to those in the present case it did not find it necessary to examine complaints of the risk of a flagrant denial of justice in case of extradition, if such extradition has already been held to be contrary to Article 3 of the Convention (see, for instance, Saadi v. Italy [GC], no. 37201/06, § 160, ECHR 2008‑...; Ismoilov and Others v. Russia, no. 2947/06, § 156, 24 April 2008; and Sellem v. Italy, no. 12584/08, § 47, 5 May 2009).", "62. In the instant case the Court has already held that the applicants’ extradition to Kazakhstan would give rise to a violation of Article 3 of the Convention (see paragraph 52 above). It discerns no exceptional circumstances justifying a departure from its previous case-law. 63. Accordingly, the Court declares the applicants’ complaint under Article 6 of the Convention admissible and finds that it is not necessary to examine it separately.", "IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 64. The applicants complained that they had no effective remedies to prevent or challenge their extradition on the ground of the risk of ill‑treatment. 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.” A. Admissibility 65. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Submissions by the parties 66.", "The applicants submitted, relying on the Court’s findings in Soldatenko (cited above, §§ 82-83), that the domestic legal system did not provide for an effective remedy to prevent or challenge a decision on extradition on the ground of a risk of ill-treatment. They also argued that the Instruction on the procedure of consideration of extradition requests by the prosecution bodies, to which the Government referred in their submissions, had not been published in accordance with the domestic rules and was not accessible to the public for the purposes of Article 13 of the Convention. 67. The Government stated that the applicants had effective domestic remedies in respect of their complaints under Article 3 of the Convention, but had failed to make use of them. 68.", "In particular, the Government submitted that the applicants could lodge such complaints with the prosecutors dealing with their extradition requests, who would examine them under paragraph 3.1 of the Instruction on the procedure of consideration of extradition requests by the prosecution bodies, approved by the Prosecutor General on 23 May 2007 (see paragraph 28 above). According to the Government, this instruction was published on the Verkhovna Rada’s website. 69. The Government further argued that Article 2 of the Code of Administrative Justice made it possible to challenge before the courts any possible decision on the applicants’ extradition and to raise allegations of a risk of being subjected to the treatment contrary to Article 3 of the Convention in case of extradition, the courts having been under the obligation to consider such allegations. In support of the latter argument, the Government submitted a copy of the resolution of the Kyiv Administrative Court of 2 July 2008, by which the prosecutors’ decision to extradite a national of that State to the Russian Federation had been annulled on the ground that the prosecutors had failed to take into account the evidence that, given his specific situation, the person faced a real risk of being subjected to ill-treatment in that country.", "The domestic court also found that the extradition decision had been contrary to Article 3 of the European Convention on Extradition of 1957. 2. The Court’s assessment 70. The Court reiterates at the outset that Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision.", "Moreover, in certain circumstances the aggregate of remedies provided by national law may satisfy the requirements of Article 13 (see Chahal v. the United Kingdom, 15 November 1996, § 145, Reports of Judgments and Decisions 1996‑V). 71. Given the irreversible nature of the harm which might occur if the alleged risk of torture or ill-treatment materialised, and the importance which the Court attaches to Article 3, the notion of an effective remedy under Article 13 requires (i) independent and rigorous scrutiny of a claim that there exist substantial grounds for believing that there was 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, for instance, Muminov v. Russia, no. 42502/06 , § 101, 11 December 2008). 72.", "Turning to the parties’ submissions in the present case, the Court notes that it has already dealt with the Government’s similar arguments concerning domestic remedies in extradition matters in Soldatenko (cited above). In that case the Court held that there was no effective domestic remedy, as required by Article 13 of the Convention, by which an extradition decision could be challenged on the ground of a risk of ill‑treatment on return. In particular, the Court noted that, although under the provisions of the Code of Administrative Justice the administrative courts could potentially review a decision to extradite in the light of a complaint of a risk of ill-treatment, the Government had failed to give any indication of the powers of the courts in such matters or to submit any examples of cases in which an extradition decision had been reviewed on the merits, while the applicant had submitted court decisions to the contrary. 73. Unlike in Soldatenko, in the present case the Government submitted in support of its arguments copies of the prosecutors’ internal regulations on the procedure of consideration of extradition requests and of the resolution of the Kyiv Administrative Court concerning a case in which an extradition decision had been successfully challenged on the ground of a risk of ill‑treatment.", "74. As regards the prosecutors’ regulations, the Court notes that they do not specifically provide for a thorough and independent assessment of any complaints of a risk of ill-treatment in case of extradition. Moreover, they do not provide for a time-limit by which the person concerned is to be notified of an extradition decision or a possibility of suspending extradition pending a court’s consideration of a complaint against such a decision. Therefore, the Court cannot agree with the Government that the procedure of consideration of extradition requests by the prosecutors constitute an effective domestic remedy, within the meaning of Article 13 of the Convention. In these circumstances, the Court does not find it necessary further to examine whether the regulations were duly made accessible to the public.", "75. As regards the possibility of challenging extradition decisions before the administrative courts, the Court notes that judicial review proceedings constitute, in principle, an effective remedy within the meaning of Article 13 of the Convention in relation to complaints in the context of expulsion and extradition, provided that the courts can effectively review the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate (see Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 99, ECHR 2002‑II). However, where an applicant seeks to prevent his or her removal from a Contracting State, such a remedy will only be effective if it has automatic suspensive effect (see Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 66, ECHR 2007‑V).", "76. In this context, the Court observes that an application to the administrative courts made under Article 2 of the Code of Administrative Justice seeking the annulment of an extradition decision does not have automatic suspensive effect. A specific staying order is required under Article 117 of the Code to suspend a disputed decision. An administrative court has discretionary powers in these matters and may issue such an order at a party’s request or on its own initiative. 77.", "Therefore, even assuming that the applicants are served with extradition decisions in due time enabling them to challenge the decisions before the administrative courts and that the latter have jurisdiction over such matters, there are no guarantees that the decisions will not actually be enforced before the courts have had an opportunity to review them. The decision of the Kyiv Administrative Court, a copy of which the Government provided, does not contain information capable of persuading the Court to reach a different conclusion. 78. In the light of the foregoing, the Court concludes that the applicants were not afforded an effective and accessible remedy in relation to their complaints under Article 3 of the Convention. There has accordingly been a violation of Article 13 of the Convention.", "V. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 79. The first applicant complained under Article 2 of the Convention that, given the charges against him (conspiracy to murder) and the allegedly vague Constitutional provisions on the death penalty, there was a real risk that he would be subjected to capital punishment in Kazakhstan if he was extradited to that country. He also maintained that the moratorium on executions imposed by the President of the Republic of Kazakhstan could be discontinued if the Kazakh Parliament decided that the legislative provisions on the death penalty remained in force. 80. The Court observes that, according to Amnesty International, the Constitution of the Republic of Kazakhstan reduced the scope of application of the death penalty to crimes of terrorism leading to loss of life and “exceptionally grave” crimes committed during times of war.", "The moratorium on executions imposed in 2003 remains in force. No death sentences were passed during 2007 and the first ten months of 2008 and all thirty-one prisoners on death row had their sentences commuted to life imprisonment (see paragraph 35 above). 81. The Court further notes that the Office of the General Prosecutor of the Republic of Kazakhstan provided assurances that the prosecutors would not request the death penalty in the first applicant’s trial. 82.", "In these circumstances, the Court is not persuaded that the first applicant risks the death penalty in case of his possible extradition to Kazakhstan. The mere possibility of such a risk because of the alleged ambiguity of the relevant domestic legislation cannot in itself involve a violation of Article 2 of the Convention (see, for instance, Shamayev and Others v. Georgia and Russia, no. 36378/02, § 371, ECHR 2005‑III, and, to the contrary, Bader and Kanbor v. Sweden, no. 13284/04, §§ 43-46, ECHR 2005‑XI). Accordingly, the Court rejects the complaint as manifestly ill‑founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 83. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 84. The applicants did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award them any sum on that account.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints under Articles 3, 6, and 13 of the Convention admissible and the remainder of the application inadmissible; 2. Holds that the applicants’ extradition to Kazakhstan would be in violation of Article 3 of the Convention; 3. Holds that there is no need to examine whether the applicants’ extradition to Kazakhstan would be in violation of Article 6 of the Convention; 4. Holds that there has been a violation of Article 13 of the Convention.", "Done in English, and notified in writing on 18 February 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]

[ "SECOND SECTION CASE OF KORONCZAI v. HUNGARY (Application no. 7680/05) JUDGMENT STRASBOURG 10 June 2008 FINAL 10/09/2008 This judgment may be subject to editorial revision. In the case of Koronczai v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Antonella Mularoni,Vladimiro Zagrebelsky,Danutė Jočienė,Dragoljub Popović,András Sajó,Işıl Karakaş, judges, and Sally Dollé, Section Registrar, Having deliberated in private on 20 May 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 7680/05) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Ms Teréz Koronczai (“the applicant”), on 28 January 2005.", "2. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement. 3. On 14 June 2007 the Court decided to give notice of the application to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.", "THE FACTS 4. The applicant was born in 1953 and lives in Székesfehérvár. 5. In the context of her dismissal from employment with the State Railways, on 29 April 2003 the applicant brought an action before the Székesfehérvár Labour Court claiming outstanding wages. She requested legal aid.", "On 9 October 2003 the case was transferred to the Budapest Labour Court. However, a legal-aid lawyer was appointed for the applicant only on 22 March 2004. 6. On 1 September 2004 the lawyer submitted the applicant’s recapitulated action. 7.", "On 5 and 12 May and 29 September 2005 hearings took place. On the latter date, a partial decision was adopted. 8. On 8 May 2006 the remainder of the applicant’s claims was partially accepted. On 25 September 2006 the applicant appealed.", "9. On 11 July 2007 the Budapest Regional Court upheld the first instance decision. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 10. The applicant complained that the proceedings had been protracted to such an extent that it infringed her right to an effective remedy, enshrined in Article 13 of the Convention.", "The Court considers that the complaint falls to be examined 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...” 11. The Government contested the applicant’s argument. 12. The period to be taken into consideration began on 29 April 2003 and ended on 11 July 2007. It thus lasted over four years and two months for two levels of jurisdiction.", "A. Admissibility 13. 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 14. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). The Court reiterates that special diligence is necessary in employment disputes (Ruotolo v. Italy, judgment of 27 February 1992, Series A no. 230-D, p. 39, § 17).", "15. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present application (see Frydlender, cited above), especially in view of the labour-law nature of the litigation. 16. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present circumstances. Having regard to its case-law on the subject, the Court finds that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "There has accordingly been a breach of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 17. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 18.", "In general terms, the applicant claimed pecuniary and non-pecuniary damage, without quantifying those claims. 19. The Government contested the claims. 20. 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 her EUR 2,500 under that head. B. Costs and expenses 21. The applicant made no costs claim.", "C. Default interest 22. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final 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, to be converted into Hungarian forints at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 June 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise TulkensRegistrarPresident" ]

[ "FIRST SECTION CASE OF KOPF AND LIBERDA v. AUSTRIA (Application no. 1598/06) JUDGMENT STRASBOURG 17 January 2012 FINAL 17/04/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kopf and Liberda v. Austria, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Elisabeth Steiner,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Julia Laffranque,Linos-Alexandre Sicilianos,Erik Møse, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 13 December 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "1598/06) 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 two Austrian nationals, Ms Anna Kopf and Mr Viktor Liberda (“the applicants”), on 22 December 2005. 2. The applicants were represented by Mr P. Ozlberger, 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 for European and International Affairs. 3.", "The applicants alleged, in particular, that the belated decision of the Austrian courts on their request for the right to visit their former foster child breached their right to respect for their family life. 4. On 17 December 2008 the President of the First Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1953 and 1943 respectively and live in Vienna. 6. In 1997 the biological mother of F., then two years old and born out of wedlock, set her apartment on fire after having consumed drugs. The mother and her child were rescued and, on 19 December 1997, the Vienna Youth Welfare Office (Amt für Jugend und Familie) handed F. over to the applicants as foster parents.", "7. The applicants subsequently tried to obtain custody of F. and wanted to adopt him. F.’s mother recovered and was at first allowed access to visit her son. She then tried to obtain custody of F., which led to arguments between her and the applicants. Since these disputes were to the detriment of F., he was given to a “crisis foster family” (Krisenpflegefamilie) on 25 October 2001 for approximately eight weeks.", "After that period F. was handed over to his biological mother, who obtained provisional custody of him following a decision of the Vienna Juvenile Court (Jugendgerichtshof) on 19 December 2001. This decision entered into force on 18 December 2002, when the Supreme Court rejected an appeal by the applicants (Revisionsrekurs). 8. In the meantime on 20 December 2001 the applicants requested the right to visit F. Thereupon the Juvenile Court asked the Vienna Youth Welfare Office for their observations on the applicants’ request. 9.", "The Vienna Youth Welfare Office submitted observations on 31 December 2001, stating that because of the long-lasting relationship between F. and the applicants it would be inappropriate not to allow access to the foster parents. 10. On 31 January 2002 the Juvenile Court heard the biological mother, who opposed the granting of visiting rights to the applicants because F. was in the process of getting used to her again. 11. On 8 February 2002 the applicants requested the acceleration of the proceedings (Fristsetzungantrag) under Section 91 of the Austrian Court Act.", "12. On 28 March 2002 the Vienna Juvenile Court Assistance Office (Wiener Jugendgerichtshilfe) submitted their observations to the Juvenile Court. In the following months both parties repeatedly filed written observations on that report. The applicants also requested that an expert for child psychology be appointed. 13.", "On 2 December 2002 the applicants complained about the length of the proceedings and requested the opinion of an expert on child psychology. The biological mother objected to this request. 14. On 4 December 2002 the Juvenile Court asked the applicants whether they were maintaining their request for the appointment of an expert, given that meanwhile a report by the doctor with whom F. had had therapy had been obtained. On 10 December 2002 the applicants informed the court that they insisted on the appointment of an expert and proposed further questions to be put to the expert appointed.", "15. On 17 February 2003 the Juvenile Court designated Dr. Sp. as the expert. The biological mother filed objections against Dr. Sp. 16.", "In July 2003 the court file was transferred to the Vienna Regional Court for Civil Matters, which was dealing with an appeal lodged by the applicants in the custody proceedings concerning F. lodged on 23 May 2003. On an unspecified date the Vienna Regional Court transferred the file to the Wiener Neustadt Regional Court as it considered that that court was competent to decide on the appeal. The Wiener Neustadt Regional Court did so on 19 and 29 January 2004; the file was then forwarded to the Mödling District Court, which had meanwhile become competent to deal with custody and visiting-rights proceedings. 17. On 16 December 2003 Dr Sp asked the District Court for leave to be discharged from the duty to prepare an expert report.", "He submitted that a report was not feasible because he had not been given the opportunity to examine F. thoroughly by F.’s mother. 18. The Mödling District Court held a hearing with the parties on 1 April 2004 in order to discuss how to proceed further with the case. The judge informed the applicants and the biological mother that he would ask the Youth Office of the Mödling District Administrative Authority (Jugendamt der Bezirkshauptmannschaft) for a final report on the issue of visiting rights. 19.", "P., who was the officer in charge at the Youth Office of the Mödling District Administrative Authority, submitted the report on 29 July 2004. She recommended refusing visiting rights to the applicants, because the reestablishment of contact with F. after it had been interrupted for more than two years might harm the psychological stability of the child. On 17 August and 16 September 2004 the parties submitted their comments on that report. 20. On 3 August 2004 Dr. Z. of the Niederösterreich Child and Youth Psychological Consulting Office (Kinder- und jugendpsychologischer Beratungsdienst) also suggested that the applicants should not be granted access to F., explaining that F. was aware of the difficulties between his mother and the applicants and therefore, as a protective measure, had said that he did not want to see the applicants.", "Dr. Z. further stated that not seeing the applicants was not to the detriment of the child. The applicants submitted observations regarding these recommendations. 21. On 9 November 2004 the Mödling District Court rejected the applicants’ request to visit F. and found that failure to provide for personal contact (Unterbleiben des persönlichen Verkehrs) between the applicants and F. did not endanger his well-being. 22.", "It found that under Article 148 (4) of the Civil Code a court, upon the request of a parent, the child, a youth welfare body or of its own motion had to take the necessary measures if failure to provide for personal contact between the child and the third person would endanger his or her well-being. Third persons, in contrast to parents or grandparents, had no legal right to be granted contact rights and consequently no legal standing in related court proceedings. They could merely suggest to the court (anregen) that it examine the matter of its own motion, and a court could only grant contact rights if failure to do so would endanger the child’s well-being. 23. Taking the applicants’ request as such a suggestion, visiting rights could not be granted.", "From all the material in the possession of the District Court it was evident that F. was vehemently opposed to meeting the applicants, while at the same time he had developed a close and positive relationship with his mother. The District Court acknowledged that the applicants had a genuine concern for F.’s well-being; however, in the present situation the interests of the applicants did not coincide with the child’s best interests. Given that F. had not been in contact with his foster parents for more than three years, the District Court would follow the conclusions in the reports of P., from the Youth Office of the Mödling District Administrative Authority, and Dr. Z., from the Niederösterreich Child and Youth Psychological Consulting Office. It was quite possible that immediately after F. had been placed with the “crisis foster family” in October 2001 the granting of visiting rights to the applicants might have been useful. However, this was no longer the case and it now served the best interests of the child, who was living with his biological mother, not to put him back in a situation of divided loyalties (Loyalitätskonflikt) between her and his “former family”, the applicants.", "24. On 6 December 2004 the applicants appealed against the District Court’s decision. They argued that the refusal of visiting rights breached their rights under Article 8 of the Convention. 25. The Regional Court dismissed the applicants’ appeal on 17 February 2005.", "It found that foster parents could file requests in proceedings concerning the foster child and also had the right to appeal against decisions. The status of a foster parent was, however, a matter which depended rather on whether the person actually cared for the child and whether a lasting emotional link similar to the one between parents and children had developed. Even though the applicants had lived with F. for approximately forty-six months in the same household with the intent to develop such emotional ties, it was actually more than forty months since they had had care of him and they could now no longer be considered his foster parents. Nevertheless, their appeal had to be considered on its merits, and, for the reasons given by the District Court, granting visiting rights to them was not in the best interests of F. The appeal was therefore unfounded. 26.", "On 25 May 2005 the Supreme Court dismissed an extraordinary appeal by the applicant (außerordentlicher Revisionsrekurs). That decision was served on the applicants’ counsel on 7 July 2005. II. RELEVANT DOMESTIC LAW 27. Article 148 of the Civil Code (Allgemeines Bürgerliches Gesetz­buch) reads as follows: “(1) If one parent does not live in a common household with a minor child, then the child and this parent have the right to be in personal contact with each other.", "The exercise of this right shall be regulated by mutual consent between the child and the parents. Whenever such an agreement cannot be reached, the court shall regulate the exercise of this right in a manner appropriate for the welfare of the child, upon an application by the child or a parent, giving due consideration to the needs and wishes of the child. (2) If necessary, the court shall restrict or not permit the exercise of the right to personal contact, especially if the authorised parent does not comply with his/her obligation under Section 145b. (3) Paragraphs (1) and (2) shall apply by analogy to the relationship between grandchildren and their grandparents. However, the exercise of the right of grandparents shall also be restricted or not permitted to such an extent that this would otherwise disturb the family life of the parents (a parent) or their relationship to the child.", "(4) Where the absence of personal contact between the minor child and a third party that is ready to engage in such contact may jeopardise the child’s welfare, the court shall issue the disposition necessary to regulate the personal contact upon an application by the child, a parent, the youth welfare agency, or of its own motion.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 28. The applicants complained under Article 8 of the Convention that their right to family life had been infringed as a result of the Austrian courts’ decisions to refuse them access to their former foster child. They also submitted that the conduct of the Austrian courts amounted to a breach of the “reasonable time” requirement under Article 6 of the Convention. The Government contested that argument.", "29. The Court considers that the complaint should be examined under Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 30.", "The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions 31. The applicants submitted that the District Court had not rejected the petition for visiting rights on the ground that the visiting rights would endanger the child’s welfare. The request had instead been rejected on the ground that not granting visiting rights to the foster parents would not endanger the welfare of the child. Such a criterion was not in accordance with the requirements of Article 8 of the Convention. The Regional Court and the Supreme Court had not examined what would really be in the child’s interests but had concentrated on the issue of the applicants’ standing in the proceedings.", "They had found that because of the considerable period of time which had elapsed since the proceedings had started the applicants could no longer be considered F.’s foster parents. Such an approach was unacceptable. It was the responsibility of the Austrian courts that the proceedings had been conducted at such a slow pace and that they had consisted of a continuing exchange of submissions between the parties, the District Courts and various youth welfare bodies, whereas the authorities should have acted particularly speedily given what was at stake for the applicants and the importance the element of time has in such proceedings. Once the District Court had made its decision, the visiting rights had been refused with the argument that it had been a very long time since the child had been with the applicants. Thus, the delay caused by the Austrian courts had been used as an argument for refusing the visiting rights.", "The applicants did acknowledge the importance of the child’s welfare but considered that regard should also be had to the interests of the foster parents. 32. The Government accepted that the judgments of the Austrian courts on the applicants request for visiting rights constituted an interference with their right to respect for their family life. That interference was in accordance with the law, that is, it was based on Article 148 (4) of the Civil Code, and it also served a legitimate aim, namely the protection of the rights and freedoms of others, that is, the child concerned and his biological mother. The interference was also necessary in a democratic society.", "The Austrian courts had carefully balanced the interest of the applicants in further personal contact with their former foster child against the interest of the biological mother of the child in re-constituting and protecting an undisturbed and fruitful mother-child relationship, as well as taking into account the welfare of the child himself. Austrian law attributed a particularly high priority to the welfare of the child in decisions on family-law matters and the interests of adults had often to give way to this priority. 33. The Government also argued that the proceedings on the issue of visiting rights had been conducted expeditiously; the matter had been complex and the Austrian courts had done their best to establish the essential basis for their decisions, whereas the applicants and the other party to the proceedings had filed numerous applications and submissions to which the court had had to react, which had inevitably slowed down the proceedings. 2.", "The Court’s assessment 34. The Court must first examine whether there existed a relationship amounting to private or family life between the applicants and F. within the meaning of Article 8 of the Convention. 35. In this respect the Court reiterates that the notion of “family life” under Article 8 of the Convention is not confined to marriage-based relationships and may encompass other de facto “family” ties (see Anayo v. Germany, no. 20578/07, § 55, 21 December 2010, with further references).", "The existence or non-existence of “family life” for the purposes of Article 8 is essentially a question of fact depending on the real existence in practice of close personal ties (see K. and T. v. Finland [GC], no. 25702/94, § 150, ECHR 2001‑VII). Although, as a rule, cohabitation may be a requirement for such a relationship, exceptionally other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto “family ties” (see Kroon and Others v. the Netherlands, 27 October 1994, § 30, Series A no. 297-C). 36.", "In the case of Moretti and Benedetti v. Italy the Court considered the relationship between the applicants as foster parents and the child entrusted to them, who had lived with them from the age of one month for a period of nineteen months, as falling within the notion of family life within the meaning of Article 8 § 1 because there had been a close inter-personal bond between the applicants and the child and the applicants had behaved in every respect like the child’s parents (Moretti and Benedetti v. Italy, no. 16318/07, §§ 49-50, 27 April 2010). 37. In the present case F. came into the applicants’ household at the age of two and lived with them for a period of approximately forty-six months. The applicants tried to obtain custody of F. and to adopt him.", "In their different decisions the Austrian Courts acknowledged that the applicants had a genuine concern for F.’s well-being and that an emotional link between F. and the applicants similar to the one between parents and children had started to develop during that period. The Court therefore considers, and this is not in dispute between the parties, that such a relationship falls within the notion of family life within the meaning of Article 8 § 1. Article 8 therefore applies to the present case and the Court must determine whether there has been a failure to respect the applicants’ family life. 38. As regards compliance with Article 8, the Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life.", "The boundaries between the State’s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance which has to be struck between the competing interests; and in both contexts the State enjoys a certain margin of appreciation Odièvre v. France [GC], no. 42326/98, § 40, ECHR 2003‑III). 39.", "The Court further notes that whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 72, ECHR 2001‑V (extracts), and W. v. the United Kingdom, 8 July 1987, §§ 62 and 64, Series A no. 121).", "The Court has repeatedly found that in cases concerning a person’s relationship with his or her child there is a duty to exercise exceptional diligence in view of the risk that the passage of time may result in a de facto determination of the matter. This duty is decisive in assessing whether a case concerning access to children had been heard within a reasonable time as required by Article 6 § 1 of the Convention and also forms part of the procedural requirements implicit in Article 8 (see Kaplan v. Austria, no. 45983/99, § 32, 18 January 2007; Hoppe v. Germany, no. 28422/95, § 54, 5 December 2002; and Nuutinen v. Finland, no. 32842/96, § 110, ECHR 2000-VIII).", "The principle of exceptional diligence applies mutatis mutandis to the present case. 40. The Court considers that in the present case the essential question is whether the Austrian courts in their various decisions struck a fair balance between the competing interests of the applicants, the child and the biological mother and, in doing so, complied with the inherent procedural requirements of Article 8 of the Convention. For this reason the Court will view the case as one involving an allegation of failure on the part of the respondent State to comply with its positive obligation under Article 8 of the Convention. 41.", "In this connection, the Court recalls that its role is not to substitute itself for the competent domestic authorities, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299‑A ). 42. The applicants argued that the Austrian courts had not properly examined their request for the granting of visiting rights because, on the basis of Article 148 (4) of the Civil Code, the courts had concentrated on the issue of whether the applicants had standing in the proceedings or a right to appeal and had dismissed their request merely on the ground that the refusal of visiting rights would not endanger the well-being of F. That was not the kind of weighing of interests required by Article 8 of the Convention. 43.", "The Court observes, however, that the District Court did consider the case on its merits and, as is apparent from its decision, examined whether contact between the applicants and F. would be in the child’s best interests. It concluded, however, that it was in the best interests of the child, who was living with his biological mother, not to bring him back into a situation of divided loyalties (Loyalitätskonflikt) between her and his “former family”, namely the applicants, and the District Court therefore refused the request. Moreover, the Regional Court examined the applicants’ appeal on the merits but concluded that the District Court had correctly resolved the matter before it. 44. The Court, whose task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, therefore considers that the domestic courts, at the time they took their respective decisions, struck a fair balance between the competing interests.", "It is not persuaded by the applicants’ argument that the wording of Article 148 (4) of the Civil Code, which provides for visiting rights only if “the absence of personal contact between the minor child and a third party ... would jeopardize the child’s welfare”, prevented the domestic courts from doing so. In this context the Court reiterates that, in the balancing process, particular importance should be attached to the best interests of the child, which may override those of the parents (see Sahin v. Germany [GC], no. 30943/96, § 66, ECHR 2003‑VIII, and Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 134, 6 July 2010). 45.", "The applicants also submitted that the Austrian courts had failed to decide expeditiously on their request, and that had had a direct impact on the decision taken because when the District Court eventually decided on the request it concluded that because of the time that had elapsed since its introduction the granting of visiting rights was no longer in F.’s best interests. 46. The Court observes that the proceedings on the applicants’ request started on 20 December 2001, when they asked the District Court to grant them visiting rights, and ended when the final decision of the Supreme Court was served on them on 7 July 2005, thus lasting for three years, six months and thirteen days. Before the District Court, which took its decision on 9 November 2004, the proceedings lasted for two years, ten months and eleven days. During this period the applicants had no contact with F., who had meanwhile returned to his biological mother.", "It is true that the case was of some complexity and the applications filed by the applicants during the proceedings may have contributed to their length, but this is not sufficient to explain the total length. On the other hand, before the District Court, notwithstanding the applicants’ repeated requests for the acceleration of the proceedings, the proceedings progressed particularly slowly and, on two occasions, namely between March 2002 and December 2002 (see paragraphs 12-13 above) and between February 2003 and April 2004 (see paragraphs 15-18 above), they came to a standstill, for which no satisfactory explanation has been furnished by the Government. 47. This passage of time also had a direct and adverse impact on the applicants’ position. At the beginning of the proceedings the Vienna Youth Welfare Office recommended that because of the long-lasting relationship between F. and the applicants a right to access should be granted, and the District Court, in its decision of 9 November 2004, indicated that if the decision had been taken earlier there would have been good reasons to grant the request.", "Eventually, the District Court, basing itself on reports by the Youth Office of the Mödling District Administrative Authority and the Niederösterreich Child and Youth Psychological Consulting Office drawn up in 2004, dismissed the applicants’ request. From its decision it is apparent that the passing of time was crucial for the District Court. It noted that F. had not had contact with his former foster parents for more than three years, that meanwhile he had re-established a positive relationship with his biological mother and that it was not in his interests to put him in a situation of divided loyalties between her and his “former family”, namely the applicants. 48. In these circumstances, the Court cannot find that the domestic courts complied with their duty under Article 8 to deal diligently with the applicants’ request for visiting rights.", "The Court, therefore, finds that the procedural requirements implicit in this Article were not complied with. 49. Accordingly, there has been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 50.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 51. The applicants claimed 100,000 euros (EUR) in respect of non-pecuniary damage. They argued that the conduct of the Austrian courts had caused them profound and lasting psychological harm as they still had no contact with their foster-child and had no information on his well-being or development. 52.", "The Government considered the claim excessive. 53. The Court considers that the applicants must have suffered feelings of frustration, uncertainty and anxiety which cannot be compensated solely by the finding of a violation. Making an assessment on an equitable basis, as required by Article 41, the Court, therefore, awards the applicants 5,000 EUR in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicants on this amount. B.", "Costs and expenses 54. The applicants also claimed EUR 4,119.79 for the costs and expenses incurred before the domestic courts and EUR 6,739.30 for those incurred before the Court. 55. The Government argued that the applicants had failed to show that the costs claimed for the domestic proceedings had been actually and necessary incurred in order to ward off the violation of the Convention found. As regards the costs incurred for the proceedings before the Court, the amount claimed was excessive.", "Taking the correct basis for the calculation of fees under the Austrian law in respect of lawyer’s fees, only an amount of EUR 3,243.92 was justified. 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 5,000, covering costs under all heads, plus any tax that may be chargeable to the applicants on this amount. C. Default interest 57.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 8 of the Convention as regards the duty of the domestic courts to deal diligently with the applicants’ request for visiting rights; 3. Holds (a) that the respondent State is to pay the applicants, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 17 January 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenNina VajićRegistrarPresident" ]

[ "SECOND SECTION CASE OF SZENTESI v. HUNGARY (Application no. 19558/09) JUDGMENT STRASBOURG 12 June 2012 This judgment is final but it may be subject to editorial revision. In the case of Szentesi v. Hungary, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Dragoljub Popović, President,András Sajó,Paulo Pinto de Albuquerque, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 22 May 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 19558/09) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Sándor Szentesi (“the applicant”), on 6 April 2009.", "2. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice. 3. On 13 April 2011 the President of the Second Section decided to give notice of the application to the Government. In accordance with Protocol No.", "14, the application was allocated to a Committee of three Judges. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1935 and lives in Budapest. 5. On 31 August 1999 the Budapest and Pest County Regional Pension Insurance Directorate established the applicant’s service years and the amount of his old age pension.", "The applicant appealed, challenging the amount of service years recognised. The second-instance administrative authority accepted the claim in part on 6 January 2000. This decision was later modified slightly ex officio to the applicant’s advantage on 23 February 2000. 6. On 13 April 2000 the applicant sought judicial review against the Pension Insurance Directorate’s decision before the Budapest Labour Court.", "The court dismissed his action on 25 March 2004. 7. The applicant lodged a petition for review with the Supreme Court, which quashed the Labour Court’s judgment and remitted the case to the first-instance court on 1 February 2005. 8. In the resumed proceedings the Labour Court again dismissed the applicant’s action on 16 November 2007.", "The Supreme Court upheld the first-instance judgment on 24 November 2008, which was served on the applicant on 7 January 2009. 9. The domestic courts relied on documentary evidence, the opinion of two forensic accountant experts and testimonies of the parties. THE LAW 10. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention.", "11. The Government contested that argument. 12. The period to be taken into consideration began in September 1999 and ended on 7 January 2009. It thus lasted nine years and four months for two levels of jurisdiction.", "In view of such lengthy proceedings, the application must be declared admissible. 13. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present application (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 14.", "Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present circumstances. Having regard to its case-law on the subject, the Court considers that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. 15. The applicant also complained under Article 6 § 1 about the outcome of the proceedings.", "In so far as this 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 (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I). In the present case, the Court is satisfied that the applicant’s submissions do not disclose any appearance that the courts lacked impartiality, or that the proceedings were otherwise unfair or arbitrary.", "It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention. 16. Moreover, the applicant complained, relying on Article 13 of the Convention, that the domestic courts had not taken into consideration the evidence submitted by him and the deficiencies of the expert reports. The Court observes that this complaint raises no separate issue as the one examined under Article 6 of the Convention and should therefore also be declared inadmissible. 17.", "Lastly, the applicant complained under Article 8 of the Convention that due to the fact that the authorities had deducted his debts from his wife’s income, his wife divorced him. Even assuming interference by the domestic authorities, the Court finds no direct link between the measure in question and the prejudice suffered. It follows that this complaint should therefore likewise be declared inadmissible. 18. Relying on Article 41 of the Convention, the applicant claimed 20,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.", "The Government contested the claim. The Court considers that the applicant must have sustained some non-pecuniary damage and awards him EUR 8,000. 19. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "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, to be converted into Hungarian forints at the rate applicable at the date of settlement, EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 12 June 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Françoise Elens-PassosDragoljub Popović Deputy Registrar President" ]

[ "FOURTH SECTION CASE OF MACOVEI AND OTHERS v. ROMANIA (Applications nos. 50109/13, 63887/13, 73496/13, 17415/14, 20965/14, 24212/14, 24906/14, 27050/14, 36990/14, 37117/14, 39499/14, 39598/14, 40769/14, 42747/14, 48620/14 and 55840/14) JUDGMENT STRASBOURG 18 February 2016 This judgment is final but it may be subject to editorial revision. In the case of Macovei and Others v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Vincent A. De Gaetano, President,Egidijus Kūris,Gabriele Kucsko-Stadlmayer, judges,and Hasan Bakırcı, Acting Deputy Section Registrar, Having deliberated in private on 28 January 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.", "2. The applications were communicated to the Romanian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4.", "The applicants complained of the inadequate conditions of their detention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 6.", "The applicants complained principally of the inadequate conditions of their detention. They relied on Article 3 of the Convention, which reads as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 7. The Court notes that the applicants were kept in detention in poor conditions. The details of the applicants’ detention are indicated in the appended table. The Court refers to the principles established in its case‑law regarding inadequate conditions of detention (see, for instance, Kudła v. Poland [GC], no.", "30210/96, §§ 90‑94, ECHR 2000‑XI, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 139‑165, 10 January 2012). It reiterates in particular that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see, amongst many authorities, Karalevičius v. Lithuania, no. 53254/99, §§ 39, 7 April 2005, and Ananyev and Others, cited above, §§ 145-147, 149). 8.", "In the leading case of Iacov Stanciu v. Romania, no. 35972/05, 24 July 2012, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention were inadequate (see appended table for details).", "10. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention. 11. In applications nos. 63887/13, 73496/13, 17415/14, 20965/14, 24212/14, 24906/14, 27050/14, 36990/14, 37117/14, 39499/14, 40769/14, 42747/14, 48620/14 and 55840/14 the applicants also complained of other aspects concerning material conditions of detention.", "In the light of its findings above, the Court does not consider it necessary to examine these remaining aspects (see Epistatu v. Romania, no. 29343/10, § 55, 24 September 2013 and Bahnă v. Romania, no. 75985/12, § 53, 13 November 2014). III. REMAINING COMPLAINTS 12 Some applicants raised other complaints under Article 3 of the Convention.", "13 The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 14. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 15.", "Regard being had to the documents in its possession and to its case‑law (see, in particular, Butiuc and Dumitrof v. Romania, no. 19320/07, 15 July 2014), the Court considers it reasonable to award the sums indicated in the appended table. 16. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Decides to join the applications; 2. Declares the complaints concerning the inadequate conditions of detention admissible and the remainder of the applications inadmissible; 3. Holds that these complaints disclose a breach of Article 3 of the Convention concerning the inadequate conditions of detention; 4. Holds that there is no need to examine the remaining issues raised under Article 3 of the Convention in applications nos. 63887/13, 73496/13, 17415/14, 20965/14, 24212/14, 24906/14, 27050/14, 36990/14, 37117/14, 39499/14, 40769/14, 42747/14, 48620/14 and 55840/14 in respect of the material conditions of detention; 5.", "Holds (a) that the respondent State is to pay the applicants, with the exception of cases nos. 50109/13 and 63887/13, 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 18 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıVincent A. De GaetanoActing Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 3 of the Convention (inadequate conditions of detention) No.", "Application no.Date of introduction Applicant name Date of birth Representative name and location Facility Start and end date Duration Sq. m. per inmate Specific grievances Amount awarded for pecuniary and non‑pecuniary damage and costs and expenses per applicant (in euros)[1] 50109/13 15/07/2013 Mihai MACOVEI 08/08/1958 Târgu Mureș Penitentiary - several transits during the following period of detention: 08/01/2013 to 26/11/2013 0 year(s) and 11 month(s) n/a passive smoking and poor conditions of hygiene n/a (no claim under Article 41 of the Convention) 63887/13 30/09/2013 Daniel Nicolae LUPUȚ 16/11/1989 Satu Mare Penitentiary 08/08/2013 pending 2 year(s) and 4 month(s) 1.43 - 1.56 m² overcrowding, poor quality of food n/a (no claim under Article 41 of the Convention) 73496/13 11/11/2013 Gilbert Cristian DUMITRU 25/02/1973 Slobozia Penitentiary 14/08/2013 to 24/04/2014 0 year(s) and 9 month(s) 1.46 - 2.54 m² overcrowding 3,000 17415/14 17/03/2014 Gheorghe TIMIȘ 19/08/1970 Gherla Penitentiary 28/02/2013 16/11/2015 2 year(s) and 10 month(s) 1.94 - 3.48 m² overcrowding, inadequate toilet facilities, lack of an adequate place to store clothes and food, insufficient access to common showers 6,200 20965/14 02/07/2014 Ionel DASCĂL 16/08/1963 Caba Dorin Oradea Penitentiaries of Oradea, Satu-Mare, Aiud (transits of one night), Jilava, and Miercurea Ciuc 16/10/2012 pending 3 year(s) and 2 months 1.1 - 3.8 m² Oradea Penitentiary - overcrowding (2.07 - 2.52 m² of individual space). Satu-Mare Penitentiary - overcrowding (1.40 - 1.93 m² of individual space). Aiud Penitentiary (transits of one night) - overcrowding (1.6 - 3.8 m² of individual space). Jilava Penitentiary - overcrowding (1.1 m² of individual space).", "Miercurea-Ciuc Penitentiary - overcrowding (2.78 m² of individual space). 6,900 24212/14 07/04/2014 Cristian GULIE 31/10/1987 Târgu-Jiu Penitentiary 30/04/2013 to 29/08/2014 1 year(s) and 4 month(s) Currently detained in Drobeta Turnu Severin Penitentiary 1.15 - 1.18 m² overcrowding, insufficient access to warm water, lack of an adequate place to serve meals 3,600 24906/14 06/06/2014 Tiberiu IURA 19/06/1963 Gherla Penitentiary 10/11/2008 pending 7 year(s) and 1 month(s) 1.45 - 3.17 m² overcrowding, lack of a shower and warm running water in the cell 14,000 27050/14 05/08/2014 Cătălin Daniel ION 15/11/1976 Craiova Penitentiary 02/06/2011 to 17/06/2013 2 year(s) and 1 month(s) Craiova Penitentiary 18/07/2013 to 27/02/2014 0 year(s) and 8 month(s) Craiova Penitentiary 17/04/2014 to 06/11/2014 0 year(s) and 7 month(s) Currently detained in Târgu-Jiu Penitentiary 1.37 - 2.05 m² 1.12 - 2.93 m² 1.3 - 1.51 m² overcrowding overcrowding overcrowding 7,200 36990/14 16/06/2014 Ionuț Andrei OPRIȘ 05/02/1985 Buruian Valeria Mirșid, Sălaj County Sălaj Police Inspectorate, Oradea Penitentiary and Satu Mare Penitentiary 01/10/2013 pending 2 year(s) and 2 month(s) n/a 2 m² 1.6 - 2.2 m² Sălaj Police Inspectorate - lack of an adequate separation between the cell and the toilet Oradea Penitentiary - overcrowding, insufficient access to showers and insufficient time for walking outside the cell Satu Mare Penitentiary - overcrowding, insufficient toilet facilities and access to showers, poor quality of food, worn-out mattresses, lack of an adequate place to serve meals, infestation of the cell with insects 5,100 37117/14 29/05/2014 Marian Ionuț BARBU 18/07/1980 Jilava Penitentiary 01/11/2012 to 25/02/2013 0 year(s) and 4 month(s) Jilava Penitentiary 11/03/2013 to 11/07/2013 0 year(s) and 4 month(s) Jilava Penitentiary 02/08/2013 to 07/04/2014 0 year(s) and 9 month(s) Jilava Penitentiary 08/05/2014 pending 1 year(s) and 7 month(s) 1.17 - 1.76 m² 1.30 - 1.76 m² 1.17 - 1.76 m² 1.30 - 1.76 m² overcrowding, infestation of the cell with insects overcrowding, infestation of the cell with insects overcrowding, infestation of the cell with insects overcrowding, infestation of the cell with insects 6,600 39499/14 01/08/2014 Andrei DINCĂ 29/07/1967 Brăila Penitentiary 12/06/2012 to 26/08/2014 2 year(s) and 3 month(s) Brăila Penitentiary 02/09/2014 22/10/2014 0 year(s) and 2 month(s) Brăila Penitentiary 22/10/2014 pending 1 year(s) and 2 month(s) 1.35 – 2.71 m² 2.03 - 2.71 m² n/a overcrowding, lack of a shower in the cell and limited access to a common shower overcrowding, lack of a shower in the cell and limited access to a common shower lack of a shower in the cell and limited access to a common shower 7,500 39598/14 20/05/2014 Ciprian CRIPEŞ 01/09/1961 Târgu-Jiu Penitentiary 17/02/2014 to 07/04/2014 0 year(s) and 2 month(s) Currently detained in Jilava Penitentiary 1.5 m² overcrowding, lack of an adequate space to serve meals, insufficient toilet facilities for the number of detainees, inadequate natural lighting and ventilation 3,000 40769/14 10/07/2014 Viorel COBZARU 14/03/1985 Târgu-Jiu Penitentiary 29/05/2013 pending 2 year(s) and 7 month(s) 1.59 – 1.99 m² overcrowding, lack of an adequate place to serve meals, lack of adequate ventilation, insufficient access to warm water, lack of an adequate space for walking outside the cell. 5,900 42747/14 10/07/2014 Sergiu Mihăiță MICLĂUȘ 07/05/1982 Baia Mare Penitentiary 21/05/2013 pending 2 year(s) and 7 month(s) 1.16 - 1.39 m² overcrowding, lack of an adequate space to serve meals and of adequate furniture, lack of adequate ventilation, limited access to warm water, poor quality of food 5,900 48620/14 21/07/2014 Sebastian STAVILĂ 29/04/1972 Bistrița Penitentiary 12/03/2013 to 06/02/2014 1 year(s) Bistrița Penitentiary 25/03/2014 to 05/02/2015 0 year(s) and 11 month(s) Bistrița Penitentiary 08/05/2015 pending 0 year(s) and 7 month(s) 1.21 - 3.3 m² 2.44 m² 2.44 m² overcrowding, insufficient toilet facilities and access to showers, lack of an adequate place to serve meals overcrowding, lack of an adequate place to serve meals overcrowding, lack of an adequate place to serve meals 5,700 55840/14 10/09/2014 Gavrilă Simion BINDIU 30/08/1984 Bistrița Penitentiary 20/03/2014 pending 1 year(s) and 9 month(s) 1.21 – 2.44 m² overcrowding, insufficient access to warm water 4,400 [1] Plus any tax that may be chargeable to the applicants." ]

[ "FOURTH SECTION CASE OF DIMITAR SHOPOV v. BULGARIA (Application no. 17253/07) STRASBOURG 16 April 2013 FINAL 16/07/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dimitar Shopov v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Ineta Ziemele, President,David Thór Björgvinsson,George Nicolaou,Ledi Bianku,Zdravka Kalaydjieva,Vincent A. De Gaetano,Paul Mahoney, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 26 March 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 17253/07) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Dimitar Dinkov Shopov (“the applicant”), on 20 March 2007. 2. The applicant was represented first by Mr E. Ganchev and then by Ms S. Stefanova and Mr M. Ekimdzhiev, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice.", "3. The applicant alleged, in particular, that the authorities had failed to effectively investigate an assault against him by private individuals. 4. On 16 May 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 1959 and lives in Ovchepoltsi. A. The incident of 1 May 1991 6.", "On the evening of 1 May 1991 the applicant was involved in a fight between several people in the village of Ovchepoltsi. During the fight he was stabbed with a knife in the stomach. Some members of the public came to his aid and took him to hospital. 7. On the same day the applicant was admitted as an in-patient, and underwent an urgent operation.", "He was discharged on 13 May 1991 and was given thirty days’ sick leave. B. The investigation into the events 8. On 1 May 1991 the investigating authorities inspected the site where the fight had taken place. They took photos and seized a wooden stick stained with blood.", "9. On 1 and 2 May 1991 several witnesses were questioned. 10. On 2 May 1991 criminal proceedings were opened against two of the participants in the fight: T.S. and P.S.", "They were charged with attempted murder and questioned. 11. On 12 May 1992 the case investigator commissioned a medical expert report to establish the extent of the victim’s injuries. The report relied on the medical records from the applicant’s stay in hospital and established that he had suffered a 3 cm knife wound in the abdominal cavity which resulted in an injury to the great omentum and to the large intestine. The applicant had also suffered a combination of other injuries: large bruises on the face and on the right leg, and a broken rib.", "12. Between 18 May and 8 June 1992 several witnesses were questioned. 13. It appears that between 1991 and 1994 the applicant’s mother wrote several times to the prosecuting authorities, complaining of inactivity on the part of the investigator in charge of the case. In response, the supervising prosecutor wrote to the investigator on several occasions requesting that the investigation be completed; for example in a letter of 19 August 1994 the prosecutor requested that the investigation be completed “without delay”.", "14. On 17 June 1996 the attempted murder charge against T.S. was changed to a charge of having caused intermediate bodily harm and he was questioned in this connection. 15. On 11 September 1996 the attempted murder charge against P.S.", "was also changed to a charge of having caused intermediate bodily harm and he too was questioned. 16. Between 25 August 2000 and 1 July 2002 some of the witnesses were recalled for further questioning. 17. On 18 July 2003, following a complaint by the applicant’s lawyer in relation to the length of the investigation and inactivity on the part of the investigator in charge of the case, the supervising prosecutor removed the investigator and gave instructions to the investigating authorities to commission a new medical expert report and to conclude the investigation within thirty days.", "The Court has not been informed by either party of what substantive investigative steps, if any, were undertaken after that date. 18. On 5 June 2006 the public prosecutor terminated the proceedings on the ground that the relevant statutory limitation period for bringing a prosecution had lapsed. 19. On 13 July 2006 the applicant appealed against the order terminating the proceedings.", "In a decision of 17 July 2006 the Pazardzhik Regional Court (“the Regional Court”) ruled that the assailants remained charged with attempted murder and therefore the statutory limitation period for prosecution had not lapsed. The court remitted the case to the prosecutor’s office, instructing it to continue with the investigation. 20. T.S. and P.S.", "appealed against the decision of the Regional Court. In a final decision of 27 September 2006 the Plovdiv Court of Appeal ruled that the assailants had remained charged only with having caused intermediate bodily harm. The court quashed the Regional Court’s decision and upheld the prosecutor’s order terminating the proceedings. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "Intermediate bodily harm 21. The Criminal Code 1968 defines intermediate bodily harm (средна телесна повреда) as, inter alia, injuries penetrating the skull, the chest and the abdominal cavity (Article 129 § 2). At the relevant time the wilful infliction of intermediate bodily harm was an offence punishable by up to five years’ imprisonment (Article 129 § 1). It is subject to public prosecution (Article 161). 22.", "Article 93 § 7 provides that offences punishable by more than five years’ imprisonment are to be considered “serious” for the purposes of the Code. 23. The limitation period for prosecuting offences under Article 129 of the Code of Criminal Procedure is ten years (Article 80 § 1 (3) of the Code). Each act of criminal prosecution carried out by the competent authorities in relation to the alleged offender interrupts the limitation period and restarts the running of time (Article 81 § 2). Such interruptions notwithstanding, the alleged offender can no longer be prosecuted if the limitation period has been exceeded by one half (Article 81 § 3), which means that an offence under Article 129 of the Code cannot be prosecuted if more than fifteen years have elapsed after its alleged commission.", "B. State liability for damage 24. Under section 1 of the State and Municipalities Responsibility for Damage Act 1988 (hereafter “the State Responsibility Act”) the State is liable, in particular, for damage suffered by individuals as a result of unlawful decisions, acts or omissions by its bodies and civil servants, committed in the course of or in connection with the performance of administrative duties. The Supreme Court of Cassation’s case-law provides that the functions of the investigative and the prosecuting authorities in the context of a criminal investigation do not amount to administrative duties and those authorities are not liable under section 1 of the Act (тълк. реш.", "№ 3 от 22 април 2005 г. на ВКС по тълк. д. № 3/2004 г., ОСГК). C. Tort claims in civil proceedings and in the context of criminal proceedings. 25.", "Persons who have suffered damage from a publicly prosecutable criminal offence have a choice of either bringing an action against the alleged tortfeasor in the civil courts, with the result that the proceedings will be stayed in anticipation of the outcome of the pending criminal investigation against the tortfeasor (Article 182 § 1 (d) of the 1952 Code of Civil Procedure, superseded by Article 229 § 1 (5) of the 2007 Code of Civil Procedure), or making a civil claim in the context of the criminal proceedings instituted by the prosecuting authorities (Article 60 § 1 of the 1974 Code of Criminal Procedure, superseded by Article 84 § 1 of the 2005 Code of Criminal Procedure). Until June 2003 a civil claim could be made even during a preliminary investigation, before the case had gone to trial (Article 60 § 1 of the 1974 Code, as in force until June 2003). 26. The general limitation period for bringing a tort claim is five years (section 110 of the 1951 Obligations and Contracts Act). By section 115(1)(g) of the Act, time ceases to run during the “pendency of the judicial proceedings relating to the [tort] claim”.", "According to interpretative decision of 5 April 2006 adopted by the General Assembly of the Civil and the Commercial Chambers of the Supreme Court of Cassation time stops running under section 115(1)(g) of the Act only when the victim brings a claim against the tortfeasor, whether in the context of the criminal proceedings or in separate civil proceedings (тълк. реш. № 5 от 5 април 2006 г. по тълк. д. № 5/2005 г., ОСГК и ОСТК на ВКС).", "27. An overview of other pertinent legislation and practice, applicable at the relevant time, can be found in the Court’s decision in the case of Georgiev v. Bulgaria (no. 34137/03, 11 January 2011). THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 28.", "The applicant complained that the criminal investigation into the assault against him had been ineffective. He relied on Articles 2, 3 and 13 of the Convention. 29. The Court’s established case-law provides that in exceptional circumstances, depending on considerations such as the degree and type of force used and the nature of the injuries, physical ill-treatment administered by third parties which does not result in death may be examined under Article 2 of the Convention. The Court has found Article 2 applicable when the person concerned had been the victim of behaviour by State agents which by its very nature had put his life at serious risk even though in the event, he had survived (see Makaratzis v. Greece [GC], no.", "50385/99, § 55, ECHR 2004‑XI, and Soare and Others v. Romania, no. 24329/02, §§ 108 and 109, 22 February 2011). The Court has followed a similar approach in cases involving non-State actors (see Igor Shevchenko v. Ukraine, no. 22737/04, § 43, 12 January 2012, and Yotova v. Bulgaria, no. 43606/04, § 69, 23 October 2012).", "30. However, having regard to all the circumstances of the case, in particular the nature of the injuries inflicted (see paragraph 11 above), as well as its practice in similar cases, the Court considers that the applicant’s complaint falls to be examined only under Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. The Government’s preliminary objection of incompatibility ratione temporis with the provisions of the Convention 31. The Government submitted that the applicant’s complaints that the investigation into his ill-treatment had been ineffective were incompatible ratione temporis with the provisions of the Convention, because the assault had taken place before the Convention had entered into force in respect of Bulgaria, and the procedural obligation to investigate could not be considered independently of that act. The Government specifically pointed out that in cases like that of the applicant, in which death had not occurred, the Court had no temporal jurisdiction.", "32. The applicant challenged the Government’s assertion, arguing that the Court did have temporal jurisdiction in his case because the authorities’ inactivity had only become an issue after the Convention had entered into force in respect of Bulgaria. 33. The Court has stated that the procedural obligation to carry out an effective and prompt investigation under Article 2 has evolved into a separate and autonomous duty capable of binding the State, even when the substantive act took place before the critical date (see Šilih v. Slovenia [GC], no. 71463/01, § 159, 9 April 2009).", "For such a procedural obligation to come into effect, a significant proportion of the investigating steps required by this provision will have been or ought to have been taken after the critical date (ibid., § 163). Subsequently the Court applied this principle to cases concerning deaths at the hands of private individuals (see Lyubov Efimenko v. Ukraine, no. 75726/01, § 63, 25 November 2010; and Frandeş v. Romania (dec.) no. 35802/05, 17 May 2011). Furthermore, in Tuna v. Turkey (no.", "22339/03, § 58, 19 January 2010), in Stanimirović v. Serbia (no. 26088/06, § 28, 18 October 2011), and recently in P.M. v. Bulgaria (no. 49669/07, § 56, 24 January 2012), it went on to hold that the principles established in Šilih also applied to the procedural obligation to investigate under Article 3 acts of ill-treatment committed by State and non-State actors. 34. In the present case, while the attack on the applicant took place in 1991, before the entry into force of the Convention in respect of Bulgaria on 7 September 1992, most of the procedural steps were or ought to have been taken after that date (see paragraphs 13-20 above).", "35. In view of the above, the Court finds that the alleged failure to comply with the procedural obligations of Article 3 of the Convention, which took place after 7 September 1992, falls within the Court’s temporal jurisdiction. It rejects, therefore, the Government’s objection. 2. The Government’s preliminary objection of non-exhaustion of domestic remedies 36.", "The Government submitted that the applicant had failed to exhaust domestic remedies as he had neither brought an action under section 1 of the State Responsibility Act against the investigating authorities nor a civil claim against the alleged perpetrators. 37. The applicant stated that the State Responsibility Act was not applicable in his case and furthermore that the Government had not submitted any domestic case-law concerning similar cases. As regards the possibility of his bringing a civil claim, the applicant stated that according to the Court’s case-law this was not a requirement for complaints under Articles 2 or 3, and in any event his joining the criminal proceedings as a civil claimant would have been a waste of time as the case never made it to the trial stage. 38.", "The Court observes that a claim against the investigating authorities does not fall within the scope of the State Responsibility Act. Under the domestic case-law investigating and prosecuting authorities are not liable under section 1 of the State Responsibility Act (see paragraph 23 above) and the Government have failed to substantiate their assertion that the State Responsibility Act was applicable in the present case. 39. In respect of a possible claim by the applicant against the alleged perpetrators for compensation for the damage inflicted, the Court considers that that type of civil remedy cannot be regarded as sufficient for the fulfilment of the State’s obligation under Article 3 in cases such as the present, as it is aimed at awarding damages rather than identifying and punishing those responsible (see Beganović v. Croatia, no. 46423/06, § 56, 25 June 2009 and Biser Kostov, no.", "32662/06, § 72, 10 January 2012). 40. It follows that the Government’s objections as to non-exhaustion of domestic remedies must also be dismissed. 3. Conclusion 41.", "The Court notes that the applicant’s complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions 42. The Government noted that the investigation had been comprehensive and in compliance with the procedural obligation under Article 3 of the Convention. The authorities had carried out all possible investigative measures, had established the facts and had carried out a detailed medical assessment which had established the extent and nature of the injuries inflicted on the applicant. 43. The applicant argued that the investigation could not be regarded as effective as it had not led to the identification and punishment of the perpetrators.", "While it was true that the authorities had carried out some basic investigative measures, those measures had been carried out over the course of more than a year. Although the perpetrators had been known to the authorities from the beginning, the authorities had not undertaken the necessary measures to ensure the completion of the investigation and the prosecution of the perpetrators. Between the periods 1992 to 1996 and 1996 to 2000, no investigative measures had been carried out, and this had ultimately led to the lapse of the statutory limitation period for bringing a prosecution. 2. The Court’s assessment (a) General principles 44.", "The Court reiterates that Article 3 enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture and inhuman or degrading treatment or punishment. 45. 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 is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see A. v. the United Kingdom, 23 September 1998, § 20, Reports of Judgments and Decisions 1998‑VI).", "46. The obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see, among other authorities, Šečić v. Croatia, no. 40116/02, § 52, 31 May 2007). 47. Where an individual raises an arguable claim of ill-treatment, including ill-treatment administered by private individuals, Article 3 of the Convention gives rise to a procedural obligation to conduct an independent official investigation.", "The investigation must be capable of leading to the identification of those responsible with a view to their punishment (see Biser Kostov, cited above, § 78, with further references). 48. The scope of this obligation by the State is one of means and not of results; the authorities must have taken all reasonable steps available to them to secure evidence concerning the incident (see Nikolay Dimitrov v. Bulgaria, no. 72663/01, § 69, 27 September 2007 and, mutatis mutandis, Menson and Others v. the United Kingdom (dec.), no. 47916/99, 6 May 2003).", "A requirement of promptness and reasonable expedition is implicit in this context. Tolerance by the authorities of such acts cannot but undermine public confidence in the principle of lawfulness and the State’s maintenance of the rule of law (see, for example, Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, § 97, 3 May 2007, and Milanović, no. 44614/07, § 86, 14 December 2010). (b) Application of those principles to the present case 49.", "On the basis of the medical evidence submitted, which appears to be reliable and comprehensive, and which established that the applicant had suffered a knife wound to his abdominal cavity, large bruises on his face and right leg, and a broken rib, the Court considers that the treatment complained of was sufficiently serious to fall within the scope of Article 3 of the Convention. 50. Therefore, the authorities had a procedural obligation to conduct an effective investigation. The Court notes at the outset that the authorities took a number of investigative steps shortly after the incident: they questioned a number of witnesses, inspected the area where the incident had taken place, and opened criminal proceedings for attempted murder against two of the persons involved in the fight. In the early stages of the investigation the authorities thus made reasonable efforts to gather evidence and establish the facts.", "51. However, the Court observes that the authorities only got round to commissioning a medical expert report a year after the incident and that that measure, taken quite late in the day, was followed by long periods of inactivity, such as from 8 June 1992 to 17 June 1996, from 11 September 1996 to 25 August 2000 and from 18 July 2003 to 5 June 2006. The Court is struck by the fact that the repeated requests of the prosecutor to the investigator to conclude the investigation went unheeded (see paragraphs 13 and 17 above). The Government have offered no explanation for this. It cannot be said that during these periods of inactivity the investigation was dormant to the extent that the applicant should have realised that the investigation was going to be ineffective – on the contrary, the supervising prosecutor’s instructions of 18 July 2003 (see paragraph 17 above) would have suggested that the investigation’s conclusion was finally in sight.", "Moreover, there was no formal remedy to speed up the investigation as this was entirely in the hands of the authorities. The Court further notes that when the public prosecutor officially terminated the proceedings on the ground of the extinctive prescription of the criminal action, the applicant immediately contested the decision (and was initially successful – see paragraph 19 above). The general conduct of the investigation by the authorities thus allowed the statutory limitation period to lapse. 52. The Court reiterates that the purpose of effective protection against acts of ill-treatment cannot be achieved where the criminal proceedings are discontinued owing to the fact that the prosecution has become time-barred and where this has occurred, as shown above, as a result of the mismanagement of the case by the relevant State authorities (see passim Beganović, cited above, and in particular §§ 85-87).", "53. In the light of the foregoing, the Court concludes that in the present case the authorities failed to conduct an effective investigation into the wounding of the applicant. Accordingly, there has been a violation of the procedural limb of Article 3 of the Convention. II. THE REMAINDER OF THE APPLICANT’S COMPLAINTS 54.", "The applicant also complained, relying on Articles 6 and 13, that because of the excessive length of the criminal investigation, he had been denied access to a court to claim damages from his attackers. 55. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention which, in so far as relevant, provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... tribunal established by law...” 56. The Government submitted that the overall length of the investigation had been reasonable, that the applicant had not availed himself of the opportunity to become a civil party to the proceedings at the investigation stage, and that he could have also brought a claim for damages before the civil courts. 57.", "The applicant maintained his position that the investigation had been unreasonably lengthy. He further challenged the Government’s assertion that he could have brought a civil claim. In his view, it would have been ineffective for him to join the criminal proceedings as a civil claimant as the proceedings never reached the trial stage. Hypothetically, he could have brought a separate civil claim against the attackers before the civil courts but that option would have had its disadvantages; for example, he would have had to pay a 4% court fee and would have had to adduce evidence against the perpetrators. In all probability the civil proceedings would have been stayed pending the outcome of the criminal proceedings.", "58. The Court observes that, in accordance with the domestic law as applicable at the material time (see paragraphs 25 and 26 above), the applicant had the right to join the criminal proceedings as a civil claimant at the preliminary investigation stage or to bring a separate claim for damages before the civil courts. He did not pursue either of these avenues and allowed the limitation period for his tort claim to expire. It is true that had he chosen to bring a civil claim in the context of the preliminary investigation, his claim would not have been examined because the proceedings were ultimately terminated as time-barred. However, this outcome could not have been known to the applicant at the time.", "In any event, by bringing his civil claim either in the criminal proceedings or in separate civil proceedings he would have stopped the limitation period for the action in tort from expiring. There is nothing to indicate that such a claim would have been bound to fail (see, mutatis mutandis, Georgiev (dec.), cited above, with further references). 59. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 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 50,000 euros (EUR) in respect of non‑pecuniary damage. 62.", "The Government submitted that the claim was exorbitant. They also stated that, should the Court find a violation, a ruling in that sense would be sufficient just satisfaction. 63. The Court considers that the applicant must have suffered anxiety and frustration as a result of the violation found and that that damage cannot be made good solely by the finding of a violation. Ruling ex aequo et bono, as required under Article 41 of the Convention, the Court awards the applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.", "B. Costs and expenses 64. The applicant sought reimbursement of EUR 5,440 incurred in fees for sixty‑eight hours of work by his legal representatives on the proceedings before the Court, charged at a rate of EUR 80 per hour. He submitted a fee agreement and a time sheet, and requested that any sum awarded by the Court under this head be made directly payable to his legal representatives. The applicant also sought reimbursement of EUR 70 for postage and office expenses.", "He did not submit any receipts. 65. The Government submitted that the applicant’s claim for costs and expenses was exaggerated. They stated that there was no documentation proving that the applicant had actually paid such fees and suggested that in assessing the quantum of the award, the Court should have regard to its settled practice and to the reality of the Bulgarian economic situation. The Government further submitted that the claim for postage and office expenses could be reimbursed upon presentation of the relevant proof.", "66. According to the Court’s case‑law, costs and expenses claimed under Article 41 of the Convention must have been actually and necessarily incurred and reasonable as to quantum. 67. Having regard to the material in its possession, the above considerations, the lack of complexity of the case and the fact that the applicant’s lawyers did not represent him at the initial stage of the proceedings, the Court considers it reasonable to award the sum of EUR 2,000 covering costs and expenses under all heads, plus any tax that may be chargeable. This sum is to be paid directly to the applicant’s legal representatives.", "C. Default interest 68. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Declares by a majority the complaint concerning the alleged ineffectiveness of the criminal investigation into the applicant’s ill‑treatment admissible and the remainder of the application inadmissible; 2. Holds by six votes to one that there has been a violation of the procedural limb of Article 3 of the Convention; 3.", "Holds by six votes to one (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement: (i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of costs and expenses, the former sum to be paid directly to the applicant’s legal representatives; (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 April 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyIneta ZiemeleRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Kalaydjieva is annexed to this judgment. I.Z.", "T.LE. DISSENTING OPINION OF JUDGE KALAYDJIEVA In 1991, when the applicant (at that time 32 years old) was involved and seriously injured in a fight with private individuals, Bulgaria was not a Party to the Convention, which at that time did not entail any “separate and autonomous duty” of “effective and prompt investigation” under Article 2 or 3. Nonetheless, the next day the national authorities instituted criminal proceedings and charged the suspected perpetrators with attempted murder. By 1996 the applicant had missed the opportunity to join the criminal proceedings as a civil party or to institute separate compensation proceedings for the serious injuries he had sustained, as the general limitation period for such claims had expired. I fully agree with the majority in dismissing Mr Shopov’s complaints under Article 6 based on an alleged violation of his right to obtain compensation for the ill-treatment to which he was subjected.", "It might also be of interest to note that at that time the case-law of the Court under Article 3 of the Convention did not yet require States Parties to conduct an effective investigation into any acts of violence, whether committed by State agents or private parties, while the view that Article 6 of the Convention did not guarantee any individual right of the victims to criminal proceedings was already fully valid – as it is to this day. Had the applicant complained before the Court at that time, there is a reasonable chance that his application would have been declared inadmissible both on account of the fact that the events took place before ratification of the Convention and on account of the Court’s view that the Convention did not guarantee any right to criminal proceedings against third parties. The applicant’s inactivity continued until 2003. By that time the development of the Court’s views on the State obligation to investigate had already been triggered in its case-law of the late 1990s. However, he failed to join the criminal proceedings either as a civil party or as a private prosecutor and/or to request steps for their timely and proper conduct, with the exception of his mother’s complaints in the period 1991-1994 (resulting in the prosecutor’s order that they be completed “without delay”) and his lawyer’s request in 2003 (resulting in an order that they be completed in thirty days).", "In the meantime, in 1996, the initial charges of attempted murder had been changed to “causing intermediate bodily harm”. There is nothing to show that Mr Shopov undertook any other serious attempts to pursue his interest in the conduct of these proceedings in the period of almost nine years which elapsed between the last request made by his mother in 1994 (see paragraph 13 of the judgment) and the single request made by his lawyer on 18 July 2003 for further action in the long‑dormant proceedings (see paragraph 17). By that time the applicant was clearly aware of the ineffectiveness of the criminal investigation and must have become aware that the reduction of the charges against the perpetrators in 1996 entailed the risk of an earlier time-bar for their prosecution. However, he failed to challenge that reclassification at the time, as he could have, and demonstrated no further interest in the proceedings for the next three years. In these circumstances I am not inclined to believe that the discontinuation of the proceedings as being time‑barred took the applicant by surprise and I cannot agree with the majority’s views that his appeal against the discontinuation of the proceedings in 2006 can be seen as an “immediate” reaction (see paragraph 51).", "Mr Shopov did not complain that he had no access to or opportunities for other action, as the majority appears to have assumed (see paragraph 51 in fine) in view of the absence of formal remedies at his disposal. Although undertaken between long intervals of complete inactivity, his attempts while the proceedings were still open did trigger a reaction, while the last one was undertaken when it was already too late. Thus, neither the applicant nor the investigating authorities took reasonable steps for the proper conduct and conclusion of the investigation in the meantime. While I am equally “struck by the fact that the repeated requests of the prosecutor to the investigator to conclude the investigation went unheeded” and I fully agree with the majority that “[t]he general conduct of the investigation by the authorities allowed the statutory limitation period to lapse” (see paragraph 51), I remain unconvinced that the applicant’s own conduct did not contribute to this situation. Unlike Mr Shopov, all the applicants in the cases relied on in the present case raised their complaints before this Court only after having done “all that could be reasonably expected” to pursue their rights at the national level.", "In contrast, Mr Shopov remained inactive for two notable periods of nine and three years, in full awareness of the dormant nature of the investigation and the risk, for at least a significant part of these periods, that the proceedings would be discontinued as being time-barred. The applicant provided no explanation as to why he had failed to bring his complaints under the Convention in the period before 2003, once he became aware of the ineffectiveness of the investigation, or after the expiry of the thirty-day time-limit for concluding it (see paragraph 17), but instead waited for three more years before lodging his application with the Court in 2007. By that time the Court had dismissed numerous similar complaints as inadmissible in accordance with the criteria applicable at the time: the fact that the events complained of took place before the ratification of the Convention; the fact that the Convention does not guarantee any individual right to criminal proceedings against private parties; and the visible failure of the applicants to reasonably pursue their rights before the national authorities before coming to the Court or to register their complaints within a reasonable time after realising that the available domestic remedies were ineffective. I am not convinced that the present application would have had a different fate had it been examined at the time of its lodging. However, by 2013, when this application was examined, the living instrument of the Convention had not only elaborated the doctrine of positive obligations to investigate, but also expanded the now independent “procedural aspect” of the protection of individual rights under Article 3 and applied it with hindsight to events which took place even before ratification of the Convention.", "Relying rigorously on all the new standards resulting from this subsequent development, the conclusions of the majority on the merits of the complaints appear to attach considerable significance to the ex officio nature of the positive obligation to investigate ill-treatment by private parties, while failing to subject to reasonable scrutiny the applicant’s own conduct for the purposes of their admissibility. In this regard I find it difficult to agree that such an emphasis will meaningfully serve the purposes for which the ex officio nature of the obligation to investigate was initially developed, namely to impose a duty to establish and disclose the circumstances of wilful ill-treatment by State agents so as to safeguard the public interest in their accountability. This approach to examining the applicant’s “immediate” reactions in 2013 appears to favour individuals who remained “wisely” inactive for as long as necessary for the Court to develop its doctrine, in order to benefit from their own inactivity. I am far from convinced that the Convention case-law may be interpreted as an instrument for making up for missed opportunities. Summum jus, summa injuria?" ]

[ "FOURTH SECTION CASE OF Ľ.R. v. SLOVAKIA (Application no. 52443/99) JUDGMENT STRASBOURG 29 November 2005 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 Ľ.R.", "v. Slovakia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrG. Bonello,MrK. Traja,MrS. Pavlovschi,MrL. Garlicki,MsL.", "Mijović,MrJ. Šikuta, judgesand Mrs F. Elens-Passos, Deputy Section Registrar, Having deliberated in private on 8 November 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 52443/99) 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, inter alia, a Slovakian national, Mrs Ľ.R. (“the applicant”), on 10 September 1999.", "The President of the Chamber acceded to the applicant’ request not to have her name disclosed (Rule 47 § 3 of the Rules of Court). 2. The Slovakian Government (“the Government”) were represented by their Agent, Ms A. Poláčková. 3. On 26 October 2004 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of two sets of civil proceedings.", "Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the remainder of the application at the same time. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1948 and and lives in Bratislava. 5.", "The facts of the case, as submitted by the parties, may be summarised as follows. A. Proceedings concerning the validity of a purchase contract (Bratislava III District Court file 12C 153/91) 6. On 30 August 1991 the applicant filed an action with the Bratislava III District Court. She claimed that the defendants should be restrained from trespassing on her plot of land and from damaging her property and ordered to compensate her for damage.", "7. In the course of 1991 both parties made submission to the court. The applicant submitted further claims. 8. On 5 March 1992 the District Court adjourned the case.", "The applicant was invited to specify her claims in which, inter alia, she contested the validity of a purchase contract which she had concluded with the defendants in 1982. The applicant submitted further documents on 9 March 1992. The defendants commented on them on 31 March and on 13 April 1992. 9. Hearings were held on 26 May 1992, on 1 July 1992 and on 3 September 1992.", "Between the hearings the applicant continued submitting further documents. 10. On 16 October 1992 the District Court decided to obtain expert opinion on the applicant’s legal capacity at the time when she had signed the contract in 1982. On 9 November 1992 the applicant appealed claiming that she was unable to pay an advance on the expert’s fee. She withdrew the appeal on 20 January 1992.", "The file was transmitted to the expert on 27 November 1992. The expert submitted her opinion on 16 February 1993. On 23 March 1993 the court decided on the expert’s fee. 11. In July and August 1993 the applicant made further submissions to the court.", "12. On 24 September 1993 the court scheduled a hearing for 3 December 1993. It was adjourned to 14 December 1993 at the applicant’s request. On 14 December 1993 and on 31 January 1994 the case had to be adjourned as the expert could not attend. 13.", "A hearing was held on 7 June 1994. In the course of June and July 1994 the parties submitted further documents to the court. 14. On 20 September 1994 the court heard the parties. The case was adjourned as the expert did not appear.", "On the same day the court gave a decision refusing to exempt the applicant from the obligation to pay the court fee. The applicant appealed against that decision on 12 October 1994. 15. On 27 October 1994 the District Court dismissed the applicant’s claim concerning the validity of the purchase contract of 1982 on the ground that the applicant’s right to challenge the contract had lapsed. It further found that the remainder of the action, as specified by the applicant on 4 March 1992, concerned compensation for damage.", "The court decided to deal with that claim in a separate set of proceedings. 16. On 17 November 1994 the applicant appealed against the decision to dismiss her claim concerning the validity of the purchase contract. She submitted further reasons for her appeal on 3 March 1995. The defendants submitted observations in reply on 10 April 1995.", "The file was transmitted to the Bratislava City Court on 26 April 1995. 17. On 20 June 1995 the Bratislava City Court upheld the District Court’s judgment of 27 October 1994 as well as the first instance decision on the applicant’s obligation to pay the court fee. The appellate court’s judgment was served on the applicant on 14 November 1995. On 6 December 1995 she filed an appeal on points of law.", "18. On 12 April 1996 the District Court invited the applicant to pay the fee in respect of her appeal on points of law. On 22 April 1996 the applicant asked to be exempted from the obligation to pay the fee. 19. On 2 October 1996 the Bratislava III District Court discontinued the proceedings on the ground that the applicant had failed to pay the cassation fee.", "On 14 October 1996 the applicant withdrew her above request and she paid the fee. On 7 April 1997 the District Court quashed its decision of 2 October 1996. 20. The District Court transmitted the file with the applicant’s appeal on points of law to the Supreme Court on 5 March 1998. 21.", "On 24 April 1998 the Supreme Court returned the case to the Bratislava III District Court noting that the Bratislava City Court’s judgment of 20 June 1995 had not yet become final. 22. On 20 August 1998 the applicant’s mother also filed an appeal on points of law against the City Court’s judgment. The defendants submitted their comments in September 1998. The file was transmitted to the Supreme Court on 10 November 1998.", "The Supreme Court sent the case back to the District Court, on 10 December 1998, as the applicant’s mother had not been requested to pay the cassation fee. Following the District Court’s request on 7 January 1999, the applicant’s mother paid the fee on 15 January 1999. The file was again transmitted to the Supreme Court on 26 January 1999. 23. The Supreme Court dismissed the appeals on point of law on 24 March 1999.", "B. Proceedings concerning the claim for damages (Bratislava III District Court files 7 C 87/97 and 12 C 211/98) 24. As stated above, the Bratislava III District Court decided, on 27 October 1994, to deal in a separate set of proceedings with the applicant’s claim for damages filed on 4 March 1992. 25. On 27 May 1997 the proceedings relating to this claim were registered under number 7 C 87/97.", "On 14 July 1998 the same case was again registered under number 12 C 211/98. As both cases concerned the same subject-matter and parties, the proceedings registered under the former number were formally discontinued on 1 August 2001. That decision became final on 2 October 2001. 26. On 19 August 1998 the District Court requested the applicant to eliminate formal shortcomings in her action.", "The applicant replied on 28 August 1998. 27. On 16 February 2000 the District Court again requested the applicant to bring her submissions into line with the formal requirements. On 14 March 2000 the applicant replied that she had complied with the relevant requirements. She further requested that the proceedings be stayed pending the outcome of proceedings on her application filed with the Court.", "28. On 5 June 2000 the Bratislava III District Court dismissed the request as it found no relevant reason for staying the proceedings. The applicant appealed. 29. On 13 October 2000 the Bratislava III District Court informed the applicant that her original action was still incomplete and invited her to eliminate formal shortcomings in it.", "30. On 24 November 2000 the District Court discontinued the proceedings No. 12 C 211/98 as it found that the claim did not conform to the formal requirements. On 29 December 2000 the applicant appealed against this decision. 31.", "On 31 January 2001 the Bratislava Regional Court upheld the first instance decision of 5 June 2000 by which the applicant’s request for the proceedings to be stayed had been dismissed. 32. On 26 February 2002 the Bratislava Regional Court upheld the District Court’s decision to discontinue the proceedings delivered on 24 November 2000. That decision thus became final on 29 April 2002. The Regional Court concluded that, despite several requests, the applicant had failed to describe the relevant facts and to sufficiently specify the claim on which the courts were called upon to decide.", "33. On 30 April 2002 the applicant lodged an appeal on points of law against the Bratislava Regional Court’s decision. The Supreme Court rejected the appeal on points of law on 28 May 2003. C. Constitutional proceedings 34. On 3 April 2003 the applicant lodged a complaint with the Constitutional Court pursuant to Article 127 of the Constitution, as in force since 1 January 2002.", "She alleged, inter alia, a violation of her right to a hearing without undue delay in the proceedings registered under No. 7 C 87/97 and in the proceedings concerning the validity of the purchase contract of 1982. 35. On 3 December 2003 the Constitutional Court dismissed the complaint. Since the proceedings concerning the validity of the purchase contract had ended on 24 March 1999, the applicant’s complaint in their respect was submitted after the expiry of the statutory two months’ time‑limit.", "As to the complaint about the length of Bratislava III District Court proceedings No. 7 C 87/97, the Constitutional Court found that final decision had been given in 2001. However, it could only entertain such complaints where the proceedings complained of were pending at the moment when a complaint under Article 127 of the Constitution was filed. II. RELEVANT DOMESTIC LAW AND PRACTICE 36.", "Article 48(2) of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay. 37. Pursuant to Article 130(3) of the Constitution, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon the petition (“podnet”) presented by any individual or a corporation claiming that their rights had been violated. 38. According to its case-law under the former Article 130(3) of the Constitution, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner’s rights under Article 48(2) of the Constitution.", "It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. In the Constitutional Court’s view, it was therefore for the authority concerned to provide redress to the person whose rights had been violated. 39. As from 1 January 2002, the Constitution has been amended in that, inter alia, individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127. Under this provision the Constitutional Court has the power, in case that it finds a violation of Article 48(2) of the Constitution, to order the authority concerned to proceed with the case without delay.", "It may also grant adequate financial satisfaction to a person whose constitutional right has been violated as a result of excessive length of proceedings (for further details see, e.g., Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002). 40. It has been the Constitutional Court’s practice to entertain complaints about excessive length of proceedings only where the proceedings complained of are pending, at the moment when such complaints are lodged with it, before the authority liable for the alleged violation (e.g., decision IV. ÚS 96/02, with further references, or decision IV.", "ÚS 176/03). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 41. The applicant complained that the length of the above two sets of 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...” 42. The Government did not contest that argument as regards the proceedings concerning the validity of a purchase contract.", "43. The period to be taken into consideration began only on 18 March 1992, when the recognition by the former Czech and Slovak Federal Republic, of which Slovakia is one of the successor states, of the right of individual petition took effect. In the proceedings concerning the validity of the purchase contract the period to be considered ended on 24 March 1999. It thus lasted 7 years and 6 days for three levels of jurisdiction. In the proceedings concerning the claim for damages the period in question ended on 28 May 2003.", "It thus lasted 11 years, 2 months and 10 days for three levels of jurisdiction. A. Admissibility 1. Proceedings concerning the validity of a purchase contract 44. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. 2. Proceedings concerning the claim for damages 45. The Government objected that the applicant had not exhausted domestic remedies as she had not used the remedy under Article 127 of the Constitution introduced with effect from 1 January 2002. 46.", "The greater part of the period under consideration relates to proceedings before the first instance court which decided on the applicant’s claim on 24 November 2000. The applicant appealed on 29 December 2000. Subsequently the case was dealt with by the appellate court which gave its decision on 26 February 2002 and, ultimately, by the Supreme Court which decided on the appeal on points of law on 28 May 2003. Having regard to the Constitutional Court’s practice to examine complaints about the length of proceedings only to the extent that the proceedings are pending, at the moment when a constitutional complaint is filed, before the authority responsible for the alleged violation, the Court is not satisfied that it was open to the applicant to effectively complain under Article 127 of the Constitution (as operative since 1 January 2002) about the overall length of the proceedings in issue. Accordingly, the Government’s objection cannot be upheld.", "47. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 48. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the 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). 49. 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).", "50. 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 both sets of proceedings complained of was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1 in both sets of proceedings. II.", "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 8,425,963 Slovakian korunas (SKK) in respect of pecuniary damage and SKK 500,000 in respect of non-pecuniary damage. 53.", "The Government contested these claims. 54. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, having regard to the circumstances of the case, it considers it appropriate to award the applicant EUR 8,000 in respect of non-pecuniary damage. B.", "Costs and expenses 55. The applicant also claimed SKK 46,651 for the costs and expenses incurred before both the domestic courts and the Court. 56. The Government left the matter to the Court’s discretion. 57.", "According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant, who was not represented by a lawyer, the sum of EUR 300 under this head. C. Default interest 58. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the remainder of the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention in both sets of 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 global sum of EUR 8,000 (eight thousand euros) in respect of non-pecuniary damage and EUR 300 (three hundred euros) in respect of costs and expenses, the above sums to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 29 November 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Françoise Elens-PassosNicolas Bratza Deputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF POLTORATSKIY AND OTHERS v. RUSSIA (Application nos. 4622/09 and 9 others – see appended list) JUDGMENT STRASBOURG 30 November 2017 This judgment is final but it may be subject to editorial revision. In the case of Poltoratskiy 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 9 November 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention.", "Some applicants also raised other complaints under the provisions of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 6.", "The applicants complained principally that their pre-trial detention had been unreasonably long. They relied on Article 5 § 3 of the Convention, which reads as follows: Article 5 § 3 “3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 7. The Court will firstly address the objections raised by the Government in respect of application no.", "55219/12. In particular, the Government argued that the applicant could no longer claim to be a victim of a violation of his rights guaranteed by Article 5 § 3 of the Convention in view of the fact that he had been afforded compensation for his unlawful detention by a Russian court. In this respect the Court notes that the domestic courts which examined the applicant’s claim had explicitly refused to acknowledge the violation of his rights under Article 5 § 3 of the Convention. The Court further reiterates that it has already examined a similar issue in other cases against Russia, having noted, in particular, that the state of Russian law precludes any legal possibility for the applicant to receive compensation for the detention which was effected in breach of Article 5 § 3 of the Convention (see Govorushko v. Russia, no. 42940/06, § 60, 25 October 2007, and Korshunov v. Russia, no.", "38971/06, § 62, 25 October 2007). The Court does not consider that it can reach a different conclusion in the present case and dismisses the Government’s objection as to the victim status of the applicant in application no. 55219/12. 8. The Court further observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no.", "30210/96, § 110, ECHR 2000‑XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006‑X, with further references). 9. In the leading case of Dirdizov v. Russia, no. 41461/10, 27 November 2012, the Court already found a violation in respect of issues similar to those in the present case.", "10. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicants’ pre-trial detention was excessive. 11. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention.", "III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 12. In applications nos. 4622/09, 9361/10, 55219/12, 328/17 and 23928/17 the applicants submitted other complaints which also raised issues under the Convention, in accordance with the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground.", "Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Idalov v. Russia ([GC], no. 5826/03, §§ 154-158, 22 May 2013), regarding the lack of speediness and procedural safeguards in the review of detention matters; Govorushko (cited above, §§ 69-61) and Korshunov (cited above, §§ 60-63), concerning the lack of an enforceable right to compensation for detention which has been found to be in violation of Article 5 § 3 of the Convention; Khudoyorov v. Russia (no. 6847/02, §§ 146-151, ECHR 2005-X (extracts)), pertaining to the absence a valid domestic decision or other “lawful” basis for detention on remand; and Tsarenko v. Russia (no. 5235/09, §§ 58-63, 3 March 2011), regarding detention in excess of the maximum time-limit established by the Russian law.", "IV. REMAINING COMPLAINTS 13. In applications nos. 4622/09, 328/17, and 3132/17, the applicants also raised other complaints under various Articles of the Convention. 14.", "The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 15. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 16. Regard being had to the documents in its possession and to its case‑law (see, in particular, Pastukhov and Yelagin v. Russia, no.", "55299/07, 19 December 2013), the Court considers it reasonable to award the sums indicated in the appended table. 17. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2.", "Declares the complaints concerning the excessive length of pre-trial detention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of the applications nos. 4622/09, 328/17, and 3132/17 inadmissible; 3. Holds that these complaints disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial 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 30 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtLuis López Guerra Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 5 § 3 of the Convention (excessive length of pre-trial detention) No. Application no.Date of introduction Applicant name Date of birth Representative name and location Period of detention Length of detention Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 4622/09 23/11/2008 Vladislav Mikhaylovich Poltoratskiy 21/10/1968 01/02/2008 to 10/12/2010 2 year(s) and 10 month(s) and 10 day(s) Art. 5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis – the applicant’s detention from 12/07/2009 to 6/08/2009 is not covered by a judicial order (see Khudoyorov v. Russia, no. 6847/02, §§ 146-151, ECHR 2005-X (extracts)) 4,000 9361/10 28/01/2010 Saveliy Mendelevich Burshteyn 10/05/1957 Stavitskaya Anna Edvardovna Moscow 20/01/2008 to 31/05/2010 2 year(s) and 4 month(s) and 12 day(s) Art.", "5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis – After 20/07/2009 the applicant’s detention exceeded the statutory 18-month time-limit provided for by the Code of Criminal Procedure (see Tsarenko v. Russia, no. 5235/09, 3/03/2011), Art. 5 (4) - excessive length of judicial review of detention – 1) Detention order of 13/07/2009 by the Moscow City Court, appeal filed on 7/05/2009, appeal decision delivered on 9/09/2009. 2) Decision of the Zamoskvoretskiy District Court of Moscow of 18/09/2009 containing, inter alia, detention order, appeal filed within 10 days, appeal decision delivered on 11/11/2009. 3) Detention order of 26/11/2009 by the Zamoskvoretskiy District Court of Moscow, appeal received by domestic authorities in early December, appeal decision delivered on 18/01/2010.", "3,300 55219/12 06/08/2012 Vadim Valeryevich Palkin 29/04/1979 28/11/2010 to 19/06/2013 2 year(s) and 6 month(s) and 23 day(s) Art. 5 (5) - lack of, or inadequate, compensation for unlawful arrest or detention - domestic court pointed out that claims about breaches of the Convention are out of national courts’ jurisdiction and explicitly refused to award compensation for the unreasonably lengthy detention 3,500 328/17 15/12/2016 Kirill Yevgenyevich Skachkov 22/10/1988 Konin Nikolay Nikolayevich St Petersburg 13/04/2016 pending More than 1 year(s) and 5 month(s) and 24 day(s) Art. 5 (4) - excessive length of judicial review of detention - the appellate hearing with regard to the detention order of 26/05/2016 was held on 18/08/2016. 1,600 2803/17 27/12/2016 Konstantin Grigoryevich Pilipiliadi 02/09/1958 30/10/2015 pending More than 1 year(s) and 11 month(s) and 7 day(s) 2,000 3031/17 17/12/2016 Vladimir Gaffanovich Shamsedtinov 12/06/1978 Geraskin Eduard Olegovich Moscow 05/08/2015 pending More than 2 year(s) and 2 month(s) and 2 day(s) 2,300 3132/17 07/11/2016 Maksim Yevgenyevich Ionov 17/11/1982 15/01/2014 pending More than 3 year(s) and 8 month(s) and 22 day(s) 3,900 17911/17 20/02/2017 Aleksandr Viktorovich Voronov 04/01/1982 19/06/2015 to 28/06/2017 2 year(s) and 10 day(s) 2,100 22861/17 15/03/2017 Roman Aleksandrovich Cherkasov 28/08/1975 03/08/2015 to 18/08/2017 2 year(s) and 16 day(s) 2,100 23928/17 02/03/2017 Aleksey Anatolyevich Timofeyev 17/12/1983 19/01/2014 to 06/10/2016 2 year(s) and 8 month(s) and 18 day(s) Art. 5 (4) - excessive length of judicial review of detention - Detention order of 5/07/2016 - appeal decision on 8/09/2016.", "3,800 [1]. Plus any tax that may be chargeable to the applicants." ]

[ "FOURTH SECTION CASE OF FIGIEL v. POLAND (no. 1) (Application no. 38190/05) JUDGMENT STRASBOURG 17 July 2008 FINAL 17/10/2008 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 Figiel v. Poland (no.", "1), The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,Ján Šikuta,Päivi Hirvelä,Ledi Bianku, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 24 June 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 38190/05) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Wojciech Figiel (“the applicant”) on 29 January 2005. 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.", "3. On 1 September 2006 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. 4. The Government requested that the present application be joined to application no.", "38206/05, which was lodged by the applicant (Figiel v. Poland (no. 2)) and which concerned the length of another and unrelated set of civil proceedings. On 6 May 2008 the President of the Chamber decided not to join the applications. 5. The Government submitted a unilateral declaration and invited the Court to strike both of the above-mentioned applications out of the list, in accordance with Article 37 of the Convention.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1955 and lives in Warsaw. A. Civil proceedings for payment 7.", "On 25 October 1999 the applicant lodged a civil claim for payment with the Warsaw District Court (Sąd Rejonowy). The applicant requested the court to make an order for payment against his business partner. The value of the claim was 500 zlotys (PLN) (about 150 euros (EUR)). Between 25 October 1999 and 27 October 2004 the court held seven hearings, three of which were postponed for various reasons. At the hearing on 27 October 2004 the parties concluded a friendly settlement.", "On the same day the Warsaw District Court (Sąd Rejonowy) discontinued the proceedings. B. Proceedings under the 2004 Act 8. On 21 September 2004 the applicant lodged a complaint with the Warsaw Regional Court under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). He sought a ruling that the length of the proceedings before the Warsaw District Court had been excessive and an award of just satisfaction.", "On 19 October 2004 the Warsaw Regional Court gave a decision in which it acknowledged the excessive length of the proceedings (35 months and 21 days of inactivity on the part of the Warsaw District Court) but refused to grant the applicant any just satisfaction, holding that the applicant had failed to reason his request for just satisfaction and that the proceedings for payment of PLN 500 “were not particularly important for the applicant who is an entrepreneur, because the consequences are not attributable to the excessive length of the proceedings”. C. Application no. 38206/05 9. On 29 January 2005 the applicant lodged another application concerning the length of a different set of civil proceedings for payment. These proceedings lasted 5 years and 22 days at two court instances.", "The applicant made use of the complaint provided for by the 2004 Act and the domestic court acknowledged the excessive length of proceedings (36 months and 7 days of inactivity on the part of the Warsaw District Court) but refused to grant the applicant any just satisfaction. II. RELEVANT DOMESTIC LAW AND PRACTICE 10. 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 stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no.", "11215/02 (dec.), ECHR 2005-VIII, and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. THE LAW I. THE GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION 11. On 30 July 2007 the Government submitted a unilateral declaration similar to that in the case Tahsin Acar v. Turkey (preliminary objection) [GC], no.", "26307/95, ECHR 2003-VI) and informed the Court that they were ready to accept that there had been a violation of the applicant’s rights under Article 6 § 1 of the Convention as a result of the unreasonable length of the proceedings in which the applicant had been involved. In respect of non-pecuniary damage, the Government proposed to award the applicant PLN 10,000 (the equivalent of EUR 2,600) in respect of the two cases introduced by the applicant (see paragraphs 4 and 9 above). The Government invited the Court to strike out the applications in accordance with Article 37 of the Convention. 12. The applicant did not agree with the Government’s proposal and requested the Court to continue the examination of the cases.", "He maintained that the amount offered was too low. 13. The Court observes that, as it has already held on many occasions, it may be appropriate under certain circumstances to strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government even if the applicant wishes the examination of the case to be continued. It will depend on the particular circumstances whether the unilateral declaration offers a sufficient basis for finding that respect for human rights as defined in the Convention and its Protocols does not require the Court to continue its examination of the case (see Tahsin Acar, cited above, § 75; and Melnic v. Moldova, no. 6923/03, § 22, 14 November 2006).", "14. According to the Court’s case-law, the amount proposed in a unilateral declaration may be considered a sufficient basis for striking out an application or part thereof. The Court will have regard in this connection to the compatibility of the amount with its own awards in similar length of proceedings cases, bearing in mind the principles which it has developed for determining victim status and for assessing the amount of non-pecuniary compensation to be awarded where it has found a breach of the reasonable-time requirement (see Cocchiarella v. Italy [GC], no. 64886/01, §§ 85‑107, ECHR 2006‑...,; Scordino v. Italy (no.1) [GC], no. 36813/97, §§ 193-215, ECHR-2006-...; and Dubjakova v. Slovakia (dec.), no.", "67299/01, 10 October 2004). 15. It is to be noted that the amount proposed by the Government in their unilateral declaration refers to two separate cases brought by the applicant, one of which is the subject of the present proceedings. 16. While the amount proposed might be considered sufficient in a single case, it cannot be accepted as adequate just satisfaction for a breach of the reasonable-time requirement in two separate cases.", "On the facts and for the reasons set out above, in particular the amount of compensation proposed, the Court finds that the Government have failed to provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the case (see, a contrario, Spółka z o.o. WAZA v. Poland (striking out), no. 11602/02, 26 June 2007). 17. This being so, the Court rejects the Government’s request to strike the application out of its list of cases under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS 18. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 19. The Government refrained from submitting observations on the admissibility and merits of the complaint. 20.", "The period to be taken into consideration began on 25 October 1999 and ended on 27 October 2004. It thus lasted 5 years and 4 days for one level of jurisdiction. A. Admissibility 21. In the present case the Regional Court acknowledged a breach of the applicant’s right to a hearing within a reasonable time but refrained from making an award of just satisfaction (see paragraph 8 above). Having regard to the criteria for determining victim status in respect of length of proceedings complaints as set out in the above-mentioned Scordino (no.", "1) judgment, the Court concludes that the complaint cannot be rejected as being incompatible ratione personae with the Convention. It further notes that this 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. B. Merits 22.", "The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 23. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 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. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 25.", "Regarding the applicant’s allegations that his complaint about a breach of his right to a trial within a reasonable time was not effective, the Court considered it appropriate to raise of its own motion the issue of Poland’s compliance with the requirements of Article 13 of the Convention on account of indications that the applicant had no effective domestic remedy in respect of the protracted length of proceedings in his case. Article 13 reads: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 26. The Government refrained from making any comments in this respect. 27. 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 v. Poland [GC], no. 30210/96, §§ 154 et seq., ECHR 2000-XI, §§ 156-157). 28. While the subsidiarity principle underlying the Convention system requires the Contracting States to introduce a mechanism addressing complaints about the excessive length of proceedings within the national legal system, they are afforded – subject to compliance with the requirements of the Convention – some discretion as to the manner in which they provide individuals with the relief required by Article 13 and conform to their Convention obligation under that provision. In particular, where the State has introduced a compensatory remedy, the Court must leave to it a wide margin of appreciation and allow it to organise the remedy – including the interpretation and application of the notion of “damage” in a given case – in a manner consistent with its own legal system, traditions and the standard of living in the country concerned (see Kudła ibid.", "; and Scordino (no. 1), cited above, §§ 188-189). 29. The fact that in the present case the applicant’s claim for just satisfaction failed and that the redress obtained from the domestic court was not sufficient for Convention purposes does not in itself render the remedy under the 2004 Act incompatible with Article 13, albeit that it has consequences for the Court’s assessment of his victim status in respect of the alleged breach of the reasonable-time requirement (see paragraph 20 above, with references to the Court’s case-law, and, mutatis mutandis, Zarb v. Malta, no. 16631/04, §§ 49-52, 4 July 2006).", "As stated above, 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 paragraph 25 above; and, also, Šidlová v. Slovakia, no. 50224/99, § 77, 26 September 2006). 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. 30. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 31. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 32. The applicant claimed 3,000 euros (EUR) in respect of non‑pecuniary damage.", "33. The Government did not express an opinion on the matter. 34. The Court considers that it should award the full sum claimed. B.", "Costs and expenses 35. The applicant also claimed EUR 150 for the costs and expenses incurred before the Court. 36. The Government did not express an opinion on the matter. 37.", "The Court awards the full sum claimed. C. Default interest 38. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Rejects the Government’s request to strike the application out of the list; 2.", "Declares the complaint concerning the excessive length 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; 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 in the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 3,000 (three thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable; (ii) EUR 150 (one hundred and fifty euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 17 July 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas Bratza RegistrarPresident" ]

[ "FOURTH SECTION CASE OF BIŢA AND OTHERS v. MOLDOVA (Applications nos. 25238/02, 25239/02 and 30211/02) JUDGMENT STRASBOURG 25 September 2007 FINAL 25/12/2007 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 Bita v. Moldova, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG.", "Bonello,MrK. Traja,MrS. Pavlovschi,MrL. Garlicki,MsL. Mijović, judges,and Mrs F. Aracı, Deputy Section Registrar, Having deliberated in private on 4 September 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in three applications (no. 25238/02, no.25239/02 and no. 30211/02) 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 Moldovan nationals, Mr Fiodor Biţa (“the first applicant”), Mr Evghenii Andrienco (“the second applicant”) and Ms Ana Stanilî (the third applicant), on 10 June 2002 and 28 July 2002. 2. The Moldovan Government (“the Government”) were represented by their Agent at the time, Mr A. Pârlog.", "3. The applicants complained that the failure to enforce the final judgments in their favour had violated their right to have their civil claims determined by a court within a reasonable time, as guaranteed by Article 6 of the Convention, their right to peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1 to the Convention, and their right to an effective remedy within the meaning of Article 13 of the Convention. 4. The applications were allocated to the Fourth Section of the Court.", "On 4 February 2003 and on 9 February 2006 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 applications at the same time as their admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1958, 1950 and 1949 respectively and live in Chişinău.", "6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. All the applicants worked for the Ministry of Transport and Communications (“the employer”). They were promoted in 1997 but their salaries were not increased accordingly in the years 1997-98.", "When the employer refused to increase their salaries, the applicants initiated court proceedings. 8. On 4 December 2000 the Centru District Court awarded 5,074 Moldovan lei (MDL) (the equivalent of 469 euros (EUR) at the time) to the first applicant and MDL 5,280 (the equivalent of EUR 488 at the time) to the second applicant. On 26 December 2000 the same court awarded MDL 5,388 (the equivalent of EUR 498 at the time) to the third applicant. No appeals were lodged and the judgments became final and enforceable 15 days later.", "9. The applicants complained to a number of State authorities, asking for assistance in having the judgments in their favour enforced. They received a number of replies, including that of the Ministry of Justice of 24 May 2001, which readdressed the complaint to the Centru District Court, requesting it to take “all measures provided by the law”. On 31 May 2001 the vice-president of that court informed the first applicant that the enforcement warrant had been sent to the State Treasury and that enforcement was impossible owing to the lack of money in the employer's account. A number of other authorities, including the Centru District Court, the Ministry of Justice, the President's Office and the Human Rights Centre were asked by the applicants to assist in ensuring the enforcement of the judgment.", "These complaints were either forwarded to the employer or to the court, with instructions to ensure the enforcement of the judgment. The applicants were informed of the lack of money in the employer's debt settlement account, which had been frozen for enforcement purposes, and that the budget had not been modified to provide for the enforcement of the judgment. The applicants were also informed that 70 similar judgments against the employer were awaiting enforcement. 10. The applicants submitted to the Court a copy of a Government decision of 17 January 2002, which ordered the Ministry of Finance to allocate to the employer MDL 483,700 from the Government reserve fund, to cover reorganisation expenses.", "That money was to be returned to the reserve fund from the employer's 2002 budget. In another Government decision, dated 5 June 2002, the employer was allowed to buy an apartment in Chişinău for its Minister, funded by the development fund. 11. The domestic court fined the employer several times during 2002 for failing to enforce its judgments. 12.", "In September 2002 the enforcement warrants were partly enforced. The first applicant received MDL 3,940, the second applicant received MDL 4,145 and the third applicant received MDL 4,172. The remainder (equivalent to EUR 67, EUR 82 and EUR 91 respectively) was withheld as income tax. 13. The applicants brought a new action for compensation for the pecuniary damage caused by inflation and for non-pecuniary damage, which they left to the court's discretion.", "14. By its final judgments of 4 February 2004 the Supreme Court of Justice found that the judgments in the applicants' favour had been belatedly enforced, and awarded MDL 5,074 (the equivalent of EUR 334 at the time) to the first applicant and MDL 6,715 (the equivalent of EUR 402 at the time) to the third applicant in compensation for the effect of inflation on the value of the 2000 award. The court did not deal with the applicants' request for compensation for non-pecuniary damage. On 7 May 2004 the second applicant's request for compensation was accepted by the Buiucani District Court, which awarded him MDL 6,579 (the equivalent of EUR 474 at the time). 15.", "The award of 4 February 2004 was enforced on 4 May 2004. In February 2005 the first and third applicants received MDL 1,755 (EUR 107) each from the employer in compensation for the delay in enforcing this new award. II. RELEVANT DOMESTIC LAW 16. The relevant domestic law has been set out in Prodan v. Moldova (no.", "49806/99, ECHR 2004‑III (extracts)). THE LAW I. THE GOVERNMENT'S PRELIMINARY OBJECTION 17. The Government submitted that since the awards in the applicants' favour had been enforced in September 2002 and they had obtained additional compensation, they could no longer claim to be victims of violations of their Convention rights. 18.", "The Court notes that it has already dismissed a similar objection raised by the respondent Government (see, for instance, Prodan v. Moldova, cited above, § 47). In the present case, even though the courts acknowledged in substance the belated enforcement of the judgments in the applicants' favour, they only awarded partial compensation, ignoring the applicants' claims for compensation for non-pecuniary damage. Moreover, no compensation for pecuniary damage resulting from the non-enforcement was paid, since the 2004 awards compensated only for the effects of inflation, and not for the inability to use the money for almost two years. The additional compensation awarded in 2005 relates to the belated enforcement of the 2004 award and not to the original awards in the applicants' favour. 19.", "Finally, the Court notes that the judgments in the applicants' favour have still not been fully enforced, certain sums having been withheld from them for income tax (see paragraph 12 above). However, the judgments in the applicants' favour did not provide for such deductions, and awarded specific sums of money to the applicants without reference to any tax. Moreover, the employer did not appeal against those judgments to claim a reduction of the amount to be paid to the applicants for tax purposes, nor did it ask for an interpretation of the judgments to clarify the issue of the withholding of tax. Instead, the employer itself interpreted and effectively modified the judgments, although this could be done only by a court. 20.", "In these circumstances, the Court considers that the applicants can claim to be victims of violations of Articles 6 § 1 and 13 of the Convention, as well as of Article 1 of Protocol No. 1 to the Convention. 21. The Court considers that the applicants' complaints under Article 6 § 1 and Article 13 of the Convention and Article 1 of Protocol No. 1 raise questions of law which are sufficiently serious for their determination to depend on an examination of the merits, and no other grounds for declaring them inadmissible have been established.", "The Court therefore declares these complaints admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 4 above), the Court will immediately consider the merits of these complaints. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 22.", "The applicants complained that the non-enforcement of the judgments in their favour had violated their rights under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention. 23. The Government considered that no violation of those rights had taken place, in view of the full enforcement of the judgments within a reasonable time and the payment of compensation. They conceded a violation of Article 6 § 1 and Article 1 of Protocol No.", "1 to the Convention in respect of the second applicant, noting that urgent measures had been taken following the communication of the case to have the judgment fully enforced. 24. The Court notes that in the present case the applicants had access to a court under national law in respect of their dispute with the employer. Accordingly, Article 6 is applicable (see Vilho Eskelinen and Others v. Finland [GC], no. 43803/98, § 62, 19 April 2007).", "25. The Court notes that the judgments in the applicants' favour adopted in December 2000 remained unenforced for 21 months, until September 2002, when the applicants received a part of the award. The remaining sums have still not been paid. The Court has found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in numerous cases concerning delays in enforcing final judgments (see, among other authorities, Prodan v. Moldova, cited above, and Luntre and Others v. Moldova, nos.", "2916/02, 21960/02, 21951/02, 21941/02, 21933/02, 20491/02, 2676/02, 23594/02, 21956/02, 21953/02, 21943/02, 21947/02 and 21945/02, 15 June 2004). 26. Having examined the material submitted to it, the Court notes that the files do not contain any element which would allow it to reach a different conclusion in the present cases. 27. Accordingly, the Court finds, for the reasons given in the cases mentioned in paragraph 25 above, that the failure to enforce the judgments in the applicants' favour within a reasonable time constitutes a violation of Article 6 § 1 and Article 1 of Protocol No.", "1 to the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 6 § 1 AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 28. The applicants further complained that they had had no effective remedies in respect of their complaints under Article 6 § 1 and Article 1 of Protocol No.", "1 to the Convention. 29. The Government argued that Article 13 was not applicable in the absence of a violation of either Article 6 § 1 or Article 1 of Protocol No. 1 to the Convention. They added that the applicants had not used all available domestic remedies in respect of their complaint under Article 13, such as requesting the initiation of administrative or criminal proceedings against the person responsible for non-enforcement.", "They relied on the direct applicability of the Convention in Moldova's domestic legal order. Finally, they conceded a violation of Article 13 of the Convention in respect of the second applicant. 30. The Court observes that the applicants' complaints that the failure to enforce the judgments in their favour infringed their rights under Article 6 and Article 1 of Protocol No. 1 were undoubtedly arguable (see paragraph 27 above).", "The applicants were therefore entitled to an effective remedy within the meaning of Article 13. Accordingly, the Court will examine whether such a remedy was available to the applicants. 31. The Court notes that the judgments in favour of the applicants were partly enforced 21 months after they had been adopted. The debtor in this case was a State body.", "The Court reiterates that “a person who has obtained an enforceable judgment against the State as a result of successful litigation cannot be required to resort to enforcement proceedings in order to have that judgment executed” (see Koltsov v. Russia, no. 41304/02, § 16, 24 February 2005 and Metaxas v. Greece, no. 8415/02, § 19, 27 May 2004). Notwithstanding the above, the applicants' judgments have not yet been fully enforced, despite the bailiff's reasonable efforts, including the freezing of one of the Ministry's accounts. 32.", "It is thus apparent that the applicants had no remedy, either to prevent the continuation of the violation of their rights guaranteed under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention, or to obtain full compensation. There has accordingly been a violation of Article 13, taken together with those Articles (Romashov v. Ukraine, no. 67534/01, § 47, 27 July 2004, and Voytenko v. Ukraine, no. 18966/02, § 43, 29 June 2004).", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 33. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. The first applicant 34.", "The first applicant made no claims for just satisfaction. The Court notes that the judgment in his favour was partly enforced and that he has already received partial compensation for the damage caused. Accordingly, it does not make an award under Article 41 of the Convention. However, the Court notes that a part of the initial award in the first applicant's favour remains unenforced. It considers that the judgment of 4 December 2000 should now be fully enforced and that the applicant should receive the outstanding amount (EUR 67) withheld from him by the employer (see paragraphs 12 and 19 above).", "2. The second applicant 35. The second applicant claimed EUR 83, corresponding to the outstanding part of the original award in his favour and for compensation in respect of non-pecuniary damage, which he left to the Court's discretion. 36. The Government considered that the finding of a violation would constitute sufficient just satisfaction.", "37. The Court recalls that the judgment in the second applicant's favour has not been fully enforced to date (see paragraphs 12 and 19 above). It also considers that the applicant must have suffered non-pecuniary damage as a result of the failure fully to enforce the judgment in his favour for seven years. Deciding on an equitable basis, it awards the applicant EUR 2,000. 3.", "The third applicant 38. The third applicant claimed MDL 15,826 (EUR 930) for damage caused by the non-enforcement of the judgment in her favour. She stated that her inability to use the money had been particularly stressful because she had lost her husband and had three children to care for. 39. The Government considered that the applicant had been fully compensated for the damage caused by the belated enforcement of the judgment in her favour.", "In any event, the amount claimed was excessive. 40. The Court considers that the applicant must have suffered some pecuniary loss, as well as stress and frustration as a result of the non-execution of the judgment in her favour within a reasonable time and notes the incomplete enforcement of that judgment (see paragraphs 12 and 19 above). It therefore allows the applicant's claim for just satisfaction in full. B.", "Costs and expenses The applicants did not make any claim under this head. C. Default interest 41. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the applications admissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention on account of the failure to enforce fully the final judgment in favour of each applicant; 3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention on account of the same failure to enforce; 4. Holds that there has been a violation of Article 13 of the Convention on account of the lack of effective remedies in respect of the applicants' complaints regarding the failure to enforce fully the judgments in their favour; 5. Holds (a) that the respondent State is to pay, within three months of the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, EUR 67 (sixty seven euros) representing the outstanding part of the award in favour of Mr Biţa, 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 the respondent State is to pay, within three months of the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) for pecuniary and non-pecuniary damage to Mr Andrienco, 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; (c) that the respondent State is to pay, within three months of the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, EUR 930 (nine hundred and thirty euros) for pecuniary and non-pecuniary damage to Ms Stanilî, 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; (d) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6.", "Dismisses the remainder of the applicants' claims for just satisfaction. Done in English, and notified in writing on 25 September 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıNicolas BratzaDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF BÍRO v. SLOVAKIA (No. 4) (Application no. 26456/06) JUDGMENT STRASBOURG 18 May 2010 FINAL 18/08/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bíro v. Slovakia (no.", "4), 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 April 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 26456/06) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovak national, Mr Dušan Bíro (“the applicant”), on 26 June 2006. 2. The Slovak Government (“the Government”) were represented by their Agent, Mrs M. Pirošíková.", "3. On 8 July 2009 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3). THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1951 and lives in Bratislava.", "A. Proceedings concerning the applicant's action of 2003 5. On 14 and 18 November 2003 the applicant lodged an action for damages against the Bratislava II District Labour Office. Originally his two identical submissions were given two file numbers and were assigned to two judges. As from 16 December 2003 they were dealt with together by one judge under one file number.", "6. The Bratislava II District Court and the Bratislava Regional Court examined a number of procedural issues. The applicant repeatedly modified his action, requested that the Ministry of Labour and the Ministry of Justice join the proceedings as defendants, challenged the lack of impartiality of a judge, requested that the District Court exempt him from the obligation to pay court fees and appoint a legal-aid lawyer to represent him in the proceedings. 7. On 6 August 2008 the applicant informed the District Court that his legal-aid lawyer had died.", "8. On 27 November 2008 the District Court dismissed a part of the applicant's claim and discontinued the proceedings in respect of the remaining part. 9. On 7 January 2009 the mail with the above judgment sent to the applicant's lawyer was returned to the District Court. The postal delivery report indicated that the lawyer had not collected the mail.", "10. The stamp on the judgment indicates that the latter became final on 23 January 2009. 11. Following the applicant's request, the judgment was served on him on 19 May 2009. He appealed on 1 June 2009.", "The proceedings are pending. B. Constitutional proceedings 12. On 10 May 2006 the Constitutional Court declared the applicant's length of proceedings complaint inadmissible for non-exhaustion of domestic remedies, concluding that the applicant had not complained thereof to the President of the District Court. The complaint about the assignment of the applicant's case to another District Court judge in 2003 was declared inadmissible as being manifestly ill-founded.", "13. On 7 February 2008 his second complaint was declared inadmissible as being manifestly ill-founded. The Constitutional Court acknowledged that there had been a short period of inactivity in 2004 but stated that this fact did not warrant the conclusion that the length of the proceedings had been excessive. It held that the applicant's conduct had notably contributed to their duration and due to his actions the District Court had been prevented from proceeding with the case. It further rejected the complaint about the assignment of the case to another judge as being manifestly ill-founded.", "14. On 4 November 2008 the Constitutional Court rejected a third length of proceedings complaint on the ground that it concerned the matter already examined on 7 February 2008. It held that the period of several months that had elapsed was too short to examine the complaint. It also noted that that conclusion did not prevent the Constitutional Court from examining the applicant's fresh complaint in the future. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE LENGTH OF THE PROCEEDINGS 15. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 16. The Government argued that the overall duration of the proceedings had not been unreasonable within the meaning of Article 6 § 1 of the Convention. They also stated that the applicant should have lodged a fresh constitutional complaint as regards the period subsequent to the Constitutional Court's decision of 4 November 2008. 17.", "The applicant reiterated his complaint. 18. The Court notes that at the time of the Constitutional Court's decision of 4 November 2008 the proceedings had been pending for almost five years. It also notes that, during that period, several procedural issues were examined by the Regional Court for a few months. On 7 February 2008 the Constitutional Court concluded that the period of the District Court's proceedings had not been excessive and on 4 November 2008 it rejected another complaint of the applicant as being essentially the same.", "Those decisions did not produce effects which would have allowed the Court to conclude that the applicant had lost his status as a victim within the meaning of Article 34 of the Convention. Since the applicant was unable to obtain redress before the Constitutional Court in respect of a substantial part of the proceedings, the Court concludes that, as regards the period of the proceedings following the Constitutional Court's decision of 4 November 2008, he was not required to repeatedly seek redress before the Constitutional Court as suggested by the Government (see also Becová v. Slovakia (dec.), no. 23788/06, 18 September 2007 and Dudičová v. Slovakia, no. 15592/03, § 65, 8 January 2009). 19.", "The applicant lodged the civil action on 14 November 2003 and the proceedings have not yet ended. It follows that the period under the Court's consideration has lasted more than six years and three months at two levels of jurisdiction. 20. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 21. The Government agreed with the Constitutional Court's decision of 7 February 2008 in that there had been no delays in the proceedings. In their view, the applicant's conduct contributed to the length of the proceedings in that he had lodged an unclear action which had been modified on a number of occasions.", "They argued that a single delay did not change that position. 22. The applicant disagreed. 23. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no.", "30979/96, § 43, ECHR 2000-VII). 24. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 25. The Court accepts the Government's argument that the applicant's conduct had contributed to the length of the proceedings in the present case.", "That fact, however, cannot justify the overall duration of the proceedings of more than six years at two levels of jurisdiction. Having examined all the materials submitted to it and having regard to its case-law on the subject, the Court considers that the length of the proceedings has been excessive and has failed to meet the “reasonable time” requirement. There has accordingly been a violation of Article 6 § 1. II. REMAINING COMPLAINTS RAISED UNDER ARTICLES 3, 6, 14 AND 17 OF THE CONVENTION 26.", "Under Article 6 § 1 the applicant complained that in 2003 the file had been assigned to another judge and that he had never been informed about the reason. He also complained that, as the judgment of 27 November 2008 had not been served on him, he was prevented from appealing against it. The applicant also invoked Articles 3, 14 and 17 and argued that, in comparison with other individuals, the courts had not dealt speedily with his case. He also complained that the courts had proceeded in an unfair manner. 27.", "However, in the light of all the materials in its possession, and in so far as the matters complained of are within its competence or have not already been addressed in the context of the above finding of a breach of Article 6 § 1 of the Convention, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 28. Lastly, the applicant complained that he had no effective remedy at his disposal within the meaning of Article 13 of the Convention which 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.” A. Admissibility 1.", "The length of the proceedings 29. The Government argued that the applicant had at his disposal an effective remedy, namely a complaint under Article 127 of the Constitution. 30. The applicant reiterated his complaint. 31.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. The remaining complaints 32.", "As regards the alleged absence of an effective remedy in respect of the remaining complaints, the Court reiterates that 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). The Court found those complaints inadmissible. Accordingly, the applicant did not have an “arguable claim” and Article 13 is, therefore, not applicable. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.", "B. Merits 33. The Court has repeatedly held that the remedy under Article 127 of the Constitution is “effective” within the meaning of Article 13 (see, among many others, Šidlová v. Slovakia, no. 50224/99, § 77, 26 September 2006). 34.", "The circumstances of the present case are different. At the time of the Constitutional Court's rejection of the applicant's third complaint on 4 November 2008, the proceedings had been pending for almost five years and the applicant was not able to obtain redress from the Constitutional Court for that substantial part of the proceedings. The Court considers that the remedy under Article 127 of the Constitution, as applied in the present case, cannot be regarded as “effective” within the meaning of Article 13 of the Convention (see also Dudičová v. Slovakia, no. 15592/03, § 83, 8 January 2009 and, mutatis mutandis, Tur v. Poland, no. 21695/05, §§ 67‑68, 23 October 2007).", "There has accordingly been a violation of Article 13. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 35. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 36.", "The applicant claimed 1,727 euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage. 37. The Government contested these claims. 38. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.", "On the other hand, it considers that the applicant must have sustained non‑pecuniary damage. Ruling on an equitable basis, it awards award him EUR 3,000 under that head. B. Costs and expenses 39. The applicant also claimed EUR 54 for the costs and expenses incurred before the Court.", "40. The Government did not contest this claim. 41. The Court considers it reasonable to award the full sum claimed. C. Default interest 42.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints under Articles 6 § 1 and 13 of the Convention concerning the length of the proceedings and the absence of an effective remedy in that respect admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention; 4.", "Holds (a) that the respondent State is to pay the 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 54 (fifty-four euros) in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 18 May 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident" ]

[ "SECOND SECTION CASE OF ROMASHOV v. UKRAINE (Application no. 67534/01) JUDGMENT STRASBOURG 27 July 2004 FINAL 15/12/2004 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 Romashov v. Ukraine, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrL.", "Loucaides,MrK. Jungwiert,MrV. Butkevych,MrsW. Thomassen,MrM. Ugrekhelidze, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 6 July 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 67534/01) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Viktor Petrovich Romashov (“the applicant”), on 21 November 2000. 2. The Ukrainian Government (“the Government”) were represented by their Agents, Ms Valeria Lutkovska, succeeded by Ms Zoryana Bortnovska. 3.", "The applicant’s complaint under Article 6 § 1 of the Convention was communicated on 9 May 2003. On the same date the Court decided that Article 29 § 3 of the Convention should be applied and the admissibility and merits of the complaint be considered together. 4. The applicant and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS 5.", "The applicant, Mr Viktor Petrovich Romashov, is a Ukrainian national, who was born in 1954 and currently resides in Lysychansk, Ukraine. The applicant is a pensioner. I. THE CIRCUMSTANCES OF THE CASE 6. In May 1998 the applicant filed an application with the labour disputes commission of the Lysychans’ke Derzhavne Shakhtobudivne Upravlinnia (the “DSU”) to recover unpaid salary from a State-run coal mine.", "7. On 16 June 1998 the labour disputes commission of the DSU allowed his claims and ordered the DSU to pay the applicant UAH 8,783.39[1] in compensation. On the same date the commission issued a certificate to the applicant, which had the same status as a writ of execution. 8. On 27 July 1998 the DSU’s property was attached by the tax inspectorate.", "9. On 9 June, 7 July and 19 November 1999 the applicant was paid UAH 500[2], UAH 300[3] and UAH 210[4] respectively. 10. On 30 April 2000 the Lysychansk Department of Justice informed the applicant that there was a tax lien over the DSU’s property and it was therefore not possible to attach it. It also informed the applicant that there was no funding in the State budget to execute the decision of 16 June 1998.", "11. On 14 June 2000 the applicant was informed that the labour commission decision of 16 June 1998 could not be executed due to the Coal Mining Ministry’s lack of funds. 12. On 23 January 2002 the Lysychansk City Court awarded the applicant UAH 2,282.21 to compensate for the loss of value of the sum awarded to him due to inflation. The applicant submitted that this judgment has remained unenforced.", "13. On 10 January 2003 the applicant informed the Court that the execution proceedings in his case were still pending. 14. On 28 November 2003 the DSU paid the applicant the full amount of the debt awarded by the decision of 16 June 1998. 15.", "On 1 December 2003 the Execution Service terminated the enforcement proceedings as the judgment of 16 June 1998 had been enforced in full (UAH 8,783.39[5]). II. RELEVANT DOMESTIC LAW AND PRACTICE 1. Constitution of Ukraine, 1996 16. Article 124 of the Constitution provided as follows: “...", "Judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.” 2. Law of Ukraine of 21 April 1999 “on Enforcement Proceedings” 17. Under Article 2 of the Law, the enforcement of judgments is entrusted to the State Bailiffs’ Service. Under Article 85 of the Law, the creditor may file a complaint against actions or omissions of the State Bailiffs’ Service with the head of the competent department for that Service or with a local court. Article 86 of the Law entitles the creditor to institute court proceedings against a legal person responsible for the enforcement of a judgment, for inadequate enforcement or non-enforcement of a judgement, and to receive compensation.", "3. Law of Ukraine of 24 March 1998 “on the State Bailiffs’ Service” 18. Article 11 of the Law provides for the liability of bailiffs for any inadequate performance of their duties, as well as compensation for damage caused by a bailiff when enforcing a judgment. Under Article 13 of the Law, acts and omissions of the bailiff can be challenged before a superior official or the courts. 4.", "Regulations of the State Treasury of Ukraine of 5 October 2001 “on the procedure for the forced recovery of funds from the accounts of institutions and organisations, opened by the bodies of the State Treasury” 19. Under clause 3.6 of the regulations, the forced recovery of funds must be executed from the same account as that of ordinary payments. COMPLAINTS 20. The applicant complains about the lengthy non-execution of the decision of the labour disputes commission of 16 June 1998 given in his favour. He also alleges that he was not provided with compensation for depreciation of the value of the sum awarded to him, as ordered by the judgment of the Lysychansk City Court on 23 January 2002.", "He alleges an infringement of Articles 13 and 17 of the Convention. In substance, however, he invokes Article 6 § 1 of the Convention. THE LAW 21. The applicant complained about the State authorities’ failure to execute the decision of 16 June 1998 and the judgment of 23 January 2002 in due time. He relied on Article 6 § 1 of the Convention, which in so far as relevant provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.” 22.", "The applicant further alleged that non-execution of the judgment given in his favour constituted an infringement of Articles 13 and 17 of the Convention. These provisions read, respectively: “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.” “Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.” I. ADMISSIBILITY A. The Government’s preliminary objections 1. The applicant’s victim status 23. The Government stressed that, in accordance with the Court’s case-law, an applicant who has obtained reparation at the national level for an alleged violation of the Convention can no longer be considered a victim for the purposes of Article 34 of the Convention (see, Marchenko v. Ukraine (dec.), no.", "63520/01, 17 September 2002). Accordingly, as the decision of 16 June 1998 had been executed, the applicant can no longer be considered a victim of a violation of his rights under Article 6 § 1. They therefore proposed that the application be declared inadmissible or struck out of the Court’s list of cases. 24. The applicant disagreed.", "In particular, he stated that the decision remained unenforced for an unreasonably long period of time. He further stated that the value of the sum awarded to him by the decision of 16 June 1998 has decreased. Furthermore, he had not been paid the compensation for depreciation of the sum awarded to him by the judgment of 23 January 2002. 25. The Court notes that, under Article 34 of Convention, it “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 ...”.", "26. According to the Court’s established case-law, the word “victim” in the context of Article 34 denotes the person directly affected by the act or omission in issue, the existence of a violation of the Convention being conceivable even in the absence of prejudice. Consequently, 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, Dalban c. Roumanie [GC], no. 28114/95, § 44, ECHR 1999–VI). 27.", "The Court agrees with the Government that the execution of the decision given in the applicant’s favour redressed the issue of non-execution as such. However, the delayed execution of the decision has not replied to the applicant’s complaint about the undue length of that procedure. Reparation was not made by the authorities as the judgment of 23 January 2002 remained unenforced. The Court considers, therefore, that the applicant may still claim to be a victim of an alleged violation of the rights guaranteed by Article 6 § 1 in relation to the period during which the decision of 16 June 1998 remained unexecuted (see, Skubenko v. Ukraine (dec.), no. 41152/98, 6 April 2004).", "Moreover, he can be considered a victim in relation to the non-enforcement of the judgment of 23 January 2002, which indexed the award made by the decision of 16 June 1998 in order to take account of inflation. 2. Objection as to the exhaustion of domestic remedies 28. The Government contended that the applicant has not exhausted domestic remedies as he did not lodge a claim with the domestic courts to challenge the inactivity of the State Execution Service or seek to expedite the enforcement proceedings in his case. 29.", "The applicant contested this submission, stating that he had used all remedies available to him to complain about the non-enforcement of the judgment. Moreover, there were no effective remedies that would have enabled him to expedite the enforcement of the judgment since its non-enforcement had been the result of the lack of funds of the State-owned DSU company that failed to comply with both the decision and the judgment given in his favour. 30. The Court recalls that the purpose of Article 35 § 1 of the Convention is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court. However, the only remedies to be exhausted are those which are effective.", "It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time (see Khokhlich v. Ukraine, no. 41707/98, § 149, judgment of 29 April 2003). 31. The Government have invoked the possibility for the applicant to challenge any inactivity or omissions on the part of the Bailiffs’ Service and the Treasury, and to seek compensation for pecuniary and non-pecuniary damage caused by these authorities. In the present case, however, the debtor is a State body and the enforcement of judgments against it, as it appears from the case file, can only be carried out if the State foresees and makes provision for the relevant expenditures in the State Budget of Ukraine by taking the appropriate legislative measures.", "The facts of the case show that, throughout the period under consideration, the enforcement of the judgment in question was prevented precisely because of the failure to take the any budgetary measures, rather then by a bailiff’s misconduct. The applicant cannot therefore be reproached for not having taken proceedings against the Bailiffs’ Service (see Shestakov v. Russia (dec.), no. 48757/99, 18 June 2002). Moreover, the Court notes that the Government have maintained that there were no irregularities in the way the Bailiffs’ Service and the Treasury had conducted the enforcement proceedings. 32.", "In these circumstances, the Court concludes that the applicant was absolved from pursuing the remedy invoked by the Government and has therefore complied with the requirements of Article 35 § 1. Accordingly, it dismisses the Government’s preliminary objection. 3. Conclusions as to admissibility 33. The Court considers, in the light of the parties’ submissions, that the applicant’s complaints under Article 6 § 1 of the Convention raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits.", "The Court concludes therefore that the complaints cannot be rejected for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention. No other ground for declaring them inadmissible has been established. B. Admissibility of the complaints under Articles 13 and 17 of the Convention 1. Complaint under Article 13 of the Convention 34. The applicant next complained that he had no effective remedies in respect of his complaint under Article 6 § 1 of the Convention.", "He invoked Article 13 of the Convention, which provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 35. The Court refers to its reasoning under Article 6 § 1 of the Convention in relation to Article 35 § 1 (paragraphs 29-34 above), which is equally pertinent to the applicant’s Article 13 claim. Consequently, the Court finds that this complaint is not manifestly ill-founded or indeed inadmissible on any other ground cited in Article 35 of the Convention. It must therefore be declared admissible. 2.", "Complaint under Article 17 of the Convention 36. As to the complaint under Article 17 of the Convention, the Court considers that it is wholly unsubstantiated. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. II. MERITS OF THE APPLICANT’S COMPLAINTS A.", "The submissions of the parties 37. The Government submitted that they had taken all measures provided for by the domestic legislation to enforce the judgment given in the applicant’s favour. Moreover, they maintained that the non-enforcement of the judgment in the period from 16 June 1998 until the present moment did not violate the applicant’s rights under Article 6 § 1 of the Convention. The delay in enforcement was caused by the difficult financial and economic situation in Ukraine. They reiterated that the decision given in the applicant’s favour was executed in full.", "38. The applicant replied that the execution proceedings lasted 5 years, 5 months and 15 days. He further stated that the sum awarded to him had decreased in value since 1998 due to inflation and he was not compensated for that as the judgment of 23 January 2002 remained unenforced. B. The Court’s assessment 1.", "Preliminary considerations as to the status of the decision of labour disputes commission 39. The Court notes that Article 221 of the Labour Code provides that “disputes pertaining to labour relations shall be dealt with by: 1) the labour disputes commissions; 2) the district (city) courts.” An applicant has to have recourse to the labour disputes commission for the adjudication of a labour dispute (Article 224 of the Code). Its decision may be appealed to the court (Article 228 of the Code). The Court considers that in the area of labour disputes the commission is a first stage dispute-resolution body to be used in accordance with Article 35 § 1 of the Convention (see Yasa v. Turkey, judgment of 2 September 1998, Reports of Judgments and Decisions 1998‑VI, p. 2431, § 71; Selmouni v. France [GC], no. 25803/94, §§ 74-75, ECHR 1999-V).", "The Court is of the opinion that an appeal to a labour disputes commission, as in the instant case, offered the applicant the possibility of securing redress for his complaints concerning the recovery of wages which were due to him. 40. According to Article 230 of the Labour Code the State Bailiffs’ service shall issue a resolution on the initiation of the execution proceedings (постанова про відкриття виконавчого провадження) on the basis of the labour disputes commission’s decision. [6] According to Article 230 of this Code the decision of the labour disputes commission is equal to a writ of execution (виконавчий лист) issued by the State Bailiffs’ service on the basis of a judgment of a court. In accordance with Article 3-11 of the Law on Execution proceedings the decisions of the labour disputes commissions fall to be executed by the State Bailiffs’ service.", "41. The Court considers that the decision of the labour disputes commission in the applicant’s case can be equated to a court decision, and that the State bears responsibility for its non-execution. Furthermore, the State Bailiffs’ service initiated execution proceedings on the basis of the commission’s decision and therefore took responsibility for its execution. It also notes that the execution proceedings constitute an integral part of the judicial proceedings that were replaced in the instant case by the proceedings before the labour disputes commission. It also observes that the mine at issue is a State-owned enterprise and that the State is responsible for the debts of the legal entities controlled by it financially or administratively.", "2. As to the infringement of Article 6 § 1 of the Convention 42. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State’s domestic legal system allowed a final, 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 Hornsby v. Greece, judgment of 19 March 1997, Reports 1997-II, p. 510, § 40). 43. It is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment debt. 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 (see Immobiliare Saffi v. Italy [GC], no.", "22774/93, § 74, ECHR 1999-V). In the instant case, the applicant should not have been prevented from benefiting from the decision given in his favour, which was of major importance to him and his family, on the ground of the State’s alleged financial difficulties. 44. The Court notes that the decision of the labour disputes commission of 16 June 1998 remained unenforced wholly or at least in part until 1 December 2003 when the principal amount of the sum awarded on 16 June 1998 was paid to the applicant. It also notes that this decision was enforced only after the communication of the application to the respondent Government.", "It further notes that the judgment of 23 January 2002 of the Lysychansk City Court awarding the applicant compensation for inflation still remains to be enforced. 45. By failing for 5 years, 5 months and 15 days to take the necessary measures to comply with the decision of the labour disputes commission, and by failing to pay the applicant the compensation ordered by the judgment of 23 January 2002, the authorities deprived the provisions of Article 6 § 1 of the Convention of all useful effect. 46. There has, accordingly, been a violation of Article 6 § 1 of the Convention.", "2. As to the infringement of Article 13 of the Convention 47. The Court refers to its findings (at paragraphs 43-47 above) in the present case concerning the Government’s argument regarding domestic remedies. For the same reasons, the Court concludes that the applicant did not have an effective domestic remedy, as required by Article 13 of the Convention, to redress the damage created by the delay in the present proceedings (see Voytenko v. Ukraine, no. 18966/02, judgment of 29 June 2004, §§ 46-48).", "Accordingly, there has been a breach of this provision. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 48. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 49.", "The Court points out that under Rule 60 of the Rules of the Court, any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, “failing which the [Court] may reject the claim in whole or in part”. 50. The applicant was invited by the Registry to submit his claims for just satisfaction. He submitted his claims on 3 March 2004. However, he did not provide any documents in support of his claims, nor has he particularised them.", "51. The Government maintained that the applicant did not suffer any pecuniary or non-pecuniary damage. They suggested that a finding of a violation would of itself constitute sufficient just satisfaction. 52. The Court makes no award in respect of pecuniary damage as the applicant has not substantiated any such loss.", "However, it considers that the applicant has suffered some non-pecuniary damage as a result of the violations found which cannot be made good by the Court’s finding of a violation alone. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 3,000. B. 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 complaints under Articles 6 § 1 and 13 of the Convention concerning the non-enforcement of the final judicial decision in the applicant’s case and the 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. Hold 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 according to Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable on the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 27 July 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléJ.-P. CostaRegistrarPresident [1]. EUR 1,369.75. [2].", "EUR 77.97. [3]. EUR 46.78. [4]. EUR 32.75.", "[5]. EUR 1,369.75. [6]. This may be done if the decision of the labour disputes commission has not been executed voluntarily by the enterprise or institution concerned." ]

[ "FIFTH SECTION CASE OF RENOLDE v. FRANCE (Application no. 5608/05) JUDGMENT STRASBOURG 16 October 2008 FINAL 16/01/2009 This judgment may be subject to editorial revision. In the case of Renolde v. France, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Rait Maruste,Jean-Paul Costa,Renate Jaeger,Mark Villiger,Isabelle Berro-Lefèvre,Zdravka Kalaydjieva, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 9 and 25 September 2008, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 5608/05) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Ms Hélène Renolde (“the applicant”), on 3 February 2005.", "2. The applicant was represented by Mr E. Renolde, her father, who lives in Chatou. The French Government (“the Government”) were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs. 3. The applicant alleged that the French authorities had not taken the necessary measures to protect the life of Joselito Renolde and that his placement in a punishment cell for forty-five days had been excessive in view of his mental fragility.", "She relied in substance on Articles 2 and 3 of the Convention. 4. On 3 November 2005 the Court decided to give notice of the application to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3 of the Convention). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1962 and lives in Chatou. 6. The applicant is the sister of Joselito Renolde, who was born on 17 August 1964 and died on 20 July 2000 after hanging himself in a cell in Bois-d’Arcy Prison, where he was in pre-trial detention. They are members of a family of Travellers.", "A. The facts 7. Joselito Renolde was separated from his former partner, with whom he had two children. 8. On 12 April 2000 he was placed under investigation by the investigating judge at the Meaux tribunal de grande instance for the armed assault on 8 April 2000 of his former partner and their thirteen-year-old daughter, occasioning total unfitness for work for more than eight days, and also for criminal damage and theft.", "9. On the same day Joselito Renolde was placed in pre-trial detention in Meaux Prison. A medical and psychological report ordered by the investigating judge, submitted on 19 July 2000, found that he had retardations and deficits in the cognitive sphere; that, having a neurotic structure, he possessed immature and infantile defence mechanisms and several paranoid traits; and that, as he was incapable of mentalising, all his violence was expressed on a physical level. 10. On 30 June 2000 he was transferred to Bois-d’Arcy Prison to be closer to his family.", "His personal file described him as a normal person and mentioned sedative treatment. 11. On 2 July 2000 Joselito Renolde attempted to commit suicide by cutting his arm with a razor and was treated at the infirmary. The warder on duty found him to be somewhat “disturbed” and called in the Rapid Crisis Intervention Team (Équipe Rapide Intervention de Crise – “ERIC”) from the psychiatric unit at Charcot Hospital after Joselito Renolde had claimed to be hearing voices. The duty officer also observed three other cuts on his forearm and noted in the file that he had forced his way out of his cell.", "12. The emergency report drawn up by the ERIC team stated: “Patient who made an SA [suicide attempt] by cutting his forearm with a razor. This act took place in the context of a hallucinatory delusional state observed since yesterday by the prison duty staff. On being interviewed, the patient displays incoherent, dissociative speech, a listening attitude, mentions verbal hallucinations, [illegible], persecutory delusional statements ... The patient mentions his psychiatric history, says that he has already been admitted to hospital and has already taken Tercian ...", "Conclusion: acute delirious episode.” 13. The ERIC team accordingly prescribed antipsychotic neuroleptic treatment, later adding an anxiolytic. The infirmary staff supplied the medicine to Joselito Renolde twice a week from 2 July 2000, without checking that he actually took it. 14. From 3 July 2000 onwards, Joselito Renolde was treated by the Regional Medical and Psychological Service (service medico-psychologique regional – “the SMPR”) and placed in a cell on his own under special supervision, which took the form of more frequent patrols.", "He was seen by the SMPR on 3, 4, 5, 7, 8, 10, 13, 18, 19 and 20 July 2000. 15. On 4 July 2000 a trainee warder reprimanded him for throwing a piece of bread out of the window. Joselito Renolde threatened her with a fork, saying: “I’ll see you outside and we’ll see who has the power.” He then threw a stool in her face. The warder was certified unfit for work for five days.", "16. During the inquiry into that incident, Joselito Renolde made incoherent statements and denied what had happened. The inquiry report stated: “very disturbed prisoner who had already wanted to go to the SMPR at 7.50 a.m., received by the SMPR in the afternoon”. As to the action to be taken, the report stated: “Very disturbed prisoner, being monitored by the SMPR, will need to go before the disciplinary board.” 17. On 5 July 2000 Joselito Renolde was interviewed by the disciplinary board and spoke coherently.", "He stated that he had been asleep because of his medication but that the warder would not leave him alone; he denied that he had thrown a stool at her or threatened her with a fork but admitted having thrown a piece of bread outside. 18. The disciplinary board found it established that physical violence had been used, entailing disciplinary offences punishable under Article D. 249‑1 and Article D. 249‑2, paragraph 1, of the Code of Criminal Procedure. Joselito Renolde was given a penalty of 45 days in a punishment cell, which he began serving on 5 July 2000. 19.", "On 6 July 2000 he wrote a letter to his sister in which he compared his cell to his tomb and said that he was “at the limit” and taking tablets. He explained to her that he would be spending 45 days confined within four walls, with no television or music. In a drawing he depicted himself as crucified on a tomb bearing his name, next to the bed in his punishment cell, and ended his letter as follows: “Lito [his nickname] is a sad story, you know, I don’t know if my life is worth living, with all the troubles I have ... and yet I haven’t hurt anyone. You know, I’m alive and I don’t even know why. I believe in heaven, maybe it’s better up there.", "You know, I would like to sleep and never wake up again. What is keeping me going are the little ones at home, because I love them.” 20. The letter was sent on 10 July 2000 (date of the postmark). 21. In a letter of 12 July 2000, received at the investigating judge’s registry on 17 July 2000, Joselito Renolde’s lawyer asked the judge to order a psychiatric examination of her client in order to ascertain whether his mental state was compatible with detention in a punishment cell.", "The letter from the lawyer read as follows: “... I met Mr Joselito Renolde in Bois d’Arcy Prison, in a punishment cell where he has been placed for 45 days. Mr Joselito Renolde’s mental state prompted the present request. I asked Mr Joselito Renolde to describe the events that led to disciplinary proceedings being instituted against him. He stated, among other things: ‘I was hearing voices ...", "It was my family ... I wake up in the morning, I say it’s daylight ... They tell me it isn’t ...’ etc. ... I was unable to establish a coherent dialogue with Mr Joselito Renolde.", "Having regard to this state of affairs and the worsening of his condition (I would also point out that, unless I am mistaken, Mr Joselito Renolde has been admitted to a psychiatric institution in the past), I consider it essential that he should be seen as soon as possible by a psychiatric expert appointed by you. The purpose of the present request is therefore to obtain a psychiatric examination of Mr Joselito Renolde, the expert being instructed, in particular, to determine whether Mr Renolde’s mental or physical state is compatible with pre-trial detention as currently being served, in particular placement in a punishment cell, and whether he should undergo appropriate treatment in view of his condition.” 22. According to information supplied by the Government, the request for an examination was referred on 19 July 2000 by the investigating judge to the public prosecutor, who stated on the same day that he had no objection to such a measure. 23. Joselito Renolde was supplied with medication for the last time on 17 July 2000.", "He was handed several days’ medication, with no supervision of whether he actually took it. 24. During the night of 19 to 20 July 2000, an intervention report noted that at 4.25 a.m. Joselito Renolde was not asleep, was tapping at the bars of his cell and wanted to go out. 25. On 20 July 2000, between 11 a.m. and noon, a nurse from the psychiatric service met him and told him that someone from social services would be coming to see him later.", "On leaving his cell for exercise at 3 p.m., he asked to see a doctor. At 4 p.m. he returned to his cell. 26. At 4.25 p.m. the warder on patrol found him hanging from the bars of his cell with a bed sheet. A doctor and two nurses from the Outpatient Consultation and Treatment Unit (unité de consultation et de soins ambulatoires – “the UCSA”) arrived at 4.30 p.m., followed by the ambulance service and fire brigade at 4.45 p.m.", "Despite efforts to revive him, Joselito Renolde was pronounced dead at 5 p.m. B. Procedure 27. After being called to the scene at 4.50 p.m., the police conducted initial inquiries and interviews. The Versailles public prosecutor visited the scene at 7 p.m. and a preliminary investigation was opened. 28.", "On 21 July 2000 a forensic medical examiner conducted an autopsy and reached a finding of suicide by hanging. 29. An expert toxicological report, ordered by the public prosecutor on 21 July 2000, found that no medicinal substances were present in Joselito Renolde’s body, other than paracetamol. 30. The warders who had been present on the scene, the medical staff and the prisoners placed in solitary confinement in neighbouring cells were questioned.", "31. Mr R., a warder, stated that on the day of the incident Joselito Renolde had gone out for exercise without any trouble and that he had been seen that same morning by the medical and psychological service, who had not issued any instructions concerning him. Mr R. added: “Mr Renolde told us that he could hear his son speaking to him at night. He explained that people wanted to come into his cell.” 32. One of the prisoners in solitary confinement in a neighbouring cell, Mr N., stated: “During our discussions, he told me that he felt anxious and down as he was not used to being alone, and he would speak to God, asking him what he was doing here, and would start to cry ...", "I called out to him but he did not reply because he was crying.” 33. Mr R., a warder, mentioned that on 2 July he had had to call the ERIC team because Joselito Renolde had been making strange comments, saying that he could hear his son calling him and telling him that he wanted to kill him. Mr R. added: “Objectively, I believe that this person was not at ease with himself. I know that he was on medication because he was being monitored by the SMPR. It should be pointed out that Renolde was under special supervision because he was being monitored by the psychiatric service.” 34.", "Dr L., the psychiatrist in charge of the SMPR, confirmed that the SMPR had supplied Joselito Renolde with medication for several days in his cell twice a week, on Tuesdays and Fridays, without the nurses checking whether he actually took it. He pointed out that, where a prisoner’s mental state required regular attention, the doctor ordered the medication to be taken daily in the SMPR in the presence of the nurses. In Joselito Renolde’s case, he stated that the members of his service had not “at any time noted any factors suggesting that the medication should be taken at shorter intervals, or in the service itself”. He added that checking whether all medication prescribed by the SMPR was actually taken was impossible and “contrary to the principle of trust which underlies the therapeutic alliance in a hospital environment”. 35.", "Mr B., a psychiatric nurse, stated that Joselito Renolde had not displayed an attitude suggesting that he might not take his medication. 36. Ms H., the psychiatric nurse who had seen him the morning before his suicide, stated that he had not seemed particularly depressive to her and that no comments of a depressive nature had aroused her attention that day. 37. Joselito Renolde’s former girlfriend, who was likewise questioned, stated that he had been admitted to psychiatric institutions on several occasions.", "38. On 8 September 2000 the public prosecutor applied for a judicial investigation to be opened in respect of a person or persons unknown for manslaughter, and an investigating judge of the Versailles tribunal de grande instance was appointed to that end. On 15 September 2000 Joselito Renolde’s brothers and sisters, including the applicant, applied to join the proceedings as civil parties. 39. On 16 October 2000 the investigating judge appointed two psychiatric experts, Dr G. and Dr P., instructing them to inspect Joselito Renolde’s medical records; to analyse their contents and to determine whether the condition from which he suffered was compatible with detention in a punishment block, whether the absence of medicinal substances in his blood was normal, whether it was to be concluded that he had deliberately refrained from taking his medication and whether such an interruption of treatment had influenced his behaviour, and in particular his suicide; to clarify the reason for the ERIC team’s intervention on 2 July 2000; to interview, if necessary, the SMPR psychiatrist and nurses and the members of the ERIC team; and to determine whether Joselito Renolde’s suicide had been foreseeable in view of his conduct and state of health.", "40. The experts inspected the file on the criminal proceedings and Joselito Renolde’s medical records. On 29 March 2001 they submitted their report, concluding as follows: “The medical records as a whole and the interviews of those who came into contact with Mr Renolde indicate the following: – He had acute psychotic disorders at the time of his arrival in Bois d’Arcy, and those disorders seem to have receded fairly quickly as a result of the medication prescribed. In any event, there is little mention of these delusional factors in later observations, although a prison warder observed that Mr Renolde talked to himself at night (hallucinatory dialogue?). The SMPR team found his psychiatric condition to be compatible with detention, not requiring admission to a psychiatric institution.", "The letter which the prisoner sent his parents on 18 July shows that he retained a certain degree of coherence, although he may have been keeping his delirium or hallucinatory disorders to himself. – There is no evidence in the file indicating the presence of a depressive syndrome as such: no sign of carelessness, no expression of suicidal thoughts, no manifest sadness, apart from, of course, a legitimate gloom or sadness linked to incarceration, separation from his children, etc. ... Having regard to the context and to the information in our possession, we consider that his committing suicide was more the consequence of a psychotic disorder than of a depressive syndrome. The act may have taken place in a hallucinatory state (it appears that he sometimes heard voices telling him to kill himself), especially if the medication had not been correctly taken, as the toxicological examinations show. It is to be noted that the response of the ERIC team, which intervened from the outset following a suicide attempt, was to prescribe neuroleptics and not antidepressants, which confirms the psychotic nature.", "These disorders could perhaps have called for a discussion of the advisability of admission to a psychiatric unit if the hallucinatory, dissociative and delusional aspects had been prominent and hence incompatible with continued detention. However, seeing that the disorders rapidly improved, it may be felt that continued detention remained possible in so far as the SMPR kept the prisoner under very close observation, although supervision of his daily taking of medication would also have been helpful. Conclusions: (1) Mr Joselito Renolde was suffering from psychotic disorders at the time of his arrival in Bois d’Arcy Prison. His psychotic disorders were described as an acute delirious episode by the ERIC team and he made an initial suicide attempt on 2 July 2000 by phlebotomy. The suicide attempt may have taken the form of self-mutilation in a delusional state.", "It is also legitimate to wonder whether his assault on a warder, in the days that followed, was not likewise part of a pathological acting-out process. A course of neuroleptic treatment was immediately started, which seems to have been effective in that Mr Renolde’s speech became more coherent. At the same time, he was placed in the punishment block. If his state of health was compatible with detention, we do not consider that placement in the punishment block could actually have worsened his psychological condition, since the dominant disorders were not depressive but psychotic. It remains to be determined whether such disorders could have been treated satisfactorily in detention, bearing in mind that the medication was handed to the prisoner only twice a week and thus left at his disposal.", "In view of his lack of awareness of the disorders, it would perhaps have been preferable to have supplied him with the medication every day and to have supervised his taking it. (2) If no medicinal substance was found in the toxicological examinations, it can only be concluded that the prisoner refrained deliberately (or in a state of delirium) from taking his medication (anxiolytics and neuroleptics). It cannot therefore be ruled out that this poor medicine compliance might have contributed to the suicide, which may have been committed in a state of delirium. However, even if Mr Renolde was no longer under medication, none of the members of the team, including the nurse who met him on the day of his suicide, noted any resurgence of delirium, any incoherent behaviour or any major signs of dissociation. The suicide attempt cannot be solely ascribed to psychotic disorders.", "It may quite conceivably have taken place at a time of legitimate despair or sadness in a person who readily resorted to acting-out (suicide attempt on 2 July, assault on 5 July, suicide on 20 July). (3) On 2 July the ERIC team treated an injury which Mr Renolde had intentionally inflicted to his forearm with a razor blade in a moment of delirium. The practitioners attending to Mr Renolde did not observe any sign of depression but manifest psychotic disorders involving delirium, hallucination, the listening attitude, etc... (4) Having regard to the information in our possession, we did not consider it necessary to meet the SMPR staff and the members of the ERIC team. (5) This prisoner’s suicide was not foreseeable, at least in the short term, in so far as he did not display any suicidal intentions, no manifest depressive syndrome was present, and he was regularly monitored by the SMPR staff and had been seen that day by a nurse, who did not report anything abnormal in his behaviour.” 41. The civil parties were interviewed by the investigating judge on 23 May 2001.", "42. On 23 July 2001 the judge notified the parties that the investigation was complete. In a letter of 9 August 2001 the civil parties’ lawyer asked for certain steps to be taken, namely for the persons responsible to be charged with the manslaughter of Joselito Renolde through a breach of their duties of care and safety, in the alternative with endangering his person by placing him in a punishment cell although he was known to be extremely fragile, and in the further alternative with failing to assist a person in danger. 43. In an order of 14 August 2001 the judge refused the request, giving the following reasons: “The persons who had ‘custody’ of Joselito Renolde were not qualified to assess his physical and mental condition or to intervene in the process of distributing and administering his medication.", "Mr Renolde was monitored on a very regular basis by the SMPR shortly after being transferred to Bois d’Arcy Prison. He was seen nearly ten times by that service between 3 and 20 July. His suicide attempt on 2 July prompted the ERIC team to intervene and to prescribe medication, which alleviated Mr Renolde’s psychotic disorders. The SMPR staff found his psychiatric condition to be compatible with detention, including in a punishment cell, since it did not decide to admit him to a psychiatric institution. The experts did not find any evidence in the subject’s psychiatric records suggesting the presence of a depressive syndrome.", "In their view, his suicide was more the consequence of a psychotic disorder than of a depressive syndrome. Accordingly, the constituent elements of manslaughter, endangering the person of another or failing to assist a person in danger have not been made out.” 44. In an order of 11 September 2001 the judge ruled that there was no case to answer, on the ground that the investigating authorities had found no basis on which anyone could be held criminally liable. 45. The civil parties appealed against the order to the Investigation Division of the Versailles Court of Appeal, asking for further inquiries to be made with a view to bringing charges against all those responsible for the offences of manslaughter, endangering the life of another and failing to assist a person in danger.", "In a memorial of 12 March 2002 they expressed doubts, in particular, about the 45-day disciplinary sanction imposed on Joselito Renolde, who was known to be a fragile person who had already attempted suicide and had displayed suicidal intentions in his letters. 46. In an interlocutory judgment of 29 March 2002 the Investigation Division ordered additional inquiries and appointed one of its judges to conduct them. 47. On 14 January 2003 the judge requested a copy of the file on the investigation in respect of Joselito Renolde.", "48. On 19 May 2003 the judge interviewed Mr C., deputy governor of Bois-d’Arcy Prison and the person in charge of the “adult” wing, which included the “arrivals” block, the solitary-confinement block and the punishment block. Mr C. stated that Joselito Renolde had been included in the warders’ special register from 2 July, after slashing his arms, and that he had then been examined by the psychiatric emergency team. The psychiatrist had found that he was in a delusional state with acute psychotic decompensation. From that date on, he had been under special supervision and had been placed in a cell on his own.", "Mr C. explained that the taking of medication by prisoners was the responsibility of the SMPR staff and not the prison authorities. He also pointed out that the monitoring of correspondence could not entail reading every letter in detail. 49. On 29 September 2003 the investigating judge of the Court of Appeal ordered a further toxicological report on the basis of samples taken on 21 July 2000, with a view to determining the date on which Joselito Renolde might have stopped taking his prescribed medication. The report, submitted on 4 February 2004, concluded that at the time of his death, Joselito Renolde had not taken the prescribed anxiolytic medication for at least one to two days, and the neuroleptic medication for at least two to three days.", "50. On 18 May 2004 the judge interviewed Dr L., the psychiatrist in charge of the Bois-d’Arcy SMPR. Dr L. considered that Joselito Renolde’s condition had not called for any particular precautions in terms of taking medication, and that there had been no clearly identified or suspected suicide risks, no serious behavioural disorders and no suspicion of incorrect use of medication. Nor, in the psychiatrist’s view, was there any incompatibility in prescribing neuroleptic medication to a prisoner in a punishment cell. 51.", "The submission of the findings of the additional inquiries was noted in a judgment of 11 June 2004. 52. A hearing before the Investigation Division was held on 12 January 2005. 53. In a judgment of 26 January 2005 the Investigation Division upheld the ruling that there was no case to answer, holding as follows: “Following the prescription of neuroleptic medication by the medical service, no further signs of aggression towards others or himself were observed on the part of Joselito Renolde after the incident of 4 July 2000 until the afternoon of 20 July.", "The medication prescribed was therefore effective during that period. It was decided by the medical authorities in the present case that Joselito Renolde should be allowed to administer his own treatment after being supplied with several days’ medication. There was a distribution on 17 July. The expert toxicological report established that the prisoner had not taken the medication supplied to him. Joselito Renolde’s medication was thus administered in accordance with the regulations set out in the circular of 8 December 1994 on the provision of health care for prisoners.", "Since the principle that medication is taken freely by the prisoner was observed in Joselito Renolde’s case, it cannot be concluded on the basis of the evidence available prior to the afternoon of 20 July 2000 that the failure to depart from this principle constituted negligence within the meaning of Article 121‑3, paragraph 4, of the Criminal Code on the part of any doctor or member of the medical staff of Bois-d’Arcy Prison. Since the time of Joselito Renolde’s placement in a punishment cell, no suicide risk or serious behavioural disorder had been identified; nor was there any suspicion of incorrect use of medication. Accordingly, as regards the actions of the prison staff, neither the investigation nor the additional inquiries have found any potential evidence of negligence within the meaning of Article 121‑3, paragraph 4, of the Criminal Code. Nor did the imposition of a disciplinary sanction on Joselito Renolde constitute a manifestly deliberate breach of a special statutory or regulatory duty of safety or care exposing the prisoner to an immediate risk of death or injury. The same applies to the fact of not checking that the medication was taken.", "No provision prohibited the imposition of a disciplinary sanction in Joselito Renolde’s case or [dictated] that he should be compelled to take his medication. Lastly, no evidence from the investigation or the additional inquiries supports the conclusion that anyone deliberately refrained from providing or ensuring the provision of assistance to Joselito Renolde, who had been prescribed medication and had not caused any particular incident for 15 days.” The civil parties did not appeal on points of law. II. RELEVANT LAW AND PRACTICE A. Domestic law 1.", "Psychiatric treatment in prisons 54. Since 1986, psychiatric treatment for prisoners has been provided by the public hospital service. Article 11 of the Decree of 14 March 1986,[1] issued pursuant to the Psychiatric Sectorisation Act of 31 December 1985, provides: “Within each regional branch of the Prison Service, one or more prison-based psychiatric sectors shall be set up, each attached to a public hospital ... Each of these sectors shall include a regional medical and psychological service [SMPR], based in a prison facility ... The sector shall be placed under the authority of a hospital psychiatrist ... and assisted by a multidisciplinary team from the hospital to which the sector is attached ...” 55. Article 11, paragraph 3, of the Decree provides that the SMPRs’ duties, organisational structure and operating procedures are to be laid down in a set of model rules.", "The order of 14 December 1986 on the model rules states the following: Article 2 “The regional medical and psychological service ... shall engage in activities for the prevention, diagnosis and treatment of mental disorders for the benefit of the prison population in the facility in which it is based ...” Article 3 “The regional medical and psychological service shall, more specifically, perform the following tasks: – a general task of prevention of mental illness in the prison environment, in particular through systematic testing for mental disorders of all those entering the facility in which it is based; – provision of the necessary psychiatric treatment to both remand and convicted prisoners ...” 56. The Law of 18 January 1994 transferred responsibility for the provision of all treatment for prisoners to the public hospital service. Prisoners receive treatment from medical units – outpatient consultation and treatment units (UCSAs) – that are set up within prisons and are directly attached to the nearest public hospital (Article D. 368 of the Code of Criminal Procedure). 57. Article D. 373, paragraph 3, of the Code provides that the practical aspects of the SMPR’s intervention and its coordination with the UCSA are to be laid down in a protocol drawn up in accordance with the Decree of 14 March 1986.", "58. Article D. 382 of the Code provides that, if the doctors from the SMPR or the UCSA consider that a prisoner’s health is not compatible with detention, they are to notify in writing the prison governor, who must immediately inform, where appropriate, the relevant judicial authority. 59. Article D. 398 provides: “Detainees suffering from the mental disorders referred to in Article L. 342 of the Public Health Code cannot be kept in a prison facility. On the basis of a detailed medical certificate and in accordance with the legislation in force, it shall be the duty of the prefect to ensure that they are compulsorily admitted as soon as possible to an approved health-care institution within the meaning of Article L. 331 of the Public Health Code.", "The rule in the second paragraph of Article D. 394 concerning supervision by a police or gendarmerie officer while in the institution shall not apply to them.” 2. Prisoners’ disciplinary offences and penalties 60. Article D. 249 of the Code of Criminal Procedure divides disciplinary offences by prisoners into three degrees of severity. Article D. 249-1 provides that physical violence by a prisoner against a member of the prison staff constitutes a first-degree offence (the most serious). 61.", "Placement in a punishment cell is provided for in Article D. 251, point (5), of the Code. Article D. 251-3 of the Code lays down the terms of such placement: “Placement in a punishment cell under Article D. 251, point (5), consists in placing the prisoner in a cell equipped for that purpose, which he must occupy alone. The penalty shall throughout its duration entail the prohibition of purchases in the canteen in accordance with Article D. 251, point (3), and the prohibition of visits and all activities. However, prisoners in a punishment cell shall have one hour’s exercise per day in an individual yard. The penalty shall, moreover, entail no restrictions on their rights regarding written correspondence.", "The duration of the placement in a punishment cell shall not exceed forty-five days for a first-degree disciplinary offence, thirty days for a second-degree disciplinary offence and fifteen days for a third-degree disciplinary offence.” 3. Relevant provisions of the Criminal Code 62. Article 121-3 of the Criminal Code provides: “No serious crime (crime) or other major offence (délit) can be established in the absence of intention to commit it. However, where the law so provides, deliberately endangering the person of another shall constitute a major offence. A major offence shall also be established, where the law so provides, in cases of recklessness, negligence or a breach of a duty of care or safety laid down by statute or regulation where it is found that the person concerned failed to display normal diligence, regard being had where appropriate to the nature of his role or functions, his responsibilities and the power and means at his disposal.", "In the case referred to in the preceding paragraph, natural persons who did not directly cause the damage, but who created or contributed to creating the situation which allowed the damage to occur or failed to take steps enabling it to be avoided, shall be criminally liable where it is established that they have committed a manifestly deliberate breach of a particular duty of care or safety laid down by statute or regulation, or an act of gross negligence which exposed another person to a particularly serious risk of which they could not have been unaware ...” 4. Case-law of the administrative courts 63. Although the principle of State liability for the acts of the prison authorities, particular in relation to prisoner suicides, has been affirmed by the Conseil d’Etat since 1918, such liability has traditionally required the existence of gross negligence. In the Chabba judgment of 23 May 2003 (AJDA 2003, p. 157) the Conseil d’Etat departed from its previous position and acknowledged State liability for the suicide of a remand prisoner, on account of a series of acts of ordinary negligence attributable to the prison service. That position has since been reaffirmed (see, for example, Nancy Administrative Court of Appeal, Tahar Sidhoun, 17 March 2005, Petites affiches no.", "102, 23 May 2006, p. 6, note by P. Combeau, and Marseilles Administrative Court, 9 February 2006, Plein Droit no. 71, December 2006, Jurisprudence p. V, concerning a suicide in an administrative detention centre). B. Recommendations of the Committee of Ministers of the Council of Europe 1. Recommendation No.", "R (98) 7 64. The relevant parts of Recommendation No. R (98) 7 of the Committee of Ministers of the Council of Europe concerning the ethical and organisational aspects of health care in prison read as follows, as regards prisoners suffering from mental disturbance: “... D. Psychiatric symptoms, mental disturbance and major personality disorders, risk of suicide ... 55. Prisoners suffering from serious mental disturbance should be kept and cared for in a hospital facility which is adequately equipped and possesses appropriately trained staff. The decision to admit an inmate to a public hospital should be made by a psychiatrist, subject to authorisation by the competent authorities.", "56. In those cases where the use of close confinement of mental patients cannot be avoided, it should be reduced to an absolute minimum and be replaced with one-to-one continuous nursing care as soon as possible. 57. Under exceptional circumstances, physical restraint for a brief period in cases of severely mentally ill patients may be envisaged, while the calming action of appropriate medication begins to take effect. 58.", "The risk of suicide should be constantly assessed both by medical and custodial staff. Physical methods designed to avoid self-harm, close and constant observation, dialogue and reassurance, as appropriate, should be used in moments of crisis. ... F. Violence in prison: disciplinary procedures and sanctions, disciplinary confinement, physical restraint, top security regime ... 66. In the case of a sanction of disciplinary confinement, any other disciplinary punishment or security measure which might have an adverse effect on the physical or mental health of the prisoner, health care staff should provide medical assistance or treatment on request by the prisoner or by prison staff. ...” 2.", "Recommendation Rec(2006)2 on the European Prison Rules, adopted on 11 January 2006 65. The relevant parts of Recommendation Rec(2006)2 read as follows: “The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, ... Recommends that governments of member states: – be guided in their legislation, policies and practice by the rules contained in the appendix to this recommendation, which replaces Recommendation No. R (87) 3 of the Committee of Ministers on the European Prison Rules; ... Appendix to Recommendation Rec(2006)2 ... 12.1 Persons who are suffering from mental illness and whose state of mental health is incompatible with detention in a prison should be detained in an establishment specially designed for the purpose.", "12.2 If such persons are nevertheless exceptionally held in prison there shall be special regulations that take account of their status and needs. ... 39. Prison authorities shall safeguard the health of all prisoners in their care. ... 40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer. 40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.", "... 42.3 When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to: ... b. diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment; ... h. noting physical or mental defects that might impede resettlement after release; ... j. making arrangements with community agencies for the continuation of any necessary medical and psychiatric treatment after release, if prisoners give their consent to such arrangements. 43.1 The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed. ... 43.3 The medical practitioner shall report to the director whenever it is considered that a prisoner’s physical or mental health is being put seriously at risk by continued imprisonment or by any condition of imprisonment, including conditions of solitary confinement. ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 66.", "The applicant alleged that the French authorities had not taken the necessary measures to protect Joselito Renolde’s right to life. She relied in substance on Article 2 of the Convention, which provides: “Everyone’s right to life shall be protected by law.” A. Admissibility 67. The Government objected, as their main submission, that domestic remedies had not been exhausted. They observed, firstly, that the applicant had not appealed on points of law against the Investigation Division’s judgment of 26 January 2005. They further noted that she had had the possibility of bringing an action for damages against the State in the administrative courts with a view to obtaining compensation.", "The Government pointed out in that connection that since the Conseil d’Etat’s Chabba judgment of 23 May 2003, administrative courts no longer required the existence of gross negligence, and cited several judgments delivered in 2004 by the Rouen, Amiens and Marseilles Administrative Courts in which the State had been held liable for prisoner suicides. 68. The applicant emphasised that her aim was not to obtain compensation, but to ensure that justice was done and that those responsible were punished. 69. The Court considers that the applicant can claim to be a victim, within the meaning of Article 34 of the Convention, on account of her brother’s death (see Çelikbilek v. Turkey (dec.), no.", "27693/95, 22 June 1999, and, mutatis mutandis, Yaşa v. Turkey, 2 September 1998, § 66, Reports of Judgments and Decisions 1998‑V, and Velikova v. Bulgaria (dec.), no. 41488/98, ECHR 1999‑V). 70. As to the first point raised by the Government, the Court observes that under Article 575 of the Code of Criminal Procedure, an appeal on points of law by the civil party alone, in the absence of an appeal by the public prosecutor, will be admissible only in certain exhaustively listed circumstances, which the Government have not maintained were present in the instant case (see Rezgui v. France (dec.), no. 49859/99, ECHR 2000‑XI).", "That being so, the Court concludes that an appeal on points of law by the applicant would have been bound to fail and cannot therefore be regarded as an effective remedy that should have been used. 71. As to the second point, the Court observes that the applicant brought a civil-party application in September 2000 to join the criminal proceedings for manslaughter, which were instituted after her brother’s suicide and ended in January 2005. The Chabba judgment was delivered in May 2003, almost three years after the events in the instant case, and it was only from that date that the existence of the remedy referred to by the Government became sufficiently certain (see Saoud v. France, no. 9375/02, §§ 77-79, ECHR 2007‑...).", "The Court considers that the applicant could not have been expected to avail herself of this additional remedy after the criminal proceedings had ended. 72. The objection must therefore be dismissed. 73. 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 74.", "The applicant submitted that the French authorities had not taken the necessary steps to protect Joselito Renolde’s right to life. She referred in particular to the letter sent by his lawyer to the investigating judge, received three days before his suicide, in which the lawyer had mentioned the worsening of her client’s mental state and asked for an expert assessment of whether his condition was compatible with detention, and in particular with placement in a punishment cell. 75. After citing the Court’s case-law on the subject (in particular, Keenan v. the United Kingdom, no. 27229/95, ECHR 2001‑III; Tanribilir v. Turkey, no.", "21422/93, 16 November 2000; and A.A. and Others v. Turkey, no. 30015/96, 27 July 2004), the Government recounted the timeline of events and submitted that the authorities had taken appropriate steps to protect Joselito Renolde’s life, having regard to the information available at the time the events had occurred. 76. The Government submitted that it was acknowledged that Joselito Renolde had been suffering from psychotic disorders, which had manifested themselves in an act of self-harm on 2 July 2000. Medical treatment had been prescribed and he had subsequently been regularly monitored by the SMPR’s medical team, which had seen him ten times between 3 and 20 July 2000.", "On the SMPR’s recommendation, the prison authorities had placed him in an individual cell under special supervision. When he had later been placed in a punishment cell, he had been monitored every half-hour during the day. At no time had the SMPR indicated to the prison authorities that he posed a suicide risk. It was clear from the expert report by Dr G. and Dr P. that his suicide had not been foreseeable, at any rate in the short term, in the absence of any sign of suicidal intentions or a depressive syndrome, and that on the actual day of his suicide the nurse who had seen him had not reported anything abnormal in his behaviour. 77.", "The Government further pointed out that the prison’s medical staff (the SMPR and the UCSA) had never indicated that his condition might be incompatible with detention, whether under the ordinary regime or in the punishment block, and that the experts had found that his placement in the punishment block did not appear to have actually worsened his condition. 78. Lastly, with regard to his medication, the experts had observed that it would perhaps have been preferable to have supplied him with it every day and to have supervised his taking it. The medical staff, however, had taken the view that such an approach was unnecessary, since Joselito Renolde had never shown any signs of refusing to take his medication and his condition did not appear to have worsened. The psychiatrist in charge of the SMPR had considered that the treatment had been administered in accordance with the 1994 circular on the provision of health care for prisoners, and the SMPR had kept Joselito Renolde under very close observation.", "79. The Government concluded that these factors were not capable of suggesting that there had been a clear and immediate risk that Joselito Renolde would commit suicide on 20 July 2000, and maintained that the national authorities had responded in a reasonable way to his behavioural problems. In any event, they could not be criticised for failing to take specific measures such as removing sheets from the cell. 2. The Court’s assessment (a) Recapitulation of principles 80.", "The Court reiterates that the first sentence of 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. The Court’s task is therefore to determine whether, given the circumstances of the case, the State did all that could have been required of it to prevent the applicant’s brother’s life from being avoidably put at risk (see, for example, L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports 1998‑III). 81. The Court further 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 another individual or, in particular circumstances, from himself (see Tanribilir, cited above, § 70; Keenan, cited above, § 89; and, mutatis mutandis, Ataman v. Turkey, no.", "46252/99, § 54, 27 April 2006). 82. However, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising (see Tanrıbilir, cited above, §§ 70-71; Keenan, cited above, § 90; and Taïs v. France, no. 39922/03, § 97, 1 June 2006).", "83. The Court has had previous occasion to emphasise that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them (see Keenan, cited above, § 91; Younger v. the United Kingdom (dec.), no. 57420/00, ECHR 2003-I; and Trubnikov v. Russia, no. 49790/99, § 68, 5 July 2005). The prison authorities, similarly, must discharge their duties in a manner compatible with the rights and freedoms of the individual concerned.", "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; Younger, cited above; and Trubnikov, cited above, § 70). 84. Lastly, the Court reiterates that, in the case of mentally ill persons, regard must be had to their particular vulnerability (see Aerts v. Belgium, 30 July 1998, § 66, Reports 1998-V; Keenan, cited above, § 111; and Rivière v. France, no. 33834/03, § 63, 11 July 2006).", "(b) Application to the present case 85. In the light of the above, the Court has examined whether the authorities knew or ought to have known that Joselito Renolde posed a real and immediate risk of suicide and, if so, whether they did all that could reasonably have been expected of them to prevent that risk. 86. The Court observes that on 2 July 2000, eighteen days before his death, Joselito Renolde attempted suicide by cutting his arms. The warder on duty at the time noticed three other cuts on his forearm.", "The psychiatric emergency team diagnosed an acute delirious episode and prescribed Joselito Renolde antipsychotic neuroleptic medication. On that occasion, Joselito Renolde mentioned that he had a history of psychiatric problems and that he had previously been admitted to a psychiatric institution and given neuroleptic treatment. Following that incident, from 3 July 2000 he was monitored by the SMPR, who continued the antipsychotic treatment. 87. The Court notes that the expert report by Dr G. and Dr P. concluded that Joselito Renolde had been suffering from psychotic disorders at the time of his arrival in the prison and that his suicide attempt was not linked to a depressive syndrome but to a delusional acting-out process attributable to such disorders.", "88. The Court further observes that in the days following his suicide attempt, Joselito Renolde continued to show signs of worrying behaviour despite his supervision by the SMPR and the neuroleptic medication: assault on a warder, incoherent statements during the investigation into the assault, auditory hallucinations (he told the warder R. that he could hear his son talking to him at night), and incoherent discussions with his lawyer, prompting her to request a psychiatric assessment. Lastly, the Court notes that in his letter of 6 July 2000 (after he had been placed in the punishment cell), which must have been monitored by the prison authorities, he depicted himself as crucified on a tomb and mentioned the idea of ending his life. 89. In the light of the above considerations, the Court concludes that from 2 July 2000 onwards, the authorities knew that Joselito Renolde was suffering from psychotic disorders capable of causing him to commit acts of self-harm.", "Although his condition and the immediacy of the risk of a fresh suicide attempt varied, the Court considers that that risk was real and that Joselito Renolde required careful monitoring in case of any sudden deterioration (see Keenan, cited above, § 96, and contrast Trubnikov, cited above, §§ 73-74). 90. It remains to be determined whether the authorities did all that could reasonably be expected of them to avoid that risk. 91. The Court observes that the authorities undeniably made efforts to that end: firstly, they responded promptly when Joselito Renolde cut his arm on 2 July 2000, by calling in the psychiatric emergency team.", "After being placed under observation by the SMPR on 3 July 2000, Joselito Renolde was moved to an individual cell and was subject to special supervision in the form of more frequent patrols. Subsequently, when he was placed in the punishment cell, he was monitored every half-hour during the day. 92. Moreover, there does not appear to be any evidence of negligence or lack of supervision in the course of the events on the day Joselito Renolde died, since his request to see a doctor when he left his cell to take exercise was sent on immediately and a maximum of twenty-five minutes elapsed between his return to his cell and the discovery of his death by the warder. 93.", "From a medical perspective, the Court notes that the SMPR monitored Joselito Renolde from 3 July 2000 and saw him ten times between 3 and 20 July 2000, and that on the morning prior to his death, a nurse from the psychiatric service visited him. 94. However, the Court notes a number of factors pointing in the opposite direction. 95. Firstly, the Court observes that in Rivière (cited above, §§ 71-72) it held: “... under Article D. 398 of the Code of Criminal Procedure, prisoners with mental disorders may not be held in an ordinary prison but are to be compulsorily admitted to hospital by order of the prefect.", "That provision is confirmed by Article L. 3214-1 of the Public Health Code, which states that detainees suffering from mental disorders should be admitted to a specially designed wing of an ordinary health-care institution. The Court further observes that Recommendation No. R (98) 7 of the Committee of Ministers of the Council of Europe concerning the ethical and organisational aspects of health care in prison ... provides that prisoners suffering from serious mental disturbance should be kept and cared for in a hospital facility that is adequately equipped and possesses appropriately trained staff. The Court has already had occasion to cite this Recommendation (see, for example, Naumenko v. Ukraine, no. 42023/98, § 94, 10 February 2004), and attaches considerable importance to it, although it acknowledges that the Recommendation is not in itself binding on the member States.” 96.", "In the Keenan case (cited above), finding that there had been no violation of Article 2 of the Convention, the Court had regard, in particular, to the fact that the authorities had “responded in a reasonable way to Mark Keenan’s conduct, placing him in hospital care and under watch when he evinced suicidal tendencies” (see Keenan, cited above, § 96; see also, mutatis mutandis, Kudła v. Poland [GC], no. 30210/96, § 96, ECHR 2000‑XI). 97. In the instant case, however, the Court is struck by the fact that, despite Joselito Renolde’s suicide attempt and the diagnosis of his mental condition, it does not appear that there was ever any discussion of whether he should be admitted to a psychiatric institution. The experts noted in their report that “[his] disorders could perhaps have called for a discussion of the advisability of admission to a psychiatric unit”.", "However, not until Joselito Renolde’s lawyer requested steps to be taken on 12 July 2000 was an expert assessment envisaged as to whether his condition was compatible with detention. 98. In the light of the State’s positive obligation to take preventive operational measures to protect an individual whose life is at risk, it might have been expected that the authorities, faced with a prisoner known to be suffering from serious mental disturbance and to pose a suicide risk, would take special measures geared to his condition to ensure its compatibility with continued detention. 99. The Court considers that, seeing that the authorities did not order Joselito Renolde’s admission to a psychiatric institution, they should at the very least have provided him with medical treatment corresponding to the seriousness of his condition.", "100. In that connection, it has devoted particular attention to the manner in which Joselito Renolde’s treatment was administered. The evidence indicates that his medication was handed to him twice a week without any supervision of whether he actually took it. The investigation revealed in this connection that the last time Joselito Renolde had been supplied with medication was on Monday 17 July 2000, three days before his death. However, the expert toxicological reports revealed that at the time of his death he had not taken his neuroleptic medication for at least two to three days and his anxiolytic medication for at least one to two days.", "101. The Court observes that, according to the conclusions of the expert report, Joselito Renolde’s suicide was more the consequence of a psychotic disorder than of a depressive syndrome and may have taken place in a hallucinatory state, especially if his medication had not been taken correctly. The experts wondered whether such disorders could have been treated satisfactorily, bearing in mind that the medication was handed to the prisoner only twice a week and was thus left at his disposal. They pointed out that supervision of Joselito Renolde’s daily taking of medication would have been helpful and that, in view of his lack of awareness of his disorders, it would “perhaps” have been preferable to have supplied him with the medication every day and to have supervised his taking it. 102.", "Despite the cautious wording of that finding, the Court notes that the experts considered that this poor medicine compliance might have contributed to Joselito Renolde’s committing suicide in a state of delirium. 103. The Government asserted that, according to the members of the psychiatric team, Joselito Renolde had never shown any signs of refusing to take his medication and his condition had not recently called for special attention. The Court further notes that, during the investigation, Dr L. stated that it was impossible to supervise all medication prescribed by the SMPR. 104.", "The Court is not persuaded by those arguments. Without overlooking the difficulties with which those working in a prison environment are faced, it has serious doubts as to the advisability of leaving it to a prisoner suffering from known psychotic disorders to administer his own daily medication without any supervision. 105. It observes that in Rivière (cited above, § 63) it considered it appropriate to set apart those mental illnesses, such as psychosis, which entailed especially high risks for persons suffering from them. It notes that, in contrast to Mark Keenan, who had been diagnosed with a mild psychosis, Joselito Renolde suffered from acute psychotic disorders, according to the experts (see paragraph 40 above).", "Although it is not known what made Joselito Renolde commit suicide (see Keenan, cited above, § 101), the Court concludes that in the circumstances of the case, the lack of supervision of his daily taking of medication played a part in his death. 106. Lastly, the Court has had regard to the fact that three days after his suicide attempt, Joselito Renolde was given the most severe disciplinary penalty, namely forty-five days’ detention in a punishment cell. No consideration seems to have been given to his mental state, although he had made incoherent statements during the inquiry into the incident and had been described as “very disturbed”. 107.", "The Court observes that placement in a punishment cell isolates prisoners by depriving them of visits and all activities, and that this is likely to aggravate any existing risk of suicide. 108. It notes that paragraph 56 of Recommendation No. R (98) 7 states that in cases where the use of close confinement of mental patients cannot be avoided, it should be “reduced to an absolute minimum and be replaced with one-to-one continuous nursing care as soon as possible”. Paragraph 43.3 of Recommendation No.", "R (2006) 2 states, for its part, that “[t]he medical practitioner shall report to the director whenever it is considered that a prisoner’s physical or mental health is being put seriously at risk ... by any condition of imprisonment, including conditions of solitary confinement”. 109. The Court reiterates that the vulnerability of mentally ill persons calls for special protection. This applies all the more where a prisoner suffering from severe disturbance is placed, as in the instant case, in solitary confinement or a punishment cell for a prolonged period, which will inevitably have an impact on his mental state, and where he has actually attempted to commit suicide shortly beforehand. 110.", "In the light of all these considerations, the Court concludes that the authorities in the instant case failed to comply with their positive obligation to protect Joselito Renolde’s right to life, and that there has been a violation of Article 2 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION The applicant submitted that Joselito Renolde’s placement for 45 days in a punishment cell, despite his condition, had amounted to treatment in breach of Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 111. To the extent that the Government’s objection of failure to exhaust domestic remedies (see paragraph 63 above) also concerns the applicant’s complaint under Article 3 of the Convention, the Court considers that it should be dismissed for the reasons set out in paragraphs 70-71 above. 112.", "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 113. The applicant submitted that Joselito Renolde had been given an excessive disciplinary sanction in view of his fragile mental state. 114. The Government referred to the Court’s case-law concerning Article 3 of the Convention and its application to detainees. In similar cases (in particular, Keenan, cited above, and Aerts, cited above), the Court had held that the assessment of whether the treatment or punishment concerned was incompatible with the standards of Article 3 had, in the case of mentally ill persons, to take into consideration their vulnerability and their inability, in some cases, to complain about how they were being affected by any particular treatment.", "115. The Government contended that the decision to impose the maximum penalty for a first-degree offence (the most serious) on Joselito Renolde, namely forty-five days in a punishment cell, had been justified by the seriousness of the offence of assault on a prison officer. They observed that Joselito Renolde had not appealed against the penalty, even though the administrative courts had jurisdiction to review whether such a penalty was proportionate to the offence committed. 116. It was therefore necessary to examine whether there had been any physical or mental signs that should have indicated to the prison authorities that the penalty in issue and its enforcement had exceeded the unavoidable level of suffering inherent in detention.", "The Government submitted that that had not been the case. 117. Joselito Renolde had continued to be regularly monitored by the SMPR after being been moved to the punishment block. Moreover, there had been no objective evidence that prior to his death he had been suffering from a significant level of anguish or distress attributable to the conditions of his detention. The experts had, moreover, noted that it did not appear that placement in a punishment cell could actually have worsened his psychological condition.", "The Government further observed that neither the SMPR team nor the doctor from the UCSA who had examined him at his request had at any time indicated to the prison management that the enforcement of the disciplinary sanction might endanger or be incompatible with his condition. 118. Lastly, pointing out that there was no real evidence to corroborate the view that the prison authorities’ actions had been premeditated with the aim of debasing Joselito Renolde, the Government concluded that the disciplinary sanction imposed on him had not attained such a level of severity as to constitute a violation of Article 3. 2. The Court’s assessment 119.", "The Court reiterates that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level 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, cited above, § 91; Gelfmann v. France, no 25875/03, § 48, 14 December 2004; and Rivière, cited above, § 59). 120. 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). In particular, the assessment of whether the treatment or punishment concerned is incompatible with the standards of Article 3 has, in the case of mentally ill persons, to take into consideration their vulnerability and their inability, in some cases, to complain coherently or at all about how they are being affected by any particular treatment (see, among other authorities, Aerts, cited above, § 66; Keenan, cited above, § 111; and Rivière, cited above, § 63).", "121. Treatment of a mentally ill person may be incompatible with the standards imposed by Article 3 in the protection of human dignity, even though that person may not be able or in a position to point to any specific ill-effects (see Keenan, cited above, § 113). 122. In the instant case the Court observes that Joselito Renolde was suffering from acute psychotic disorders which manifested themselves in a suicide attempt on 2 July 2000. In the days that followed, although his condition improved as a result of his neuroleptic medication, he continued to behave in a disturbing manner, for example by attacking a warder.", "The prison officer who conducted the inquiry into that incident stated that Joselito Renolde had made incoherent statements and noted in his report that he was a “very disturbed” prisoner. 123. The Court has also had regard to the statement by the warder R. that Joselito Renolde had heard his son talking to him at night, and to an incident report from the night before his death, in which it was noted that he had been shaking the bars of his cell and demanding to come out. 124. Although it is mindful of the difficulties facing the prison authorities and of the need to punish assaults on warders, the Court is struck by the fact that Joselito Renolde was given the maximum penalty for a first-degree offence, with no consideration being given to his mental state or to the fact that it was his first such incident.", "125. The Court observes that a penalty of this kind entails the prohibition of all visits and all contact with other prisoners. 126. It appears from the evidence that Joselito Renolde was suffering from anguish and distress during this period, as is attested by the letter he wrote to his sister on 6 July 2000, in which he said that he was at the limit and compared his cell to a tomb, portraying himself as crucified. This is borne out by the statement given by his fellow prisoner N. (see paragraph 32 above), whom he had told that he felt anxious and “down” as he was not used to being alone, and who had heard him crying.", "127. The Court further observes that Joselito Renolde’s condition aroused sufficient concern in his lawyer, who saw him on 12 July 2000 (eight days before his death), that she immediately requested the investigating judge to order a psychiatric assessment of whether his condition was compatible with detention, particularly in a punishment cell. 128. The Court reiterates that 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 cited above, the Court found that the imposition on Mark Keenan of a disciplinary punishment described as serious – seven days’ segregation in the punishment block and an additional twenty-eight days to his sentence – amounted to treatment in breach of Article 3 of the Convention.", "129. In the instant case, however, Joselito Renolde was given a distinctly more severe penalty – forty-five days’ detention in a punishment cell – which may well have threatened his physical and moral resistance. The Court considers that such a penalty is not compatible with the standard of treatment required in respect of a mentally ill person and constitutes inhuman and degrading treatment and punishment (see Keenan, cited above, § 116, and Rivière, cited above, § 76; and, by way of contrast, Kudła, cited above, § 99, and Aerts, cited above, § 66). 130. The Court therefore concludes that there has been a violation of Article 3.", "III. 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.” 132. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award her any sum on that account.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 2 of the Convention in that the authorities breached their positive obligation to protect Joselito Renolde’s right to life; 3. Holds that there has been a violation of Article 3 of the Convention. Done in French, and notified in writing on 16 October 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Claudia WesterdiekPeer LorenzenRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Judge Villiger is annexed to this judgment. P.L.C.W. CONCURRING OPINION OF JUDGE VILLIGER I agree with the outcome of the judgment and its thorough and structured reasoning. However, I would not wish the reasoning to distract from what is, in my view, the crucial issue of the case. It is dealt with in paragraph 100 of the judgment.", "In particular, I do not think that this case is one concerning implications of Article 2 for psychiatric patients. In my view, the case concerns the quite straightforward issue of supervising a patient who is required to take medication. The present applicant’s brother was a vulnerable person with a psychiatric condition. The medical report described him as a “very disturbed prisoner” (paragraph 16 of the judgment). He had attempted to commit suicide, and the medicaments which he was prescribed purported to prevent further suicide attempts.", "It is normal practice that any vulnerable person, for example in a hospital, a nursing home or a children’s home, should be supervised when taking prescribed medication. Such monitoring involves a minimal amount of time and effort. It consists in the assistant, nurse or doctor attending the patient until he or she has taken the medication and ensuring that it does not, for example, fall on the floor or is not concealed by the patient. While this description of the sequence of events may appear trite, the matter is of cardinal importance if a person will suffer, even suffer seriously, from the consequences of failing to take the prescribed medication. It is therefore quite surprising to read in paragraph 34 of the judgment that Dr L., the SMPR doctor, explained that verification of whether or not a patient had taken the prescribed medicaments was “contrary to the principle of trust which underlies the therapeutic alliance in a hospital environment”.", "The whole case turns on this statement. While such trust might be an important element of a relationship between a medical doctor and a responsible and mature patient, I fail to see how such trust can at all be established with a vulnerable person such as the applicant’s brother, who in addition had already attempted to commit suicide. I find it surprising that the prison authorities were not in a position to undertake such surveillance. Would it not have been completely disproportionate instead to send the applicant’s brother to a psychiatric hospital merely to monitor that he took the required medicaments? Since the authorities failed adequately to supervise the applicant’s brother, and in view of the applicant’s brother’s death, they failed sufficiently to respect their obligations arising under Article 2 of the Convention.", "[1]1. These provisions are reproduced in Articles D. 372 et seq. of the Code of Criminal Procedure." ]

[ "FIFTH SECTION CASE OF RUMYANA IVANOVA v. BULGARIA (Application no. 36207/03) JUDGMENT STRASBOURG 14 February 2008 FINAL 14/05/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Rumyana Ivanova v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Snejana Botoucharova,Volodymyr Butkevych,Margarita Tsatsa-Nikolovska,Rait Maruste,Javier Borrego Borrego,Renate Jaeger, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 22 January 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "36207/03) 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 Ms Rumyana Dencheva Ivanova, a Bulgarian national who was born in 1952 and lives in Sofia (“the applicant”), on 14 November 2003. 2. The applicant was represented by Ms N. Kovacheva and Ms Z. Kalaydzhieva, lawyers practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Kotseva, of the Ministry of Justice. 3.", "The applicant alleged that the criminal proceedings leading up to her conviction and punishment for having written a newspaper article had infringed her rights to a fair trial and to freedom of expression. 4. On 6 March 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE A. Background to the case 1. The applicant and the newspaper 5. The applicant is a journalist by profession. At the relevant time she was employed as a reporter at 24 Hours, one of the leading national daily newspapers.", "She continues to work there at present. 2. The Information on Non‑Performing Credits Act of 1997 6. Following a serious banking crisis in 1996‑97, during which a number of banks were sunk into insolvency by, inter alia, non-performing and unsecured loans extended to corporate and individual clients, the Bulgarian legislature enacted a comprehensive package of bank reform legislation (see Capital Bank AD v. Bulgaria, no. 49429/99, § 45, 24 November 2005).", "Part of that package was the Information on Non‑Performing Credits Act of 1997 (“Закон за информация за необслужвани кредити”), which stipulated that the Bulgarian National Bank should compile a list of all bank borrowers with loans that had been due for more than six months, send this list to the Chief Prosecutor’s Office, the Ministry of Internal Affairs, the tax and customs authorities, and the National Assembly, and publish it in a special bulletin. The persons on this list were colloquially referred to as “credit millionaires”. 7. On 21 January 1998 the head of the banking supervision department of the Bulgarian National Bank presented the list to the chairman of the National Assembly. 3.", "Mr M. D. 8. Between 1994 and 1997 Mr M. D. was a Member of Parliament elected on the ticket of the political party Movement for Rights and Freedoms. He was deputy chairman of the Economy Committee and a member of the Budget and Finance Committee of the National Assembly. In the spring of 2001 he became involved with the newly formed coalition National Movement Simeon II, which won the parliamentary elections on 17 June 2001. During the 1990s Mr M. D. was a member of and shareholder in a number of commercial companies.", "Between 1995 and 2001 his name was mentioned in at least twenty‑four reports in national newspapers. 4. The previous publication alleging that Mr M. D. was a “credit millionaire” and his tort action against Media Holding AD 9. On 22 January 1998 Trud, a leading national daily newspaper, published an article under the headline ‘Credit millionaires disclosed’ and the caption ‘Several incumbent and former members of Parliament appear on the list’. In the article the newspaper reported on the handover of the list of “credit millionaires” to the chairman of the National Assembly the previous day and mentioned, inter alia, that several companies connected with the name of Mr M. D. were on the list.", "According to the article, the company Maxcom Holding owed 3.2 billion old Bulgarian levs (BGL) to one bank, the company FBK Maxcom owed BGL 9.4 billion to another bank, and the company Maxcom OOD was indebted in an amount of BGL 7.8 billion. 10. On 30 January 1998 Mr M. D. issued civil libel proceedings against the publisher of Trud, Media Holding AD. He said that the allegation made in the article that he was a “credit millionaire” was not true. He further averred that this allegation seriously tarnished his reputation as a public figure and a Member of Parliament.", "He sought BGL 10,000,000 in non‑pecuniary damages. 11. In a judgment of 9 January 1999 the Sofia City Court dismissed the action. It held that Mr M. D.’s allegations had not been supported by any evidence and were therefore unsubstantiated. Neither party had attended either of the hearings in the case.", "Mr M. D. had not sought leave to adduce any evidence. He had therefore not proven his claim that he had suffered any damage on account of the impugned article. Apparently Mr M. D. did not appeal and the judgment entered into force on 9 March 1999. B. The impugned article 12.", "On 3 August 2001 the parliamentary group of the National Movement Simeon II held a closed‑doors meeting in the National Assembly in order to discuss, inter alia, the candidates for the position of deputy Minister of Finance in charge of customs. For this reason the applicant, who at that time worked as a parliamentary reporter, went, together with other journalists, to the National Assembly lobby. There they met Members of Parliament, who told them that Mr M. D. was being considered for the above‑mentioned position. One of the MPs apparently said that his candidacy would probably not be approved because the Prime Minister was wary of the fact that Mr M. D.’s name featured on the list of “credit millionaires”. At that point the applicant called the editor of 24 Hours and said that she would prepare an article on the topic.", "She also telephoned Mr N., the press officer of the customs administration, asking him whether Mr M. D.’s name was on the list of “credit millionaires”. Mr N. replied that as far as he knew that was so, and referred the applicant to the Full list of credit millionaires, published by the Trud publishing house in 1998. It was stated in the preface of that publication that two companies linked with Mr M. D. – FBK Maxcom and Maxcom OOD – were on that list. The applicant checked in an electronic law database and found that Mr M. D. had been a member (first directly, and after 1993 through another company) of the company Vitaplant OOD, which was also among the debtor companies on the list. After unsuccessfully trying to contact Mr M. D. by telephone, she wrote an article about the story.", "13. According to the applicant, in the meantime other journalists from 24 Hours had contacted various institutions which could have had information on the matter (the Chief Prosecutor’s Office, the Ministry of Internal Affairs, the National Assembly, the Ministry of Finance, the Bulgarian National Bank) and all of them had confirmed that Mr M. D. featured on the list of “credit millionaires”. 14. The article, which appeared on page eight of the 4 August 2001 issue of 24 Hours under the headline “Foreign Company to Run Customs under Concession?” and the applicant’s byline, was worded as follows: “The King’s men were intensely discussing whether to hire a Western company to run the customs administration, Members of Parliament say. The idea became topical because of difficulties with the selection of a strong candidate for the position of deputy Minister of Finance in charge of supervising the customs administration.", "The proposal that Mr M. D. is tapped for the position has not yet been approved by the Prime Minister. Simeon Saxe‑Coburggotski was concerned about the fact that [Mr M. D.]’s name is on the list of credit millionaires, confided sources close to him. In the official document dated 21 January 1998 and signed by the head of the Bank Supervision [department of the Bulgarian National Bank], [Ms E. M.], [Mr M. D.] appears as a debtor. Three of his companies – Maxcom Holding, FBK Maxcom and Maxcom OOD –, had debts totalling 20,400,000 levs. The uncertainties about [Mr M. D.] have brought the name of [Mr E. D.] on to the agenda.", "However, the idea was for him to have operational control over customs, while the concession is awarded to the Western company.” 15. The article was accompanied by photographs of Mr M. D. and Mr E. D. with their names in the captions. 16. Later that day the applicant got in touch with Mr M. D. and was told that the statements in her article were not true. 17.", "After the first printed copies of the newspaper were circulated, Mr M. D. called 24 Hours’ editor and said that he was not a shareholder in Maxcom Holding, FBK Maxcom, or Maxcom OOD. The editor then decided to amend the article in the subsequent printed copies of the newspaper. The new version, which featured solely the picture of Mr M. D., but not that of Mr E. D., read as follows: “The King’s men were discussing whether to hire a Western company to run the customs administration, Members of Parliament say. The idea became topical because of difficulties with the selection of a strong candidate for the position of deputy Minister of Finance in charge of supervising the customs administration. The proposal that Mr M. D. is tapped for the position has not yet been approved by the Prime Minister.", "According to insiders, Simeon Saxe‑Coburggotski received reports that [Mr M. D.] is on the list of credit millionaires. In the official document dated 21 January 1998 and signed by the head of the Bank Supervision [department of the Bulgarian National Bank], [Ms E. M.], [Mr M. D.] appears as a debtor. Mr M. D. categorically denied this. He said ‘I am not a debtor, but a creditor’. According to former Members of Parliament, the allegations that he was a credit millionaire were being spread by people who wanted to smear his name.", "Ill‑wishers used the similarity between the names of [Mr M. D.]’s companies and the names of those companies featuring on the list of credit millionaires. This was done to foil his candidacy for the position of deputy Minister of Finance. In recent days the name of [Mr E. D.] has been brought on to the agenda. However, the idea was for him to have operational control over customs, while the concession is awarded to the Western company.” 18. The first version of the article was featured in 5,205 copies of the newspaper, 5,079 of which were sold.", "The second version was featured in 230,817 copies, 202,568 of which were sold. 19. Two days later, on 6 August 2001, 24 Hours ran an additional article including the response from Mr M. D. The article, which appeared on page ten, was under the caption ‘You are wrong’ and its headline was ‘[M. D.]: I am not a credit millionaire!’. It read as follows: “In an article on page eight of issue 208 of this year, under the headline ‘Foreign Company To Run Customs under Concession?’, [the applicant] links my name to companies which feature on the list of credit millionaires. This statement does not correspond to the truth.", "I reiterate that I have never been a shareholder, member or manager in the companies Maxcom Holding, FBK Maxcom, or Maxcom OOD, nor can I be in any other way linked with debtor companies. Recently some of the newspapers in the country have been trying to participate in an orchestrated campaign to smear my reputation. To my displeasure I notice that 24 Hours, a newspaper which I respect, has joined in the foul attack. In my opinion, the publication of unauthentic, unverified and incorrect information does no honour to your newspaper and offends its readers.” 20. Alongside the article there was a photograph of Mr M. D. with his name in the caption.", "21. Shortly after these events Mr M. D. announced that he had withdrawn his candidacy for the post of deputy Minister of Finance. C. The proceedings against the applicant 22. On 8 October 2001 Mr M.D. lodged a criminal complaint against the applicant with the Sofia District Court.", "He alleged that the statements made in the article were not true. In particular, he had never been a shareholder, member, or manager of the companies mentioned in the article – Maxcom Holding, FBK Maxcom or Maxcom OOD –, nor did he appear as an individual on the list of “credit millionaires”. In his view, by writing the article containing the untrue statements the applicant had committed libel, contrary to Articles 147 § 1 and 148 §§ 1 (2) and 2 of the Criminal Code of 1968 (see paragraphs 32 and 33 below). He further alleged that he had suffered substantial non‑pecuniary damage as a result of the applicant’s act, and sought compensation in the amount of 10,000 new Bulgarian levs (BGN). He declared that he would donate any award made by the court to a church.", "23. On 28 November 2001 the judge‑rapporteur at the Sofia District Court sent a copy of the criminal complaint to the applicant, invited her to file a reply, and set the case down for trial. 24. In her reply the applicant said that the allegations made in the criminal complaint were untrue and unproven. The article did not consist of her own statements; she had simply relayed information coming from Members of Parliament.", "This information had been verified through all available sources. The applicant had been certain that Mr M. D. had indeed been a “credit millionaire”, which was the actual vilifying circumstance, not the mere fact that he was involved in certain companies. 25. The trial took place on 25 March, 10 April, 15 May, 19 June and 16 September 2002. The Sofia District Court admitted in evidence a number of documents produced by the applicant and Mr M. D., and questioned several witnesses, one of whom was Ms N., a journalist who had been in the National Assembly on 3 August 2001 (see paragraph 12 above).", "While initially giving leave to the applicant to adduce evidence relating to Mr M. D.’s links with companies which had failed to repay bank loans, the court later revoked its order and refused to admit such evidence, holding that these matters could be elucidated through the evidence already gathered. The court also gave leave to the applicant to call one of the Members of Parliament whom she had talked to on 3 August 2001. She tried to secure his presence, but failed to do so. She accordingly left it to the discretion of the court to subpoena him, but refused to name him. Her counsel said that even though the MPs who had spoken to the applicant had been named in Ms N.’s testimony, that did not allow the unequivocal identification of this witness and hence precluded a request to summon him.", "The court held that, failing clear identification of the witness, it was impossible to subpoena him. It added that the defence had had ample opportunity to secure his presence, but had failed to do so. 26. In a judgment of 16 September 2002 the Sofia District Court found the applicant guilty of having divulged a vilifying fact about another person in a publication, contrary to Article 147 § 1 and Article 148 §§ 1 (2) and 2 of the Criminal Code of 1968 (see paragraphs 32 and 33 below). The court applied Article 78a of the Code (see paragraph 34 below) and replaced the applicant’s criminal liability with an administrative fine of BGN 500.", "The court further ordered the applicant to pay Mr M.D. BGN 2,000 plus interest from 4 August 2001 until settlement, as compensation for his injured reputation, and awarded him BGN 550 in costs. The court described the facts set out in paragraphs 12‑19 above, except the part concerning Mr M. D.’s indirect membership of Vitaplant OOD at the time when it had taken out bank loans which it had failed to repay, and held as follows: “...The actus reus of the offence of defamation is characterised by the divulging of vilifying – and untrue – circumstances relating to a specific individual. The expression used by [the applicant] – ‘credit millionaire’ – is derived from the Information About Non‑Performing Credits Act [of 1997], on the basis of whose section 3 the administration of the [Bulgarian National Bank] has published a list of all debtors, persons who have outstanding credits. Therefore the expression ‘credit millionaire’ has a negative connotation and presupposes intolerance and extremely negative public attitudes.", "These are people who have prospered financially due to credits from financial institutions which they have failed to repay. In this sense, from a moral point of view these persons do not enjoy a good reputation and are perceived as dishonest. The law bans these persons from holding certain official posts. The above characterises the expression used by [the applicant] – ‘credit millionaire’ – as vilifying and damaging to the public reputation of the person [in respect of whom it is used] and the esteem of his personality. The vilifying circumstance has been divulged through the press to a large number of readers.", "The fact that the first version of the article had a smaller circulation than the second, which also contained [Mr M. D.’s] rebuttal, is of no consequence, because the circulation of the printed material has no impact on the criminality of the act. The act has been committed wilfully, the form of mens rea being recklessness. [The applicant] realised the criminality of her act and its injurious consequences, and accepted that they would occur. [She] pursued another aim, which is not unlawful –informing the newspaper’s readers of the latest news about the candidates for the post of deputy Minister of Finance in the Saxe‑Coburggotski cabinet –, but was aware that the information published was untrue and did not correspond to the actual facts. The court’s findings in this respect are based on the fact that [the applicant] did not carry out a proper journalistic enquiry before publishing her story.", "No regulations for conducting a journalistic enquiry were in existence at the time when the article was published. Accordingly, in his or her work each journalist had to abide by and comply with the settled customary rules in the branch, which are in line with Articles 39 to 41 of the [Constitution of 1991 – see paragraph 31 below], which contain requirements and restrictions in the exercise of the rights proclaimed thereby. In the instant case, it was established that [the applicant] had not carried out the required comprehensive and thorough journalistic enquiry, as required by the rules of investigative journalism, that is, to receive confirmation from two independent sources. The first of [the applicant]’s sources was a Member of the majority in Parliament, who conveyed the information relating to [Mr M. D.] off the record, citing no sources, that is, it was unclear whether he had obtained it through his participation in a parliamentary committee or also through unofficial channels. He should have therefore, according to best journalistic practice, been considered an unreliable source.", "This fact obliged [the applicant] to duly check the information she had received through other, public and reliable, sources and not trust completely what she had heard in Parliament. The information received from [Mr N.] did not in fact constitute another dependable source of information. The latter relied on the publication of the Trud publishing house The Full List of Credit Millionaires, in whose preface [Mr M. D.] had been identified as a debtor through three of his companies – FBK Maxcom, Maxcom Holding and Maxcom OOD. [The applicant] was therefore under the obligation to check whether [Mr M. D.] indeed owned shares in these companies, because the mere linking of his name to the companies in a publication was not enough to perceive the information as authentic. This conclusion is reinforced by the fact that the publication in issue gave the names of the companies, not of their shareholders, for which reason the statement in its preface was not confirmed by its contents.", "However, [the applicant] did not take the requisite steps to verify the facts alleged by [Mr N.] and the publication’s preface. She merely established, after a check in the APIS information system, that [Mr M. D.] was a shareholder in the company Vitaplant [OOD], which also featured on the list of persons with outstanding credits. The company Vitaplant [OOD] was not, however, among the companies connected to [Mr M. D.]’s name in the publication’s preface, and that should have prompted [the applicant] to double‑check her assumptions. However, [the applicant] assumed that the link uncovered by her was sufficient to corroborate the statement that [Mr M. D.] was a credit millionaire. She thus failed to comply with her duty of thoroughly verifying the information through reliable, independent sources.", "[The applicant] did not check whether the statement in the [publication’s] preface that [Mr M. D.] was connected to three debtor companies corresponded to the truth, which was mandatory. The fact that she works at a daily newspaper does not absolve her of the obligation to carry out thorough journalistic enquiries. She had access to information in the register of companies, which is public, in order to check the veracity of the information she had gathered. Not only did [the applicant] not do that, but in her article she relied on a document with which she had not been duly acquainted – the official list of borrowers compiled by the [Bulgarian National Bank]. The statement in her article that the three companies – Maxcom Holding, Maxcom OOD and FBK Maxcom – were companies of [Mr M. D.] was not supported by due journalistic enquiry.", "Her source, [Mr N.], relied on the publication of Trud, which in fact means that [the applicant]’s information was solely based on the preface of the list, which was not enough, considering that this information had not been verified either. The readers’ right to be informed of so‑called ‘hot news’ does not absolve the article’s author from checking carefully the accuracy of her publication. The fact that [the applicant] did not take the necessary steps in this direction confirms the court’s conclusion that her act was wilful. There must be a balance between the reader’s right to information and the rights of the persons affected by journalistic materials. The one responsible for this balance is the author, who must abide by the rules of investigative journalism.", "It is beyond doubt that the time and means available to a journalist on a daily newspaper for a proper enquiry concerning a current issue are greatly limited, but [the applicant] was bound to do what was possible to verify the information she had gathered. In the case at hand [the applicant] had enough time to consult the register of companies, so as to report on the rumours heard in the lobby of the Parliament building and at the same time to present the actual facts. It is precisely [the applicant]’s passivity in respect of this second element which makes her act criminal. The lack of a full enquiry into the facts, performed with due journalistic care, and the applicant’s own statement that she did not carry out a full enquiry into Mr M. D.’s involvement in the companies mentioned in the article, allow [the court to conclude] that she was not confident that her allegations were true. On the contrary, the fact that [the applicant] is an experienced journalist, maintains contacts with colleagues of hers from other media, with whom she exchanges information concerning such news, allows [the court to conclude] that she knew that information about outstanding credits of [Mr M. D.] had been published before.", "She was therefore aware that the two newspapers which had published similar articles had also published refutations, and had apologised to [Mr M. D.] for the untruthfulness of their allegations. [The applicant] did not do all she was professionally bound to do in respect of the specific enquiry, which points to intent. She allowed herself to rely on sources which she had not checked, but which made her article look persuasive and objective. CONCERNING THE PENALTY: In determining the type and quantum of punishment the court had regard to the following: The court is of the view that all necessary prerequisites for replacing [the applicant]’s criminal liability and imposing an administrative punishment on her are in place. The offence committed by her is punishable by a fine.", "[The applicant] has not been previously convicted of a publicly prosecutable offence and exonerated of criminal liability... For this reason, the court is of the view that [the applicant] should be exonerated of criminal liability and punished administratively by a fine. In determining the amount of the fine the court had regard to [the applicant]’s means, earned as a journalist, as well as to certain mitigating circumstances, such as a critical attitude to her act, cooperation in establishing the facts, [and] good character. All of these favour a lower fine, that is [BGN] 500. The court contemplated the possibility ... of imposing an additional punishment, but accepted that this is not necessary as the fine is sufficient to reform and deter [the applicant] and the general public. CONCERNING THE CIVIL CLAIM: The existence of damage resulting from the offence under Article 147 § 1 of the [Criminal Code of 1968] is an unrebuttable presumption and, in view of the court’s finding that the applicant acted with mens rea, the only outstanding issue is the quantum of damage.", "It is beyond doubt that the publication authored by [the applicant] damaged [Mr M.D. ]’s reputation and public esteem. He should therefore be compensated for that damage. At the same time it has not been proved beyond doubt that the article has affected [Mr M. D.]’s business relations with his partners, [or] has hindered his prospective career in the executive, that is, has prevented him from being appointed to a high‑ranking position. [His] allegations in this respect remained a mere conjecture, lacking clear distinction between reality and possibility.", "All averments in a criminal complaint are subject to proof at trial, including the quantum of the damage. For this reason, the lack of evidence leads to the conclusion that [Mr M. D.]’s claim for BGN 10,000 is unproven. [The claimant] is not relieved of the burden of proving the exact quantum of the sustained damage, irrespective of his statement in the criminal complaint that the amount will be donated for charitable purposes. The court ruled in equity, as required by [the law] and the established case‑law, accepting that [the applicant] should be ordered to pay [Mr M. D.] the amount of BGN 2,000 as compensation for the non‑pecuniary damage suffered as a result of the offence. [The applicant] is to pay interest on this amount at the legal rate from 4 August 2001 until settlement.", "...” 27. On 15 October 2002 the applicant appealed to the Sofia City Court. She argued, inter alia, that the lower court had erred in varying its order giving her leave to present evidence on the ground that that evidence had already been adduced by the private prosecuting party. It had thus restricted her capacity to prove the veracity of her allegations against Mr M. D. The lower court had also erred in accepting that she had acted with mens rea, which was excluded on account of, in particular, the fact that there had been prior publications stating that Mr M. D. was a “credit millionaire”. The applicant finally stated that her conviction and sentence were contrary to, inter alia, Article 10 of the Convention.", "A journalist had the right to impart information received from others acting in their official capacity, which is how it was received in this case. She was under no obligation to verify publicly disclosed information. She had received the information from a Member of Parliament, immediately after a discussion within his parliamentary group on the matter, and had simply passed it on. 28. In a supplementary memorial of 24 March 2003 the applicant further said that she had not committed the actus reus of defamation, as Mr M. D. was indeed a “credit millionaire”, which was the actual vilifying circumstance, not the fact that he had been involved in certain companies.", "This fact was further evidenced by the judgment dismissing his tort action against Media Holding AD. The evidence presented merely proved that he was not on the list of “credit millionaires” as a physical person. It was therefore still possible that he could have been one through participation in certain companies, as she had tried to prove. The lower court’s findings in respect of, inter alia, Mr M. D.’s direct and indirect participation in the companies mentioned were likewise erroneous. The court had also incorrectly held that the applicant had acted recklessly.", "She personally, and also her colleagues, had made numerous checks through various sources, which had led them to believe, in good faith and in line with the rules of investigative journalism, that Mr M. D. was a “credit millionaire”. The alleged insufficiency of the verification could only indicate negligence, not intent. Finally, the fact that the impugned information had previously been made public excluded defamation. 29. The Sofia City Court held a hearing on 31 March 2003.", "It admitted in evidence a number of documents produced by the applicant with a view to establishing Mr M. D.’s participation in Vitaplant OOD, refused certain other evidentiary requests by the applicant, and heard the parties’ arguments. 30. In a final judgment of 19 May 2003 the Sofia City Court noted the facts set out in paragraphs 12‑16 above, including the part relating to Mr M. D.’s participation in Vitaplant OOD at the time when it had taken out bank loans which it had failed to repay, and upheld the applicant’s conviction and sentence in the following terms: “... The parties are not in dispute about the facts [established by the court]. There is also no dispute about the [lower court]’s finding that the statement that a given person is a ‘credit millionaire’ because companies owned by him appear on the [Bulgarian National Bank]’s list of debtors with ‘bad credits’ is objectively vilifying for him or her.", "[The applicant’s] defence raises legal arguments, which outline two disputed questions. The first is whether there is defamation where the facts set out in the publication are untrue, but the conclusion made on their basis is true on other grounds. The defence argues that [Mr M. D.] is in fact a ‘credit millionaire’, not on account of the companies cited in the publication, but because of [his involvement in] another company – Vitaplant OOD. The second is whether an individual who owns a share in a company with outstanding credits can be deemed a ‘credit millionaire’. The view of [the court] on these questions is as follows: The expression ‘credit millionaire’ is not legally defined.", "It has entered the journalistic vernacular and is used in everyday speech to describe individuals who have acquired large amounts of money as a result of the use, by them personally or by physical or legal persons connected with them, of unsecured bank credits, which have remained unpaid and have been listed by the [Bulgarian National Bank] as unrecoverable. The expression is pejorative, because it implies that the people in question are supposedly responsible for the crisis in the banking system and the so‑called ‘draining’ of the banks – generally persons who have become rich in a criminal way. A list of ‘credit millionaires’ as an official document emanating from the [Bulgarian National Bank] has never existed. There exists a list of the persons with outstanding credits as of 1997, which has been compiled pursuant to the Information on Non‑Performing Credits Act [of 1997]. This Act requires the [reportable] credits to exceed 5,000 German marks – it does not concern only credits with seven or more figures.", "According to [the Act], the list is published in a special bulletin, which is not covered by bank secrecy and is sent to the Chief Prosecutor’s Office, the Ministry of Internal Affairs, the tax and customs authorities and the National Assembly. After its receipt at the National Assembly on 21 January 1998 the list was made available to journalists and was published in full or in part as a list of the “credit millionaires”. In fact, the vilifying circumstance is not to own specific companies, but to be a ‘credit millionaire’. In the view of the [court], however, such a dissection of the statement in [the applicant]’s publication and the application of paragraph 2 of Article 147 of the [Criminal Code of 1968] to one of the resulting parts cannot be made, for the following reasons. Readers are not bound to accept journalistic statements uncritically.", "An abundance of specifically alleged facts in support of those statements is key to persuading readers that they are truthful. Such facts in the case at hand are the citing of an official document featuring [Mr M. D.]’s name (untrue) and the citing of specific companies owned by [Mr M. D.] with specific debts (also untrue). There is no doubt that without these untrue allegations the statement that [Mr M. D.] is a credit millionaire would have been uncorroborated and unconvincing and its refutation would have presented no problem for him. It would be wrong to divide an averment containing a vilifying circumstance into two parts for a second reason: the damage to the reputation and the public esteem of a defamed person is not a constant value. The degree of that damage may vary significantly.", "In the instant case, where there is a statement that an individual is a ‘credit millionaire’ because of his involvement in companies which have received credits, the [court] considers that the greater the amount of the outstanding credits, the more numerous the companies having received them, the more direct the connection of the individual with these debtor companies, and, last but not least, the noisier the public scandal, the more vilifying is the statement. [Mr M. D.] would suffer a lesser degree of defamation if the amount of the outstanding credits was one and not twenty million levs, if the article had cited one unknown company instead of three companies which had become notorious because of their link with criminal investigations, and if [Mr M. D.] had not been indicated as [their] sole owner instead of merely a shareholder [in them]. Because of the meaning implied in the expression ‘credit millionaire’ the [court] considers that in the event of a credit taken by a company, an individual could be deemed as having profited therefrom, in the range of millions of levs, only if [his or her] connection with that company is direct, and not through the intermediary of participation in companies which in turn participate in other companies, and if the shareholding is big enough to allow a substantial amount of the credit to pass on to him. The link may likewise exist through participation in the management [of these companies]. At the time when the credit was received [Mr M. D.] did not participate directly in Vitaplant [OOD].", "He was neither a manager of that company, nor a substantial shareholder. The credit itself was not in an amount which would make him a ‘millionaire’. The arguments relating to the existence of a civil judgment dismissing a tort action by Mr M. D. against Media Holding AD are irrelevant, as from the reasons of this judgment it is apparent that the action had not been supported by evidence of the non‑pecuniary damage sustained, whereas the civil courts are under no obligation to gather such evidence. This judgment is not binding on the criminal court. The arguments relating to the lack of mens rea are unfounded.", "The court considers that the [lower court] has correctly accepted as true [the applicant]’s statements that she had verified the information from two independent sources – the Members of Parliament and [Mr N.], after which she had assured herself of its veracity from the existence of numerous prior publications in different newspapers. In spite of that, the defamation was committed recklessly. [The applicant] has disregarded her duty to check the information she imparts with the only reliable source – the public register of companies – to which she had access. The opinion of the MPs was unofficial, as established by the testimony of [the applicant]’s colleagues, whereas [Mr N.], not having his own information, referred [the applicant] to the publication of Trud. This leads to the conclusion that [the applicant] was aware of the possibility that the vilifying information might not be accurate, but disregarded this concern in order to get her story to print as soon as possible.” II.", "RELEVANT DOMESTIC LAW A. The Constitution of 1991 31. The relevant provisions of the Constitution of 1991 read as follows: Article 39 “1. Everyone is entitled to express an opinion or to publicise it through words, written or oral, sound, or image, or in any other way. 2.", "This right shall not be used to the detriment of the rights and reputation of others, or for the incitement of a forcible change of the constitutionally established order, the perpetration of a crime, or the incitement of enmity or violence against anyone.” Article 40 § 1 “The press and the other mass media shall be free and not subject to censorship.” Article 41 “1. Everyone has the right to seek, receive and impart information. The exercise of that right may not be directed against the rights and the good name of other citizens, nor against national security, public order, public health or morals. 2. Citizens shall have the right to information from state bodies or agencies on any matter of legitimate interest to them, unless the information is a state secret or a secret protected by law, or it affects the rights of others.” B.", "The Criminal Code of 1968 32. Article 147 of the Criminal Code of 1968, as in force since March 2000, provides as follows: “1. Whoever divulges a vilifying fact about another or imputes an offence to him or her shall be punished for defamation by a fine ranging from three to seven thousand levs, as well as by a public reprimand. 2. The perpetrator shall not be punished if he or she proves the truth of the divulged facts or the imputed offence.” 33.", "If the defamation is committed through a publication, it is punishable by a fine ranging from five to fifteen hundred levs, as well as by a public reprimand (Article 148 §§ 1 (2) and 2 of the Code, as in force since March 2000). Since March 2000 all instances of defamation are privately prosecutable offences (Article 161 of the Code, as in force since March 2000). In 2005 an unofficial collection of the case‑law of the Sofia District Court and the Sofia City Court in defamation cases was published (Обида и клевета в практиката на Софийския районен съд, Сиби, 2005 г. ); it reported the case against the applicant at p. 400. 34.", "Article 78a of the Code, as in force at the relevant time, allowed the courts to replace convicted persons’ criminal liability with an administrative punishment – a fine ranging from BGN 500 to BGN 1,000 – if (i) the offence of which they had been convicted was punishable by up to two years’ imprisonment or a lesser penalty, in respect of an intentional offence, (ii) they had not been previously convicted of a publicly prosecutable offence and their criminal liability had not been previously replaced by an administrative punishment, and (iii) the damage caused by the criminal act had been made good. Along with the fine the court could impose occupational disqualification of up to three years. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION 35. The applicant alleged that the proceedings leading up to her conviction had not been fair.", "She asked the Court to find a violation of Article 6 §§ 1 and 3 (d), the relevant parts of which provide: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” A. The parties’ submissions 36. The Government argued that the national courts had allowed and taken into account all relevant pieces of evidence.", "They had admitted in evidence all documents presented by the applicant and had given her leave to call all witnesses requested by her. The courts had given ample reasons why they had refused to accede to some of the applicant’s evidentiary applications, finding them irrelevant for the proper disposal of the case. 37. The applicant said that the domestic courts had acted in breach of the fundamental rule that the burden of proof lay on the prosecution. Mr M. D. had not shouldered this burden.", "He had not produced a certificate from the Bulgarian National Bank showing that he did not feature on the list of “credit millionaires” through certain companies of his. Nor had he adduced evidence of the applicant’s guilt. At the same time, the courts had rejected the applicant’s evidentiary requests, whose aim had been to fill the gaps in the prosecution’s case and ascertain the truth. The first‑instance court had not discussed her evidence showing that Mr M. D. did indeed feature on the list of “credit millionaires” through his participation in Vitaplant OOD. The appellate court had accepted that this was so, but had nevertheless held that Mr M. D. had been defamed.", "The appellate court’s ruling that despite the existence of two independent sources the applicant was under a duty to verify her information in the register of companies had rendered the trial unfair, because no rule existed requiring journalists to consult this register. The appellate court had furthermore not discussed the argument that criminal liability was personal, whereas journalists worked and checked information in teams. The first‑instance court had also erred in not calling two Members of Parliament to testify about the information they had given to the applicant in the National Assembly. The same court had erroneously varied its ruling allowing the presentation of evidence on Mr M. D.’s involvement in certain companies. B.", "The Court’s assessment 1. Admissibility 38. The Court considers that this complaint, being closely linked with the complaint under Article 10 of the Convention (see paragraph 46 below), 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 39. The Court starts with the general observation that it is not its function to deal with errors of fact or law allegedly committed by the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I), as it is not a court of appeal from these courts (see, among many other authorities, Cornelis v. the Netherlands (dec.), no. 994/03, ECHR 2004‑V (extracts)).", "Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz, cited above, ibid.). In addition, a requirement for defendants in defamation proceedings to prove to a reasonable standard that the allegations made by them were substantially true does not, as such, contravene the Convention (see McVicar v. the United Kingdom, no. 46311/99, § 87, ECHR 2002‑III; and Steel and Morris v. the United Kingdom, no. 68416/01, § 93, ECHR 2005‑II). 40.", "Turning to the specific allegations made by the applicant, the Court notes the following. 41. The applicant found fault with the Sofia District Court’s failure to gather evidence on and establish whether Mr M. D. had indirectly been a member of Vitaplant OOD – a company featuring on the list compiled by the Bulgarian National Bank (see paragraphs 6, 25 and 26 above). However, the Court notes that this omission was rectified on appeal. The Sofia City Court admitted evidence on this point and found that Mr M. D. had indirectly participated in that company.", "However, it went on to hold that this indirect participation had not rendered the applicant’s statement non‑defamatory, as her statement that Mr M. D. was a “credit millionaire” had been made on the basis of his alleged ownership of three other companies (see paragraphs 29 and 30 above). The Court cannot countenance a challenge to this ruling, which it does not find arbitrary. 42. The applicant further criticised the Sofia District Court’s failure to summon the Member of Parliament as witnesses of its own motion (see paragraph 25 above). However, according to the Court’s settled case‑law, Article 6 § 3 (d) leaves it to the national courts to assess whether it is appropriate to call witnesses (see, among many other authorities, Perna v. Italy [GC], no.", "48898/99, § 29, ECHR 2003‑V). Seeing that the applicant did not name this Member of Parliament, the national court can hardly be criticised for not calling him to the witness stand. In any event, in view of the grounds on which the applicant was found guilty, it does not appear that his testimony would have been decisive for her conviction or acquittal (ibid., §§ 31 and 32). 43. In so far as the applicant complained about the manner in which the Sofia District Court and the Sofia City Court had assessed the evidence and had established the facts, as well as about the manner in which the Sofia City Court had interpreted her duty to carry out a proper journalistic enquiry, the Court observes that it is not its function to deal with errors of fact or law allegedly committed by a national court (see paragraph 39 above).", "It does not consider that the domestic court’s judgments were arbitrary and reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among many other authorities, Thorgeir Thorgeirson v. Iceland, judgment of 25 June 1992, Series A no. 239, p. 25, § 58; and Casado Coca v. Spain, judgment of 24 February 1994, Series A no. 285‑A, p. 18, § 43). 44. In the light of the above considerations, the Court does not consider that the proceedings against the applicant were unfair.", "45. There has therefore been no violation of Article 6 §§ 1 and 3 (d) of the Convention. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 46. The applicant complained that her conviction had been an unjustified interference with her right to freedom of expression.", "She relied on Article 10 of the Convention, which 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.” A.", "The parties’ submissions 47. The Government said that journalists’ freedom of expression should not be exercised by damaging individuals’ reputations. It was therefore material in each case to assess whether the journalists had abided by their duty to ensure that the information they intended to publish was accurate. This had not happened in the instant case; the public had been misled, because the information contained in the applicant’s article had not corresponded to the truth. It was beyond doubt that if journalists were relying on an official document they were not required to verify its accuracy.", "However, the applicant had neither acquainted herself with the official list of “credit millionaires”, nor checked the register of companies to see whether Mr M. D. had any involvement in the companies mentioned by her. She had trusted her sources without bothering to verify whether their information was accurate and without taking account of the fact that the book published by Trud, and especially its preface, did not have the character of an official publication. The applicant had thus not carried out a proper journalistic enquiry before informing the public that Mr M. D. was a “credit millionaire”. She had moreover supported her allegation with specific but untrue statements, which had given rise to the false impression that this information had been verified and authentic. She had admitted her failure to carry out a proper verification at the trial.", "48. The Government further submitted that the applicant’s statement, which had undoubtedly been negative and had led to grave public disapproval of Mr M.D., had been presented as a statement of fact. Its publication should therefore have been based on serious proof. Both levels of court had allowed the parties to the case to adduce evidence on this issue and had based their judgments on the finding that the allegation by the applicant was not true. The Sofia District Court had given ample reasons on this point and the Sofia City Court had specifically addressed the question of Mr M. D.’s being a “credit millionaire” on account of his participation in another company.", "49. The Government finally laid emphasis on the fact that the remedy used by Mr M. D. – a criminal complaint coupled with a claim for damages – was completely ordinary and available to any individual whose reputation had come under attack. It was also material that the courts had waived the applicant’s criminal liability and had imposed only an administrative punishment. The amount of damages awarded to Mr M. D. had also not been unreasonable. 50.", "The applicant said that in a democratic society it was not necessary to resort to penal sanctions to curtail freedom of expression. Criminal law had an unduly chilling effect on freedom of expression. This was of special relevance for journalists, who did not have their own sources but relied on others to provide them with information. Criminal liability was also problematic because journalists worked in teams, whereas penal sanctions were individual. 51.", "In the applicant’s view, the requirement for defendants in defamation proceedings to prove that their statements were true was disproportionate. In such proceedings the courts were only concerned with the truth of the impugned statements and did not examine the reputation of those allegedly defamed. This reputation was unwarrantedly assumed to be good. This led to situations of abuse of rights and led to de facto no‑fault liability. 52.", "The applicant further argued that the courts had not taken into account the degree to which the impugned allegations had actually impacted on Mr M. D.’s reputation and had erred in holding that he had been defamed because of a simple mistake in the names of the companies through which he had featured on the bad debtors’ list. The impugned publication had not materially influenced Mr M.D.’s standing in society. Its purpose had rather been to inform the public about the candidates for the post of deputy Minister of Finance. The availability of public information on this topic was more important than the fact that Mr M. D. was featured on the list through one rather than another company. The applicant’s error in that regard had been induced by the Members of Parliament who had tipped her off.", "The finding that the applicant’s statement had not corresponded to the truth had been erroneous, as the only part which had not been true had been the name of the company owned by Mr M. D., not the fact that he was a “credit millionaire”. 53. The Government’s statement that the applicant had not consulted the list compiled by the Bulgarian National Bank conflicted with the findings of the Sofia City Court, which had said that Mr M. D. had featured on that list through Vitaplant OOD, a statement proved by the applicant. The Sofia City Court’s ruling that the applicant was bound to check her information in the register of companies was excessive. No such obligation existed and, moreover, such a verification would have been unfeasible, in view of the amount of time it would have consumed.", "The domestic courts had erred in not calling the Members of Parliament to whom the applicant had spoken. Their names had become apparent from the testimony of Ms N., the other journalist present in the National Assembly lobby on 3 August 2001. These MPs, one of whom was a business associate of Mr M. D., had in fact tricked the applicant into providing inaccurate information, with the aim of procuring a judgment saying that Mr M. D. was not a “credit millionaire” and thus concealing his involvement in Vitaplant OOD. The Sofia City Court had gathered evidence on Mr M. D.’s participation in Vitaplant OOD and had made findings in that respect. Mr M. D. had not really suffered any prejudice to his reputation because he had, through that company, taken out loans and failed to repay them, as evidenced by certain contracts which he had himself produced in court.", "B. The Court’s assessment 1. Admissibility 54. 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. 2. Merits 55. It is not in dispute between the parties that the applicant’s conviction constituted an interference by a public authority with her right to freedom of expression. The Court sees no reason to hold otherwise.", "Such interference will breach the Convention if it fails to satisfy the criteria set out in the second paragraph of Article 10. The Court must therefore determine whether it was “prescribed by law”, pursued one or more of the legitimate aims listed in that paragraph and was “necessary in a democratic society” to achieve that aim or aims. 56. The Court finds, and this was not disputed, that the interference was “prescribed by law”, the applicant’s conviction having been based on Articles 147 and 148 of the Criminal Code (see paragraphs 26, 32 and 33 above). The Court further finds that the interference pursued one of the legitimate aims set out in paragraph 2 of Article 10: the protection of “the reputation or rights of others”, namely of Mr M. D. 57.", "It remains to be established whether the interference was “necessary in a democratic society”. In this respect, the following general principles emerge from the Court’s case‑law (see, as a recent authority, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, §§ 68‑70 and 76 in limine, ECHR 2004‑XI, with further references): (a) The necessary‑in‑a‑democratic‑society test requires the Court to determine whether the interference complained of corresponded to a pressing social need. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by independent courts. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10.", "(b) The Court’s task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken in accordance with their margin of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole, including the content of the comments held against the applicants and the context in which they made them. (c) In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were relevant and sufficient and whether the measure taken was proportionate to the legitimate aims pursued. In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10. (d) In assessing the proportionality of an interference, the Court has to make a distinction between statements of fact and value judgments in that, while the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof.", "The classification of a statement as one of fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. 58. The Court notes that in the instant case the applicant, a newspaper journalist, was convicted and punished for having written an article (see paragraphs 5, 12 and 14 above). The case therefore concerns in particular the freedom of the press. The Court has emphasised on numerous occasions the essential role played by the press in a democratic society.", "It has pointed out that, although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest, and that not only does the press have the task of imparting such information and ideas, the public also has a right to receive them. The national authorities’ margin of appreciation is thus circumscribed by the interest of a democratic society in enabling the press to play its vital role of “public watchdog” (see, as a recent authority, Radio France and Others v. France, no. 53984/00, § 33, ECHR 2004‑II, with further references). 59. The Court also notes that the article in issue in the present case was reporting facts relating to the candidacy of a well‑known politician (see paragraph 8 above) for the position of deputy Minister of Finance.", "The matter was apparently considered serious enough to warrant a meeting of the ruling coalition’s parliamentary group (see paragraph 12 above). There can be no doubt that this was a question of considerable public interest and that the broadcasting of information about it formed an integral part of the task allotted to the media in a democratic society (ibid., § 34). 60. It should further be observed that, being a politician and a candidate for public office, Mr M. D. had inevitably and knowingly laid himself open to public scrutiny (see Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 26, § 42; and Oberschlick v. Austria (no.", "1), judgment of 23 May 1991, Series A no. 204, p. 26, § 59), in particular as regards issues touching on his financial integrity. 61. Article 10 of the Convention does not, however, guarantee wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern and of political figures. Under the terms of paragraph 2 of the Article the exercise of this freedom carries with it “duties and responsibilities”, which also apply to the press.", "These “duties and responsibilities” are liable to assume significance when, as in the present case, there is a question of attacking the reputation of named individuals and undermining the “rights of others”. By reason of the “duties and responsibilities” inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see, mutatis mutandis, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999‑III). 62. The statement that Mr M. D. featured on the list compiled by the Bulgarian National Bank through his ownership of three specifically named companies was clearly an allegation of fact and as such susceptible to proof (see, among many other authorities, McVicar, § 83; Steel and Morris, §§ 90 in fine and 94, both cited above; and Panev v. Bulgaria, no.", "35125/97, Commission decision of 3 December 1997, unreported). Unlike the remainder of the article, that statement was phrased in a way which left no doubt that it emanated from the applicant, not from the Members of Parliament who had tipped her off on doubts relating to Mr M. D.’s candidacy for deputy Minister of Finance. It was couched in terms which suggested that the information provided by the applicant was directly based on the official list drawn up by the Bulgarian National Bank, not on other publications, such as that of Trud (see paragraph 14 above). It cannot therefore be said that the applicant was reporting what others had said and had simply omitted to distance herself from it (see, mutatis mutandis, Radio France and Others, cited above, § 38; Thoma v. Luxembourg, no. 38432/97, §§ 63 and 64, ECHR 2001‑III; and Pedersen and Baadsgaard, cited above, § 77).", "Having adopted the offending allegations as her own, she was liable for their truthfulness. 63. As already noted (see paragraph 41 above), in the ensuing proceedings the applicant was allowed to adduce evidence of the truth of her averment (see, by contrast, Colombani and Others v. France, no. 51279/99, § 66, ECHR 2002‑V). In view of the nature of that averment, that task was not unreasonable or impossible (see, by contrast, Thorgeir Thorgeirson, cited above, p. 28, § 65 in fine).", "However, she was only able to prove that Mr M. D. featured on the Bulgarian National Bank’s list through the company Vitaplant OOD, not through the companies Maxcom Holding, FBK Maxcom and Maxcom OOD, cited in the article (see paragraphs 14, 25, 29 and 30 above). The Sofia City Court held that this did not render her statement non‑defamatory, because it was one thing to allege that an individual was a “credit millionaire” because of his indirect involvement in one company and quite another to say that he fully owned three companies which appeared on the bad debtors’ list. The Court sees no reason to question that finding. 64. The Court must further examine whether the research done by the applicant before the publication of the untrue statement of fact was in good faith and complied with the ordinary journalistic obligation to verify a factual allegation.", "The Court’s case‑law is clear on the point that the more serious the allegation is, the more solid the factual basis should be (see Pedersen and Baadsgaard, cited above, § 78 in fine). The applicant’s allegation appears quite serious (see, mutatis mutandis, Thoma, cited above, § 57) and therefore required substantial justification, especially seeing that it was made in a popular and high‑circulation national daily newspaper (see paragraphs 5 and 18 above). The Court notes on this point that the domestic courts unequivocally found that the applicant had not sufficiently verified her information prior to its publication. These courts established that in her desire to get the news out quickly she had failed to consult trustworthy sources, preferring to rely on sources which could not, according to best journalistic practice, be deemed dependable (see paragraphs 26 and 30 above). The Court sees no reason to reach a different conclusion.", "65. 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, § 84; and Pedersen and Baadsgaard, § 78, both cited above). The Court notes on this point that the preface of Trud’s publication clearly did not amount to an official report. The applicant was accordingly not entitled to rely on it unconditionally, (see, by contrast, Bladet Tromsø and Stensaas, §§ 66, 68, 71 and 72; and Colombani and Others, § 65, both cited above).", "Nor could she unreservedly rely on the informal statements made by two Members of Parliament in the National Assembly lobby. That conclusion does not change even if the situation is examined as it presented itself to the applicant at the material time rather than with the benefit of hindsight (see Bladet Tromsø and Stensaas, cited above, §§ 66 in fine and 72). The domestic courts, which specifically dealt with this point, found that, even if the “time and means available to a journalist in a daily newspaper for a proper enquiry concerning a current issue [we]re greatly limited”, the applicant had still not adequately verified the facts from reliable sources and had thus failed to comply with the customary rules of investigative journalism, publishing facts which she knew or ought to have known were dubious (see paragraphs 26 and 30 above). The Court sees no reason to hold otherwise. Nor does it consider that the applicant was dispensed on other grounds from properly verifying her information.", "66. It is true that shortly after its publication the offending article was amended because of the complaint by Mr M. D. (see paragraph 17 above). However, the amendment did not detract from the fact that the article’s original version had been made known to a considerable number of readers (see, mutatis mutandis, Radio France and Others, cited above, §§ 35 and 38 in fine). It is also true that two days later the newspaper published Mr M. D.’s response (see paragraph 19 above). However, this response, while indicative of the newspaper’s willingness to rectify the situation, did not fully wipe out the damage inflicted on Mr M. D.’s reputation.", "In any event, these developments, which took place only after the newspaper and the applicant had been made aware of the defamatory nature of the allegations, do not show that the applicant was concerned with verifying their truth or reliability to a high standard before writing her article (see McVicar, cited above, § 86). 67. In assessing the necessity of the interference, it is also important to examine the way in which the domestic courts dealt with the case, and in particular whether they applied standards which were in conformity with the principles embodied in Article 10 of the Convention (see paragraph 57 above). A perusal of the judgments by the Sofia District Court and the Sofia City Court (see paragraphs 26 and 30 above) reveals that they fully recognised that the present case involved a conflict between the right to impart information and protection of the reputation or rights of others, a conflict they resolved by weighing the relevant considerations. 68.", "Having regard to the foregoing, the Court is satisfied that the reasons adduced by the national courts for convicting the applicant were relevant and sufficient within the meaning of its case‑law. In this connection, the Court observes that it is unable to follow the applicant’s argument that the very use of criminal‑law sanctions in defamation cases is in violation of Article 10. In view of the margin of appreciation left to Contracting States by that provision, a criminal measure as a response to defamation cannot, as such, be considered disproportionate to the aim pursued (see Radio France and Others, cited above, § 40; and Lindon, Otchakovsky‑Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 59, ECHR 2007‑...). Nor is it contrary to the Convention to require the defendant to prove, to a reasonable standard, that her allegations were substantially true (see paragraph 39 above).", "It should also be observed that the proceedings were instituted on the initiative of Mr M. D., not by a State authority (see, by contrast, Raichinov v. Bulgaria, no. 47579/99, § 50 in fine, 20 April 2006), and that, though they started as criminal, they ended with a mere administrative punishment (see paragraphs 26 and 34 above). 69. The Court must finally ensure itself that the penalty to which the applicant was subjected did not upset the balance between her freedom of expression and the need to protect Mr M. D.’s reputation (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 111, ECHR 2004‑XI).", "It considers that the sanction imposed on the applicant – an administrative fine of BGN 500[1], plus an order to pay Mr M. D. compensation amounting to BGN 2,000[2] and to reimburse his costs (BGN 550[3]) – does not, in the specific circumstances of the case, appear excessive. The Court attaches particular weight to the fact that, as already noted, after convicting the applicant, the Sofia District Court waived her criminal liability and imposed an administrative punishment, opted for the minimum fine possible, taking into account the applicant’s earnings and certain other mitigating circumstances, and refrained from ordering the applicant’s occupational disqualification (see paragraphs 26 and 34 above and compare and contrast Cumpǎnǎ and Mazǎre, cited above, §§ 37, 112, 113 in fine and 118). It also awarded only one fifth of the damages sought by Mr M. D. and gave cogent reasons for its ruling on this point (see paragraphs 22 and 26 above), in line with this Court’s case‑law that an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered (see Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 316‑B, pp. 75‑76, § 49; and Steel and Morris, cited above, § 96).", "The fact that the court ordered the applicant to pay Mr M. D.’s costs, which were not unreasonably high, was not disproportionate either (see McVicar, cited above, § 81). 70. In sum, in view of the reasons adduced by the national courts for convicting the applicant and of the relative lenience of the punishment imposed on her, the Court is satisfied that the authorities did not overstep their margin of appreciation. 71. There has therefore been no violation of Article 10 of the Convention.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention; 3. Holds that there has been no violation of Article 10 of the Convention. Done in English, and notified in writing on 14 February 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Claudia WesterdiekPeer LorenzenRegistrarPresident [1]. Equivalent to 255.65 euros [2]. Equivalent to 1022.58 euros [3]. Equivalent to 281.21 euros" ]

[ "FIRST SECTION CASE OF MANUCHARYAN v. ARMENIA (Application no. 35688/11) JUDGMENT STRASBOURG 24 November 2016 FINAL 24/02/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Manucharyan v. Armenia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Mirjana Lazarova Trajkovska, President,Kristina Pardalos,Linos-Alexandre Sicilianos,Aleš Pejchal,Robert Spano,Armen Harutyunyan,Tim Eicke, judges,and Abel Campos, Section Registrar, Having deliberated in private on 3 November 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "35688/11) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Mr Spartak Manucharyan (“the applicant”), on 31 May 2011. 2. The applicant was represented by Ms T. Matinyan, a lawyer practising in Vanadzor. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia to the European Court of Human Rights. 3.", "The applicant alleged, in particular, that he had been denied a fair trial as his conviction had been based on untested witness evidence. 4. On 11 July 2013 the complaint concerning the applicant’s inability to obtain the attendance and examination of a witness against him was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1976 and is currently detained at Nubarashen Prison. 6. On 1 July 2009 criminal proceedings were instituted on account of the murder of K.S. who had been shot dead at 1.30 a.m. that day in the town of Alaverdi. 7.", "The applicant presented himself to the police later that day, surrendered a gun and confessed to the murder. 8. The applicant was charged the same day with murder and illegal possession of firearms. 9. On the same date the police interviewed K.M., who was K.S.’s girlfriend and had been present at the scene of the murder.", "She stated that it had been the applicant, her neighbour, who, after yelling and swearing, had started to shoot at K.S.’s car moments after she had got out of it. 10. On 3 July 2009 the applicant was questioned. He denied the charges and refused to testify. 11.", "When interviewed, S.S., K.S.’s sister, stated that she had been aware of some problems between her brother and a friend of the applicant. According to her statement, the applicant had once called to find out K.S.’s whereabouts. She had then informed K.S. about this and he had become anxious. 12.", "K.M.’s parents, S.M. and A.M., stated during their interviews that on the day of the murder they had heard gunshots and that shortly after K.M. had run into their house in tears, saying that the applicant had killed K.S. right in front of her. 13.", "On 14 January 2010 the applicant’s brother, V.M., was killed. 14. At an additional questioning on 9 March 2010, the applicant stated that he had confessed to the murder to cover up for his brother, who had a newborn baby and took care of their parents. The applicant stated that there was no longer any need to cover up for V.M. because he was dead.", "The applicant’s alibi was that on the day of the murder he had visited his father’s friend V.J. at around 10.30 p.m. and had stayed in his house until around 2.30 a.m. 15. On 12 March 2010 V.J. was interviewed and denied that the applicant had been in his house until that late. He stated, in particular, that the applicant had indeed come to his house at around 10 p.m. but had only stayed for about an hour or an hour and a half.", "At around 11.30 p.m. V.M. had come and told the applicant that they needed to go and see someone and they had left. 16. At a formal confrontation between the applicant and V.J. the latter reiterated his previous statement that the applicant had come to his house at around 10 p.m. and had stayed there for no more than two hours.", "The applicant did not make any statement. 17. On 27 April 2010 the bill of indictment was finalised and the case was referred to the Lori Regional Court for trial. The prosecution relied on the following evidence: statements from S.S., K.M., S.M., A.M. and V.J., the record of the formal confrontation between the applicant and V.J., the results of forensic examinations, including a biochemical examination which had shown the presence of gunshot residue on the clothes worn by the applicant on the day of the murder, and the records of various investigative actions. 18.", "By a decision of 13 May 2010 the Regional Court scheduled the first hearing in the applicant’s case to take place on 21 May 2010. 19. By a letter of 14 May 2010 the Regional Court summoned K.M. to appear at the hearing of 21 May 2010. The summons was returned to the Regional Court.", "20. The Regional Court summoned K.M., S.M. and V.J. to a rescheduled hearing on 17 June 2010. 21.", "On 17 June 2010 the Regional Court held a hearing at which the duly summoned K.M., S.M. and V.J. failed to appear. The Regional Court made a decision to compel the witnesses to attend a rescheduled hearing on 29 June 2010. The enforcement of the decision was assigned to the police.", "22. On 29 June 2010 the police sent a letter to the Regional Court informing it that, inter alia, K.M. was absent from her place of residence. 23. On the same date the Regional Court held a hearing and, stating that its decision to compel the witnesses, including K.M., had remained unenforced, it decided to order them to appear at the next hearing, to be held on 22 July 2010.", "24. The Regional Court thereafter held at least three more hearings - on 7 September, and 21 and 22 October 2010, each time making decisions to order the absent witnesses, including K.M., to attend. According to certificates delivered by the police on 20 and 25 October 2010, K.M. was absent from her place of residence when the police visited. The certificate of 20 October 2010 stated that S.M.", "told the police that her daughter was abroad. 25. The Regional Court eventually examined the applicant’s case in K.M.’s absence. 26. On 4 November 2010 the Regional Court found the applicant guilty as charged and sentenced him to thirteen years’ imprisonment.", "In doing so, it stated, in particular, the following: “Examination and evaluation of the evidence: On 1 July 2009 ... [the applicant] made a confession ... and, having surrendered a gun, stated that he had shot at [K.S.’s] car that night ... In the course of the investigation [the applicant] did not accept the charges against him stating that his deceased brother [V.M.] had killed [K.S. ]; he had been in ... [V.J.’s] house ... At the trial [the applicant] pleaded not guilty ... The crime committed by [the applicant] is proven by the following evidence collected in the case: The statement of the victim’s legal heir, the witness S.S. ... ... the pre-trial statement of the witness K.M.", "... ... the pre-trial statements of the witnesses S.M. and A.M. ... ... the pre-trial statement of the witness V.J. by which he entirely denied [the applicant’s] statement that at the time of the murder [the applicant] had been in his house. [V.J.] maintained his statement during the confrontation with [the applicant] ... ... the record of the examination of the scene of the incident ... ... the record of the examination of the body ... ... the record of the examination of the ... car ... ... the record of the seizure of [the applicant’s] clothes ... ... the record of the photo line-up ... according to which K.M.", "had identified [the applicant] ... ... the record of ... the confession and surrender of the gun ... The conclusion of the forensic medical examination [concerning K.S.’s injuries] ... [Other forensic evidence] The conclusion of the biochemical forensic examination ... that gunshot residue was discovered on [the applicant’s] clothes worn on the day of the incident. [Material evidence] ˮ 27. The applicant lodged an appeal, complaining, inter alia, that K.M., the sole eyewitness to the incident and whose pre-trial statement had been the only evidence directly incriminating him in the offence, had not been examined in court. 28.", "On 20 December 2010 the Criminal Court of Appeal took over the case and scheduled the first hearing in the case for 11 January 2011. 29. On 11 January 2011 the applicant’s lawyer applied to the Court of Appeal, seeking, inter alia, to have K.M summoned. The Court of Appeal granted the application as far as the question of K.M.’s presence was concerned and summoned her to appear at the next hearing. 30.", "K.M. did not appear before the Court of Appeal. The applicant stated that he then applied to have K.M.’s statements declared inadmissible. According to the applicant, the Court of Appeal decided to address the application during deliberations but then failed to do so. 31.", "On 26 January 2011 the Court of Appeal upheld the applicant’s conviction, relying on the same body of evidence as the Regional Court. The judgment did not address the issue of K.M.’s non-attendance. 32. On 22 February 2011 the applicant lodged an appeal on points of law, complaining, inter alia, about the lack of an examination of the witnesses against him, both in the Regional Court and the Court of Appeal. 33.", "On 12 April 2011 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit. II. RELEVANT DOMESTIC LAW 34. According to Article 86 (§§ 3 and 4) of the Code of Criminal Procedure (hereafter “the CCP”), a witness is obliged to appear when summoned by an authority dealing with a case. The failure of a witness to comply with his obligations results in the imposition of sanctions prescribed by law.", "35. Article 153 § 2 of the CCP provides that a witness may be compelled to appear by a reasoned decision of the court and must inform the summoning authority of any valid reasons for not appearing within a set time-limit. 36. According to Article 332 § 1 of the CCP, if a summoned witness fails to appear, the court, after hearing the opinions of the parties, decides whether to continue or adjourn the trial proceedings. The proceedings may be continued if the failure of any such person to appear does not impede the thorough, complete and objective examination of the circumstances of the case.", "37. Article 342 § 1 of the CCP states that the reading out at the trial of witness statements made during initial enquiries, the investigation or at a previous court hearing is permissible if the witness is absent from the court hearing for reasons which rule out the possibility of his appearing in court, if there is a substantial contradiction between those statements and the statements made by the witness in court, and in other cases prescribed by the Code. 38. Article 426.1 § 1 states that only final acts are subject to review on the grounds of newly discovered or new circumstances. A judicial act of a court of first instance is reviewed on those grounds by the appeal court while the judicial acts of an appeal court and the Court of Cassation are reviewed by the Court of Cassation (Article 426.1 § 2).", "39. Article 426.4, which refers to re-opening of judicial proceedings, reads, in so far as relevant, as follows: “1. Judicial decisions shall be reviewed on the basis of new circumstances in the following cases: ... 2) where a violation of a person’s right guaranteed by an international agreement to which the Republic of Armenia is a party has been established by a final judgment or decision of an international court of which the Republic of Armenia is a member. ... 3. An application seeking review of a judicial decision based on new circumstances may be lodged within a period of three months from the date on which the applicant learnt or ought to have learnt about their existence.", "4. The running of the three-month time-limit for the purposes of the second point of the first paragraph of this provision starts from the date on which the [relevant] international court ... has delivered, in accordance with its rules of procedure, its final judgment or decision [in the applicant’s case].ˮ THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION 40. The applicant complained that he had been deprived of the opportunity to examine the witness K.M. at any time during the criminal proceedings against him, in breach of his right to a fair trial as provided in Article 6 § 1 and 3(d) of the Convention, which reads as follows: “1.", "In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ... ... ... 3. Everyone charged with a criminal offence has the following minimum rights: (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” 41. The Government contested that argument. A. Admissibility 42. 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 43.", "The applicant submitted that his conviction had been based to a decisive extent on the pre-trial statement of K.M., the only eyewitness to the murder, whom he had had no opportunity to examine at any stage of the proceedings. The investigative authority had not sought to hold a formal confrontation between him and K.M. while the courts had not made any serious attempt to secure the latter’s attendance at the trial. At no time during the proceedings had the applicant been able to challenge K.M.’s statement, which had been the only directly incriminating evidence against him. 44.", "The Government maintained that despite all their efforts the authorities had been unable to secure K.M.’s presence at the applicant’s trial. The trial court had relied on K.M.’s pre-trial statement because it had been corroborated by other evidence, which the applicant had been able to challenge. The applicant, who had been represented throughout the proceedings, had had ample opportunity to present his own evidence and challenge the statements of the other witnesses. 2. The Court’s assessment (a) General principles 45.", "The Court reiterates that the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of that provision (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011). It will therefore consider the applicant’s complaint under both provisions taken together (see Windisch v. Austria, 27 September 1990, § 23, Series A no. 186). 46.", "The Court further reiterates that all the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to that principle, but they must not infringe the rights of the defence. As a general rule, Article 6 §§ 1 and 3 (d) require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage (see Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 707, 25 July 2013). 47.", "In Al-Khawaja and Tahery (cited above, §§ 119‑147), the Grand Chamber clarified the principles to be applied when a witness does not attend a public trial. Those principles may be summarised as follows: (i) the Court should first examine the preliminary question of whether there was a good reason for admitting the evidence of an absent witness, keeping in mind that witnesses should as a general rule give evidence during the trial and that all reasonable efforts should be made to secure their attendance; (ii) typical reasons for non-attendance are, as in the case of Al‑Khawaja and Tahery (cited above), the death of the witness or the fear of retaliation. There are, however, other legitimate reasons why a witness may not attend a trial; (iii) when a witness has not been examined at any prior stage of the proceedings, allowing the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort; (iv) the admission as evidence of the statements of absent witnesses results in a potential disadvantage for the defendant, who, in principle, in a criminal trial should have an effective opportunity to challenge the evidence against him. In particular, he should be able to test the truthfulness and reliability of the evidence given by the witnesses, by having them orally examined in his presence, either at the time the witness was making the statement or at some later stage of the proceedings; (v) according to the “sole or decisive rule”, if the conviction of a defendant is solely or mainly based on evidence provided by witnesses whom the accused is unable to question at any stage of the proceedings, his defence rights are unduly restricted; (vi) in this context, the word “decisive” should be narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supportive evidence: the stronger the other incriminating evidence, the less likely that the evidence of the absent witness will be treated as decisive; (vii) however, as Article 6 § 3 of the Convention should be interpreted in the context of an overall examination of the fairness of the proceedings, the sole or decisive rule should not be applied in an inflexible manner; (viii) in particular, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1.", "At the same time, where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance to the case. 48.", "Those principles have been further clarified in the case of Schatschaschwili (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 111 – 131, ECHR 2015) in which the Grand Chamber confirmed that the absence of good reasons for the non-attendance of a witness could not, of itself, be conclusive of the lack of fairness of a trial, although it remained a very important factor to be weighed in the balance when assessing the overall fairness, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (d). Furthermore, given that its concern was to ascertain whether the proceedings as a whole were fair, the Court had not only to review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or the decisive basis for the applicant’s conviction, but also in cases where it found it unclear whether the evidence in question was sole or decisive but nevertheless was satisfied that it carried significant weight and its admission might have handicapped the defence. The extent of the counterbalancing factors necessary in order for a trial to be considered fair depends on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors would have to carry in order for the proceedings as a whole to be considered fair (see Seton v. the United Kingdom, no.", "55287/10, § 59, 31 March 2016). (b) Application of those principles to the present case (i) Whether there was good reason for the non-attendance of the witnesses at trial 49. The Court notes that the Regional Court and the Court of Appeal examined the applicant’s case in the absence of the witness K.M., who was the only eyewitness to the murder and had made a statement directly incriminating the applicant when interviewed by the police on the same day (see paragraph 9 above). The Regional Court rescheduled several hearings in an attempt to secure K.M.’s presence at the applicant’s trial, and also sought police assistance to that end (see paragraphs 20, 21, 23 and 24 above). The Court of Appeal also, in its turn, attempted to secure K.M.’s presence at the proceedings before it (see paragraph 29 above).", "The Court further notes that the police repeatedly failed to enforce the Regional Court’s orders to compel K.M. to attend the trial, but she, according to the police, could not be located and was believed to have left the country (see paragraphs 22 and 24 above). 50. The Court reiterates in that connection that it has generally adopted a robust approach in determining whether a domestic court had good factual or legal grounds for failing to secure a witness’s attendance at trial. It has held that the absence of a witness from the country where the proceedings were being conducted was not in itself sufficient reason to justify his or her absence at trial (see Seton, cited above, § 61).", "Notably, where a witness cannot be located, the Court has held that the authorities must “actively search for the witness” and do “everything which was reasonable to secure the presence of the witness” (see Lučić v. Croatia, no. 5699/11, § 79, 27 February 2014). 51. In the present case the Court is not persuaded that all reasonable efforts can be said to have been made to secure the attendance of the witness K.M. at the applicant’s trial.", "It is true that the Regional Court, as mentioned above, did attempt to secure K.M.’s presence in the proceedings before it by rescheduling the hearings several times and seeking police assistance to compel her to attend. However, those measures proved to be futile in view of the constant failure by the police to execute the court’s orders. In a situation where the police merely paid several visits to K.M.’s home and, on being informed that she was abroad, neither checked the veracity of that information nor attempted to locate her to enable the court to possibly seek international legal assistance, the Court cannot consider that the authorities “actively searched for the witness” or did “everything which was reasonable to secure the presence of the witness”. 52. However, the lack of a good reason for K.M.’s non-attendance at the applicant’s trial is not the end of the matter.", "That is a consideration which is not of itself conclusive of the lack of fairness of a criminal trial, although it constitutes a very important factor to be weighed in the overall balance, together with other, relevant considerations (see Schatschaschwili, cited above, § 113). (ii) Whether the evidence of the absent witness was “sole or decisive” 53. The Court must further examine whether the evidence of the absent witness K.M. was the sole or decisive basis for the applicant’s conviction. 54.", "The Court reiterates that “sole” evidence is to be understood as the only evidence against the accused (see Al-Khawaja and Tahery, cited above, § 131). “Decisive” evidence should be narrowly interpreted as indicating evidence of such significance or importance as likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supporting evidence: the stronger the corroborative evidence, the less likely that the evidence of the absent witness will be treated as decisive (ibid., § 131). 55. The Court observes that the judgments of the Regional Court and the Court of Appeal admitted K.M.’s pre-trial statement as evidence substantiating the applicant’s guilt, without making any evaluation of the probative value of that evidence.", "The Court must therefore make its own assessment of the weight of the evidence given by the absent witness, having regard to the other incriminating evidence available (see Schatschaschwili, cited above, § 143; and Poletan and Azirovik v. the former Yugoslav Republic of Macedonia, no. 26711/07, 32786/10 and 34278/10, § 88, 12 May 2016). 56. As already noted, K.M. was the only eyewitness to the offence.", "She knew the applicant, who was her neighbour, and had pointed him out when interviewed by the police (see paragraph 9 above). It is not in doubt that K.M.’s statement was not the only item of evidence on which the applicant’s conviction was based. However, her pre-trial statement was the only piece of direct evidence substantiating the allegation that it had been the applicant who had opened fire at K.S.’s car. In that sense K.M. can be considered to have been the key prosecution witness in the applicant’s case.", "As for the rest of the evidence, S.S.’s statement merely proved that K.S. and the applicant had had strained relations while the statements of K.M.’s parents, A.M. and S.M., were based on her account of the events (see paragraphs 12 and 11 above). It is true that V.J.’s statement, confirmed by him during the formal confrontation, contradicted the applicant’s defence statement that he had been in V.J.’s house when the offence had taken place (see paragraph 15 above). However, V.J.’s evidence taken alone did not prove that it had been the applicant rather than his brother who had shot at the car, as the applicant stated after he withdrew his confession. The Government was unable to demonstrate that the remaining evidence, including the forensic evidence, was enough to show conclusively that the applicant rather than somebody else, such as his brother, had committed the offence.", "For instance, it does not arise from the decisions taken by the domestic courts that the forensic evidence of gunshot residue on the clothes the applicant wore on the day of the incident proved that he had been the author of the shots. In view of the foregoing, the Court considers that the evidence of the absent witness K.M. was decisive for the applicant’s conviction. (iii) Whether there were sufficient “counterbalancing factors” 57. Lastly, the Court must determine whether there were sufficient counterbalancing factors in place, including measures that permitted a fair and proper assessment of the reliability of the evidence of the absent witnesses to take place.", "The following elements are relevant in this context: the trial court’s approach to the untested evidence, the availability and strength of further incriminating evidence, and the procedural measures taken to compensate for the lack of opportunity to cross-examine directly the witnesses at the trial (see Schatschaschwili, cited above, §§ 125-131). 58. The Court notes that the Regional Court’s judgment does not contain any analysis of the evidence put before it, much less any indication that it was aware of the reduced evidentiary value of the untested witness statements, including that of K.M. All the evidence was simply listed as proof that the applicant had committed the offence, without any assessment of the credibility of the untested witness evidence (see paragraph 26 above). The Court therefore finds that the trial court failed to examine the reliability of K.M.’s statement in a careful manner.", "59. The Court further notes that, as mentioned above, the Regional Court did have additional incriminating evidence against the applicant (see paragraph 56 above). However, as already noted, the additional evidence, as opposed to K.M.’s statement, did not by itself undermine the applicant’s defence that it had been his deceased brother who had committed the murder. 60. Lastly, the Court notes that no procedural measures were taken to compensate for the applicant’s lack of opportunity to cross-examine K.M.", "at his trial. The applicant had no opportunity to examine her at any stage of the proceedings. Furthermore, the applicant requested the Court of Appeal to declare K.M.’s evidence inadmissible but his request was not addressed in any manner (see paragraphs 30 and 31 above). 61. The foregoing considerations are sufficient to enable the Court to conclude that the applicant was unreasonably restricted in his right to examine the witness K.M.", "whose testimony played a decisive role in securing his conviction. 62. Accordingly, there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 63.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 64. The applicant claimed 5,000 euros (EUR) in respect of pecuniary damage, including lost profit and expenses borne by his family to visit him in prison. He further claimed EUR 15,000 in respect of non-pecuniary damage. 65.", "The Government considered that there was no causal link between the pecuniary and non-pecuniary damage suffered by the applicant and the alleged violation of Article 6 of the Convention. 66. The Court does not discern any causal link between the violation found and the pecuniary damage alleged and it therefore rejects this claim. Making its assessment on an equitable basis, and having regard to the circumstances of the case, the Court awards the applicant EUR 2,400 in respect of non-pecuniary damage. 67.", "In addition, the Court considers it necessary to point out that a judgment in which it 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, if any, 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 Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000‑VIII; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 487, ECHR 2004‑VII; and Lungoci v. Romania, no. 62710/00, § 55, 26 January 2006). In the case of a violation of Article 6 of the Convention, the applicant should as far as possible be put in the position he would have been in had the requirements of that provision not been disregarded (see, mutatis mutandis, Sejdovic v. Italy [GC], no.", "56581/00, § 127, ECHR 2006‑II, and Yanakiev v. Bulgaria, no. 40476/98, § 89, 10 August 2006). 68. The Court notes in this connection that Articles 426.1 and 426.4 of the Code of Criminal Procedure allow the reopening of the domestic proceedings if the Court has found a violation of the Convention or its Protocols (see paragraphs 38 and 39 above). As the Court has already held on previous occasions, in cases such as the present one, the most appropriate form of redress would, as a rule, be to reopen the proceedings in due course and re-examine the case in keeping with all the requirements of a fair trial (see Gabrielyan v. Armenia, no.", "8088/05, § 104, 10 April 2012). B. Costs and expenses 69. The applicant also claimed EUR 2,000 for legal costs incurred before the Court. 70.", "The Government asked that the claim under this head be rejected. 71. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that the applicant failed to submit any documentary proof to substantiate his claims for costs and expenses. The Court therefore rejects the claims under this head.", "C. Default interest 72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 read in conjunction with Article 6 § 3 (d) 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 2,400 (two thousand four hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 24 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposMirjana Lazarova TrajkovskaRegistrarPresident" ]

[ "FOURTH SECTION CASE OF IOANNOU v. TURKEY (Application no. 18364/91) JUDGMENT STRASBOURG 27 January 2009 FINAL 06/07/2009 This judgment may be subject to editorial revision. In the case of Ioannou v. Turkey, 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,Işıl Karakaş, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 6 January 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 18364/91) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Cypriot national, Mr Andreas Ioannou (“the applicant”), on 7 June 1991.", "2. The applicant, who had been granted legal aid, was represented by Mr K. Chrysostomides, a lawyer practising in Nicosia. The Turkish Government (“the Government”) were represented by their Agent, Mr Z.M. Necatigil. 3.", "The applicant alleged that the Turkish occupation of the northern part of Cyprus had deprived him of his home and properties. 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. By a decision of 28 March 2000 the Court declared the application admissible. 6. The applicant and the Government each filed observations on the merits (Rule 59 § 1). In addition, third-party comments were received from the Government of Cyprus, which had exercised its right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 (b)).", "THE FACTS 7. The applicant was born in 1935 and lives in Nicosia. 8. The applicant was born and grew up in Ayios Amvrosios, a village in the District of Kyrenia. In 1973 he moved his residence to Kyrenia.", "During the military intervention of July 1974, Turkish troops evicted the applicant and his family from their home and forced them to leave Kyrenia and flee to the south. 9. The applicant claimed that he had real properties in northern Cyprus. He produced affirmations of ownership issued by the Department of Lands and Surveys of the Republic of Cyprus, according to which he was the owner of the following properties: (a) Kyrenia, Klepini, Boumbourka, field with trees, sheet/plan 13/33, plot no. 72, area: 2,784 sq.", "m, share: whole; (b) Kyrenia, Ayios Epiktitos, Karamanou Quarter, field with trees, sheet/plan 12/32, plot no. 235, area: 539 sq. m, share: whole; (c) Kyrenia, Ayios Amvrosios, Alakati tou Platymati, field with trees, sheet/plan 13/19, plot no. 220/2, area: 7,078 sq. m, share: whole; (d) Kyrenia, Ayios Amvrosios, Vasilion, field with trees, sheet/plan 13/20, plot no.", "63, area: 3,365 sq. m, share: whole; (e) Kyrenia, Ayios Amvrosios, Vasilion, field with trees, sheet/plan 13/20, plot no. 130, area: 3,301 sq. m, share: whole; (f) Kyrenia, Ayios Amvrosios, Vasilion, field with trees, sheet/plan 13/20, plot no. 151, area: 365 sq.", "m, share: whole; (g) Kyrenia, Ayios Amvrosios, Platanos, garden and cultivated field, sheet/plan 13/22, plot no. 524, area: 55 sq. m, share: whole; (h) Kyrenia, Ayios Amvrosios, Vrysi tou Potamou, freshwater spring, sheet/plan 13/22, plot no. 608/1, share: whole; (i) Kyrenia, Ayios Amvrosios, Mangou, field with trees, sheet/plan 13/31, plot no. 34, area: 3,819 sq.", "m, share: whole; (j) Kyrenia, Pano Kyrenia, house with yard (ground level), No. 7, Demosthenous Street, sheet/plan 12/20, plot no. 34, area: 785 sq. m, share: whole. 10.", "The applicant alleged that the house described under paragraph 9 (j) above had been his permanent residence. He lived there with his wife Sophia Andreou Ioannou (the applicant in application no. 18360/91), his son Michael Michael (the applicant in application no. 18361/91) and his daughter Christina Michael. 11.", "Following the 1974 intervention and the ensuing Turkish military occupation, the applicant was deprived of access to and the use of his property. He participated in various peaceful demonstrations and marches towards his village. On all occasions he was prevented from walking home by the Turkish troops. 12. On 9 December 1990 the applicant made one further attempt to return to his home and property in Kyrenia and Ayios Amvrosios by participating in a convoy of cars of fellow refugees intending to return home.", "13. The applicant and his fellow refugees, who had informed the Commander of the United Nations (UN) forces in Cyprus of their intentions, arrived at the check point in the \"buffer zone\", on the main road which links Nicosia with Ayios Amvrosios and Kyrenia. There, they asked the UN officer on duty to be allowed to return to their homes, property and villages. They requested the same officer to forward their demand to the Turkish military authorities. The officer replied that the latter had refused their request.", "THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS 14. In their further observations of 23 October 2003, the Government raised preliminary objections concerning non-exhaustion of domestic remedies and lack of victim status in the light of the Law on compensation for immovable properties located within the boundaries of the “Turkish Republic of Northern Cyprus” (the “TRNC”). The Court observes that these objections are identical to those raised in the case of Alexandrou v. Turkey (no. 16162/90, §§ 13-14 and 21, ... 2008), and should be dismissed for the same reasons, notably the fact that they had been raised after the application was declared admissible (see also Demades v. Turkey (merits), no.", "16219/90, § 20, 31 July 2003). II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 15. The applicant complained of a violation of his right to peaceful enjoyment of his possessions under Article 1 of Protocol No.", "1. This provision reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 16. The Government disputed this claim.", "A. The arguments of the parties 1. The Government 17. The Government submitted that the applicant had produced no evidence that at the time of the 1974 Turkish intervention he had been the owner of immovable property either in Kyrenia or in Ayios Amvrosios. The documents produced in support of his application had been obtained from the Greek Cypriot Land Authority on 7 November 1992, at the applicant’s request and on the basis of information supplied by him.", "18. Moreover, the applicant had not applied through the proper channels to visit his alleged properties. He had not attempted to enter the northern part of Cyprus at an approved crossing point, and had not been prevented from doing so by Turkish or Turkish Cypriot forces. He had been stopped on the southern side of the buffer zone by UNFICYP, in the vicinity of the Greek Cypriot cease-fire line. The Turkish forces had not been in any way involved in the incident.", "It was clear that the scenario staged by the applicant and others on 9 December 1990 had been contrary to the undertakings of the two sides relating to the status of the UN buffer zone, and had been constituted a violation of that status, so closely maintained by UNFICYP in order to keep the peace on the island. 19. It had been necessary, due to the relocation of populations, to facilitate the re-habilitation of Turkish Cypriot refugees and put abandoned Greek Cypriot properties into better use. Deprivation of and/or extensive control of the use of property had been necessary in the public interest, also because Turkish Cypriots had left their property in the south with the intention of never going back. Moreover, due to the agreed principles of bi-communality and bi-zonality, property rights and reciprocal compensation had to be regulated and the exercise thereof restricted.", "20. In conclusion and in view of the political situation on the island and the separation of the two conflicting communities into two sectors, it would be highly unrealistic to recognise for individual applicants the right of access to property and consequent property rights in isolation of the political situation. Otherwise, the inter-communal negotiation process could be strained to the point of collapse, with the risk of turmoil on the island. 2. The applicant 21.", "The applicant maintained that the evidence which he had submitted was conclusive as to his rights of ownership of the properties at issue. Certainly the old records captured in Kyrenia relating to land registration would confirm his ownership, provided they were produced unaltered by the respondent Government. 22. The applicant submitted that the respondent Government had solely relied upon arguments which the Court had already rejected in the case of Loizidou v. Turkey ((merits) of 18 December 1996, Reports of Judgments and Decisions 1996-VI), which was similar to the present application. What was at issue in the present case was not the freedom of movement across the buffer zone on a particular occasion but the entire framework of acts by which owners of property in northern Cyprus, such as the applicant, had been deprived of their property.", "It was the presence of the Turkish forces in northern Cyprus which had prevented him since July 1974, and not just on 9 December 1990, from having access to his property. 23. The applicant argued that the interference with his property rights could not be justified under Article 1 of Protocol No. 1. The policies of the “TRNC” could not furnish a legitimate aim since the establishment of the “TRNC” was an illegitimate act condemned by the Security Council.", "For the same reason, the interference could not be found to be in accordance with the law and the general principles of international law. Nor had the interference been proportionate. The need to re-house displaced Turkish Cypriots could not justify the complete negation of the applicant’s property rights. This conclusion was reinforced by evidence showing that much of the property taken from Greek Cypriots had been used to house settlers from mainland Turkey. B.", "The third-party intervener’s arguments 24. The Government of Cyprus observed that their Department of Lands and Surveys had provided certificates confirming ownership to those persons who did not have title deeds in their possession but whose title was entered in the District Land Offices registers in the Turkish-occupied area. These certificates were prima facie evidence of their right of property. The “TRNC” authorities were in possession of all the records of the Department of Lands and Surveys relating to the title to properties. It was therefore the duty of the respondent Government to produce them.", "25. The Government of Cyprus further noted that the present case was similar to that of Loizidou ((merits), cited above), where the Court had found that the loss of control of property by displaced persons arose as a consequence of the occupation of the northern part of Cyprus by Turkish troops and the establishment of the “TRNC”, and that the denial of access to property in occupied northern Cyprus constituted a continuing violation of Article 1 of Protocol No. 1. C. The Court’s assessment 26. The Court first notes that the documents submitted by the applicant (see paragraph 9 above) provide prima facie evidence that he had a title of ownership over the properties at issue.", "As the respondent Government failed to produce convincing evidence in rebuttal, the Court considers that the applicant had a “possession” within the meaning of Article 1 of Protocol No. 1. 27. The Court recalls that in the aforementioned Loizidou case ((merits), cited above, §§ 63-64), it reasoned as follows: “63. ... as a consequence of the fact that the applicant has been refused access to the land since 1974, she has effectively lost all control over, as well as all possibilities to use and enjoy, her property.", "The continuous denial of access must therefore be regarded as an interference with her rights under Article 1 of Protocol No. 1. Such an interference cannot, in the exceptional circumstances of the present case to which the applicant and the Cypriot Government have referred, be regarded as either a deprivation of property or a control of use within the meaning of the first and second paragraphs of Article 1 of Protocol No. 1. However, it clearly falls within the meaning of the first sentence of that provision as an interference with the peaceful enjoyment of possessions.", "In this respect the Court observes that hindrance can amount to a violation of the Convention just like a legal impediment. 64. Apart from a passing reference to the doctrine of necessity as a justification for the acts of the ‘TRNC’ and to the fact that property rights were the subject of intercommunal talks, the Turkish Government have not sought to make submissions justifying the above interference with the applicant’s property rights which is imputable to Turkey. It has not, however, been explained how the need to rehouse displaced Turkish Cypriot refugees in the years following the Turkish intervention in the island in 1974 could justify the complete negation of the applicant’s property rights in the form of a total and continuous denial of access and a purported expropriation without compensation. Nor can the fact that property rights were the subject of intercommunal talks involving both communities in Cyprus provide a justification for this situation under the Convention.", "In such circumstances, the Court concludes that there has been and continues to be a breach of Article 1 of Protocol No. 1.” 28. In the case of Cyprus v. Turkey ([GC], no. 25781/94, ECHR 2001‑IV) the Court confirmed the above conclusions (§§ 187 and 189): “187. The Court is persuaded that both its reasoning and its conclusion in the Loizidou judgment (merits) apply with equal force to displaced Greek Cypriots who, like Mrs Loizidou, are unable to have access to their property in northern Cyprus by reason of the restrictions placed by the “TRNC” authorities on their physical access to that property.", "The continuing and total denial of access to their property is a clear interference with the right of the displaced Greek Cypriots to the peaceful enjoyment of possessions within the meaning of the first sentence of Article 1 of Protocol No. 1. ... 189. .. there has been a continuing violation of Article 1 of Protocol No. 1 by virtue of the fact that Greek-Cypriot owners of property in northern Cyprus are being denied access to and control, use and enjoyment of their property as well as any compensation for the interference with their property rights.” 29.", "The Court sees no reason in the instant case to depart from the conclusions which it reached in the Loizidou and Cyprus v. Turkey cases (op. cit. ; see also Demades (merits), cited above, § 46). 30. Accordingly, it concludes that there has been and continues to be a violation of Article 1 of Protocol No.", "1 by virtue of the fact that the applicant is denied access to and control, use and enjoyment of his property as well as any compensation for the interference with his property rights. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 31. The applicant submitted that in 1974 he had had his home in Kyrenia. As he had been unable to return there, he was the victim of a violation of Article 8 of the Convention.", "This provision 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.” 32. The Government disputed this claim 33.", "The applicant submitted that, contrary to the applicant in the Loizidou case, himself, his wife and his daughter and son had had their principal residence in the town of Kyrenia. He claimed to be a displaced person under Article 8 of the Convention and argued that the respondent Government had implicitly admitted the lack of any legal justification for the interference at issue. 34. The Government of Cyprus submitted that where the applicant’s properties constituted the person’s home, there was a violation of Article 8 of the Convention. 35.", "The Court notes that the Government failed to produce any evidence capable of casting doubt upon the applicant’s statement that, at the time of the Turkish invasion, he was regularly residing in Kyrenia and that this house was treated by the applicant and his family as a home. 36. Accordingly, the Court considers that in the circumstances of the present case, the house of the applicant qualified as “home” within the meaning of Article 8 of the Convention at the time when the acts complained of took place. 37. The Court observes that the present case differs from the Loizidou case ((merits), cited above) since, unlike Mrs Loizidou, the applicant actually had a home in Kyrenia.", "38. The Court notes that since 1974 the applicant has been unable to gain access to and to use that home. In this connection the Court recalls that, in its judgment in the case of Cyprus v. Turkey (cited above, §§ 172-175), it concluded that the complete denial of the right of Greek-Cypriot displaced persons to respect for their homes in northern Cyprus since 1974 constituted a continuing violation of Article 8 of the Convention. The Court reasoned as follows: “172. The Court observes that the official policy of the ‘TRNC’ authorities to deny the right of the displaced persons to return to their homes is reinforced by the very tight restrictions operated by the same authorities on visits to the north by Greek Cypriots living in the south.", "Accordingly, not only are displaced persons unable to apply to the authorities to reoccupy the homes which they left behind, they are physically prevented from even visiting them. 173. The Court further notes that the situation impugned by the applicant Government has obtained since the events of 1974 in northern Cyprus. It would appear that it has never been reflected in ‘legislation’ and is enforced as a matter of policy in furtherance of a bi-zonal arrangement designed, it is claimed, to minimise the risk of conflict which the intermingling of the Greek and Turkish-Cypriot communities in the north might engender. That bi-zonal arrangement is being pursued within the framework of the inter-communal talks sponsored by the United Nations Secretary-General ... 174.", "The Court would make the following observations in this connection: firstly, the complete denial of the right of displaced persons to respect for their homes has no basis in law within the meaning of Article 8 § 2 of the Convention (see paragraph 173 above); secondly, the inter-communal talks cannot be invoked in order to legitimate a violation of the Convention; thirdly, the violation at issue has endured as a matter of policy since 1974 and must be considered continuing. 175. In view of these considerations, the Court concludes that there has been a continuing violation of Article 8 of the Convention by reason of the refusal to allow the return of any Greek-Cypriot displaced persons to their homes in northern Cyprus.” 39. The Court sees no reason in the instant case to depart from the above reasoning and findings (see also Demades (merits), cited above, §§ 36-37). 40.", "Accordingly, it concludes that there has been a continuing violation of Article 8 of the Convention on account of the complete denial of the applicant’s right to respect for his home. IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 41. The applicant complained of a violation under Article 14 of the Convention on account of discriminatory treatment against him in the enjoyment of his rights under Article 8 of the Convention and Article 1 of Protocol No.", "1. He alleged that this discrimination had been based on his national origin and religious beliefs. Article 14 reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 42. The Government disputed this claim. 43.", "The Court recalls that in the above-mentioned Alexandrou case (cited above, §§ 38-39) it has found that it was not necessary to carry out a separate examination of the complaint under Article 14 of the Convention. The Court does not see any reason to depart from that approach in the present case (see also, mutatis mutandis, Eugenia Michaelidou Ltd and Michael Tymvios v. Turkey, no. 16163/90, §§ 37-38, 31 July 2003). V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 44. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary and non-pecuniary damage 1.", "The parties’ submissions (a) The applicant 45. In his just satisfaction claims of 3 June 2000, the applicant requested 266,251 Cypriot pounds (CYP – approximately 454,916 euros (EUR)) for pecuniary damage. He relied on an expert’s report assessing the value of his losses which included the loss of annual rent collected or expected to be collected from renting out his properties, plus interest from the date on which such rents were due until the day of payment. The rent claimed was for the period dating back to January 1987, when the respondent Government accepted the right of individual petition, until 31 December 2000. The applicant did not claim compensation for any purported expropriation since he was still the legal owner of the properties.", "The valuation report contained a description of the applicant’s house in Kyrenia, which comprised six rooms, a kitchen and a bathroom and had a total area of approximately 200 m². It had been built in 1973 at a distance of 600 metres from the seaside with reinforced concrete frame, plastered brick walls and pitched roof with imported tiles. In addition to that, the applicant was the owner of eight pieces of land scattered at various localities of Ayios Amvrosios, Klepini and Ayios Epiktitos villages. 46. The starting point of the valuation report was the classification of the applicant’s properties in three categories: (a) the house in Kyrenia; (b) lands with prospects and potentialities for immediate development; (c) lands for which the immediate or foreseeable prospects were limited to agricultural use.", "According to the expert, for the properties under categories (a) and (b), the ground rent was a percentage of 4 to 6 percent of the market value of the properties, while for agricultural land, in 1974, the rent was between CYP 2 and 35 per decare per annum. In particular, in 1974 the applicant’s house in Kyrenia had an approximate market value of CYP 20,000 (approximately EUR 34,172), which meant an annual rent of CYP 800 (approximately EUR 1,366). The applicant’s fields had, in 1974, an approximate total market value of CYP 17,152 (approximately EUR 29,305) and a total annual rent of CYP 1,039 (approximately EUR 1,775) could have been obtained from them. The expert took into account the nature of the area under study and the trends in rent increase (an average of 12% per annum for ground rents, 7% per annum for dry agricultural properties and 5% per annum for gardens and houses). Compound interest for delayed payment was applied at a rate of 8% per annum.", "47. On 25 January 2008, following request from the Court for an update on developments in the case, the applicant submitted updated claims for just satisfaction, which were meant to cover the period of loss of use of the property from 1 January 1987 to 31 December 2007. He produced a revised valuation report which, on the basis of the criteria adopted in the previous report, concluded that the whole sum due for the loss of use was CYP 406,334 plus CYP 321,509 for interests (the interests applied from 2001 onwards were 6 percent per annum). The total sum claimed under this head was thus CYP 727,844 (approximately EUR 1,243,594). 48.", "In his just satisfaction claims of 3 June 2000, the applicant further claimed CYP 300,000 (approximately EUR 512,580) in respect of non-pecuniary damage. This sum had been calculated on the basis of the sum awarded by the Court in the Loizidou case ((just satisfaction), 28 July 1998, Reports 1998-IV), taking into account, however, that the period of time for which the damage was claimed in the instant case was longer and that there had also been a violation of Article 8 of the Convention. (b) The Government 49. The Government filed comments on the applicant’s updated claims for just satisfaction on 30 June 2008 and 15 October 2008. They pointed out that the present application was part of a cluster of similar cases raising a number of problematic issues and maintained that the claims for just satisfaction were not ready for examination.", "The Government had in fact encountered serious problems in identifying the properties and their present owners. The information provided by the applicants in this regard was not based on reliable evidence. Moreover, owing to the lapse of time since the lodging of the applications, new situations might have arisen: the properties could have been transferred, donated or inherited within the legal system of southern Cyprus. These facts would not have been known to the respondent Government and could be certified only by the Greek Cypriot authorities, who, since 1974, had reconstructed the registers and records of all properties in northern Cyprus. Applicants should be required to provide search certificates issued by the Department of Lands and Surveys of the Republic of Cyprus.", "Moreover, in cases where the original applicant had passed away or the property had changed hands, questions might arise as to whether the new owners had a legal interest in the property and whether they were entitled to pecuniary and/or non-pecuniary damages. 50. The Government further noted that some applicants had shared properties and that it was not proven that their co-owners had agreed to the partition of the possessions. Nor, when claiming damages based on the assumption that the properties had been rented after 1974, had the applicants shown that the rights of the said co-owners under domestic law had been respected. 51.", "The Government further submitted that as an annual increase of the value of the properties had been applied, it would be unfair to add compound interest for delayed payment, and that Turkey had recognised the jurisdiction of the Court on 21 January 1990, and not in January 1987. In any event, the alleged 1974 market value of the properties was exorbitant, highly excessive and speculative; it was not based on any real data with which to make a comparison and made insufficient allowance for the volatility of the property market and its susceptibility to influences both domestic and international. The report submitted by the applicant had instead proceeded on the assumption that the property market would have continued to flourish with sustained growth during the whole period under consideration. 52. The Government produced a valuation report prepared by the Turkish-Cypriot authorities, which they considered to be based on a “realistic assessment of the 1974 market values, having regard to the relevant land records and comparative sales in the areas where the properties [were] situated”.", "This report contained two proposals, assessing, respectively, the sum due for the loss of use of the properties and their present value. The second proposal was made in order to give the applicant the option to sell the properties to the State, thereby relinquishing title to and claims in respect of them. 53. The report prepared by the Turkish-Cypriot authorities specified that it would be possible to envisage, either immediately or after the resolution of the Cyprus problem, restitution of the properties described in paragraph 9 (a), (b), (c), (f) and (j) above. The other immovable properties referred to in the application were possessed by refugees; they could not form the object of restitution but could give entitlement to financial compensation, to be calculated on the basis of the loss of income (by applying a 5% rent on the 1974 market values) and increase in value of the properties between 1974 and the date of payment.", "Had the applicant applied to the Immovable Property Commission, the latter would have offered CYP 39,115.93 (approximately EUR 66,833) to compensate the loss of use and CYP 41,663.75 (approximately EUR 71,186) for the value of the properties. According to an expert appointed by the “TRNC” authorities, the 1974 open-market value of the properties described in paragraph 9 above was CYP 6,808 (approximately EUR 11,632). Upon fulfilment of certain conditions, the Immovable Property Commission could also have offered the applicant exchange of his properties with Turkish-Cypriot properties located in the south of the island. 54. Finally, the Government did not comment on the applicant’s submissions under the head of non-pecuniary damage.", "2. The third-party intervener 55. The Government of Cyprus fully supported the applicant’s updated claims for just satisfaction. 3. The Court’s assessment 56.", "The Court first notes that the Government’s submission that doubts might arise as to the applicant’s title of ownership over the properties at issue (see paragraph 49 above) is, in substance, an objection of incompatibility ratione materiae with the provisions of Article 1 of Protocol No. 1. Such an objection should have been raised before the application was declared admissible or, at the latest, in the context of the parties’ observations on the merits. In any event, the Court cannot but confirm its finding that the applicant had a “possession” over the properties at issue within the meaning of Article 1 of Protocol No. 1 (see paragraph 26 above).", "57. In the circumstances of the case, the Court considers that the question of the application of Article 41 in respect of pecuniary and non-pecuniary damage is not ready for decision. It observes, in particular, that the parties have failed to provide reliable and objective data pertaining to the prices of land and real estate in Cyprus at the date of the Turkish intervention. This failure renders it difficult for the Court to assess whether the estimate furnished by the applicant of the 1974 market value of his properties is reasonable. The question must accordingly be reserved and the subsequent procedure fixed with due regard to any agreement which might be reached between the respondent Government and the applicant (Rule 75 § 1 of the Rules of Court).", "B. Costs and expenses 58. In his just satisfaction claims of 3 June 2000, relying on bills from his representative, the applicant sought CYP 3,093.89 (approximately 5,286 EUR) for the cost and expenses incurred before the Court. This sum included CYP 700 (approximately EUR 1,196) for the cost of the expert report assessing the value of his properties. The sum of EUR 356.11, which the applicant had received by way of aid, was deducted from the amount claimed.", "In his updated claims for just satisfaction of 25 January 2008 the applicant submitted additional bills of costs for the new valuation report and for legal fees amounting to EUR 402.5 and EUR 2,000 respectively. The total sum sought for cost and expenses was thus EUR 7,688.5. 59. The Government did not comment on this point. 60.", "In the circumstances of the case, the Court considers that the question of the application of Article 41 in respect of costs and expenses is not ready for decision. The question must accordingly be reserved and the subsequent procedure fixed with due regard to any agreement which might be reached between the respondent Government and the applicant. FOR THESE REASONS, THE COURT 1. Dismisses by six votes to one the Government’s preliminary objections; 2. Holds by six votes to one that there has been a violation of Article 1 of Protocol No.", "1; 3. Holds by six votes to one that there has been a violation of Article 8 of the Convention; 4. Holds unanimously that it is not necessary to examine whether there has been a violation of Article 14 of the Convention; 5. Holds unanimously 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 applicant to submit, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach; (c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be. Done in English, and notified in writing on 27 January 2009, 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 Karakaş is annexed to this judgment. N.B.F.A. DISSENTING OPINION OF JUDGE KARAKAŞ (Translation) Unlike the majority, I consider that the objection of non-exhaustion of domestic remedies raised by the Government should not have been rejected. Consequently, I cannot agree with the finding of violations of Article 1 of Protocol No. 1 and of Article 8 of the Convention.", "The rule of exhaustion of domestic remedies is intended to give Contracting States the opportunity to prevent or provide redress for violations alleged against them before such allegations are referred to the Court. That reflects the subsidiary nature of the Convention system. Faced with the scale of the problem of deprivations of title to property alleged by Greek Cypriots (approximately 1,400 applications of this type lodged against Turkey), the Court, in the operative part of its Xenides‑Arestis v. Turkey judgment of 22 December 2005, required the respondent State to provide a remedy guaranteeing the effective protection of the rights set forth in Article 8 of the Convention and Article 1 of Protocol No. 1 in the context of all the similar cases pending before it. The State has a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41 of the Convention, but also to select the general or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects.", "The Government submitted that by enacting the Law on Compensation for Immovable Properties (Law no. 67/2005) and setting up a Commission to deal with compensation claims it had discharged that obligation (see also Xenides‑Arestis v. Turkey (just satisfaction), no. 46347/99, § 37, 7 December 2006). It is that domestic remedy which, in their submission, the applicant failed to exercise in the present case. The exhaustion of domestic remedies is normally assessed at the time when an application is lodged with the Court.", "However, there are exceptions to the rule which may be justified by the particular circumstances of each case (see Baumann v. France, no. 33592/96, § 47, ECHR 2001-V (extracts)). Examples of such exceptions are to be found in the cases against Italy which raised similar questions and in which the Court found that certain specific facts justified departing from the general principle (see Brusco v. Italy, (dec.) no. 69789/01, ECHR 2001-IX). In other examples the Court also took the view, in the light of the specific facts of the cases concerned, and having regard to the subsidiary nature of the Convention mechanism, that new domestic remedies had not been exhausted (see the following decisions: Nogolica v. Croatia, no.", "77784/01, ECHR 2002-VIII; Slaviček v. Croatia, no. 20862/02, ECHR 2002-VII; Andrášik and Others v. Slovakia, nos. 57984/00, 60226/00, 60242/00, 60679/00, 60680/00 and 68563/01, ECHR 2002-IX; and Içyer v. Turkey, no. 18888/02, ECHR 2006-I). In situations where there is no effective remedy affording the opportunity to complain of alleged violations, individuals are systematically compelled to submit to the European Court of Human Rights applications which could have been investigated first of all within the domestic legal order.", "In that way, the functioning of the Convention system risks losing its effectiveness in the long term (the most pertinent example is the Broniowski v. Poland case ([GC], no. 31443/96, ECHR 2004-V). In my opinion the above examples provide an opportunity to review the conditions for admissibility in the event of a major change in the circumstances of the case. For the similar post-Loizidou cases, the Court can always reconsider its admissibility decision and examine the preliminary objection of failure to exhaust domestic remedies. Since the Court may reject “at any stage of the proceedings” (Article 35 § 4 of the Convention) an application which it considers inadmissible, new facts brought to its attention may lead it, even when examining the case on the merits, to reconsider the decision in which the application was declared admissible and ultimately declare it inadmissible pursuant to Article 35 § 4 of the Convention, taking due account of the context (see, for example, Medeanu v. Romania (dec.), no.", "29958/96, 8 April 2003, and Azinas v. Cyprus [GC], no. 56679/00, §§ 37-43, ECHR 2004-III). The existence of a “new fact” which has come to light after the admissibility decision may prompt the Court to reconsider that decision. I consider that the Law on Compensation for Immovable Properties (Law no. 67/2005) and the Commission set up to deal with compensation claims, which are based on the guiding principles laid down by the Court in the Xenides-Arestis case, are capable of providing an opportunity for the State authorities to provide redress for breaches of the Convention’s provisions, including breaches alleged in applications already lodged with the Court before the Act’s entry into force (see Içyer, cited above, § 72).", "That consideration also applies to applications already declared admissible by the Court (see Azinas, cited above). In order to conclude whether there has or has not been a breach of the Convention, complainants must first exercise the new domestic remedy and then, if necessary, lodge an application with the European Court of Human Rights, the international court. Following that logic, I cannot in this case find any violation of the Convention’s provisions." ]

[ "FOURTH SECTION CASE OF MARTINS O’NEILL PEDROSA v. PORTUGAL (Application no. 55214/15) JUDGMENT STRASBOURG 14 February 2017 FINAL 14/05/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Martins O’Neill Pedrosa v. Portugal, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: András Sajó, President,Vincent A. De Gaetano,Nona Tsotsoria,Paulo Pinto de Albuquerque,Krzysztof Wojtyczek,Egidijus Kūris,Marko Bošnjak, judges,and Marialena Tsirli, Section Registrar, Having deliberated in private on 24 January 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 55214/15) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Portuguese national, Mr Rafael Martins O’Neill Pedrosa (“the applicant”), on 28 October 2015. 2. The applicant was represented by Mr H. Garcia, a lawyer practising in Mafra. The Portuguese Government (“the Government”) were represented by their Agent, Ms M. F. da Graça Carvalho, Deputy Attorney General.", "3. The applicant alleged that the lawfulness of his pre-trial detention had not been reviewed “speedily”, as required by Article 5 § 4 of the Convention. 4. On 22 January 2016 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1995. According to the last information received by the Court on 6 October 2016, the applicant is detained in Lisbon. 6. On 5 December 2013 criminal proceedings were initiated against the applicant by the public prosecutor of the Department of Investigation and Prosecution (Departamento de Investigação e Ação Penal) in Sintra in respect of allegations of him having committed the crimes of coercion (coação), aggravated attacks upon the physical integrity of a person (ofensas à integridade física qualificada), rape (violação), and failing to assist a person in danger (omissão de auxílio).", "7. On 2 June 2014 the public prosecutor issued a European arrest warrant (“EAW”) in respect of the applicant in order to secure his presence before a judicial authority to be questioned (primeiro interrogatório judicial). 8. On 28 August 2014 the applicant was arrested in the United Kingdom. Under the EAW issued by the Portuguese authorities, he was surrendered to the Portuguese authorities on 27 February 2015.", "9. On 27 February 2015, the applicant was given the status of defendant in the criminal proceedings against him (constituição de arguido) and questioned by the investigating judge (primeiro interrogatório judicial). On the same day, the investigating judge remanded the applicant in custody. 10. On 19 March 2015 the applicant lodged an appeal with the Lisbon Court of Appeal, challenging the lawfulness of the decision remanding him in custody, pursuant to Article 219 § 1 of the Code of Criminal Procedure.", "11. On 2 April 2015 the investigating judge declared the appeal admissible and requested that the public prosecutor be asked to submit observations on the applicant’s appeal. 12. On 27 April 2015 the public prosecutor submitted observations on the applicant’s appeal. 13.", "On 29 April 2015 the investigating judge ordered that the applicant be notified of the public prosecutor’s observations and that the file be sent to the Lisbon Court of Appeal. 14. On 4 May 2015 the file was sent to the Lisbon Court of Appeal. On 11 May 2015 it was received and distributed. 15.", "On 13 May 2015 the public prosecutor issued an opinion on the appeal, pursuant to Article 416 of the Code of Criminal Procedure. The applicant was subsequently notified of the opinion and given ten days to reply, pursuant to Article 417 of the Code of Criminal Procedure. 16. On an unknown date, a judge rapporteur appointed to the case made a preliminary examination of the applicant’s appeal and prepared a draft decision which was presented to two other judges. The judge rapporteur’s analysis of the appeal was afterwards put on the agenda for discussion by the judge rapporteur and the two other judges.", "17. On 24 June 2015 the applicant lodged a habeas corpus application with the Supreme Court, claiming that the lack of analysis of his appeal in respect of the lawfulness of the decision placing him in pre-trial detention had violated Article 5 § 4 of the Convention. He further argued that the time-limit of thirty days established under Article 219 § 1 of the Code of Criminal Procedure had not been complied with. Therefore, his pre-trial detention had been unlawful. 18.", "On 2 July 2015 the Supreme Court dismissed the applicant’s habeas corpus application. Examining the effects of the thirty-day time-limit on pre-trial detention orders, it considered that the thirty-day time-limit on pre-trial detention orders simply constituted a guiding principle illustrating the urgency of such matters. It further noted that the lack of a speedy review of an order remanding a person in custody did not constitute a ground for a habeas corpus application under Article 222 of the Code and pointed out that Article 219 § 1 did not, in any case, stipulate the maximum length of any pre-trial detention. In this regard, the non-compliance with the thirty-day time-limit did not mean that the applicant’s pre-trial detention had been unlawful. 19.", "On 2 July 2015 the Lisbon Court of Appeal dismissed the applicant’s appeal and upheld the investigating judge’s decision of 27 February 2015 to hold him in pre-trial detention. II. RELEVANT DOMESTIC LAW AND PRACTICE A. The relevant provisions of the Portuguese Code of Criminal Procedure 20. Article 108 of the Portuguese Code of Criminal Procedure provides for interlocutory proceedings to expedite criminal proceedings.", "The relevant part of the provision reads as follows: “1. When the time-limits provided by law in respect of any stage of the proceedings are exceeded, the public prosecutor, the defendant, the assistant to the public prosecutor or the civil parties may lodge an application for an order to expedite the proceedings.” 21. Under Article 219 § 1, an appellate court has a maximum of thirty days in which to rule on the lawfulness of a pre-trial detention order, starting from the date on which it receives the relevant file. 22. Under Article 222 § 1, anyone who is illegally held in pre-trial detention may lodge a habeas corpus application with the Supreme Court.", "23. Under Article 222 § 2 pre-trial detention is unlawful if a) it was ordered by an authority that does not have authority to do so; b) the law does not allow the ordering of pre-trial detention for the reasons cited; or c) it has exceeded the time-limits established by law or judicial decision. 24. Under Article 416 § 1, before a case is submitted to a rapporteur it is given to the public prosecutor attached to the court of appeal for an opinion (vista). Under Article 417 § 2 the defendant shall be notified of the public prosecutor’s opinion; the defendant will then be given ten days to reply.", "After the public prosecutor has given an opinion, under Article 417 § 1 the case is given to a judge rapporteur for a preliminary examination. B. Case-law of the Supreme Court of Justice 25. In a judgment of 16 March 2011 the Supreme Court of Justice stated that Article 219 § 1 of the Code on Criminal Procedure (which concerns appeals against a detention order) did not constitute a mandatory legal provision. On the contrary, it constituted merely a guiding principle in respect of the conduct of such proceedings: that is to say that decisions on detention orders and related appeals should be considered urgent and the analysis of such appeals should not be delayed. It further considered that if the thirty-day time-limit were supposed to have been considered binding, a legal provision stipulating the direct consequences of any non-compliance should have been established.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 26. The applicant complained that his request for a review of the lawfulness of his pre-trial detention was not examined speedily, as provided in Article 5 § 4 of the Convention, which reads as follows: “4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Admissibility 1. The parties’ submissions 27.", "The Government submitted that the applicant had not exhausted the relevant domestic remedies. He had failed to lodge an application for an order to expedite the proceedings (pedido de aceleração processual), pursuant to Article 108 of the Code of Criminal Procedure, before the High Council of the Judiciary (conselho superior da magistratura) or the Attorney-General (procurador geral da República). They contended that this was a mechanism which allowed parties to proceedings to seek their acceleration when the time-limits foreseen by law for each stage of such proceedings had been exceeded. Referring to the case of Tomé Mota v. Portugal ((dec.), no. 32082/96, ECHR 1999‑IX), they argued that the Court had already considered that this was a remedy to be exhausted in cases of excessive length of criminal proceedings.", "28. The applicant disagreed. He submitted that a request for a review of the lawfulness of an order of pre-trial detention should be analysed within a reasonable time; if that period of time were exceeded then the pre-trial detention in question would be unlawful. In this regard, the applicant stated that the application for an order to expedite the proceedings could not be seen as a remedy to be exhausted. Rather it was the habeas corpus request that constituted such a remedy, on account of the unlawfulness of the pre-trial detention; accordingly, the applicant had used that remedy.", "2. The Court’s assessment 29. The Court reiterates that the rule on exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to first use the remedies that are normally available and sufficient under the domestic legal system to enable them to obtain redress for the breaches they have alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. However, Article 35 § 1 does not require that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports of Judgments and Decisions 1996-VI).", "30. In the present case the Government have argued that an application for an order to expedite the proceedings had been open to the applicant to pursue his complaint concerning the length of the request for a review of the lawfulness of his pre-trial detention under Article 108 of the Code of Criminal Procedure. 31. The Court observes that the case-law established by Tomé Mota, as invoked by the Government, concerns the nature of the right established under Article 6, which substantially differs from the nature of Article 5 § 4, which concerns a review of a decision restricting an applicant’s freedom. The Court has already held that Article 5 § 4, concerning issues of liberty, requires particular expedition (Hutchison Reid v. the United Kingdom, no.", "50272/99, § 79, ECHR 2003‑IV). 32. Moreover, the Government did not refer to any instances in which Article 108 was successfully invoked with regard to the acceleration of an appeal against an order of pre-trial detention, and neither have they submitted any relevant case-law in that regard. 33. In the light of the above, the Court considers that pursuing the acceleration of proceedings would not have provided the applicant with a speedy review of the lawfulness of his detention.", "It follows that this application cannot be rejected for non-exhaustion of domestic remedies. 34. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and nor is it inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The parties’ submissions 35. The applicant submitted that on 27 February 2015 the investigating judge had reviewed the lawfulness of his detention under the EAW. Only afterwards, on the same day, had he been questioned (primeiro interrogatório judicial), given the status of defendant in the proceedings (constituição de arguido), and remanded in custody by the investigating judge. Therefore, the jurisdictional review of the decision which had remanded him in custody had only been undertaken at a later date by a superior court [the Lisbon Court of Appeal] after the relevant appeal under Article 219 § 1 of the Code of Criminal Procedure had been lodged.", "The analysis of his appeal had lasted one hundred and five days; thus, there had been a violation of Article 5 § 4 of the Convention. 36. The Government submitted that the decision which had confirmed the lawfulness of the applicant’s detention under the EAW and which had ordered that he be remanded in custody had been delivered by an investigating judge who, under Portuguese legislation acts as guarantor of fundamental freedoms in criminal investigations. The investigating judge had considered that the legal requirements in respect of the application of the measure of pre-trial detention in respect of the applicant had been met. Consequently, the judicial review required by Article 5 § 4 of the Convention had been undertaken by virtue of his intervention.", "37. The Government further argued that the review of the decision to remand the applicant in custody had determined that the legal requirements of that decision, which had been adopted by a first instance judge, should have been reassessed by a superior court. The situation was thus different from that in which what was at stake was access to a first-instance court for a judicial review of a detention order. 38. The Government submitted that the thirty-day time-limit provided by Portuguese legislation in respect of an analysis of an appeal against an order of pre-trial detention was simply a guiding principle.", "Thus, if it was not complied with such detention would not automatically become unlawful. In the instant case the period of time which had elapsed between the moment at which the appeal had been admitted by the superior court and the date at which a decision had been adopted had amounted to 50 days and had been justified by the need to comply with procedural rules, such as the need to respect the principle of adversarial procedure and the time required to have a decision adopted by a collective body of judges. The Government acknowledged that the period of time elapsed had exceeded the thirty-day time-limit established under domestic law. However, given that that time-limit merely constituted a guiding principle, the period of time elapsed was not excessive and there had therefore not been a violation of Article 5 § 4 of the Convention. 2.", "The Court’s assessment (a) General principles 39. The Court reiterates that Article 5 § 4 of the Convention, in guaranteeing to detained persons the right to institute proceedings challenging the lawfulness of their detention, also provides their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of the detention and the ordering of its termination if it proves unlawful (see Idalov v. Russia [GC], no. 5826/03, § 154, 22 May 2012, and Baranowski v. Poland, no. 28358/95, § 68, ECHR 2000‑III). 40.", "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 appeal, the appellate body must also comply with the requirements of Article 5 § 4, for instance as concerns the speediness of the review by appeal proceedings. At the same time, the standard of “speediness” is less stringent when it comes to the proceedings before the court of appeal (see Lebedev v. Russia, no. 4493/04, § 96, 25 October 2007). 41.", "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. 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 (see Shakurov, v. Russia, no. 55822/10, § 180, 5 June 2012). The question of whether the right to a speedy decision has been respected must be determined in the light of the circumstances of each case (see Idalov, cited above, § 154; and Rehbock v. Slovenia, no. 29462/95, § 84, ECHR 2000‑XII).", "(b) Application of those principles in the present case 42. In the instant case the applicant was remanded in custody by the order of 27 February 2015 of the investigating judge. The applicant’s appeal against that decision was lodged on 19 March 2015 with the Lisbon Court of Appeal. It was ruled admissible by the investigating judge on 2 April 2015, and on the same day the latter requested observations from the public prosecutor. 43.", "After receiving observations from the public prosecutor on 27 April 2015 and notifying the applicant of those observations on 29 April 2015, the investigating judge ordered that the file be submitted to the Lisbon Court of Appeal (see paragraphs 12-13 above). 44. On 4 May 2015 the file was submitted to the Lisbon Court of Appeal, the second-instance court in such cases. Having received the file on 11 May 2015, the Lisbon Court of Appeal examined the appeal on 2 July 2015 – that is to say fifty-one days after receiving it – thus exceeding the thirty-day time-limit established under Article 219 § 1 of the Code of Criminal Procedure, taking into account the fact that, under this provision, the relevant period of time starts to run from the date on which the appeal is received by the court of appeal (see paragraph 21 above). 45.", "For the Court, however, the relevant period runs from when the application was lodged to the date in which a decision concerning the lawfulness of the detention is adopted (see, mutatis mutandis, Musiał v. Poland [GC], no. 24557/94, § 43, ECHR 1999‑II Van der Leer v. the Netherlands, 21 February 1990, § 35, Series A no. 170‑A). It thus observes that it took a total of one hundred and five days from the moment the application was lodged on 19 March 2015 for the Lisbon Court of Appeal to adopt a decision on the applicant’s appeal challenging the lawfulness of his detention (see paragraphs 10 and 19 above). 46.", "Taking into account the criteria mentioned above (see paragraph 42 above), the Court has found, for example, that the requirement for a decision to be given “speedily” in respect of an appeal against a detention order was breached in the following cases: Rehbock (cited above, § 85) – twenty-three days; Mamedova v. Russia, (no. 7064/05, 1 June 2006, § 96) – thirty-six days; Kadem v. Malta (no. 55263/00, 9 January 2003, § 44) – seventeen days; and Shakurov (cited above, § 187) – thirty-four days. This shows that the time taken by the Lisbon Court of Appeal to adopt a decision was manifestly excessive. 47.", "Furthermore, in the Court’s opinion, the issue before the appellate court was not overly complex, and nor is there anything in the material before it to suggest that the applicant, having lodged his appeal, caused delays in its examination. 48. Moreover, the Government did not provide any justification for the delays in the appeal proceedings. For example, no explanation was provided as to why the investigating judge only delivered a decision on the admissibility of the appeal fourteen days after it had been lodged, and nor was any explanation provided for the fact that the public prosecutor only submitted observations in that regard on 27 April 2015. In addition, no explanation was provided as regards the period of fifty-one days which elapsed between the file being received by the Lisbon Court of Appeal and the decision being delivered, which the Government considered to have exceeded the thirty-day time-limit provided by Article 219 § 1 of the Code of Criminal Procedure.", "The compliance with the adversarial principle pointed out by the Government cannot alone justify such an excessive delay. 49. The Court reiterates that it is incumbent on the respondent State to organise its legal system in such a way which allows for the speedy examination of detention-related issues (Shakurov, cited above, § 186). The Court is concerned about the existence in domestic legal orders of legal provisions establishing non-binding time-limits in appeal proceedings where an individual’s personal liberty is at stake. It considers that such provisions are incompatible with States’ obligations under Article 5 § 4 of the Convention.", "It further reiterates that time-limits in respect of judicial reviews against a detention order should be binding and set in accordance with the case-law of the Court. 50. In the light of the foregoing, the Court considers that the time it took the Lisbon Court of Appeal to examine the applicant’s appeal against the detention order cannot be considered compatible with the “speediness” requirement of Article 5 § 4. 51. The Court consequently holds that there has been a violation of Article 5 § 4 of the Convention.", "II. 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 50,000 euros (EUR) in respect of non-pecuniary damage.", "54. The Government considered the applicant’s claim for non-pecuniary damages excessive. 55. Having given due consideration to all the circumstances of the present case the Court accepts that the applicant has suffered some non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 3,250 in respect of non-pecuniary damage.", "B. Costs and expenses 56. The applicant also claimed EUR 1,750 for the costs and expenses incurred before the Court. 57. The Government considered the applicant’s claim for costs and expenses excessive.", "In addition, it considered that no amount under this head should be awarded to the applicant since he had failed to submit any documents proving that such costs and expenses had actually been incurred. 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. In the present case, regard being had to the documents in its possession and the above criteria, the Court dismisses the claim for costs and expenses as it has not been substantiated by any documents. C. Default interest 59.", "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 § 4 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 3,250 (three thousand two hundred and fifty 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 14 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliAndrás SajóRegistrarPresident" ]

[ "FIRST SECTION CASE OF MURTAZIN v. RUSSIA (Application no. 26338/06) JUDGMENT STRASBOURG 27 March 2008 FINAL 27/06/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Murtazin v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 6 March 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "26338/06) 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 Danyal Abdulovich Murtazin (“the applicant”), on 22 May 2006. 2. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights. 3. The applicant complained about the continued non-enforcement of the judgment in his favour and its subsequent quashing by way of supervisory review.", "4. On 6 September 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1937 and lives in Novocherkassk, a town in the Rostov Region. He is a retired military officer. 6. On 10 August 2004 the applicant brought proceedings against the Military Service Commissariat of Novocherkassk (Военный комиссариат г. Новочеркасска – “the Commissariat”) seeking to recover his pension arrears from January 1995 to March 1998 to take account of the increase of the minimum monthly wage. 7.", "On 15 September 2004 the Novocherkassk Town Court of the Rostov Region granted the applicant’s claim and awarded him 261,343.87 roubles (RUB) in arrears. On the applicant’s request the court held that the judgment should be enforced immediately since it concerned the applicant’s main source of income and was of considerable importance for the applicant’s financial situation. The Commissariat did not appeal against the judgment and on 25 September 2004 it became final. 8. On 12 October 2004 the applicant’s representative submitted the copy of the judgment and the writ of execution to the Social Welfare Office of the Military Commissariat of the Rostov Region.", "9. On 24 February 2005 the enforcement proceedings were opened. In the same month the applicant was informed that the sums awarded to him could not be paid as the Commissariat was conducting an examination of his case. 10. On 19 September 2005 the Commissariat filed an application for supervisory review of the judgment of the Novocherkassk Town Court of 15 September 2004, referring to the lack of grounds in domestic law for increasing the applicant’s pension, and asked for a stay of enforcement.", "11. On 9 December 2005 the Rostov Regional Court examined the above application and remitted the case for examination on its merits by the Presidium of the Rostov Regional Court. 12. On 22 December 2005 the Presidium of the Rostov Regional Court quashed the judgment of 15 September 2004 and remitted the case to the Oktyabrskiy District Court for a fresh consideration. It concluded that the first-instance court had erroneously applied the substantive law and that the matter should have been examined by a district court rather than by a town court.", "13. On 20 March 2006 the Oktyabrskiy District Court of Rostov-on-Don dismissed the applicant’s claim. II. RELEVANT DOMESTIC LAW A. The Code of Civil Procedure of the Russian Federation 14.", "The Code of Civil Procedure of the Russian Federation (“the new Code”) was enacted on 14 November 2002 and replaced the RSFSR Code of Civil Procedure (“the old Code”) from 1 February 2003. It provides as follows: Article 209. Entry into force of judicial decisions “1. A judicial decision becomes legally binding upon expiry of the time-limit for lodging an appeal against it if no such appeal had been lodged.” Article 210. Enforcement of judicial decisions “A judicial decision is to be enforced after it becomes legally binding, unless it provides for immediate enforcement...” Article 362.", "Grounds for quashing or altering judicial decisions by appeal courts “1. The grounds for quashing or altering judicial decisions by appeal courts are: ... (4) a violation or incorrect application of substantive or procedural law.” Article 376. Right to apply to a court exercising supervisory review “1. Judicial decisions that have become legally binding, with the exception for judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against ... to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions. 2.", "Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...” Article 387. Grounds for quashing or altering judicial decisionsby way of supervisory review “Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions.” Article 390. Competence of the supervisory-review court “1. Having examined the case by way of supervisory review, the court may... (2) quash the judicial decision issued by a court of first, second or supervisory-review instance in whole or in part and remit the matter for a fresh examination... (5) quash or alter the judicial decision issued by a court of first, second or supervisory-review instance and issue a new judicial decision, without remitting the matter for a fresh examination, if the substantive law has been erroneously applied or interpreted.” B. Enforcement Proceedings Act (Law of 21 July 1997) 15.", "Once instituted, enforcement proceedings must be completed within two months upon receipt of the execution warrant by the bailiff (Section 13). C. The 2004 Federal Budget Act and the 2005 Federal Budget Act 16. Collection of funds from the recipients of the federal budget is carried out through the local branches of the Federal Treasury upon submission of warrants of execution and court orders (Section 133 and Section 109 respectively). D. The Federal Law of 12 February 1993 4468-1 on provision of pensions for the retired military servicemen 17. Pensions to the retired military servicemen are paid by the specialised territorial services of the Ministry of Defence (Section 56).", "E. The Agreement between the Ministry of Finance and the Savings Bank of the Russian Federation № 01‑01-06/03-1710 of 31 December 2002 18. The local branches of the Savings Bank (the Sberbank) distribute the funds allocated by the federal budget for payment of pensions to the retired military servicemen to the specialised territorial services of the Ministry of Defence (Section 2.2.2). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE QUASHING OF THE JUDGMENT IN THE APPLICANT’S FAVOUR 19.", "The applicant complained that the quashing of the judgment of 15 September 2004 by way of supervisory-review proceedings had violated his “right to a court” under Article 6 § 1 of the Convention and his right to the peaceful enjoyment of possessions under Article 1 of Protocol No. 1. The relevant parts of these provisions read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...” A. Admissibility 20.", "The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "Alleged violation of Article 6 of the Convention 21. The Government submitted that the quashing of the judgment of 15 September 2004 by way of supervisory review fully complied with Articles 376 § 1, 387 and 390 of the Russian Code of Civil Procedure. The supervisory-review procedure was set in motion with the view of correcting a “judicial error” committed by the first-instance court in determining the amount of arrears to be awarded to the applicant. There had therefore been no violation of the principle of legal certainty. 22.", "The applicant maintains his complaints. 23. 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). 24.", "This principle insists that no party is entitled to seek re-opening of the proceedings merely for the purpose of a rehearing and a fresh decision of the case. Higher courts’ power to quash or alter binding and enforceable judicial decisions should be exercised for correction of fundamental defects. The mere possibility of two views on the subject is not a ground for re-examination. Departures from that principle are justified only when made necessary by circumstances of a substantial and compelling character (see (see, mutatis mutandis, Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-X; and Sypchenko v. Russia, no.", "38368/04, § 26, 1 June 2007). 25. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State’s domestic legal system allowed a final and enforceable judicial decision to be quashed by a higher court merely on the ground of disagreement with the assessment made by lower courts with the view of carrying out a fresh examination (see Kot v. Russia, no.", "20887/03, § 27-30, 18 January 2007). 26. In the present case the judgment of 15 September 2004 in the applicant’s favour was set aside by the way of a supervisory review on the ground that the Town Court had allegedly incorrectly applied the substantive law and the rules of territorial jurisdiction. The Court has to assess whether the power to conduct a supervisory review was exercised by the authorities so as to strike, to the maximum extent possible, a fair balance between the interests of the individual and the need to ensure the proper administration of justice (see, mutatis mutandis, Nikitin v. Russia, no. 50178/99, §§ 57 and 59, ECHR 2004‑...).", "27. The Court stresses that a binding and enforceable judgment should only be quashed in exceptional circumstances rather than for the sole purpose of obtaining a different decision in the case. In the Russian legal system, the grounds for quashing or altering judgments by appeal courts largely overlap with those for quashing or altering judgments by way of supervisory review (compare Article 362 § 1 (4) and Article 387 of the Code of Civil Procedure). The judgment of 15 September 2004 was quashed by way of supervisory-review because of an alleged incorrect application of the substantive law and the rules of territorial jurisdiction. These defects could have been cured in the appeal proceedings.", "Thus, a situation where the final judgment in the applicant’s favour was called into question could have been avoided, had the Military Commission lodged an ordinary appeal within the statutory ten-day time-limit (see Borshchevskiy v. Russia, no. 14853/03, § 48, 21 September 2006, and Nelyubin v. Russia, no. 14502/04, § 27, 2 November 2006). 28. The Court further notes that the Russian Code of Civil Procedure permits a party to apply for supervisory review even if it had not previously exhausted an ordinary appeal.", "In the present case the Military Commissariat failed to exercise its right to lodge an ordinary appeal and permitted the statutory ten-day time-limit to expire without challenging the judgment of 15 September 2004. The Government did not point to any exceptional circumstances that would have prevented the Military Commissariat from exposing its arguments to the Town Court or making use of an ordinary appeal in good time (see Nelyubin; cited above, § 28). 29. Having regard to these considerations, the Court finds that, by granting the Military Commission’s request to set aside the judgment of 15 September 2004, the Presidium of the Rostov Regional Court infringed the principle of legal certainty and the applicant’s “right to a court” under Article 6 § 1 of the Convention. There has accordingly been a violation of that Article.", "2. Alleged violation of Article 1 of Protocol No. 1 30. 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; Androsov v. Russia, no. 63973/00, § 69, 6 October 2005; and Borshchevskiy v. Russia, cited above, § 51). 31. The Court observes that the quashing of the judgment of 15 September 2004 by way of supervisory review led to the dismissal of the applicant’s claim. In these circumstances, the Court considers that the quashing of the enforceable judgment of 15 September 2004 by way of supervisory review frustrated the applicant’s reliance on a binding judicial decision and deprived him of an opportunity to receive the money he had legitimately expected to receive.", "Furthermore, the quashing of the judgment of 15 September 2004 by way of supervisory review placed an excessive burden on the applicant and was therefore incompatible with Article 1 of Protocol No. 1. There has therefore been a violation of that Article. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No.", "1 ON ACCOUNT OF LENGTHY NON-ENFORCEMENT OF THE JUDICIAL DECISION 32. The applicant further complained about the non-enforcement of the judgment of 15 September 2004. He relied on Article 6 of the Convention and Article 1 of Protocol No. 1, cited above. A. Admissibility 33.", "The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 34.", "The Government claimed that the applicant had submitted the warrant of execution without indicating the requisites of his bank account. 35. The applicant responded that there was no need to indicate his bank requisites as the lump sum awarded to him should have been simply transferred to his relevant pension account to which the Commissariat regularly paid his monthly pension. 36. Furthermore, the Government advanced the argument that the administration of the Social Welfare Office of the Military Commissariat did not take any steps in order to enforce the judgment of 15 September 2004 as it had been passed in breach of the substantive and procedural domestic law.", "37. The applicant asserted on this point that the judgment of 15 September 2004 was not appealed against and became final. Moreover, it provided for its immediate enforcement, and, therefore, the Government’s argument was unconvincing. 38. The Court observes that on 15 September 2004 the applicant obtained a judgment by which the Military Service Commissariat was to pay him a certain sum of money.", "The judgment provided for its immediate enforcement. From that moment on, it was incumbent on the debtor, a State agency, to comply with it. On 25 September 2004 the judgment became legally binding since no appeal was lodged against it. The Town Court issued the applicant with a warrant of execution, and it was submitted to the debtor on 12 October 2004. However, no attempts were made to execute the judgment.", "The Rostov Regional Court’s decision of 5 October 2005 had the effect of staying the enforcement proceedings but did not affect the validity of the underlying judgment which remained unenforced on that date. The launching of the supervisory-review procedure could not, in itself, extinguish the debtor’s obligation to comply with an enforceable judgment which obligation existed until its quashing by the Presidium of the Rostov Regional Court in supervisory-review procedure on 22 December 2005. 39. It follows that at least between 15 September 2004 and 22 December 2005 the judgment in the applicant’s favour was “enforceable” and it was incumbent on the State agency to abide by its terms. In any event, the Court reiterates that the quashing of a judgment in a manner which has been found to have been incompatible with the principle of legal certainty and the applicant’s “right to a court” cannot be accepted as a justification for the failure to enforce that judgment (see Sukhobokov v. Russia, no.", "75470/01, § 26, 13 April 2006). 40. The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the ones in the present case (see, for example, Burdov v. Russia, no. 59498/00, ECHR 2002-III; and, more recently, Poznakhirina v. Russia, no.", "25964/02, 24 February 2005, Wasserman v. Russia (no. 1), no. 15021/02, 18 November 2004, and Sukhobokov, cited above). 41. Having examined the material submitted to it, the Court notes that the Government did not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.", "They did not advance any plausible justification for the delay in enforcement. Having regard to its case-law on the subject, the Court finds that by failing to comply with the judgment in the applicant’s favour the domestic authorities violated his “right to a court” and prevented him from receiving the money which he was entitled to receive. 42. The Court finds accordingly that there was a violation of Article § 1 of the Convention and Article 1 of Protocol No. 1 as regards non-enforcement of the judgment in the applicant’s favour.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 43. Lastly, the applicant complained that the non-enforcement of the judgment of 15 September 2004 and its subsequent quashing by way of supervisory review violated his rights enshrined in Article 13 of the Convention. 44. In so far as the applicant may be understood to complain about the lack of an effective domestic remedy against the continued non-enforcement of the judgment in his favour, the Court considers that, having regard to the above findings (see paragraph 42 above), it is not necessary to examine whether, in this case, there has been a violation of Article 13 (see Tolokonnikova v. Russia, no.", "24651/03, § 27, 17 November 2005, and Gerasimenko v. Russia, no. 24657/03, § 29, 17 November 2005). 45. Thus, the Court rejects this complaint under Article 35 § 4 of the Convention. 46.", "In so far as the applicant may be understood to complain about the lack of an effective domestic remedy against the quashing by way of supervisory review of a judgment in his favour, the Court notes that Article 13 of the Convention does not, as such, guarantee the right to appellate remedies in respect of a decision taken by way of supervisory review, and the mere fact that the judgment of the highest judicial body is not subject to further judicial review does not infringe in itself the said provision (see Tregubenko v. Ukraine (dec.), no. 61333/00, 21 October 2003, and Sitkov v. Russia (dec.), no. 55531/00, 9 November 2004). 47. It follows that this part of the applicant’s complaint under Article 13 of the Convention 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 thereof.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 48. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 49. The applicant claimed that the Government should pay him 261,343.87 Russian roubles (RUB) lost as a result of the non-enforcement of the judgment of 15 September 2004 and its subsequent quashing by way of supervisory review.", "He also claimed 5,000 Euros (EUR) in respect of non-pecuniary damage. 50. The Government claimed that no award should be made because the applicant’s claim had been rejected by the domestic courts. As regards the non-pecuniary damage, the Government considered that the applicant’s claim was excessive and unreasonable. 51.", "The Court recalls that in the instant case it found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, in that the judgment in the applicant’s favour remained unenforced for a long period of time and was subsequently quashed. The applicant was thereby prevented from receiving the money he had legitimately expected to receive. There is, therefore, a causal link between the violations found and the applicant’s claim for the pecuniary damage. The Court thus awards the applicant 7,300 Euros (EUR) representing the amount due to him under the quashed judgment of 15 September 2004 (to be converted into Russian roubles).", "52. The Court further considers that the applicant suffered distress because of the State authorities’ failure to enforce the judgment in his favour and its subsequent decision to quash it. The Court takes into account the amount and nature of the award in the instant case and the period of the authorities’ inactivity. Making its assessment on an equitable basis, it awards the applicant the amount of EUR 4,700, plus any tax that may be chargeable on it. B.", "Costs and expenses 53. The applicant did not claim costs or expenses and there is accordingly no call to make an award under this head. C. Default interest 54. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaints concerning the continued non-enforcement of the judgment of 15 September 2004 in the applicant’s favour and its subsequent quashing by way of supervisory review admissible and the remaining complaints inadmissible; 2. Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of the quashing of the judgment of 15 September 2004 by way of supervisory review; 3. Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of the non-enforcement of the judgment of 15 September 2004; 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 7,300 (seven thousand three hundred Euros) to be converted into Russian roubles in respect of pecuniary damage; (ii) EUR 4,700 (four thousand seven hundred Euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement; (iii) any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 27 March 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FIRST SECTION CASE OF MEDOVA v. RUSSIA (Application no. 25385/04) JUDGMENT STRASBOURG 15 January 2009 FINAL 05/06/2009 This judgment may be subject to editorial revision. In the case of Medova v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 11 December 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 25385/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Zalina Akhmetovna Medova (“the applicant”), on 16 July 2004.", "2. The applicant was represented by lawyers of EHRAC/Memorial, a non-governmental organisation with offices in Moscow and London. The respondent Government were first represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights, and then by their Representative Ms V. Milinchuk. 3. The applicant alleged, in particular, that her husband had disappeared following his abduction by State agents.", "4. By a decision of 4 October 2007, the Court declared the application admissible. 5. The applicant and the Government each filed further written observations (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other’s observations.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1980 and lives in Karabulak. A. Capture and detention of Mr Adam Medov 7.", "The applicant lived with her husband, Mr Adam Medov (born in 1980), in Karabulak, Ingushetia. The applicant is a linguist by training, and currently looks after her two children, born in 2003 and 2004. In June 2004 her husband temporarily resided in Nazran in Ingushetia. 1. The applicant’s account 8.", "The applicant submitted that on 15 June 2004 at about 8 p.m. her husband had left his temporary home in Nazran in his car (Zhiguli VAZ 21099). According to his brother, Mr Magomed Medov, he should have had 3,800 United States dollars with him, which he had borrowed from his relatives. He did not come back home that night. 9. In the night of 16 to 17 June 2004 the applicant’s husband called his brother, Mr Magomed Medov, on his mobile phone and said that his car had broken down.", "He tried to say where he was, but the phone was cut off. 10. In the evening of 17 June 2004 the Medovs were informed that their son, Mr Adam Medov, was being detained at the Sunzhenskiy District Department of the Interior (the Sunzhenskiy ROVD). At about 8 p.m. several of Mr Adam Medov’s relatives, including his father and two brothers, arrived at the village of Ordzhonikidzevskaya (also called Sleptsovskaya) – the administrative centre of the Sunzhenskiy district – and went to the ROVD building. 11.", "There the policemen told them that on 17 June 2004 the traffic police stopped two vehicles, a green Volga 31-10 and a Zhiguli VAZ 21099, for an inspection near the Kavkaz-1 crossing between Ingushetia and Chechnya. The policemen heard noise coming from the boot of the Zhiguli car. They opened it and found a man tied up (according to the policemen this was Mr Adam Medov) who cried “I am an Ingush! They are trying to take me out of here!”. The Volga car then started to move towards Chechnya, but was stopped by the policemen.", "In its boot they found another man tied up. 12. The policemen arrested the persons who were in both cars and took them and the two bound men to the Sunzhenskiy ROVD at about 7 p.m. 13. According to the policemen, Mr Adam Medov was questioned and explained that on 15 June 2004 he had been apprehended near the Sunzha restaurant in Sleptsovskaya along with a man to whom he had been giving a lift in his car, and whose name he did not know. He said he had been apprehended by eight men, four of them of Russian origin and four of them of Chechen origin, and subsequently taken to the Federal Security Service (FSB) headquarters in Magas, the capital of Ingushetia.", "There he had been beaten and tortured. At some point on 16 June 2004 he had been forced to call his family to convince them not to start searching for him. 14. By the evening of 17 June 2004 numerous relatives of Mr Adam Medov had gathered in front of the Sunzhenskiy ROVD. The policemen asked his relatives to bring food and agreed to take it to him.", "Later they offered to allow two of Mr Adam Medov’s brothers, Mr Magomed Medov and Mr Usman Medov, to visit him inside the building. While the two men were standing on the ground floor of the police station, they heard someone shouting “No visits! They should leave!” Magomed Medov and Usman Medov were then escorted to the exit of the ROVD building. 15. At about 11.30 p.m. on 17 June 2004 the policemen came outside to where the relatives of Mr Adam Medov were waiting and told them that he and another detainee had been driven to Chechnya.", "Mr K-v, an officer of the Sunzhenskiy ROVD, had accompanied the cars to the Kavkaz-1 roadblock. This was the last news the relatives had of Mr Adam Medov. 2. The Government’s account 16. On 22 July 2004, in reply to the Court’s request of 16 July 2004 for factual information relating to the detention and whereabouts of Mr Adam Medov, the Government first submitted that the Ministry of the Interior was not aware of his alleged abduction or his whereabouts.", "He had not been detained in the Sunzhenskiy ROVD between 15 and 21 June 2004. His relatives had not applied to the department of the interior with a complaint about Mr Adam Medov’s abduction. Furthermore, according to the information submitted by the Prosecutor General’s Office, on 22 July 2004 the Prosecutor’s Office of Ingushetia had opened a criminal case under Article 126 (2) of the Criminal Code – abduction committed by a group. 17. On 20 August 2004 the Government submitted the following information received from the Prosecutor General’s Office: “In the evening of 17 June 2004 police officers stopped two cars at the “Volga-20” stationary road checkpoint, located on federal route “Kavkaz”, near the administrative border of the Chechen Republic.", "The six men sitting in the two cars refused to produce their documents. In this connection they were brought to the Sunzhenskiy [ROVD], where four of the above-mentioned six men introduced themselves as officers of the Department of the [FSB] in the Chechen Republic and produced their documents. The highest ranking officer of the group, Mr Beletskiy V.V., gave the following explanation of what had happened. He said that on 15 June 2004 in Ingushetia they had apprehended two men, Medov A.A. and [K.], who were wanted on suspicion of having committed grave crimes, and that they were taking them to the Chechen Republic. Mr Beletskiy produced documents that showed the lawfulness and validity of Mr Medov’s and [K.’s] arrest and detention.", "After that the above-mentioned officers ... and the two detained persons left for the Chechen Republic. According to information provided by the Prosecutor’s Office of the Chechen Republic, officers of the law-enforcement bodies of the Chechen Republic had not apprehended Mr Medov and there was no information that the latter had been brought to the territory of the Chechen Republic. According to the Department of the FSB in the Chechen Republic, Mr Beletskiy V.V. was not on the staff of that Department. Moreover, the Department did not have any information regarding Mr Medov’s apprehension and whereabouts.", "On 22 July 2004 the Public Prosecutor’s Office of the Republic of Ingushetia initiated a criminal case in respect of an offence defined by Article 126 § 2 (a) (abduction by a group of persons after preliminary collusion) in connection with Mr Medov’s and [K.’s] disappearance. At present Mr Medov’s and [K.’s] location is not established. Mrs Medova’s allegations that her husband is being detained at the Khankala military base have not proved to be true”. B. Investigation into the abduction 1.", "Applications to State authorities and courts 18. Immediately after 17 June 2004 the members of Mr Adam Medov’s family started to search for him. On numerous occasions, both in person and in writing, they applied to prosecutors at various levels, the Ministry of the Interior, the FSB, administrative authorities and public figures. The applicant and other family members received conflicting information about the circumstances of Mr Adam Medov’s apprehension and detention, and hardly any about his whereabouts after 17 June 2004. 19.", "On 18 June 2004, upon a request by Mr Adam Medov’s relatives, the chairman of the Ingush Bar Association “XXI Vek” asked the Ingush Department of the FSB and the Sunzhenskiy ROVD if Mr Adam Medov had been detained on 17 June 2004, and if so, where he was. On the same day the Sunzhenskiy ROVD replied that Mr Adam Medov had not been detained by them. 20. However, on 21 June 2004 the deputy prosecutor of the Sunzhenskiy District informed the Medovs that “on 15.05.2004 Medov A.K. was detained by officers of the FSB Department for Chechnya under the command of Lieutenant-Colonel Beletskiy V.V.”[1] On 22 June 2004 the same prosecutor informed the applicant’s family that on 16 June 2004 he had “requested the military prosecutor of the United Group Alignment (UGA) to submit relevant information”.", "21. On 24 June 2004 the acting prosecutor of Ingushetia replied to a member of Ingushetia’s Popular Assembly, Mr Ozdoyev, that an investigation was ongoing into the Medovs’ complaint about the detention and ill-treatment of Mr Adam Medov by FSB officers on 15 June 2004. 22. On 26 June 2004 the deputy prosecutor of the Sunzhenskiy District again confirmed to the applicant’s family that “on 15.06.2004 Medov was detained by officers of the FSB Department for Chechnya under the command of Lieutenant-Colonel Beletskiy V.V. On 18 June 2004 [M.], the military prosecutor of the UGA, was requested to submit information relating to the grounds of the arrest.” 23.", "On 1 July 2004 the acting prosecutor of Ingushetia replied to Mr Ozdoyev that, since Mr Medov had been detained by FSB officers from Chechnya, all complaints submitted by his family had been forwarded for investigation to the military prosecutor of the UGA. 24. On 7 July 2004 the Chief of the FSB Department for Chechnya wrote to the applicant and stated that Mr Medov had not been arrested or detained by its officers and that they had no information about his whereabouts. 25. On 9 July 2004 Mr Adam Medov’s relatives sent fifteen letters to the Prosecutor of Ingushetia, the Minister of the Interior of Ingushetia and the NGO Memorial, in which they described the known circumstances of Mr Medov’s apprehension and requested that an investigation into the abduction be carried out and his whereabouts be established.", "26. On 9 July 2004 the Chairman of Memorial, Mr Orlov, and a member of the Human Rights Commission with the President of Russia, Mrs Gannushkina, met in Ingushetia with Mr M-v, the prosecutor of the Sunzhenskiy District. The applicant submitted a transcript of the discussion signed by Mr Orlov. According to that document, on 17 June 2004 Mr M-v had been informed that at about 7 p.m. a group of armed persons had been stopped at the Kavkaz-1 roadblock while trying to take two persons to Chechnya. The armed persons had produced documents to show they were FSB officers from Chechnya and insisted that they were acting lawfully.", "The prosecutor had demanded that they be taken to the Sunzhenskiy ROVD and personally went to the roadblock, but by that time they had agreed to go and had driven to the Sunzhenskiy ROVD. At the ROVD the detained persons had produced identity documents issued by the FSB Department for Chechnya bearing the names Lieutenant-Colonel Beletskiy V.V., Detective Shurov A.G., Corporal Parfenov D.A. and Sergeant Minbulatov I.Yu. They had also produced documents authorising them to arrest Mr Adam Medov and K., who had been found by the policemen in the boots of the cars. Mr M-v had called the local FSB office, which confirmed that the arrest had been legal.", "The prosecutor had had to order the release of the detained persons, who had departed for Chechnya through a back door, taking the two men with them. 27. In July-August 2004 the applicant and Mr Adam Medov’s mother wrote several letters to the Prosecutor General, the Prosecutor of the Chechen Republic, the FSB Department for Chechnya, and the Prosecutor of the Sunzhenskiy District, referring to the information obtained in July and asking for information about Mr Adam Medov’s whereabouts and news of the investigation. 28. On 19 July 2004 the Russian Human Rights Commissioner wrote to the General Prosecutor and the Director of the FSB in respect of Mr Adam Medov’s arrest and detention.", "29. On 25 July 2004 the deputy chief of the FSB Department for Chechnya replied to the applicant. He denied that Mr Adam Medov had been arrested or detained by the Department’s officers and stated that they had no information on his whereabouts. The letter further stated that Lieutenant-Colonel Beletskiy V.V., Detective Shurov A.G., Corporal Parfenov D.A. and Sergeant Minbulatov I.Yu.", "were not members of the Department’s staff. 30. On 17 August 2004 the General Prosecutor’s Office replied to the Russian Human Rights Commissioner, stating that a criminal investigation into the abduction was pending, and that at the moment no law-enforcement authority possessed information about Mr Adam Medov’s arrest and detention or whereabouts. The letter also stated that on 17 June 2004 the six armed men and their two prisoners had been released from the Sunzhenskiy ROVD upon orders of the then acting Minister of the Interior of Ingushetia, Mr Kostoyev, who had been killed on 21 June 2004. 31.", "On 9 September 2004 the FSB replied to the Human Rights Commissioner and stated that the service had no information about Mr Medov’s arrest and detention or whereabouts, and that the four named servicemen were not members of the FSB Department for Chechnya. 32. On 15 September 2004 the applicant complained to the Prosecutor General about the inactivity of the investigator in charge of the case concerning her husband’s abduction. 33. On 25 November 2004 the applicant applied in person to the investigator in charge of the case with a request to conduct certain investigative measures, including questioning of the officers who had been on duty at the roadblock on 17 June 2004 and the officer who had escorted her husband and the persons who had detained him to the border between Ingushetia and Chechnya.", "According to the applicant, during her visit in person the investigator had refused to accept the application or include it in the case file. She had then sent it by registered mail. 34. On 29 December 2004 the applicant complained to the Sunzhenskiy District Court of the Republic of Ingushetia about the investigator’s refusal to accept the application of 25 November 2004 and to take the requested investigative measures. 35.", "On 25 January 2005 the Sunzhenskiy District Court examined the complaint. At the hearing the investigator submitted that the applicant had applied to be provided with information on the progress of the investigation once and had received a written reply. He had not received any other applications from her. He contended that the investigative measures requested by the applicant had been taken; however, he could not inform her of the results until the preliminary investigation was completed. The court dismissed the applicant’s complaint and held, inter alia: “In accordance with [the Code of Criminal Procedure] the victim may be familiarised with the materials of the criminal case file upon the completion of the preliminary investigation.", "Accordingly, [the investigator’s] refusal to familiarise the victim with the materials of the case file was lawful.” 36. The decision could be appealed against within ten days. 37. On 14 February 2005 the applicant submitted an appeal together with an application to restore the time-limit for appeal as the decision had been served on her only on 4 February 2005. 38.", "On 10 March 2005 the Sunzhenskiy District Court refused the application to restore the time-limit for appeal on the ground that the applicant had been present at the hearing of 25 January 2005, where the decision had been read out. 39. On an unspecified date the decisions of 25 January and 10 March 2005 were quashed by the Supreme Court of the Republic of Ingushetia and the case remitted to the Sunzhenskiy District Court for a fresh examination. According to the Government, upon the fresh examination the Sunzhenskiy District Court dismissed the complaint. The decision was not appealed against.", "40. On 15 June 2005, following an application lodged by the applicant, the Karabulakskiy District Court of the Republic of Ingushetia declared Mr Adam Medov a missing person. 2. Progress of the investigation 41. The Government submitted the following information concerning the progress of the investigation.", "42. On 22 July 2004 criminal investigation no. 04600045 was instituted into the abduction of Mr Adam Medov. 43. On 29 July 2004 the investigator questioned as a witness Mr I., deputy prosecutor of the Sunzhenskiy District.", "Mr I. submitted that on 17 June 2004 he had been on duty at the District Prosecutor’s Office. At around 9 p.m. he was informed by the head of the Sunzhenskiy ROVD that unknown persons who had tried to take Mr Medov and K. through the checkpoint had been brought to the ROVD. They had presented themselves as FSB officers. Mr I. had immediately informed Mr B., another deputy prosecutor of the Sunzhenskiy District. Mr B. had told him that the persons brought to the ROVD had with them all necessary documents.", "Mr I. was questioned again on 20 October 2004. 44. On 29 July, 2 August and 5 October 2004 the investigator also questioned relatives of Mr Adam Medov. 45. On 30 July 2004 the applicant was granted the status of a victim in the criminal proceedings.", "She was questioned on 5 August 2004. 46. On 5 August 2004 the investigator questioned A., the head of the Sunzhenskiy ROVD. On 7 August 2004 he questioned E., an officer of the Sunzhenskiy ROVD. On 9 August 2004 the investigator questioned Bad.", "and Kh., the heads of the Sunzhenskiy ROVD, and on 16 August 2004 he questioned A., an officer of the Sunzhenskiy ROVD. 47. On 17 August 2004 the investigator questioned as witnesses two police officers of the special police unit of the Ministry of the Interior of Ingushetia. 48. On 13 September 2004 the investigator questioned six officers of the traffic police of Ingushetia.", "49. On the same date the prosecutor of military unit no. 04062 questioned the head of the Sunzhenskiy District Department of the FSB and on 18 October 2004 his deputy. 50. On 22 December 2004 the preliminary investigation was suspended on the ground that the person to be charged with the offence had not been identified.", "51. On 1 April 2005 the deputy prosecutor of the Sunzhenskiy District quashed the decision to suspend the investigation. 52. On 5 April 2005 the investigation was resumed. 53.", "On 5 May 2005 the preliminary investigation was suspended again on the ground that the person to be charged with the offence had not been identified. 54. On 31 May 2005 the first deputy prosecutor of the Republic of Ingushetia quashed the decision to suspend the investigation and transmitted the case to the Prosecutor’s Office of the Sunzhenskiy District for additional investigation. 55. On 1 June 2005 the investigator questioned as witnesses two neighbours of Mr Adam Medov.", "56. On 1 July 2005 the investigator suspended the preliminary investigation again on the ground that the persons to be charged with the offence had not been identified. 57. On 3 October 2005 the first deputy prosecutor of the Republic of Ingushetia quashed the decision to suspend the investigation. 58.", "According to the Government, in the course of the investigation requests for information were sent to the Prosecutor’s Office of the Chechen Republic, prosecutor’s offices and investigating authorities of other Caucasian regions, the military prosecutor of UGA, the FSB Department for Northern Caucasia, the Ministry of the Interior of Ingushetia, medical institutions, a mobile network operator, airline and railway ticket offices, civil registrars, and passport and visa services. The investigating authorities also checked the registers of unidentified dead bodies and temporary detention facilities. According to the information received, the persons who presented themselves as FSB officers during the documents check had never served in the FSB and the documents presented had never been issued to them by the State authorities. Neither the Ministry of the Interior nor the FSB had conducted any operations in order to arrest Mr Medov and K. The Prosecutor’s Office of the UGA had neither instituted proceedings against Mr Medov and K. nor arrested them. 59.", "On 15 April 2007 the investigation was suspended on the ground that the persons to be charged with the offence had not been identified. The applicant was notified accordingly. 60. On 20 November 2007 the investigation was resumed. The applicant was notified of the resumption.", "3. Request for information 61. Despite specific requests made by the Court on several occasions, the Government did not submit any documents from the file in criminal case no. 04600045. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.", "At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of the documents disclosing military information and the personal details of the witnesses, and without the right to make copies of the case file and transmit it to others. C. Alleged intimidation of the applicant 1. The applicant’s account 62. On 10 March 2005 the applicant submitted a letter to the Court, in which she alleged that in January – March 2005 persons who claimed to belong to the FSB had offered her money via a relative of hers for the withdrawal of her application. She had also been personally contacted by a man claiming to be an officer of the FSB who had threatened her and offered money for the withdrawal of her application before the Court.", "63. After the application had been communicated to the Government, the applicant maintained the complaint concerning the events that had allegedly taken place in January – March 2005. She made no new allegations. 2. The Government’s account 64.", "The Government submitted that State agents had not hindered the applicant’s right to petition the Court. Furthermore, the applicant had not applied to law-enforcement agencies in connection with the alleged threats and offers of money for the withdrawal of her application. II. RELEVANT DOMESTIC LAW 65. Article 125 of the Code of Criminal Procedure provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court.", "66. Article 161 of the Code of Criminal Procedure stipulates that evidence from the preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator, but only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of participants in criminal proceedings without their permission THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTION 67.", "The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies. They noted in this regard that the investigation into the abduction of the applicant’s husband had not yet been completed. 68. The applicant disputed the Government’s objection. She submitted that they had failed to indicate what remedy she had to exhaust.", "Inasmuch as their objection related to the fact that the investigation was still pending, having referred to Imakayeva v. Russia (dec.), no. 7615/02, 12 February 2005, the applicant contended that this argument related to the merits of her complaint. 69. In the present case, the Court took no decision about the exhaustion of domestic remedies at the admissibility stage, having found that this question was too closely linked to the merits. It will now proceed to examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (for a relevant summary, see Estamirov and Others v. Russia, no.", "60272/00, § 73-74, 12 October 2006). 70. The Court observes that the applicant complained to the law enforcement authorities immediately after the disappearance of Mr Adam Medov and that an investigation has been pending since 22 July 2004. The applicant and the Government disputed the effectiveness of this investigation. 71.", "The Court considers that the Government’s preliminary objection raises issues concerning the effectiveness of the criminal investigation which are closely linked to the merits of the applicant’s complaints. Thus, it considers that these matters fall to be examined below under the substantive provisions of the Convention. II. ESTABLISHMENT OF THE FACTS A. The parties’ submissions 72.", "The applicant submitted that, since her husband had been missing for a very lengthy period, it could be presumed that he was dead. The presumption was further supported by the prevalence of forced disappearances in Chechnya at the material time. Furthermore, concordant evidence proved that her husband had been apprehended by agents of law-enforcement bodies. In particular, it was not contested by the Government that between 15 and 17 June 2004 Mr Medov had been held at the FSB Department in the Republic of Ingushetia. Furthermore, when Mr Medov had been brought to the Sunzhenskiy ROVD along with K. and persons who had papers showing that they were FSB officers, the prosecutor of the Sunzhenskiy district had contacted the FSB Department in the Republic of Ingushetia which had confirmed that the FSB officers had acted lawfully in detaining Mr Medov and K. Moreover, although the Government argued that the FSB had never issued official documents for the persons who had apprehended Mr Medov, they had presented no evidence that the FSB register had been checked in the course of the investigation.", "In particular, no evidence had been furnished to show that the FSB register of “undercover documents” issued under Article 9 § 53 of the FSB Statute had been checked. 73. Furthermore, the applicant invited the Court to conclude that the Government’s refusal to submit a copy of the entire investigation file in response to the Court’s requests was incompatible with their obligations under Article 38 of the Convention. In her view, through their handling of the Court’s request for documents, the Government had additionally failed to comply with their obligations under Article 34 of the Convention. 74.", "The Government submitted that the circumstances of Mr Medov’s disappearance were under investigation. There was no evidence to either consider that he had been abducted by representatives of federal forces or presume him dead. 75. The Government reiterated that the submission of the case file would be contrary to Article 161 of the Code of Criminal Procedure. They also pointed out that it had been suggested that a Court delegation have access to the file at the place where the preliminary investigation was being conducted.", "B. Article 38 § 1 (a) and consequent inferences drawn by the Court 76. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted under Article 34 of the Convention that States should furnish all necessary facilities to make possible a proper and effective examination of applications (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 70, ECHR 1999‑IV). This obligation requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties as regards the examination of applications.", "Failure on a Government’s part to submit such information which is in their hands, without a satisfactory explanation, may not only give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 § 1 (a) of the Convention (see Timurtaş v. Turkey, no. 23531/94, § 66, ECHR 2000-VI). 77. In the present case the applicant alleged that her husband had been abducted by FSB officers. She also alleged that no proper investigation had taken place.", "In view of these allegations, the Court asked the Government to produce documents from the criminal investigation file opened in relation to the abduction. The evidence contained in that file was regarded by the Court as crucial to the establishment of the facts in the present case. 78. In their submissions the Government confirmed that on 17 June 2004 police officers stopped two cars at the “Volga-20” checkpoint. After the men sitting in those two cars had refused to produce their documents, they had been brought to the Sunzhenskiy ROVD.", "There four of them presented the identity papers of FSB officers and documents authorising detention of the other two men, Mr Medov and K. Then they had been released and had driven to Chechnya. The Government contended, however, that, as was revealed later, those persons had never served in the FSB and identity documents had never been issued to them. 79. The Court notes that despite its repeated requests for a copy of the investigation file opened into the disappearance of the applicant’s husband, the Government refused to produce such a copy, invoking Article 161 of the Code of Criminal Procedure. It further notes that the Government did not request the application of Rule 33 § 2 of the Rules of Court, which permits a restriction on the principle of the public character of documents deposited with the Court for legitimate purposes, such as the protection of national security and the private life of the parties, as well as the interests of justice.", "The Court observes that it has already found on a number of occasions that the provisions of Article 161 of the Code of Criminal Procedure do not preclude disclosure of documents from a pending investigation file, but rather set out a procedure for and limits to such disclosure (see Mikheyev v. Russia, no. 77617/01, § 104, 26 January 2006, and Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006‑... (extracts)). For these reasons the Court considers the Government’s explanation insufficient to justify the withholding of the key information requested by the Court. 80.", "Referring to the importance of a respondent Government’s cooperation in Convention proceedings, the Court finds that there has been a breach of the obligations laid down in Article 38 § 1 (a) of the Convention to furnish all necessary facilities to the Court in its task of establishing the facts. 81. In view of the above finding, the Court considers that no separate issues arise under Article 34. C. The Court’s evaluation of the facts 1. Abduction of Mr Adam Medov 82.", "The Court points out that a number of principles have been developed in its case-law when it is faced with the task of establishing facts on which the parties disagree. As to the facts that are in dispute, the Court reiterates its jurisprudence confirming the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001‑VII). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Taniş and Others, cited above, § 160).", "83. The Court observes that it is not disputed between the parties that Mr Adam Medov together with K. were apprehended by armed men and then brought to the Sunzhenskiy ROVD following their captors’ failure to produce documents at the check point. Although the applicant submitted that Mr Medov had been apprehended by eight persons, from the Government submissions corroborated by the materials of the case available to the Court it appears that there were four persons. Accordingly, the Court will proceed on the basis that Mr Medov had been apprehended by four armed persons. 84.", "The parties agreed that after the armed persons who had apprehended Mr Adam Medov together with K. had failed to produce their identity documents at the check point, they had been taken to the Sunzhenskiy ROVD where they had produced the documents of FSB officers. It is also not in dispute between the parties that all the six men were then released from the Sunzhenskiy ROVD and that the four armed men drove with Mr Medov and K. to Chechnya. 85. The parties disputed, however, whether the four armed men had actually been FSB officers. The applicants argued that they had been, relying on (i) the fact that they had produced FSB identity documents, (ii) the confirmation of the FSB Department in the Republic of Ingushetia given by telephone to the prosecutor of the Sunzhenskiy district that the persons in question had been FSB officers and that they had acted lawfully in detaining Mr Medov and K., (iii) the authorities’ failure to check the FSB register of “undercover documents”.", "The Government contended that the persons in question had not been FSB officers and that their identity documents had been forged. They relied on the information provided by FSB according to which the persons concerned had never served in the FSB and that such identity documents had never been issued. 86. The Court observes that the domestic investigation which is under way has to date produced no conclusive results on the matter. It also notes that the applicant’s allegation that between 15 and 16 June 2004 Mr Medov was held at the FSB headquarters is not corroborated by any evidence.", "Inasmuch as the applicant relied on the prosecuting authorities’ replies of 21, 24 and 26 June and 1 July 2004 to the effect that Mr Medov had been detained by FSB officers under the command of V. V. Beletskiy, the replies were clearly based on the documents produced by the armed men at the Sunzhenskiy ROVD and could not have taken into account subsequent information provided by the FSB. Furthermore, those replies contained no information about Mr Medov’s alleged detention at the FSB headquarters. 87. The Court further notes that, having been informed of Mr Medov’s abduction by persons in possession of FSB identity documents, the FSB had consistently denied that such persons had ever formed part of its staff and that identity documents had ever been issued to them. 88.", "Having regard to the principles cited above and the parties’ submissions the Court is prepared to accept that Mr Adam Medov and K. were abducted by armed men who identified themselves as FSB officers. However, the evidence submitted by the parties is not sufficient to establish to the requisite standard of proof whether the armed men were indeed FSB officers. 2. Whether Mr Adam Medov may be presumed dead 89. The Court notes that after the six men were released from the Sunzhenskiy ROVD they drove to Chechnya.", "The Court reiterates that in previous cases concerning disappearances of people in Chechnya which have come before the Court (see, for example, Imakayeva, cited above, and Luluyev and Others v. Russia, no. 69480/01, ECHR 2006‑... ), it found that, in the context of the conflict in the Chechen Republic, when a person was detained by unidentified servicemen without any subsequent acknowledgement of the detention, this could be regarded as life-threatening. 90. In the present case, however, the Court has not found it established that Mr Adam Medov was detained by servicemen, but found that he was abducted by four armed men. Nevertheless, the Court is of the opinion that a finding of State involvement in the disappearance of a person is not a condition sine qua non for the purposes of establishing whether that person can be presumed dead; in certain circumstances the disappearance of a person may in itself be considered as life-threatening (see Osmanoğlu v. Turkey, no.", "48804/99, § 57, 24 January 2008). The Court considers that such circumstances definitely include situations where, as in the present case, a person is abducted by a group of armed men. The absence of Mr Medov or any news of him for over four years corroborates this assumption. 91. For the above reasons the Court considers that Mr Adam Medov must be presumed dead.", "III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 92. The applicant complained under Article 2 of the Convention of a violation of the right to life in respect of Mr Adam Medov and of the authorities’ failure to conduct a proper investigation. Article 2 of the Convention reads as follows: “1. Everyone’s right to life shall be protected by law.", "No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Alleged violation of the right to life of Mr Adam Medov 1. The parties’ submissions 93.", "The applicant contended that her husband had been apprehended by agents of law-enforcement bodies and then deprived of his life in violation of Article 2. 94. The Government submitted that the circumstances of Mr Medov’s disappearance were under investigation. There was no evidence that he had been deprived of his life as a result of the use of lethal force. Furthermore, the applicant’s allegation that representatives of federal forces had been involved in his abduction and possible death were unfounded.", "The Government also pointed out that the applicant had not applied to courts to have her husband declared dead. 2. The Court’s assessment 95. The Court has not found it established that State agents were responsible for the disappearance of the applicant’s husband (see paragraph 88 above). However, this does not necessarily exclude the responsibility of the Government under Article 2 of the Convention (see Osmanoğlu v. Turkey, cited above, § 71).", "According to the established case-law of the Court, the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports 1998-III, § 36). The State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. Article 2 of the Convention may also imply a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, § 115). 96.", "In this connection the Court reiterates that, in the light of the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. 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. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Osman, cited above, § 116). 97. Turning to the facts of the present case, the Court notes that the applicant’s husband was abducted by four armed men and put in one of two cars which were stopped at the “Volga-20” checkpoint.", "Following the captors’ refusal to present their identity documents at the checkpoint, they were taken to the Sunzhenskiy ROVD. In paragraph 90 above the Court found the circumstances of Mr Medov’s abduction to be life-threatening. It accepts, however, that the officers of the Sunzhenskiy ROVD might not have perceived the situation as life-threatening since the armed persons presented the identity documents of FSB officers as well as documents authorising the detention of Mr Medov and K. 98. Nevertheless, the Court considers that the ROVD officers must have been alarmed by those persons’ suspicious behaviour, in particular, by their refusal to present their identity documents at the checkpoint and had had to take additional measures to verify their identities and the lawfulness of Mr Medov’s and K.’s detention. It appears that the ROVD officers themselves considered additional steps to be necessary since they had immediately informed the Sunzhenskiy District Prosecutor’s Office of the situation and asked for instructions (see paragraph 43 above).", "The Prosecutor’s Office confirmed the validity of the identity documents and the lawfulness of the detention. Consequently, the four armed men together with their two captives were released from the ROVD. 99. Therefore, while Mr Medov, K. and their captors were within the control of the authorities, the latter could have prevented the commission of an offence, but they released the six men, after which Mr Medov disappeared. The Court notes that, according to the applicant, the Prosecutor’s Office contacted the local FSB office, which confirmed that the detention of Mr Medov and K. was lawful.", "However, the Court does not find it necessary to establish which particular State authority was responsible for providing information leading to the release of Mr Medov’s captors and consequently his disappearance. Nor does it find it necessary to decide whether such information was provided with the intention of covering up the abduction or merely as a result of a failure to conduct a diligent check of the captors’ identities and the circumstances of the detention. The Court considers that the authorities’ decision to release the six men, which resulted in the disappearance of Mr Medov, constituted a breach of the positive obligation to take preventive measures to protect those whose life is at risk from the criminal acts of other individuals. It notes that the prosecuting authorities did not verify whether Mr Medov’s captors were indeed FSB officers. They did not obtain from the department of the FSB in question any written documents confirming the validity of the operation by the persons who presented themselves as FSB officers.", "The ROVD officers did not make copies of documents presented by Mr Medov’s captors and, furthermore, they obviously did not log their detention in any official records since at first, in reply to the Court’s request for information, the Government denied that such persons had ever been detained at the ROVD (see paragraph 16 above). 100. Accordingly, the Court finds that the State has failed to comply with its positive obligation under Article 2 of the Convention to protect the life of Mr Adam Medov. B. The alleged inadequacy of the investigation into the abduction 1.", "The parties’ submissions 101. The applicant argued that the delay in instituting the investigation into her husband’s disappearance appeared to be detrimental to the progress of the investigation since it had deprived the investigator of the opportunity to question the members of the armed group that had apprehended Mr Medov. Furthermore, the investigative authorities had failed to question the relevant FSB officers and to check the FSB registers. They had also failed to inform the applicant of the progress of the investigation and submit the criminal file, even at the Court’s explicit request. 102.", "The Government contended that the investigating authorities had taken all necessary measures to solve the crime and that the investigation had met the requirements of Article 2 of the Convention. 2. The Court’s assessment 103. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, p. 49, § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, p. 324, § 86).", "The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim’s family and carried out with reasonable promptness and expedition. In cases where a positive obligation to safeguard the life of persons is at stake, the investigation should be effective in the sense that it is capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the taking of preventive measures and, secondly, identifying the State officials or authorities responsible (see, mutatis mutandis, Trubnikov v. Russia, no. 49790/99, § 88, 5 July 2005). 104.", "The Court notes at the outset that the documents from the investigation file were not disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of the few documents submitted by the applicants and the information about its progress presented by the Government. 105. Turning to the facts of the present case, it notes that the investigation in the present case was instituted on 22 July 2004, that is one month and five days after the events. The Court accepts that the failure to institute the investigation within the first few days following the detention of the six men at the Sunzhenskiy ROVD might be explained by the prosecuting authorities’ assumption that Mr Medov had been lawfully detained by FSB officers.", "However, on 7 July 2004 the FSB department informed the applicant that her husband had not been detained by its officers. Nevertheless, the official investigation was not opened until more than two weeks later. Therefore, the investigation was instituted with a delay in a situation where prompt action was vital. 106. With regard to the investigative measures taken, the Court observes that in the period between July and September 2004 the investigating authorities questioned a number of State agents, including prosecuting authorities, police and FSB officers.", "It further notes that Mr I., deputy prosecutor of the Sunzhenskiy District, questioned on 29 July 2004, submitted that on 17 July 2004, after he had been informed that unknown persons with the identity documents of FSB officers who had tried to take Mr Medov and K. through the checkpoint had been brought to the Sunzhenskiy ROVD, he had immediately informed Mr B., another deputy prosecutor. The latter had confirmed that the persons concerned had been in possession of all necessary documents. However, from the materials available to the Court it appears that Mr B. was never questioned. Accordingly, the investigating authorities did not take sufficient steps to establish on what grounds the prosecuting officers had assumed the authenticity of the captors’ identity documents. 107.", "The Court further notes that the Government provided general information about numerous requests sent by the investigating authorities to prosecuting and investigating authorities of other Caucasian regions, the UGA, the FSB and other institutions, including civilian. However, from the information submitted it is not clear what was the content of the requests. In particular, there is no information that any requests were sent to checkpoints in the Chechen Republic so as to find out whether the same cars passed through any of them. Nor is it clear whether other measures purposed to trace the two cars after they had left the Sunzhenskiy ROVD were taken. Furthermore, there is no information that the investigating authorities checked the FSB register or what steps, if any, were taken to establish how Mr Medov’s captors could have obtained the identity documents of FSB officers.", "108. In the Court’s view, the failure to take those measures constitutes a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002-II). 109. The Court also notes that, even though the applicant had been granted victim status, she was not informed of significant developments in the investigation apart from several decisions on its suspension and resumption.", "Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny, and to safeguard the interests of the next of kin in the proceedings. 110. Finally, the Court notes that the investigation was adjourned and resumed several times. Such handling of the investigation could not but have had a negative impact on the prospects of identifying the perpetrators and establishing the fate of Mr Medov. 111.", "Having regard to the Government’s preliminary objection that was joined to the merits of the complaint, the Court notes that the authorities’ failure to take necessary and urgent investigative measures undermined the effectiveness of the investigation in its early stages. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and dismisses their preliminary objection. 112. In the light of the foregoing, the Court finds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Mr Adam Medov, in breach of Article 2 in its procedural aspect. Accordingly, there has been a violation of Article 2 in this respect also.", "IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 113. The applicant complained that there were strong reasons to believe that her husband had been subjected to treatment in violation of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 114. The applicant maintained the complaint and contended that the Government had failed to produce any evidence that could refute her allegations. She further averred that the investigation had not been efficient for reasons similar to those set out above in relation to Article 2 of the Convention.", "115. The Government submitted that the investigation had produced no evidence that Mr Medov had been subjected to treatment prohibited by Article 3 of the Convention. 116. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no.", "25, pp. 64-65, § 161 in fine). Article 3, taken together with Article 1 of the Convention, implies a positive obligation on the States to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment (see A. v. the United Kingdom, judgment of 23 September 1998, Reports of Judgments and Decisions 1998‑VI, p. 2699, § 22). 117. The Court has found it established that Mr Adam Medov was abducted by unidentified armed men.", "It has also found that, in view of all the known circumstances, he can be presumed dead and that the State has failed to comply with its positive obligation under Article 2 of the Convention to protect the lives of individuals within its jurisdiction. However, the Court has not established the exact way in which Mr Medov died and whether he was subjected to ill-treatment by his captors. Accordingly, it may not conclude that the circumstances of Mr Medov’s abduction gave rise to a positive obligation under Article 3 of the Convention. The Court also notes that it was not alleged by the applicant that her husband had been ill-treated by officers at either the “Volga-20” checkpoint or the Sunzhenskiy ROVD. 118.", "Therefore, the Court finds that there has been no violation of Article 3 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 119. The applicant complained that her husband had been deprived of his liberty in violation of Article 5 of the Convention. The relevant parts of Article 5 provide: “1. Everyone has the right to liberty and security of person.", "No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.", "4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” 120. The applicant noted that, although the Government stated that there was no evidence of Mr Medov’s unlawful detention and that he had not been held in any detention facilities, they did not dispute that he had been deprived of his liberty by force.", "She further contended that her husband’s detention did not fall into any of the exceptions provided for by Article 5 § 1 of the Convention. Moreover, although he had been detained by State agents, she had never been provided with any information about his whereabouts and, therefore, his detention should be regarded as unacknowledged. 121. The Government submitted that there was no evidence that Mr Medov had been deprived of his liberty in violation of Article 5 of the Convention. In particular, he had not been detained in detention facilities for suspects or for persons under administrative arrest.", "122. The Court has previously noted the fundamental importance of the guarantees contained in Article 5 in securing the right of individuals in a democracy to be free from arbitrary detention (see Kurt v. Turkey, judgment of 25 May 1998, Reports of Judgments and Decisions 1998‑III, § 122). It notes, however, that the present complaint does not relate to the applicant’s husband’s detention at the Sunzhenskiy ROVD on 17 June 2000, after he had been brought there together with his captors, but to the deprivation of his liberty by the latter. 123. The Court recalls that it has not found it established that Mr Medov was abducted by State agents.", "It reiterates, however, that the first sentence of Article 5 § 1 of the Convention must be construed as laying down a positive obligation on the State to protect the liberty of its citizens (see Storck v. Germany, no. 61603/00, § 102, ECHR 2005‑V). The Court considers that, in the circumstances of the present case, there are no reasons to consider the scope of the State’s positive obligation under Article 5 of the Convention to protect Mr Medov from arbitrary deprivation of liberty to be different from that under Article 2 of the Convention to protect his life (see paragraphs 97-100 above). 124. The Court further notes that in paragraph 100 above it found that while Mr Medov, K. and their captors were within the control of the authorities, the failure of the latter to prevent the commission of the offence was incompatible with the State’s positive obligation under Article 2 of the Convention.", "Likewise, it considers that the authorities’ failure to put an end to Mr Medov’s arbitrary deprivation of liberty while they had every means of doing so constituted a breach of the State’s positive obligation under Article 5 of the Convention. 125. Therefore, the Court finds that the State failed to comply with its positive obligation under Article 5 of the Convention to protect the liberty of Mr Adam Medov. VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 126.", "The applicant complained under Article 13 of the Convention that she had had no effective remedies in respect of the alleged violations of the Convention. 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.” 127. The applicant contended, firstly, that the investigation into her husband’s disappearance was ineffective. Secondly, she pointed out that she had applied to domestic courts with complaints concerning the investigator’s inactivity, but they had failed to address her arguments properly. 128.", "The Government averred that the applicant had had effective domestic remedies, as required by Article 13 of the Convention, and that the Russian authorities had not prevented her from using those remedies. In particular, she had been granted victim status in the criminal proceedings and received replies to all her applications submitted within the framework of the proceedings. The investigation into her husband’s disappearance was still pending. At the same time the applicant had not applied to domestic courts with any complaints concerning either the unlawful detention of her husband or actions of the agents of the law-enforcement bodies. They also pointed out that the applicant did not file a compensation claim in respect of damage allegedly caused by the State authorities.", "129. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. Given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life and infliction of treatment contrary to Article 3, including effective access for the complainant to the investigation procedure leading to the identification and punishment of those responsible (see Anguelova v. Bulgaria, no. 38361/97, §§ 161-162, ECHR 2002-IV, and Süheyla Aydın v. Turkey, no. 25660/94, § 208, 24 May 2005).", "The Court further reiterates that the requirements of Article 13 are broader than a Contracting State’s obligation under Article 2 to conduct an effective investigation (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, § 183, 24 February 2005). 130. It follows that in circumstances where, as here, a criminal investigation into a disappearance in life-threatening circumstances was ineffective and the effectiveness of any other remedy that may have existed, including civil remedies, was consequently undermined, the State has failed in its obligation under Article 13 of the Convention. 131.", "Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention. 132. In so far as the complaint under Article 13 concerns the existence of a domestic remedy in respect of the complaint under Article 3 that Mr Medov had been ill-treated following his deprivation of liberty by unidentified armed men, the Court notes that in paragraph 118 it found no violation of Article 3 of the Convention. In these circumstances it finds that there has been no violation of Article 13 in this respect either. 133.", "As regards the applicant’s reference to Article 5 of the Convention, the Court notes that according to its established case-law the more specific guarantees of Article 5 §§ 4 and 5, being a lex specialis in relation to Article 13, absorb its requirements and, in view of its above findings of a failure to comply with the State’s positive obligation under Article 5 of the Convention, the Court considers that no separate issue arises in respect of Article 13 read in conjunction with Article 5 of the Convention in the circumstances of the present case. VII. ALLEGED FAILURE TO COMPLY WITH ARTICLE 34 OF THE CONVENTION 134. Having regard to the incidents which allegedly took place in 2005, the applicant complained that the respondent Government had failed to comply with its obligations under Article 34, the relevant parts of which provide as follows: “The Court may receive applications from any person ... claiming to be the victim of a violation ... of the rights set forth in the Convention ... The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” 135.", "The Government submitted that the applicant had not presented any evidence of the alleged intimidation. She also failed to indicate the name of the person who had allegedly threatened her or to provide other information that could help to identify him. Furthermore, she had not brought her allegations to the attention of the prosecuting authorities, which proved that they were fictitious. 136. The applicant maintained the complaint and argued that the Government’s objections should be dismissed.", "137. The Court notes that the complaint of intimidation is not corroborated by any evidence. Accordingly, it finds that in this respect there was no failure to comply with the respondent State’s obligations under Article 34 of the Convention. VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 138.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 139. The applicant did not make any claims for compensation for pecuniary damage. She claimed compensation for non-pecuniary damage, arising from her feelings of fear, distress, anguish and uncertainty about the fate of her husband. She left the determination of the award to the Court’s discretion.", "140. In the Government’s view, the finding of a violation should constitute sufficient just satisfaction in the present case. However, should the Court decide otherwise, the award should not exceed a reasonable amount. 141. The Court has found violations of Articles 2, 5 and 13 of the Convention on account of the State’s failure to comply with its positive obligation to protect the life of the applicant’s husband.", "The Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. The Court awards the applicant EUR 35,000, plus any tax that may be chargeable thereon. B. The applicant’s request for an investigation 142. The applicant also requested, referring to Article 41 of the Convention, that “an independent investigation which would comply with the requirements of the Convention be conducted into the disappearance of Mr Adam Medov”.", "She relied in this connection on the cases of Assanidze v. Georgia ([GC], no. 71503/01, §§ 202-203, ECHR 2004-II) and Tahsin Acar v. Turkey ((preliminary objection) [GC], no. 26307/95, § 84, ECHR 2003-VI). 143. The Court notes that in Kukayev v. Russia, no.", "29361/02, §§ 131-134, 15 November 2007, in comparable circumstances, the Court decided that it was most appropriate to leave it to the respondent Government to choose the means to be used in the domestic legal order in order to discharge their legal obligation under Article 46 of the Convention. The Court does not see any exceptional circumstances which would lead it to reach a different conclusion in the present case. C. Costs and expenses 144. The applicant was represented by lawyers from the NGO EHRAC/Memorial Human Rights Centre. The aggregate claim in respect of costs and expenses related to her legal representation amounted to 6,420 euros (EUR) and 813,25 pounds sterling (GBP).", "She requested the award to be transferred directly into her representatives’ account in the United Kingdom. The applicant submitted the following breakdown of costs: (a) EUR 3,000 for fifty hours of research in Chechnya and Ingushetia at a rate of EUR 60 per hour; (b) EUR 3,000 for fifty hours of drafting legal documents submitted to the Court and the domestic authorities at a rate of EUR 60 per hour by the lawyers in Moscow; (c) GBP 500 for five hours of legal work by a United Kingdom-based lawyer at a rate of GBP 100 per hour; (d) GBP 138,25 for translation costs, as certified by invoices; (e) GBP 175 for administrative and postal costs incurred by the London office; and (f) EUR 420 for administrative and postal costs incurred by the Moscow office. 145. The Government did not dispute the details of the calculations submitted by the applicant, but pointed out that she should be entitled to the reimbursement of her costs and expenses only in so far as it had been shown that they had been actually incurred and were reasonable as to quantum (see Skorobogatova v. Russia, no. 33914/02, § 61, 1 December 2005).", "146. The Court has to establish first whether the costs and expenses indicated by the applicant were actually incurred and, second, whether they were necessary and reasonable (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). 147. Having regard to the details of the information available, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicant’s representatives.", "Further, it has to be established whether the costs and expenses incurred for legal representation were necessary. The Court notes that this case was rather complex and required a certain amount of research and preparation. Accordingly, it accepts that the expenses incurred were necessary. 148. Having regard to the details of the claims submitted by the applicant, the Court awards the amount as claimed, together with any value-added tax that may be chargeable, the net award to be paid into the representatives’ bank account in the United Kingdom, as identified by the applicant.", "D. Default interest 149. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Dismisses unanimously the Government’s preliminary objection; 2. Holds unanimously that there has been a failure to comply with Article 38 § 1 (a) of the Convention in that the Government have refused to submit documents requested by the Court; 3.", "Holds unanimously that no separate issues arise under Article 34 of the Convention in respect of the Government’s refusal to submit documents requested by the Court; 4. Holds unanimously 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 Mr Adam Medov; 5. Holds unanimously that there has been a violation of Article 2 of the Convention on account of the failure to conduct an effective investigation into the circumstances in which Mr Adam Medov disappeared; 6. Holds unanimously that there has been no violation of Article 3 of the Convention in respect of the alleged ill-treatment of Mr Adam Medov; 7. Holds unanimously that there has been a violation of Article 5 of the Convention; 8.", "Holds unanimously that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention; 9. Holds unanimously that there has been no violation of Article 13 of the Convention in conjunction with Article 3 of the Convention; 10. Holds unanimously that no separate issues arise under Article 13 of the Convention in conjunction with Article 5 of the Convention; 11. Holds unanimously that there has been no failure to comply with the State’s obligation under Article 34 of the Convention in respect of the alleged intimidation of the applicant; 12. Holds unanimously (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 35,000 (thirty-five thousand euros), plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement, in respect of non-pecuniary damage; (ii) EUR 6,420 (six thousand four hundred and twenty euros) and GBP 813,25 (eight hundred and thirteen pounds and twenty-five pence) in respect of costs and expenses, plus any tax that may be chargeable to the applicant, to be paid into her representatives’ bank account in the United Kingdom; (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 by six votes to one the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 15 January 2009, 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 partly dissenting opinion of Judge Dean Spielmann is annexed to this judgment. C.L.R.S.N. PARTLY DISSENTING OPINION OF JUDGE SPIELMANN I voted against point 13 of the operative part because I am of the opinion that the applicant’s request for an investigation in line with Convention standards (see paragraph 142 of the judgment) should have been granted by the Court under Article 41 of the Convention.", "This request concerns an investigation into the disappearance of Mr Adam Medov. In paragraph 112 of the judgment, the Court finds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Mr Adam Medov, in breach of Article 2 in its procedural aspect. In paragraphs 105 to 111, the Court identifies multiple shortcomings in the investigation. I am of the opinion that many of these shortcomings (for example those relating to the failure to question Mr B. (paragraph 106) and to the information about the numerous requests or other measures (paragraph 107) might still be redressed in the particular circumstances of this case if an investigation were conducted even after so many years.", "Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate. It would therefore have been preferable to grant the applicant’s request. [1] There is clearly a clerical error in the date of the detention." ]

[ "FIRST SECTION CASE OF SHCHERBAKOV v. RUSSIA (No. 2) (Application no. 34959/07) JUDGMENT STRASBOURG 24 October 2013 FINAL 24/01/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Shcherbakov v. Russia (no.", "2), The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Elisabeth Steiner,Khanlar Hajiyev,Linos-Alexandre Sicilianos,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 1 October 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 34959/07) 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 Igor Nikolayevich Shcherbakov (“the applicant”), on 9 June 2007. 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.", "3. The applicant alleged, in particular, that he had been detained in appalling conditions and for an unreasonably long time pending criminal proceedings against him; that an appeal he lodged against a detention order of 1 November 2006 had been considered belatedly; that the criminal proceedings against him had been unreasonably lengthy; and that he did not have an effective remedy in respect of his complaints. 4. On 27 May 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1955 and lives in Tula. A. The applicant’s arrest and pre-trial detention 1.", "Detention pending investigation 6. On 16 November 2004 the applicant was arrested on suspicion of extortion. 7. On 18 November 2004 the Proletarskiy District Court of Tula authorised his pre-trial detention. The court noted as follows: “... in view of the nature of the charges against [the applicant], the investigating authorities have compelling reasons to believe, that [he] may, if released, abscond, continue to commit crimes, or intimidate witnesses to impede the establishment of the truth ... Having regard to the nature of the charges against [the applicant], [the court] does not consider it possible to apply a less severe preventive measure than detention.” 8.", "On 29 November 2004 the applicant was charged with robbery. 9. On 14 January 2005 the Tsentralniy District Court of Tula extended the applicant’s detention pending investigation until 13 April 2005. The court accepted the reasoning of the investigator, who suggested that the applicant might, if released, continue to commit crimes, intimidate witnesses to interfere with the administration of justice, or abscond. On 9 February 2005 the Tula Regional Court upheld the decision of 14 January 2005 on appeal.", "10. On 12 April and 13 May 2005 the District Court further extended the applicant’s detention until 16 May and 28 June 2005 respectively. On both occasions the court used the following reasoning: “... [the court] does not consider it feasible to release [the applicant], given that he has committed several serious offences and may continue to commit crimes, intimidate witnesses to interfere with the administration of justice, or abscond.” 11. On 23 June and 21 July 2005 the District Court extended the applicant’s detention until 28 July and 28 August 2005 respectively. In each of the detention orders the court noted as follows: “[The court] does not consider it feasible to release [the applicant], given that he has committed several offences, some of which were very serious, and may, if released, continue to commit crimes, intimidate witnesses to interfere with the administration of justice, or abscond.” 12.", "On 5 August 2005 the Regional Court upheld the decision of 23 June on appeal. 13. According to the Government, in 2004-2005 a number of witnesses complained to the investigator that the applicant had threatened them while at liberty. According to the applicant, it was the investigator who encouraged the witnesses to complain. On an unspecified date the witnesses confirmed the applicant’s allegations in court.", "2. Detention pending trial 14. On 2 August 2005 the District Court received the case file for the trial, which involved six defendants, including the applicant. 15. On 24 August 2005 the District Court fixed the trial date for 28 September 2005 and extended the detention of five of the defendants until 28 February 2006.", "The court noted, in particular, as follows: “Having regard to the fact that Ch., [the applicant], M., K., and A. are charged with particularly serious offences ..., they may continue to commit crimes, intimidate witnesses to interfere with the administration of justice, or abscond. The court does not discern any reason why they should be released.” 16. On 2 September 2005 the Regional Court upheld the decision of 21 July 2005 on appeal. 17. On 28 September 2005 the Regional Court considered an appeal lodged by the applicant against the court order of 24 August 2005 and upheld it in substance, changing the end date of the applicant’s detention to 2 February 2006.", "18. On 1 February 2006 the District Court extended the applicant’s detention until 2 May 2006. The court referred to the gravity of the charges against the applicant, noting that he might, if released, continue to commit crimes and put pressure on witnesses. On 17 March 2006 the Regional Court upheld the decision of 1 February 2006 on appeal. 19.", "On 24 April 2006 the District Court extended the applicant’s detention until 2 August 2006, reiterating verbatim its reasoning of 1 February 2006. On 26 May 2006 the Regional Court upheld the decision on appeal. 20. On 1 August 2006 the District Court extended the detention of five of the defendants, including the applicant, until 2 November 2006. The court stated as follows: “Having heard the parties to the proceedings and having studied the material in the case file, the court does not discern any reason why the earlier imposed preventive measure in the form of custody should be lifted or replaced.", "[The defendants] are charged with serious and particularly serious criminal offences ... The court has not received any information to suggest that the defendants are unfit for detention on health grounds.” 21. On 1 September 2006 the Regional Court upheld the decision of 1 August 2006 on appeal. 22. On 1 November 2006 the District Court extended the detention of five of the defendants until 2 February 2007.", "The court reiterated that they had been charged with particularly serious offences and might continue to commit crimes, intimidate witnesses to interfere with the administration of justice, or abscond. On 9 November 2006 the applicant lodged an appeal against the decision of 1 November 2006. 23. On 13 December 2006 the Regional Court upheld the decision of 1 November 2006 on appeal. 24.", "On 1 February 2007 the District Court extended the detention of the applicant and three of his co-defendants until 2 May 2007. The court noted as follows: “... the court concludes that ... the [defendants’] pre-trial detention should be extended ... [They] are charged with particularly serious and serious criminal offences. If released, the defendants may continue to commit crimes or put pressure on witnesses and the victims. The [defendants’] release from custody would seriously hamper the examination of the case. The reasons justifying the remand of the defendants in custody have not ceased to exist.” 25.", "On 26 April 2007 the District Court extended the detention of the applicant and three of his co-defendants until 2 August 2007. The court stated as follows: “... the court concludes that ... the [defendants’] pre-trial detention should be extended ... [They] are charged with particularly serious and serious criminal offences. A number of witnesses have not yet been questioned. If released, the defendants may put pressure on witnesses and the victims. The [defendants’] release from custody would seriously hamper the examination of the case.", "The reasons justifying the remand of the defendants in custody have not ceased to exist.” 26. On 16 May 2007 the Regional Court upheld the decision of 1 February 2007 on appeal. 27. On 31 July 2007 the District Court extended the detention of the applicant and three of his co-defendants until 2 November 2007. In particular, the court noted as follows: “... the court concludes that ... the [defendants’] pre-trial detention should be extended ... [They] are charged with particularly serious and serious criminal offences.", "Prosecution witnesses B. and E. have not yet been questioned. If released, the defendants may put pressure on witnesses; given the character of each of the defendants, they may abscond, continue to commit crimes, intimidate witnesses and other parties to the proceedings, or otherwise interfere with the administration of justice. ... The [defendants’] release from custody would seriously hamper the examination of the case. The reasons justifying the remand of the defendants in custody have not ceased to exist.” 28.", "On 15 August 2007 the Regional Court upheld the decision of 26 April 2007 on appeal. 29. On 30 October 2007 the District Court extended the detention of the applicant and three of his co-defendants until 8 February 2008. The court reasoned as follows: “... the court concludes that ... the [defendants’] pre-trial detention should be extended ... [They] are charged with particularly serious and serious criminal offences. Witness E., expert witnesses and lay witnesses who participated in the investigation ... have not yet been questioned.", "If released, the defendants may put pressure on witnesses; given the character of each of the defendants, they may abscond, continue to commit crimes, intimidate witnesses and other parties to the proceedings, or otherwise interfere with the administration of justice. ... The [defendants’] release from custody would seriously hamper the examination of the case. The reasons justifying the remand of the defendants in custody have not ceased to exist.” 30. On 21 December 2007 the Regional Court adjourned an appeal by the applicant against the detention order of 30 October 2007 to ensure his participation in the hearing.", "On 26 December 2007 the Regional Court upheld the decision of 31 July 2007 on appeal. 31. On 23 January 2008 the Regional Court upheld the decision of 30 October 2007 on appeal. 32. On 31 January 2008 the District Court extended the applicant’s pre-trial detention until 2 March 2008.", "The court referred to the gravity of the charges against the applicant and the complexity of the case. On 27 February 2008 the Regional Court upheld the decision of 31 January 2008 on appeal. The applicant was convicted by the District Court on 28 February 2008 (see paragraph 36 below). B. Criminal court proceedings 33.", "Following the applicant’s arrest on 16 September 2004 and the preliminary investigation, on 2 August 2005 the criminal case file, comprising seventeen volumes of documents, was received by the District Court for the trial. 34. The six defendants, including the applicant were charged with numerous counts of fraud, robbery, threats to kill, extortion and money laundering. The trial court was to question fifty witnesses and to study substantial volumes of documentary evidence. The court held one-hundred‑and-twenty-five hearings.", "35. The Government provided the following information as regards adjournments of the trial hearings: Date Reason for adjournment 28 September and 31 October 2005 The applicant asked for additional time to study the case file. From 1 to 5 December 2005 The trial was stayed. From 7 December 2005 to 30 January 2006 The trial was stayed. 30 January 2006 The applicant and his lawyer asked for certain witnesses to be summoned for questioning.", "20 February 2006 A number of defendants could not attend the hearing on account of illness. From 29 March to 24 April 2006 The trial was stayed. From 17 to 24 May 2006 The trial was stayed. 24 May 2006 The judge was on sick leave. 29 June 2006 The defendants remanded in custody were not transported to the courthouse.", "14 July 2006 One of the defence counsel failed to appear. 6 September 2006 The defendants remanded in custody were not transported to the courthouse. 20 September 2006 One of the defence counsel failed to appear. 4 October 2006 One of the defence counsel failed to appear. According to the Government, witness F. failed to appear from that day on in court until the appeal hearing.", "From 11 to 25 October 2006 The trial was stayed. 25-26 October 2006 One of the defence counsel failed to appear. 20 and 27 March 2007 One of the defence counsel failed to appear. 24 and 26 April 2007 One of the defence counsel failed to appear. 6, 13 and 14 June 2007 One of the defence counsel failed to appear.", "24 and 31 July 2007 One of the defence counsel failed to appear. 2 August to 11 September 2007 The judge was on annual leave. 11 September 2007 One of the defence counsel failed to appear. 36. On 28 February 2008 the District Court found the applicant guilty of extortion and fraud, and sentenced him to three-and-a-half years’ imprisonment.", "The applicant appealed, maintaining his innocence. 37. On 15 May 2008 the applicant was released upon having served his sentence. 38. On 24 December 2008 the Regional Court reclassified the applicant’s conviction without changing the imposed sentence.", "C. Conditions of detention 1. Temporary detention unit 39. From 16 to 18 November 2004 the applicant was detained in a temporary detention unit at the regional police headquarters. According to the Government, the applicant was held in a cell measuring 18.36 square metres. The cell had four sleeping places, but the applicant was the only occupant.", "A vent in the window permitted access to fresh air. There were two windows in the cell covered with metal grills, which did not prevent access to daylight. The toilet was located in the left corner of the cell, some 2.7 metres away from the dining table and some 2.4 metres away from the nearest sleeping place. It was separated from the living area of the cell by a 1.35-metre-high wooden partition. 40.", "According to the applicant, there was no running tap water in his cell. The lighting was insufficient, and he was not given the opportunity to take any outdoor exercise. 2. Remand prison no. IZ-71/1 in Tula (a) The description provided by the Government 41.", "The Government provided the following information as regards the conditions of the applicant’s detention in remand prison no. IZ-71/1 in Tula from 19 November 2004 to 15 May 2008: Period of detention Cell no. Surface area in square metres Number of beds Number of inmates From 19 November 2004 to 18 March 2005 20 9.8 6 4-6 From 18 March 2005 to 9 June 2007 36 35 21 14-19 From 9 June to 2 July 2007 54 10.7 6 2-4 From 2 July to 1 August 2007 36 35 21 14-16 From 1 August 2007 to 15 May 2008 48 29 12-14 7-10 42. All the cells in the remand prison were equipped with a ventilation system ensuring adequate fresh air circulation. 43.", "The windows in the cells were covered with metal grills, which did not prevent access to daylight. The cells had electric lighting, which was constantly switched on. From 10 p.m. to 6 a.m. the cells were lit with 60-watt bulbs. This night lighting was used for surveillance purposes and to facilitate the use of the toilet. 44.", "The toilet was located in the corner of each cell, some 2.5 metres away from the nearest bed and some 3 metres away from the dining table. It was separated from the living area of the cell by a 1.5-metre-high wooden partition and a wooden door, which ensured sufficient privacy for the person using it. 45. Inmates were allowed at least an hour’s daily outdoor exercise in designated exercise areas measuring 30.8 square metres on average. The exercise areas were covered with metal wire mesh, with openings measuring 17 x 17 square centimetres.", "46. The applicant was not confined to his cell all the time. On numerous occasions he met with the investigator for questioning and participation in other investigative activities. He had meetings with his lawyers and visits from his family. According to copies of the relevant records of the remand prison, none of the meetings or visits lasted any longer than two hours.", "The Government’s submissions on the issue can be summarised as follows: Year Number of meetings 2004 The applicant had four meetings with his lawyer and one meeting with the investigator. He had two family visits. 2005 On fifteen occasions the applicant met with his lawyers. He had forty-eight meetings with the investigator and three family visits. 2006 The applicant had twelve meetings with his lawyers and two meetings with the investigator.", "He had six family visits. 2007 The applicant had thirty-three meetings with his lawyers. He met with the investigator twice. 2008 The applicant met with his lawyers four times. He met with the investigator twice and two family visits.", "(b) The description provided by the applicant 47. According to the applicant, the number of inmates detained in remand prison no. IZ-71/1 in Tula was much higher than the number suggested by the Government. In particular, he submitted that in cell no. 20 the number of inmates had been between six and seven, and in cell no.", "36 between sixteen and twenty-two people had been detained with him. 48. The lighting in the cells was constantly switched on. There was one window in each cell, but it did not permit much access to fresh air, as the ventilation system did not comply with the accepted standards. Water was available from 6.30 a.m. to 9 a.m., from 12 noon to 3 p.m., and from 6 p.m. to 10 p.m.", "The toilet was separated from the living area of the cells by a 1-metre-high partition, but it offered no privacy. The cells were infested with insects. The administration took no measures to exterminate them. The inmates were allowed a one-hour walk per day. The exercise area did not have any sports equipment.", "The food was of a poor quality. There were no refrigerators in the cells. On several occasions inmates suffering from tuberculosis and AIDS were placed in the same cells as non-infected inmates. II. RELEVANT DOMESTIC LAW A.", "Conditions of pre-trial detention 49. Section 22 of the Detention of Suspects Act (Federal Law no. 103‑FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Under section 23, detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and be given bedding, tableware and toiletries.", "Each inmate should have no less than four square metres of personal space in his or her cell. B. Pre-trial detention 1. Grounds for ordering detention on remand 50. Article 97 of the Code of Criminal Procedure (CCrP) provides that an investigator or a court may order a preventive measure, for instance detention pending investigation or trial, if there were sufficient grounds to consider that the defendant might abscond, continue his or her criminal activity or threaten a witness or otherwise obstruct the proceedings.", "They must also take into account the gravity of the charge, information on the defendant’s character, his or her profession, age, health condition, family status and other circumstances (Article 99 of the CCrP). Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1of the CCrP). 2. Review of pre-trial detention 51. An appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention (Article 108 § 10 of the CCrP). A statement of appeal should be submitted to the court at first level of jurisdiction (Article 355 § 1 of the CCrP).", "The CCrP contains no time-limit during which the court at first level of jurisdiction should send the statement of appeal and the case file to the appeal court. The appeal court must decide the appeal within three days after its receipt (Article 108 § 10 of the CCrP). C. Remedies in respect of a violation of the right to trial within a reasonable time 52. Federal Law No. 68-ФЗ of 30 April 2010 (in force as of 4 May 2010) provides that in the case of a violation of the right to a trial within a reasonable time, the party concerned is entitled to seek compensation in respect of non-pecuniary damage.", "Federal Law № 69-ФЗ (enacted on the same date) introduced a number of corresponding changes to the Russian legislation. 53. Section 6.2 of Federal Law No. 68-ФЗ provided that parties who had an application pending before the European Court of Human Rights concerning a violation of their right to a trial within a reasonable time, had six months from the date of entry into force of the Law to lodge their claim for compensation with the domestic courts. THE LAW I.", "ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 54. The applicant complained that he had been detained in appalling conditions pending the criminal proceedings against him in contravention of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The applicant also claimed that he did not have at his disposal an effective remedy in respect of the conditions of his pre-trial detention. He relied on Article 13 of the Convention, which, in so far as relevant, provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ...” A. Admissibility 1. Compliance with the six months’ rule 55. Regard being had to the differences in the material conditions of the applicant’s detention in the temporary detention centre from 16 to 18 November 2004 and the remand prison from 19 November 2004 to 15 May 2008, which fact is not disputed by the parties, the Court does not find that those two periods in question constituted a “continuing situation” requiring a global assessment (see Pavlenko v. Russia, no.", "42371/02, § 73, 1 April 2010, and Maltabar and Maltabar v. Russia, no. 6954/02, § 83, 29 January 2009). The Court further notes that the complaint in respect of the applicant’s detention in the temporary detention centre, which lasted from 16 to 18 November 2004, was lodged only on 9 June 2007, that is almost two-and-a-half years after the end of the period complained of. The Court also takes into account the applicant’s contention that he had not had an effective domestic remedy against the alleged violation and the fact that he had not brought his grievances to the attention of any domestic authority. In such circumstances, in the Court’s view, it was incumbent on the applicant to raise the complaint within the six months from the end-date of the period complained of.", "By having failed to do so, he has not complied with the six months’ rule in respect of his complaint about the conditions of detention in the temporary detention centre from 16 to 18 November 2004 and it must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 56. The Court further notes that, by lodging the complaint on 9 June 2007, the applicant has complied with the six months’ rule in respect of his grievances about the conditions of his detention in remand prison no. IZ‑71/1 in Tula from 19 November 2004 to 15 May 2008. 2.", "Exhaustion of domestic remedies 57. As regards the conditions of the applicant’s detention in the remand prison from 19 November 2004 to 15 May 2008, the Government submitted that his complaint should be dismissed for failure to exhaust effective domestic remedies. They asserted that it had been open to the applicant to bring a civil action for damages or restitution. They relied on the following examples of domestic case-law. On 19 July 2007 the Novgorod City Court of the Novgorod Region had awarded 45,000 Russian roubles (RUB) to D. in respect of non-pecuniary damage on account of the domestic authorities’ failure to ensure him with adequate conditions of detention between 3 November 2004 and 5 July 2005.", "On 26 March 2007 the Tsentralniy District Court of Kaliningrad had granted R.’s claim for compensation in respect of non-pecuniary damage on account of the prison administration’s failure to provide him with adequate medical assistance. On 5 August 2009 the Astrakhan Regional Court had found credible A.’s allegations concerning the conditions of his detention in a remand prison and awarded him non-pecuniary damages in the amount of RUB 4,700. 58. The applicant claimed that he had not complained about the conditions of his detention for fear of reprisal on the part of the administration of the remand prison. It was also his view that any complaint he might have made about overcrowding in the remand prison would have been to no avail.", "59. The Court considers that the issue of non-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 in respect of his allegations about the inhuman and degrading conditions of his detention. The Court therefore finds it necessary to join the Government’s objection to the merits of the complaint under Article 13 of the Convention. 3. Conclusion 60.", "The Court further notes that the complaints under Articles 3 and 13 of the Convention, in so far as they concern the period from 19 November 2004 to 15 May 2008, are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. Article 13 of the Convention (a) The parties’ submissions 61.", "The Government reiterated their argument put forward in support of their assertion that the applicant had failed to exhaust the effective domestic remedies concerning the complaint under Article 3 of the Convention (see paragraph 57 above). 62. The applicant maintained his complaint. (b) The Court’s assessment 63. 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 centre. 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. 64. Having examined the Government’s arguments, the Court finds no reason to depart from this conclusion in the present case.", "Noting that the applicant raises an “arguable” complaint under Article 3 of the Convention, the Court finds that there has been a violation of Article 13 of the Convention. 2. Article 3 of the Convention (a) The parties’ submissions 65. Relying on extracts from the remand prison population register and certificates issued by its administration in August 2010, the Government asserted that the conditions of the applicant’s detention in remand prison no. IZ-71/1 in Tula had been compatible with the standards set forth in Article 3 of the Convention.", "They admitted that the personal space afforded him during the period in question had been below the statutory minimum. Nevertheless, at all times the applicant had had his own individual sleeping place. Inmates had not been confined to their cells. They had spent most of their time out of their cells, for example when meeting with their lawyers and receiving visits from their relatives, or when taking exercise outdoors or participating in investigative activities. 66.", "The applicant submitted that for three and a half years he had been detained in degrading and inhuman conditions which had caused him mental and physical suffering. (b) The Court’s assessment 67. For an overview of the general principles, see the Court’s judgment in the case of Ananyev and Others (cited above, §§ 139-159). 68. Turning to the circumstances of the present case, the Court observes that the parties disagreed as to most of the aspects of the conditions of the applicant’s detention in remand prison no.", "IZ-71/1 in Tula from 19 November 2004 to 15 May 2008. However, there is no need for the Court to establish the veracity of each and every allegation, because it can find a violation of Article 3 on the basis of the facts presented to it by the applicant which the respondent Government did not refute. 69. In this connection the Court takes into account the Government’s admission that during the period in question in remand prison no. 71/1 in Tula, the personal space afforded to each inmate was below the statutory minimum of 4 square metres.", "70. According to extracts from the remand prison population register submitted by the Government, the applicant was afforded no more than 3 square metres of personal space on average. Sometimes he had as little as 1.63 square metres. As a result of such overcrowding, the applicant’s conditions of detention did not meet the minimum standard as laid down in the Court’s case-law (see, among many other authorities, Ananyev and Others, cited above, §§ 143-49). This fact alone is sufficient for the Court to find that the problem of overcrowding had not been alleviated by the authorities in the present case.", "The Court does not lose sight of the fact that on certain days, the number of inmates detained with the applicant decreased and the personal space afforded to them exceeded 3 square metres. In the circumstances of the case, however, the Court does not consider that such occasional fluctuations in the remand prison population significantly affected the applicant’s situation as a whole. 71. Apart from an hour’s daily exercise, the applicant was confined to his cell for the rest of the time. In the Court’s view, his out of cell activity, namely occasional meetings with his lawyer, visits from his family, or fifteen-minute weekly showers, did not significantly alter the conditions of his detention.", "72. The Court therefore concludes that the applicant was subjected to inhuman and degrading treatment in breach of Article 3 of the Convention. In view of the Court’s findings under Article 13 of the Convention, the Government’s argument concerning the non-exhaustion of domestic remedies should be dismissed. 73. In the circumstances, the Court concludes that there has been a violation of Article 3 of the Convention.", "74. In view of the above, the Court does not consider it necessary to examine the remainder of the parties’ submissions concerning other aspects of the conditions of the applicant’s detention in remand prison no. 71/1 in Tula. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 75.", "The applicant complained that his pre-trial detention had been unreasonably lengthy. 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.” 76. The Government contested that argument. They submitted that the applicant’s pre-trial detention had been in compliance with Article 5 § 3 of the Convention.", "Firstly, the applicant had been remanded in custody on reasonable suspicion of having committed a serious criminal offence. Secondly, between 2004 and 2005 a number of witnesses had complained to the investigator that the applicant had threatened them while at liberty. Witness F. had disappeared before the court hearing of 4 October 2006 and his whereabouts had been unknown until the appeal hearing. In the Government’s view, the domestic courts’ findings as regards the risk that the applicant might abscond, put pressure on witnesses, or otherwise interfere with the administration of justice had been fully substantiated. The applicant’s pre-trial detention had been based on sufficient and relevant reasons.", "77. The applicant maintained his complaint. He claimed that the investigator had encouraged the witnesses to complain about him, but their complaints had not been based on fact, which had been confirmed by the witnesses themselves during their examination in court. A. Admissibility 78. 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 (a) General principles 79. The Court reiterates that the question whether a period of time spent in pre-trial detention is reasonable cannot be assessed in the abstract.", "Whether it is reasonable for an accused to remain in detention must be assessed on the facts of each case and according to its specific features. Continued detention can be justified in a given case only if there are actual indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110 et seq., ECHR 2000‑XI). 80. The existence and persistence of a reasonable suspicion that the person arrested has committed an offence is sine qua non for the lawfulness of the continued detention.", "However, after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continue to justify the deprivation of liberty. Where such grounds are “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, §§ 152 and 153, ECHR 2000‑IV). Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, no.", "38822/97, § 66, ECHR 2003‑I (extracts)). When deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures of ensuring his appearance for trial (see Jabłoński v. Poland, no. 33492/96, § 83, 21 December 2000). 81. The responsibility falls in the first place on the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable 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 public interest which justifies 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 established facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see, for example, McKay v. the United Kingdom [GC], no. 543/03, § 43, ECHR 2006‑X). (b) Application of these principles to the present case 82. The applicant was arrested on 16 November 2004 and convicted by the trial court on 28 February 2008 (see paragraphs 6, 33 and 36 above).", "Thus, the period to be taken into consideration lasted approximately three years and three-and-a-half months. 83. The Court accepts that the reasonable suspicion of the applicant having committed the offences he had been charged with, being based on cogent evidence, persisted throughout the trial leading to his conviction. It remains to be established whether the courts gave “relevant” and “sufficient” grounds to justify remanding the applicant in custody and whether they displayed “special diligence” in their conduct of the proceedings. 84.", "The inordinate length of the applicant’s pre-trial detention – three years and three-and-a-half months – is a matter of concern for the Court. It considers that the Russian authorities were required to put forward weighty reasons for keeping the applicant in pre-trial detention for such a long time. 85. When extending the applicant’s pre-trial detention, the domestic courts referred to the gravity of the charges against him. In this connection they noted that he might abscond, continue to commit crimes or intimidate witnesses.", "86. In this connection the Court reiterates that, although the severity of the sentence faced is a relevant element in the assessment of the risk of an accused absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the seriousness of the offence. Nor can continuation of the detention be used to anticipate a custodial sentence (see Letellier v. France, 26 June 1991, § 51, Series A no. 207; Panchenko v. Russia, no. 45100/98, § 102, 8 February 2005; Goral v. Poland, no.", "38654/97, § 68, 30 October 2003; and Ilijkov v. Bulgaria, no. 33977/96, § 81, 26 July 2001). 87. As regards the existence of a risk of absconding, the Court reiterates that such a risk cannot be gauged solely on the basis of the severity of the sentence faced. It must be assessed with reference to a number of other relevant factors, which may either confirm the existence of a risk of absconding or make it appear so slight that it cannot justify detention pending trial (see Panchenko, cited above, § 106, and Letellier, cited above, § 43).", "In the present case the domestic courts gave no reasons in their decisions why they considered the risk of his absconding to be decisive. Accordingly, the Court finds that the existence of a risk that the applicant might abscond was not established. 88. Similarly, the Court is not convinced that the domestic courts’ findings that he put pressure on witnesses or otherwise interfered with the administration of justice were sufficiently established. The Court observes that, in extending the applicant’s detention, the domestic courts did not refer to any complaints lodged by witnesses concerning threats made by the applicant.", "As it follows from their decisions, at no time did the court refer to any evidence as regards its conclusion that the applicant was likely to put pressure on witnesses. In any event, it appears that the domestic courts had sufficient time to take statements from the witnesses in a manner which could have excluded any doubt as to their veracity, and that would have eliminated the necessity to continue the applicant’s deprivation of liberty on that ground (see, for similar reasoning, Solovyev v. Russia, no. 2708/02, § 115, 24 May 2007). The Court therefore considers that the domestic courts were not entitled to regard the circumstances of the case as justification for using the risk of putting pressure on witnesses as a further ground for the applicant’s detention. 89.", "After the case had been sent for trial in August 2005, the court repeated the same standard formula to extend the detention of five and then four of the defendants, including the applicant. The Court has already found that the practice of issuing collective detention orders without a case-by-case assessment of the grounds for detention of each detainee is incompatible, in itself, with Article 5 § 3 of the Convention (see Shcheglyuk v. Russia, no. 7649/02, § 45, 14 December 2006; Korchuganova v. Russia, no. 75039/01, § 76, 8 June 2006; and Dolgova v. Russia, no. 11886/05, § 49, 2 March 2006).", "By extending the defendants’ detention by means of collective detention orders, the domestic courts gave no real consideration to their individual circumstances. 90. The Court further observes that when deciding whether a person should be released or detained, the authorities have an obligation under Article 5 § 3 to consider alternative measures of ensuring his or her appearance at court. This provision of the Convention enshrines not only the right to “trial within a reasonable time or to release pending trial” but also lays down that “release may be conditioned by guarantees to appear for trial” (see Jabłoński, cited above, § 83). In the present case the courts never considered the possibility of ensuring the applicant’s attendance by the use of a more lenient preventive measure.", "91. Having regard to the above, the Court considers that by relying essentially on the gravity of the charges, and by failing to substantiate their findings by addressing specific facts or to consider alternative “preventive measures”, the courts extended the applicant’s detention on grounds which, although “relevant”, cannot be regarded as sufficient to justify its duration of three years and three-and-a-half months. In these circumstances it is not necessary for the Court to examine whether the domestic courts acted with “special diligence”. 92. There has accordingly been a violation of Article 5 § 3 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 93. The applicant complained that his appeal against the detention order of 1 November 2006 had not been decided “speedily”, as the respective hearing had not taken place until 13 December 2006. On 7 December 2010 he raised a similar complaint with the Court in respect of the detention orders of 1 February, 26 April, 31 July and 30 October 2007. He relied on Article 5 § 4 of the Convention which reads as follows: “4.", "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 94. The Government admitted that one of the judges had failed to act on the applicant’s appeals against the detention orders upon receipt, thereby causing an infringement of his right to a speedy review of his pre-trial detention. In particular, on 23 January 2008 the Regional Court, when reviewing the extension of the applicant’s pre-trial detention on appeal, had expressly noted that judge L. had persistently delayed transferring the case file to the appellate court for consideration. The judicial qualifications board subsequently issued a warning to her for, inter alia, failing to comply with procedural time-limits when dealing with the applicant’s pre-trial detention. 95.", "The applicant maintained his complaint. A. Admissibility 96. The Court observes that the appeal hearings in respect of the detention orders of 1 February, 26 April, 31 July and 30 October 2007 were held on 16 May, 15 August and 26 December 2007 and 23 January 2008 respectively. Accordingly, the part of the applicant’s complaint concerning those appeal hearings should have been lodged no later than 23 July 2008. However, as it was lodged on 7 December 2010, it has been submitted belatedly and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.", "97. The Court further notes that his complaint in respect of the review of the detention order of 1 November 2006 held on 13 December 2006 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 Court reiterates that Article 5 § 4 of the Convention, in guaranteeing to detained persons a right to institute proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and the ordering of its termination if it proves unlawful (see Baranowski v. Poland, no. 28358/95, § 68, ECHR 2000‑III). The question whether the right to a speedy decision has been respected must be determined in the light of the circumstances of each case (see Rehbock v. Slovenia, no. 29462/95, § 84, ECHR 2000‑XII).", "99. The Court further considers that there is a special need for a swift decision determining the lawfulness of a detention in cases where a trial is pending, as the defendant should benefit fully from the principle of the presumption of innocence (see Iłowiecki v. Poland, no. 27504/95, § 76, 4 October 2001). 100. Turning to the circumstances of the present case, the Court observes that the applicant lodged an appeal against the detention order of 1 November 2006 on 9 November 2006, whereas the appellate court examined it on 13 December 2006 (see paragraphs 22-23 above).", "It follows that it took the domestic courts thirty-four days to schedule and hold the respective appeal hearing. 101. In the Court’s opinion, the issues before the appellate court were not complex. Nor is there anything in the material before the Court to suggest that either the applicant or his counsel contributed to the length of the appeal proceedings. Moreover, the Government did not provide any justification for the delays in the appeal proceedings.", "Accordingly, the entire length of the appeal proceedings in the present case was attributable to the authorities. The Court further reiterates that where an individual’s personal liberty is at stake, it has very strict standards concerning the State’s compliance with the requirement of speedy review of the lawfulness of detention (see Mooren v. Germany, no. 11364/03, § 74, 13 December 2007, and compare, for example, with Kadem v. Malta, no. 55263/00, §§ 44-45, 9 January 2003, where the Court considered a time-period of seventeen days in deciding on the lawfulness of the applicant’s detention to be excessive, and Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006, where the length of appeal proceedings lasting, inter alia, twenty-six days, was found to be in breach of the “speediness” requirement of Article 5 § 4 of the Convention).", "102. Having regard to the above, the Court considers that the appeal proceedings for the review of the lawfulness of the applicant’s pre-trial detention cannot be considered compatible with the “speediness” requirement of Article 5 § 4 of the Convention. There has therefore been a violation of that provision. IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 103.", "The applicant further complained under Article 6 § 1 of the Convention that the criminal proceedings against him had been unreasonably lengthy. Article 6 reads, in 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 ...” 104. The Government submitted that the criminal proceedings against the applicant had been complex. The case had involved six defendants charged with several counts of various offences, and the case file had comprised numerous volumes of documentary evidence. The trial had been adjourned several times, on account of the applicant’s requests to study the case file and the defence counsel’s failure to appear at court.", "105. The applicant maintained his complaint. A. Admissibility 106. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 107. The Court observes that the applicant was arrested on 16 September 2004. It takes this date as the starting point for assessing the length of the criminal proceedings against the applicant, and the end date as being 24 December 2008, when the applicant’s conviction was upheld on appeal (see paragraph 38 above).", "Accordingly, the period in question in the present case comprised four years and three-and-a-half months, which spanned the investigation stage and the court proceedings, when the case was reviewed by courts at two levels of jurisdiction. 108. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the applicant’s conduct and the conduct of the competent authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II). 109.", "The Court accepts the Government’s argument that the proceedings against the applicant were complex. The investigation was opened in respect of six defendants, including the applicant, who were charged with several counts of fraud, robbery, threats to kill, extortion and money laundering. 110. As regards the applicant’s conduct, the Court does not discern anything in the material before it to suggest that the applicant seriously contributed to the length of the proceedings. The fact that the trial was adjourned from 28 September to 1 December 2005 on account of the applicant’s request for additional time to study the case file did not have a significant adverse effect on the overall duration of the trial.", "111. As to the conduct of the authorities, the Court is satisfied that they demonstrated sufficient diligence in handling the proceedings. The investigation into the matter lasted for ten-and-a-half months. The appeal proceedings lasted approximately ten months. The trial hearings were held regularly.", "Admittedly, the trial at the first level of jurisdiction lasted almost two years and seven months, but the court held one-hundred-and-twenty-five hearings, and the Court discerns nothing in the material before it to suggest that there were any unreasonable delays or adjournments in the proceedings. 112. Making an overall assessment of the complexity of the case, the conduct of the parties and the total length of the proceedings, the Court considers that the latter did not go beyond what may be considered reasonable in this particular case. 113. There has accordingly been no violation of Article 6 § 1 of the Convention.", "V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN RESPECT OF THE COMPLAINT OF AN UNREASONABLE LENGTH OF PROCEEDINGS 114. The applicant further complained that he did not have an effective remedy in respect of the allegedly unreasonable length of the proceedings in his case. He relied on Article 13 of the Convention. 115. The Government submitted that the applicant had failed to bring his grievances to the attention of the domestic courts, asserting that he could have done so using the applicable domestic legislation in force since 4 May 2010.", "116. The applicant maintained his complaint. A. Admissibility 117. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 118. The Court considers the complaint under Article 13 in respect of the length of the proceedings arguable, even though it has not found a violation of the applicant’s right to a trial within a reasonable time. 119.", "The Court takes cognisance of the existence of a new remedy introduced by Federal Laws no. 68-ФЗ and no. 69-ФЗ in the wake of the pilot judgment adopted in the case of Burdov v. Russia (no. 2) (no. 33509/04, ECHR 2009).", "These laws, which entered into force on 4 May 2010, introduced a new remedy, which enables those concerned to seek compensation for damage sustained as a result of unreasonably lengthy proceedings (see paragraph 52 above). 120. The Court accepts that from 4 May 2010 and until 4 November 2010 the applicant had a right to use this remedy (see paragraph 53 above), but he did not choose to pursue it. 121. The Court observes that, in the pilot judgment cited above, it stated that it would be unfair to request applicants, whose cases have already been pending for many years in the domestic system and who have come to seek relief at the Court, to bring their claims again before domestic tribunals (see Burdov (no.", "2), cited above, § 144). In line with that principle, the Court decided to examine the complaint about the length of the proceedings on its merits and found no violation of the substantive provision of the Convention. 122. However, an examination of the present case on its merits should in no way be interpreted as prejudging the Court’s assessment of the quality of the remedy introduced in 2010. It will examine this question in other cases that are more suitable for such analysis.", "It does not see fit to do so in the present case, particularly as the parties’ observations were made in relation to a situation that had existed before its introduction. 123. Having regard to these special circumstances, the Court does not consider it necessary to pursue a separate examination of the complaint under Article 13 in the present case. VI. OTHER ALLEGED VIOLATION OF THE CONVENTION 124.", "Lastly, the applicant complained under Articles 6 and 13 of the Convention that the criminal proceedings against him had been unfair. Referring to Article 14 of the Convention, he alleged that he had been regarded as inferior on account of him being a defendant in criminal proceedings. 125. Having regard to all the material in its possession and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "VII. 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 1,400,000 euros (EUR) in respect of non­pecuniary damage.", "128. The Government argued that his claims were excessive and unreasonable. They further submitted that the finding of a violation would constitute sufficient just satisfaction in the circumstances of the case. 129. The Court accepts the Governments’ argument that the applicant’s claims appear excessive.", "Nevertheless, it considers that the non-pecuniary damage sustained by the applicant cannot be sufficiently compensated for by the 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 130. The applicant did not submit any claims for costs and expenses.", "Accordingly, the Court makes no award under this head. C. Default interest 131. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Joins to the merits the Government’s objection as to the exhaustion of domestic remedies in respect of the applicant’s complaint about the conditions of his detention in remand prison no.", "IZ-71/1 in Tula from 19 November 2004 to 15 May 2008 and rejects it; 2. Declares the complaints concerning the applicant’s conditions of detention in remand prison no. IZ-71/1 in Tula from 19 November 2004 to 15 May 2008 and the lack of effective remedy in this respect, the length and the review of the applicant’s pre-trial detention, the length of the criminal proceedings against him and the lack of an effective remedy in this respect admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 13 of the Convention on account of the lack of effective remedy in respect of the applicant’s complaint under Article 3 about the conditions of his detention; 4. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of his detention in remand prison no.", "IZ-71/1 in Tula from 19 November 2004 to 15 May 2008; 5. Holds that there has been a violation of Article 5 § 3 of the Convention on account of the length of the applicant’s pre-trial detention; 6. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the domestic court’s failure to examine speedily the applicant’s appeal against the detention order of 1 November 2006; 7. Holds that there has been no violation of Article 6 of the Convention on account of the length of the criminal proceedings against the applicant; 8. Holds that there is no need to examine the applicant’s complaint under Article 13 of the Convention on account of the lack of effective remedy in respect of the complaint about the length of the criminal proceedings against him; 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, EUR 16,000 (sixteen 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; 10. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 24 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]

[ "FOURTH SECTION CASE OF MODARCA v. MOLDOVA (Application no. 14437/05) JUDGMENT STRASBOURG 10 May 2007 FINAL 10/08/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Modarca v. Moldova, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG.", "Bonello,MrK. Traja,MrS. Pavlovschi,MrL. Garlicki,MsL. Mijović, judges,and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 12 April 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 14437/05) 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 Modârcă (“the applicant”), on 20 April 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 alleged, in particular, that he had been held in inhuman and degrading conditions and deprived of medical assistance, that he had been unlawfully detained and that the courts had not given relevant and sufficient reasons for his detention, that he had had no access to the relevant parts of his criminal file in order effectively to challenge his detention pending trial and that he had been prevented from holding confidential meetings with his lawyer. 4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court).", "On 16 September 2005 a Chamber of that Section decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1949 and lives in Chişinău.", "6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicant worked as the Head of the Architecture and Planning Department of the Municipal Council of Chişinău, one of the branches of the Chişinău Mayor's Office. Between 24 September 2004 and 23 February 2005 he was held in the remand centre of the Centre for Fighting Economic Crime and Corruption (CFECC).", "On 23 February 2005 he was transferred to the Remand Centre No. 3 of the Ministry of Justice in Chişinău (“prison no. 3”, which was subsequently re-named “prison no. 13”). The applicant suffers from “diffuse osteoporosis, discopathy at L3‑L4‑L5‑S1, hernia of the L5-S1 disc, radiculopathy at L5-S1 and sciatic pain”.", "1. The criminal file against the applicant and his detention pending trial 8. On 23 September 2004 the CFECC opened a criminal investigation against the applicant under Article 327(2)(c) of the Criminal Code for abuse of power in connection with the privatisation of a plot of land. On 24 September 2004 he was taken into custody by CFECC officers. 9.", "On 27 September 2004 the Buiucani District Court issued an order for his detention pending trial for 30 days. The reasons given by the court for issuing the order were as follows: “The criminal case was opened in accordance with the law, on the basis of Article 327 § 2 of the Criminal Code. [The applicant] is suspected of committing a serious offence punishable under the law by deprivation of liberty for more than two years; the evidence presented to the court was obtained lawfully and the investigating judge was shown relevant evidence that [the applicant] was indeed a danger to society, was liable to reoffend if at large and to destroy evidence, abscond from justice, obstruct the normal progress of the criminal investigation and influence evidence and witnesses”. 10. The applicant claimed that his lawyer had requested access to certain documents from the criminal file in order to challenge the grounds of his detention pending trial but had been denied access.", "11. In his appeal against his detention pending trial, the applicant submitted, inter alia, that he was ill and required medical treatment in order to prevent a worsening of his state of health and that no evidence had been submitted to the court about the danger of his absconding or influencing witnesses. He submitted that he had a family and permanent residence in Chişinău, a job and no previous convictions. On 1 October 2004 the Chişinău Court of Appeal upheld the decision of the Buiucani District Court of 22 November 2004. The court gave similar reasons for detaining the applicant pending trial, adding that his state of health was not incompatible with detention.", "12. On 8 October 2004 the prosecution initiated a new criminal investigation in respect of the applicant under Article 327 of the Criminal Code for abuse of power in connection with the granting of a construction permit to a private company in breach of a municipal decision. The two cases against the applicant were joined on 3 January 2005. 13. The applicant requested replacement of his detention pending trial with house arrest.", "On 19 October 2004 the investigating judge of the Buiucani District Court rejected that request. Recalling general provisions of the Criminal Procedure Code regarding preventive measures, including detention and house arrest, he found that the applicant and his lawyer had not requested that the detention order be rescinded and replaced with alternative measures. The judge went on to find that his detention pending trial continued to be necessary because: “... the circumstances which formed the basis for detention remain valid; [the applicant] is liable to obstruct the normal progress of the criminal investigation and the establishment of the truth, to influence witnesses and abscond from justice.” On 24 October 2004 the case file was submitted to the trial court. 14. On 26 October 2004 the Chişinău Court of Appeal found that on 24 October 2004 the 30 days of detention pending trial ordered by the lower court had expired and that it was primarily for the trial court to examine any matters concerning the applicant's detention pending trial.", "The lawyer's request for access to certain elements of the case file against the applicant was allegedly again refused. 15. On 1 November 2004 the applicant requested that the charges against him be dropped as unfounded and that the order for his detention pending trial be rescinded or replaced by a personal guarantee from three well-known citizens. 16. On 2 November 2004 the Centru District Court rejected these requests as unfounded.", "It found that the grounds for detention remained valid and that there was no reason to believe that the applicant could not be given medical assistance in the remand centre of the CFECC. The applicant appealed twice but the appeals were not examined, the courts finding that no appeal lay against such decisions in the course of preliminary proceedings. 17. On 15 November 2005 the court ordered the replacement of the applicant's detention with house arrest. 2.", "Alleged interference with communication between the applicant and his lawyer 18. The applicant's lawyer asked for permission to hold confidential meetings with his client. They were offered a room where they were separated by a glass partition and allegedly had to shout to hear each other. It appears from the video recording submitted by the Government that in the lawyer-client meeting room of the CFECC detention centre, the space for detainees is separated from the rest of the room by a door and a window. The window appears to be made of two plates of glass.", "Both plates have small holes pierced with a drill. Moreover, there is a dense green net made either of thin wire or plastic between the glass plates, covering the pierced area of the window. There appears to be no space for passing documents between the lawyer and his or her client. 19. Having refused to meet under such conditions on several occasions, the applicant requested the Buiucani District Court to oblige the authorities in the CFECC remand centre to allow confidential meetings.", "On 13 October 2004 the court rejected that request as unfounded, finding that no rights of the applicant had been violated and that the meeting had taken place “in the conditions of the remand centre of the CFECC and in conformity with Article 187 of the Criminal Procedure Code”. 20. On 1 November 2004 his lawyer again requested the court to oblige the remand centre authorities to allow confidential meetings with his client. On 2 November the Centru District Court granted this request. 21.", "On 4 November 2004 the applicant's lawyer presented that decision to the CFECC authorities and asked for a separate room in order to meet with his client in confidence. However, they had to meet in the same office separated by a glass partition. 22. On 16 November 2004 the applicant's lawyer again requested the Centru District Court to oblige the CFECC authorities to allow confidential meetings with his client. On 19 November 2004 he informed the Prosecutor General of his and his client's inability to meet on five separate occasions between September and November 2004 because of the lack of confidentiality, and of the applicant's hunger strike in protest against this situation, a strike which he had ended only when the court had granted his request for confidential meetings on 2 November 2004.", "He referred to a strike by the Moldovan Bar Association in April-May 2003 in protest at the lack of confidentiality of meetings with clients. Moreover, the prosecutor in charge of his case supported his request for confidential meetings. 23. On 23 November 2004 the Centru District Court found that its decision of 2 November 2004 had not been enforced and ordered the Head of the CFECC to pay a fine to the State. 24.", "On 26 November 2004 the applicant's lawyer again requested the Centru District Court to oblige the CFECC authorities to allow confidential meetings. In its decision of 3 December 2004 the court cited a letter from the remand centre authorities declaring that no recording devices had been installed in the meeting room. The court also found that the glass partition did not prevent confidential discussion and that it was necessary to protect the applicant's health and safety and prevent “any destructive action aimed at impeding determination of the truth”. The court ordered the CFECC to allow confidential meetings in the same meeting room as before. It did not set aside its decision of 2 November 2004.", "25. According to the applicant, in early February 2005 he held discussions with his lawyer in the meeting room about certain documents relevant to his case and told him the whereabouts of those documents. When the lawyer went to pick up the relevant documents, CFECC officers were already at the address. During the same period, he was allegedly asked by the CFECC authorities to refrain from using impolite words about them, words which he had used in a discussion with his lawyer in the meeting room. The Government have not commented on these allegations.", "3. Conditions of detention and medical assistance in the remand centres 26. According to the applicant, he had not been given any medical assistance while he was detained in the CFECC remand centre, in the absence of any medical personnel there. He complained in several of his habeas corpus requests of the possible worsening of his state of health as a result of his detention. Moreover, the medical assistance given in Prison no.", "3 had been inadequate and he had had to rely on medication sent to him by his wife. 27. The applicant's doctor had recommended that he receive osteopathic treatment once every three months and during flare-ups in pain, that he avoid cold and damp and be given balneotherapy every six months. 28. According to the applicant, the cell in which he had been detained between 23 February 2005 and 15 November 2005 in prison no.", "3 provided an area of 10m2 for four detainees. Since more than half that surface was occupied by bunk beds, a table, a sink and a toilet, the free space left amounted to 4.78m2 or 1.19m2 per detainee. The cell had very limited access to daylight since the window was covered with three layers of metal netting. It was not properly heated or ventilated. The applicant and other detainees had to bring their own clothing and bed linen and to repair and furnish the cell.", "Moreover, the State allocated approximately EUR 0.28 per day for purchasing food for each detainee (representing 35-40% of the sum required for food, as estimated by the authorities), and the food was inedible. Water and electricity were only provided on a schedule and were unavailable for certain periods, including during the entire night. Detainees had to refrain from using the toilet during such periods in order to limit the smell. On bath day there was virtually no running water in the cell throughout the day. The toilet was situated right across the table and smelt bad.", "Finally, the area for daily walks was situated just under the exhaust opening of the ventilation system in the part of the remand centre where detainees with tuberculosis were treated, creating a real danger of infection. The Government have not commented on this latter allegation. 29. According to the Government, the conditions of the applicant's detention were appropriate, as shown on a videotape of the cell and other parts of the prison. The cell was in a good hygienic state and was properly furnished, ventilated and heated and was designed to accommodate persons whose previous functions exposed them to the threat of violence from other detainees.", "One hour daily walk and a weekly visit to the shower facility were allowed. Moreover, the applicant had been visited regularly by various doctors from a prison hospital and received all the necessary assistance. Finally, the Government submitted medical evidence demonstrating that the doctor's recommendation regarding osteopathic treatment had not been followed during the year prior to the applicant's arrest. II. RELEVANT NON-CONVENTION MATERIAL A.", "Relevant domestic law and practice 30. The relevant domestic law and practice have been set out in Boicenco v. Moldova, no. 41088/05, § 64-71, 11 July 2006. In particular, as regards the exhaustion of domestic remedies, the Government relied on the following. 31.", "The Government referred to Article 53 of the Constitution, Article 1405 of the Civil Code and Law No. 1545 on compensation for damage caused by the illegal acts of the criminal investigation organs, prosecution and courts, as well as to the case of Drugalev v. the Ministry of Internal Afairs and the Ministry of Finance, mentioned in Boicenco, cited above, §§ 68-71). 32. The relevant part of Article 66 of the Code of Criminal Procedure reads as follows: “... (2) The accused ... has the right: ... (21) to read the materials submitted to the court in support of [the need for] his arrest;” 33. Between 1 and 3 December 2004 the Moldovan Bar Association held another strike, refusing to participate in any proceedings regarding persons detained in the remand centre of the CFECC until the authorities had agreed to provide lawyers with rooms for confidential meetings with their clients.", "The demands of the Bar Association were refused (see Sarban v. Moldova, no. 3456/05, § 126, 4 October 2005). 34. On 26 March 2005 the Moldovan Bar Association held a meeting at which the President of the Bar Association and the applicant's lawyer informed the participants that they had taken part, together with representatives of the Ministry of Justice, in a commission which had inspected the CFECC detention centre. During the inspection they had asked that the glass partition be taken down in order to check that there were no listening devices.", "They pointed out that it would only be necessary to remove a number of screws and proposed that all the expenses linked to the verification be covered by the Bar Association. The CFECC authorities rejected the proposal. 35. The applicant referred to the case of Paladi (decision of 20 September 2005), in which a complaint about the insufficiency of medical assistance in a prison hospital and a request to receive such assistance in a specialised hospital had not been examined for almost three months, despite an express invocation of Article 3 of the Convention. 36.", "On 24 October 2003 the Parliament adopted decision no. 415-XV, regarding the National Plan of Action in the Sphere of Human Rights for 2004-2008. The plan includes a number of objectives for 2004-2008 aimed at improving the conditions of detention, including the reduction of overcrowding, improvement of medical treatment, involvement in work and reintegration of detainees, as well as the training of personnel. Regular reports are to be drawn up on the implementation of the Plan. On 31 December 2003 the Government adopted a decision on the Concept of reorganisation of the penitentiaries' system and the Plan of Action for 2004-2013 for the implementation of the Concept of reorganisation of the penitentiaries' system, both having the aim, inter alia, of improving the conditions of detention in penitentiaries.", "37. At an unspecified date the Ministry of Justice adopted its “Report on the implementing by the Ministry of Justice of Chapter 14 of the National Plan of Action in the sphere of human rights for 2004-2008, approved by the Parliament Decision no. 415-XV of 24 October 2003”. On 25 November 2005 the Parliamentary Commission for Human Rights adopted a report on the implementation of the National Plan of Action. Both those reports confirmed the insufficient funding of the prison system and the resulting failure to fully implement the action plan in respect of the remand centres in Moldova, including prison no.", "3 in Chişinău. The first of these reports mentioned, inter alia, that “as long as the aims and actions in [the National Plan of Action] do not have the necessary financial support ... it will remain only a good attempt of the State to observe human rights, described in Parliament Decision no. 415-XV of 24 October 2003, the fate of which is non-implementation, or partial implementation.” B. Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 38. In its report of the visit on 20-30 September 2004, the CPT found that (unofficial translation): “55.", "The situation in the majority of penitentiaries visited, faced with the economic situation in the country, remained difficult and one recounted a number of problems already identified during the visits in 1998 and 2001 in terms of material conditions and detention regimes. Added to this is the problem of overcrowding, which remains serious. In fact, even if the penitentiaries visited did not work at their full capacity – as is the case of prison no. 3 in which the number of detainees was sensibly reduced in comparison with that during the last visit of the Committee – they continued to be extremely congested. In fact, the receiving capacity was still based on a very criticisable 2m2 per detainee; in practice often even less.", "79. The follow-up visit to prison no.3 in Chişinău does not give rise to satisfaction. The progress found was in fact minimal, limited to some current repair. The repair of the ventilation system could be done due primarily to the financial support of civil society (especially NGOs), and the creation of places for daily walk was due to support by the detainees and their families. The repair, renovation and maintenance of cells is entirely the responsibility of detainees themselves and of their families, who also pay for the necessary materials.", "They must also obtain their own bed sheets and blankets, the institution being able to give them only used mattresses. In sum, the conditions of life in the great majority of cells in Blocks I-II and the transit cells continue to be miserable. ... Finally, despite the drastic reduction of the overcrowding, one still observes a very high, even intolerable, level of occupancy rate in the cells. 83.", "... everywhere the quantity and quality of detainees' food constitutes a source of high preoccupation. The delegation was flooded with complaints regarding the absence of meat, dairy products. The findings of the delegation, regarding both the food stock and the communicated menus, confirm the credibility of these complaints. Its findings also confirmed that in certain places (in Prison no.3, [...]), the food served was repulsive and virtually inedible (for instance, presence of insects and vermin). This is not surprising, given the general state of the kitchens and their modest equipment.", "Moldovan authorities have always emphasized financial difficulties in ensuring the adequate feeding of detainees. However, the Committee insists that this is a fundamental requirement of life which must be ensured by the State to persons in its charge and that nothing can exonerate it from such responsibility. ...” C. Acts of the Committee of Ministers of the Council of Europe 39. Resolution (73) 5 of the Committee of Ministers of the Council of Europe concerning the Standard Minimum Rules for the Treatment of Prisoners (adopted by the Committee of Ministers on 19 January 1973), in so far as relevant, reads as follows: “93. An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representative, or shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him, and to receive, confidential instructions.", "At his request he shall be given all necessary facilities for this purpose. In particular, he shall be given the free assistance of an interpreter for all essential contacts with the administration and for his defence. Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.” 40. Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules (adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers' Deputies), insofar as relevant, reads as follows: “23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice. ... 23.4 Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential.", "... 23.6 Prisoners shall have access to, or be allowed to keep in their possession, documents relating to their legal proceedings.” THE LAW 41. The applicant complained of a violation of his rights guaranteed by Article 3 of the Convention. Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 42. The applicant also complained that his detention after the expiry of the last detention order, on 24 October 2004, had not been “lawful” within the meaning of Article 5 § 1 of the Convention, the relevant part of which provides: “1. Everyone has the right to liberty and security of person.", "No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;” 43. The applicant also complained that his detention pending trial had not been based on “relevant and sufficient” reasons. The relevant part of Article 5 § 3 reads: “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.” 44.", "The applicant also complained under Article 8 of the Convention that conversations with his lawyer were conducted through a glass partition and were overheard or possibly even recorded and that the authorities had failed to provide proper conditions for private discussions with his lawyer. Although his complaint was not communicated, the Government nevertheless submitted comments on it. In his observations, the applicant referred to this complaint under Article 5 § 4 of the Convention. The Government, having been given the possibility to comment on this change, did not submit any further comments in respect of this complaint. The Court, which is master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998‑I, § 44), considers that it is more appropriate to examine the problem raised by the applicant under Article 5 § 4 of the Convention.", "The relevant part of Article 5 § 4 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” I. ADMISSIBILITY OF THE COMPLAINTS A. Complaints under Article 3 of the Convention 1. Conditions of detention 45. The applicant complained that the lack of medical assistance in the CFECC remand centre and the conditions of his detention in Prison no. 3 amounted to inhuman and degrading treatment contrary to Article 3 of the Convention (see paragraphs 26-28 above).", "46. The Government argued that the applicant had not exhausted available domestic remedies in respect of the complaints under Article 3 of the Convention. 47. In so far as the remedy of a civil action to request an immediate end to the alleged violation is concerned (the Drugalev case), the Court has already found that it did not constitute sufficient evidence that such a remedy was effective at the relevant time (see Holomiov v. Moldova, no. 30649/05, § 106, 7 November 2006).", "Not having been informed of any development since the Drugalev decision, the Court does not see any reason for departing from that finding in the present case. It follows that this complaint cannot be rejected for failure to exhaust available domestic remedies. 2. Alleged lack of medical assistance 48. In respect of the complaint concerning the lack of medical assistance in the CFECC remand centre, the Court notes that the applicant made general complaints about the possible worsening of his state of health (see paragraphs 11 and 26 above).", "However, he never asked the remand centre personnel to provide him with medical assistance in relation to any specific problem; moreover, he was visited on a number of occasions by doctors from the prison hospital. While it appears that the applicant's doctor recommended regular treatment which was not administered during the applicant's detention, it is also clear that that treatment had not been followed in the year prior to his arrest (see paragraphs 27 and 29 above). 49. The Court considers that the lack of medical assistance in circumstances where such assistance was not needed cannot, of itself, amount to a violation of Article 3 of the Convention. Accordingly, the Court concludes that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "B. Complaints under Article 5 of the Convention 50. The applicant alleged that his rights guaranteed by Article 5 §§ 1, 3 and 4 of the Convention had been violated because he had been detained without a legal basis after 24 October 2004; the courts had not given “relevant and sufficient reasons” for their decisions to remand him in custody and to prolong his detention; his lawyer had not had access to any part of the criminal file in order effectively to challenge his detention pending trial and to formulate habeas corpus requests; and he had been unable to meet with his lawyer in private. 51. The Government submitted that, in accordance with the principle of subsidiarity, it was primarily for the domestic courts to determine the lawfulness of the applicant's detention.", "Had he been found by the domestic courts to have been unlawfully detained, he could have claimed damages in accordance with the law. Moreover, the courts had the power to apply the Convention directly. The applicant disagreed. 1. Access to the relevant materials of the file 52.", "The Court notes that the parties dispute whether oral requests were made for access to the materials in the case file. The Court has no means of establishing whether such requests were in fact made. However, it notes that the applicant did not submit any evidence that he had complained about the prosecution's refusal to allow him or his lawyer access to the relevant materials in his case file, even though he was entitled to have such access in accordance with the law (see paragraph 32 above). Accordingly, this complaint must be rejected for failure to exhaust domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention. 2.", "The alleged lack of a valid legal basis for the applicant's detention after 24 October 2004 53. The Court observes that the applicant did not raise his complaint under Article 5 § 1 before the domestic courts. It recalls that under Article 35 § 1 of the Convention normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see, among other authorities, the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 66). 54.", "It appears to the Court that there was a general practice in Moldova of detaining defendants without issuing a court order to that effect following the submission of their case files to the trial court. It notes the respondent Government's position in a number of recent cases (see Boicenco, cited above, § 146, Holomiov, cited above, § 123, and other cases pending before the Court), in which the Government considered the practice to be lawful and based on a number of provisions of the Code of Criminal Procedure. They did not submit examples of domestic courts' departure from the practice described above. Indeed, the applicants in both the cases mentioned above had expressly raised the issue before the domestic courts, but their complaints were rejected. 55.", "Furthermore, in the present case the Court of Appeal expressly mentioned the expiry of the 30-day period of detention pursuant to the last court order to detain the applicant (see paragraph 14 above), and relied on the submission of the case file to the trial court in deciding not to examine his appeal against the decision rejecting his habeas corpus request. 56. In view of the above, the Court considers that the applicant had no real prospect of success in lodging a complaint regarding the lack of a legal basis for his detention, given the general practice permitting the authorities to detain him in the absence of an order issued by a court. The practice appears to have been consistently applied by the courts in rejecting any challenge to detention and was fully supported by the Government. 3.", "Alleged lack of “relevant and sufficient” reasons for detention 57. The Court also notes that the applicant raised his complaint under Article 5 § 3 before the domestic courts, which found no appearance of a violation (see paragraphs 11 and 13-16 above). In such circumstances, it would be unreasonable to expect the applicant to initiate new proceedings claiming compensation for alleged violations which the courts have already dismissed. C. Conclusion 58. In view of the above, the Court concludes that the complaints under Article 3 regarding the conditions of detention and the complaints under Article 5 regarding the lack of a legal basis and of relevant and sufficient reasons for detention cannot be declared inadmissible for non-exhaustion of domestic remedies.", "Accordingly the Government's objection in respect of these complaints must be dismissed. No objection was raised as to the complaint regarding the refusal to allow confidential meetings with the applicant's lawyer (Article 5 § 4 of the Convention). 59. The Court further considers that the applicant's complaints under Articles 3 (regarding the conditions of detention) and 5 §§ 1, 3 and 4 of the Convention raise questions of fact and law which are sufficiently serious that their determination should depend on an examination of the merits. It therefore declares these complaints admissible.", "In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 5 above), the Court will immediately consider the merits of these complaints. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 60. The applicant complained about a violation of his rights guaranteed by Article 3 of the Convention in respect of the conditions of his detention in prison no. 3 in Chişinău between 23 February and 15 November 2005 (see paragraphs 26-28 above).", "He also relied on the findings of the CPT and of the domestic authorities (see paragraphs 37 and 38 above). 61. The Government submitted that the conditions of the applicant's detention in that remand centre were acceptable (see paragraph 29 above). In addition, the authorities had taken a number of actions aimed at improving the conditions of detention (see paragraph 36 above). 62.", "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 refers to further principles well-established in its case-law in respect of conditions of detention in particular (see Sarban, cited above, §§ 75-77, 4 October 2005). 63. In the present case it is not disputed that the applicant was detained with three other persons in a cell measuring 10m2 (2.5 m2 per detainee).", "Moreover, the Government have not disputed the applicant's calculations and plan of the cell, according to which more than half of that space was occupied by the cell furniture and each detainee was left with 1.19m2 of free space (see paragraphs 28 and 29 above). It is noted that the CPT considers that 4 m² per prisoner is an appropriate and desirable guideline for a detention cell (see Ostrovar v. Moldova, no. 35207/03, § 82, 13 September 2005). 64. The Court has already held that severe overcrowding raises in itself an issue under Article 3 of the Convention (see Kadiķis v. Latvia (no.", "2), no. 62393/00, § 52, 4 May 2006). It also notes that the applicant had to spend 23 hours a day in cramped conditions (see paragraph 29 above) and that the only hour allowed for daily walks appears to have exposed his health to risk of infection with tuberculosis (see paragraph 28 above). 65. The Court notes that the Government have not disputed the presence of three layers of metal netting on the cell window which, according to the applicant, blocked most of the daylight.", "Similarly, there was no response to the applicant's claim that the provision of electricity and water had been discontinued for certain periods, notably during the night, and that the detainees in the applicant's cell had to refrain from using the toilet during such periods in order to limit the smell (see paragraphs 28 and 29 above). 66. It was not disputed that the applicant had not been provided with bed linen or prison clothes and had to invest, together with other inmates, in the repair and furnishing of the cell. Moreover, the dining table was situated close to the toilet, which smelt bad. 67.", "It was also undisputed that the daily expenses for food had been limited to EUR 0.28 per day for each detainee. The Court notes that the CPT has confirmed that in October 2004 the situation in this respect left a lot to be desired, the food being “repulsive and virtually inedible” (see paragraph 38 above). 68. To sum up, the applicant was detained in extremely overcrowded conditions with little access to daylight, limited availability of running water, especially during the night and in the presence of heavy smells from the toilet, while being given insufficient quantity and quality of food or bed linen. Moreover, he had to endure these conditions for almost nine months, which is much longer than the fifteen days which the applicant had to endure in Kadiķis (cited above, § 55).", "69. In the Court's opinion, the cumulative effect of the above conditions of detention and the relatively long period of time during which the applicant had to endure them amounted to a violation of Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 70. The applicant argued that since the expiry of the last court order for his detention pending trial no other court decision had provided for his further detention.", "He considered that the legal provisions referred to by the Government were not foreseeable in their application, contrary to the requirements of Article 5 of the Convention. He relied on Baranowski v. Poland (no. 28358/95, ECHR 2000‑III). 71. The Government stated that after the applicant's case file had been submitted to the trial court on 24 October 2004, it was for the trial court to deal with any requests regarding the applicant's detention pending trial, which was based on the clear provisions of the law.", "They relied on the same legal provisions as those relied on in Boicenco (cited above, §§ 64-71). 72. The Court recalls that it found a violation of Article 5 § 1 of the Convention in Boicenco (cited above, § 154) and Holomiov (cited above, § 130). Having examined the material submitted to it, the Court considers that the file does not contain any element which would allow it to reach a different conclusion in the present case. 73.", "The Court finds, for the reasons given in the cases cited above, that the applicant's detention pending trial after 24 October 2004, when the last court order for his detention expired, was not based on any legal provision. 74. There has, accordingly, been a violation of Article 5 § 1 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION A.", "The submissions of the parties 75. The applicant complained that the courts had not given “relevant and sufficient reasons” for their order to detain him pending trial. In particular, the courts had failed to give any details or evidence supporting their findings regarding the alleged dangers posed by the applicant's release. The applicant had submitted arguments in respect of each ground on which the domestic courts had relied in a general manner, but the courts had not responded in any way. 76.", "The Government disagreed, finding that the courts had given relevant and sufficient reasons based on the case file before them. The Government added that the reasons for detention pending trial need not be so detailed as to prove a suspect's guilt. They added details about the applicant's activities and the likelihood of his influencing witnesses or absconding, none of which had been mentioned by the domestic courts. B. The Court's assessment 77.", "The Court recalls the general principles established in its case-law in respect of the reasons for pre-trial detention (see, for instance, Sarban, cited above, §§ 95-99). 78. The Court will assume the existence of a reasonable suspicion that the applicant had committed a crime, given the lack of sufficient evidence to the contrary. However, it notes that the reasons relied upon by the domestic courts in their decisions to remand the applicant in custody and to prolong his detention (see paragraphs 9 and 13 above) were virtually identical to the reasons used by the domestic courts to remand the applicant in Sarban (cited above, at §§ 11 and 14). As in Sarban, the domestic courts limited themselves to paraphrasing the reasons for detention provided for by the Code of Criminal Procedure, without explaining how they applied in the applicant's case.", "Accordingly, the Court does not consider that the instant case can be distinguished from Sarban in what concerns the relevancy and sufficiency of reasons for detention. 79. There has accordingly been a violation of Article 5 § 3 of the Convention in this respect. V. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 80. The applicant complained that he had not been allowed to meet in private with his lawyer and had been separated from him by a glass partition, preventing normal discussion or work with documents.", "As a result they had had to shout to hear each other and had both refused on several occasions to meet in such conditions, informing the court that they were unable to prepare for hearings. The applicant lodged his initial complaint under Article 8 of the Convention but in his subsequent observations he referred to it under Article 5 § 4 of the Convention. 81. The Government submitted that the applicant had not been prevented from meeting in private with his lawyer and that the law expressly provided for such a right. In fact, they had met 18 times during the applicant's five‑month detention in the CFECC remand centre.", "No CFECC officer had been present at the meetings. Moreover, the correspondence between detainees and their lawyers could not be censored and the applicant had to be handed any document from his lawyer within 24 hours. 82. According to the Government, the glass partition was necessary to protect detainees and lawyers and did not prevent normal communication. The applicant had not provided proof that his discussions with the lawyer had been intercepted, which would be contrary to the law in any case.", "They further referred to the case of Kröcher and Möller v. Switzerland (no. 8463/78, DR 26, p.40) by way of justification for the glass partition. 83. In Reinprecht v. Austria (no. 67175/01, § 31, ECHR 2005‑...) the Court summarised the principles arising from its case-law on Article 5 § 4 as follows: “(a) Article 5 § 4 of the Convention entitles an arrested or detained person to institute proceedings bearing on the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty (see, among many others, Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no.", "145-B, pp. 34-35, § 65). (b) Although it is not always necessary that the procedure under Article 5 § 4 be attended by the same guarantees as those required under Article 6 of the Convention for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question (see, for instance, Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998‑VIII, p. 3302, § 162, and Włoch v. Poland, no. 27785/95, § 125, ECHR 2000-XI, both with reference to Megyeri v. Germany, judgment of 12 May 1992, Series A no. 237‑A, p. 11, § 22).", "(c) The proceeedings must be adversarial and must always ensure “equality of arms” between the parties (see Lamy v. Belgium, judgment of 30 March 1989, Series A no. 151, § 29). In case of a person whose detention falls within the ambit of Article 5 § 1(c) a hearing is required (see Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999‑II; Assenov and Others, cited above, § 162, with references to Schiesser v. Switzerland, judgment of 4 December 1979, Series A no. 34, p. 13, §§ 30-31; Sanchez-Reisse v. Switzerland, judgment of 21 October 1986, Series A no.", "107, p. 19, § 51; and Kampanis v. Greece, judgment of 13 July 1995, Series A no. 318‑B, p. 45, § 47). (d) Furthermore, Article 5 § 4 requires that a person detained on remand be able to take proceedings at reasonable intervals to challenge the lawfulness of his detention (see Assenov and Others, cited above, p. 3302, § 162, with a reference to Bezicheri v. Italy, judgment of 25 October 1989, Series A no. 164, pp. 10-11, §§ 20-21).” 84.", "Article 6 has been found to have some application at the pre-trial stage (see, for instance, Imbrioscia v. Switzerland, judgment of 24 November 1993, Series A no. 275, p. 13, § 36, and John Murray v. the United Kingdom, judgment of 8 February 1996, Reports, 1996‑I, p. 54, § 62) during which the review of the lawfulness of pre-trial detention typically takes place. However, this application is limited to certain aspects. 85. The guarantees provided in Article 6 concerning access to a lawyer have been found to be applicable in habeas corpus proceedings (see for example Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no.", "33, § 60). In Bouamar v. Belgium, (judgment of 29 February 1988, Series A no. 129, §60), the Court held that it was essential not only that the individual concerned should have the opportunity to be heard in person but that he should also have the effective assistance of his lawyer. 86. The Court's task in the present case is to decide whether the applicant was able to receive effective assistance from his lawyer so as to satisfy these requirements.", "87. One of the key elements in a lawyer's effective representation of a client's interests is the principle that the confidentiality of information exchanged between them must be protected. This privilege encourages open and honest communication between clients and lawyers. The Court recalls that it has previously held that confidential communication with one's lawyer is protected by the Convention as an important safeguard of one's right to defence (see, for instance, Campbell v. the United Kingdom, judgment of 25 March 1992, Series A no. 233, § 46 and Recommendation Rec(2006)2 (see paragraph 40 above)).", "88. Indeed, if a lawyer were unable to confer with his client and receive confidential instructions from him without surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective (see, inter alia, the Artico v. Italy judgment of 13 May 1980, Series A no. 37, p. 16, § 33). 89. The Court considers that an interference with the lawyer-client privilege and, thus, with a detainee's right to defence, does not necessarily require an actual interception or eavesdropping to have taken place.", "A genuine belief held on reasonable grounds that their discussion was being listened to might be sufficient, in the Court's view, to limit the effectiveness of the assistance which the lawyer could provide. Such a belief would inevitably inhibit a free discussion between lawyer and client and hamper the detained person's right effectively to challenge the lawfulness of his detention. 90. The Court must therefore establish whether the applicant and his lawyer had a genuine belief held on reasonable grounds that their conversation in the CFECC lawyer-client meeting room was not confidential. It appears from the applicant's submissions that his fear of having his conversations with his lawyer intercepted was genuine (see paragraph 22 above).", "The Court will also consider whether an objective, fair minded and informed observer would have feared interception of lawyer-client discussions or eavesdropping in the CFECC meeting room. 91. The Court notes that the problem of alleged lack of confidentiality of lawyer-client communications in the CFECC detention centre was a matter of serious concern for the entire community of lawyers in Moldova for a long time and that it had even been the cause of strike organised by the Moldovan Bar Association (see paragraph 33 above). The Bar's requests to verify the presence of interception devices in the glass partition was rejected by the CFECC administration (see paragraph 34 above), and that appears to have contributed to the lawyers' suspicion. Such concern and protest by the Bar Association would, in the Court's view, have been sufficient to raise a doubt about confidentiality in the mind of an objective observer.", "92. The applicant's reference to indirect proof of the fact that his discussions with his lawyer had been overheard (see paragraph 25 above) is far from proving that surveillance was carried out in the CFECC meeting room. However, against the background of the general concern of the Bar Association, such speculation might be enough to increase the concerns of the objective observer. 93. Accordingly, the Court's conclusion is that the applicant and his lawyer could reasonably have had grounds to believe that his conversations in the CFECC lawyer-client meeting room were not confidential.", "94. Moreover, the Court notes that, contrary to the Government's contention to the effect that the applicant and his lawyer could easily exchange documents, it is apparent from the video recording provided by the Government (see paragraph 18 above) that this was not the case because of the lack of any aperture in the glass partition. This, in the Court's view, rendered the lawyers' task even more difficult. 95. The Court recalls that in the case of Sarban v. Moldova it dismissed a somewhat similar complaint, examined under Article 8 of the Convention, because the applicant had failed to furnish evidence in support of his complaint and because the Court considered that the obstacles to effective communication between the applicant and his lawyer did not impede the applicant from mounting an effective defence before the domestic authorities.", "However, having regard to the further information at its disposal concerning the real impediments created by the glass partition to confidential discussions and exchange of documents between lawyers and their clients detained in the CFECC, the Court is now persuaded that the existence of the glass partition prejudices the rights of the defence. 96. The Government referred to the case of Kröcher and Möller v. Switzerland in which the fact that the lawyer and his client were separated by a glass partition was found not to violate the right to confidential communications. The Court notes that the applicants in that case were accused of extremely violent acts and were considered very dangerous. However, in the present case the applicant had no criminal record (see paragraph 11 above) and was prosecuted for non-violent offences.", "Moreover, it appears that no consideration was given to the character of the detainees in the CFECC detention centre. The glass partition was a general measure affecting indiscriminately everyone in the remand centre, regardless of their personal circumstances. 97. The security reasons invoked by the Government are not convincing as there is nothing in the file to confirm the existence of a security risk. Furthermore, in exceptional circumstances where supervision of lawyer-client meetings would be justified, visual supervision of those meetings would be sufficient for such purposes.", "98. In the light of the above, the Court considers that the impossibility for the applicant to discuss with his lawyers issues directly relevant to his defence and to challenging his detention on remand, without being separated by a glass partition, affected his right to defence. 99. There has accordingly been a violation of Article 5 § 4 of the Convention. VI.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 100. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 101. The applicant claimed 13,000 euros (EUR) in compensation for the damage caused to him by the violation of his rights, including EUR 9,000 for the violation of the various provisions of Article 5 of the Convention. In support of his claims he relied on the Court's case-law in respect of similar complaints.", "102. The Government disagreed with the amount claimed by the applicant, arguing that it was excessive in the light of the case-law of the Court. They submitted that the judgments cited by the applicant 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 necessary measures to accommodate the applicant's needs and his treatment did not reach the minimum threshold required by Article 3 of the Convention. Any finding of a violation of Article 5 of the Convention should constitute in itself just satisfaction.", "103. The Court considers that the applicant must have been caused a certain amount of stress and anxiety as a consequence of the authorities' failure to respect his rights guaranteed by Articles 3 and 5 (§§ 1, 3 and 4) of the Convention, namely his detention in inhuman conditions, as well as his detention without a proper legal basis or relevant reasons for over a year, and the failure to allow him to meet his lawyer in confidence. It awards the applicant the total sum of EUR 7,000 for non-pecuniary damage (see Ječius v. Lithuania, no. 34578/97, § 109, ECHR 2000‑IX). B.", "Costs and expenses 104. The applicant claimed EUR 8,208 for legal costs and expenses. He submitted a list of hours worked by his lawyer in preparing the case (amounting to 77 hours) and the hourly fee for each type of activity, which corresponded to a decision of the Moldovan Bar Association adopted on 29 December 2005 recommending the level of remuneration for lawyers representing applicants before international courts. 105. The Government considered these claims to be unjustified given the economic realities of life in Moldova.", "They argued that the applicant had not submitted a copy of any contract for his representation and questioned the number of hours spent on researching the Court's case-law and drafting the applicant's observations. 106. 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 (see Croitoru v. Moldova, no. 18882/02, § 35, 20 July 2004). According to Rule 60 § 2 of the Rules of Court, itemised particulars of claims made are to be submitted, failing which the Chamber may reject the claim in whole or in part.", "107. In the present case the Court notes that, while the applicant has not submitted a copy of a contract with his lawyer, he properly authorised the lawyer to represent him in the proceedings before this Court. However, the amount requested is excessive and should be accepted only in part. Regard being had to the itemised list of hours worked, the number and complexity of the issues dealt with, the Court awards the applicant EUR 1,800 for legal costs and expenses. C. Default interest 108.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares inadmissible the complaints under Article 3 of the Convention insofar as they relate to the alleged lack of adequate medical treatment and under Article 5 insofar as they relate to the failure to give access to the case materials, and the remainder of the application admissible; 2. Holds that there has been a violation of Article 3 of the Convention as regards the conditions of the applicant's detention in prison no.3; 3. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the applicant's detention after 24 October 2004 without a legal basis; 4.", "Holds that there has been a violation of Article 5 § 3 of the Convention in respect of the insufficiency of the reasons given for the prolongation of the applicant's detention; 5. Holds that there has been a violation of Article 5 § 4 of the Convention in respect of the interference with the applicant's right to communicate with his lawyer under conditions of confidentiality; 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, EUR 7,000 (seven thousand euros) for non-pecuniary damage and EUR 1,800 (one thousand eight hundred euros) for costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 10 May 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "T.L. EarlyNicolas BratzaRegistrarPresident" ]

[ "FIRST SECTION CASE OF MILLER AND OTHERS v. THE UNITED KINGDOM (Application no. 70571/14 and 6 others - see appended list) JUDGMENT STRASBOURG 11 April 2019 This judgment is final but it may be subject to editorial revision. In the case of Miller and Others v. the United Kingdom, The European Court of Human Rights (First Section), sitting as a Committee composed of: Aleš Pejchal, President,Jovan Ilievski,Gilberto Felici, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 21 March 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against the United Kingdom lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "Notice of the applications was given to the United Kingdom Government (“the Government”) on 21 September 2018. THE FACTS 3. A list of the applicants is set out in the appendix. I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicants were all incarcerated at the relevant time following criminal convictions for a variety of offences. They were automatically prevented from voting, pursuant to primary legislation, in one or more of the following elections: the elections to the European Parliament on 22 May 2014; the elections to the Scottish Parliament on 5 May 2016; and the parliamentary election on 8 June 2017 (for further details see the appended table). II. RELEVANT DOMESTIC LAW AND PRACTICE 5. The relevant domestic law and practice is set out in the Court’s judgments in Hirst v. the United Kingdom (no.", "2) [GC], no. 74025/01, ECHR 2005‑IX; and Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, ECHR 2010 (extracts). 6.", "Further developments since the Greens and M.T. judgment are set out in the Court’s decision in McLean and Cole v. the United Kingdom (dec.), nos. 12626/13 and 2522/12, 11 June 2013; in Firth and Others v. the United Kingdom, nos. 47784/09 and 9 others, 12 August 2014; in McHugh v. the United Kingdom, no. 51987/08 and 1,014 others, 10 February 2015; and in the Court’s decision in Millbank and Others v. the United Kingdom, nos.", "44473/14 and 21 others, 30 June 2016). 7. In 2018 the respondent Government adopted a number of administrative measures, including a change in policy and guidance in relation to prisoners released on temporary licence and on home detention curfew. On 6 December 2018 the Committee of Ministers at its 1331st meeting adopted Resolution CM/ResDH(2018)467 declaring that it was satisfied with the measures adopted by the respondent Government and deciding to close the examination of the Hirst (No.2) group of cases. COMPLAINTS 8.", "The applicants complain under Article 3 of Protocol No. 1 to the Convention that as convicted prisoners in detention they had been subject to a blanket ban on voting in elections and had accordingly been prevented from voting in elections (see paragraph 4 above). THE LAW I. JOINDER OF THE APPLICATIONS 9. 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 PROTOCOL No. 1 10. The applicants complained about their ineligibility to vote in elections. They relied on 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.” 11.", "The Court refers to the principles established in its case‑law regarding ineligibility to vote in elections (see paragraphs 5 and 6 above). 12. In the leading cases of Hirst (no. 2), cited above, and Greens and M.T., cited above, the Court already found a violation in respect of issues similar to those in the present case. 13.", "Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that that at the date of the index elections (all of which preceded the package of measures adopted by the respondent Government in 2018) the statutory ban on prisoners voting in elections was, by reason of its blanket character, incompatible with Article 3 of Protocol No. 1. 14. These complaints are therefore admissible and disclose a breach of Article 3 of Protocol No.", "1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 15. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 16. Regard being had to the documents in its possession and to its case‑law (see, in particular, Firth and Others, cited above), the Court concludes that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage sustained by the applicants.", "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 Protocol No. 1 concerning the ineligibility to vote in elections; 4.", "Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants. Done in English, and notified in writing on 11 April 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtAleš PejchalActing Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 3 of Protocol No. 1 (ineligibility to vote in elections) No. Application no.", "Date of introduction Applicant’s name Date of birth Representative’s name and location Election Details 70571/14 27/10/2014 Christopher Miller 09/10/1984 European Parliament 22 May 2014 72616/14 13/11/2014 James Cullinane 11/09/1964 European Parliament 22 May 2014 28334/16 12/05/2016 Brian Dick 29/12/1969 Scottish Parliament 5 May 2016 31138/16 26/05/2016 Joseph Millbank 19/07/1960 Scottish Parliament 5 May 2016 31413/16 25/05/2016 John Marshall 06/06/1945 Scottish Parliament 5 May 2016 59442/17 09/08/2017 Marcia Petra Julia Walker 21/12/1973 General Election 8 June 2017 81835/17 29/11/2017 Michael Christopher Hora 10/04/1966 Leigh Day Solicitors London General Election 8 June 2017" ]

[ "FIRST SECTION CASE OF KRAVCHENKO v. RUSSIA (Application no. 34615/02) JUDGMENT STRASBOURG 2 April 2009 FINAL 02/07/2009 This judgment may be subject to editorial revision. In the case of Kravchenko v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Khanlar Hajiyev,Dean Spielmann,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 12 March 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 34615/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vladimir Vladimirovich Kravchenko (“the applicant”), on 9 September 2002.", "2. The applicant was represented by Mr S. Ronshin and Mr V. Shakhlarov, lawyers practising in the Voronezh Region. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights. 3. The applicant alleged, in particular, that the quashing of a final judgment in his favour had violated his “right to a court” and his right to peaceful enjoyment of possessions.", "4. On 29 April 2005 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1960 and lives in Voronezh. A. Proceedings against the SBS-AGRO Bank 6. In August 1998 the applicant deposited 40,000 US dollars (USD) for three months with a private bank “SBS-AGRO” (hereafter – “the Bank”). Following the Bank’s refusal to return the deposit, the applicant sued the Bank for the deposit, interest and compensation for non-pecuniary damage.", "According to the Government, the Bank’s refusal to return the deposit was caused by a major financial crisis which had occurred in the Russian Federation in the summer of 1998 and which had led to the Bank’s inability to return money to its more than 1.2 million creditors. 7. In September 1998 the Central Bank of Russia adopted a programme aimed at the protection of deposits made by private individuals with private banks. In line with measures adopted, the Bank signed an agreement with the Russian Savings Bank. Under the terms of the agreement, the Bank transferred its liabilities to the Russian Savings Bank which, in its turn, undertook to repay deposits made in US dollars at the exchange rate of 9.33 Russian roubles for 1 US dollar.", "On 28 December 1998 the Bank, through a division of the Russian Savings Bank, paid the applicant 373,204 Russian roubles (RUB). 8. On 10 March 1999 the Zheleznodorozhniy District Court of Voronezh found that the applicant had not consented to the liability transfer. However, taking into account that he had already been repaid a part of the deposit, the District Court ordered that the Bank should repay the applicant USD 30,919.40 and that it should also pay him annual interest starting from the date of the pronouncement of the judgment. The District Court dismissed the claim for compensation for non-pecuniary damage.", "The judgment was not appealed against and became final on 22 March 1999. A month later the Moscow bailiffs’ office instituted enforcement proceedings. 9. On an unspecified date the Presidium of the Voronezh Regional Court, acting on an application for a supervisory review, quashed the judgment of 10 March 1999 and sent the case for a fresh examination. 10.", "On 29 February 2000, following the re-examination of the applicant’s action, the Zheleznodorozhniy District Court awarded him USD 20,841.68 in main debt, interest thereon and USD 2,853.73 in compensation for damage. That judgment was not appealed against and became final. B. General developments in the course of the enforcement proceedings instituted against the SBS-AGRO Bank 11. By the end of March 1999 over 2,000 enforcement claims were pending against the Bank, with an additional 70-80 claims added every week.", "12. On 16 August and 15 September 1999 the Central Bank of Russia declared a moratorium until 17 November 1999 on the execution of all creditors’ demands against the Bank. On 16 November 1999 the management of the Bank was taken over temporarily by the “Agency on Restructuring of Lending Agencies” (hereafter – “the ARKO”), set up by the State in accordance with the Law on Restructuring of Lending Agencies (hereafter - “the Law”). On 16 November 1999, in accordance with the Law, a moratorium was set for enforcement of all creditors’ demands against the Bank for a year. This period was prolonged by the ARKO on 17 November 2000 for another six months, until 17 May 2001.", "13. On 8 May 2001 the Moscow Commercial Court had approved the text of a tripartite friendly settlement involving the Association of the Bank’s Creditors, the Bank and the ARKO. The text of the friendly settlement was adopted at the general meeting of the Association of Creditors on 9 February 2001 by a majority of votes. The friendly settlement substantially limited the Bank’s liability to its creditors. 14.", "On 3 July 2001 the Constitutional Court found unconstitutional the legislative provision that allowed the ARKO unilaterally to extend the moratorium for another six months, and ruled that such decisions should be subject to judicial control. 15. Seven days later the Basmanniy District Court of Moscow ordered that the bailiffs should discontinue the consolidated enforcement proceedings against the Bank in respect of liabilities which had arisen before 16 November 1999. 16. On 23 July 2001 the Moscow bailiffs’ office discontinued the consolidated enforcement proceeding against the Bank and returned writs of execution to the courts which had issued them.", "On 29 September 2001 the bailiffs informed the applicant that the enforcement proceedings against the Bank had been discontinued. C. Proceedings against the ARKO 17. The applicant asked the ARKO to confirm that he had been recognised as a creditor of the Bank and to inform him about future meetings of the Bank’s creditors. On 11 September 2001 the ARKO notified the applicant that he had not been registered as a creditor of the Bank. The ARKO requested the applicant to send the documents showing the Bank’s liability to him.", "The applicant fulfilled the ARKO’s request. 18. On an unspecified date the applicant sued the ARKO and the Central Bank of Russia for damages. He claimed that the ARKO had not recognised him as a creditor of the Bank, that he had not participated in the friendly-settlement negotiations and that he had not been able to recover his money from the Bank. The applicant insisted that the respondents should repay him the Bank’s debt.", "19. On 17 December 2001 the Zheleznodorozhniy District Court held that the Central Bank and ARKO were responsible for the applicant’s inability to obtain payment of the judgment debt and that the refusal to recognise the applicant as a Bank’s creditor was unlawful. The District Court ordered that the ARKO should repay the applicant USD 30,919.40 of the Bank’s debt. 20. On 9 January 2002 the ARKO informed the applicant that he had been registered as the creditor of the Bank and the terms of the friendly settlement of 8 May 2001 were applicable to him although he had not been able to negotiate them.", "The applicant was also informed that according to the terms of the friendly settlement he would not be paid the judgment debt. 21. On 19 February 2002 the Voronezh Regional Court upheld the judgment of 17 December 2001. The Regional Court again confirmed that the terms of the friendly settlement could not be applied to the applicant and the fact that the draft of the settlement had been published in the press did not imply that the applicant had agreed to the terms of that document. 22.", "According to the Government, the applicant applied for a supervisory review of the judgments of 17 December 2001 and 19 February 2002. It appears from the case file that the Voronezh Regional Prosecutor lodged an application for a supervisory review, arguing that the judgment of 17 December 2001, upheld on appeal on 19 February 2002, was erroneous in that the applicant’s claims had been accepted. The prosecutor submitted that the terms of the friendly settlement should have been applied to the applicant’s claims against the Bank and thus his action against the ARKO should have been dismissed. 23. On 15 May 2002 the Presidium of the Voronezh Regional Court, by way of supervisory-review proceedings, quashed the judgments of 17 December 2001 and 19 February 2002 and remitted the case for a fresh examination.", "The Presidium noted that the District and Regional courts erred in assessing the facts of the case and that the terms of the friendly settlement should be applicable to the applicant because the information about the general assembly of the Bank’s creditors and the draft of the friendly settlement had been published in the press. 24. On 2 July 2003 the Zheleznodorozhniy District Court made a new judgment in the applicant’s favour and awarded him USD 30,919.40, relying on the same line of arguments as in its previous judgment of 17 December 2001 and citing the case-law of the European Court of Human Rights. That judgment was also quashed on appeal by the Voronezh Regional Court. The case was again sent for re-examination on 13 November 2003.", "25. On 20 December 2004 the Zheleznodorozhniy District Court of Voronezh again issued the judgment in the applicant’s favour, although reducing the amount of the award to USD 20.841,68. The judgment was quashed by the Voronezh Regional Court and the proceedings were discontinued because the ARKO had ceased to exist as a legal entity. THE LAW I. PRELIMINARY CONSIDERATIONS 26.", "The Court observes at the outset that in his application lodged with the Court on 9 September 2002 the applicant complained about the authorities’ failure to enforce the judgment of 10 March 1999 and about the quashing, by way of a supervisory review, of the judgment of 17 December 2001, as upheld on appeal on 19 February 2002. In his observations, lodged with the Court in March 2006, the applicant informed the Court that the judgment of 10 March 1999 had been quashed on a supervisory review, following which a new judgment in the case was adopted on 29 February 2000. He put forward an additional complaint arguing that the authorities had failed to enforce the new judgment issued in his favour on 29 February 2000. 27. In this connection the Court reiterates that it has jurisdiction to review, in the light of the entirety of the Convention’s requirements, the circumstances complained of by an applicant.", "In the performance of its task, the Court is free to attribute to the facts of the case, as established on the evidence before them, a characterisation in law different from that given by the applicant or, if need be, to view the facts in a different manner. Furthermore, they have to take into account not only the original application but also the additional documents intended to complete the latter by eliminating initial omissions or obscurities (see Ringeisen v. Austria, judgment of 16 July 1971, Series A no. 13, pp. 40-41, § 98, as compared with p. 34, § 79, and pp. 39-40, §§ 96-97).", "28. Turning to the present case, the Court observes that the new complaint pertaining to the non-enforcement of the judgment of 29 February 2000 was submitted after the notice of the initial application had been given to the Government on 29 April 2005. In the Court’s view, the new non-enforcement complaint is not an elaboration of his original complaints lodged to the Court more than three years earlier, on which the parties have already commented. The Court therefore decides not to examine the new complaint within the framework of the present proceedings (see Nuray Şen v. Turkey (no. 2) judgment of 30 March 2004, no.", "25354/94, § 200, and Melnik v. Ukraine, no. 72286/01, §§ 61-63, 28 March 2006). II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE NON-ENFORCEMENT OF THE JUDGMENT OF 10 MARCH 1999 29.", "The applicant complained that the judgment of 10 March 1999 had not been enforced. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 (see Burdov v. Russia, no. 59498/00, § 26, ECHR 2002‑III). The relevant parts of these provisions read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” Article 1 of Protocol No.", "1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...” A. Submissions by the parties 30. The Government submitted that the applicant had failed to challenge the application of the moratorium on the execution of the Bank’s creditors’ demands. In particular, he could have lodged a complaint before the Constitutional Court of the Russian Federation or the Moscow City Commercial Court, but he failed to make use of either of the avenues. In the Government’s view the complaint should therefore be dismissed for a failure to exhuast domestic remedies.", "In the alternative, relying on the case of Shestakov v. Russia ((dec.), no. 48757/99, 18 June 2002), they argued that the State could not guarantee the repayment of the financial liabilities of a private bank, particularly in a situation of major financial crisis. The enforcement proceedings against the private bank SBS-AGRO were discontinued in July 2001 due to the Bank’s insolvency and the applicant was notified of the discontinuation in September 2001. The State’s responsibility for the enforcement of a judgment against a private entity ended on the date the enforcement proceedings were discontinued. 31.", "The applicant averred that the judgment of 10 March 1999 had been unlawfully quashed by way of a supervisory review and that it had not been enforced. B. The Court’s assessment 32. The Court reiterates that on 10 March 1999 the applicant obtained a judgment against the Bank by which he was to be paid a certain sum of money. The judgment was not appealed against and became binding and enforceable.", "On an unspecified date the Presidium of the Voronezh Regional Court quashed the judgment by way of a supevisory review and sent the case for fresh examination, as a result of which, on 29 February 2000, the District Court issued a new judgment in the applicant’s favour. 33. The Court reiterates that, in accordance with Article 35 § 1 of the Convention, it may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months from the date of the “final” domestic decision. If there is no adequate remedy against a particular act, which is alleged to be in breach of the Convention, the date when that act takes place is taken to be “final” for the purposes of the six-month rule (see, e.g., Valašinas v. Lithuania (dec.), no. 44558/98, 14 March 2000).", "34. It was uncontested by the parties that at the material time the Russian law of civil procedure did not provide for any ordinary appeal against a decision in which the final judgement had been quashed by way of a supervisory review. In the absence of an effective remedy the Court concludes that it was the very act of quashing the final judgment of 10 March 1999 that triggered the start of the six-month time-limit for lodging this part of the application to the Court (see, mutatis mutandis, Sardin v. Russia (dec.), no. 69582/01, ECHR 2004‑II). The Court further notes that the quashing of a final judgment is an instantaneous act, which does not create a continuing situation, even if it entails a re-opening of the proceedings as in the instant case (see Sitokhova v. Russia (dec.), no.", "55609/00, 2 September 2004). In the present case the final judgment of 10 March 1999 was quashed by the Presidium of the Voronezh Regional Court sometime before 29 February 2000. The Court therefore finds it established that on that date the judgment of 10 March 1999 ceased to be binding and enforceable. There is no indication in the file that the applicant was not promptly notified of the Presidium’s decision to quash the judgment of 10 March 1999. However, it was not until 9 September 2002, more than six months after the decision had been quashed, that the applicant complained to the Court that the authorities had failed to enforce the judgment of 10 March 1999.", "35. 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. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE QUASHING OF THE JUDGMENT OF 17 DECEMBER 2001, AS UPHELD ON APPEAL ON 19 FEBRUARY 2002 36.", "The applicant complained that the quashing of the final judgment of 17 December 2001, as upheld on appeal on 19 February 2002, made in his favour violated his “right to a court” and his right to peaceful enjoyment of possessions. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. The relevant parts of these provisions are cited above. A. Submissions by the parties 37.", "The Government argued that Article 6 of the Convention was inapplicable to the proceedings against the Central Bank and the ARKO as the proceedings did not concern the applicant’s civil rights or obligations. In the Government’s view, the proceedings merely pertained to the enforcement of the judgment issued in the applicant’s favour. They insisted that the complaint should be dismissed as incompatible ratione materiae. In alternative, the Government argued that the Presidium of the Voronezh Regional Court had quashed the judgments in the applicant’s favour with a view to correcting the judicial error committed by the lower courts. 38.", "The applicant averred that the quashing of the final judgments had irremediably impaired the principle of legal certainty and had deprived him of the right to receive money he had been entitled to receive. B. The Court’s assessment 1. Article 6 § 1 of the Convention (a) Admissibility 39. As to the Government’s objection to the applicability of Article 6, the Court reiterates that under its case-law, for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute (“contestation” in the French text) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law.", "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. As the Court has consistently held, mere tenuous connections or remote consequences are not sufficient to bring Article 6 § 1 into play (see Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 47, Series A no. 43; Fayed v. the United Kingdom, 21 September 1994, § 56, Series A no. 294‑B; and Masson and Van Zon v. the Netherlands, 28 September 1995, § 44, Series A no.", "327‑A). Furthermore, Article 6 § 1 of the Convention is applicable where an action is “pecuniary” in nature and is founded on an alleged infringement of rights which are likewise pecuniary rights, notwithstanding the origin of the dispute (see, for example, Beaumartin v. France, judgment of 24 November 1994, Series A no. 296‑B, p. 60-61, § 28). 40. Turning to the facts of the present case, the Court observes that as a consequence of making a deposit with the Bank the applicant received certain depository rights during the Bank’s existence and on winding up of the Bank’s business.", "Furthermore, the applicant’s right to obtain repayment of the deposit, certain interest and compensation was confirmed by the final judgment. Decisions affecting the Bank’s fate, such as a decision to rehabilitate the Bank and relieve it from payment of liabilities to its creditors in full, without any doubt, affected the applicant’s rights as a creditor of the Bank, including his right to demand repayment of the judgment debt in full. 41. On 8 March 2001, under the terms of the friendly settlement agreement involving, inter alia, the Central Bank and the ARKO, the Bank was discharged from the obligation to repay its debts in full to its creditors, including those which were owed to the applicant. The Court notes in the first place that in his action against the Central Bank and the ARKO the applicant opposed the application of the terms of the friendly-settlement agreement to the Bank’s liabilities as set before him, maintaining that he had not taken part in the friendly-settlement negotiations and that the agreement therefore violated his right to recover the judgment debt.", "He further claimed to have suffered economic loss as a result of the respondents’ actions, for which he intended to seek compensation (see paragraph 18 above). In the opinion of the Court this clearly defined the proceedings, having regard to the context in which they were instituted and to the pecuniary nature of the applicant’s claims, as a dispute over a “civil right” within the meaning of Article 6 § 1 of the Convention (see Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom, 10 July 1998, § 61, Reports of Judgments and Decisions 1998‑IV). 42. Furthermore, the Court observes that the Government’s objection to the applicability of Article 6 concerned a more peculiar aspect. They insisted that the proceedings at issue constituted a part of the enforcement proceedings pertaining to the judgment debt awarded to the applicant against the Bank and, thus, in the Government’s opinion, Article 6 was inapplicable.", "Bearing in mind the finding in the previous paragraph and without accepting the Government’s argument as to the essence of the proceedings at issue, the Court considers it worth reiterating its case-law to the effect that Article 6 applies to enforcement proceedings because, in the absence of the necessary measures to comply with a final, enforceable judicial decision, Article 6 § 1 can be deprived of all useful effect (see Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, §§ 41, 45; Silva Pontes v. Portugal, 23 March 1994, § 36, Series A no. 286‑A and Lopatyuk and Others v. Ukraine, no. 903/05, § 14, 17 January 2008). The Court therefore dismisses the Government’s objection as to the applicability of Article 6 of the Convention to the proceedings under consideration. 43.", "The Court further notes that the present complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. (b) Merits 44. 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).", "45. This principle insists that no party is entitled to seek re-opening of the proceedings merely for the purpose of a rehearing and a fresh decision of the case. Higher courts’ power to quash or alter binding and enforceable judicial decisions should be exercised for correction of fundamental defects. The mere possibility of two views on the subject is not a ground for re-examination. Departures from that principle are justified only when made necessary by circumstances of a substantial and compelling character (see, mutatis mutandis, Ryabykh v. Russia, no.", "52854/99, § 52, ECHR 2003-X; and Pravednaya v. Russia, no. 69529/01, § 25, 18 November 2004). 46. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect.", "However, that right would be illusory if a Contracting State’s domestic legal system allowed a final and binding judicial decision to be quashed by a higher court on an application made by a State official whose power to lodge such an application is not subject to any time-limit, with the result that the judgments were liable to challenge indefinitely (see Ryabykh, cited above, §§ 54-56). 47. The Court observes that on 17 December 2001 the Zheleznodorozniy District Court granted the applicant’s application and awarded him USD 30,919.40 representing the judgment debt owed to him by the Bank. The judgment became binding and enforceable on 19 February 2002, when the Voronezh Regional Court upheld it on appeal. On 15 May 2002 that judgment was quashed by way of supervisory review initiated by the Voronezh Regional Prosecutor who was a State official but not a party to the proceedings (see paragraph 22 above).", "48. The Court has found a violation of an applicant’s “right to a court” guaranteed by Article 6 § 1 of the Convention in many cases in which a judicial decision that had become final and binding, was subsequently quashed by a higher court on an application by a State official whose power to intervene was not subject to any time-limit (see Roseltrans v. Russia, no. 60974/00, §§ 27-28, 21 July 2005; Volkova v. Russia, no. 48758/99, §§ 34-36, 5 April 2005; and Ryabykh, cited above, §§ 51-56). 49.", "Having examined the materials submitted to it, the Court observes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Accordingly, the Court finds that there has been a violation of Article 6 § 1 of the Convention on account of the quashing of the judgment given in the applicant’s case by way of supervisory-review proceedings. 2. Article 1 of Protocol No. 1 (a) Admissibility 50.", "The Court observes that the applicant’s complaint under Article 1 of Protocol No. 1 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. (b) Merits 51. The Court reiterates that the existence of a debt confirmed by a binding and enforceable judgment constitutes the judgment beneficiary’s “possession” within the meaning of Article 1 of Protocol No.", "1. Quashing of such a judgment amounts to an interference with his or her right to peaceful enjoyment of possessions (see, among other authorities, Androsov v. Russia, no. 63973/00, § 69, 6 October 2005). 52. The Court observes that the final and enforceable judgment by which the applicant had been awarded a sum of money was quashed by way of a supervisory review on 15 May 2002.", "The applicant’s claim was sent for re-consideration, following which the Voronezh Regional Court, in the final instance, discontinued the proceedings because the ARKO had ceased to exist. Thus, the applicant was prevented from receiving the initial award through no fault of his own. The quashing of the enforceable judgment frustrated the applicant’s reliance on the binding judicial decision and deprived him of an opportunity to receive the money he had legitimately expected to receive. In these circumstances, the Court considers that the quashing of the enforceable judgment of 17 December 2001, as upheld on appeal on 19 February 2002, by way of supervisory review placed an excessive burden on the applicant and was incompatible with Article 1 of Protocol No. 1.", "There has therefore been a violation of that Article. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 53. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 54.", "The applicant claimed the repayment of the judgment debt owed to him by the ARKO. He further claimed 348,665.19 Russian roubles (RUB) representing interest on the judgment debt and 10,000 US dollars (USD) in respect of non-pecuniary damage. 55. The Government submitted that the judgment debt was to be paid by a private bank and not by State bodies. They further submitted that the applicant did not claim any compensation for alleged violations of his rights pertaining to the quashing of the judgment of 17 December 2001.", "As to the applicant’s claims in respect of non-pecuniary damage, in the Government’s opinion they were excessive and manifestly ill-founded. 56. The Court observes that in the present case it has found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in that the final judgment in the applicant’s favour had been quashed by way of a supervisory review and that the applicant had not been able to receive the judgment award as a result of the quashing of a decision in his favour. The Court notes that the most appropriate form of redress in respect of a violation of Article 6 is to ensure that the applicant is put, as far as possible, in the position he would have been had the requirements of Article 6 not been disregarded (see Piersack v. Belgium (Article 50), judgment of 26 October 1984, Series A no.", "85, p. 16, § 12, and, mutatis mutandis, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). The Court finds that in the present case this principle applies as well, having regard to the nature of the violations found (cf. Stetsenko v. Russia, no. 878/03, § 69, 5 October 2006 and Stanislav Volkov v. Russia, no.", "8564/02, § 40, 15 March 2007). The Court therefore considers it appropriate to award the applicant the sum which he would have received had the judgment of 17 December 2001, as upheld on appeal on 19 February 2002, not been quashed. 57. As to the claim in respect of interest on the judgment debt, the Court notes that the applicant has not submitted any document to substantiate his method of calculation of the sum of the interest. The Court therefore dismisses the claim.", "58. The Court further considers that the applicant must have suffered distress and frustration resulting from the quashing of the final judicial decision by way of the supervisory review proceedings. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 2,000 in respect of non-pecuniary damage, plus any tax chargeable on the above amount. B. Costs and expenses 59.", "The applicant did not seek reimbursement of costs and expenses relating to the proceedings before the domestic courts or the Court and this is not a matter which the Court has to examine on its own motion (see Motière v. France, no. 39615/98, § 26, 5 December 2000). C. Default interest 60. 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 quashing of the final judgment of 17 December 2001, as upheld on appeal on 19 February 2002, admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1; 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 award made by the domestic courts in the applicant’s favour under the judgment of 17 December 2001, as upheld on appeal on 19 February 2002; (b) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros), in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of the settlement, plus any tax that may be chargeable on that amount; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 2 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "SECOND SECTION CASE OF BUCHS v. SWITZERLAND (Application no. 9929/12) JUDGMENT STRASBOURG 27 May 2014 FINAL 27/08/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Buchs v. Switzerland, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Işıl Karakaş,Nebojša Vučinić,Helen Keller,Paul Lemmens,Egidijus Kūris,Robert Spano, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 15 April 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "9929/12) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Swiss national, Mr Stanislaw Jean Garcia Buchs (“the applicant”), on 3 February 2012. 2. The applicant was represented by Mr N. Perret, a lawyer practising in Nyon. The Swiss Government (“the Government”) were represented by their Agent, Mr F. Schürmann, of the Federal Office of Justice. 3.", "The applicant alleged that the domestic courts had infringed his right to the enjoyment of his family life and discriminated against him as a father on the ground of his sex. 4. On 7 September 2012 the application was communicated to the Government. 5. On 1 February 2014 the Court changed the composition of its Sections (Rule 25 § 1).", "This case remained with the Second Section (Rule 52 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1960 and lives in Cully, Canton of Vaud. 7.", "The applicant is the father of three children. His eldest daughter, born in 1986, is from a former relationship and lives with him. In 1995 the applicant married his (now ex-)wife, with whom he had two more children, born in 1996 and 1999. 8. The applicant and his wife separated in 2002.", "The separation was pronounced by the Civil Court of the District of East Vaud (Tribunal Civil de l’Arrondissement de l’Est Vaudois – hereinafter “the Civil Court”) on 16 May 2002 and the mother was given custody (garde) of the two children, particularly in view of their young age (the younger child was three at the time of the decision). In turn, the applicant was granted extensive contact rights, which he had to exercise by agreement with his wife. He confirmed that since then his children usually stayed with him every Thursday after school until Friday morning, and every other week, from Thursday after school until Monday morning. Additionally, they spent half of the school holidays – around seven weeks a year – with him. He calculated that that amounted to approximately 42% of the time.", "His daughter from his former relationship resided with him. 9. On 11 January 2005 the applicant filed for divorce with the Civil Court. After his wife’s reply to the court on 8 March 2005, the couple submitted a joint petition for divorce on 17 January 2006. In addition, both parties applied for sole parental authority (autorité parentale exclusive) over and custody of the children.", "10. In order to decide to whom parental authority should be awarded, the Civil Court commissioned an expert opinion from the psychiatry and psychotherapy service for children and adolescents in the Canton of Vaud. The expert’s report, based on several interviews with the parents as well as with the children, was issued on 18 July 2006. It revealed that owing to major disagreements between their parents, both children were caught in conflicts of loyalty towards them, which they tried to resolve by wishing to divide their time equally between the parents. Furthermore, while the applicant wished for shared parental authority (autorité parentale conjointe) for the children, his wife opposed it.", "She justified her opposition by alleging that the applicant had attempted to pressure her and had made incessant requests regarding the children. She feared that he would use shared parental authority to increase his influence over the children in order to distance them from her. In this regard, she also mentioned that he had used inappropriate strategies to obtain custody of his eldest daughter, who was living with him, and had influenced the daughter negatively against her mother. However, the applicant’s wife was largely in favour of the children maintaining contact with their father and supported his extensive contact rights. Regarding the applicant, the expert observed that while he acknowledged that he had regular contact with his children, he had also expressed the feeling that he was not accepted as the other parent and had been made to feel like a mere “paying father”.", "The expert also noted that the couple disagreed on many child-related issues, which had had a negative impact on the children. In view of the fact that the applicant’s wife was a good mother and had shown her willingness to cooperate with the applicant, the expert recommended that parental authority be awarded to her and that the applicant be granted extensive contact rights. Furthermore, the youngest child had expressed the wish to stay close to his mother and the children were socially well integrated at their mother’s place and at the local school. 11. The applicant contested the expert opinion and the Civil Court therefore ordered a second one.", "On 31 March 2008 the second expert, also specialised in child and adolescent psychiatry and psychotherapy, confirmed the findings of the first expert. He based his findings on numerous documents received from the Civil Court and the parents, as well as on various interviews conducted with all the family members. At the outset he observed that despite the fact that two years had elapsed between the drawing up of the first and second expert reports, the applicant and his wife had maintained their conflict and had been unable to find any common ground for agreement regarding the children. Furthermore, they both had difficulties recognising each other’s parenting abilities. Nevertheless, the expert acknowledged that both parents had good parenting skills and were able to create an adequate environment for their children.", "Owing to the on‑going tensions between them, however, the expert found that there was no common ground for shared parental authority and custody and that that would therefore not be in the best interests of the children, who were still caught in conflicts of loyalty towards their parents. The expert further recommended that the applicant should not be awarded sole parental authority over the children. In his view, the applicant still appeared to be very affected by the divorce proceedings. He had criticised the parenting skills of the children’s mother on various occasions and had shown that he had difficulties in distinguishing his feelings towards her from those aroused by the separation from his children. Despite having exercised extensive contact rights with the full support of his wife, he still claimed that he sometimes felt like a mere “paying parent”.", "In that context, the expert also mentioned the inappropriate ways in which the applicant had obtained custody of his eldest daughter. The expert concluded that it was in the best interests of the children for the courts to award parental authority to the mother and to maintain the applicant’s extensive contact rights. That solution would furthermore provide continuity for the children. 12. Following that expert opinion, the applicant informed the Civil Court by letter of 27 May 2008 that he was withdrawing his application for parental authority and custody.", "At the subsequent hearing, the Civil Court questioned various witnesses, who testified that the applicant was fully exercising his contact rights and was undertaking many activities with the children. They also stated that the parents’ relationship had remained conflictual and that the applicant felt much more animosity towards his ex‑wife than she did towards him. By a final judgment of 15 December 2009 the Civil Court pronounced the divorce of the parties and awarded parental authority over and custody of the children to the mother, while maintaining the applicant’s previous extensive contact rights. 13. On 9 January and 2 February 2010, the applicant lodged a “partial appeal” against the Civil Court’s judgment with the Appeal Court of the Canton of Vaud (le Tribunal Cantonal, chambre des recours, Canton de Vaud - hereinafter “the Appeal Court”).", "He complained that the granting of parental authority to his ex-wife by the Civil Court was not in accordance with the European Court’s judgment in the case of Zaunegger v. Germany (no. 22028/04, 3 December 2009). He claimed that parental authority could not be withdrawn from a father who had, since the separation from his wife in 2002, extensively proved his parenting abilities. He reproached his ex-wife for behaving inappropriately towards the children in several respects and claimed that that was why he disagreed with the award of sole parental authority to her. Lastly, he stated that he no longer had the financial means to be represented by a lawyer.", "14. The Appeal Court dismissed the applicant’s appeal by a judgment of 9 February 2010, ruling that under Article 133 § 1 of the Swiss Civil Code (hereinafter “the Civil Code” – see paragraph 20 below), on divorce proceedings, parental authority could only be awarded to one of the parents. The maintenance of shared parental authority would require, under Article 133 § 3 of the Civil Code (see paragraph 20 below), a joint request by both parents, and shared parenting could not be imposed on a parent who opposed it, such as the mother in the present case. The Appeal Court also found that despite the applicant’s criticism of his ex-wife’s parenting abilities, there were no grounds for changing the award of parental authority. Furthermore, such a solution would be contrary to the experts’ findings.", "As provided for in Article 133 § 2 of the Civil Code (see paragraph 20 below), the judge’s paramount consideration when deciding on parental authority was what was in the child’s best interests. All relevant circumstances had to be taken into account, including any possible joint request by the parents for shared parental authority and, where possible, the children’s views. In cases such as the present one, in which experts had recognised that both parents had good parenting abilities, a parent’s willingness to cooperate with the other parent in the children’s best interests was conclusive. As shown by the experts’ opinions before the Civil Court, it had been the mother in the present case who had shown fewer difficulties in cooperating with the father. The Appeal Court therefore upheld the Civil Court’s judgment.", "15. In his appeal to the Federal Supreme Court, the applicant held that, owing to Article 133 § 1 of the Swiss Civil Code (see paragraph 20 below) and his wife’s refusal to make a joint request, he had not been given the opportunity to apply to the domestic courts for shared parental authority. Referring to the case of Zaunegger (cited above), he stated that every father should be able to apply to the domestic courts for shared parental authority, even if the mother was opposed to it, as that was in the children’s best interests. 16. The Federal Supreme Court dismissed the applicant’s appeal on 11 August 2011.", "It held that it was doubtful whether the applicant had sufficiently substantiated his appeal. Even assuming that he had done so, his case differed substantially from Zaunegger (cited above). First, while in Zaunegger the parents had not been married, in the present case the applicant was a divorced father. Second, Swiss law not only provided that the applicant, like his (ex-)wife, could apply for sole parental authority but both parents had also been treated equally. Unlike the German law regarding parents of children born out of wedlock, as established in Zaunegger, Article 133 § 1 of the Swiss Civil Code (see paragraph 20 below) did not privilege one of the parents on the basis of his or her sex when awarding parental authority, and the mother had no right to veto the father’s request in this regard.", "Under Article 133 § 3 of the Swiss Civil Code (see paragraph 20 below), the decision was based solely on the children’s best interests. The Federal Supreme Court concluded that the applicant’s case could not be compared to Zaunegger because there was no indication that he had been treated differently, when deciding on parental authority, from the children’s mother. 17. On 21 June 2013 the Swiss Parliament adopted amendments to the Civil Code provisions on parental authority, which will enter into force on 1 July 2014. Accordingly, shared parental authority will be the rule, independently of the parents’ civil status.", "To continue with shared parental authority after divorce will hence no longer require a joint request by the parents. However, if the judge considers that it is in the child’s best interests, parental authority can still be awarded to only one parent. The implementation provisions of this amendment to the Civil Code further provide that in cases decided under (former) Article 133 of the Civil Code (see paragraph 20 below), where parental authority had been awarded to only one of the parents, the other parent or both together can apply to the child protection authority for shared parental authority. Moreover, the parent from whom parental authority had been withdrawn in the divorce proceedings may also apply to the court on his or her own motion if the divorce was finalised after 1 July 2009. II.", "RELEVANT DOMESTIC AND COMPARATIVE LAW AND PRACTICE A. Relevant domestic law 18. The statutory provisions on custody and contact are to be found in the Swiss Civil Code. 19. Parental authority (Article 296 of the Civil Code) comprises upbringing, education and legal representation of the child vis-à-vis third persons (Articles 301 to 306 of the Civil Code).", "It also includes the administration of the child’s property (Article 318 of the Civil Code). The domicile of a child under parental authority is furthermore deemed to be that of the parents or, if the parents have different places of residence, that of the parent who has custody of the child (Article 25 of the Civil Code). 20. When married, the father and the mother exercise parental authority over a minor child jointly (Article 297 § 1 of the Civil Code). In the event of the parents’ divorce, the court awards parental authority to one parent and, in accordance with the provisions governing the legal effects of the parent-child relationship, rules on access entitlements and the maintenance contribution of the other parent (Article 133 § 1 of the Civil Code).", "Furthermore, when awarding parental authority and determining access arrangements, the child’s welfare is the paramount consideration for the courts. Due account is therefore taken of any joint request submitted by the parents and, wherever feasible, to the child’s opinion (Article 133 § 2 of the Civil Code). If the parents have concluded a valid agreement regulating their contributions to child care and the division of maintenance costs, at their joint request the courts may award parental authority to both of them, provided this is in the child’s best interests (Article 133 § 3 of the Civil Code). 21. Parents who are not granted parental authority or custody and their minor children are mutually entitled to reasonable access to each other (Article 273 of the Civil Code).", "Non-custodial parents should be informed of special events in the child’s life and consulted before important decisions affecting its development are taken (Article 275a § 1 of the Civil Code). They are also entitled to obtain information concerning the child’s condition and development from third parties involved in its care, such as teachers and doctors, in the same manner as the person with parental authority (Article 275a § 2 of the Civil Code). B. Relevant comparative law 22. The Court has examined the national laws of a selection of twenty‑nine Member States of the Council of Europe other than Switzerland.", "It appears that all twenty-nine Member States provide for shared parental authority by divorced parents if they have submitted a joint request or if the domestic courts have so decided. 23. In addition, provisions comparable to those in force in Switzerland at the time of the domestic decisions in this case (see paragraph 20 above), exist in sixteen of those twenty-nine Member States, where the domestic courts favour shared parental authority if the parents have submitted a joint request (which can also be the result of mediation) in the divorce proceedings. 24. Moreover, like in Switzerland at the time of the domestic decisions, in seventeen of the Member States surveyed, the domestic judge could also award parental authority to only one of the parents if it was in the child’s best interests.", "Meanwhile, the other parent was granted contact rights and the right to be consulted regarding important decisions in the child’s life. THE LAW I. APPLICATION OF ARTICLE 37 § 1 (b) OF THE CONVENTION A. The parties’ submissions 25. By letter of 21 January 2014 the Government invited the Court to strike the case out of its list of cases, in accordance with Article 37 § 1 (b) of the Convention.", "The Government relied in this connection on the fact that on 1 July 2014 the amendments to the Civil Code provisions on parental authority will enter into force and that according to the implementation provisions of this amendment, the applicant will have the possibility, within a period of a year, to apply to the competent authority to be awarded shared parental authority (see paragraph 17 above). As the award of parental authority in the applicant’s case will therefore be examined anew by the domestic authorities, the Government considered that the present case had been resolved. 26. The applicant did not submit any observations on the way in which Article 37 § 1 (b) would affect his application. B.", "The Court’s assessment 27. In order to ascertain whether the Government’s request under Article 37 § 1 (b) can be accepted in the present case, the Court must answer two questions in turn: firstly, whether the circumstances complained of directly by the applicant still obtain; and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have been redressed (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 97, ECHR 2007‑I, and, more recently, Melnītis v. Latvia, no. 30779/05, § 33, 28 February 2012). 28.", "The Court notes that in the present case the applicant has made two specific complaints. First of all, the applicant complained that the domestic decisions refusing shared parental authority had infringed his right to respect for his family life under Article 8 of the Convention. Secondly, he complained, under Article 14 read in conjunction with Article 8 of the Convention, that the application of Article 133 of the Civil Code regarding shared parental authority amounted to unjustified discrimination against divorced fathers on the grounds of their sex. 29. As concerns both complaints, the applicable test entails establishing whether the domestic decisions refusing to grant the applicant shared parental authority will persist after 1 July 2014, when the amendments to the Civil Code provisions on parental authority will enter into force.", "The Court must then consider whether the measures envisaged by the authorities constitute redress for the applicant’s complaints. In this connection, the Court has to determine whether the domestic authorities have adequately and sufficiently redressed the situation complained of (see Sisojeva and Others, cited above, § 102, and El Majjaoui and Stichting Touba Moskee v. the Netherlands (striking out) [GC], no. 25525/03, § 33, 20 December 2007). 30. It is clear to the Court that the situation complained of by the applicant has not ceased to exist.", "While the Court considers that the amendments to the Civil Code provisions on parental authority and its implementation provisions might be relevant for establishing the applicability of Article 8 and Article 14 in conjunction with Article 8 of the Convention for the period from 1 July 2014 onwards, it considers that it has as such no incidence on the application of Article 37 § 1 (b) of the Convention, as it will not change the award of parental authority to the applicant without further steps. To have the question of shared parental authority reassessed by the domestic authorities, the applicant would need to institute domestic proceedings, the outcome of which would be uncertain. 31. In addition, the Court observes that the legislative amendments will enter into force on 1 July 2014. Therefore, it cannot be said that these measures are capable of offering adequate and sufficient redress for the effects of possible violations of Article 8 and Article 14 in conjunction with 8 of the Convention during the time between the final domestic decision in the present case and 1 July 2014.", "Furthermore, one of the applicant’s children is now eighteen years old and the second one almost fifteen years old. The legislative amendments in question will therefore have no legal effect at least as far as the applicant’s relationship with his first child is concerned. 32. It follows that the conditions for applying Article 37 § 1 (b) of the Convention, in so far as the complaints under Article 8 and Article 14 in conjunction with Article 8 of the Convention are concerned, have not been met. 33.", "Accordingly, as the matter has not been resolved and it is not necessary to further examine whether Article 37 § 1 in fine is applicable to the present case the Court dismisses the Government’s request to strike the application out of its list of cases. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 34. The applicant complained, under Article 8 of the Convention, that the domestic decisions refusing shared parental authority had infringed his right to respect for his family life. Article 8 provides: “1.", "Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 35. The Government argued that the applicant had not exhausted domestic remedies regarding a violation of Article 8 of the Convention, taken on its own. They observed that he had not invoked any Convention Articles in his appeal to the Federal Supreme Court.", "He had simply stated, referring to the case of Zaunegger (cited above), that every father should be able to apply to the domestic courts for shared parental authority, even if the mother is opposed to it, as this is in the children’s best interests. Considering that in Zaunegger the Court had found a violation of Article 14 taken in conjunction with Article 8 of the Convention, the Federal Supreme Court had examined the compatibility of the Appeal Court’s decision with those provisions taken together. As the Court had not examined Article 8 taken on its own and the applicant had not invoked that Convention Article, the Federal Supreme Court had not done so either. 36. The applicant did not submit any observations on the admissibility of his application.", "37. The Court reiterates that in assessing whether domestic remedies have been exhausted, account should be taken not only of the formal remedies available in the legal system concerned, but also of the particular circumstances of the case in question (see Akdivar and Others v. Turkey, 16 September 1996, § 69, Reports of Judgments and Decisions 1996‑IV). There should be a degree of flexibility in the application of the rule. It is not necessary to demonstrate that the arguments were advanced in exactly the same terms before the domestic courts as before this Court, provided that the substance of the complaint has been aired in domestic proceedings in accordance with any formal requirements (see, for instance, Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999‑I; Vučković and Others v. Serbia [GC], no.", "17153/11, § 72, 25 March 2014). 38. The Court considers that the applicant, who was not represented by a lawyer before the Federal Supreme Court, referred to the case of Zaunegger because it was comparable to his case as it also concerned the issue of shared parental authority. As a layman, he did not invoke any Convention Articles. Since he claimed, in substance, that every father should be able to apply for shared parental authority even if the mother opposed it, the Court finds, contrary to the Government’s observation, that the applicant not only alleged that he had been discriminated against compared with his ex-wife under Article 14 in conjunction with Article 8 of the Convention, but also invoked his right to respect for family life taken on its own.", "The Court therefore holds that, with regard to Article 8 of the Convention, he has satisfied the requirements of Article 35 § 1, and therefore rejects the Government’s preliminary objections. 39. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It must therefore be declared admissible. B.", "Merits 1. The parties’ submissions (a) The applicant 40. The applicant claimed that according to the Court’s case-law in Zaunegger (cited above), every father, whether married or not, should be able to apply to the courts for shared parental authority, even if the mother has opposed it. He claimed that this should be done in the best interests of the children. He has not submitted any further observations.", "(b) The Government 41. The Government did not contest that the refusal to award the applicant parental authority constituted an interference with his right to respect for family life. However, they maintained that, under Article 8 § 2 of the Convention, the infringement had a legal basis in domestic law and was proportionate to the legitimate aim pursued. 42. With respect to the legal basis for awarding divorced parents shared parental authority, the Government reiterated that under Article 133 of the Civil Code (see paragraph 20 above) the judge had to take all relevant circumstances into account when assessing what was in the best interests of the child in awarding parental authority to one of the parents.", "Only if the parents had submitted a joint request for shared parental authority as well as a declaration regarding their shared participation in the education of the child, child support costs and contact rights, could shared parental authority be granted – on condition that it was in the child’s best interests. However, in the absence of a joint request, shared parental authority could not be awarded. 43. In this regard, the Government reiterated that once the amendments to the Civil Code provisions on parental authority entered into force, the applicant would have the opportunity to apply for shared parental authority again (see paragraph 17). 44.", "Regarding the legitimate aim of the interference with the applicant’s right to respect for family life, the Government maintained that it could be deduced from the memorandum of the Swiss Federal Council on the amendment to the Civil Code of 15 November 1995 (Message du Conseil fédéral concernant la révision du code civil Suisse du 15 novembre 1995) that it had been considered to be in the child’s best interests to grant shared parental authority only if the parents had submitted a joint request. This measure was aimed at protecting the “health or morals” and the “rights and freedoms” of the child and thus pursued legitimate aims within the meaning of paragraph 2 of Article 8. 45. Lastly, with a view to the necessity of the interference with the applicant’s right under Article 8 of the Convention, the Government reiterated that the domestic courts had obtained two expert opinions and had heard several witnesses in order to find the most appropriate solution for the children. On those occasions, the applicant had also been interviewed.", "Only after having thoroughly assessed all the relevant circumstances had the domestic courts awarded parental authority to the mother, while the applicant was granted extensive contact rights. That decision corresponded entirely to the experts’ recommendations with a view to the children’s best interests. In addition, in accordance with Article 275a § 1 of the Code Civil (see paragraph 21 above), the applicant maintained the right to be informed about special events in the children’s lives and to be consulted before important decisions were taken. The Government doubted whether the applicant would have been awarded shared parental authority, even if the domestic law had provided for it automatically after divorce. The second expert in particular had explicitly advised against granting the applicant and his ex-wife shared parental authority as he felt that it would not be in the children’s best interests.", "46. The Government concluded that the domestic decisions entirely satisfied the requirements of Article 8 of the Convention and were within the wide margin of appreciation the Court had granted Member States in its case-law in such matters (see Glaser v. the United Kingdom, no. 32346/96, § 64, 19 September 2000). 2. The Court’s assessment 47.", "The Court observes, at the outset, that the Government did not contest that the withdrawal of parental authority interfered with the applicant’s right to respect for his family life under Article 8 of the Convention. The Court, having regard to its case-law, endorses that assessment. Any such interference constitutes a violation of Article 8 unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of that provision and can be regarded as “necessary in a democratic society”. 48. The Court accepts that the decisions at issue had a basis in national law, namely Article 133 of the Civil Code (see paragraph 20 above), and that they were aimed at protecting the best interests of the applicant’s two children, which is a legitimate aim within the meaning of paragraph 2 of Article 8 (see Keegan v. Ireland, judgment of 26 May 1994, § 44, Series A no.", "290, and Görgülü v. Germany, no. 74969/01, § 37, 26 February 2004). It therefore remains to be determined whether the decisions could be regarded as “necessary in a democratic society”. (a) General principles 49. The Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify the measures taken were “relevant and sufficient” and whether the decision-making process was fair and afforded due respect to the applicant’s rights under Article 8 of the Convention.", "Undoubtedly, consideration of what is in the best interests of the children 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 T.P. and K.M. v. the United Kingdom [GC], no.", "28945/95, § 71, ECHR 2001-V; Sahin v. Germany [GC], no. 30943/96, § 64, ECHR 2003‑VIII; Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003‑VIII (extracts); Görgülü v. Germany, no. 74969/01, § 41, 26 February 2004; and Wildgruber v. Germany (dec.), no. 32817/02, 16 October 2006).", "50. 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. In particular, when deciding on custody, the Court has recognised that the authorities enjoy a wide margin of appreciation (see, amongst many others, Glaser, cited above, § 64). 51. The Court reiterates that a fair balance must be struck between the interests of the child and those of the parent and that, in striking such a balance, particular importance must be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent (see Hoppe v. Germany, no.", "28422/95, § 49, 5 December 2002). Accordingly, the parent cannot be entitled under Article 8 to have measures taken that would harm the child’s health and development (see Elsholz v. Germany, no. 25735/94, § 50, ECHR 2000‑VIII, and T.P. and K.M., cited above, § 71). (b) Application of these principles in the present case 52.", "In the present case the Court finds that the domestic courts carefully considered the questions of awarding parental authority and contact rights. They confirmed that in principle, for harmonious development, the children must have contact with both parents, to the extent that this was consistent with the best interests of the children. Accordingly, the domestic courts found that where, as in the present case, a conflict appeared to exist between the parents, it would not be in the best interests of the children to award shared parental authority. They took into account not only the fact that the children’s mother was opposed to it, but also the applicant’s difficulties in accepting the separation from his wife, his insistence on the recognition of his rights and his attempts to pressure the children’s mother. They also considered the mother’s willingness to cooperate with the applicant in the exercise of his extensive contact rights and they had particular regard to the conflicts of loyalty towards their parents in which the children were caught.", "The Civil Court relied on two expert opinions and on the evidence given by the parents and witnesses at the hearing (see 10 - 12 above) and the judgment given by the Civil Court was upheld by the Appeal Court and the Federal Supreme Court (see paragraphs 14 and 16). 53. Whilst Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Article 8. The Court must therefore determine whether, having regard to the circumstances of the case and notably the importance of the decisions to be taken, the applicant was involved in the decision‑making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests (see W. v. the United Kingdom, judgment of 8 July 1987, § 64, Series A no. 121; Elsholz, cited above, § 52; and T.P.", "and K.M. v. the United Kingdom, cited above, § 72). 54. The Court notes that, in particular in the first-instance proceedings, the applicant was interviewed by experts on various occasions, and, assisted by a lawyer, had the opportunity to present his arguments in writing and orally to the Civil Court. As regards the proceedings before the Appeal Court, the Court notes that the applicant was given the opportunity to put forward in writing any views which, in his opinion, would be decisive for the outcome of the proceedings.", "55. In the light of the foregoing, and having regard to the thorough assessment of the children’s best interests made by the domestic courts, the Court is satisfied that the contested decisions were based on reasons which were not only relevant but also sufficient for the purposes of paragraph 2 of Article 8. The Court further holds that the procedural requirements implicit in Article 8 of the Convention were complied with and that the applicant was involved in the decision-making process to a degree sufficient to provide him with the requisite protection of his interests. The Court therefore considers that, when awarding parental authority to the children’s mother and granting the applicant extensive contact rights, the national authorities acted within the margin of appreciation afforded to them in such matters. Furthermore, the Court considers that the exclusion of shared parental authority where one of the parents opposes it also falls within the margin of appreciation, taking into account the lack of any consensus in this area, the fact that the experts in any event found that it was not desirable in the specific circumstances and the fact that the applicant in any even enjoyed extensive contact rights.", "56. Accordingly, there has been no violation of Article 8 of the Convention in the present case. III. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION 57. The applicant complained, under Article 14 read in conjunction with Article 8 of the Convention, that the application of Article 133 of the Civil Code (see paragraph 20 above) regarding shared parental authority amounted to discrimination against divorced fathers on the grounds of their sex.", "Article 14 reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. Admissibility 58. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The parties’ submissions (a) The applicant 59. The applicant maintained (see paragraph 40 above) that according to the Court’s case-law in Zaunegger (cited above), every father, if married or not, should be able to apply to the domestic courts for shared parental authority, even if the mother has opposed it. He claimed that that should be done in the best interests of the child. (b) The Government 60.", "At the outset, the Government argued that, contrary to the Court’s judgments in the cases of Zaunegger (cited above) and Sporer v. Austria (no. 35637/03, 3 February 2011), the possibility of applying for shared parental authority without the consent of the children’s mother did not exist in Swiss law, either for the applicant or for other fathers in comparable situations. Therefore, no inequality in the sense of the Court’s jurisprudence existed in Swiss law. 61. Under current Swiss law, the maintenance of shared parental authority after divorce was the exception to the rule that it was normally awarded to only one parent.", "Under Article 133 of the Civil Code, shared parental authority could be granted only if the parents had submitted a joint request and were willing and able to cooperate in matters regarding the child. The legislator’s reasoning behind that provision was not to enable one of the parents to oppose the other parent’s exercise of parental authority by a veto right, but to oblige the parents to show their willingness to exercise it jointly. 62. Neither parent was privileged over the other in the awarding of parental authority. In particular, the mother did not dispose of any priority right to be granted parental authority.", "The paramount consideration when deciding on parental authority was the child’s best interests. In the present case, the applicant, like his ex-wife, was able to exercise his right to apply to the domestic courts for sole parental authority. Based on their concurring requests, both parents had then benefited from a complete assessment of their parenting abilities as well as other relevant circumstances. The domestic law had hence not drawn a distinction between the applicant, as father, and his ex-wife, as mother, nor had he been treated differently from fathers of children born out of wedlock. 63.", "The Government further reiterated that even if the domestic courts had, based on the domestic law, the possibility to award shared parental authority without a joint request, it was very unlikely that they would have granted it in the present case. As established by the expert opinions, to have done so would not have been in the best interests of the children. According to the Government, the absence of a joint request in the present case reflected the situation foreseen by the applicable law where the parents were not ready to exercise shared parental authority, and where awarding parental authority to only one parent was in the children’s best interests. 2. The Court’s assessment (a) General principles 64.", "The Court reiterates that Article 14 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. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Convention Articles (see, as a recent authority, Burden v. the United Kingdom [GC], no. 13378/05, § 58, ECHR 2008).", "65. It is the Court’s established case-law that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in relevantly similar situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Burden, cited above, § 60). 66.", "The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States (see Petrovic v. Austria, 27 March 1998, § 38, Reports 1998‑II, and Zaunegger, cited above, § 50). 67. However, very weighty reasons need to be put forward before a difference in treatment on the ground of gender or birth can be regarded as compatible with the Convention. The same is true for a difference in treatment of the father of a child born out of wedlock as compared with the father of a child born of a marriage-based relationship (see Zaunegger, cited above, § 51, with further references). (b) Application to the present case 68.", "The Court notes that in the case at hand, the applicant, in his capacity as a father, complained in substance that he had been treated differently from his children’s mother, in breach of Articles 8 and 14 of the Convention, in that he had had no opportunity to obtain shared parental authority in a divorce suit without the latter’s consent. 69. The Court further notes that the applicant has not elaborated on the extent to which he had been treated differently from fathers of children born out of wedlock. As established by the Government (see paragraph 61 above), under the Swiss law in force, no father, whether married or not, had the possibility to request shared parental authority if the children’s mother was opposed to it. The Court therefore holds that the applicant has not sufficiently substantiated his claim of unequal treatment compared with other fathers in similar situations.", "The Court will therefore proceed to assess the current case only under the aspect of different treatment on the basis of gender, according to Article 14 in conjunction with Article 8 of the Convention. 70. In this regard, the Court observes that the wording of the relevant provision of Swiss law does not apply different standards in respect of the awarding of sole parental authority to the mother or the father. Under Article 133 § 1 of the Civil Code (see paragraph 20 above), both parents have the right to apply for sole parental authority. If they do, as in the present case, the domestic courts then proceed to evaluate all the relevant circumstances and the parties’ parenting abilities in order to find the most appropriate solution in the children’s best interests.", "71. As alleged by the applicant, it was however impossible for the domestic courts to award him shared parental authority, based on the domestic provision in force, because the children’s mother was opposed to it. Contrary to the case of Zaunegger (cited above), which concerned a father of a child born out of wedlock, it was however not the mother who, in the absence of a joint request, maintained sole parental authority and hence possessed the right to veto the applicant’s request for shared parental authority. In the absence of a joint request, both parents maintained, for the course of the divorce proceedings, shared parental authority and had the right to apply for sole parental authority to the domestic courts (see paragraph 9 above). 72.", "The Court considers that the Government have convincingly established that the reasoning behind the requirement of a joint request for shared parenting was to oblige the parents to show their willingness to cooperate in child-related matters even after divorce. Both parents were thereby treated equally and it was not only the mother but both parents who had the right to oppose shared parental authority. The Court is therefore satisfied that the requirement of a joint request does not draw on any distinction based on the parents’ gender, so that no difference of treatment exists either in the law or in the decisions applying it. 73. There has accordingly been no violation of Article 14 of the Convention, taken together with Article 8 in the instant case.", "IV. ALLEGED VIOLATION OF ARTICLE 5 OF PROTOCOL NO. 7 TO THE CONVENTION 74. The applicant complained, under Article 5 of Protocol No. 7 to the Convention, that he had not enjoyed the same rights as his (ex-)wife with regard to the awarding of parental authority in the divorce proceedings.", "Article 5 of Protocol No. 7 reads as follows: “Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.” 75. With respect to the applicant’s appeal to the Federal Supreme Court (see paragraph 15 above), the Government argued that he had not exhausted domestic remedies regarding his claim under Article 5 of Protocol No. 7 to the Convention.", "According to them, the applicant had never claimed that the domestic law had treated him differently from his spouse when awarding parental authority. 76. The applicant has not submitted any observations on the admissibility of this claim. 77. Considering that the applicant’s appeals to the domestic courts as well as his application to this Court were not very well substantiated and that he did not invoke any Convention Articles before the domestic instances (see paragraph 22 above), the Court agrees with the Government that he has not exhausted domestic remedies with respect to his complaint under Article 5 of Protocol No.", "7 to the Convention. 78. Consequently, it follows that this complaint is inadmissible according to Article 35 § 1 and must be rejected in accordance with Article 35 § 4 of the Convention. FOR THESE REASONS, THE COURT 1. Declares, unanimously, the complaints concerning Article 8 and Article 14 in conjunction with Article 8 of the Convention admissible; 2.", "Declares, by a majority, the remainder of the application inadmissible; 3. Holds, unanimously, that there has been no violation of Article 8 of the Convention; 4. Holds, unanimously, that there has been no violation of Article 14 in conjunction with Article 8 of the Convention. Done in English, and notified in writing on 27 May 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithGuido RaimondiRegistrarPresident" ]

[ "FIRST SECTION CASE OF KLEIN v. RUSSIA (Application no. 24268/08) JUDGMENT STRASBOURG 1 April 2010 FINAL 04/10/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Klein 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 11 March 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "24268/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Israeli national, Mr Gal Yair Klein (“the applicant”), on 26 May 2008. 2. The applicant was represented by Mr D. Yampolskiy, a lawyer practicing in Moscow, and by Mr M. Tzivin, Mr M. Levin and Mr N. Tzivin, lawyers practising in Tel-Aviv. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.", "On 27 May 2008 the President of the Chamber decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be extradited to Colombia until further notice. 4. On 3 July 2008 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application. 5. On 4 September 2008 the Court decided to give notice of the application to the Government.", "It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). 6. The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government's objection, the Court dismissed it. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1943 and lives in Tel-Aviv. He is currently detained in remand prison IZ-77/4 in Moscow. 8. On 23 February 2001 the Criminal Court of the Manizales District, Colombia (“Juzgado Penal del Circuito de Manizales”) convicted the applicant of a crime provided for by Article 15 of Decree no.", "180 (1988), acknowledged as permanent law of Colombia by Extraordinary Decree no. 2266 (1991), (“instruction in and teaching of military and terrorist tactics, techniques and methods, committed with mercenaries and accomplices”) and sentenced him to fourteen years' imprisonment. 9. On 22 June 2001 the Superior Court of the Manizales District, Colombia (“Tribunal Superior de Manizales”) reduced the applicant's sentence on appeal to ten years and eight months' imprisonment, combined with a fine. 10.", "On 28 February 2001 the Criminal Court of the Manizales District issued an arrest warrant against the applicant on the basis of his conviction. 11. On 28 March 2007 Interpol issued Red Notice No. A-666/3-2007 for the applicant's provisional arrest with a view to extradition. 12.", "At 6.40 p.m. on 27 August 2007 a group of servicemen of the Russian Ministry of the Interior, assisted by Interpol officers, arrested the applicant in Domodedovo Airport, Moscow. 13. On 28 August 2007 the Moscow prosecutor's office with responsibility for supervision of the implementation of laws on marine and air-borne transport ordered the applicant's placement in custody, pursuant to Article 466 of the Russian Code of Criminal Procedure (“CCP”), until his transfer to the country which had requested extradition. The decision gave the following reasons for application of a measure of restraint: “Gal Klein Yair is a national of a third State, has no permanent place of residence and employment on the territory of the Russian Federation, and his extradition for the purpose of serving the sentence imposed by the judgment of the District Special Criminal Court of Manizales would be impossible without ensuring [his] placement in custody.” 14. On 31 August 2007 Rossiyskaya Gazeta (“Российская газета”), a federal newspaper, published an article on its website entitled “The Mafia's Teacher Awaits Extradition” (“Учитель мафии ждет экстрадиции”), covering the applicant's story.", "The article read, in particular: “Having learned of the wanted mercenary's arrest in Moscow, the Vice-President of Colombia Francisco Santos Calderon, stated that 'it should be ensured that this gentleman rots in jail for [his] participation in the training of armed groups'.. The article did not contain any reference to the source of the information on the Vice-President's statement. 15. On 28 September 2007 the Ambassador of the Russian Federation in Bogota informed the Colombian Ministry of Foreign Affairs that the Russian Prosecutor General's Office had been examining the possibility of extraditing the applicant, on condition that they be provided with a copy of the judgment against the applicant and with certain guarantees. 16.", "On 4 October 2007 the Colombian Ministry of Foreign Affairs informed the Russian Minister of Foreign Affairs of the following: “Henceforth Colombia, acting on the basis of the reciprocity principle, shall transfer persons wanted by Russian law enforcement agencies to Russia for relevant criminal prosecution or execution of sentences against such persons. Mr Yair Gal Klein shall be provided with an opportunity to appeal against his conviction by the Colombian judicial bodies; Mr Yair Gal Klein shall not be subjected to capital punishment or tortures, inhuman or degrading treatment or punishment; Mr Yair Gal Klein shall be indicted only in respect of the acts mentioned in the [extradition] request.” 17. On 29 January 2008 the Prosecutor General's Office of Russia ordered the applicant's extradition to Colombia. It was mentioned that the acts for which the applicant had been sentenced were punishable under Russian law and corresponded to the crime provided for by Article 205 § 1 of the Russian Criminal Code (“assistance to terrorist activities”). The sanction established for that crime stipulated imprisonment for a term exceeding one year.", "The statute of limitations for the execution of sentences established by both Russian and Colombian legislation had not expired. The differences in classification of the crime in the two countries could not be a reason for a refusal to extradite. The applicant had not obtained Russian nationality. The Colombian Government guaranteed that the applicant would not be subjected to ill-treatment. 18.", "On 6 February 2008 the applicant appealed to the Moscow City Court against the order of 29 January 2008. He contended that, once in Colombia, he might be subjected to ill-treatment. In support of this assertion he stated as follows: “[A]ccording to the UN General Assembly Resolution of 15 March 2006, the human rights situation in Colombia remains extremely tense. As it is stated during the hearing of the UN Human Rights Committee of 20 October 2005, there is a serious escalation of violence directly linked to actions of members of governmental forces. The report contains allegations of those violations by [the] State prosecutor's office”.", "He also referred to the unstable internal situation in Colombia, caused by the civil war, and claimed that, as a result, the guarantees given by the Colombian Government were insufficient; that the five-year statute of limitation for the execution of sentences under Colombian law, as well as the ten-year statute of limitations for criminal prosecution established by Russian law, had expired in his case; that the Prosecutor General's Office wrongfully relied on the Russian Criminal Code of 1996, which had not been in force at the time of the crime in question; and that there was no extradition agreement between Russia and Colombia. No copies of the General Assembly's Resolution or minutes of the Human Rights Committee's meeting were enclosed with the appeal submissions. 19. On 11 March 2008 the Moscow City Court dismissed the applicant's complaint and upheld the order of 29 January 2008. The ruling stated that the applicant had not been convicted of political crimes and that the statute of limitation under both Russian and Colombian laws had not expired.", "It was also stated that the Colombian Government had guaranteed that the applicant would have a right to appeal against his conviction and would not be transferred to a third country without the Russian authorities' consent or subjected to ill-treatment. The in absentia criminal proceedings against the applicant had been carried out respecting the principle of a fair trial. Despite the absence of an extradition agreement between the two States, the applicant could have been transferred to the Colombian authorities on the basis of the reciprocity principle. As to the alleged risk of ill-treatment in Colombia, the ruling stated: “It follows from the materials submitted by the requesting State that the crime the applicant had been convicted of is not included in the category of political crimes and that he [the applicant] has not been persecuted for political reasons. Therefore, [the applicant's] allegations that he has been persecuted for political reasons, are unsubstantiated.” 20.", "On 17 March 2008 the applicant appealed to the Supreme Court of Russia against the first-instance ruling, on the grounds that that the statutes of limitations had expired, that the Russian law had been wrongfully interpreted and that there was no extradition agreement between Russia and Colombia. He also referred to a media statement by the Colombian Vice-President in which he had suggested that the sentence against the applicant had been too mild and thus “shameful”, and that it had to be ensured that the applicant would rot in jail. The applicant further alleged that the civil war in Colombia had been ongoing since 1948 and that it had caused widespread violations of human rights, including those of prisoners. He did not provide any details of the alleged violations. The applicant also claimed that the purpose of his extradition was to have him rot in jail.", "21. On 22 May 2008 the Supreme Court of Russia dismissed the appeal for the following reasons. The Colombian Government had given diplomatic assurances that the applicant would not be ill-treated if extradited. They had also stated that conditions of detention in Colombian penitentiary institutions were decent and that Russian officials would have a right to visit those institutions for regular checks. There were no grounds to suspect that the applicant would be ill-treated if extradited.", "The applicant had not been persecuted on political grounds. According to the Colombian Embassy, officials' media statements could not affect decisions already taken by the judiciary. The Colombian Vice-President was not a hierarchical superior of the judiciary, the Ministry of Justice or the penitentiary service. The applicant's actions were punishable under Russian law in force in 1989-90, which laid down a severer sanction than Article 205 § 1 of the Russian Criminal Code. The appeal ruling read, in particular: “There are no grounds to believe that in the event of extradition Gal Klein Yair would be subjected to torture in Colombia and that the guarantees established by law, including Article 14 of the ICCPR, would not be respected in respect of him.", "It follows from the materials of an extradition inquiry carried out by the Russian Prosecutor General's Office that no facts of application to Gal Klein Yair of cruel, inhuman or degrading treatment in the requesting State have been established. There is no basis to suppose that the person to be extradited would be subjected to such treatment or punishment in Colombia in the future or that he would be subjected to the death penalty. ... The [applicant's] allegations that he was persecuted on political grounds were justifiably considered by [the Moscow City Court] as unsubstantiated.” 22. The appeal ruling of 22 May 2008 became final on the same date.", "23. On 26 May 2008 the applicant requested the Court, under Rule 39 of the Rules of Court, to prevent his expulsion to Colombia. He alleged that he would face a serious risk of ill-treatment if he were extradited. 24. On 27 May 2008 the Court indicated to the Russian Government under Rule 39 that the applicant should not be extradited to Colombia until further notice.", "25. On 5 June 2008 the Reuters news agency reported that “Colombia [had] attacked as insulting and flippant on Thursday a decision by the European Court of Human Rights to block the extradition of an Israeli ex-army officer convicted of training illegal paramilitaries.” II. RELEVANT DOMESTIC LAW A. Russian Constitution 26. No one may be subjected to torture, violence or any other inhuman or degrading treatment or punishment (Article 21 § 2). The decisions and actions (or inaction) of State authorities, local self-government, non-governmental associations and public officials may be challenged in a court of law (Article 46 § 2).", "In conformity with the international treaties of the Russian Federation, everyone has the right to turn to inter-State organs concerned with the protection of human rights and liberties after all domestic remedies have been exhausted (Article 46 § 3). B. Russian Code of Criminal Procedure 27. The Russian Federation can extradite a foreign national or a stateless person to a foreign State on the basis of either a treaty or the reciprocity principle for standing trial or serving a sentence for a crime punishable under Russian legislation and the laws of the requesting State. An extradition on the basis of the reciprocity principle implies that the requesting State assures the Russian authorities that under similar circumstances they would grant a Russian request for extradition (Article 462 §§ 1 and 2). 28.", "Extradition can take place where (i) the actions in question are punishable by more than one year's imprisonment or a more severe sentence; (ii) the requested individual has been sentenced to six month' imprisonment or a more severe punishment; and (iii) the requesting State guarantees that the individual in question would be prosecuted only for the crime mentioned in the extradition request, that upon completion of the criminal proceedings and serving a sentence he or she would be able to leave the territory of the requesting State freely and that he or she would not be expelled or extradited to a third State without the permission of the Russian authorities (Article 462 § 3). 29. The Russian Prosecutor General or his or her Deputy decides upon the extradition request (Article 462 § 4). The decision by the Russian Prosecutor General or his or her Deputy may be appealed against before a regional court within ten days of receipt of the notification of that decision (Article 463 § 1). 30.", "The regional court, sitting in a composition of three judges, verifies the lawfulness and well-foundedness of the extradition decision within one month of the receipt of the appeal, in a public hearing at which the prosecutor, the person whose extradition is sought and his or her counsel (if the latter has participated in the earlier proceedings) may participate (Article 463 § 4). The court does not examine issues of the individual's guilt and is limited to verifying the compatibility of the extradition decision with Russian laws and treaties (Article 463 § 6). The court decides either to declare the extradition decision unlawful and to quash it or to dismiss the appeal (Article 463 § 7). The regional court's decision can be appealed against before the Russian Supreme Court within seven days of its delivery (Article 463 § 9). III.", "RELEVANT INTERNATIONAL MATERIALS 31. The Conclusions and Recommendations of the Committee Against Torture with regard to Colombia (CTAS/C/CR/31/1), dated 4 February 2004, read as follows: “7. The Committee reiterates its concern at the numerous acts of torture and ill-treatment reported widely and systematically committed by the State security forces and organs in the State party both during and outside armed operations. It also expresses its concern at the high number of forced disappearances and arbitrary executions ... 8. The Committee expresses its concerns that measures adopted or being adopted by the State party against terrorism and illegal armed groups could encourage the practice of torture... 9.", "The Committee also expresses its concern at ... (a) the climate of impunity that surrounds human rights violations by State security forces and organs and, in particular, the absence of prompt, impartial and thorough investigation of the numerous acts of torture or other cruel, inhuman or degrading treatment or punishment and the absence of redress and adequate compensation for the victims; ... (e) the overcrowding and poor conditions in penal establishments, which could be considered inhuman or degrading treatment.” 32. The Concluding Observations of the Human Rights Committee: Colombia (CCPR/CO/80/COL), of 26 May 2004, read as follows: “11. The Committee is concerned about the fact that a significant number of arbitrary detentions, abductions, forced disappearances, cases of torture, extrajudicial executions and murders continue to occur in the State party... The Committee is also disturbed about the participation of agents of the State party in the commission of such acts, and the apparent impunity enjoyed by their perpetrators.” 33. On 29 November 1996 a mandate for activities of a field office of the UN High Commissioner for Human Rights (OHCHR) in Colombia was established by an agreement between the Government of Colombia and the ONCHR.", "On 9 September 2007 the parties agreed to extend the mandate, in its entirety, until 30 October 2010. The Report of the UN High Commissioner for Human Rights on the situation of human rights in Colombia (A/HRC/7/39), dated 29 February 2008, reads as follows: “4. ...[I]t must be recognized that Colombia has made progress in restoring security throughout the country in recent years, and the visibility given to human rights in the public agenda is a solid achievement. ... 31. The office [of the OHCHR] in Colombia has received information on cases of torture, cruel, inhuman and degrading treatment and the excessive use of force by members of the security forces.", "... [I]n some extrajudicial executions attributed to Army personnel, the victims had been tortured. ... 34. Complaints were made about illegal or arbitrary detentions in which warrants were exclusively based on the testimony of former guerrillas, which was not properly corroborated by other evidence... 35. Some judicial decisions have questioned the impartiality of witnesses, such as former guerrillas or paramilitaries who receive economic benefits for their testimonies... 36. According to official data, overcrowding in prisons has reached an average of 20.6 per cent, and the situation is much worse in some establishments...", "The current situation requires additional efforts and measures to meet the basic needs of prisoners, such as health, food, sanitation, legal advice and expert assistance...” 34. The Annual Report of the UN High Commissioner for Human Rights on the situation of human rights in Colombia (A/HRC/10/32), of 9 March 2009, reads as follows: “The High Commissioner acknowledges the spirit of cooperation existing between the Government and her Office in Colombia. She also notes the openness of the Government to addressing human rights challenges, as demonstrated during the universal periodic review process. ... 2. ...In compliance with [its] mandate, OHCHR Colombia continues to assist the authorities in developing policies and programmes to promote and protect human rights, to advise civil society on human rights issues, to observe the situation of human rights and international humanitarian law in the context of the internal armed conflict, and to submit its reports and analyses to the High Commissioner.", "... 3. The High Commissioner visited Colombia from 27 October to 1 November 2008. She met with the President, ministers, and senior public officials in charge of protecting and promoting human rights. She also met with representatives of civil society organizations, including human rights and women's NGOs, victims' associations and trade unions. The High Commissioner travelled to Arauca, where she learnt about the regional human rights challenges, meeting with community leaders and civilian and military authorities.", "The High Commissioner expressed to all her interlocutors her gratitude for the support that OHCHR Colombia has been receiving. She also highlighted the Government's efforts to promote accountability and respect for human rights within the Armed Forces and to demobilize paramilitary groups. While the High Commissioner noted the increased attention given to victims' right to truth, justice and reparation, she also expressed concern at the persistence of entrenched human rights challenges. 4. The Special Representative of the Secretary-General for Children and Armed Conflict visited Colombia from 12 to 14 May 2008.", "The Working Group on Arbitrary Detention also visited the country from 1 to 10 October 2008. 5. On 10 December, Colombia was reviewed by the United Nations Human Rights Council, in the context of the universal periodic review. ... 10. ...[T]he President initiated discussions with senior military commanders to address complaints of extrajudicial executions.", "11. However, the number of complaints about extrajudicial executions and the number of victims reported showed that institutional policies adopted by the Ministry of Defence and the army High Command to combat this practice have not, as of October 2008, led to a significant decrease in such violations. Renewed efforts are needed to guarantee the effectiveness of and strict compliance with institutional policies to prevent and punish extrajudicial executions. 12. By late November 2008, the Attorney-General's Office had initiated investigations into 112 cases of alleged extrajudicial executions which occurred in 2008.", "In addition, 473 additional cases, most of which occurred in 2006 and 2007, were referred to the Attorney-General's National Human Rights and International Humanitarian Law Unit in 2008. This Unit is currently investigating nearly 716 cases related to over 1,100 victims. These figures confirm that extrajudicial executions are not isolated events, but a widespread practice committed by a large number of military units throughout the country... ... 18. OHCHR Colombia was informed of cases of cruel, inhuman and degrading treatment or punishment attributed to members of the security forces in Antioquia, Cauca and Chocó... ... 20. In early 2008 OHCHR Colombia noted cases of serious inhuman and degrading treatment of inmates at the prison of Valledupar (Cesar), as well as excessive use of force by prison guards to put down protests.” 35.", "2008 Country Reports on Human Rights Practices – Colombia, issued by the United States Department of State on 25 February 2009, reads as follows: “Colombia is a constitutional, multiparty democracy... In May 2006 independent presidential candidate Alvaro Uribe was reelected in elections that were considered generally free and fair. The 44-year internal armed conflict continued between the government and terrorist organizations, particularly the Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN). While civilian authorities generally maintained effective control of the security forces, there were instances in which elements of the security forces acted in violation of state policy. Although problems remained, the government's respect for human rights continued to improve, which was particularly evidenced by progress in implementing the Justice and Peace Law.", "... Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment Although the law prohibits such practices, there were reports that the police, military, and prison guards sometimes mistreated and tortured detainees. Members of the military and police accused of torture were tried in civilian rather than military courts. CINEP asserted that, during the first six months of the year, government security forces were involved in 74 incidents of torture, a 46 percent increase compared with the first six months of 2007. CINEP also reported that, during the first six months of the year, there were 66 victims of torture by the armed forces.", "... Prison and Detention Center Conditions With the exception of new facilities, prison conditions were poor, particularly for prisoners without significant outside support. The National Prison Institute (INPEC) runs the country's 139 national prisons and is responsible for inspecting municipal jails. Overcrowding, lack of security, corruption, and an insufficient budget remained serious problems in the prison system. As of year's end, more than 69,000 prisoners were held in facilities designed to hold fewer than 50,000; overcrowding rates exceeded 27 percent in 139 installations. Many of INPEC's 13,000 prison guards and administrative staff were poorly trained.", "The NGO Committee in Solidarity with Political Prisoners noted that improved training, increased supervision, and more accountability for prison guards has helped, but expressed fear that greater privatization of the prisons system may lead to further corruption. Constrained budgets adversely affected prison conditions. INPEC spent 4,941 pesos ($2.00) per day on each inmate for food. Private sources continued to supplement food rations of many prisoners. INPEC reported that during the year there were 40 violent deaths among inmates related to fighting and riots.", "From January to September 30, there were 14 riots at various penal institutions. The Prosecutor General's Office continued to investigate allegations that some prison guards routinely used excessive force and treated inmates brutally. According to the Superior Judicial Council (CSJ), there were four judgments for excessive force made against prison guards during the year. ... Political Prisoners The government stated that it did not hold political prisoners.", "Some human rights advocacy groups characterized as political detainees some detainees held on charges of rebellion or terrorism in what the groups claimed were harassment tactics by the government against human rights advocates. During the year there were 3,336 prisoners accused of rebellion or aiding and abetting insurgence, 2,263 of whom were accused of supporting the FARC. The government provided the ICRC access to these prisoners.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 36. The applicant complained that if extradited to Colombia, he would most probably be subjected to ill-treatment contrary to Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 37.", "The Government contested that argument. They claimed that Colombia was party to the majority of international legal human rights instruments, including the International Covenant on Civil and Political Rights and its Optional Protocol, as well as the UN Convention Against Torture. The Colombian authorities had provided written assurances that the applicant would not be subjected to the death penalty or ill-treatment, that he would be punished only for the crime referred to in the extradition request, that he would not be persecuted on the grounds of his race, ethnic origin, religion, nationality or political views and that upon serving his sentence he would be free to leave Colombia and would not be expelled or extradited to a third State without the Russian authorities' consent. The Colombian penitentiary facilities allowed for decent conditions of detention. The statement by the Colombian Vice-President referred to by the applicant could not be regarded as the official position of the Colombian Government.", "An inquiry carried out by the Russian Prosecutor General's Office had not obtained from Colombian official sources any information on possible ill-treatment of the applicant. Media statements by public officials could not affect judgments already adopted by the judiciary. 38. In sum, the Government insisted that the applicant would not be subjected to any ill-treatment or punishment contrary to Article 3 of the Convention if extradited to Colombia. 39.", "The applicant submitted that recent reports by the UN Committee Against Torture, the UN Human Rights Committee, the UN High Commissioner for Human Rights, the U.S. State Department and Amnesty International showed a questionable human rights situation in Colombia and provided “compelling evidence about overcrowding, insecurity, corruption, and insufficient budget in the prison system and detention conditions, and deadly violence amongst inmates as well as excessive force and brutality by prison guards. Torture and other cruel, inhuman, or degrading treatment or punishment by police, military and prison guards continued to be reported.” 40. In the applicant's submissions, “according to the International Relations and Security Network website, Vice-President Santos was quoted by local papers as stating: 'Hopefully they'll hand Klein over to us so [that] he can rot in jail for all the damage he's caused [to] Colombia'”. He claimed that the statement in question illustrated the serious risk of ill-treatment that he would face once extradited, given that the Vice-President was the second most influential official of the executive branch. The applicant further asserted that diplomatic assurances given by the Colombian Government did not suffice to guarantee him against such risk.", "41. Lastly, the applicant emphasised that the Russian authorities had not conducted a serious investigation into possible ill-treatment. A. Admissibility 42. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. General principles 43. The Court reiterates at the outset that in order to fall within the scope of Article 3 ill-treatment must attain a minimum level of severity.", "The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (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).", "44. The Court further reiterates that extradition by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question would, if extradited, face a real risk of being subjected to treatment contrary to Article 3 of the Convention in the receiving country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise (see Soering v. the United Kingdom, 7 July 1989, § 91, Series A no. 161).", "45. In determining whether it has been shown that the applicant runs a real risk, if extradited, of suffering treatment proscribed by Article 3, the Court will assess the issue in the light of all the material placed before it or, if necessary, material obtained proprio motu (see H.L.R. v. France, 29 April 1997, § 37, Reports of Judgments and Decisions 1997-III). 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 (see Cruz Varas and Others v. Sweden, 20 March 1991, §§ 75-76, Series A no. 201, and Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 107, Series A no.", "215). However, if the applicant has not been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Chahal v. the United Kingdom, 15 November 1996, §§ 85-86, Reports 1996-V). 46. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others, cited above, § 108 in fine). It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no.", "38885/02, § 167, 26 July 2005). Where such evidence is adduced, it is for the Government to dispel any doubts about it (see Ryabikin v. Russia, no. 8320/04, § 112, 19 June 2008). 47. As regards the general situation in a particular country, the Court considers that it can attach certain importance to the information contained in recent reports from independent international human-rights-protection associations such as Amnesty International, or governmental sources, including the US State Department (see, for example, Chahal, cited above, §§ 99-100, Müslim v. Turkey, no.", "53566/99, § 67, 26 April 2005, Said v. the Netherlands, no. 2345/02, § 54, 5 July 2005, and Al-Moayad v. Germany (dec.), no. 35865/03, §§ 65-66, 20 February 2007). At the same time, the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3 (see Vilvarajah and Others, cited above, § 111, and Fatgan Katani and Others v. Germany (dec.), no. 67679/01, 31 May 2001).", "Where the sources available to the Court describe a general situation, an applicant's specific allegations in a particular case require corroboration by other evidence (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 73, ECHR 2005-I). 2. Application of the above principles to the present case 48. In line with its case-law cited above, it is necessary to examine whether the foreseeable consequences of the applicant's extradition to Colombia are such as to bring Article 3 of the Convention into play.", "Since he has not yet been extradited, owing to an indication by the Court of an interim measure under Rule 39 of the Rules of Court, the material date for the assessment of that risk is that of the Court's consideration of the case. 49. In the applicant's submissions, his fears of possible ill-treatment in Colombia are justified by two factors. First, referring to a number of reports, the applicant argues that the general human rights situation in the receiving country is deplorable. Secondly, he claims that he personally would run an even greater risk of ill-treatment than any other person serving a sentence in Colombia since the Vice-President had publicly threatened to have him “rot in jail”.", "50. The Court will therefore first consider whether the general political climate in Colombia could give reasons to assume that the applicant would be subjected to ill-treatment in the receiving country. It notes in this respect that, in the Government's submissions, Colombia, a party to major international treaties, respected basic human rights. Reiterating that in cases concerning aliens facing expulsion or extradition the Court is entitled to compare materials made available by the Government with materials from other reliable and objective sources (see Salah Sheekh v. the Netherlands, no. 1948/04, § 136, ECHR 2007-... (extracts), and Saadi v. Italy [GC], no.", "37201/06, § 131, 28 February 2008), it observes that in 2009 the UN High Commissioner for Human Rights and the U.S. Department of State reported a considerable number of human rights violations that have recently taken place in Colombia (see paragraphs 33-35 above). 51. The information from various reliable sources, including those referred to by the applicant (see paragraphs 31-35 above), undoubtedly illustrates that the overall human-rights situation in Colombia is far from perfect. For instance, State agents are presumed liable for a number of extrajudicial killings of civilians, forced disappearances and arbitrary detentions. 52.", "The findings above that attest to the general situation in the country of destination should be supported by specific allegations and require collaboration by other evidence (see Mamatkulov and Askarov, cited above, § 73). In the same context, the Court should examine whether the authorities assessed the risks of ill-treatment prior to taking the decision on extradition (see Ryabikin, cited above, § 117). 53. The main argument raised by the applicant under Article 3 is the danger of ill-treatment in Colombia, exacerbated by the nature of the crime that he had been convicted of. The Court observes in this respect that the Committee Against Torture expressed its concerns that measures adopted or being adopted by Colombia against terrorism and illegal armed groups could encourage the practice of torture (see paragraph 31 above).", "The Court further notes that the evidence before it demonstrates that problems still persist in Colombia in connection with the ill-treatment of detainees. 54. Furthermore, turning to the applicant's personal situation, the Court observes that the applicant fears that he would be singled out as a target of ill-treatment when in Colombia because Vice-President Santos reportedly stated that the applicant should “rot in jail”. It considers that, regrettably, it is unable to assess fully the nature of the statement and the connotations it might have had in the original language, i.e. Spanish, since the applicant has not indicated the source of the information concerning the statement in question.", "However, it appears that the statement expressing the wish of a high-ranking executive official to have a convicted prisoner “rot in jail” may be regarded as an indication that the person in question runs a serious risk of being subjected to ill-treatment while in detention. 55. The Court notes that the Government invoked assurances from the Colombian Ministry of Foreign Affairs to the effect that the applicant would not be subjected to ill-treatment there (see paragraph 16 above). However, the Court observes that the assurances in question were rather vague and lacked precision; hence, it is bound to question their value. The Court also reiterates that diplomatic assurances are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention (see Saadi, cited above, §§ 147-148).", "56. Lastly, the Court will examine the applicant's argument that the Russian authorities did not conduct a serious investigation into possible ill-treatment in the receiving country. It notes in this respect that the applicant informed the Russian courts about poor human-rights situation in Colombia referring to the fact that there had been a lengthy internal armed conflict between State forces and paramilitaries and citing the UN General Assembly's Resolution and the materials of the meeting of the Human Rights Committee (see paragraph 18 above). Furthermore, the applicant brought to the authorities' attention the fact that the Colombian Vice-President had threatened to have him rot in jail. The Supreme Court of Russia limited its assessment of the alleged individualised risk of ill-treatment deriving from Vice-President Santos's statement to a mere observation that the Colombian judiciary were independent from the executive branch of power and thus could not be affected by the statement in question (see paragraph 21 above).", "The Court is therefore unable to conclude that the Russian authorities duly addressed the applicant's concerns with regard to Article 3 in the domestic extradition proceedings. 57. The Court finds therefore that, in the particular circumstances of the present case, implementation of the extradition order against the applicant would breach Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 58.", "The applicant complained that in Colombia he would not have a fair trial, which would amount to a flagrant denial of justice. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, provides: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” A. The parties' submissions 59. The Government submitted that the Colombian authorities had guaranteed that the applicant would have an opportunity to appeal against the judgment in his criminal case. Furthermore, the criminal proceedings against the applicant had been carried out in compliance with the Colombian constitutional and legal safeguards.", "60. The applicant maintained his complaint and claimed that the Colombian judicial system was overburdened and inefficient. B. The Court's assessment 61. The Court recalls its finding that the extradition of the applicant to Colombia would constitute a violation of Article 3 of the Convention (see paragraph 57 above).", "Having no reason to doubt that the respondent Government will comply with the present judgment, it considers that, whilst the complaint under Article 6 of the Convention is admissible, it is not necessary to decide the hypothetical question whether, in the event of extradition to Colombia, there would also be a violation of Article 6 of the Convention (see Saadi, cited above, § 160). III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 62. The applicant complained that Russian law provided no effective remedies in relation to his complaint of the risk of ill-treatment in the event of his extradition to Colombia. He relied on Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 63.", "The Government contested that argument and insisted that the applicant had had effective remedies available to him and had made use of them when challenging the lawfulness of the extradition decision before the Russian courts, pursuant to Article 463 of the CCP. 64. The applicant reiterated his complaint. 65. The Court observes that the complaint made by the applicant under this Article has already been examined in the context of Article 3 of the Convention in paragraph 56 above.", "In such circumstances the Court considers that, whilst the complaint under Article 13 taken in conjunction with Article 3 is admissible, there is no need to make a separate examination of this complaint on its merits (see, mutatis mutandis, Shaipova and Others v. Russia, no. 10796/04, § 124, 6 November 2008; Makaratzis v. Greece [GC], no. 50385/99, §§ 84-86, ECHR 2004-XI; and Anık and Others v. Turkey, no. 63758/00, § 86, 5 June 2007). IV.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 66. In his application form of 23 July 2008 the applicant relied on Article 2, rephrasing in substance his complaint under Article 3 of the Convention, and on Article 7, complaining that he had been convicted of a crime which, at the time it was committed, had not been punishable under both Russian and Colombian law. 67. In his observations on the admissibility and merits of the case of 18 March 2009 the applicant merely referred to Article 5 of the Convention, without making any complaints under this head. He also alleged that the Vice-President's statement that he should rot in jail, as well as the Reuters news report that Colombian authorities regarded the indication of interim measures as “insulting and flippant” were in breach of Article 6 § 2 of the Convention.", "68. Having regard to all the material in its possession, the Court finds that they do not disclose any appearance of violations of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 69. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 70. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. 71. The Government considered the amount claimed to be excessive. 72.", "The Court considers that its finding that the applicant's extradition to Colombia, if carried out, would breach Article 3 of the Convention constitutes sufficient just satisfaction (see Saadi, cited above, § 188). B. Costs and expenses 73. The applicant claimed reimbursement of EUR 160,000 for costs and expenses incurred in the proceedings before domestic authorities and before this Court. He submitted a note stipulating that Mr D. Yampolskiy had received in fees 2,401,180 Russian roubles (approximately EUR 53,450) and a note stating that Mr M. Tzivin had received 125,000 United States dollars and EUR 60,000 in fees for fees of four attorneys, travel costs, translation costs and advisors' fees.", "No further documents justifying the costs and expenses claims were submitted. 74. The Government questioned the reasonableness and justification of the expenses claimed. 75. The Court reiterates that in order for costs and expenses to be included in an award under Article 41, it must be established that they were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were reasonable as to quantum (see, for example, Nielsen and Johnson v. Norway [GC], no.", "23118/93, § 43, ECHR 1999-VIII). It observes that the expenses allegedly incurred by the applicant in connection with the Strasbourg proceedings were not itemised or supported by any documentary evidence except for two notes of a general nature. In the absence of any itemised bill it is difficult to assess the reasonableness and necessity of the costs made by the applicant. In such circumstances the Court dismisses the applicant's claims under this head in total. VI.", "RULE 39 OF THE RULES OF COURT 76. The Court reiterates that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention. 77. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see paragraph 3 above) must continue in force until the present judgment becomes final or until the Panel of the Grand Chamber of the Court accepts any request by one or both of the parties to refer the case to the Grand Chamber under Article 43 of the Convention (see F.H. v. Sweden, no.", "32621/06, § 107, 20 January 2009). FOR THESE REASONS, THE COURT: 1. Declares unanimously the complaints under Articles 3 and 13 of the Convention, as well as the complaint under Article 6 § 1 of the Convention regarding flagrant denial of justice in Colombia admissible and the remainder of the application inadmissible; 2. Holds by five votes to two that implementation of the extradition order against the applicant would give rise to a violation of Article 3 of the Convention; 3. Holds by five votes to two that it is not necessary to examine whether, in the event of extradition to Colombia, there would also be a violation of Article 6 of the Convention; 4.", "Holds by five votes to two that there is no need to make a separate examination of the complaint under Article 13 of the Convention on its merits; 5. Holds unanimously that the finding of a violation constitutes sufficient just satisfaction for the non-pecuniary damage sustained by the applicant; 6. Dismisses unanimously the remainder of the applicant's claim for just satisfaction; 7. Decides unanimously to continue to indicate to the Government under Rule 39 of the Rules of Court that it is desirable in the interests of the proper conduct of the proceedings not to extradite the applicant until such time as the present judgment becomes final or further order. Done in English, and notified in writing on 1 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "André WampachChristos RozakisDeputy RegistrarPresident In accordance with Article 45 § 2 f the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Mr Kovler and Mr Hajiyev is annexed to this judgment. C.L.R. A.W. JOINT DISSENTING OPINION OF JUDGES KOVLER AND HAJIYEV We cannot agree with the conclusion of the Court that the implementation of the extradition order against the applicant would give rise to a violation of Article 3 of the Convention. We share the general approach of the Court concerning this delicate matter of extraditions on the basis of respect for the elementary rights of extradited persons.", "It is significant that the Court concludes that “the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3 ... Where the sources available to the Court describe a general situation, an applicant's specific allegations in a particular case require corroboration by other evidence” (see paragraph 47 of the judgment). We agree that the information from various reliable sources, including those referred to by the applicant (see paragraphs 31-35), undoubtedly illustrates that the overall situation in Colombia is far from perfect. At the same time we could not find in these reports any indication of the existence of a situation comparable to that of the applicant. It is improbable that the applicant would be subjected to coercion in order to make a self-incriminating statement after his conviction. Given that he would presumably be detained in order to serve his sentence once in Colombia, the risks of his being killed by the military under the pretence of a fight with paramilitaries would be virtually non-existent.", "The applicant has never claimed to be a member of any targeted group such as human-rights advocates. Moreover, he did not apply for refugee status on account of his alleged persecution on political or any other grounds, as is the case in many other applications to the Strasbourg Court. The materials before the Court do not provide accounts of instances of ill-treatment of persons convicted by a court of terrorism-related activities. Although on 4 February 2004 the Committee against Torture expressed its concerns that measures adopted or being adopted by Colombia against terrorism and illegal armed groups could encourage the practice of torture, no further details describing such practices were given either in the Committee's Conclusions and Recommendations of that date or in any other reports. In our view, the applicant has not submitted evidence permitting the unequivocal conclusion that he would be serving his sentence in an overcrowded cell or otherwise poor conditions.", "Nor, on the basis of the evidence at its disposal, can it conclude that this is a case where “extremely poor conditions of detention, as well as ill-treatment and torture, remain a great concern for all observers of the situation” (see Ryabikin v. Russia, no. 8320/04, § 116, 19 June 2008). Lastly, the Colombian authorities have not refused to allow monitoring of places of detention of persons convicted of terrorism-related activities. Therefore, the Court could have considered that the mere risk of the applicant's being detained in poor conditions, in the event of his extradition to Colombia, would not in itself reach the minimum level of severity. Turning to the applicant's personal situation, the Court observes in its judgment that the reason why he fears that he would be singled out as a target of ill-treatment when in Colombia is that Vice-President Santos reportedly stated that the applicant should “rot in jail”.", "But the applicant has not indicated the source of the information concerning the statement in question! The Russian newspaper article, a copy of which was submitted by the applicant, merely cited the Colombian Vice-President without any reference to the circumstances under which the statement in question had been made. Furthermore, the applicant has not provided the Court with any evidence from the International Relations and Security Network website, which allegedly reproduced the statement in question. In such circumstances the Court is usually unable to assess fully the nature of the statement and the connotations it might have had in the original language. In any event, we are not prepared to conclude that a statement expressing the wish of an executive official to have a convicted prisoner “rot in jail” could in itself amount to a serious threat of ill-treatment, given its vague and hyperbolic wording.", "Thus, we consider that the applicant has failed to demonstrate any individualised risk of ill-treatment to which he would be subjected in Colombia if extradited. Further, the Colombian authorities provided their Russian counterparts with diplomatic assurances stating, in particular, that the applicant would not be subjected to ill-treatment (see paragraph 16 of the judgment). In examining the lawfulness of the extradition decision, the Russian courts relied on those assurances (see paragraphs 19 and 21). However, the Court observes that the assurances in question “were rather vague and lacked precision; hence, it is bound to question their value” (see paragraph 55). The Court examines whether diplomatic assurances in expulsion and extradition cases provide, in their practical application, a sufficient guarantee that the applicant would be protected against the risk of treatment prohibited by the Convention (see Chahal v. the United Kingdom, 15 November 1996, § 105, Reports of Judgments and Decisions 1996-V).", "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 v. Italy [GC], no. 37291/06, § 148, ECHR 2008-...). We note that Colombia is a party to the International Covenant on Civil and Political Rights (ICCPR) and voluntarily cooperates with international human rights institutions (see paragraph 34 of the judgment). A field office of the United Nations High Commissioner for Human Rights (UNHCHR) operates in the country. The Government of Colombia allows access by international observers to the country, in particular, to places of detention (see paragraph 35 of the judgment).", "Accordingly, fulfilment of the diplomatic assurances that the applicant would not be subjected to torture or other ill-treatment could be subject to independent and objective monitoring. The Court does not have valid reasons to foresee with any degree of certainty that Colombia would fail to comply with its obligations arising from international law (see, mutatis mutandis, Einhorn v. France (dec.), no. 71555/01, § 33, ECHR 2001-XI). In such circumstances the Court is not in a position to conclude that the diplomatic assurances given by the Colombian authorities concerning the applicant's freedom from ill-treatment should be disregarded on the ground that they provide insufficient guarantees of protection against treatment proscribed by Article 3. As to the applicant's argument that the Russian authorities did not conduct a serious investigation into possible ill-treatment, his allegations to the Russian courts about the risk of ill-treatment were rather vague.", "He did not inform the Russian courts of the particular grounds on which he feared ill-treatment, merely referring to the fact that there had been a lengthy internal armed conflict between State forces and paramilitaries. His references to the General Assembly's Resolution and the meeting of the Human Rights Committee were not supported by copies of the documents in question (see paragraph 18 of the judgment). Furthermore, the applicant only indirectly implied that his personal situation as a prisoner would be deplorable. The vague reference to widespread violations of prisoners' rights (see paragraph 20), unsupported by any evidence, was hardly sufficient. Having regard to all of the above, we conclude that substantial grounds for believing that the applicant would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention if extradited to Colombia have not been shown in the present case.", "Accordingly, the implementation of the extradition order against the applicant would not give rise to a violation of Article 3 of the Convention." ]

[ "FIRST SECTION CASE OF SHABALIN v. RUSSIA (Application no. 75027/01) JUDGMENT (Striking out) STRASBOURG 12 April 2007 FINAL 12/07/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Shabalin 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 22 March 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 75027/01) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Boris Fedorovich Shabalin, on 23 July 2001. 2. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.", "3. The applicant alleged, in particular, a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 in that the judgment in his favour had not been enforced in good time. 4. By a decision of 23 March 2006, the Court declared the application admissible and also joined it with other applications concerning the same matter (nos.", "75025/01, 75026/01, and others). 5. The applicant and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1945 and lives in the Rostov Region.", "7. On 6 July 1999 the applicant obtained a judgment of the Shakhty Town Court of the Rostov Region by which social-security authorities were to pay him a certain amount in respect of previously unpaid emoluments. 8. In 2002, the applicant received the amount due under the judgment. 9.", "On 13 December 2006 the applicant and the Shakhty Department of Labour and Social Development entered into a friendly settlement, according to which the Department was to pay the applicant compensation of 3,000 euros (“EUR”) for the delay in enforcement of the above judgment. In exchange, the applicant was to abandon his claims relating to untimely payments. On the same date the Shakhty Town Court approved the settlement. In exchange, the applicant was to abandon his claims relating to untimely payments. On the same date the Shakhty Town Court approved the settlement.", "10. On 26 December 2006 the Town Court's judgment became final. 11. On 29 December 2006 the applicant informed the Court that the amount of EUR 3,000 had been credited into his bank account. THE LAW 12.", "The Court notes that the applicant's grievances stemmed from the fact that a judgment in his favour had not been enforced in good time. It appears, however, that in 2002 the amount due under the judgment was paid to the applicant and that in 2006 he also received compensation for the non-pecuniary damage incurred through the belated enforcement. 13. The Court recalls Article 37 of the Convention which, in so far as relevant, provides as follows: “The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ... (b) the matter has been resolved; ... However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.” 14.", "The Court notes that the parties reached a settlement at domestic level. The amount stipulated therein was reasonable as to quantum and it was paid to the applicant without undue delay. In these circumstances, the Court considers that the matter was resolved at the domestic level (see Sarkisyan v. Russia (dec.), no. 20812/03, 2 March 2006). 15.", "Furthermore, the Court is satisfied that respect for human rights as defined in the Convention and its Protocols does not require it at present to continue the examination of the application (Article 37 § 1 in fine). 16. Accordingly, the application should be disjoined and the case struck out of the list in accordance with Article 37 § 1 (b) of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to disjoin the application; 2.", "Decides to strike the case out of the list. Done in English, and notified in writing on 12 April 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenLoukis LoucaidesRegistrarPresident" ]

[ "FIRST SECTION CASE OF PODYAPOLSKIY v. RUSSIA (Application no. 36939/02) JUDGMENT STRASBOURG 12 June 2008 FINAL 12/09/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Podyapolskiy v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 22 May 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "36939/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Yuriy Vasilyevich Podyapolskiy (“the applicant”), on 23 September 2002. 2. The Russian Government (“the Government”) were represented by Mr P. Laptev and Mrs V. Milinchuk, Representatives of the Russian Federation at the European Court of Human Rights. 3. On 1 March 2006 the Court decided to give notice of the application to the Government.", "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 1964 and lives in Tambov. 5.", "As a victim of Chernobyl, the applicant was entitled to social benefits. Considering himself underpaid, he brought four actions against a social-security authority. 6. On 19 June 2000 the Oktyabrskiy District Court of Tambov awarded the applicant 16,951.58 Russian roubles (“RUB”). This judgment became binding on 4 September 2000 and was enforced on 19 February 2004.", "7. On 14 March 2001 the district court awarded the applicant RUB 56,632.25. This judgment became binding on 26 March 2001 and was enforced on 19 February 2004. 8. On 16 May 2001 the Tambov Regional Court awarded the applicant RUB 10,926.87.", "This judgment became binding immediately and was enforced on 7 March 2003. 9. On 28 May 2002 the district court awarded the applicant RUB 20,651.78. This judgment became binding on 13 June 2002. On 26 June 2003 it was quashed on supervisory review.", "II. RELEVANT DOMESTIC LAW 10. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 11. The applicant complained that the delayed enforcement of the judgments violated Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which, as far as relevant, read as follows: Article 6 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 12. 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 13. The Government have admitted that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1. 14.", "There has, accordingly, been a violation of these Articles. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 15. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 16.", "The applicant claimed 10,000 euros (EUR) in respect of pecuniary damage, non-pecuniary damage, and costs and expenses. 17. The Government contested this claim. They submitted that the applicant had not substantiated the pecuniary damage. As to non-pecuniary damage, a finding of a violation would be sufficient, and in any event the amount claimed was exorbitant.", "18. The Court rejects the claim in respect of pecuniary damage, because the applicant has not substantiated it. 19. On the other hand, making its assessment on an equitable basis, the Court awards the applicant EUR 2,700 in respect of non-pecuniary damage. B.", "Costs and expenses 20. The applicant claimed for costs and expenses an unspecified part of the claim mentioned in § 16. 21. The Government contested this claim as unsubstantiated. 22.", "The Court rejects the claim because the applicant has not substantiated it. C. Default interest 23. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,700 (two thousand seven 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 12 June 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos RozakisRegistrarPresident" ]

[ "GRAND CHAMBER CASE OF SÖDERMAN v. SWEDEN (Application no. 5786/08) JUDGMENT STRASBOURG 12 November 2013 In the case of Söderman v. Sweden, The European Court of Human Rights, sitting as a Grand Chamber composed of: Josep Casadevall, President, Guido Raimondi, Ineta Ziemele, Isabelle Berro-Lefèvre, Corneliu Bîrsan, Boštjan M. Zupančič, Mirjana Lazarova Trajkovska, Ledi Bianku, Zdravka Kalaydjieva, Kristina Pardalos, Julia Laffranque, Paulo Pinto de Albuquerque, Linos-Alexandre Sicilianos, Erik Møse, Helen Keller, Helena Jäderblom, Johannes Silvis, judges, and Erik Fribergh, Registrar, Having deliberated in private on 3 April 2013 and on 25 September 2013, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 5786/08) against the Kingdom of Sweden lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Swedish national, Ms Eliza Söderman (“the applicant”), on 21 January 2008. 2.", "The applicant was represented by Mr J. Södergren, Mr K. Lewis and Mr C. Crafoord, lawyers practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agents, Mr A. Rönquist, Ms G. Isaksson and Mr O. Widgren, of the Ministry of Foreign Affairs. 3. The applicant alleged that the Swedish State had failed to comply with its obligation under Article 8 of the Convention to provide her with remedies against her stepfather’s violation of her personal integrity when he had attempted secretly to film her naked in their bathroom when she was 14 years old. She also relied on Article 13 of the Convention.", "4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Its President acceded to the applicant’s request not to have her name disclosed (Rule 47 § 3), and the case was called E.S. v. Sweden. On 1 February 2011 the Court changed the composition of its Sections (Rule 25 § 1) and the application was assigned to the newly composed Fifth Section.", "On 21 June 2012 a Chamber composed of Dean Spielmann, President, Elisabet Fura, Karel Jungwiert, Mark Villiger, Ann Power-Forde, Ganna Yudkivska, André Potocki, judges, and Claudia Westerdiek, Section Registrar, delivered its judgment. It decided to examine the complaint under Article 8 alone and unanimously declared it admissible, holding, by four votes to three, that there had been no violation of that provision. The joint dissenting opinion of Judges Spielmann, Villiger and Power-Forde was annexed to the judgment. 5. On 19 September 2012 the applicant requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention, and a panel of the Grand Chamber accepted the request on 19 November 2012.", "6. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. 7. The applicant and the Government each filed further observations on the merits (Rule 59 § 1). 8.", "In addition, third-party comments were received from the Human Rights Centre of Ghent University, which had been granted leave by the President of the Grand Chamber to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). 9. On 22 March 2013, the President of the Grand Chamber acceded to the applicant’s request of 12 March 2013 to lift the anonymity granted to her. 10. A hearing took place in public in the Human Rights Building, Strasbourg, on 3 April 2013 (Rule 59 § 3).", "There appeared before the Court: (a) for the GovernmentMrA. Rönquist, Agent, Ambassador andDirector General for Legal Affairs, Ministry of Foreign Affairs,Counsel,MsG. Isaksson, Co-Agent, Deputy Director,Ministry of Foreign Affairs,MrO. Widgren, Co-Agent, Special Adviser, Ministry of Foreign Affairs,MrM. Säfsten, Senior Legal Adviser, Ministry of Justice,MsV.", "Lång, Deputy Director, Ministry of Justice,MrC. Rosenmüller, Legal Adviser, Ministry of Justice,Advisers; (b) for the applicantMrJ. Södergren, MrK. Lewis, MrC. Crafoord, Counsel.", "The applicant was also present. The Court heard addresses by Mr Crafoord, Mr Lewis, Mr Södergren and Mr Rönquist, as well as their replies to questions put by Judges Ziemele, Sicilianos, Pinto de Albuquerque and Zupančič. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 11. The applicant was born in 1987 and lives in Ludvika.", "12. In September 2002, when she was 14 years old, she discovered that her stepfather had hidden a video-camera in the laundry basket in the bathroom, which was in recording mode and directed towards the spot where she had undressed before taking a shower. Immediately after the incident, the film was burned without anyone seeing it. 13. In September 2004, two years later, the applicant’s mother reported the incident to the police.", "An officially appointed counsel (målsägandebiträde) was assigned to the applicant on 5 October 2004. 14. On 21 October 2005 the public prosecutor indicted the applicant’s stepfather for sexual molestation (sexuellt ofredande) under Chapter 6, Article 7 § 3, of the Penal Code. He was also charged on two counts of sexual molestation of the applicant’s cousin, committed during the spring and summer of 2003 when the cousin was 16 years old, for having caressed her thigh and for having expressed his desire to have sex with her. He was charged on a fourth count of sexual molestation for having allegedly looked through the window of the applicant’s room when she was undressing in the late summer of 2003.", "15. On 20 January 2006 the applicant, represented by counsel, submitted a claim for damages of 25,000 Swedish kronor (SEK): SEK 15,000 in compensation for violation of her personal integrity and SEK 10,000 for pain and suffering, to be joined to the criminal proceedings. The applicant based her private claim on “the criminal act for which her stepfather was being prosecuted”, without invoking any specific sections of the Tort Liability Act. 16. The applicant, her stepfather, her mother and her cousin gave evidence before the District Court of Falun (Falu Tingsrätt).", "The applicant explained that on the relevant day in September 2002, as she was about to take a shower, her stepfather had been doing something in the bathroom. When she discovered the camera, it was in recording mode, making a buzzing sound and flashing. She did not touch any of the buttons. She went to her mother in tears, taking the video-camera wrapped in a towel. H stepfather took the camera from her mother.", "Subsequently, the applicant saw her mother and stepfather burning a film, but she was not sure whether it was a recording of her. 17. The applicant’s mother confirmed the applicant’s statement and added that she did not know whether anything had been recorded since the film had been burned without her seeing it. She had not reported the incident to the police until 2004, when she had heard that the applicant’s cousin had also experienced incidents with the accused. 18.", "The applicant’s stepfather explained that he had lived with her mother from 1997 until the autumn of 2003. They had separated on account of the incident in question, among other things. He had wanted to try to film with a hidden camera, but it had been an impulsive act. He was not sure whether the camera had been in recording mode or whether a film had been recorded. The applicant’s mother had burned the film without any of them seeing it.", "19. By a judgment of 14 February 2006, the District Court convicted the applicant’s stepfather on all four counts of sexual molestation under Chapter 6, Article 7 § 3, of the Penal Code. As regards the first count of sexual molestation, it found it established that he had had a sexual intention in hiding the camera in the laundry basket and directing it at the part of the bathroom where it was usual to undress. It added that the buzzing sound from the camera heard by the applicant strongly suggested that the camera was switched on and was actually recording. Otherwise, there would have been no point in hiding the camera among the clothes in the laundry basket.", "The hole in the laundry basket indicated that the strategy was quite refined. Regardless of the fact that, afterwards, no one had verified the contents of the film, it could under the circumstances be considered established that the applicant’s stepfather had actually filmed her while she was naked. 20. The applicant’s stepfather was given a suspended sentence combined with seventy-five hours’ compulsory community service. Moreover, he was ordered to pay the applicant damages in the amount of SEK 20,000.", "21. On appeal, by a judgment of 16 October 2007, the Svea Court of Appeal (Svea hovrätt) convicted him on the two counts of sexual molestation committed against the cousin, for which he was given a suspended sentence and ordered to pay sixty day-fines of SEK 50, amounting to a total of SEK 3,000. 22. The Court of Appeal acquitted him on the counts of sexual molestation allegedly committed against the applicant. 23.", "As to the incident in September 2002, the Court of Appeal found it established that the applicant’s stepfather had put a camera in the bathroom and that he had started the recording before she was about to take a shower. Whether a recording had actually been made, however, was unclear. It was apparent, the court continued, that his motive had been to film the applicant covertly for a sexual purpose. Given that motive, it was also regarded as certain that he had not intended the applicant to find out about the filming. Nor, according to the court, had he been indifferent to the risk that she would find out about it.", "In assessing whether the act legally constituted sexual molestation within the meaning of Chapter 6, Article 7 § 3, of the Penal Code, the Court of Appeal referred to a Supreme Court judgment (published in Nyatt jurisdiskt arkiv (NJA) 1996, p. 418) concerning a man who had covertly filmed his sleeping girlfriend while he masturbated. The man was acquitted of sexual molestation because he had not intended his girlfriend to find out about the filming. Moreover, in the said judgment the Supreme Court held that the isolated act of filming was not a crime in itself, as in Swedish law there was no general prohibition against filming an individual without his or her consent. Following that line of reasoning, and despite finding that the situation the applicant’s stepfather intended to film was obviously of a sensitive nature as regards her personal integrity and that the violation was particularly serious on account of the applicant’s age and relationship to her stepfather, the Court of Appeal found that he could not be held criminally responsible for the isolated act of filming the applicant without her knowledge. The court noted that the applicant had become aware of her stepfather’s attempt to film her, but that this had not been covered by his intent.", "24. The Court of Appeal went on to point out that the act might, at least theoretically, have constituted the crime of attempted child pornography (försök till barnpornografibrott) considering the applicant’s age. However, since no charge of that kind had been brought against the applicant’s stepfather, the Court of Appeal could not examine whether he could be held responsible for such a crime. In conclusion, despite finding his behaviour extremely reprehensible, he was acquitted and the applicant’s claim for damages dismissed. 25.", "As regards the incident in the late summer of 2003, the Court of Appeal found it established that the applicant’s stepfather had wanted to look at her secretly. Thus, although the court found such behaviour reprehensible, he had lacked the intent that the applicant should see him. 26. On 12 December 2007 the Supreme Court (Högsta domstolen) refused leave to appeal. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Sexual molestation 27. The offence of sexual molestation (and child pornography, see below) falls within the domain of public prosecution, in which the principle of objectivity is applied whereby no prosecution should be brought if the prosecutor deems that the conditions for a conviction are lacking. The provision on sexual molestation can be found in the Penal Code (Brottsbalken, 1962:700) which, before 1 April 2005, provided: Chapter 6 on sexual crimes, Article 7 “1. If a person sexually touches a child under 15 years of age otherwise than as previously provided for in this Chapter, or induces the child to undertake or participate in an act with sexual implications, a fine or imprisonment of a maximum period of two years shall be imposed for sexual molestation.", "2. A sentence for sexual molestation shall also be imposed on a person who by coercion, seduction or other improper influence induces a person who has attained the age of 15 but not 18 to undertake or participate in an act with sexual implications if the act is an element in the production of pornographic pictures or constitutes pornographic posing in circumstances other than those relating to the production of a picture. 3. This shall also apply if a person exposes himself or herself in such a manner that the nature thereof gives offence or otherwise manifestly behaves indecently by word or deed towards a person in a way that flagrantly violates a sense of propriety.” 28. On 1 April 2005 that provision was incorporated into Article 10 of Chapter 6 and reads as follows: “1.", "A person who, otherwise than as previously provided in this Chapter, sexually touches a child under 15 years of age or induces the child to undertake or participate in an act with sexual implications shall be sentenced for sexual molestation to a fine or to imprisonment of a maximum period of two years. 2. This also applies to a person who exposes himself or herself to another person in a manner that is likely to cause discomfort or who otherwise by word or deed molests a person in a way that is likely to violate that person’s sexual integrity.” 29. It should be noted that a person cannot be held responsible for an uncompleted act of sexual molestation, such as attempting or preparing to commit such a crime (see, by converse implication, Chapter 23, Article 1, of the Penal Code). 30.", "Subsequently, based on the statements in the preparatory works to the provision, the 2008 Sexual Offences Commission stated the following. “In our view, it is ... quite clear that the second paragraph of the provision on sexual molestation should also include actions directed at persons who are unconscious or asleep. The provision therefore belongs to the category of sexual offences, not offences against integrity. Using this as the starting point for how the offence of sexual molestation should be handled, it may also be possible to assess situations in which a person has covertly filmed or photographed another person in a sexually intrusive way as sexual molestation.” B. Attempted child pornography 31.", "The relevant provisions of the Penal Code read: Article 10a of Chapter 16 on crimes against public order “A person who 1. portrays a child in a pornographic picture; 2. disseminates, transfers, grants use of, exhibits, or in any other way makes such a picture of a child available to some other person; 3. acquires or offers such a picture of a child; 4. brings about contact between a buyer and a seller of such pictures of children or takes any other similar step to facilitate dealing in such pictures; or 5. possesses such a picture of a child shall be sentenced for the crime of child pornography to imprisonment for a maximum period of two years, or, if it is a petty offence, to a fine or imprisonment for a maximum period of six months. A child is held to be a person whose pubertal development is not complete or who is under 18 years of age. If a person’s pubertal development is complete, liability shall be imposed for deeds committed under points 2 to 5 above only if it is apparent from the picture or its circumstances that the depicted person is under 18 years of age. ...” 32. Before 1 January 2011, the second paragraph of the above Article read: “A child is held to be a person whose pubertal development is not complete or who, where this is apparent from the picture and its circumstances, is less than 18 years of age ...” 33.", "The term “pornographic picture” is not defined in the text of the law. In the preparatory works it was stated that the provision about pornographic crimes applied only to pictures, but to pictures of all kinds, such as, inter alia, pictures in publications, photographic pictures, including films and pictures distributed by TV-technique or video recordings (Governmental Bill 1978/79:179, p. 9). Moreover it was stated that: “A certain prudence was called for, so that the criminalised area would not become too wide or difficult to assess. It was not the intention to criminalise every exposure of naked children or all pictures in which a child’s genitals may be perceived, even if such pictures may stimulate some people’s sexual instincts. In order for the handling of a picture to be illegal, it is a condition that it be pornographic according to common parlance and general values.” 34.", "In a review of the legislation (Law no. 2010:1357), which led to the amendment of the second paragraph of Chapter 16, Article 10a, as from 1 January 2011, as set out above, the following was stated, among other things, as regards the definition (Swedish Government Official Reports, SOU 2007:54, p. 77): “A picture may be regarded as pornographic when, without any real scientific or artistic merits, and in a blatant and alluring manner, it displays a sexual motive (Gov. Bill 1970:125, pp. 79 et seq.). Not only do pictures in which children are involved in acts which obviously have a sexual connotation fall within the provision regarding child-pornography crimes, but also pictures in which children appear together with one or several adults who are performing such actions.", "Pictures in which a child appears in a manner which is designed to appeal to sexual instincts without the child being considered to have participated in sexual behaviour during the picturing may fall within the criminalised area ... A picture may be presented in different ways, inter alia, by a real child being pictured, filmed or drawn. By using different techniques, more or less realistic artificial pictures may also be created. For criminal liability to be incurred it is not necessary that the picture depicts a real child; pictures of fictive children are also included.” 35. With regard specifically to attempt, the Penal Code reads: Chapter 16, Article 17 “A person preparing or conspiring to commit mutiny ... shall be sentenced in accordance with the provisions of Chapter 23. The same shall also apply ... to the crime of attempting to commit the crime of child pornography described in Article 10a, first paragraph ...” Chapter 23, Article 1 “A person who has begun to commit a crime without bringing it to completion shall, in cases where specific provisions exist for the purpose, be sentenced for attempting to commit a crime if there was a danger that the act would lead to the completion of the crime or such danger was precluded only because of fortuitous circumstances.", "Punishment for attempt shall not exceed the sentence applicable to a completed crime and shall not be less than imprisonment if the least stringent punishment for the completed crime is imprisonment of two years or more.” C. Other relevant legal provisions 36. The Code of Judicial Procedure (Rättegångsbalken 1942:740) provides in so far as relevant: Chapter 17, Article 3 “A judgment shall not be given for anything other or more than that properly requested by a party. In cases amenable to out-of-court settlement, the judgment shall not be based on circumstances other than those pleaded by a party as the foundation of his or her action.” Chapter 22, Article 7 “If an action for private claims in consequence of an offence is brought in conjunction with the prosecution and it is found that the offence charged is not punishable, the action may nonetheless be adjudicated in the case.” Chapter 29, Article 6 “...Where a private claim is joined to the prosecution, the court’s finding of criminal liability shall be binding for the adjudication of the private claim.” Chapter 30, Article 3 “The judgment may relate only to an act for which a prosecution was properly instituted or to a matter referred by statute to the court’s criminal jurisdiction. The court is not bound by the legal characterisation of the offence or applicable provisions of law stated in the claim.” 37. The Tort Liability Act (Skadeståndslag 1972:207) provides in so far as relevant: Chapter 2, section 1 “Anyone who deliberately or negligently causes personal injury or damage to property shall compensate the injury or damage caused.” Chapter 2, section 3 “Anyone who seriously violates another person through a crime involving an attack against the person or the freedom, serenity or honour of that person shall compensate the damage caused by the violation.” D. Domestic practice concerning covert filming 38.", "In a Supreme Court judgment of 16 October 1992 (NJA 1992, p. 594) concerning a person who had secretly filmed sexual intercourse between himself and his girlfriend and who had subsequently shown the film to several persons, the Supreme Court noted that it was not prohibited under Swedish law to film another person without his or her consent. This was so, the court continued, even in situations where the deed in question seriously violated the personal integrity of the person concerned. Apart from certain exceptional situations, the only protection available was under the criminal provisions on defamation in conjunction with Chapter 1, section 3, of the Tort Liability Act (now Chapter 2, section 3, of that Act). The Supreme Court found that the accused person had committed defamation by showing the film to others. 39.", "A further Supreme Court judgment dated 27 June 1996 (NJA 1996, p. 418) concerned a man who had covertly filmed his sleeping girlfriend while he masturbated. The District Court found his acts to constitute, inter alia, sexual molestation, but the Court of Appeal and the Supreme Court acquitted him of this offence. The Supreme Court held that the isolated act of filming was not a crime in itself as in Swedish law there was no general prohibition against filming an individual without his or her consent. 40. Yet another Supreme Court judgment, dated 23 October 2008 (NJA 2008, p. 946), concerned, inter alia, a person who had covertly filmed his ex-girlfriend with another man in an intimate situation and who had subsequently e‑mailed the film, together with certain descriptive messages, to others.", "The Court of Appeal found the filming to constitute molestation and the sending of some of the e-mails to amount to defamation, and awarded the ex-girlfriend damages for violation of personal integrity. The Supreme Court granted leave to appeal in respect of the alleged molestation. The Supreme Court acquitted the person of molestation and reiterated at the same time that Swedish law contained no general prohibition against covert filming. The court also noted that in cases where the covert filming did not constitute a crime, no damages could be awarded. Although the need for a strengthened legal framework in this regard had already been acknowledged in Swedish legislative work in the 1960s, the court noted further that it had so far not led to any concrete results.", "The court found it highly questionable whether the fact that acts of filming an individual in situations where such filming seriously violated the personal integrity of the person concerned were left wholly unpunished under Swedish law was compatible with the requirements of Article 8 of the Convention. Given that finding, the court continued, it was legitimate to examine whether punishment could be imposed by interpreting otherwise non-applicable domestic provisions in a Convention-compliant manner. In that regard, the court referred to domestic case-law concerning compensation for violations of the Convention. However, the court noted, another requirement under the Convention was that no one should be punished for an act which, at the time when it was committed, did not clearly constitute a criminal offence under the law. After finding that the filming in issue did not fall under any applicable criminal provision, it was left unpunished and no damages were awarded.", "E. Recent legislative work concerning covert filming 41. In 2004 the Government instructed the Committee on the Protection of Integrity (Integritetsskyddskommittén) to investigate the need for general legal provisions for the protection of personal integrity (apart from the legislation on data protection, crimes against individuals, secrecy, and so on). In the meantime, the Penal Code was reviewed and in April 2005 an amendment to the provision on sexual molestation, which was designed to encompass covert filming for sexual purposes, was introduced (see paragraphs 28-30 above). 42. In 2008 the Committee on the Protection of Integrity proposed a general provision in the Penal Code on illicit photography and in January 2011 the Ministry of Justice issued a report on illicit photography (Ds 2011:1) which proposed the criminalisation of photography and filming in certain situations.", "On 1 March 2012 the Government approved the referral of a proposal entitled “Intrusive Photography” to the Law Council (Lagrådet) for consideration. The latter criticised the proposal, inter alia, on account of the potential effects that it could have on the principles laid down in order to protect those who procure information for publication under the Freedom of the Press Act and the Fundamental Law on Freedom of Expression, which are part of the Swedish Constitution. 43. Consequently, on 20 December 2012 the Government adopted a new proposal modifying the scope of the criminalisation of intrusive photography. The Law Council did not have any comments on the substance of the proposal and on 7 February 2013 the Government presented the bill to the Swedish Parliament proposing to criminalise intrusive photography in accordance with the proposal referred to the Law Council on 20 December 2012.", "The Law (SFS 2013:366) was enacted by Parliament on 29 May 2013 and came into force on 1 July 2013. Henceforth, Article 6a of Chapter 4 of the Penal Code, regarding crimes against liberty and peace, reads as follows: “A person who, with the aid of technical means, illicitly and covertly records a picture of someone who is inside a home or in a bathroom, in a changing room or other similar space, shall be sentenced for intrusive photography to a fine or imprisonment of a maximum of two years. No criminal responsibility shall be imposed if the act is justifiable considering its purpose and other circumstances. The first paragraph does not apply to a person who depicts someone with the aid of technical means in the course of duty on behalf of a public authority.” In concrete terms, covertly filming a person without his or her permission in a shower or bathroom would be punishable as intrusive photography. Placing, or “rigging”, a camera with the aim of committing an intrusive-photography offence would also be punishable as preparation to commit such an offence.", "F. Domestic practice concerning the crime of child pornography 44. In a judgment of 25 February 2005 (NJA 2005, p. 80), which concerned the photographing and filming of certain young individuals aged over 15 but under 18, the Supreme Court held that the pubertal development of the individuals was clearly complete and that it was impossible, from the pictures alone or their presentation, to determine whether they had attained the age of 18 or not. Their age could not be determined from any text accompanying the pictures or any other circumstances. In such a situation, and regardless of whether the person responsible for the pictures was aware of the individuals’ age or not, the act could not be held to constitute the crime of child pornography. G. Domestic practice and ongoing legislative work concerning compensation for violations of the Convention 45.", "In a judgment of 9 June 2005 (NJA 2005, p. 462) concerning a claim for damages brought by an individual against the Swedish State, inter alia, on the basis of an alleged violation of Article 6 of the Convention on account of the excessive length of criminal proceedings, the Supreme Court held that the claimant’s right under this Article had been violated. Based on this finding, and with reference, inter alia, to Articles 6 and 13 and the Court’s case-law under these provisions, in particular the case of Kudła v. Poland ([GC], no. 30210/96, ECHR 2000‑XI), the Supreme Court concluded that the claimant was entitled to compensation from the State directly under Swedish legislation on tort liability for pecuniary damage and under Article 13 of the Convention for non-pecuniary damage to the extent that no other remedy was available. 46. Similar decisions followed on 4 May 2007 (NJA 2007, p. 295), concerning length of detention and Article 5 of the Convention, and on 21 September 2007 (NJA 2007, p. 584) regarding Article 8 of the Convention.", "47. A Supreme Court decision of 29 October 2007 (NJA 2007, p. 747) concerned a claim for damages brought by an individual against a private insurance company. The claim concerned an alleged violation of Article 8 of the Convention related to secret surveillance undertaken in respect of the claimant. The Supreme Court noted that the Convention did not impose duties on individuals. Even if the State might have positive obligations under the Convention, the court continued, in view of the rule-of-law value enshrined in the principle of predictability, an individual could not be obliged to compensate another individual directly on the basis of the Convention.", "48. The right to obtain compensation on the basis of an alleged violation of the Convention was subsequently acknowledged by the Supreme Court in its judgments of December 2009 (NJA 2009, N 70), June 2010 (NJA 2010, p. 363) and April 2012 (NJA 2012, p. 211). 49. Furthermore, the Chancellor of Justice has delivered various decisions concerning compensation to individuals for violations of the Convention. 50.", "Finally, in May 2009 the Government decided to set up a committee (en särskild utredare) on tort liability and the Convention to examine the current legal situation. In December 2010 the committee submitted its report (Skadestånd och Europakonventionen, SOU 2010:87) to the Government. It proposed the inclusion of an explicit provision in the Tort Liability Act allowing natural and legal persons to obtain pecuniary and non-pecuniary damages from the State or a municipality for violations of the Convention. Such an action against public authorities would be examined by an ordinary court which would first need to establish that a right under the Convention had been violated. The aim of the proposal is to fulfil, together with the other already existing legal remedies, Sweden’s obligations under Article 13 of the Convention.", "III. INTERNATIONAL CONVENTIONS A. The United Nations Convention on the Rights of the Child 1989 51. The United Nations Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the Contracting States, including all of the member States of the Council of Europe. It was ratified by Sweden on 29 June 1990 and its relevant Articles read: Article 19 “1.", "States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.” Article 34 “States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity; (b) The exploitative use of children in prostitution or other unlawful sexual practices; (c) The exploitative use of children in pornographic performances and materials.” B. The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse 52.", "This Convention obliges its Parties to take the necessary legislative or other measures to prevent all forms of sexual exploitation and sexual abuse of children and to criminalise certain intentional conduct, including offences concerning child pornography. It was signed by Sweden on 25 October 2007 and came into force on 1 July 2010. Sweden ratified it on 28 June 2013. The relevant parts of Chapter VI, “Substantive criminal law” read: Article 18 – Sexual abuse “1. Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalised: a. engaging in sexual activities with a child who, according to the relevant provisions of national law, has not reached the legal age for sexual activities; b. engaging in sexual activities with a child where: – use is made of coercion, force or threats; or – abuse is made of a recognised position of trust, authority or influence over the child, including within the family; or – abuse is made of a particularly vulnerable situation of the child, notably because of a mental or physical disability or a situation of dependence.", "2. For the purpose of paragraph 1 above, each Party shall decide the age below which it is prohibited to engage in sexual activities with a child. 3. The provisions of paragraph 1.a are not intended to govern consensual sexual activities between minors.” Article 20 – Offences concerning child pornography “1. Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct, when committed without right, is criminalised: a. producing child pornography; b. offering or making available child pornography; c. distributing or transmitting child pornography; d. procuring child pornography for oneself or for another person; e. possessing child pornography; f. knowingly obtaining access, through information and communication technologies, to child pornography.", "2. For the purpose of the present article, the term ‘child pornography’ shall mean any material that visually depicts a child engaged in real or simulated sexually explicit conduct or any depiction of a child’s sexual organs for primarily sexual purposes. 3. Each Party may reserve the right not to apply, in whole or in part, paragraph 1.a and e to the production and possession of pornographic material: – consisting exclusively of simulated representations or realistic images of a non-existent child; – involving children who have reached the age set in application of Article 18, paragraph 2, where these images are produced and possessed by them with their consent and solely for their own private use. 4.", "Each Party may reserve the right not to apply, in whole or in part, paragraph 1.f.” Article 21 – Offences concerning the participation of a child in pornographic performances “1. Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalised: a. recruiting a child into participating in pornographic performances or causing a child to participate in such performances; b. coercing a child into participating in pornographic performances or profiting from or otherwise exploiting a child for such purposes; c. knowingly attending pornographic performances involving the participation of children. 2. Each Party may reserve the right to limit the application of paragraph 1.c to cases where children have been recruited or coerced in conformity with paragraph 1.a or b. ...” IV.", "COMPARATIVE LAW 53. From the information available to the Court, including a survey of thirty-nine Council of Europe member States, it would appear that child pornography is criminalised in all of those States. 54. The isolated act of covert/non-consensual filming, photographing or portrayal of a child for sexual purposes is criminalised either as child pornography or as a specific offence in thirty-three of the member States studied (Albania, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Estonia, Finland, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Luxembourg, Republic of Moldova, Montenegro, the Netherlands, Norway, Poland, Romania, Russia, Slovakia, Slovenia, Spain, Switzerland, Turkey, Ukraine and the United Kingdom), while a conviction in the remaining six member States (Azerbaijan, Denmark, France, Monaco, Lithuania and the former Yugoslav Republic of Macedonia) can only be obtained where an intent to distribute the pornographic material can be proven. In most of the latter countries the conduct in question might still be illegal under other provisions of the Criminal Code relating to sexual offences.", "55. The isolated act of covert or non-consensual filming/photographing of an individual (a child or an adult) for non-sexual purposes is considered a criminal offence in twenty-five of the member States studied (Albania, Bosnia and Herzegovina, Croatia, Denmark, Finland, France, Georgia, Germany, Greece, Iceland, Italy, Lithuania, Luxembourg, Monaco, Montenegro, the Netherlands, Poland, Russia, Slovakia, Slovenia, Spain, Switzerland, the former Yugoslav Republic of Macedonia, Turkey and Ukraine), namely as a violation of the right to privacy. Eleven of the remaining fourteen member States which do not include privacy crimes in their criminal codes provide for civil remedies against infringements of a person’s privacy. Three of the member States examined also do not have a civil-law procedure for claims against covert/non-consensual capturing of one’s image. THE LAW I.", "ALLEGED VIOLATIONS OF ARTICLES 8 AND 13 OF THE CONVENTION 56. The applicant complained that the Swedish State had failed to comply with its obligation under Article 8 to provide her with remedies against her stepfather’s violation of her personal integrity when he had attempted secretly to film her naked in their bathroom when she was 14 years old. She also relied on Article 13 of the Convention. 57. The Court reiterates that it is the master of the characterisation to be given in law to the facts of a case (see, for instance, Aksu v. Turkey [GC], nos.", "4149/04 and 41029/04, § 43, ECHR 2012). In the present case, it considers that the applicant’s complaint concerns exclusively the remedies available to her against her stepfather, not those available against the State to enforce the substance of a Convention right or freedom at the national level. The complaint is therefore to be examined under Article 8 of the Convention alone, which provides as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2.", "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The Chamber judgment 58. In its judgment of 21 June 2012 (see E.S. v. Sweden, no. 5786/08, 21 June 2012), the Chamber also considered that the complaint was to be examined under Article 8 of the Convention alone.", "It was satisfied that, although Swedish law contained no provision relating to covert filming, laws were in place which could, at least in theory, cover acts such as the one in this case. It pointed out that the public prosecutor, when indicting the applicant’s stepfather, and the District Court, when convicting him on 14 February 2006, considered that the impugned act could be covered by the provision on sexual molestation. Accordingly, although at the relevant time a similar outcome had been seen in Swedish case-law (see NJA 1996, p. 418), it was not until delivery of the Court of Appeal’s judgment that it became clear that the act could not legally constitute sexual molestation given the applicant’s stepfather’s lack of the requisite intent that she find out about the filming. The Chamber also reiterated that the Court of Appeal, in its judgment acquitting him of sexual molestation, had pointed out that his acts might, at least theoretically, have constituted the crime of attempted child pornography under the Penal Code. However, since no charge of that kind had been brought by the prosecution against the applicant’s stepfather, the Court of Appeal could not examine whether he could be held responsible for that crime.", "Lastly, the Chamber noted that civil-law remedies were available to the applicant and that she had chosen, represented by counsel, to join her claim for damages to the criminal proceedings. In those circumstances the Chamber concluded that there were no such significant flaws in Swedish legislation and practice as to amount to a breach of Sweden’s positive obligations under Article 8. B. The parties’ submissions 1. The applicant 59.", "The applicant maintained that the Swedish legal system did not provide any remedy to protect her against the concrete actions of her stepfather. 60. Firstly, with regard to the provision on sexual molestation, it was a requirement for a conviction that her stepfather should intend the applicant to know of the filming, the reason being that a person could not be molested unless he or she was aware of it. Accordingly, in the applicant’s view, her stepfather had been acquitted of sexual molestation on account of the construction of that provision. It could and should have been construed in such a way that it criminalised the filming, whether or not the applicant became aware of it at the time it was carried out.", "Accordingly, the applicant found that the construction of the provision on sexual molestation was open to criticism, notably since the act in issue was not covered by other criminal provisions. 61. Secondly, referring, inter alia, to the preparatory works to the provision on child pornography and to a legal opinion by Professor Madeleine Leijonhufvud, the applicant contended that her stepfather could not have been convicted of attempted child pornography either, because the basic requirement for that provision was lacking, namely that the picture in question be pornographic. In the present case images of a 14-year-old girl undressing before taking a shower, in an otherwise everyday situation, could not be regarded as pornographic within the meaning of Chapter 16, Article 10a, of the Penal Code concerning child pornography. In order for the film to be pornographic, her stepfather would have had to manipulate the film, inter alia, by making it appear as if the applicant was posing for him, or otherwise placing the film in a pornographic context.", "When the case was pending before the national courts it was not possible to speculate as to what her stepfather would have done with the film because it had been destroyed. In the applicant’s view, it was therefore completely understandable that the prosecutor had not formulated or amended the indictment to include a child-pornography crime, since such a claim would not have had any prospect of success. 62. For the reasons set out above, the applicant did not criticise the prosecution on procedural grounds for not complying with their obligation to indict crimes or their duty to assist her in pursuing claims for damages under Chapter 22 of the Code of Judicial Procedure. Rather, she found that the legislator and the domestic courts had failed in their respective positive obligations in the present case, the legislator on account of the flaw in the law and the courts on account of the failure to award the applicant damages.", "63. In respect of the legislator, the applicant observed that the mere filming or depiction of a minor in a situation which upset the essential aspects of the portrayed person’s personal integrity was not a criminal offence unless the image could objectively be regarded as pornographic according to common parlance and general values. For adults, no such protection existed at all. The applicant found that the failure for years to criminalise the act of covert or illicit filming amounted to a violation of Article 8. She pointed out that the weak protection in this area had been known and discussed since 1966.", "In her view it was inadequate to “quantify” this deficiency as a “significant” or “insufficiently significant” flaw in the law, for the purpose of an examination under Article 8. It sufficed to conclude that the protection for the right to respect for private life was – and still is – insufficient in the Swedish legal system and that the applicant was a victim of that deficiency. The applicant pointed out that the legislative proposal regarding covert filming had been initiated after the applicant’s case had been communicated and that the ongoing legislative measures seemed to have progressed quite far, especially after the Grand Chamber had accepted her request for referral of her case, which demonstrated the urgent need for such legislative protection. 64. Lastly, referring to the outcome of the criminal proceedings before the domestic courts, the applicant alleged that the Swedish system did not afford her a civil remedy to protect her against the act of her stepfather.", "She maintained that, despite his acquittal, the courts could have awarded her compensation on the basis of the Tort Liability Act or the Convention alone. She observed that the domestic courts were the masters of the classification of the law and that therefore it had not been necessary for the parties to invoke any legal provisions at all. Furthermore, since it was a matter of a private claim in consequence of an offence and Chapter 22, Article 7, of the Code of Judicial Procedure applied, the courts were under an obligation to determine the claim, even if it was found that the act was not punishable. Accordingly, in the applicant’s view her claim should have been determined by the domestic courts of their own motion, even though she had not invoked any specific legal provisions. 2.", "The Government 65. The Government contended that Sweden had fulfilled its positive obligations under Article 8 in the present case. The act in issue fell within the scope of the Swedish criminal legislation, notably the provisions concerning sexual molestation and the offence of child pornography, and there were no elements suggesting that the primary investigation and the prosecution had not been conducted effectively or in a manner otherwise incompatible with Swedish law or Article 8. The applicant’s stepfather had been prosecuted for the act but could not be convicted on account of the lack of requisite evidence. Nevertheless, deterrent sanctions existed in this case and were backed up by effective law-enforcement machinery.", "66. The Government initially pointed out that the Court had repeatedly stated that States enjoyed a wide margin of appreciation with regard to ensuring adequate protection under Article 8, even in cases of very severe offences such as the rape of a minor (see, for example, M.C. v. Bulgaria, no. 39272/98, § 154, ECHR 2003‑XII), and that only significant flaws in legislation and practice, and their application, would amount to a breach of a State’s positive obligations under the said provision. 67.", "In the present case, the applicant’s stepfather was indicted for sexual molestation under Chapter 6, Article 7 § 3, of the Penal Code and both the District Court and the Court of Appeal found that his act corresponded to the objective criteria that constituted this offence, but the latter found that it was not possible to prove the subjective element required for criminal liability under that provision, namely his intent that the applicant find out about the filming. The reason for his acquittal was therefore not the lack of a criminal-law provision covering the relevant act but the public prosecutor’s inability to prove that he had the necessary intent and hence that the crime had been committed. The Government pointed out in this context that the Convention did not require a guarantee that a prosecution should result in a conviction (see, for example, Öneryıldız v. Turkey [GC], no. 48939/99, §§ 96 and 147, ECHR 2004‑XII). 68.", "The Government observed that the provision on sexual molestation had been amended on 1 April 2005 and moved to Chapter 6, Article 10, of the Penal Code. The crucial factor in criminal liability under the new wording was that the act must have been committed “in a way that is likely to violate that person’s sexual integrity”. Referring to the statements by the 2008 Sexual Offences Commission on the amended provision, the Government pointed out that after 1 April 2005 the provision on sexual molestation also covered situations like the one in issue, in which a person covertly filmed or photographed another person in a sexually intrusive way. 69. The Court of Appeal held in its judgment of 16 October 2007 that the act could, at least in theory, constitute an attempted child-pornography offence.", "Both sexual molestation and child pornography fell within the domain of public prosecution, in which the principle of objectivity was applied, whereby no prosecution should be brought if the prosecutor deemed that the conditions for a conviction were lacking. In the present case, there was no documentation as to why the applicant’s stepfather was not also charged with attempted child pornography. It was therefore not possible for the Government to draw any conclusions concerning the specific grounds on which the prosecutor had decided to include only the offence of sexual molestation in the indictment. There were several possible reasons, though, why no prosecution for an attempted child pornography offence was brought. 70.", "One reason for this might have been that some of the necessary conditions for such an offence were not, in the view of the prosecutor, fulfilled. An example of this might have been the criterion that the image could be considered “pornographic” in common parlance. That meant that not all depictions of naked children or pictures in which a child’s genitals were visible were liable to punishment, even if such images could stimulate some individuals’ sex drive. What was in the picture and how the child was presented in the picture, inter alia, through the cutting of the picture, were of relevance to this assessment. 71.", "Secondly, the wording of the provision at the relevant time could have contributed to a lack of expectation on the prosecutor’s part of securing a conviction for this offence, namely, the requirement that the pubertal development of the child was not complete or, if it was complete, that it was apparent from the image and its circumstances that the child was under 18 years of age. 72. Thirdly, the fact that the applicant’s mother had destroyed the film immediately after the incident in September 2002, and the applicant and her mother did not report the incident to the police until September 2004, thus a long time after the incident had taken place, might have reduced the possibilities for the prosecution to prove that there had been a “pornographic” picture and that the applicant’s pubertal development at the time of the event, in September 2002, had not been complete, or that it was apparent from the circumstances that she had been under 18 years of age. 73. As to the applicant’s claim for damages, the Government pointed out that by virtue of Chapter 29, section 6, of the Code of Judicial Procedure, when such a claim was joined to a prosecution, the court’s finding as to criminal liability was binding for the adjudication of the private claim.", "Accordingly, it had not been possible for the Court of Appeal to award damages based on Chapter 2, Article 3, of the Tort Liability Act as no crime within the meaning of the Penal Code had been made out. In the Government’s view, however, in the criminal proceedings the applicant, represented by counsel, could have relied on other grounds for her claim for damages against her stepfather than the act cited in the indictment, notably that he had caused her personal injury by acting negligently, under Chapter 2, section 1, of the Tort Liability Act, which would have covered any physical and psychological injury. Under that provision, damages could have been awarded also on the basis that an injury had been caused by non-criminal acts carried out wilfully or negligently. 74. The Government pointed out that the courts could not award damages based on Article 8 of the Convention as a sole legal ground.", "The reason for this was that, although the Convention had been incorporated into Swedish law, and the Swedish Supreme Court had established the principle whereby an individual could be awarded damages from the State for violations of the Convention without the support of specific provisions in Swedish law, according to the Supreme Court’s case NJA 2007 (p. 747) this principle could not be applied to claims between individuals, as it would be difficult for an individual to foresee from the case-law of the Court when he or she could be liable to pay damages. 75. Lastly, the ongoing legislative work concerning covert and illicit filming had so far resulted in the Government’s approval on 1 March 2012 of a proposal entitled “Intrusive Photography”, which had been modified by a proposal of 20 December 2012, and had in substance been approved by the Law Council on 7 February 2013. It was proposed that the legislation come into force on 1 July 2013. In concrete terms, under the proposal, covertly filming a person without his or her permission in a shower or bathroom would be punishable as intrusive photography.", "Placing, or “rigging”, a camera with the aim of committing an offence of intrusive photography would also be punishable as preparation to commit such an offence. 76. In view of the foregoing, the Government contended that the absence at the relevant time of a specific provision in Swedish legislation concerning acts of covert or illicit filming could not be considered to entail a breach of the applicant’s right to respect for private life under Article 8 of the Convention. 3. Third-party observations 77.", "The Human Rights Centre of Ghent University considered that the “significant flaw” test applied by the Chamber amounted to a lowering of standards in the Court’s jurisprudence on positive obligations. In its view, the Grand Chamber should instead endorse the principles of “priority-to-rights” and “effectiveness”. The former required that Convention rights be principally accorded greater weight than public interests in the proportionality analysis and that the State bear the burden of proving the proportionality of its inactions. The latter required the existence in practice of a means capable of protecting a Convention right. In the context of the positive obligation to investigate, any deficiency in the investigation that undermined the ability to establish the circumstances of the case or the perpetrator’s liability fell foul of the standard of effectiveness.", "C. The Court’s assessment 1. General principles 78. The Court reiterates that the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities. However, this provision does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there are positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, inter alia, Airey v. Ireland, 9 October 1979, § 32, Series A no.", "32). 79. The choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation, whether the obligations on the State are positive or negative. There are different ways of ensuring respect for private life and the nature of the State’s obligation will depend on the particular aspect of private life that is in issue (see, for example, Von Hannover v. Germany (no. 2) [GC], nos.", "40660/08 and 60641/08, § 104, ECHR 2012; Odièvre v. France [GC], no. 42326/98, § 46, ECHR 2003‑III; Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007‑I; and Mosley v. the United Kingdom, no. 48009/08, § 109, 10 May 2011). Where a particularly important facet of an individual’s existence or identity is at stake, or where the activities at stake involve a most intimate aspect of private life, the margin allowed to the State is correspondingly narrowed (see Mosley, cited above, § 109).", "80. Regarding the protection of the physical and psychological integrity of an individual from other persons, the Court has previously held that the authorities’ positive obligations – in some cases under Articles 2 or 3 of the Convention and in other instances under Article 8 taken alone or in combination with Article 3 – may include a duty to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see, inter alia, Osman v. the United Kingdom, 28 October 1998, §§ 128-30, Reports of Judgments and Decisions 1998‑VIII, §§ 128-30; Bevacqua and S. v. Bulgaria, no. 71127/01, § 65, 12 June 2008; Sandra Janković v. Croatia, no. 38478/05, § 45, 5 March 2009; A v. Croatia, no. 55164/08, § 60, 14 October 2010; and Đorđević v. Croatia, no.", "41526/10, §§141-43, ECHR 2012). 81. In respect of children, who are particularly vulnerable, the measures applied by the State to protect them against acts of violence falling within the scope of Articles 3 and 8 should be effective and include reasonable steps to prevent ill-treatment of which the authorities had, or ought to have had, knowledge and effective deterrence against such serious breaches of personal integrity (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001‑V, and M.P. and Others v. Bulgaria, no.", "22457/08, § 108, 15 November 2011). Such measures must be aimed at ensuring respect for human dignity and protecting the best interests of the child (see C.A.S. and C.S. v. Romania, no. 26692/05, § 82, 20 March 2012, and Pretty v. the United Kingdom, no.", "2346/02, § 65, ECHR 2002‑III). 82. Regarding, more specifically, serious acts such as rape and sexual abuse of children, where fundamental values and essential aspects of private life are at stake, it falls upon the member States to ensure that efficient criminal-law provisions are in place (see, for example, X and Y v. the Netherlands, 26 March 1985, § 27, Series A no. 91, and M.C. v. Bulgaria, cited above, § 150).", "This obligation also stems from other international instruments, such as, inter alia, Articles 19 and 34 of the United Nations Convention on the Rights of the Child and Chapter VI, “Substantive criminal law”, of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (see paragraphs 51 and 52 above). 83. Concerning such serious acts, the State’s positive obligation under Articles 3 and 8 to safeguard the individual’s physical integrity may also extend to questions relating to the effectiveness of the criminal investigation (see, among other authorities, C.A.S. and C.S. v. Romania, cited above, § 72; M.P.", "and Others v. Bulgaria, cited above, §§ 109‑10; and M.C. v. Bulgaria, cited above, § 152) and to the possibility of obtaining reparation and redress (see, mutatis mutandis, C.A.S. and C.S. v. Romania, cited above, § 72), although there is no absolute right to obtain the prosecution or conviction of any particular person where there were no culpable failures in seeking to hold perpetrators of criminal offences accountable (see, for example, Brecknell v. the United Kingdom, no. 32457/04, § 64, 27 November 2007, and Szula v. the United Kingdom (dec.), no.", "18727/06, 4 January 2007). 84. As to acts which do not attain the seriousness of those in issue in X and Y v. the Netherlands (cited above) and M.C. v Bulgaria (cited above), the Court has examined under Article 8 the State’s obligation to protect, for example, a minor against malicious misrepresentation (see K.U. v. Finland, no.", "2872/02, §§ 45-49, ECHR 2008). The act in that case did not involve any physical violence, but could not be considered trivial as it entailed a potential threat to the minor’s physical and mental welfare, brought about by the impugned situation, namely, that he was made the target for approaches by paedophiles. The act constituted a criminal offence under domestic law and the Court considered that practical and effective protection of the applicant required the availability of a remedy enabling the actual offender to be identified and brought to justice. 85. More generally, however, in respect of less serious acts between individuals, which may violate psychological integrity, the obligation of the State under Article 8 to maintain and apply in practice an adequate legal framework affording protection does not always require that an efficient criminal-law provision covering the specific act be in place.", "The legal framework could also consist of civil-law remedies capable of affording sufficient protection (see, mutatis mutandis, X and Y v. the Netherlands, cited above, §§ 24 and 27, and K.U. v. Finland, cited above, § 47). The Court notes, for example, that in some previous cases concerning the protection of a person’s picture against abuse by others, the remedies available in the member States have been of a civil-law nature, possibly combined with procedural remedies such as the granting of an injunction (see, inter alia, Von Hannover, cited above; Reklos and Davourlis v. Greece, no. 1234/05, 15 January 2009; and Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002).", "2. Application of the above-mentioned principles to the present case 86. The Court observes that the Court of Appeal found that the applicant’s stepfather’s act constituted a violation of her personal integrity (see paragraph 23 above). The Court endorses this finding and considers, on the one hand, that the circumstances were aggravated by the fact that the applicant was a minor, that the incident took place in her home, where she was supposed to feel safe, and that the offender was her stepfather, a person whom she was entitled and expected to trust. This event affected the applicant in highly intimate aspects of her private life.", "On the other hand, it observes that the offence in question did not involve any physical violence, abuse or contact. While noting the domestic courts’ finding that her stepfather’s act was certainly reprehensible, in the Court’s view the act in question did not attain the seriousness of the grave acts in the case-law cited above which concerned rape and sexual abuse of children (see paragraph 81 above), considered not only under Article 8 of the Convention but also Article 3. 87. On the latter point, it is worth noting that the applicant, apart from complaining about the lack of a criminal remedy with reference to the construction of the molestation offence and the absence in Swedish legislation of a separate offence of covert or illicit filming, also complained that the Swedish system did not afford her a civil remedy to protect her against her stepfather’s act. More specifically, the applicant maintained that the domestic courts had not fulfilled their positive obligations on account of their failure to award her compensation either on the basis of the Tort Liability Act or the Convention.", "Accordingly, the applicant did not claim that recourse to criminal law was the only way that Sweden could fulfil its obligation under Article 8 to protect her against her stepfather’s act. 88. The applicant did not complain about the effectiveness of the criminal investigation carried out by the Swedish authorities. The Court has not found any evidence that the manner in which the investigating authorities and the public prosecution carried out their tasks was ineffective in safeguarding the applicant’s physical integrity, or that they failed to comply with their positive obligation to conduct an effective prosecution in order to ensure adequate protection of the applicant’s rights under Article 8 of the Convention. 89.", "In the light of these preliminary observations, the Court will proceed to examine whether, in the specific circumstances of the case before it, Sweden had an adequate legal framework providing the applicant with protection against the concrete actions of her stepfather and will, to this end, assess each of the remedies allegedly available to her. 90. This approach, it should be emphasised, differs from that followed by the Chamber, which affirmed that “only significant flaws in legislation and practice, and their application, would amount to a breach of the State’s positive obligations under Article 8”. This was with reference to the terms used in M.C. v. Bulgaria (cited above, § 167) in relation to the scope of the State’s positive obligations under Articles 3 and 8 of the Convention in affording protection against rape and sexual abuse.", "However, in that judgment the Court had applied the “significant flaw” test to “alleged shortcomings in the investigation”, pointing out that it “was not concerned with allegations of errors or isolated omissions” (ibid., § 168) and holding that the shortcomings were “significant” (see, for instance, M.C. v. Bulgaria, cited above, §§ 179 and 184; see also M. and C. v. Romania, no. 29032/04, §§ 112 et seq., 27 September 2011; compare and contrast Siliadin v. France, no. 73316/01, § 130, ECHR 2005‑VII, where such wording was used in relation to a review of legislation and practice under Article 4 of the Convention). 91.", "The Grand Chamber considers that such a significant-flaw test, while understandable in the context of investigations, has no meaningful role in an assessment as to whether the respondent State had in place an adequate legal framework in compliance with its positive obligations under Article 8 of the Convention since the issue before the Court concerns the question of whether the law afforded an acceptable level of protection to the applicant in the circumstances. (a) Child pornography 92. From the outset, the Court notes that a considerable part of the parties’ pleadings before it were devoted to the existence under Swedish law of the offence of attempted child pornography and its relevance to the case under consideration. This had its background in the fact that when acquitting the applicant’s stepfather of the charge of sexual molestation (under Chapter 6, Article 7 § 3, of the Penal Code) in its judgment of 16 October 2007, the Court of Appeal affirmed in an obiter dictum that, considering the applicant’s age, the act in question could, at least in theory, have constituted attempted child pornography under Chapter 16, Article 10a, of the Penal Code (see the provisions cited in paragraphs 31-32 above). However, since no charge of that kind had been brought against the applicant’s stepfather, it could not examine whether he could be held liable for such a crime (see paragraph 24 above).", "93. The Government were of the opinion that the type of act in issue in the applicant’s case could, under certain circumstances, fall not only within the provisions on sexual molestation but also within those on attempted child pornography. 94. However, whilst acknowledging that no information was available as to whether at the relevant time the public prosecutor had given any consideration to indicting the applicant’s stepfather with attempted child pornography, the Government enumerated a number of possible reasons why the prosecutor might have decided not to do so, notably a series of difficulties in adducing sufficient evidence to show that there had been a “pornographic” picture (see paragraphs 69 to 72 above). For instance, they pointed out that the applicant’s mother had destroyed the film immediately after the incident in September 2002 and that the applicant and her mother had not reported the incident to the police until September 2004, thus a long time after the incident had taken place.", "95. The Court has further taken note of the fact that, in the applicant’s view, expressed with reference, inter alia, to the preparatory works to the provision on child pornography and to a legal opinion (see paragraph 61 above), even if the film had existed her stepfather could not have been convicted of attempted child pornography. This was because the basic condition for the offence, namely that the picture in question be “pornographic”, was absent. Images of a 14-year-old girl undressing before taking a shower in an otherwise everyday situation could not be regarded as pornographic within the meaning of Chapter 16, Article 10a, of the Penal Code concerning child pornography. In order for the film to be pornographic, the applicant’s stepfather would have had to manipulate the film, for example by making it appear as if she had been posing for him, or otherwise place the film in a pornographic context.", "Had a charge been brought for the offence of attempted child pornography in the instant case, it would not have had any prospect of success. The applicant requested the Court to disregard the existence of this offence under the relevant national law in its examination of her complaint. 96. The Court observes that the term “pornographic picture” was not defined in the Penal Code and that the preparatory works referred to by the applicant stated that “a certain prudence was called for, so that the criminalised area would not become too wide or difficult to assess. It was not the intention to criminalise every exposure of naked children or all pictures in which a child’s genitals may be perceived, even if such pictures may stimulate some people’s sexual instincts.", "In order for the handling of a picture to be illegal, it was a condition that it be pornographic according to common parlance and general values” (see paragraph 33 above). 97. Against this background, the possibility that the offence of attempted child pornography might have afforded the applicant protection in respect of the specific act in issue seems rather theoretical. The Court is not convinced that her stepfather’s act was covered by the said offence and sees no need in the particular circumstances to speculate on what the implications would have been for the protection of the applicant’s right to respect for her private life under Article 8 of the Convention had a charge for such conduct also been brought. (b) Sexual molestation 98.", "Another issue is the question whether the offence of sexual molestation provided the applicant with the protection required by Article 8 of the Convention. Before 1 April 2005, the relevant part of the provision on sexual molestation under Chapter 6, Article 7 § 3, of the Penal Code read as follows: “[A sentence for sexual molestation shall be imposed] if a person exposes himself or herself in such a manner that the nature thereof gives offence or otherwise manifestly behaves indecently by word or deed towards the latter in a way that flagrantly violates a sense of propriety.” 99. The applicant’s stepfather was convicted accordingly by the District Court on 14 February 2006. The Court of Appeal acquitted him by a judgment of 16 October 2007 since it considered that, legally, the act could not constitute sexual molestation. The Court of Appeal found it established that his motive had been to film the applicant covertly for a sexual purpose.", "It was thus regarded as certain that he did not intend the applicant to find out about the filming. Nor, according to the court, was he indifferent to the risk that she would find out about it. The Court of Appeal then referred to a judgment (NJA 1996, p. 418) in which the Supreme Court had held, among other things, that covert filming was not a crime in itself as in Swedish law there was no general prohibition against filming an individual without his or her consent. Following that line of reasoning, and although finding that the act in question constituted a violation of personal integrity, notably in the light of the applicant’s age and relationship to her stepfather, the Court of Appeal found that he could not be held criminally responsible for the isolated act of filming the applicant without her knowledge. Even if she had indeed obtained knowledge of the filming afterwards, the court reiterated, this knowledge was not covered by her stepfather’s intent.", "The Supreme Court refused leave to appeal on 12 December 2007. 100. In order for the offence of sexual molestation under Chapter 6, Article 7 § 3, of the Penal Code to be made out, it was thus a requirement when carrying out the act that the offender intended that the victim find out about the sexual molestation or that the offender was indifferent to the risk that the victim would find out about it. In other words, the victim could not be considered sexually molested unless he or she was aware of the molestation. It will be recalled that the applicant’s stepfather was indeed convicted of sexual molestation under the said provision as regards the two counts of indecent behaviour against the applicant’s 16-year-old cousin, namely, for having caressed her thigh and for having expressed his desire to have sex with her (see paragraph 14 above).", "101. This interpretation of the provision on sexual molestation by the Court of Appeal was confirmed in another case by the Supreme Court in a judgment of 23 October 2008 (NJA 2008, p. 946) (see paragraph 40 above). The Supreme Court acquitted a person of molestation and reiterated at the same time that Swedish law contained no general prohibition against covert filming. It further noted that although the need for a strengthened legal framework in this regard had been acknowledged in Swedish legislative work as early as the 1960s, it had so far not led to any concrete results. It found it highly questionable whether the fact that acts of filming an individual in situations where such filming seriously violated the personal integrity of the person concerned were left wholly unpunished under Swedish law was compatible with the requirements of Article 8 of the Convention.", "102. The applicant maintained that the construction of the provision on sexual molestation as worded before 1 April 2005 was open to criticism. In so far as this criticism was not only aimed at the legislators but also aimed at the interpretation by the Court of Appeal in its judgment of 16 October 2007, and subsequently confirmed by the Supreme Court in another case, the Court reiterates that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 49, 20 October 2011).", "The Court agrees with the applicant, however, that it was not on account of a lack of requisite evidence, as maintained by the Government, that her stepfather was acquitted of sexual molestation, but rather, as pointed out by the Court of Appeal, because, legally at the relevant time, the act could not constitute sexual molestation. 103. The provision on sexual molestation was amended on 1 April 2005, thus after the act in the present case had been committed in September 2002, and before the acquittal of the applicant’s stepfather in the criminal proceedings. Thereafter, the provision on sexual molestation also included acts carried out “in a way that [was] likely to violate that person’s sexual integrity”. Subsequently, the 2008 Sexual Offences Commission stated that in their view the amended provision included actions directed at persons who were unconscious or asleep and that it could also be used in situations where a person had covertly filmed or photographed another person in a sexually intrusive way.", "104. The Court observes that the Government have not pointed to any domestic case-law in which the amended provision on sexual molestation was applied to covert filming carried out after 1 April 2005. In any event, it suffices to conclude that the provision on sexual molestation as worded before 1 April 2005, and interpreted in the present case by the Court of Appeal in their judgment of 16 October 2007, which became final when the Supreme Court refused leave to appeal, could not legally cover the act in issue and thus did not protect the applicant against the lack of respect for her private life under Article 8 of the Convention. (c) Recent legislation on covert filming 105. Nor does it appear that the above-mentioned gaps in the substantive protection of the applicant’s Article 8 rights were in any way remedied by any other existing national provisions at the time.", "In this connection, the Court cannot but note that the absence of such provisions has long been a matter of concern in Sweden and that many other member States have legislation in place covering the isolated act of covert or non-consensual filming/photographing of an individual (child or adult) for other than sexual purposes, either under criminal or civil law (see paragraph 55 above). According to the Supreme Court judgment of 23 October 2008 (NJA 2008, p. 946 – see paragraph 40 above) the need for a strengthened legal framework against covert filming had already been acknowledged in Swedish legislative work in the 1960s, but had not yet led to any concrete results. The Supreme Court found it highly questionable whether the fact that acts of filming of an individual in situations where such filming deeply violated the personal integrity of the person concerned were left wholly unpunished under Swedish law was compatible with the requirements of Article 8 of the Convention (see also paragraph 101 above). 106. The Court notes that the most recent proposal by the Government, of 20 December 2012, entitled “Intrusive Photography”, has been adopted by Parliament.", "In concrete terms, under the new provisions, which came into force on 1 July 2013, covertly filming a person without his or her permission in a shower or bathroom would be punishable as intrusive photography. Placing, or “rigging”, a camera with the aim of committing an intrusive photography offence would also be punishable as preparation to commit such an offence (see paragraph 43 above). 107. The Court further observes that the legislation is designed to cover an act such as the one in issue in the present case. It also notes that the principles laid down in the Freedom of the Press Act and the Fundamental Law on Freedom of Expression, which are part of the Swedish Constitution, notably as regards the protection of procurers of information to the media, were carefully considered before the said bill could be presented to Parliament.", "However, as was undisputed, the applicant could not rely on the new legislation regarding an incident which took place in 2002 and could not avail herself of any such protection of her right to respect for her private life. (d) Civil-law remedies 108. In this case recourse to the criminal law was, in the Court’s view, not necessarily the only way that the respondent State could fulfil its obligations under Article 8 of the Convention. Accordingly, the question arises whether the applicant had a civil remedy available to her. 109.", "In this connection, it is to be observed that the applicant joined her civil claim for damages against her stepfather to the criminal proceedings against him. Thus, on 20 January 2006, represented by counsel, the applicant submitted a claim for damages of SEK 25,000, with SEK 15,000 of this sum as compensation for violation of her personal integrity and SEK 10,000 for pain and suffering. As the basis for her claim the applicant referred to “the criminal act for which her stepfather was being prosecuted”. 110. According to the Government, the claim was founded partly on section 1 and partly on section 3 of Chapter 2 of the Tort Liability Act (see paragraph 37 above).", "111. In its judgment of 14 February 2006 convicting the applicant’s stepfather, the District Court ordered him to pay the applicant damages in the amount of SEK 20,000. However, when acquitting him in its judgment of 16 October 2007, because the act could not legally constitute sexual molestation, the Court of Appeal also dismissed the applicant’s claim for damages. The Government pointed out in this connection that by virtue of Chapter 29, section 6, of the Code of Judicial Procedure, when a civil claim is joined to a prosecution, the court’s finding in the matter of criminal liability is binding for the adjudication of the private claim. Accordingly, it was not possible for the Court of Appeal to award damages based on Chapter 2, section 3, of the Tort Liability Act as no crime within the meaning of the Penal Code had been made out.", "This conclusion is consistent with the statement of the Supreme Court in the subsequent judgment, NJA 2008, p. 946 (see paragraph 40 above) of 23 October 2008, that Swedish law contained no general prohibition against covert filming and that in cases where such filming did not constitute a crime, damages could not be awarded. 112. Nevertheless, the Government contended that in the criminal proceedings the applicant could have relied on other grounds in support of the claim for damages directed against her stepfather, namely, that he had caused her personal injury by acting negligently under Chapter 2, section 1, of the Tort Liability Act, which could have covered any physical and psychological injury (see paragraph 73 above). 113. In this regard, it should be borne in mind, however, that the applicant’s stepfather had at no time during the investigation or the criminal proceedings alleged that he had left the camera in recording mode in the laundry basket in the bathroom by accident.", "On the contrary, he acknowledged that it had been a wilful but impulsive act. Therefore, in the Court’s view, the applicant and her counsel could not be expected to have invoked negligence just for the sake of ensuring that her claim be dealt with in the event that the act was not deemed to be covered by the offence of sexual molestation. 114. Accordingly, the Court is not convinced that in the specific situation at hand, where the act in issue was not legally covered by the provision on sexual molestation and where covert filming in general did not constitute a crime, the applicant had a civil remedy available to her. (e) Compensation on the basis of the Convention 115.", "Lastly, the Court has considered the applicant’s contention that the domestic courts in the criminal proceedings could have awarded her compensation on the basis of the Convention alone but had failed do so of their own motion. 116. As pointed out by the Government, although the Supreme Court had established a principle whereby an individual could be awarded damages from the State for violations of the Convention without the support of specific provisions in Swedish law, this could not apply to claims between individuals as it would be difficult for an individual to foresee from the Court’s case-law when he or she could be liable to pay damages (NJA 2007, p. 747, see paragraph 47 above). Having regard to the Swedish domestic practice on compensation for violations of the Convention (see paragraphs 45 to 50 above), including the aforementioned Supreme Court ruling, the Court is not persuaded that this alleged avenue of redress really existed or that it could have made up for the absence of a civil remedy in the specific situation at hand as found above. (f) Conclusion 117.", "Having regard to the all the above-mentioned considerations, the Court is not satisfied that the relevant Swedish law, as it stood in September 2002 when the specific act of the applicant’s stepfather covertly attempting to film the applicant naked in their bathroom for a sexual purpose occurred, ensured protection of her right to respect for her private life in a manner that, notwithstanding the respondent State’s margin of appreciation, complied with its positive obligations under Article 8 of the Convention. The act in question violated the applicant’s integrity; it was aggravated by the fact that she was a minor, that the incident took place in her home, where she was supposed to feel safe, and that the offender was her stepfather, a person whom she was entitled and expected to trust. However, as the Court has found above, neither a criminal remedy nor a civil remedy existed under Swedish law that could enable the applicant to obtain effective protection against the said violation of her personal integrity in the concrete circumstances of her case. Accordingly, there has been a violation of Article 8 of the Convention. II.", "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 applicant claimed 20,000 euros (EUR) in compensation for non-pecuniary damage. 120.", "The Government found that amount excessive. In their view, an amount not exceeding a total of EUR 3,000 would be sufficient to compensate the applicant. 121. The Court considers that the applicant must have suffered non-pecuniary damage that is not sufficiently compensated for by the mere finding of a violation of Article 8. Ruling on an equitable basis, it awards the applicant EUR 10,000 in respect of non-pecuniary damage.", "B. Costs and expenses 122. The applicant claimed 516,410 Swedish kronor (SEK) (corresponding to approximately EUR 60,500) including value-added tax (VAT) for costs and expenses, which comprised: (i) SEK 146,250 for lawyers’ fees incurred in the proceedings before the Chamber, equal to 65 hours at an hourly rate of SEK 1,800 (exclusive of VAT); (ii) SEK 353,750 for lawyers’ fees incurred in the proceedings before the Grand Chamber, equal to 141.50 hours at an hourly rate of SEK 2,000 (exclusive of VAT); (iii) SEK 11,021 for a legal opinion obtained; (iv) SEK 5,389 for travel costs and an allowance for expenses incurred by her three counsel in attending the hearing before the Grand Chamber. In connection with the latter item, the applicant also claimed compensation for expenses amounting to EUR 3,260.60 for flight tickets and accommodation costs incurred by her and her three counsel in attending the hearing before the Grand Chamber. 123.", "The Government found the lawyers’ fees excessive both as to the hours and the hourly rate. They considered a total amount of 80 hours reasonable as well as an hourly rate corresponding to the Swedish hourly legal aid fee, which for 2013 was SEK 1,242 (exclusive of VAT). Regarding the other costs and expenses, the Government found that the cost of the legal opinion had been unnecessarily incurred. They did not object to the remainder of the claims as such. 124.", "According to the Court’s established case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. 125. In respect of the lawyers’ fees, be this before the Chamber or the Grand Chamber, the Court can accept an hourly rate as claimed by the applicant. 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 25,000 including VAT (see, for example, X and Others v. Austria [GC], no. 19010/07, § 163, ECHR 2013; Nada v. Switzerland [GC], no.", "10593/08, § 245, ECHR 2012; and Al-Jedda v. the United Kingdom [GC], no. 27021/08, § 117, ECHR 2011). 126. Turning to the other costs and expenses before the Grand Chamber, it appears that the amount included plane tickets for five persons. The Court can only award travel expenses for the applicant and her three counsel.", "It therefore awards the applicant EUR 4,700 under this head. C. Default interest 127. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Holds, by sixteen votes to one, that there has been a violation of Article 8 of the Convention; 2.", "Holds, by sixteen votes to one, (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 29,700 (twenty-nine thousand seven hundred euros) under the head of costs and expenses, plus any tax that may be chargeable to the applicant in this respect; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 3. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 12 November 2013. Erik FriberghJosep CasadevallRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Judge Pinto de Albuquerque; (b) dissenting opinion of Judge Kalaydjieva. J.C.E.F.", "CONCURRING OPINION OF JUDGE PINTO DE ALBUQUERQUE The Söderman case raises three fundamental legal questions, namely, the international obligation to criminalise non-consensual filming or photography; the limits of an evolutive interpretation of criminal law in accordance with the respondent State’s international obligations; and the legal force of the European Convention on Human Rights (“the Convention”) as a direct basis for awarding compensation for non-pecuniary damage. I concur with the majority in finding a violation of Article 8, though for different reasons. In addition, I would have addressed separately the complaint under Article 13 taken in conjunction with Article 8 and found a violation thereof. The international obligation to criminalise non-consensual filming or photography The Convention guarantees the right to protection of one’s image. Filming or photographing a person without her or his consent infringes core personality rights, since 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[1]. The ambit of protection of this right is defined broadly, to include all situations and events in which a person’s image is captured without his or her knowledge and consent and regardless of the private nature of the person’s environment. It also covers unauthorised use by the offender, or the offender’s permission of use by a third person, of images that have been legally obtained[2]. The protection of a person’s image against abuse by others is an obligation of States Parties, which must prevent violations from occurring and provide for remedies for violations that have already occurred[3]. States do not have a discretion when providing for these remedies.", "Where a particularly important facet of the individual’s personality is at stake, the State’s margin of appreciation is narrow[4]. The obligation to criminalise child pornography derives from Articles 16, 19 and 34 (c) of the United Nations Convention on the Rights of the Child[5] and Article 3 of the Optional Protocol to the United Nations Convention on the Rights of the Child, on the sale of children, child prostitution and child pornography[6]. Articles 6 and 7 § 1 of the International Labour Organisation Worst Forms of Child Labour Convention (no. 182) oblige States Parties to take steps to eliminate, with the necessary penal sanctions, the sale of children, child prostitution and child pornography, including the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances[7]. The criminalisation of child pornography is also obligatory under Article 20 of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse[8] and Article 9 of the Council of Europe Convention on Cybercrime[9].", "The Council of the European Union adopted, in 2003, the Framework Decision on combating the sexual exploitation of children and child pornography (2004/68/JHA) according to which member States are obliged to criminalise the production, distribution, dissemination, transmission, supplying or making available, acquisition and possession of child pornography and provide for a minimum level of maximum penalties incurred for these offences[10]. The European Parliament and the Council approved Directive 2011/93/EU of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, which replaced the Council Framework Decision of 2004, but maintained the criminalisation obligation[11]. In Europe, forty-one countries have criminalised child pornography, and in the United States both the federal law and the law of all fifty States make provision for the same offence[12]. In view of this broad consensus and constant practice, the criminalisation of child pornography, namely, any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes, is now part of international customary law, binding on all States. Obligations to criminalise are not new under the Convention.", "The European Court of Human Rights (“the Court”) has already considered that rape[13], forced labour[14], wilful attack on the physical integrity of a person[15], human trafficking[16] and the disclosure of certain confidential items of information[17] must be criminalised[18], but negligent violations of the right to life and physical integrity must not[19]. With regard to children, the Court has established the principle that any wilful offence against the physical and moral welfare of children should be criminalised[20] and punished with a deterrent penalty[21]. Child pornography is certainly among these, having regard to its serious ethical censurability and to its reprehensibility under international customary and treaty law. Yet in view of the threshold of explicitness of the acts depicted and the required sexual purpose of the perpetrator, this criminal offence is subject to evidentiary problems. Thus, in order to provide full and effective protection of children, covert filming of children, with or without a sexual purpose on the part of the perpetrator, and in or outside a pornographic setting, should be criminalised.", "Such criminalisation is in line with the Convention guarantee of the child’s right to protection of his or her image and the prevailing international prohibition of any kind of abuse or violation of the various facets of the child’s personality, which includes his or her image. Furthermore, as a matter of principle, adults deserve the same legal protection as children. There is no plausible reason to criminalise the abuse of a child’s image and not that of an adult’s, or the other way round. It cannot reasonably be argued that the violation of an adult’s image has less ethical weight per se than that of a child. All are human beings, with the same personality right to protection of their own image.", "In fact, in some cases it is extremely difficult to distinguish an adult from a minor, and uncertainty about the victim’s age should not prevent criminal prosecution. Hence, guaranteeing the Convention right to protection of one’s image requires the criminalisation of covert filming and photographing of children and adults[22]. The legal framework in the respondent State At the relevant time, there were two criminal provisions that could in theory be applied to the facts: sexual molestation (Chapter 6, Article 7, of the Penal Code) and child pornography (Chapter 16, Article 10a § 1, of the same Code)[23]. Sexual molestation presupposes a specific action on the part of the offender, namely: (a) touching a child under 15 years of age; (b) inducing a child to undertake or participate in an act with sexual implications; (c) inducing a child of 15 years of age or more, but younger than 18, by coercion, seduction or other improper influence, to undertake or participate in a pornographic act; (d) exposing oneself; (e) behaving indecently. In any case the offence requires both the victim’s knowledge of the offender’s conduct at the moment it is carried out and the offender’s intent that the victim find out about the conduct.", "That means that the core of the offence lies in the improper conduct of the offender with regard to the victim, with the latter’s knowledge. Child pornography also presupposes a specific action by the offender, such as portraying a child in a pornographic picture; disseminating, transferring, granting use, exhibiting, acquiring or offering such a picture; facilitating dealings with regard to such a picture; or possessing such a picture. The offence requires that the pubertal development of the child be incomplete or that it be apparent from the image or its attendant circumstances that the child is under 18 years of age. This crime is punishable both when brought to its completion and when attempted (Chapter 16, Article 7, and Chapter 23, Article 1). Sweden does not have a detailed legal definition of child pornography, but in the governmental bill containing this provision it was stated that “[i]t was not the intention to criminalise every exposure of naked children or all pictures in which a child’s genitals may be perceived, even if such pictures may stimulate some people’s sexual instincts.", "In order for the handling of a picture to be illegal, it is a condition that it be pornographic according to common parlance and general values”[24]. It is obvious that such a restrictive formulation of the criminal provision regarding child pornography does not satisfy the respondent State’s international obligations, in so far as these require the criminalisation of any representation of the sexual parts of a child for primarily sexual purposes. Lastly, Swedish criminal law did not have a criminal offence of covert photography or filming at the relevant time. Application by analogy of the criminal offence of sexual molestation to the detriment of the defendant was evidently ruled out. After the amendment to the Penal Code of April 2005, the Sexual Offences Commission considered that the new Chapter 6, Article 10 § 2 of the Swedish Penal Code included actions directed at persons unconscious or asleep, and therefore could also encompass covert filming of a person in a sexually intrusive way[25].", "Yet this very questionable interpretation did not prevail in judicial practice. The Government did not provide the Court with case-law confirming that interpretation. Furthermore, the Government themselves acknowledged that further amendments to the Penal Code were needed to criminalise the conduct of the defendant. That is why the recent bill on intrusive photography and filming was approved. In fact, this legislative initiative cannot but be read as a confession by the Government of the existence of a legal flaw in the domestic criminal-law system[26].", "It remains to be seen whether that shortcoming is relevant in terms of the protection required by the Convention rights. The application of criminal law by the national authorities The public prosecutor chose to charge the defendant with sexual molestation. This proved to be the wrong legal avenue, since there was obviously no conduct falling within the offence of sexual molestation: no touching, no inducing, no coercion, no seduction, no improper influence, no exposure or indecent behaviour of the defendant. Furthermore, the relevant criminal intent that the applicant should find out about the filming could not be established. The Government maintained that this was a problem of evidence, but the applicant replied that it was rather a problem of erroneous interpretation of penal law by the public prosecutor.", "The applicant is right, since the requisite subjective element of the offence of sexual molestation (namely, the perpetrator’s intention that the victim be aware of the illegal conduct while it is taking place) is incompatible per se with any covert action of filming or photographing. The public prosecutor did not charge the defendant with child pornography. No reasons were given for that approach. The Government assumed that it was because there was no film, and no physical evidence of the completed crime. As the applicant argued, it is clear that the non-existence of the film did not preclude charges of attempted child pornography, especially in a case where the defendant confessed to the facts, and there were two witnesses: the victim, who discovered the film, and her mother, who destroyed it.", "The confession was thus supported by sufficient additional evidence. Hence, there was no evidentiary problem with regard to the offence of child pornography either. Whilst the criminal offence of sexual molestation could not be applied to the facts of the case, the offence of attempted child pornography could have guaranteed the applicant’s Convention right to protection of her image, had the Court of Appeal had regard to Sweden’s international obligations. Although it admitted that the offence of attempted child pornography was in theory applicable to the facts, the Court of Appeal was not willing to give an evolutive interpretation of the concept of child pornography, and preferred to follow the historical interpretation of the corresponding incriminating provision, based on the preparatory works of the Penal Code referred to above. That construction of the child-pornography offence adopted by the Court of Appeal, which was in line with the practice of the Supreme Court and the Government’s own view, could not provide any redress to the applicant.", "Indeed, the Court of Appeal had two alternatives for the purposes of guaranteeing the victim’s right to protection of her image: either to adopt an evolutive interpretation of the concept of child pornography, correct the erroneous legal characterisation given to the facts by the first-instance court and convict the defendant of the crime of attempted child pornography; or to stick to the historical interpretation of the concept of child pornography and acquit the defendant, but at least award compensation for non-pecuniary damage, as claimed by the applicant on the basis of the violation of her personal integrity by her stepfather’s conduct. The change of legal characterisation of the offence The first alternative could have been pursued under Chapter 30, Article 3, of the Code of Judicial Procedure: when examining a complaint, the domestic courts are not bound by the legal characterisation of the offence or the applicable provisions of law. In Sweden, as in many European countries, the criminal court is bound by the facts of the indictment, but not by its legal characterisation of the offence[27]. The fact is that the domestic courts did not use the power they had under Chapter 30, Article 3, of the Code of Judicial Procedure. No reasons were given by the domestic courts for not using that alternative, although they could have used it of their own motion.", "In spite of the restrictive intention of the Swedish legislature when it introduced the criminal offence of child pornography, as reflected in the relevant preparatory works, the domestic courts could, and should, have adopted an evolutive interpretation of the concept of child pornography, in order to include any representation of the sexual parts of a child for primarily sexual purposes. An evolutive interpretation of penal law is acceptable provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen. This interpretation would at the same time be in accordance with the international obligations of Sweden and the general principles of interpretation of penal law[28]. The facts imputed to the applicant’s stepfather would be sufficient to make out this offence, in its ancillary and preparatory form of attempted child pornography: the images of a 14-year-old girl undressing before taking a shower in an otherwise everyday situation certainly do fall within the concept of “any representation of the sexual parts of a child” and the applicant’s stepfather completed all the necessary steps to obtain images of the sexual parts of a child for primarily sexual purposes, which he ultimately did not obtain on account of the fortuitous circumstance that the girl discovered the hidden camera[29]. No additional reference to pornography in the indictment was necessary, since it already included all the relevant elements of the offence of attempted child pornography, interpreted in the light of Sweden’s above-mentioned international obligations.", "It was up to the domestic courts to change the legal characterisation of the offence and adopt an evolutive interpretation of the concept of child pornography compatible with Sweden’s international obligations[30]. The domestic courts took neither of those steps, thus leaving unpunished highly reprehensible conduct that should have been punished in the light of the international obligations of the respondent State. To the legislature’s long-standing inertia in clarifying the legal situation the courts added their unwillingness to apply the criminal law according to the canon of evolutive interpretation. The compensation for non-pecuniary damage based directly on the Convention Assuming, for the sake of argument, that the first alternative was not an available legal avenue in the instant case, in accordance with the historical interpretation of the criminal provision of child pornography, the alternative to guaranteeing the victim’s right to protection of her image could have been to award the applicant reparation for non-pecuniary damage. Indeed, the applicant referred to the facts set out in the indictment that had caused her pain and suffering and even adduced independent evidence of the nature and extent of the injury that she had suffered.", "The legal basis for that award was Chapter 22, Article 7, of the Swedish Code of Judicial Procedure[31]. This provision was not used by the Court of Appeal, although it could have used it of its own motion. The Court of Appeal dismissed the claim for compensation because no crime had been proven, but did not determine the civil action, as it could have done. Even assuming that no crime was made out and therefore damages based on Chapter 2, section 3, of the Tort Liability Act could not be awarded, the Court of Appeal could still have invoked Chapter 2, section 1, of the same Act, which covered both wilful and negligent physical and psychological injury, for the purpose of awarding damages to the applicant. By not doing so, for no plausible reason, it left the applicant’s proven personal injury without compensation[32].", "Last but not least, the Court of Appeal refrained from awarding compensation based on the Convention. This approach is in line with the case-law of the Swedish Supreme Court according to which in disputes between individuals there is no civil liability based on Convention violations when these are not simultaneously violations of the domestic law. There are two reasons for this: firstly, the Convention does not impose duties on individuals and, secondly, individuals cannot foresee the grounds for compensation when there have been only breaches of the Convention[33]. This line of argument is at odds with the Convention’s direct effect in the legal order of the respondent State, the principle of subsidiarity and the principle of interpretation of human rights treaties in a way which is most protective of the rights and freedoms which they foresee[34]. Since the Convention is applied directly in the domestic State, and violations of it must primarily be resolved by the national authorities, there should be provision for compensation for victims of Convention breaches, even when domestic law has not been violated.", "The argument of unforeseeability does not stand, in so far as the Convention is part of national law and therefore the grounds for compensation deriving from the Court’s case-law are predictable. The Court’s interpretation of the Convention regarding grounds for compensation for breaches of Convention rights is as binding for national courts as the rest of the Court’s case-law, and should therefore be implemented by the national courts whenever national law fails to provide such compensation. In addition, if damages awarded for a State’s violations of the Convention are predictable, even where there are no specific provisions on civil liability in national law, as the Swedish Supreme Court correctly admits, the same applies to awards for violations perpetrated by individuals who are not State agents, such as the one in this case[35]. In such a case, the State would be neglecting its obligations to protect Convention rights if it did not ensure a means of civil redress in circumstances where no criminal sanctions were applicable despite the ethical censurability and the reprehensibility under international customary and treaty law of the conduct. To put it positively, whenever criminal remedies are lacking for such conduct committed by individuals who are not State agents, the Contracting Parties to the Convention should nonetheless provide for civil remedies.", "An obligation is placed upon the State to provide for an effective civil remedy to deal with the substance of an “arguable complaint” of a breach of the Convention, in accordance with Article 13 in conjunction with Article 8, not upon the individuals themselves. Hence, the domestic courts failed to repair the applicant’s injury, in spite of the available civil-law remedy based solely on the Convention. The application of the European standard to the present case The applicant had a right to be protected and the State had an obligation to protect that right. The parties accept both points. The dispute between the parties revolves around one point: the existence of effective remedies for this violation in the legal order of the respondent State.", "Sweden had a child-pornography provision, but that offence was ignored by the courts, which did not apply it in the instant case. Moreover, the offence was insufficient to punish the applicant’s stepfather’s conduct on account of its strict judicial construction which read into the provision an implied requirement of explicit sexual behaviour of the victim. The 2005 law reforming the criminal offence of sexual molestation, which does not include covert filming and photography, could not in any case be applied to the facts, owing to the basic principle of prohibition of retroactive application of penal law to the detriment of the defendant. Lastly, the civil remedy was not used, owing to the Court of Appeal’s unjustified refusal to apply the Tort Liability Act and the Supreme Court’s strict interpretation of the conditions of civil liability based on breaches of the Convention. Thus, no legal avenue was afforded, in practical terms, for guaranteeing the applicant’s right to protection of her image[36].", "Conclusion In view of the Convention obligation to criminalise non-consensual filming and photography regardless of any sexual purpose on the part of the perpetrator and to provide compensation based directly on breaches of Article 8, the national legislature’s failure to satisfy the first obligation, and the domestic courts’ unwillingness to satisfy the second, I find that there has been a violation of Article 8 taken alone and in conjunction with Article 13. DISSENTING OPINION OF JUDGE KALAYDJIEVA I fully agree with the majority that the applicant’s personal integrity was violated by the acts committed by her stepfather and that her situation was aggravated by the fact that she was a minor, that the covert filming of her undressing took place in her home, where she was supposed to feel safe, and that the offender was her stepfather, a person whom she was entitled and expected to trust. The Grand Chamber undertook (see paragraph 89 of the judgment) to examine whether Sweden had an adequate legal framework providing the applicant with an acceptable level of protection (see paragraph 91) and to assess, to this end, each of the remedies available to her (see paragraph 89). To my regret, I fail to understand the logic followed by the majority in finding and providing a legal response to these questions and for this reason I also find myself unable to agree with the conclusions reached. The applicant did not claim that recourse to criminal law was the only way that Sweden could fulfil its obligation under Article 8 to protect her against her stepfather’s act (see paragraph 87) and did not criticise the prosecution for not complying with an obligation to indict crimes, but rather found that the legislator had failed in its positive obligation to criminalise the act of covert filming of a minor in a situation which upset the essential aspects of personal integrity.", "She pointed out that the “weak protection in this area had been known and discussed since 1966”. This, in her view, “sufficed to conclude that the protection for the right to respect for private life was – and still is – insufficient” (see paragraphs 62-63). In response to this complaint, while noting that the impugned acts “did not attain the seriousness of the grave acts ... considered not only under Article 8 but also Article 3 of the Convention”, the majority failed to state clearly whether (similarly to the cases mentioned in paragraphs 83 and 84) positive obligations arose in the present case – as maintained by the applicant – and if so which ones, or whether a criminal-law remedy was nevertheless necessary to achieve the appropriate and acceptable level of protection of the applicant’s rights under Article 8, or – alternatively – that the decision whether or not to criminalise and prosecute such acts remained within the Swedish authorities’ margin of appreciation. In this connection it is difficult to understand the source of the majority’s dissatisfaction with the fact that “notwithstanding the ... margin of appreciation”, Swedish law did not provide a criminal remedy for the effective protection of the applicant. The majority also failed to specify (compare and contrast Calvelli and Ciglio v. Italy [GC], no.", "32967/96, ECHR 2002‑I) whether a civil-law remedy – if available – might in principle have sufficed for the appropriate protection of the applicant and instead addressed the fact that the criminal courts did not award any compensation for damage resulting from a crime as the impugned acts did not constitute a crime. In this regard the applicant insisted that – being the masters of the classification of the law – the criminal courts should have reclassified and determined her claim on other grounds. However, she never complained about the lack of such a remedy in the civil courts (see paragraph 64). I remain unconvinced that the fact that the criminal courts dismissed the applicant’s civil claim for damages resulting from a crime suffices to conclude that no other civil remedy existed under Swedish law to redress the substance of her complaints (see paragraph 117). As a result, noting first that “[t]he choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation” (see paragraph 79), the majority arrived at the conclusion that the proceedings before the criminal courts offered neither criminal nor civil redress – as the applicant had initially complained.", "This conclusion only reflects the facts of the case, and does not necessarily provide a legal response to the Grand Chamber’s undertaking to establish whether Swedish law, as it stood in September 2002, ensured appropriate protection of the applicant’s “right to respect for her private life”. Indeed, it seems to me that in the absence of criteria defining the required “acceptable level of protection” in specific terms, a comparison between the failed and the undefined remedies will inevitably lead to dissatisfaction “notwithstanding the respondent State’s margin of appreciation” in this area (see paragraph 117). [1]. See Von Hannover v. Germany (no. 2) [GC], nos.", "40660/08 and 60641/08, § 96, ECHR 2012. With regard to minors, the exercise of the right to protection of their image is overseen by their parents (see Reklos and Davourlis v. Greece, no. 1234/05, § 41, 15 January 2009). [2]. See Reklos and Davourlis, cited above, § 40.", "[3]. See, on images of public figures, Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002; Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, § 37, 26 February 2002; and Von Hannover, cited above, § 57; and, on images of non-public persons, Sciacca v. Italy, no. 50774/99, § 28, ECHR 2005-I, and Reklos and Davourlis, cited above, § 35.", "[4]. See Dudgeon v. the United Kingdom, 22 October 1981, § 52, Series A no. 45; Norris v. Ireland, 26 October 1988, § 46, Series A no. 142; A.D.T. v. the United Kingdom, no.", "35765/97, § 38, ECHR 2000-IX; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 90, ECHR 2002-VI; and Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007-I. [5]. The Convention has 193 States Parties and the respondent State ratified it in 1990.", "For the purpose of this opinion, I will consider any person under the age of 18 to be a child, according to the standard set by the United Nations Convention. This does not prevent States Parties to the European Convention on Human Rights from extending the legal protection of children beyond that age. [6]. The Protocol was adopted in 2000 and came into force in 2002. As of October 2013, 166 States are party to the Protocol, including Sweden, which ratified it on 19 January 2007, that is, before the Svea Court of Appeal’s judgment of 16 October 2007.", "Article 3 (c) of the Protocol requires States Parties to criminalise producing, distributing, disseminating, importing, exporting, offering, selling or possessing for the above purposes child pornography, namely, “any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes”. The Committee on the Rights of the Child has nevertheless encouraged countries to criminalise mere possession (for example, United Nations Committee on the Rights of the Child, Concluding Observations for Costa Rica of 2 February 2007, §§ 14-15, and for Chile of 1 February 2008, §§ 23-24). [7]. The Convention came into force in 2000, and has 174 States Parties. Sweden ratified it in 2001.", "[8]. CETS no. 201. The Convention was approved in 2007, entered into force in 2010, has 25 States Parties and was ratified by Sweden in 2013. It contains obligations to criminalise conduct for which criminalisation is not expressly required by the United Nations Optional Protocol on the sale of children, child prostitution and child pornography, such as the possession of child pornography, that is, any visual depiction of a child engaged in real or simulated sexually explicit conduct, or any representation of a child’s sexual organs for primarily sexual purposes.", "[9]. CETS no. 185. The Convention was approved in 2001, came into force in 2004, has 39 States Parties and has been signed, but not ratified, by the respondent State. [10].", "Child pornography in the Framework Decision means pornographic material that visually depicts or represents a real child involved or engaged in sexually explicit conduct, including lascivious exhibition of the genitals or the pubic area of a child; or a real person appearing to be a child involved or engaged in the conduct mentioned above; or realistic images of a non-existent child involved or engaged in the conduct mentioned above. [11]. Child pornography in the Directive has a broader definition, meaning any material that visually depicts a child engaged in real or simulated sexually explicit conduct; any depiction of the sexual organs of a child for primarily sexual purposes; any material that visually depicts any person appearing to be a child engaged in real or simulated sexually explicit conduct or any depiction of the sexual organs of any person appearing to be a child, for primarily sexual purposes; or realistic images of a child engaged in sexually explicit conduct or realistic images of the sexual organs of a child, for primarily sexual purposes. [12]. In addition to Sweden, these are Albania (Article 117 of the Criminal Code), Austria (Article 207a § 1, no.", "1, of the Austrian Criminal Code), Azerbaijan (Article 242 of the Criminal Code), Belgium (Article 383 bis of the Criminal Code), Bosnia and Herzegovina (Article 199 of the Criminal Code of Republika Srpska and Article 211 of the Criminal Code of the Federation of Bosnia and Herzegovina), Bulgaria (Article 159 of the Criminal Code), Croatia (Article 163 of the Criminal Code), Czech Republic (Article 192 of the Criminal Code), Denmark (Article 230 of the Criminal Code), Estonia (Article 178 of the Criminal Code), Finland (Articles 18, 18a and 19 of Chapter 17 of the Criminal Code), France (Article 227-23 of the Criminal Code), Georgia (Article 255 of the Criminal Code), Germany (Article 184b § 4 of the Criminal Code), Greece (Article 348 of the Criminal Code), Hungary (Article 204 of the Criminal Code), Iceland (Articles 209 and 210a of the Criminal Code and section 99(3) of the Child Protection Act), Ireland (section 3(2) of the Child Trafficking and Pornography Act), Italy (Article 610 quater of the Criminal Code), Latvia (section 1(1) of the Limitation of Pornography Act 2007), Liechtenstein (Article 219 § 1, no. 1, of the Criminal Code), Lithuania (Article 162 of the Criminal Code), Luxembourg (Article 384 of the Criminal Code), Macedonia (Article 193a § 1 of the Criminal Code), Moldova (Article 208 of the Criminal Code), Monaco (Article 294-3 of the Criminal Code), Montenegro (Article 211 of the Criminal Code), the Netherlands (Article 240 b of the Criminal Code), Norway (Article 201 of the Criminal Code, according to the case-law), Poland (Article 202 § 4 of the Criminal Code), Portugal (Article 176 of the Criminal Code), Romania (section 51 of Law no. 161/2003), Russia (Article 242.1 and 2 of the Criminal Code), Slovakia (Articles 368 and 370 of the Criminal Code), Slovenia (Article 176 § 2 of the Criminal Code), Spain (Articles 189 and 197 § 6 of the Criminal Code), Switzerland (Article 197 § 3 of the Criminal Code), Turkey (Article 226 § 3 of the Criminal Code), the United Kingdom (section 1 of the Protection of Children Act 1978), United States of America (section 18 USC §§ 2251, 2252 and 2252a) and Ukraine (Article 301 § 4 of the Criminal Code). [13]. See X and Y v. the Netherlands, 26 March 1985, § 27, Series A no.", "91, and M.C. v. Bulgaria, no. 39272/98, §§ 50, 166, ECHR 2003‑XII. [14]. Siliadin v. France, no.", "73316/01, § 112, ECHR 2005-VII, and C.N. and V. v. France, no. 67724/09, §§ 105-08, 11 October 2012. [15]. Sandra Janković v. Croatia, no.", "38478/05, § 36, 5 March 2009. [16]. Rantsev v. Cyprus and Russia, no. 25965/04, §§ 284 and 288, ECHR 2010. [17].", "Stoll v. Switzerland [GC], no. 69698/01, § 155, ECHR 2007-V. [18]. The Court not only reviews the political decision not to criminalise certain conduct, but also the excessive or disproportionate criminalisation of certain conduct, such as in Dudgeon, cited above, § 60; Norris, cited above, § 46; Modinos v. Cyprus, 22 April 1993, § 24, Series A no. 259; A.D.T., cited above, § 38 (private homosexual acts between consenting adults); S.L. v. Austria, no.", "45330/99, § 44, ECHR 2003-I (homosexual acts of adult men with consenting adolescents between 14 and 18 years of age); Vajnai v. Hungary, no. 33629/06, § 54-56, ECHR 2008 (wearing of red star); Altug Taner Akçam v. Turkey, no. 27520/07, §§ 93-95, 25 October 2011 (insulting Turkishness); Mosley v. the United Kingdom, no. 48009/08, § 129, 10 May 2011 (non-compliance with pre-notification requirement to publish news on private life); Akgöl and Göl v. Turkey, nos. 28495/06 and 28516/06, § 43, 17 May 2011 (participation in an unlawful but peaceful demonstration); Wizerkaniuk v. Poland, no.", "18990/05, §§ 82-83 and 86, 5 July 2011 (publication of unauthorised verbatim quotations); Mallah v. France, no. 29681/08, § 40, 10 November 2011 (assisting illegal entry, circulation or stay of foreigner in the national territory); Gillberg v. Sweden [GC], no. 41723/06, §§ 68-71, 3 April 2012 (misuse of office due to refusal of access to research material owned by a public university), Stübing v. Germany, no. 43547/08, §§ 63-65, 12 April 2012 (incest); and Şükran Aydın and Others v. Turkey, nos. 49197/06, 23196/07, 50242/08, 60912/08 and 14871/09, § 55, 22 January 2013 (use of mother tongue in political campaign).", "[19]. See Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002-I; Vo v. France [GC], no. 53924/00, §§ 90-94, ECHR 2004-VIII; Dodov v. Bulgaria, no. 59548/00, § 87, 17 January 2008; Branko Tomašić and Others v. Croatia, no.", "46598/06, § 64, 15 January 2009; and Maiorano and Others v. Italy, no. 28634/06, § 128, 15 December 2009. [20]. K.U. v. Finland, no.", "2872/02, § 46, ECHR 2008. The case dealt with a minor of 12 years of age who was the subject of an unauthorised advertisement of a sexual nature on an Internet dating site. In C.A.S. and C.S. v. Romania (no.", "26692/05, 20 March 2012), the Court clearly recognised that States had an obligation under Articles 3 and 8 to ensure the effective criminal investigation of cases involving violence against children, referring to the international obligations the respondent State had entered into for the protection of children against any form of abuse. [21]. See Okkalı v. Turkey, no. 52067/99, § 73, ECHR 2006-XII, and Darraj v. France, 34588/07, § 49, 4 November 2010. [22].", "Evidently, all grounds of justification and exculpation shall apply, such as in the case of undercover photography or filming by journalists when this contributes to a debate of public interest. Domestic courts and prosecutors must take into account fundamental rights, such as freedom of expression, when implementing criminal-law provisions, and specifically the provision criminalising covert filming or photographing of adults and children. In addition, States Parties may provide a defence in respect of conduct related to “pornographic material” having artistic, medical, scientific or similar merit. [23]. Other criminal-law provisions invoked by the Government, such as breach of domiciliary peace, unlawful intrusion or defamation (Government observations to the Grand Chamber, paragraph 22), are not applicable, for obvious reasons.", "No case-law was submitted by the Government to support their contention that these provisions could be applied, and a merely literal interpretation of these provisions shows that they are not applicable. The case did not raise a question of breach of domiciliary peace, simply because the offender lived at the house in question, nor of defamation, since the applicant’s stepfather did not intend to release the film to third persons. [24]. The Government reiterated and sustained this interpretation in paragraph 45 of their observations to the Grand Chamber. [25].", "Government’s observations to the Grand Chamber, paragraph 66. [26]. Paragraph 76 of the Government’s observations to the Grand Chamber. [27]. The Government said, in their observations to the Grand Chamber, paragraph 54: “In Swedish criminal procedure, the court is not formally bound in its assessment by what offence has been put before it, i.e., the court may examine on its own initiative questions concerning the classification of a criminal offence and the applicable section of law (Chapter 30, Article 3, of the Code of Judicial Procedure).” [28].", "The Court has already stated that “the progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing 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 S.W. v. the United Kingdom, 22 November 1995, §§ 34-36, Series A no. 335-B, and C.R. v. the United Kingdom, 22 November 1995, Series A no.", "335-C). Hence, I cannot agree with the Grand Chamber’s statement in paragraph 97 of the present judgment. [29]. Thus, the applicant’s stepfather started to commit the crime without bringing it to its completion and the danger that the act would lead to the completion of the crime was only averted because of unforeseen and unwanted circumstances. All the requisite elements of the attempted offence were fulfilled (Chapter 23, Article 1, of the Penal Code).", "[30]. It goes without saying that, in accordance with the national law and the European standard, the amended criminal charge should be communicated to the defendant, in order to give him the opportunity to contest it. [31]. As the applicant argued, the procedural legal situation in Sweden resembles the situation in Y v. Norway, no. 56568/00, §§ 23-24, ECHR 2003-II in that a private claim may be upheld in the same proceedings as a criminal case even if the defendant has been acquitted of the offence.", "[32]. The Government argued that, in order to benefit from Chapter 2, section 1, of the Tort Liability Act, the applicant should have claimed “that he had caused her personal injury by acting negligently in respect of her” (Government observations to the Grand Chamber, paragraph 35). This interpretation of the said provision sounds very abstruse, for two reasons. Firstly, the said provision encompasses literally wilful (or deliberate) and negligent injuries. Secondly, the applicant’s stepfather acted wilfully and not negligently.", "[33]. Swedish Supreme Court judgment of 29 October 2007 (NJA 2007, p. 747): “in view of the rule-of-law value held by the principle of predictability, an individual could not be obliged to compensate another individual directly on the basis of the Convention.” [34]. See Wemhoff v. Germany, 27 June 1968, § 8, Series A no. 7, and my separate opinion in Fabris v. France [GC], no. 16574/08, ECHR 2013.", "[35]. The Court has accepted that damages provide an adequate remedy for violations of Article 8 rights arising from a dispute between private persons (see Von Hannover v. Germany, no. 59320/00, §§ 72-74, ECHR 2004-VI, and Armonienė v. Lithuania, no. 36919/02, §§ 45-48, 25 November 2008). In addition, in Kontrová v. Slovakia (no.", "7510/04, 31 May 2007), the Court found a violation of Article 2 on the ground of the authorities’ failure to protect the children’s lives, and a violation of Article 13 because their mother had been denied the possibility of seeking compensation from the offender. [36]. As the visionary Supreme Court judgment of 23 October 2008 (NJA 2008, p. 946) concluded, when it stated that the non-criminalisation of covert filming of adults could amount to a breach of Article 8. A fortiori the same reasoning has to be applied to covert filming of children." ]

[ "THIRD SECTION CASE OF RADU POP v. ROMANIA (Application no. 14337/04) JUDGMENT STRASBOURG 17 July 2012 FINAL 17/10/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Radu Pop v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Alvina Gyulumyan,Egbert Myjer,Ján Šikuta,Ineta Ziemele,Nona Tsotsoria,Kristina Pardalos, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 26 June 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "14337/04) 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 Radu Pop (“the applicant”), on 15 March 2004. 2. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, of the Ministry of Foreign Affairs. 3. As Mr Corneliu Bîrsan, the judge elected in respect of Romania, had withdrawn from the case (Rule 28 of the Rules of Court), the President of the Chamber appointed Mrs Kristina Pardalos to sit as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court).", "4. The applicant alleged, in particular, that he had been ill‑treated by police officers on 18 August 2003 and that the investigation into his allegations of ill-treatment had been inadequate and ineffective. He also complained about the material conditions of detention in different prisons where he had been detained and a lack of appropriate medical treatment while in detention. He also claimed that his court-appointed legal‑aid defence counsel had not provided effective legal assistance to him in the preparation and conduct of the case before the High Court of Cassation and Justice, with the result that he had been denied the benefit of a fair trial. 5.", "On 15 June 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 6. The applicant was born in 1967 and is curently detained in Gherla Prison.", "A. The incident of 18 August 2003 7. On 2 April 2003 the applicant was convicted of vandalism, assault and disturbance of public order and sentenced to 472 days’ imprisonment by a judgment rendered by the Zalău District Court. The judgment became final on 2 July 2003 when the Sălaj County Court dismissed the appeal lodged against it by the prosecutor’s office. 8.", "During the criminal proceedings the applicant was detained in Satu Mare Prison in connection with another offence he had committed, but he attended the hearings before the court of first instance. He was released from that prison on 18 May 2003. 9. According to the information provided by the applicant, he did not attend the final hearings before the Sălaj County Court. He admitted that he had received a copy of the final decision, which had been delivered to his home on 2 July 2003, informing him that he had been convicted and sentenced to 472 days’ imprisonment.", "10. On 28 July 2003 an arrest warrant for the execution of the sentence was issued in respect of the applicant but could not be executed as he had absconded. 11. Acting on information that the applicant was at his home in the village of Creaca, on the morning of 18 August 2003, at about 6 a.m., eight police officers, together with the head of the local police and his deputy, went to the applicant’s home in order to arrest him. The decision to operate in such a large number was taken on the ground that the applicant had antecedents of aggressive behaviour, his previous conviction being for assaulting a police officer.", "12. When they arrived outside the applicant’s home, the police officers ordered the applicant to surrender to custody, but he did not reply. Knowing that he was inside, an operational group composed of four police officers forced the door and entered. As it was dark in the house, police officer L.L. did not see the applicant, who hit him on the head with a stone.", "While the other police officers were trying to immobilise him the applicant tried to seize an axe and, before being immobilised, he bit one of police officer H.N.’s fingers. He was handcuffed and transported by car to the Sălaj Police Station. 13. The injured police officer was immediately hospitalised. According to a forensic report drafted after the events, he had suffered a cranial trauma and a fractured skull, which put his life in danger, and he needed between forty and forty-five days of medical treatment to recover.", "14. According to the applicant, he was beaten by the police both on his arrest on 18 August 2003 and in the course of police questioning at the police station. B. The criminal proceedings against the applicant for attempted murder and assault 15. Following the incident, the prosecutor’s office attached to the Sălaj District Court initiated criminal proceedings against the applicant for attempted murder and assault.", "16. He was heard first on 19 August 2003 at the police station. He stated that he was aware that he had been sentenced to imprisonment in July 2003 for previous offences he had committed. 17. On 13 November 2003 the applicant gave a statement to the prosecutor’s office.", "He stated again that he knew about his conviction and expressly refused to appoint a lawyer of his choice. On the same day a new arrest warrant relating to the new charges against him was issued. 18. On 19 November 2003 the applicant was informed that the investigation was complete. He was invited to study the case file.", "He again refused to appoint a lawyer, and was assisted by a court-appointed lawyer, P.M. 19. At the last hearing, held on 17 December 2003 before the Sălaj County Court, the applicant agreed to pay the victim L.L. compensation for pecuniary and non-pecuniary damage amounting to 3,000 euros (EUR). His lawyer, P.M., asked the court to take his behaviour into consideration as a mitigating factor in determining his punishment. 20.", "On 17 December 2003 the Sălaj County Court found the applicant guilty as charged and sentenced him to nine years’ imprisonment, taking into account the previous non-executed sentence. The judgment was based on extensive evidence: a report drafted on 18 August 2003 immediately after the events and at the site of the incident (raport de constatare la faţa locului), a forensic report, the applicant’s statements, and the statements of all the police officers present during the applicant’s arrest, including those of the two victims, L.L. and H.N. 21. The applicant appealed against the judgment.", "He maintained that the statements on the basis of which he had been convicted were subjective as the witnesses were colleagues of the victims. He asked to be acquitted on the ground that, on the one hand, it had not been his intent to kill the police officer and, on the other, because he had not been aware that the persons who had forced their entry into his house were police officers acting in their official capacity. 22. In the appeal proceedings the applicant was represented by a lawyer appointed at his request, P.P. At the hearing of 3 March 2004 the lawyer made a request for a psychiatric report in respect of the applicant.", "23. The psychiatric report, drafted on 28 April 2004, stated that the applicant suffered from a personality disorder of the impulsive type but that he retained his mental capacity for critical appreciation. 24. On 12 May 2004 the Cluj Court of Appeal dismissed the applicant’s appeal as unfounded. It held that it could not accept the applicant’s account in respect of his alleged error as to the purpose of the police officers’ visit to his home, especially since the applicant acknowledged that he had known that an arrest warrant for the execution of an imprisonment sentence against him had been issued.", "It also noted that the claim of lack of intent to kill the police officer was not tenable, taking into account the circumstances under which the offence had been committed, namely, that the police officer had been struck with considerable force in a vital region of the body, the head, with an object capable of causing lethal injuries. Moreover, the forensic report confirmed that the injuries caused by the applicant had put the victim’s life in danger. 25. The applicant lodged an appeal on points of law requesting his acquittal and, failing that, the reduction of his sentence. 26.", "The applicant was represented before the High Court of Cassation and Justice by two court-appointed lawyers. The first one, T.B., was appointed on 7 June 2004 in order to assist the applicant at the hearing of 16 June 2004 and the other one, M.B., was appointed on 24 June 2004 and assisted him on 7 July 2004. 27. On 7 July 2004 the High Court of Cassation and Justice dismissed the appeal as unfounded. C. Criminal proceedings initiated by the applicant against the police officers 28.", "On 5 January 2005 the applicant lodged a complaint against the police officers who had arrested him, accusing them of abuse on account of the ill‑treatment to which he said he had been subjected on 18 August 2003. 29. Initially the complaint was lodged with the prosecutor’s office attached to the Sălaj County Court, which relinquished jurisdiction in favour of the military prosecutor’s office attached to the Cluj Military Tribunal as the defendants were professional soldiers. 30. A forensic report drafted immediately after the incident of 18 August 2003, at the prosecutor’s order, on the basis of all the medical documents stated that the applicant had suffered “cranial trauma without concussion, contusion of the nasal pyramid with secondary epistaxis, and thorax contusion without bone injuries”, and he had needed three‑four days of medical treatment to recover.", "31. On 15 December 2005 the prosecutor’s office decided not to initiate criminal proceedings against the police officers. It held that they had acted in self defence and that the applicant’s injuries had been incurred while they were trying to immobilise him as he had resisted arrest and been aggressive. 32. On 16 December 2005 the applicant lodged a complaint with the Cluj Military Tribunal against the prosecutor’s decision.", "By a judgment rendered on 23 January 2007 the Tribunal relinquished jurisdiction in favour of the chief prosecutor of the Cluj military prosecutor’s office. 33. On 27 March 2007 the military prosecutor dismissed the applicant’s complaint, upholding the decision not to initiate criminal proceedings. The applicant did not lodge any complaint against his decision on the basis of Article 2781of the Code of Criminal Procedure. D. Conditions of detention 34.", "Since 18 August 2003 the applicant has been held in a number of different detention centres. Initially he was detained in Zălau Police Station and then transferred to Satu Mare, Baia Mare, Jilava and Gherla Prisons. In respect of the establishments in which he was detained, the applicant alleged that he had been kept in overcrowded cells in poor conditions of hygiene. He claimed that there were rats and parasites in his cell. In all the prisons hot water was available only once a week.", "He also claimed that he received poor food and that the opportunity to take outdoor exercise was limited to one ten‑minute walk per day. 35. The Government supplied the following details concerning the conditions of the applicant’s detention in each establishment: 1. Zalău Police Station 36. The applicant was detained in Zalău Police Station from 18 August to 11 December 2003.", "37. He was detained in cells nos. 7, 8 and 11. 38. All three cells had a length of 4 m, a width of 3 m and a height of 3 m and were occupied as follows: cell no.", "7 by six to seven detainees, cell no. 8 by three to six detainees and cell no. 11 by two to four detainees. 2. The Satu Mare Prison 39.", "The applicant was detained in Satu Mare Prison during the following periods: between 11 December 2003 and 2 February 2004, 23 August 2004 and 24 January 2005, 22 March and 30 August 2005, and between 17 and 23 October 2006. The cells in which the applicant was detained were as follows: - cell no. 8 with a surface area of 12.54 square metres and occupied by six to eleven detainees; - cell no. 71 with a surface area of 24.72 square metres and occupied by thirty‑four detainees; - cell no. 56 with a surface area of 8.2 square metres and occupied by seven detainees; - cell no.", "59 with a surface area of 27.78 square metres and occupied by twenty‑seven detainees; - cell no 53 with a surface area of 8.2 square metres and occupied by five detainees. 3. The Baia Mare Prison 40. The applicant was detained in Baia Mare Prison from 30 August 2005 to 1 August 2006. He was detained in cells nos.", "14 and 29. Cell no. 14 had a length of 7.75 m, a width of 5.2 m and a height of 2.75 m and was occupied by between thirty-one and thirty‑seven detainees. Cell no. 29 had a length of 5.2 m, a width of 3.85 m and a height of 2.9 m and was occupied by thirteen detainees.", "4. The Jilava Prison 41. The applicant was detained in Jilava Prison between 29 March and 13 April 2004 and again from 14 June to 23 August 2004, in cells nos. 612 and 619. 42.", "Both cells had the same dimensions, namely: a length of 9.5 m, a width of 4.5 m and a height of 3 m. The number of detainees in the first cell was on average thirty-seven, and in the second, forty‑two. 5. Gherla Prison 43. The applicant was detained in Gherla Prison during the following periods: from 2 February to 11 March 2004, from 14 April to 14 June 2004, from 24 January to 22 March 2005, from 23 October 2006 to 29 October 2007, from 6 November to 12 November 2007, from 18 December 2007 to 25 May 2008, from 3 June to 25 August 2008, from 16 December 2008 to 19 February 2009, from 27 February to 10 April 2009, and from 6 July 2009 until the present. 44.", "In respect of Gherla prison, the Government submitted information concerning the numbers of the cells the applicant had been detained in and their surface area, but they did not submit any information on the occupancy rate of those cells. E. Medical care in prison 45. The diagnoses of personality disorder and chronic gastritis were made on the applicant’s arrest. 46. From the information submitted by the Government, it appears that the applicant received treatment for his various conditions, especially for chronic gastritis, personality disorder of the unstable-impulsive type and epilepsy.", "It also appears that he was often admitted to the hospitals of the prisons where he was detained. Thus, he was hospitalised in the medical unit of Dej Prison between 11 and 29 March 2004, 9 and 17 October 2006, and 9 and 16 June 2009. In Jilava Prison he was hospitalised between 30 March and 13 April 2004, 30 October and 5 November 2007, 27 May and 2 June 2008, and 20 and 27 February 2009. 47. The applicant was also examined by different specialists.", "Thus, he underwent psychiatric medical examinations on 9 November 2006, and 21 and 23 May 2008. He underwent surgical interventions for self‑inflicted injuries on 16, 17 and 18 May 2007. 48. On 12 December 2007 the applicant was hospitalised in the medical unit of Dej Prison after falling out of bed during an epileptic fit. On 18 December 2007 he was sent back to Gherla Prison, where he had been detained before hospitalisation.", "He refused to stay in the medical unit as recommended by the doctor, preferring to stay in his cell and signing a statement to that effect. 49. He systematically refused hospitalisation and the medical treatment he was offered. In this connection, the Government submitted a copy of minutes drafted by the Gherla prison authorities (notably on 11, 14, 16 and 18 July 2008, on 27, 29 and 30 January 2009, and on 2 February 2009) noting the refusal by the applicant of his medication. 50.", "Moreover, the applicant frequently refused food. 51. On 6 November 2007 he was hospitalised in the medical unit of Dej Prison because of the voluntary ingestion of medicines. He refused medical assistance. 52.", "According to the applicant’s prison medical record, his treatment for his various conditions was continuing. F. The applicant’s complaints concerning the conditions of his detention 1. The complaint concerning the conditions of detention in Baia Mare Prison 53. On 10 January 2006, while detained in Baia Mare Prison, the applicant lodged a complaint against the prison authorities, relying on Ordinance no. 56/2003.", "He requested, inter alia, to be transferred to another cell with fewer detainees and to be provided with a diet better suited to his medical condition. He also complained of infringements of his right of access to his prison file and of his right to respect for his correspondence, that is, the right to send applications and documents to the Court. He further complained of a lack of adequate medical treatment. 54. The judge of the Baia Mare District Court dismissed his complaint on 9 March 2006 on the grounds that the applicant’s food was in accordance with the norms adopted by the National Administration of Penitentiaries and that the applicant’s cell was similar to other cells in the prison, only the medical unit of the prison having cells designed for fewer detainees.", "With regard to his right to have access to his file, the judge noted that the applicant had submitted only one request in this regard, on 23 October 2005, and that it had been granted. He also noted that the applicant’s request for copies from his file lodged on 23 December 2005 had been granted. 55. An appeal on points of law lodged by the applicant was dismissed by the Maramureş County Court on 23 May 2006 as unfounded. 2.", "The criminal complaint against the doctors of Gherla Prison 56. On 10 December 2007 the applicant lodged a criminal complaint with the prosecutor’s office attached to the Cluj Court of Appeal against three doctors working for the hospital of Gherla Prison for abuse and ill‑treatment. He claimed that they had not provided him with the medication he needed for his epilepsy and personality disorder, causing him severe pain and mental suffering. 57. The complaint was dismissed on 19 February 2008 on the ground that there was no evidence to support the applicant’s allegations.", "The applicant challenged the decision not to initiate a criminal investigation but it was upheld by the chief prosecutor on 21 March 2008. 58. The applicant’s complaint against the prosecutor’s decision was allowed by the Cluj Court of Appeal on 15 May 2008. It held that the investigation conducted by the prosecutor had not been effective as the file had not contained enough evidence for any conclusion to be drawn. It remitted the case to the prosecutor’s office for further investigation.", "59. The prosecutor’s office appealed, claiming that the applicant’s initial complaint had been totally unsubstantiated. The High Court of Cassation and Justice allowed the appeal on 11 September 2008, finding that the applicant had submitted no evidence justifying further investigation, his allegations being unsubstantiated. G. The applicant’s correspondence with the domestic authorities and the Court 60. The Government submitted copies of several requests lodged by the applicant with different domestic authorities in order to obtain information concerning proceedings to which he was a party.", "They also provided the Court with copies of letters addressed by the domestic authorities to the applicant providing the requested information. 61. According to the information provided by Baia Mare Prison, the applicant received stamps and envelopes for correspondence on 5, 8 and 15 June 2006. On 5 June 2006 he received copies of documents from his personal file. 62.", "According to the information submitted by Satu Mare Prison, the applicant received letters from the Court on 5 October 2004, 25 November 2005, 27 April and 29 June 2006, 5 April 2008, and 7 March 2009. They also stated that the letters had never been opened. 63. The authorities of Gherla Prison maintained that the applicant had been provided with stamps and envelopes in order to send correspondence to the Romanian authorities and the Court. II.", "RELEVANT DOMESTIC LAW 64. Article 3 of Government Emergency Ordinance no. 56 of 27 June 2003 (“Ordinance no. 56/2003”) regarding certain rights of convicted persons states that convicted persons have the right to bring legal proceedings before a court of first instance concerning measures taken by the prison authorities in connection with their rights. Ordinance no.", "56/2003 has been repealed and replaced by Law no. 275 of 20 July 2006, which restates the content of the above-mentioned Article 3 in Article 38, which provides that a judge has jurisdiction over complaints by convicted persons against measures taken by the prison authorities (see also Petrea v. Romania, no. 4792/03, §§ 21-23, 29 April 2008). 65. The Government submitted to the Court copies of judicial decisions delivered by the domestic courts concerning the application of Ordinance no.", "56/2003 and Law no. 275/2006 in practice. The decisions mainly concern complaints lodged by prisoners in respect of disciplinary sanctions imposed on them by the prison authorities, lack of adequate medical treatment, and breaches of their rights to receive visits, to correspondence, to the confidentiality of telephone conversations, to take walks outside their cell, and to be placed in a non-smoking cell. 66. The relevant provisions of the Code of Criminal Procedure are set out in Dumitru Popescu v. Romania ((no.", "1), no. 49234/99, §§ 43-46, 26 April 2007), and Barbu Anghelescu v. Romania (no. 46430/99, § 40, 5 October 2004). In paragraphs 43-45 of the judgment in Dumitru Popescu (no. 1), cited above, there is a description of the development of the law concerning complaints against prosecutors’ decisions (Article 278 of the Code of Criminal Procedure and Article 2781 introduced by Law no.", "281/24 June 2003, applicable from 1 January 2004 – “Law no. 281/2003”). III. REPORTS ON THE CONDITIONS OF DETENTION IN ROMANIAN PRISONS 67. The relevant findings and recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) are to be found in the Court’s judgments in the cases of Bragadireanu v. Romania (no.", "22088/04, §§ 73­76, 6 December 2007), and Artimenco v. Romania (no. 12535/04, §§ 22-23, 30 June 2009). 68. The CPT report published on 11 December 2008 following a visit to different police detention facilities and prisons in Romania (including Jilava Prison), from 8 to 19 June 2006, indicated that overcrowding was 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.", "69. 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 nationally, and that this had remained the case since its first visit to Romania in 1999. The CPT welcomed the changes introduced in domestic legislation providing for personal space of four square metres 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. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 70. The applicant complained under Article 3 of the Convention of ill‑treatment by police officers on 18 August 2003 and lack of an effective investigation into the incident. He also complained about the conditions of detention in different prisons where he had been detained, and of a lack of medical treatment. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. The parties’ arguments 71.", "The Government raised a preliminary objection of non‑exhaustion of domestic remedies and argued that for the 18 August 2003 incident the applicant should have used the appeal provided for in Article 2781 of the Code of Criminal Procedure in order to challenge the military prosecutor’s decision not to press charges. Furthermore, for the complaint concerning the conditions of detention and the alleged lack of adequate medical treatment in all places of detention the applicant could have lodged a complaint under the provisions of Emergency Ordinance no. 56/2003. 72. The applicant did not submit any observation in this regard.", "2. The Court’s assessment 73. At the outset, the Court reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it. However, the only remedies which Article 35 of the Convention requires to be used are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, among many other authorities, Selmouni v. France [GC], no.", "25803/94, §§ 74-75, ECHR 1999-IV). 74. In order for the exhaustion rule to come into operation, the effective remedy must exist at the date when the application is lodged with the Court. However, this rule is subject to exceptions which might be justified by the specific circumstances of each case (see Baumann v. France, no 33592/96, § 47, 22 May 2001, and Brusco v. Italy, (dec.), no. 69789/01, ECHR 2001 IX).", "(a) The incident on 18 August 2003 75. The Court observes that Article 2781 of the Code of Criminal Procedure provides that prosecutor’s decisions can be challenged before the domestic courts. 76. However, the Court notes that the applicant failed to challenge the military prosecutor’s decision of 27 March 2007 not to prosecute the police officers, although he had an effective remedy at his disposal (Stoica v. Romania, no. 42722/02, § 109, 4 March 2008).", "77. It follows that this part of the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. (b) The material conditions of detention 78. The Court notes that the applicant’s complaint concerns the material conditions of his detention and, in particular, overcrowding and poor sanitary facilities. In this connection, it observes that in recent applications against Romania concerning similar complaints it has already found that, given the specific nature of this type of complaint, the legal actions indicated by the Government, including a civil action in damages, did 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).", "79. The Court further notes that the domestic decisions submitted by the Government in support of its plea of non-exhaustion relate to specific prisoners’ rights, such as the right to medical assistance or the right to receive visits, but they do not relate to structural issues, such as overcrowding. 80. The Court therefore concludes that these decisions do not demonstrate how the legal actions proposed by the Government 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).", "It therefore rejects the Government’s plea of non-exhaustion of domestic remedies. 81. Noting further that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention, and that it is not inadmissible on any other grounds, the Court concludes that it must be declared admissible. (c) The alleged deterioration of the applicant’s health and the alleged lack of medical treatment 82. In the case of Petrea, cited above, the Court concluded that before the entry into force of Ordinance no.", "56/2003, on 27 June 2003, there was no effective remedy for situations such as the one complained of by the applicant. However, after that date persons in the applicant’s situation had an effective remedy for complaining about lack of medical treatment. (i) Baia Mare and Gherla Prisons 83. Turning to the present case, the Court notes that the applicant lodged a complaint about lack of adequate medical treatment on the basis of Ordinance no. 56/2003 on 10 January 2006.", "However, it notes that he made reference only to a lack of medical treatment in relation to detention in Baia Mare Prison (see paragraph 53). 84. The Court also observes that the applicant lodged a criminal complaint against the doctors working for the Gherla prison hospital (see paragraph 56), claiming that they had not provided him with the medication he needed for his medical conditions. In this regard the Court is not convinced of the necessity of lodging another request on the basis of Ordinance no. 56/2003 with largely the same object.", "It therefore rejects the Government’s plea of non-exhaustion of domestic remedies in respect of the alleged lack of medical treatment while in detention in Baia Mare and Gherla Prisons. Noting further that this part of the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds, the Court concludes that it must be declared admissible. (ii) Satu Mare and Jilava Prisons 85. The Court further notes that the applicant did not refer in the two above-mentioned complaints to the alleged lack of proper medical treatment in Satu Mare and Jilava Prisons. 86.", "It considers that the applicant should have lodged complaints with the domestic courts about the alleged lack of medical treatment in the two above-mentioned prisons. It follows that this part of the complaint must be rejected for non‑exhaustion of domestic remedies. B. Merits 1. The material conditions of detention (a) The parties’ submissions 87.", "The applicant contested the Government’s submissions and reiterated that he had been held in precarious conditions, that the cells had been overcrowded, the food of poor quality, and that the conditions for maintaining proper hygiene had been lacking. 88. The Government contended that the conditions of detention in all the prisons in which the applicant had been detained were adequate and did not raise an issue under Article 3 of the Convention. (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). 93.", "An extreme lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether impugned detention conditions were “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 have had at their disposal less than three square metres 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 other authorities, Iamandi v. Romania, no. 25867/03, §§ 59-61, 1 June 2010; Răcăreanu v. Romania, no.", "14262/03, §§ 49-52, 1 June 2010; and Flamînzeanu v. Romania, no. 56664/08, § 98, 12 April 2011). 95. The focal point in the case at hand is the assessment by the Court of the living space afforded to the applicant in the detention centres where he was held, namely Zalău Police Station and Baia Mare, Satu Mare, Jilava and Gherla Prisons. 96.", "The Court notes that even at the occupancy rate put forward by the Government, the applicant’s living space seems to have been less than three square metres in Zalău Police Station and Baia Mare, Satu Mare and Jilava Prisons, which falls short of the standards imposed by the case‑law (see Kokoshkina, cited above, § 62, and Orchowski v. Poland, no. 17885/04, § 122, ECHR 2009 ... (extracts)). 97. The Court further observes that despite the fact that the applicant complained about the improper sanitary facilities and the poor quality of the food, the Government did not make any submissions in this respect. 98.", "In this respect the Court reiterates that Convention proceedings, such as the present application, do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation), because in certain instances the respondent Government alone have access to information capable of corroborating or refuting these allegations. A failure on a Government’s part to submit such information without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see Kokoshkina, cited above, § 59). 99. However, there is no need for the Court to establish the truthfulness of each and every allegation, since it considers that the overcrowding of the applicant’s cell give it sufficient grounds to make substantive conclusions on whether the conditions of the applicant’s detention amounted to treatment contrary to Article 3 of the Convention. 100.", "Lastly, the Court notes that the applicant was transferred many times during his detention. Such frequent transfers may increase the feelings of distress experienced by a person deprived of liberty and held in conditions which fall short of the Convention’s standards (see, mutatis mutandis, Orchowski, cited above, § 133, and Khider v. France, no. 39364/05, §§ 110­111, 9 July 2009). 101. In the light of the above, the Court considers that the conditions of the applicant’s 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. 2. The alleged lack of proper medical treatment in Baia Mare and Gherla Prisons (a) The parties’ submissions 102. The applicant did not agree with the Government’s submissions. He claimed that he had not received proper medical treatment while in detention in Baia Mare and Gherla Prisons.", "103. The Government submitted that the applicant had received constant medical treatment and that he had been hospitalised whenever it had been necessary. They further claimed that the applicant had not managed to prove his allegations concerning lack of medical treatment. b) The Court’s assessment 104. The Court observes at the outset that it cannot be ruled out that the detention of a person who is ill may raise issues under Article 3 (see Mouisel v. France, no.", "67263/01, § 38, ECHR 2002-IX). Although this Article 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 by, among other things, providing them with the requisite medical assistance (see Sarban v. Moldova, no. 3456/05, § 77, 4 October 2005, and Khudobin v. Russia, no. 59696/00, § 93, ECHR 2006‑XII (extracts)). 105.", "The Court reiterates that a lack of appropriate medical care and, more generally, the detention in inappropriate conditions of a person who is ill, may in principle amount to treatment contrary to Article 3 (see, for example, İlhan v. Turkey [GC], no. 22277/93, § 87, ECHR 2000­VII). In particular, the assessment of whether the treatment or punishment concerned is incompatible with the standards of Article 3 has, in the case of mentally ill persons, to take into consideration their vulnerability and their inability, in some cases, to complain coherently or at all about how they are being affected by any particular treatment (see Aerts v. Belgium, 30 July 1998, § 66, Reports of Judgments and Decisions 1998‑V). 106. The Court observes that in the present case it was not contested that the applicant had suffered from chronic gastritis both before and during his detention.", "His mental state was also diagnosed as a personality or neurotic disorder. 107. The Court further observes that the medical evidence which the Government produced shows that during his detention the applicant regularly sought, and obtained, medical treatment. He was examined by specialist doctors and frequently received psychiatric assistance. He was hospitalised in the medical unit of the prison concerned whenever it was necessary.", "108. Moreover, the Court notes that the adequacy of the medical treatment of the applicant when detained in Baia Mare and Gherla Prisons was examined by the Romanian authorities, which dismissed the applicant’s complaints. He was also regularly examined in the prison hospitals. 109. In this connection, the Court has previously held that where domestic proceedings have taken place it is not its task to substitute its own assessment of the facts for that of the domestic courts and that, as a general rule, it is for those courts to assess the evidence before them (see Klaas v. Germany, 22 September 1993, § 29, Series A no.", "269). Though the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Klaas, cited above, § 30). 110. In the present case, the case file reveals that the authorities took all necessary steps to ensure that the applicant received adequate treatment for his illnesses in Baia Mare and Gherla Prisons. In conclusion, there was no violation of Article 3 of the Convention in respect of lack of medical treatment in Baia Mare and Gherla Prisons.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION 111. The applicant complained that he had not been informed of the reasons for his arrest or of the charges brought against him on 18 August 2003. He relied on Article 5 § 2 of the Convention. 112.", "The Government submitted that during the investigation it had been established on the basis of the witness statements given by the persons present at the applicant’s arrest that the police officers had informed him twice before entering the house that their presence concerned the execution of a sentence of imprisonment. 113. The Court reiterates that two aspects of the application of Article 5 § 2 are at the heart of its case-law: firstly, whether the information provided to a person concerning the reasons for his arrest is sufficient, and secondly, whether such information has been promptly provided (see Fox, Campbell and Hartley v. the United Kingdom (30 August 1990, § 40, Series A no. 182). 114.", "In the instant case, the Court considers that the applicant was promptly informed of the reasons for his arrest: it notes that the police officers informed the applicant even before entering his home on the morning of 18 August 2003 about their intent to enforce a sentence of imprisonment imposed on him. Moreover, the applicant acknowledged in his first statement on 19 August 2003 before the investigation body that he knew that he had been convicted and sentenced to imprisonment in July 2003. 115. Taking into account the particular circumstances under which the applicant was arrested on 18 August 2003, the Court considers that, although the Government did not submit a formal document signed by the applicant containing the reasons for his arrest, the applicant was aware that his arrest was related to the enforcement of the decision rendered on 2 July 2003. Therefore, in the light of the foregoing considerations and of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.", "It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION 116. The applicant further complained about the unfairness of the criminal proceedings against him, referring mainly to his difficulty in adducing evidence in his defence and the allegedly insufficient assistance offered by his court­appointed counsel before the High Court of Cassation and Justice. He relied on Article 6 §§ 1 and 3 (c) of the Convention.", "A. Complaint concerning the alleged impossibility of calling and questioning witnesses 117. The applicant complained that he and his counsel had not had the opportunity to obtain the examination of all the witnesses on his behalf and against him. 118. The Government submitted that the applicant had had the opportunity to propose evidence and to ask questions of all the witnesses.", "They also maintained that the applicant had been able to see all the documents in the files and make comments with respect to each. 119. The Court stresses, firstly, that it is not its task to act as a court of appeal or, as is sometimes said, as a court of fourth instance, for the decisions of domestic courts, which, according to the case‑law, are best placed to assess the credibility of witnesses and the relevance of evidence to the issues in the case (see, amongst many authorities, Vidal v. Belgium, 22 April 1992, § 32, Series A no. 235-B, and Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no. 247-B).", "The Court further reiterates that the principle of equality of arms, one of the broader concepts of a fair hearing, requires each party to be given a reasonable opportunity to present their case under conditions that do not place them at a substantial disadvantage vis-à-vis their opponent. 120. Turning to the facts of the case, the Court observes that the domestic courts based the applicant’s conviction on a wide range of oral, material and expert evidence. The evidence which the applicant sought to adduce was admitted and he had the opportunity to question all the witnesses. At the various stages of the proceedings he was able to submit the arguments he considered relevant to his case.", "The applicant himself gave a full statement before the first-instance court, and in the appeal proceedings he was given the last word. Moreover, in his appeals the applicant, even though he was represented by counsel, failed to make any complaint in respect of his right to be heard by the courts or to call and question witnesses (see paragraphs 20-26). 121. Therefore in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "B. Complaint concerning the alleged refusal of court‑appointed counsel 122. The applicant claimed that he had asked all the domestic courts to allow him to represent himself without being assisted by a lawyer, but that his requests had not been mentioned in the minutes and decisions of the courts and they had been orally dismissed on the ground that his assistance by a lawyer was compulsory. He added that in any case such lawyers were appointed by the courts with the sole purpose of obstructing the establishment of the truth. 123.", "With respect to the judicial assistance offered by the lawyers appointed by the courts, the Government averred that the applicant had expressly waived the opportunity to choose a lawyer himself on 13 November 2003 when he gave a statement before the prosecutor’s office. He had again refused to appoint a lawyer on 19 November 2003, when he was presented with the results of the investigation. The Government also submitted that they had had enough time to prepare the applicant’s defence and they had played an active role. 124. The Court firstly notes that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial in criminal proceedings as set forth in paragraph 1 of the same Article.", "Accordingly, the applicant’s complaint will be examined under these provisions taken together (see, among other authorities, Bobek v. Poland, no. 68761/01, § 55, 17 July 2007). 125. The Court reiterates that assigning counsel to represent a party to the proceedings does not in itself ensure the effectiveness of the assistance (see Imbrioscia v. Switzerland, 24 November 1993, § 38, Series A no. 275).", "There may be occasions when the State should act and not remain passive when problems of legal representation are brought to the attention of the competent authorities. It will depend on the circumstances of the case whether, taking the proceedings as a whole, the legal representation may be regarded as practical and effective. 126. The Court observes in this context that the applicant had the legal assistance throughout the proceedings of officially appointed representatives who played an active role in his defence. It also notes that the applicant did not bring to the attention of the authorities any concrete shortcomings in the defence provided by his appointed counsels.", "Moreover, there is no indication that in the proceedings conducted against the applicant the Romanian authorities had cause to intervene in respect of the applicant’s legal representation. 127. On the basis of the information available, the Court considers that the circumstances of the applicant’s representation at the trial do not reveal a failure to provide him with practical and effective legal assistance. 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.", "ALLEGED VIOLATION OF ARTICLES 8 AND 34 OF THE CONVENTION 128. The applicant further complained that his right to respect for his correspondence had been infringed by the prison authorities, claiming that letters received from the Court had been opened before being handed to him, and making particular reference to a letter sent to him by the Court on 29 September 2004, while he was detained in Satu Mare Prison. The applicant also complained that the prison authorities had hindered him in bringing his case before the Court by withholding a letter sent to him by the Court on 6 November 2006. He further claimed in this connection that the authorities had failed to assist him in obtaining copies of the documents necessary for lodging his application and that he had not received the stamps and envelopes he needed for his correspondence with the Court. He relied on Articles 8 and 34 of the Convention.", "129. The Government raised a preliminary objection of non-exhaustion of domestic remedies, in so far as the applicant had not complained to the authorities about the alleged breach of his right to respect for his correspondence with the Court or the refusal of the prison authorities to provide him with copies from his files and with stamps and envelopes while he was detained in Satu Mare, Jilava and Gherla Prisons. They relied mainly on Article 8 of Emergency Government Ordinance no. 56/2003 concerning the right to correspondence of detained persons, and also on Article 46 of Law no. 275/2006.", "130. The applicant did not agree with the Government’s submissions. 131. 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 in that case that before the entry into force of Ordinance no.", "56/2003, on 27 June 2003, there was no effective remedy for the situation complained of by the applicant. However, after that date, persons in the applicant’s situation did have an effective remedy for complaining about alleged interference with their correspondence (see Petrea, cited above, §§ 35-36, and Dimakos v. Romania, no. 10675/03, §§ 54-56, 6 July 2010). 132. The Court sees no reason to depart in the present case from the conclusions it reached in Petrea.", "133. It therefore considers that after the entry into force of Ordinance no. 56/2003 the applicant should have lodged a complaint with the domestic courts about the alleged interference with his Article 8 rights. There is no evidence in the file that he did so while detained in Satu Mare, Jilava and Gherla Prisons. It follows that the part of the complaint concerning the alleged breach of Article 8 while detained in Satu Mare, Jilava and Gherla Prisons must be rejected for non-exhaustion of domestic remedies.", "134. In respect of the infringement of the applicant’s right to correspondence while detained in Baia Mare Prison, the Government submitted that, even if with short delays, all the applicant’s requests for copies from his file and stamps and envelopes for his correspondence had been granted. They maintained that the applicant had had extensive correspondence with the Court. Thus, the applicant had received letters from the Court on 5 October 2004, 25 November 2005, 27 April and 29 June 2006, 5 April 2008, 7 March and 19 June 2009, and 16 and 23 July 2009. They further claimed that the prison authorities had not held back any letter sent by the Court to the applicant.", "135. The applicant contested the Government’s submissions. 136. The Court observes 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 infringement in Convention proceedings (see Manoussos v. the Czech Republic and Germany (dec.), no.", "46468/99, 9 July 2002). The Court also reiterates 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 Tanrıkulu v. Turkey [GC], no. 23763/94, § 130, ECHR 1999‑IV and Kornakovs v. Latvia, no. 61005/00, § 164, 15 June 2006). 137.", "As to the alleged monitoring of the applicant’s communications with the Court, the Court notes that the applicant has not submitted any direct proof in respect of the alleged opening of letters by the prison administration. Therefore, it concludes that there is nothing to indicate that the applicant was in any way frustrated in the exercise of his right to respect for his correspondence or of his right of petition (contrast Petra v. Romania, 23 September 1998, §§ 41­44, Reports 1998‑VII, and Cotleţ v. Romania, no. 38565/97, § 71, 3 June 2003). 138. The Court also notes that the applicant periodically received stamps and envelopes from the prison authorities and was able to obtain copies of documents in support of his application and submit them to the Court.", "139. Therefore in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these complaints are manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 140. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 141. The applicant claimed a total amount of 210,000 euros (EUR) in respect of non-pecuniary damage. He claimed EUR 20,000 for the alleged infringement of Article 5 § 2, EUR 50,000 for the ill-treatment to which he claimed to have been subjected on 18 August 2003, EUR 70,000 for the inhuman conditions of detention, EUR 10,000 for infringement of his right to correspondence, and EUR 60,000 for the alleged violation of Article 6 of the Convention. He did not claim any amount in respect of pecuniary damage. 142.", "The Government considered that the amount requested by the applicant was exorbitant, and that a conclusion of a violation of the Convention would suffice to compensate him for the non-pecuniary damage allegedly suffered. 143. The Court finds that the conditions in which the applicant was detained must have caused him serious physical discomfort and mental suffering which cannot be compensated by the mere finding of a violation. Ruling on an equitable basis, it therefore awards the applicant EUR 8,400 in respect of non‑pecuniary damage. B.", "Costs and expenses 144. The applicant did not claim any amount for costs and expenses incurred. C. Default interest 145. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaints under Article 3 concerning the conditions of detention and the medical treatment 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 detention; 3. Holds that there has been no violation of Article 3 of the Convention on account of lack of medical treatment in Baia Mare and Gherla Prisons; 4. Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,400 (eight thousand four hundred 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 on the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 17 July 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep Casadevall Registrar President" ]

[ "FIFTH SECTION CASE OF SABEVA v. BULGARIA (Application no. 44290/07) JUDGMENT STRASBOURG 10 June 2010 FINAL 10/09/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sabeva 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,Zdravka Kalaydjieva, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 11 May 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "44290/07) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Ms Evgeniya Ivanova Sabeva (“the applicant”), on 24 September 2007. 2. The applicant was represented by Ms S. Stefanova and Mr M. Ekimdzhiev, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms S. Atanasova, of the Ministry of Justice. 3.", "The applicant alleged, in particular, that her confinement in a psychiatric hospital was unlawful, that she had no opportunity to seek judicial review of that confinement, that she did not have an enforceable right to compensation in respect of these matters, and that the conditions of her detention were inhuman and degrading. 4. On 20 January 2009 the Court decided to give priority to the application under Rule 41 of its Rules. On the same date it decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3 of the Convention).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1962 and lives in Stara Zagora. 6. On 27 December 2005 the Stara Zagora District Court granted the applicant's petition for divorce from her husband, with whom she had two daughters.", "A. The proceedings for the applicant's confinement in a psychiatric hospital 7. On 14 July 2006 the applicant's former husband asked the Stara Zagora District Prosecutor's Office to apply for a court order for the applicant to be subjected to compulsory treatment. He asserted that her mental health had deteriorated sharply and that she was not taking care of their children. That Office carried out a inquiry, in the course of which it took statements from the applicant, her former husband, and their two daughters.", "The applicant said that, if necessary, she would voluntarily submit to a psychiatric examination. Her former husband alleged that she had been delusional and paranoiac for many years, and had been harassing both him and their two children. The two daughters, at that time aged eighteen and eleven, made similar statements. The social services drew up a report which said that the applicant had expressed her fears of persecution by the former communist secret services, which in their view showed that she had psychiatric problems and needed treatment. 8.", "On 8 September 2006 the Stara Zagora District Prosecutor's Office applied to the Stara Zagora District Court for an order for the applicant's compulsory treatment. It described the allegations of her former husband, and asserted that her mental condition had deteriorated and that there was a risk that she would cause harm to herself, her relatives or third parties, or would seriously endanger her health. 9. The court appointed counsel for the applicant and examined the case at a hearing held on 3 October 2006. It heard the applicant, who denied that she was suffering from any mental disorder, and a psychiatric expert, who was of the opinion that she did have such a disorder, but that the question as to whether it required compulsory treatment could be answered only after a more detailed examination.", "The court accordingly ordered a psychiatric expert report, asking the expert to determine, inter alia, whether the applicant was suffering from a mental disorder, whether she presented a risk for others or herself, and whether she could be effectively treated as an out‑patient. 10. The report, drawn up by Dr I.D., head of the in‑patient department of the Stara Zagora Regional Psychiatric Clinic, on the basis of the materials in the case file and an examination of the applicant, concluded that she had a “persistent mental disorder” and a “paranoid syndrome with persecution delusions”. It further stated that the risk of her committing a violent act or an offence was low, but could not be fully ruled out. It expressed the view that she was unlikely to be able to cope with everyday tasks and especially those relating to parenting.", "It finally stated that lack of treatment could have a negative impact on her health, and recommended that she be treated in a closed psychiatric establishment for at least two months. If she showed a more critical attitude towards her disorder she could also be treated as an out‑patient. 11. At a hearing held on 16 October 2006 the court heard Dr I.D., who maintained his conclusions and expressed the opinion that unless committed to a psychiatric hospital the applicant would not submit to treatment. The applicant replied that she was perfectly healthy and did not need treatment.", "The court admitted Dr I.D. 's report in evidence and heard the parties' arguments. In her closing statement the applicant mentioned that in 2006 her former husband had been convicted on the basis of information she had supplied to the prosecution authorities. In view of this new information, and noting that Dr I.D. 's report relied heavily on information furnished by the applicant's former husband, the court decided to order a second report, to be drawn up by three different experts.", "12. The report was prepared by three psychiatrists of the Stara Zagora Regional Psychiatric Clinic, on the basis of the materials in the case file and an examination of the applicant. It made, almost verbatim, the same findings as the initial report, but in its conclusion also stated that the applicant presented a risk to her relatives, society and her own health. 13. At a hearing held on 1 November 2006 the court heard a witness called by the applicant and the three experts, who maintained their findings and said that the applicant could not be treated as an out‑patient.", "In reply to a question by counsel for the applicant, one of the experts specified that Dr I.D. was not their direct superior. The court admitted the report in evidence and heard the parties' closing arguments. 14. In a judgment of 1 November 2006 the Stara Zagora District Court ordered that the applicant be subjected to compulsory treatment in a closed psychiatric hospital in Radnevo for a period of two months.", "It found that she was suffering from the disorder described in the two expert reports, both of which it fully credited, observing that they had been to a decisive extent based on an examination of the applicant by the experts. It further found that she posed a risk to herself and others and that, failing treatment, which could only be administered in a closed psychiatric establishment, her condition would worsen. It noted that the experts were unanimous that the applicant could not be effectively treated as an out‑patient. 15. The applicant appealed, arguing that the expert reports were flawed because they had chiefly been based on the assertions of her former husband and their daughter, who was living with him and was under his influence.", "She requested a fresh psychiatric report, to be drawn up by other experts. 16. On 24 November 2006 the Stara Zagora Regional Court rejected the applicant's request, saying that it was unclear on what grounds she was seeking a fresh expert report. 17. At a hearing held on 17 January 2007 the applicant expressed her misgivings about the second expert report, saying that the three psychiatrists were probably influenced by the conclusions of Dr I.D.", "18. On 31 January 2007 the Stara Zagora Regional Court upheld the order for the applicant's detention, fully agreeing with the lower court's reasoning. It found that the expert reports were objective and clear, and had been predominantly based on the examinations of the applicant and not on other materials. B. The applicant's stay in the hospital in Radnevo 19.", "On 6 February 2007 the applicant was informed that the order for her confinement had become final. As she feared that she might be forcibly detained, she went to the psychiatric hospital in Radnevo in order to learn when she needed to voluntarily attend and what items she needed to take with her. The doctor on duty insisted that the applicant stay at the hospital. Despite her protestations and her explanations that she needed to go back to her house to arrange for someone to take care of her dog during her absence, she was taken into custody. 20.", "The applicant alleged that, while in the hospital in Radnevo, she was kept in a ward reserved for the most difficult patients and deprived of any contacts with the outside world. She could leave the ward only during the three daily meals. In her submission, the physical and hygienic conditions in the ward were appalling, with faeces and urine on the floor, stained bedsheets, rendering peeling off the walls, windows which could not be closed properly but at the same time did not let in enough light because of the bars, and no locks on the internal doors. She had to block the door of her room with furniture to avoid being assaulted by aggressive patients. Her room was not lit at night, because there were light bulbs only in the corridors.", "Despite the cold temperatures outside, the heating was turned on only during the doctors' rounds. The food consisted of soup and bread, which were allegedly being thrown on the floor with the patients fighting for them. The applicant's requests to be transferred to another ward were allegedly turned down. However, towards the end of her stay she was allowed to take walks in the hospital's yard. She was treated with pills, which she took because she feared penalties, which were allegedly customary in the ward.", "21. According to information submitted by the Government, on admission to the hospital on 6 February 2007 the applicant was put in a closed ward. On 8 February 2007 her detention regime was changed to “normal”, and on 15 March 2007 she was placed under an “open‑door” regime. After 8 February 2007 she was involved in a physical rehabilitation programme, after 14 February 2007 in work therapy outside her ward, and after 22 February 2007 in art therapy at an art workshop. 22.", "The Government did not submit information about the conditions of the applicant's detention. They produced a letter from the Ministry of Health which said that the physical conditions in the ward where the applicant had been kept had been in line with the applicable hygienic and safety requirements, and that she had been treated with haloperidol and chlorprothixene. 23. The applicant submitted that during her stay in the hospital she had repeatedly enquired whether it would be possible for her to be discharged before the expiry of the two‑month period ordered by the court, and had received the reply that it would not be. 24.", "Less than a month after her admission the applicant was visited by a friend and learned that this friend, who had a key to her flat, had gone there and was taking care of her dog. 25. The applicant was discharged from the hospital on 30 March 2007. II. RELEVANT DOMESTIC LAW 26.", "The compulsory confinement and treatment of those suffering from mental disorders are governed by sections 155-65 of the 2005 Health Act. 27. Section 155, read in conjunction with section 146(1)(1) and (1)(2), makes such confinement subject to two pre‑conditions. First, the persons concerned must suffer from (i) serious malfunction of the psychological functions (psychosis or a serious personality disorder), (ii) enduring psychological damage due to a mental illness, (iii) moderate, serious or profound mental retardation, or (iv) vascular or senile dementia. Second, their condition must create a risk that they might commit a criminal offence which would put their relatives, third parties, society at large, or their own health in danger.", "Case‑law provided by the Government (реш. от 29 март 2006 г. по н. ч. д. № 3235/2006 г., СРС, НК, 103 състав; реш. от 26 април 2006 г. по н. ч. д. № 3863/2006 г., СРС, НК, 7 състав; реш.", "№ 187 от 20 юли 2007 г. по в. ч. н. д. № 317/2007 г., ОС‑Велико Търново) shows that in applying section 155 the Bulgarian courts take into account both the risk to others and to the persons concerned themselves. 28. The assessment of whether or not an individual has a mental disorder cannot be based on family, professional or other conflicts, or on information about such disorders in the past (section 147(2)). 29.", "The procedure for deciding whether or not to order compulsory confinement is set out in detail in sections 156‑63. Matters not specifically covered by these provisions are regulated by the 2005 Code of Criminal Procedure – section 165(1). It takes place before the district court with territorial jurisdiction. The proceedings start at the request of the public prosecutor or, in certain cases, the head of a psychiatric establishment. The request has to be sent to the individual concerned, who can comment on it in writing and adduce evidence.", "The court then has to hold a public hearing in the presence of the individual; the participation of a psychiatrist and counsel is mandatory. The court must hear the individual and the psychiatrist. If it then proposes to order confinement, it must order a psychiatric expert report. A special regulation (Наредба № 16 от 13 май 2005 г. за съдебно-психиатричните експертизи за задължително настаняване и лечение на лица с психични разстройства) sets out in detail the manner in which the report must be drawn up. The individual concerned must then be given an opportunity to comment on the report.", "The district court's order for his or her confinement can be appealed before the regional court. 30. Compulsory confinement is discontinued either after the expiry of its allowed term, or earlier, by decision of the competent district court (section 164(1)), at the request of the individual concerned, the public prosecutor, or the head of the establishment in which the detainee is being treated (section 164(3)). The court must in addition review the matter of its own motion every three months, and decide, on the basis of a psychiatric report drawn up by the hospital where the individual concerned is being treated, whether or not to extend the confinement (section 164(2)). This procedure must be attended by all the safeguards available in the initial confinement procedure (ibid.).", "III. REPORTS BY THE COMMITTEE FOR THE PREVENTION OF TORTURE AND THE BULGARIAN HELSINKI COMMITTEE 31. During its visit to Bulgaria between 10 and 21 September 2006, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) inspected two psychiatric hospitals, in Karlukovo and Byala, and one psychiatric dispensary with in‑patient wards, in Ruse. In its ensuing report (CPT/Inf (2008) 11) it noted, inter alia, that, with the exception of one ward, the material conditions in both hospitals were respectively “in an advanced state of dilapidation” and “in a poor state of repair” (paragraphs 131 and 134). The blankets and the bed linen in Karlukovo were fraying, and in Byala, while “[a]ll patients had been provided with new bed linen shortly before the visit [but] there was no spare bed linen in stock” (paragraphs 131 and 135).", "Also, the funding allocated for food was quite limited, amounting to 1.98 Bulgarian levs (BGN)[1] and BGN 1.39[2] per patient per day, which did not allow patients to be properly fed (paragraphs 132 and 136). It also observed that in both Karlukovo and Byala acute and chronic patients were not duly separated (paragraph 142). Concern was also expressed about the low number of staff present in the wards, especially at night, which increased the risk of inter‑patient violence (paragraphs 129 and 145). 32. In a report drawn up in December 2005 (“Inpatient Psychiatric Care and Human Rights in Bulgaria in 2005”) the Bulgarian Helsinki Committee described its findings relating to, among other things, various aspects of the conditions in a nineteen psychiatric hospitals, including that in Radnevo, which it visited between May and August 2005.", "33. The report contains the following findings in respect of the hospital in Radnevo. There was a serious problem with heating and hot water supply (p. 61 of the Bulgarian version of the report and p. 20 of the English version). In 2004 some of the toilets had been renovated (p. 59 of the Bulgarian version of the report). The hospital had a library which was open for one or two hours a day, and a small foodstuffs shop for the patients (p. 62 of the Bulgarian version of the report and p. 21 of the English version).", "It also had a sports room, an occupational therapy farm and a workshop (p. 63 of the Bulgarian version of the report and p. 21 of the English version), and ran a program for accompanying therapy and social rehabilitation (p. 82 of the Bulgarian version of the report). The hospital did not have a dedicated space for drying patients' clothes, with the result that patients had to use their beds or the window bars as washing lines, with water flowing directly on the floor (p. 109 of the Bulgarian version of the report). No data was available on the funding allocated for food in 2004‑05, but in 1998 and 2001 it had been BGN 1.08[3] (p. 97 of the Bulgarian version of the report). However, the hospital was also using production from its own farm (p. 97 of the Bulgarian version of the report). During the visit, some patients had expressed the view that, although food was insufficient, they were not entitled to complain because they would not have had even that amount of food at their homes (p. 98 of the Bulgarian version of the report).", "34. In its description of the conditions of one of the wards of the hospital in Karlukovo, the report mentioned, at p. 58 of the Bulgarian version and by reference to an earlier CPT report (CPT/Inf (2004) 21), that there was crumbling plaster, peeling paint, and a pervasive smell of urine in several patients' rooms despite the fact that windows and doors were left wide open. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 35. The applicant complained about the conditions of her detention in the hospital in Radnevo.", "She relied on Article 3 of the Convention, which provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties' submissions 36. In their observations the Government stated that they had informed the competent authorities about the applicant's complaint. Those authorities had undertaken to carry out an inquiry into the matter, and the results of that inquiry would be provided to the Court. Later the Government transmitted to the Court a letter from the Ministry of Health, which said that the material conditions in the ward where the applicant had been kept were in line with the applicable hygiene and safety requirements.", "37. The applicant reiterated her allegations set out in paragraph 20 above and argued that her detention in such conditions amounted to inhuman and degrading treatment. She additionally relied on several reports, published by the Bulgarian Helsinki Committee and Amnesty International in 2001, 2002, 2005 and 2007, and describing the conditions in various psychiatric hospitals in the country (but not in the one in Radnevo). According to those reports, the material conditions and the standard of care in those hospitals were often unacceptable. B. Admissibility 38.", "The Court considers 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. C. The Court's assessment 39. According to the Court's case‑law, allegations of ill‑treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see, as a recent authority, Gavazov v. Bulgaria, no.", "54659/00, § 93, 6 March 2008). However, Convention proceedings do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation), as in certain instances the respondent Government alone have access to information capable of corroborating or refuting allegations. A failure on their part to submit such information without a satisfactory explanation may therefore give rise to the drawing of inferences as to the well‑foundedness of the applicant's allegations (see Timurtaş v. Turkey, no. 23531/94, §§ 66 and 70, ECHR 2000-VI; Taniş and Others v. Turkey, no. 65899/01, § 163, ECHR 2005‑VIII; Fedotov v. Russia, no.", "5140/02, § 60, 25 October 2005; Khudoyorov v. Russia, no. 6847/02, § 113, ECHR 2005‑X (extracts); Yordanov v. Bulgaria, no. 56856/00, § 83, 10 August 2006; Staykov v. Bulgaria, no. 49438/99, § 74, 12 October 2006; Kostadinov v. Bulgaria, no. 55712/00, § 48, 7 February 2008; and Gavazov, cited above, § 95).", "Indeed, Rule 44C § 1 of the Rules of Court, inserted on 13 December 2004, expressly provides that “[w]here a party fails to adduce evidence or provide information requested by the Court ... the Court may draw such inferences as it deems appropriate”. 40. It should however be added that the specificity of the Court's task – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof. In the proceedings before it, there are no procedural barriers to the admissibility of evidence or pre‑determined formulae for its assessment. The Court 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.", "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. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005‑VII, with further references). 41. In the instant case, save for her own assertions – which were apparently made for the first time in the proceedings before the Court and were not brought to the attention of any domestic authority –, the applicant did not provide any concrete evidence relating to the conditions of her detention.", "She did not submit statements by co‑detainees (contrast Khudoyorov, §§ 71 and 113, and Gavazov, §§ 59 and 94, both cited above), or by other persons who might possess relevant information, such as the friend who visited her less than a month after her admission in the hospital (see paragraph 24 above). Nor did she submit any medical evidence showing the impact of the conditions in which she was kept on her physical or psychological well‑being (compare Georgiev v. Bulgaria, no. 47823/99, § 64, 15 December 2005 and contrast Staykov, cited above, § 41). In the specific circumstances of the case, the Court must treat the applicant's assertions with certain caution, for two reasons. Firstly, it may sometimes be unreasonable to expect mentally disturbed persons to give a detailed or coherent description of what they have experienced during their detention (see Aerts v. Belgium, 30 July 1998, § 66, Reports of Judgments and Decisions 1998‑V).", "Secondly, the applicant might have a tendency to exaggerate the inadequacy of the conditions in the hospital partly because she had a negative attitude towards an establishment in which she considered she should have never been detained (see B. v. the United Kingdom, no. 6870/75, Commission's report of 7 October 1981, Decisions and Reports (DR) 32, p. 29, §§ 174 and 175). The Court is unable to find any definite corroboration of her allegations in the CPT's report, which relates to other establishments and not to the hospital in Radnevo (see paragraph 31 above, and contrast Iovchev v. Bulgaria, no. 41211/98, § 130 in limine, 2 February 2006, and Todor Todorov v. Bulgaria, no. 50765/99, § 47, 5 April 2007), and makes no general observations about the conditions in psychiatric hospitals in Bulgaria (contrast I.I.", "v. Bulgaria, no. 44082/98, §§ 37 and 71, 9 June 2005, as well as Iovchev, 130, and Staykov, §§ 60 and 79, both cited above). By contrast, the report of the Bulgarian Helsinki Committee, which, while relating to a period which pre‑dates the applicant's stay in Radnevo by almost two years, did make specific findings in respect of that hospital (see paragraph 32 above). It identified problems with heating and hot water, with the arrangements made for drying patients' clothes, and, to a certain extent, with the quality and quantity of food (see paragraph 33 above). However, the Court is not persuaded that those matters – which are in stark contrast with the findings that the report makes in respect of one of the wards of the hospital in Karlukovo (see paragraph 34 above) and fall far short of the very serious allegations made by the applicant (see paragraph 20 above) – were sufficient for the conditions of her detention to be described as inhuman and degrading.", "42. In view of the foregoing, and despite the Government's failure to provide a detailed account of the conditions of the applicant's detention (see paragraphs 22 and 36 above), the Court is not satisfied “beyond reasonable doubt” that she suffered treatment that could be classified as inhuman or degrading. 43. There has therefore been no violation of Article 3 of the Convention. II.", "ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 44. The applicant alleged that her confinement to a psychiatric hospital was in breach of Article 5 § 1 of the Convention because it did not comply with the requirements of its sub‑paragraph (e). 45. She also alleged that she had no opportunity to seek judicial review of her confinement as required by Article 5 § 4 of the Convention. 46.", "Lastly, she complained under Article 5 § 5 of the Convention that she did not have an enforceable right to compensation in respect of the alleged breaches of Article 5 §§ 1 and 4. 47. Article 5 of the Convention, in so far as relevant, reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (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; ... 4.", "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. The parties' submissions 48. The Government conceded that the applicant had been deprived of her liberty, but asserted that her detention had been fully compliant with the requirements of Article 5 § 1 (e). In particular, she was reliably shown to be suffering from a mental disorder.", "The national courts ordered two expert reports, which were competently made and unanimous on this point. The courts moreover saw the applicant in person. There was no need for them to require the experts to carry out additional tests because the diagnostic methods of psychiatry were outside their competence. The applicant's misgivings as to the objectivity of the expert reports were groundless. Her disorder was later confirmed upon her admission to hospital.", "The experts also found that the applicant's disorder was of a degree and kind warranting confinement, because she could not be effectively treated as an out‑patient, whereas lack of treatment would lead to a worsening of her condition. Lastly, the applicant's assertion that section 155 of the 2005 Health Act did not allow the detention of persons who posed a risk only to themselves found no support in the national courts' case‑law. 49. The Government further submitted that there had been no breaches of paragraphs 4 and 5 of Article 5. They argued that the risk of improper confinement was minimal, and that in the rare cases where a mistake occurred those concerned could bring a tort claim.", "50. The applicant submitted that it had not been reliably shown that she was suffering from a mental disorder. The only information supporting such a conclusion came from the allegations of her former husband. The first expert asked by the court to report on her mental condition did not examine her properly, did not consult with other specialists, and based his findings predominantly on the assertions of her former husband and their children, who harboured an interest in confining her to a psychiatric establishment. Indeed, this prompted the district court to order a second expert report.", "However, the experts who drew it up were directly subordinate to the expert who had prepared the initial report, and their conclusions unsurprisingly matched his. On appeal counsel for the applicant requested a fresh expert report, but his request was turned down without any reasoning. 51. The applicant further argued that her alleged disorder was not of a kind or degree to justify her detention. The experts concluded that she was unlikely to commit an offence and was a risk solely to her own welfare, without even specifying in what way.", "The courts found that she was such a risk, but section 155 of the 2005 Health Act did not allow detention on such grounds. It contained an exhaustive enumeration of hypotheses in which individuals could be compulsorily confined, and those concerned solely situations where they would endanger another or commit an offence. 52. The applicant also submitted that she did not have a realistic opportunity of applying to a court to obtain a ruling on the lawfulness of her detention, for three reasons. First, since release was conditional upon the grounds for continued confinement ceasing to exist, she could not herself, without expert assistance, assess whether a request for release would stand any chances of success.", "Second, while in the hospital she could not consult with a lawyer and did not have pen and paper to draft a request for release. Third, the law did not lay down any procedure or time‑limits for transmitting such a request from the hospital to the court. She had asked the doctors whether it would be possible for her to be released and had received a negative answer. There was therefore no assurance that any request submitted by her would be dealt with. Moreover, the correspondence of those confined in psychiatric establishments was being routinely monitored.", "53. Lastly, the applicant argued that she could not obtain compensation in respect of her detention. There were no examples of persons receiving compensation in such circumstances. The general rules of tort were not applicable, because the decision to confine her was taken by a court, whereas court liability could be invoked only under section 2 of the 1988 State Responsibility for Damage Act, which did not cover her case. B. Admissibility 54.", "The Court considers that this part of the application 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. C. The Court's assessment 1. Article 5 § 1 55. It was common ground between the parties that the applicant was deprived of her liberty within the meaning of Article 5 § 1 and that her detention falls to be examined under sub‑paragraph (e) of that provision.", "The Court sees no reason to hold otherwise. 56. An individual cannot be considered to be of “unsound mind” and deprived of his liberty under Article 5 § 1 (e) unless the following three conditions are satisfied: he or she must be reliably shown to be of unsound mind, that is to say the existence of a true mental disorder must be established before a competent authority on the basis of objective medical expertise; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder (see, among other authorities, X v. the United Kingdom, 5 November 1981, § 40, Series A no. 46). With regard to the second of those conditions, the Court observes that the persons mentioned in Article 5 § 1 (e) may be deprived of their liberty in order to, inter alia, be given medical treatment, that is, not only because they are a danger to the public but also because their own interests may necessitate their detention (see Guzzardi v. Italy, 6 November 1980, § 98 in fine, Series A no.", "39; Witold Litwa v. Poland, no. 26629/95, § 60, ECHR 2000‑III; Koniarska v. the United Kingdom (dec.), no. 33670/96, 12 October 2000; and Gorshkov v. Ukraine, no. 67531/01, § 37, 8 November 2005). That said, detention is such a serious measure that it is only justified where other, less severe, measures have been considered and found to be insufficient to safeguard the individual or the public interest (see Varbanov v. Bulgaria, no.", "31365/96, § 46, ECHR 2000‑X). However, while the Court undoubtedly has jurisdiction to verify the fulfilment of those conditions, the logic of the system of safeguard established by the Convention places limits on the scope of this control. Since the national authorities are better placed to evaluate the evidence adduced before them, they are to be recognised as having a certain discretion in the matter and the Court's task is limited to reviewing under the Convention the decisions they have taken (see X v. the United Kingdom, cited above, § 43, and Wassink v. the Netherlands, 27 September 1990, § 25, Series A no. 185‑A). 57.", "The Court additionally observes that the expressions “in accordance with a procedure prescribed by law” and “lawful” used in Article 5 § 1 (e) require the impugned measure to have a basis in domestic law and that this law should be accessible to the persons concerned and foreseeable as to its effects (see Varbanov, cited above, § 51). However, while the Court is competent to satisfy itself as to compliance with this law, the scope of its task in this connection is also subject to limits inherent in the logic of the European system of protection, because it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see Bozano v. France, 18 December 1986, § 58, Series A no. 111). 58. In the instant case, the first question is whether the applicant was reliably shown to be suffering from a mental disorder.", "On this point, the Court observes that the court examining the proposal for her compulsory confinement first heard from a psychiatric expert, who considered that she was suffering from such a disorder, but that further expert assessment was necessary for a definite conclusion. The court then ordered two medical expert reports, both of which concluded that the applicant was suffering from a mental disorder (see paragraphs 9‑13 above). Those reports were criticised by the applicant as predominantly based on the allegations of her former husband and their daughter. However, the Court notes that before drawing up each of the two reports the experts examined the applicant in person (see paragraphs 10 and 12 above). Both levels of court specifically found that these examinations had been the decisive factor in the experts' assessment (see paragraphs 14 and 18 above).", "It is true that in the light of the fresh information supplied by the applicant on 16 October 2006 the first‑instance court felt that it could not unconditionally rely on the initial report and needed to obtain the opinion of other experts (see paragraph 11 above). However, these experts arrived at the same conclusions as the first one, Dr I.D. While the applicant tried to undermine their credibility, alleging that they were his subordinates, the Court observes that in reply to a question from her counsel those experts made it clear that Dr I.D. was not their direct superior (see paragraph 13 above). Moreover, it cannot be overlooked that the court eventually came to rely on both reports (see paragraph 14 above).", "In any event, the Court sees no reason to doubt that the experts were fully qualified and had grounded their conclusions on their best professional judgment, informed by the entirety of the relevant information. In view of these considerations, and noting that the national courts were in a far better position to assess the probative value of the expert reports and, more generally, to determine the factual issue as to whether or not the applicant was suffering from a mental disorder, the Court finds no grounds to interfere with their assessment on this point, or to impugn the appellate court's refusal to order a fresh expert report (see paragraph 16 above). 59. The second issue is whether the applicant's disorder was of a kind or degree warranting confinement. Here, the Court observes that while the experts found that she was not aggressive or likely to commit an offence, they considered that, in view of the nature of her disorder, she would not submit to treatment voluntarily, whereas, failing treatment, her situation was likely to worsen (see paragraphs 10 and 12 above).", "The Court is therefore satisfied that the applicant's disorder was of a degree and kind warranting confinement. In as much as the she expressed doubts about the reliability of the experts' and courts' findings on this point, it refers to its reasoning above. 60. The Court also notes that the experts were specifically asked to consider the possibility of treating the applicant as an out‑patient, and eventually ruled it out (see paragraphs 9, 10, 11 and 13 above), prompting the courts to opt for compulsory confinement (see paragraphs 14 and 18 above). It is thus satisfied that, as required under its case‑law, less severe measures than detention were considered and found to be insufficient.", "61. Lastly, the Court observes that the interpretation of section 155 of the 2005 Health Act advanced by the applicant – that it does not allow the compulsory confinement of individuals who present a risk only to themselves – seems to find support neither in the Bulgarian courts' case‑law nor in the courts' decisions in the present case (see paragraph 27 above). As already noted, it is primarily for the national courts' task to construe and apply domestic law, and to dispel any interpretational doubts. Finding no arbitrariness in the interpretation adopted by them in the present case, the Court is satisfied that the applicant's deprivation of liberty was lawful within the meaning of Article 5 § 1 of the Convention. 62.", "There has therefore been no violation of that provision. 2. Article 5 § 4 63. While persons deprived of their liberty by virtue of a decision taken by an administrative body are entitled to have the lawfulness of this decision reviewed by a court, the same does not apply when the decision is made by a court at the close of judicial proceedings. In those cases, the review required by Article 5 § 4 is incorporated in the decision (see, among other authorities, Luberti v. Italy, 23 February 1984, § 31, Series A no.", "75). However, provision should always be made for subsequent review to be available at reasonable intervals, in as much as the reasons initially warranting confinement may cease to exist (ibid.). Thus, persons of unsound mind detained for an indefinite or lengthy period are entitled, where there is no automatic periodic review of a judicial character, to take proceedings at reasonable intervals before a court to put in issue the lawfulness – within the meaning of the Convention – of their detention, whether it was ordered by a court or by some other authority (see X v. the United Kingdom, cited above, § 52 in fine, and, more recently, Shtukaturov v. Russia, no. 44009/05, § 121, 27 March 2008). 64.", "In the instant case, the applicant's committal to a psychiatric hospital was decided by a court at the close of judicial proceedings attended by full procedural safeguards (see paragraphs 8‑18 and 29 above). All that was required under Article 5 § 4 in these circumstances was for her to have at her disposal the opportunity of subsequent review of the continued validity of her detention at reasonable intervals. The length of the applicant's confinement is thus of some importance, because, in the context of compulsory confinement of persons of unsound mind, the Convention organs, without specifying exactly what amount of time can be considered a “reasonable interval”, have accepted periods of up to six and nine months and even a year (see Megyeri v. Germany, 12 May 1992, § 26, Series A no. 237‑A; Herczegfalvy v. Austria, 24 September 1992, § 77, Series A no. 244; X v. Belgium, no.", "6692/74, Commission decision of 13 March 1975, DR 2, p. 109; and Turnbridge v. the United Kingdom, no. 16397/90, Commission decision of 17 May 1990, unreported). By contrast, the length of the applicant's confinement was only two months. It could not be extended without a further judicial order, and if extended for more than three months it would have periodically been subject to automatic judicial review attended by the full panoply of safeguards required under Article 5 § 4 (see paragraph 30 above and contrast Gorshkov, cited above, §§ 42 and 43). The additional opportunity for the applicant herself to bring a challenge to the continued validity of her detention was therefore of limited importance.", "65. The Court does not therefore consider that, in the circumstances, the alleged impossibility for the applicant to bring proceedings challenging the continued lawfulness of her confinement raises an issue under Article 5 § 4. However, it additionally observes that there is no indication that she tried to avail herself of that opportunity and was rebuffed (see paragraph 23 above). To this extent her grievances concerning the alleged shortcomings of this procedure appear speculative (see, mutatis mutandis, Belchev v. Bulgaria (dec.), no. 39270/98, 6 February 2003, and Pekov v. Bulgaria, no.", "50358/99, § 91, 30 March 2006). 66. There has therefore been no violation of Article 5 § 4 of the Convention. 3. Article 5 § 5 67.", "Article 5 § 5 guarantees an enforceable right to compensation only to those who have been the victims of arrest or detention in contravention of the preceding provisions of Article 5 (see Benham v. the United Kingdom, 10 June 1996, § 50, Reports 1996‑III). In view of its findings that there was no violation of Article 5 § 1 or Article 5 § 4, the Court concludes that Article 5 § 5 is not applicable. 68. There has therefore been no violation of this provision. III.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 69. The applicant complained under Article 8 of the Convention that upon her admission to the hospital she had not been allowed to make arrangements for someone to take care of her dog, which represented an important element of her private life. 70. She also complained under Article 13 of the Convention that she did not have at her disposal effective remedies for her complaint under “Article 6 § 1”. 71.", "In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 72. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. FOR THESE REASONS, THE COURT 1. Declares unanimously the complaints concerning the conditions of the applicant's detention, the lawfulness of this detention, the availability of judicial review of the detention, and the alleged lack of an enforceable right to compensation admissible and the remainder of the application inadmissible; 2.", "Holds by five votes to two that there has been no violation of Article 3 of the Convention; 3. Holds unanimously that there has been no violation of Article 5 § 1 of the Convention; 4. Holds unanimously that there has been no violation of Article 5 § 4 of the Convention; 5. Holds unanimously that there has been no violation of Article 5 § 5 of the Convention. Done in English, and notified in writing on 10 June 2010, 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 separate opinion of Judges Lorenzen and Villiger is annexed to this judgment. P.L.C.W. PARTLY DISSENTING OPINION OF JUDGES LORENZEN AND VILLIGER 1. We regret that we cannot follow the views of the majority in respect of Article 3 of the Convention. 2.", "In the instant case, the only specific account of the conditions in which the applicant was detained was the account furnished by her (see paragraph 20 of the judgment). However, in view of her vulnerable situation, she cannot be criticised for not providing documentary evidence – such as, for example, photographs – to support it. Similarly, given the nature of her allegations, it could not be expected from her to back them with medical certificates, since the conditions complained of were not such as to necessarily leave physical or mental scars detectable on medical examination. The applicant's allegations do not find direct corroboration in the CPT's report, since it refers to other establishments and does not make any general observations about the conditions in psychiatric hospitals in Bulgaria (see paragraph 31 of the judgment). However, the findings in that report can at least be used to establish, albeit indirectly, that the applicant's allegations cannot be discarded as prima facie untenable.", "3. The Government, on the other hand, had ample opportunity to investigate the conditions in which the applicant was detained, by, for instance, conducting an on‑site inspection and questioning the hospital staff or other witnesses (see, mutatis mutandis, Fedotov v. Russia, no. 5140/02, § 61, 25 October 2005). However, despite a specific question by the Court, they only submitted a letter by the Ministry of Health, which contained merely the general statement that the conditions in the ward where the applicant was kept were in line with the applicable hygiene and safety requirements (see paragraphs 22 and 35 of the judgment). Regrettably, they did not offer any explanation for their failure to submit further information in response to the Court's query.", "We therefore consider that the Court could have legitimately drawn inferences from their conduct (see Alver v. Estonia, no. 64812/01, § 52, 8 November 2005), and could have examined the matter solely on the basis of the applicant's submissions (see Kostadinov v. Bulgaria, no. 55712/00, § 50, 7 February 2008, and Gavazov v. Bulgaria, no. 54659/00, § 97, 6 March 2008). 4.", "To reach its definitive findings, the Court did not need to rely on the CPT's report, which, as noted in the judgment, relates to other establishments (contrast Iovchev v. Bulgaria, no. 41211/98, § 130 in limine, 2 February 2006, and Todor Todorov v. Bulgaria, no. 50765/99, § 47, 5 April 2007) and makes no general observations about the conditions in psychiatric hospitals in Bulgaria (contrast I.I. v. Bulgaria, no. 44082/98, §§ 37 and 71, 9 June 2005; Iovchev, cited above, 130; and Staykov v. Bulgaria, no.", "49438/99, §§ 60 and 79, 12 October 2006). The report of the Bulgarian Helsinki Committee, while containing specific findings in respect of the hospital in Radnevo, relates to a period which pre‑dates the applicant's stay there by almost two years (see paragraph 32 of the judgment) and is thus also of limited evidentiary value. Nonetheless, it seems to confirm at least some of her allegations (see paragraph 33 of the judgment). 5. The relevant principles for assessing conditions of detention under Article 3 have recently been summarised in paragraphs 52 to 57 of the Court's judgment in the case of Kostadinov (cited above).", "6. In the present case, the applicant was confined in the hospital in Radnevo for a period of fifty‑three days (see paragraphs 19 and 25 of the judgment). During the last fifteen days of her stay there she could leave the ward where she was being kept, and even before that she was apparently not kept there all the time, as she was involved in a physical rehabilitation programme, as well as in work and art therapies (see paragraphs 20 and 21 of the judgment). 7. We consider that the sanitary conditions in the ward where the applicant was kept, as described by her, fell foul of basic hygienic norms.", "We additionally observe that the ward was not properly lit or heated, and that the food provided to the applicant was scarce and of poor quality (see paragraph 20 of the judgment). For us, such failures in respect of vulnerable individuals who are kept in custody primarily for the purpose of receiving appropriate medical treatment are intolerable. 8. We also note the applicant's assertions concerning the inadequate arrangements to prevent inter‑patient violence (see paragraph 20 of the judgment). We consider that it is unacceptable for a psychiatric hospital to make it possible, though lack of appropriate arrangements and supervision, for mentally disturbed patients to subject each other, unchecked, to acts of violence.", "9. Those elements, taken together, lead us to conclude that the distress and hardship endured by the applicant during her stay in the hospital amounted to degrading treatment, in breach of Article 3 of the Convention. [1]. Equivalent to 1.01 euros (EUR) [2]. Equivalent to EUR 0.71 [3].", "Equivalent to EUR 0.55" ]

[ "FIRST SECTION CASE OF RAGONE v. ITALY (Application no. 67412/01) JUDGMENT STRASBOURG 2 October 2003 FINAL 02/01/2004 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ragone v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrP.", "Lorenzen,MrsF. Tulkens,MrsN. Vajić,MrE. Levits,MrA. Kovler,MrV.", "Zagrebelsky, judges, and Mr S. Nielsen, Deputy Section Registrar, Having deliberated in private on 11 September 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 67412/01) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mrs Anna Maria Ragone (“the applicant”), on 15 February 2001. 2. The applicant was represented by Mr R. Fiorillo, a lawyer practising in Salerno.", "The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza and by their successive co-agents, respectively Mr V. Esposito and Mr F. Crisafulli. 3. On 10 October 2002 the Court declared the application admissible. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1968 and lives in Salerno. 5. M.G. was the owner of a flat in Salerno, which he had let to U.A. 6.", "In a registered letter of 23 May 1988, the owner informed the tenant that he intended to terminate the lease on expiry of the term on 31 December 1991 and asked him to vacate the premises by that date. 7. In a writ served on the tenant on 10 December 1988, the owner reiterated his intention to terminate the lease and summoned the tenant to appear before the Salerno Magistrate. 8. By a decision of 3 February 1989, which was made enforceable on the same day, the Salerno Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 May 1993.", "9. On 21 December 1990, the applicant became the owner of the flat and pursued the enforcement proceedings. 10. On 17 April 1993, the applicant served notice on the tenant requiring him to vacate the premises. 11.", "On the same day, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself. 12. On 21 May 1993, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 30 June 1993. 13. On 30 June 1993, the bailiff made one attempt to recover possession, which proved unsuccessful, as the applicant was not granted the assistance of the police in enforcing the order for possession.", "14. Thereafter, the applicant decided to suspend the bailiff's attempts in order to avoid any additional costs and because she would not be granted the assistance of the police. 15. In the meanwhile, the tenant died and on 11 October 1999, his wife asked the Salerno Magistrate to suspend the enforcement proceedings. 16.", "The Salerno Magistrate suspended the enforcement proceedings until 13 May 2000. 17. The tenant's wife informed the applicant that she would not leave the premises. 18. On 11 October 2000, the applicant served notice on the tenant's wife informing her that the order for possession would be enforced by a bailiff on 6 November 2000.", "19. On 6 November 2000, the bailiff made one attempt to recover possession, which proved unsuccessful, but the tenant's son informed the bailiff that he and his mother would leave the premises on 29 November 2000. 20. On 27 November 2000, the applicant recovered possession of the flat. II.", "RELEVANT DOMESTIC LAW 21. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. A.", "The system of control of the rents 22. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows. 23. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation.", "24. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price.", "25. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents. B. Obligations of the tenant in the case of late restitution 26.", "The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides: “The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages.” 27. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat.", "28. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary.", "While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages. 29. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 AND OF ARTICLE 6 § 1 OF THE CONVENTION 30. The applicant complained of her prolonged inability to recover possession of her flat, owing to the lack of police assistance. She alleged a violation of her right of property, as guaranteed by Article 1 of Protocol No.", "1 to the Convention, which provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 31. 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...” 32. The Court has previously examined a number of cases raising issues similar to those in the present case and found a violation of Article 1 of Protocol No.", "1 and Article 6 § 1 of the Convention (see Immobiliare Saffi, cited above, §§ 46-75; Lunari v. Italy, no. 21463/93, §§ 34-46, 11 January 2001; Palumbo v. Italy, no. 15919/89, §§ 33-48, 30 November 2000). 33. The Court has examined the present case and finds that there are no facts or arguments from the Government which would lead to any different conclusion in this instance.", "It notes that the applicant had to wait approximately seven years and five months after the first attempt of the bailiff before being able to repossess the flat. Consequently, there has been a violation of Article 1 of Protocol No. 1 and of Article 6 § 1 of the Convention in the present case. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 34.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Non-pecuniary damage 35. The applicant claimed reimbursement for the non-pecuniary damage. She requested a sum not lower than the pecuniary damage she would have suffered if she had wanted to let the flat at market value price, which she put at EUR 29,825.39, instead of living herself in the flat. 36. The Government contested the claim.", "37. The Court considers that the applicant must have sustained some non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 7,000 under this head. B. Costs and expenses 38.", "The applicant claimed reimbursement of her legal costs and expenses as follows: - EUR 1,151.26 for the costs of the enforcement proceedings; - EUR 4,704.09 for the costs and expenses before the Court. 39. The Government contested the claims. 40. On the basis of the information in its possession and the Court's case-law, the Court considers it reasonable to award the applicant the sum of EUR 1,000 for the costs and expenses incurred in the domestic proceedings and EUR 2,000 for the proceedings before the Court.", "41. The Court awards a total sum of EUR 3,000 for legal costs and expenses. C. Default interest 42. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts: (i) EUR 7,000 (seven thousand euros) for non-pecuniary damage; (ii) EUR 3,000 (three thousand euros) for legal costs and expenses; (iii) any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction.", "Done in English, and notified in writing on 2 October 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos Rozakis Deputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF ULYANOV AND OTHERS v. RUSSIA (Applications nos. 22486/05, 40959/05, 18279/07, 61921/08, 3960/09, 7716/09, 5608/09, 10192/09, 13746/09, 28951/09 and 52614/09) JUDGMENT STRASBOURG 9 February 2016 This judgment is final but it may be subject to editorial revision. In the case of Ulyanov and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helena Jäderblom, President,Dmitry Dedov,Branko Lubarda, judges,and Mariaelena Tsirli, Deputy Section Registrar, Having deliberated in private on 19 January 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in eleven applications (nos. 22486/05, 40959/05, 18279/07, 61921/08, 3960/09, 7716/09, 5608/09, 10192/09, 13746/09, 28951/09 and 52614/09) 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 eleven Russian nationals.", "The application numbers, the dates of lodging the applications and the dates of their communication, the applicants’ names, their personal details and the names of their legal representatives, as well as the information concerning the relevant domestic judgments, are set out in the Appendix. 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3. The applicants each alleged that they had been convicted of drug offences following entrapment by the police in violation of Article 6 of the Convention.", "Mr Dimitriyev and Mr Dymov (applications nos. 7716/09 and 28951/09) also complained under Article 6 §§ 1 and 3 (d) of the Convention that they had not been able to examine witnesses against them. 4. On the dates indicated in the Appendix the applications were communicated to the Government and were assigned to a Committee of three judges. 5.", "On 2 November 2008 Mr Ulyanov (application no. 22486/05) died. In a letter of 3 September 2009 the applicant’s mother, Ms Ulyanova, expressed her wish to pursue the application on her late son’s behalf. 6. On 21 May 2011 Mr Kodola (application no.", "3960/09) died. In a letter of 14 July 2012 the applicant’s mother, Ms Kodola, expressed her wish to pursue the application on her late son’s behalf. 7. In letters of 5 November 2009 and 14 August 2012 respectively the Government disagreed, stating that the proceedings before the Court in respect of Mr Ulyanov and Mr Kodola should be discontinued because of their death, and that their relatives did not have a sufficient legitimate interest to justify further examination of the cases. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 8. The applicants were each targeted in undercover operations conducted by the police in the form of a test purchase of drugs under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). Those operations led to their criminal convictions for drug dealing. 9.", "The applicants disagreed with their convictions and argued that the police had incited them to commit drug-related offences. II. RELEVANT DOMESTIC LAW 10. The relevant domestic law governing the use of undercover operations at the material time is summed up in the Court’s judgments in the cases of Lagutin and Others v. Russia (nos. 6228/09, 19123/09, 19678/07, 52340/08 and 7451/09, 24 April 2014); Veselov and Others v. Russia (nos.", "23200/10, 24009/07 and 556/10, 2 October 2012); Bannikova v. Russia (no. 18757/06, 14 October 2010); Vanyan v. Russia (no. 53203/99, 15 December 2005); and Khudobin v. Russia (no. 59696/00, ECHR 2006‑XII (extracts)). THE LAW I. LOCUS STANDI OF MR ULYANOV AND MR KODOLA (applications nos.", "22486/05 and 3960/09) 11. The Court takes note of the deaths of Mr Ulyanov and Mr Kodola and of the wish of their heirs to pursue the proceedings they had initiated. 12. The Court reiterates that where an applicant dies during the examination of a case, his or her heirs may in principle pursue the application on his or her behalf (see Ječius v. Lithuania, no. 34578/97, § 41, ECHR 2000-IX).", "It further reiterates that in a number of cases in which applicants have died in the course of the proceedings, it has taken into account the statements of their heirs or close family members expressing their wish to pursue the proceedings before the Court (see Latif Fuat Öztürk v. Turkey, no. 54673/00, § 27, 2 February 2006, and Hanbayat v. Turkey, no. 18378/02, § 20, 17 July 2007). In the present case, the Court considers that apart from explicitly expressing their wish to do so, the applicants’ heirs have a sufficient legitimate interest in pursuing the proceedings on their behalf, given that the complaints brought by Mr Ulyanov and Mr Kodola concern the defects identified previously by the Court in Russian law and practice on undercover operations (see Veselov and Others, §§126‑27, cited above) and as such, they transcend the individual interest of the applicants’ cases. 13.", "The Court therefore considers that Mr Ulyanov’s and Mr Kodola’s heirs have standing to continue the present proceedings in the applicants’ stead. Accordingly, it rejects the Government’s objection that the proceedings should be discontinued. II. JOINDER OF THE APPLICATIONS 14. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given that they concern similar facts and raise identical issues under the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 15. The applicants complained that they had been unfairly convicted of drug offences which they had been incited by the police to commit and that their plea of entrapment had not been properly examined in the domestic proceedings, in violation of Article 6 of the Convention, which reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 1. Application by Mr Ivantsov (application no. 10192/09) (a) Submissions by the parties 16.", "The Government submitted that Mr Ivantsov could no longer claim to be a victim of the alleged violation. In particular, the Government argued that the domestic courts had reopened the criminal proceedings in his case and reduced the sentence imposed on him for the first incident involving the sale of drugs. The domestic courts had also quashed the applicant’s conviction in relation to the two remaining incidents, which had taken place after the first test purchase. 17. Mr Ivantsov acknowledged that the domestic courts had re-examined his case in his favour in the new proceedings.", "However, he argued that the domestic courts had not properly addressed his pleas of entrapment and as a result, the conviction for the first drug sale had remained in force. Therefore, he had not lost his status as a victim of the alleged violation. (b) The Court’s assessment 18. The Court notes that it has already considered identical issues of the loss of victim status in recent Russian cases concerning entrapment. The Court held that the applicants, who had been convicted of drug dealing and whose criminal cases were later re-examined by the domestic courts, had not ceased to be victims of the alleged violation of the Convention, owing to the fact that the re-examination of their criminal cases had not been effective and in conformity with the requirements of Article 6 of the Convention and the case-law of the Court (see Lebedev and Others v. Russia, nos.", "2500/07, 43089/07, 48809/07, 52271/07 and 54706/07, §§ 12-16, 30 April 2015, and Yeremtsov and Others v. Russia, nos. 20696/06, 22504/06, 41167/06, 6193/07 and 18589/07, §§ 17-21, 27 November 2014). 19. In particular, in the case of Yeremtsov and Others (cited above) the Court found that during the re-examination of the applicants’ cases, the domestic courts had simply reiterated the reasoning of the first-instance court in relation to the first incident and had held that only the remaining incidents involving the sale of drugs had amounted to entrapment because they had not pursued a legitimate goal, such as the detection and prevention of crime. The domestic courts had not examined the main issue raised in the applicants’ complaints, namely, that the police had not had a valid reason to mount any of the undercover operations and that they had wrongfully incited the applicants to sell drugs.", "They had not requested any evidence concerning the substance of the incriminating information from the police operation and had simply accepted the uncorroborated statements of police officers to that effect (ibid., §§ 18‑19). 20. Turning to the facts of Mr Ivantsov’s application, the Court observes that, similarly to the applicants in the cases of Lebedev and Others and Yeremtsov and Others (both cited above), the applicant in the present case has not lost his victim status. The re-examination of his criminal cases by the domestic courts was conducted in the same manner as the re‑examination of the applicants’ cases in Lebedev and Others and Yeremtsov and Others (ibid.,) and it does not appear to have been effective. The domestic courts in the present case did not consider the arguments which lay at the heart of the applicant’s complaints of entrapment and as such, similarly to the domestic courts in the cases of Lebedev and Others and Yeremtsov and Others (ibid.,) they were not in a position to assess whether any violation of the applicant’s Article 6 rights had occurred in the course of undercover operations.", "Thus, although the outcome of the re‑examination of the applicant’s case was favourable to him, it nevertheless fell short of the standards developed in the Court’s case-law in the light of Article 6 of the Convention (see Lebedev and Others and Yeremtsov and Others, both cited above, §§ 12‑16 and §§ 17-19, respectively). 21. Having regard to the above, the Court dismisses the Government’s objection as to the loss of victim status by Mr Ivantsov and finds that he remains a victim of the alleged violation of Article 6 of the Convention. 2. Application by Mr Fateyev (application no.", "61921/08) 22. The Government claimed that Mr Fateyev had not made an entrapment plea before the domestic courts. 23. The applicant disagreed, pointing out that he had made a plea of entrapment in the first‑instance hearing and before the appeal court. 24.", "Having examined the applicant’s case file, the Court finds that the court records and the grounds of appeal contain sufficiently clear and specific allegations by the applicant that the offences at issue were the result of police entrapment. Moreover, it is clear from these documents, as well as from the respective judgments, that these complaints were understood by the domestic courts as such, but were dismissed. Consequently, the Court concludes that the applicant’s complaint was brought to the attention of the domestic courts competent to deal with it and dismisses the Government’s objection in this respect. 3. Conclusion 25.", "The Court also finds that the complaints concerning entrapment by the police brought by all eleven applicants under Article 6 § 1 of the Convention 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 26.", "The Government claimed that the test purchases conducted in each of the present cases had been lawful and had not involved any entrapment by the police. They maintained that the police had ordered the test purchases on the basis of incriminating confidential information and that the applicants had voluntarily agreed to sell drugs. They also submitted that the applicants had had their cases reviewed by the domestic courts and that they had been provided with the necessary procedural safeguards in the course of the proceedings. 27. The applicants claimed that the police had not had any reason to mount undercover operations and that the actions of the police had amounted to entrapment.", "They further argued that the domestic courts had not properly examined their allegations that the offences they were charged with had been incited by the police. 28. The Court reiterates that the absence in the Russian legal system of a clear and foreseeable procedure for authorising test purchases remains a structural problem which exposes applicants to arbitrary action by the police and prevents the domestic courts from conducting an effective judicial review of their entrapment pleas (see Lagutin and Others, § 134, and Veselov and Others, §§ 126-27, both cited above). The present case is identical to other Russian cases on entrapment, in which the Court has consistently found violations on account of the deficiencies in the existing procedure for the authorisation and administration of test purchases of drugs (see Lebedev and Others; Yeremtsov and Others; Lagutin and Others, Veselov and Others; Vanyan; and Khudobin, all cited above). 29.", "Accordingly, the Court finds no reason to depart from its earlier findings on the matter and holds that the criminal proceedings against all eleven applicants were incompatible with the notion of a fair trial. Having regard to its well-established case-law on the subject, the Court considers that there has been a violation of Article 6 of the Convention with regard to each of the eleven applicants. IV. ALLEGED VIOLATION OF ARTICLE 6 § 3 (d) OF THE CONVENTION 30. Mr Dimitriyev and Mr Dymov (application nos.", "7716/09 and 28951/09) also complained that they had not been able to examine witnesses against them. In particular, Mr Dimitriyev claimed that Ms I. who had bought drugs from him was not questioned in court. Mr Dymov claimed that the court did not question police officer D. who was in charge of the undercover operation. They relied on Article 6 § 3 (d) of the Convention. The Government alleged that the whereabouts of witness in Mr Dimitriyev’s case were unknown and submitted no comments concerning the absent witness in Mr Dymov’s case.", "31. The Court has previously held that the right to examine or have examined witnesses whose testimony may be relevant for the evaluation of an entrapment plea is one of the guarantees against the abuse of powers in undercover operations (see Lagutin and Others, § 101, and Bannikova, § 65, both cited above). It therefore considers that this complaint is linked to the one examined above and concerns the proceedings which the Court has found to have been unfair. It accordingly declares the complaint admissible. 32.", "However, having regard to its findings relating to Article 6 § 1 of the Convention (see paragraphs 26 - 29 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 6 § 3 (d) of the Convention. V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 33. Lastly, the applicants raised additional complaints with reference to various Articles of the Convention. The Court has examined these complaints as submitted by the applicants. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, 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 applications is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 34. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1.", "Non-pecuniary damage 35. The applicants claimed the following amounts in respect of non‑pecuniary damage:  Mr Ulyanov – 20,000 euros (EUR);  Mr Urmantsev – EUR 219,150;  Mr Afishin – EUR 200,000;  Mr Fateyev – EUR 60,000;  Mr Kodola – EUR 200,000;  Mr Salikhov – EUR 5,000;  Mr Dimitriyev – EUR 70,000;  Mr Ivantsov – EUR 250,000;  Mr Fedorov – EUR 10,000;  Mr Dymov – EUR 7,000;  Mr Malashkin – EUR 8,000. 36. The Government alleged that Mr Ulyanov had not submitted a claim for just satisfaction. As regards the other applicants, the Government considered that the finding of a violation, if any, would constitute sufficient just satisfaction.", "They submitted, in the alternative, that the applicants’ claims in respect of non-pecuniary damage were excessive and unreasonable. 37. The Court considers that in the present case an award of just satisfaction must take account of the fact that the applicants did not have a fair trial because they were convicted of drug offences incited by the police in violation of Article 6 of the Convention. They undeniably sustained non‑pecuniary damage as a result of the violation of their rights. However, the sums claimed by the applicants appear to be excessive.", "Making its assessment on an equitable basis, the Court awards EUR 3,000 to each of the applicants in respect of non‑pecuniary damage, plus any tax that may be chargeable on that amount. 2. Pecuniary damage 38. Mr Kodola claimed EUR 35,000, Mr Salikhov claimed 1,475,670 Russian roubles (RUB) (about EUR 21,000) and Mr Fateyev claimed EUR 7,500 in respect of pecuniary damage. 39.", "The Government submitted that the applicants had failed to substantiate their claim in respect of pecuniary damage. 40. The Court does not discern any causal link between the violation found and the pecuniary damage alleged by Mr Kodola, Mr Salikhov and Mr Fateyev. It therefore rejects their claim in respect of pecuniary damage. B.", "Costs and expenses 1. Mr Afishin (application no. 18279/07) 41. Mr Afishin left the determination of the amount to be awarded for costs and expenses incurred by his lawyer to the Court’s discretion. He submitted no receipts in support of his claim.", "42. The Government replied that the applicant had not submitted any proof of the costs and expenses he had incurred. 43. According to the Court’s case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Khoroshenko v. Russia [GC], no. 41418/04, § 159, ECHR 2015).", "In the present case, taking into account the documents in its possession, the Court will not make any award to Mr Afishin under this head. 2. Mr Fateyev, Mr Kodola and Mr Dymov (applications nos. 61921/08, 3960/09 and 28951/09) 44. Mr Fateyev claimed RUB 180,000 (about EUR 2,400), Mr Kodola claimed RUB 98,144 (about EUR 1,300) and Mr Dymov claimed RUB 214,621 (about EUR 3,000) for costs and expenses incurred in the domestic proceedings and the proceedings before the Court.", "They submitted detailed receipts in support of their claim. 45. The Government submitted that the applicants had failed to substantiate their claim for costs and expenses. 46. Regard being had to its case-law (see paragraph 43 above) and the documents in its possession, the Court awards EUR 2,400 to Mr Fateyev, EUR 1,300 to Mr Kodola and EUR 3,000 to Mr Dymov in compensation for the costs and expenses they incurred.", "3. Mr Salikhov (application no. 5608/09) 47. Mr Salikhov claimed RUB 43,000 or EUR 1,000 in legal costs and expenses. He submitted receipts amounting to RUB 15,740.70 (about EUR 213).", "48. The Government submitted that the applicant’s claim for costs and expenses was unsubstantiated. 49. Regard being had to its case-law (see paragraph 43 above), the documents in its possession and to the fact that the applicant was granted legal aid amounting to EUR 850 from the Court, the Court will not make any award to Mr Salikhov in respect of costs and expenses. 4.", "Mr Fedorov (application no. 13746/09) 50. Mr Fedorov claimed RUB 40,000 (about EUR 580) for costs and expenses incurred in the domestic proceedings and provided no receipts in support of his claim. He further claimed EUR 2,400 for costs and expenses incurred before the Court and submitted detailed receipts. 51.", "The Government submitted that the applicant’s claim for costs and expenses was unsubstantiated. 52. Regard being had to its case-law (see paragraph 43 above), the documents in its possession and to the fact that the applicant was granted legal aid amounting to EUR 850 from the Court, the Court awards EUR 1,550 to Mr Fedorov under this head. C. Default interest 53. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Holds that Ms Ulyanova and Ms Kodola, respectively, have standing to pursue the present proceedings in Mr Ulyanov’s and Mr Kodola’s stead; 2. Decides to join the applications; 3. Declares the complaints concerning the applicants’ conviction for criminal offences that were incited by the police and Mr Dimitriyev’s and Mr Dymov’s complaints regarding the examination of witnesses admissible and the remainder of the applications inadmissible; 4. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of all the applicants; 5.", "Holds that there is no need to examine Mr Dimitriyev’s and Mr Dymov’s complaints under Article 6 § 3 (d) of the Convention; 6. Holds (a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 3,000 (three thousand euros) to each of the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,400 (two thousand four hundred euros) to Mr Fateyev; EUR 1,300 (one thousand three hundred euros) to Mr Kodola; EUR 3,000 (three thousand euros) to Mr Dymov; and EUR 1,550 (one thousand five hundred and fifty euros) to Mr Fedorov in respect of costs and expenses, plus any tax that may be chargeable to the applicants on those amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 9 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliHelena JäderblomDeputy RegistrarPresident APPENDIX No.", "Application No. Dates of introduction and communication Applicant’s name, date of birth and place of residence Represented by Final judgment 22486/05 30/05/2005 01/04/2009 Vasiliy Ivanovich ULYANOV 11/12/1979 Moscow Valerian Vasilyevich CHERNIKOV Moscow City Court, 25 April 2006 40959/05 27/10/2005 27/08/2010 Florit Farvazovich URMANTSEV 13/11/1976 Salavat, Republic of Bashkortostan Ayzat Minnakhmatovich ISHIMGULOV Supreme Court of the Republic of Bashkortostan, 13 September 2005 18279/07 27/02/2007 12/10/2009 Denis Aleksandrovich AFISHIN 18/10/1982 Saratov Olga Olegovna MIKHAYLOVA Saratov Regional Court, 23 November 2006 61921/08 26/11/2008 25/11/2010 Sergey Viktorovich FATEYEV 31/05/1988 Velikovechnoye, Krasnodar Region Nikolay Arkadyevich DYACHENKO Krasnodar Regional Court, 16 July 2008 3960/09 15/12/2008 25/11/2010 Vladislav Sergeyevich KODOLA 30/05/1979 Moscow Aleksey Nikolayevich SHULGIN Moscow City Court, 7 July 2008 5608/09 13/01/2009 16/01/2013 Ruslan Magomedrasulovich SALIKHOV 05/08/1982 Mamedkala, Republic of Dagestan Khidirnabi Yakhyayevich SHABANOV Military Court of the Northern Caucasus District, 24 July 2008 7716/09 12/11/2008 13/11/2012 Yuriy Vasilyevich DIMITRIYEV 08/07/1958 Novotroitsk, Orenburg Region Sergey Ivanovich KIRYUKHIN Orenburg Regional Court, 26 June 2008 10192/09 29/01/2009 24/01/2013 Aleksey Vladimirovich IVANTSOV 16/06/1983 Severnyy, Ulyanovsk Region Ulyanovsk Regional Court, 27 March 2013 (reopened proceedings) 13746/09 27/01/2009 13/11/2012 Mikhail Ivanovich FEDOROV 04/12/1982 Staroye Rakhino, Novgorod Region Oksana Vladimirovna PREOBRAZHENSKAYA Novgorod Regional Court, 7 October 2008 28951/09 11/02/2009 25/11/2010 Oleg Igorevich DYMOV 11/02/1990 Stavropol Stavropol Regional Court, 10 August 2011 (reopened proceedings) 52614/09 25/08/2009 25/11/2010 Igor Aleksandrovich MALASHKIN 01/04/1975 Krasnoyarsk Krasnoyarsk Regional Court, 24 December 2009" ]

[ "FIFTH SECTION CASE OF ZHELTYAKOV v. UKRAINE (Application no. 4994/04) JUDGMENT STRASBOURG 9 June 2011 FINAL 09/09/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zheltyakov v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President,Elisabet Fura,Boštjan M. Zupančič,Isabelle Berro-Lefèvre,Ann Power,Ganna Yudkivska,Angelika Nußberger, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 17 May 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "4994/04) 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, Mr Oleg Oleksandrovych Zheltyakov (“the applicant”), on 27 January 2004. 2. The applicant was represented by Mr O. Nagornyy, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice. 3.", "The applicant alleged, in particular, a breach of the principle of legal certainty on account of the reopening of the proceedings and quashing of a final judgment and complained about lengthy partial non-enforcement of that judgment and about the length of the court proceedings. 4. On 15 April 2009 the Court decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1955 and lives in Vinnytsya. A. Background of the case 6. In March 1988 the local authorities decided to allocate to the Podilskprommontazh Association, a State company (“the Association”), a plot of land, on which the applicant’s father’s house stood, in order to build a block of flats on that land.", "In July 1991 the domestic courts rejected, as unsubstantiated, the Association’s claim against the applicant’s father, who had refused to vacate the house in return for compensation. 7. In May 1992 the applicant’s father died and the applicant and his relatives (Mrs D., Mrs M. and Mr Z.) inherited the house. According to the applicant, in November 1992, despite the above-mentioned court decision, the Association partially destroyed the house and he could no longer live in it.", "B. The first set of proceedings 8. In September 1994 the applicant instituted court proceedings against the Association, seeking compensation for the partial destruction of the house and reimbursement of the cost of renting a flat due to the impossibility of living in the damaged house. 9. On 19 November 1996 the Leninskyy District Court of Vinnytsya partially granted the applicant’s action.", "On 3 April 1997, following an objection (протест) lodged by a local prosecutor, the Presidium of the Vinnytsya Regional Court quashed that judgment and remitted the case for fresh consideration. 10. On 5 April 2000 the Leninskyy Court partially granted the applicant’s action, awarded him 167,847[1] Ukrainian hryvnias (“UAH”) for pecuniary damage and UAH 5,000[2] for non-pecuniary damage and rejected, as unsubstantiated, his claim for reimbursement of rental fees. The court based its pecuniary-damage award on a report of 5 August 1999, prepared upon a request it made on 1 June 1999, by the experts of the Kherson State Technical Inventory Bureau (“the Bureau”). As no appeal was lodged, the judgment became final.", "11. On 22 June 2000 the Presidium of the Vinnytsya Regional Court rejected, as unsubstantiated, a local prosecutor’s objection against the judgment. 12. Between 5 April 2000 and 28 September 2007 the Association repeatedly challenged the initiation of the enforcement proceedings, sought their suspension or variation of the manner of the enforcement of the judgment. According to the Government, the judgment was enforced in the amount of UAH 8,856.77[3].", "13. On 10 April 2006 the Association requested the Leninskyy Court to reopen the proceedings in the light of newly-discovered circumstances. It argued that the expert report had been prepared not by the Bureau but, instead, by its experts acting in a private capacity. It stated that it had learned about that from letters of the Bureau and the local department of the State Security Service issued, respectively, on 13 and 14 March 2006. The applicant filed his comments challenging the request.", "14. On 30 May 2006 the local police rejected, as unsubstantiated, a criminal complaint by the Association’s chairman of 26 May 2006 against the above experts, based on the same submissions as the Association’s request to the court, for lack of corpus delicti in the experts’ actions. 15. On 28 September 2007 the court granted the request, quashed the judgment of 5 April 2000 and ordered a fresh examination of the case. Referring to the aforementioned letters of the Bureau and the State Security Service, it found that the experts of the Bureau, who had prepared the impugned report, had acted in a private capacity and not on behalf of the Bureau.", "In this respect, it noted that the report had borne no stamp and no registration number of the Bureau. The court thus concluded that its ruling of 1 June 1999 had not been complied with, and found this to constitute a “newly-discovered fact”. 16. On 25 March 2008 the same court returned the applicant’s claim unexamined on account of his alleged failure to attend several hearings. 17.", "On 26 June 2008 the Vinnytsya Regional Court of Appeal quashed that ruling on the ground that the applicant had not been duly informed of those hearings and remitted the case for fresh consideration. 18. The proceedings are still pending before the Pecherskyy District Court of Kyiv, which on 29 July 2008 joined them to the second set of proceedings (see below). 19. In the course of the proceedings seven hearings were adjourned at the applicant’s request or due to his failure to appear and five hearings were adjourned due to both parties’ failure to appear.", "This protracted the proceedings to approximately ten months. Thirteen hearings were adjourned at the respondent’s request, due to its or third parties’ failure to appear, due to the absence or illness of a judge or due to the applicant’s absence from several hearings of which he was not duly informed (see paragraph 17 above). Two forensic examinations lasted in total for about three and a half months. C. The second set of proceedings 20. In October 1994 the applicant instituted court proceedings against Mrs M. and Mr Z., seeking separation of the inherited property.", "21. On 11 July 1995 the Leninskyy Court endorsed the friendly settlement reached by the parties. 22. On 13 December 2000 the Supreme Court, following an objection lodged by its Deputy Head, quashed the ruling of 11 July 1995 and remitted the case for fresh consideration. Subsequently, the case was transferred to the Popilnya Court.", "23. On 26 November 2001 the Association instituted proceedings in that court against the applicant, Mrs M. and Mr Z., challenging the validity of the inheritance certificate issued to them. 24. On 16 April 2002 the court suspended the proceedings for separation of the inherited property pending the outcome of the proceedings brought by the Association. 25.", "On 26 July 2002 the court transferred the case to the Polonne Court, which on 2 August 2004 joined both proceedings. 26. On 12 January 2005 the court returned the claims of the applicant and the Association unexamined on account of their alleged failure to attend several hearings. 27. On 18 April 2005 the Khmelnytsk Regional Court of Appeal quashed that ruling on the ground that the parties had not been duly informed of those hearings and remitted the case for fresh consideration.", "28. On an unspecified date the applicant lodged an additional claim against Mrs D. for separation of the inherited property. 29. On 21 July 2005 the case was transferred to the Pecherskyy Court, which on 19 October 2005 joined that claim to the proceedings. 30.", "On 15 November 2007 the same court, at the request of the Association, returned the latter’s claim unexamined. 31. Between 16 May and 29 July 2008 the proceedings were suspended at the applicant’s request pending the outcome of the first set of proceedings (see paragraphs 16-17 above). 32. On 29 July 2008 the court joined the first set to the second set of proceedings, which are still pending before it.", "33. In the course of the proceedings twelve hearings were adjourned at the applicant’s request or due to his failure to appear and eleven hearings were adjourned due to both parties’ failure to appear. This protracted the proceedings for approximately one year and three months. Sixteen hearings were adjourned at the other parties’ requests, due to those parties’ or experts’ failure to appear, due to the absence or illness of a judge or due to the parties’ absence from several hearings of which they were not duly informed (see paragraph 27 above). Three forensic examinations lasted in total for about one year and eight months.", "II. RELEVANT DOMESTIC LAW 34. The relevant provisions of the domestic legislation concerning the ordering of a forensic examination and reopening of the proceedings in the light of the newly-discovered circumstances read as follows: A. Code of Civil Procedure of 1963 (repealed on 1 September 2005): Article 57. Ordering forensic examination “... A forensic examination shall be carried out by experts of relevant establishments or by other specialists appointed by the court.", "Any person who has the necessary knowledge for giving an expert opinion may be appointed as an expert”. B. Forensic Expert Examination Act of 25 February 1994 (as worded at the material time) Article 7. Organisation of forensic expert activities “... Forensic expert activities shall be carried out on an entrepreneurial basis under special permission (licence), as well as by the citizens on the basis of [individual] contracts...” C. Code of Civil Procedure of 2004 (entered into force on 1 September 2005): Article 361. Grounds for review “1. Judgments or rulings which have come into force as well as court orders may be reviewed on the basis of the newly-discovered circumstances.", "2. The grounds for review ... shall be as follows: 1) important circumstances which were not and could not have been known to a party who requests review; 2) a knowingly erroneous expert conclusion ... as established by a final court verdict, which entailed the adoption of an unlawful or ungrounded judgment ...” Article 365. Examination of requests “... 2. Having examined a request, the court, by its ruling, may either grant the request and quash the judgment, ruling or court order or dismiss the request if it is unsubstantiated ...” Article 366. Appeals against the ruling of the court “1.", "A court decision by which an application for review of a ... judgment ... in the light of newly-discovered circumstances is granted shall not be subject to appeal ...” THE LAW I. REOPENING OF THE CASE AND QUASHING OF THE JUDGMENT 35. The applicant complained that the reopening of the first set of proceedings and the quashing of the final judgment of 5 April 2000 had been in breach of the principle of legal certainty. This complaint falls to be examined under Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...” A. Admissibility 36. The Government contended that the applicant had not complied with the formal requirements for lodging an application with the Court, as he had raised the complaint in a letter of 13 January 2008, rather than in a separate application form, and had not referred to any provision of the Convention.", "37. The applicant disagreed, stating that in the above-mentioned letter he had asked the Court to examine his complaint about the breach of the principle of legal certainty along with his original application and that this had been sufficient. 38. The Court considers that the applicant did not need to submit a separate application form in respect of his complaint; in the circumstances, requiring him to do so would be too formalistic. Nor was he required to cite any provision of the Convention (see Guzzardi v. Italy, 6 November 1980, § 61, Series A no.", "39). Accordingly, it rejects the Government’s objection. 39. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 40. The Government contended that there had been no violation of the principle of legal certainty, as the quashing of the judgment of 5 April 2000 and the reopening of the proceedings in the light of the newly-discovered circumstances had been aimed at rectifying the court’s mistake. 41.", "The applicant disagreed, stating that the report had been thoroughly examined by the court, while the Association could have requested the appointment of another expert examination or could have appealed against the judgment. He insisted that there had been no newly-discovered circumstance warranting the reopening of the proceedings. 42. The Court reiterates that the right to a fair hearing by 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, among other things, 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, inter alia, 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). 43. That principle presupposes respect for the finality of judgments and insists that no party is entitled to seek a review of a final and binding judgment merely for the purpose of a rehearing and a fresh decision of the case. Departures from that principle are justified only when made necessary by circumstances of a substantial and compelling character (see Ryabykh v. Russia, no. 52854/99, §Note 52, ECHR 2003–X).", "44. The present case concerns a decision to reconsider a case completed by a final judgment in the light of the newly-discovered circumstances upon a request by a party to the proceedings. Such a procedure does not in itself contradict the principle of legal certainty as long as it is used to correct miscarriages of justice (see Pravednaya v. Russia, no. 69529/01, §§ 27-28, 18 November 2004, and Popov v. Moldova (no. 2), no.", "19960/04, § 46, 6 December 2005). However, the Court must determine whether it was applied in a manner compatible with Article 6 of the Convention. 45. The Court notes that the judgment of 5 April 2000 was not appealed against and became final. More than seven years later the same court quashed it on the ground that the expert report on which it was based had been prepared by experts who had acted in a private capacity.", "The court concluded that the Association, a party to the proceedings, had not been aware of that fact back in 2000 and could not have known it before 2006. 46. Although it is primarily for the domestic courts to assess the facts and evidence before them (see, for instance, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I), the Court considers that such a conclusion is open to doubt. In particular, it observes that the fact that the report of 5 August 1999 did not bear the Bureau’s stamp or registration number was not hidden from the court or the parties during the first consideration of the case.", "47. In any event, the Court considers that the situation did not warrant such a harsh interference with the final judgment. There is nothing to suggest that it concerned a serious violation of procedural rules. Nor was it argued that the report had been “knowingly erroneous”. To the contrary, the local police rejected, as unsubstantiated, the criminal complaint brought by the Association’s chairman against the experts who had prepared it (see paragraph 14 above).", "48. Therefore, the Court finds that the quashing of the judgment of 5 April 2000 was not justified and that there has, therefore, been a violation of Article 6 § 1 of the Convention. II. LENGTHY PARTIAL NON-ENFORCEMENT OF THE JUDGMENT 49. The applicant complained under Articles 6 § 1, 8 and 13 of the Convention and Article 1 of Protocol No.", "1 about the lengthy partial non-enforcement of the judgment of 5 April 2000. The Court considers that this complaint falls to be examined solely under Article 6 § 1 of the Convention and under Article 1 of Protocol No. 1. The latter provision reads, in so far as relevant, as follows: Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ...” A. Admissibility 50. The Government contended that, after the judgment of 5 April 2000 had been quashed on 28 September 2007, the applicant had lost victim status within the meaning of Article 34 of the Convention. Accordingly, they invited the Court to reject the complaint as incompatible ratione personae. 51.", "The Court considers that the quashing of the impugned judgment was clearly unfavourable to the applicant and it thus did not deprive him of victim status in respect of the issue of the delayed enforcement of that judgment (see Nikolayev v. Russia, no. 37927/02, § 31, 2 March 2006). This objection should, therefore, be dismissed. 52. The Court considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 53. The Government maintained that there had been no breach of Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1, as the State Bailiffs had taken all the necessary and possible measures in order to enforce the judgment, which could not be fully enforced mainly due to the conduct of the Association and due to its lack of funds. 54. The applicant maintained his complaint. 55. The Court notes that the judgment of 5 April 2000 was enforceable until 28 September 2007, when it was quashed, and that it was incumbent on the Association, a State company, to abide by its terms (see Velskaya v. Russia, no.", "21769/03, § 18, 5 October 2006). However, it had remained unenforced for the most part. The Court further notes that the quashing of a judgment in a manner which was found to have been incompatible with the principle of legal certainty cannot be accepted as justification for the failure to enforce it (see Sukhobokov v. Russia, no. 75470/01, § 26, 13 April 2006, and Prisyazhnikova and Dolgopolov v. Russia, no. 24247/04, § 35, 28 September 2006).", "56. The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in similar circumstances (see, for instance, Borshchevskiy v. Russia, 14853/03, §§ 62-65, 21 September 2006; Murzatin v. Russia, 26338/06, §§ 38-42, 27 March 2008; and Yerogova, cited above, §§ 48-53). 57. Having examined the material submitted to it, the Court notes that the Government did not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.", "Having regard to its case-law on the subject, the Court finds that by failing for a substantial period of time to comply with the enforceable judgment in the applicant’s favour the domestic authorities violated his rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. There has accordingly been a violation of those provisions. III. LENGTH OF PROCEEDINGS 58.", "The applicant complained under Articles 6 § 1 and 13 of the Convention about the length of the first and second sets of proceedings. The Court considers that this complaint falls to be examined solely under Article 6 § 1 of the Convention. A. Admissibility 59. The Court finds that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 60. The Government maintained that there had been no violation of Article 6 § 1 of the Convention as the cases had been complex, the parties had not attended several hearings, and the applicant had supplemented his claim and lodged various procedural petitions, while there had been no substantial delays attributable to the domestic courts. 61.", "The applicant did not comment on the above. 62. 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 complexity of the case and the conduct of the applicant and the relevant authorities (see, for instance, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 63.", "The Court notes that the applicant’s complaint concerns two sets of proceedings instituted by him with the aim of protecting his right to the peaceful enjoyment of his property. The two sets were joined by the courts and the proceedings are currently pending. In these circumstances, the Court considers that it is appropriate to examine the length of both sets together. The Court further notes that the periods 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 reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time.", "The proceedings have thus lasted for about twelve years and eight months at two levels of jurisdiction, excluding the period between 5 April and 13 December 2000, when no proceedings were pending. 64. The Court considers that although the case might have been somewhat complicated by the examination of several claims, all of them having been eventually joined, that fact alone cannot explain the overall length of the proceedings. Nor does the conduct of the applicant, who somewhat delayed the proceedings (see paragraphs 19 and 33 above), explain such length. Indeed, the Court notes that the major delays were caused by the lengthy consideration of the cases by the first-instance courts and by their repeated adjournments of the hearings (see paragraphs 9, 10, 19, 25, 26, 29, 30, 32 and 33 above).", "It concludes that the responsibility for the protracted length of the proceedings rests with the State. 65. 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 instance, Pavlyulynets v. Ukraine, no. 70767/01, § 53, 6 September 2005; Moroz and Others v. Ukraine, no. 36545/02, § 62, 21 December 2006; and Golovko v. Ukraine, no.", "39161/02, § 65, 1 February 2007). 66. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject and to the overall length of the proceedings, the responsibility for which to a large extent rests with the State, the Court considers that in the instant case such length has been excessive and failed to meet the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. There has accordingly been a breach of that provision.", "IV. THE REMAINDER OF THE COMPLAINTS 67. The applicant complained under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 about and on account of the quashing of the ruling of 11 July 1995; under Articles 6 § 1 and 13 of the Convention that the judges in the second set of proceedings had been biased and lacked independence and that he had not been informed of the hearing of 12 January 2005; and under Articles 8 and 13 of the Convention on account of the damage to his house caused by the Association. 68.", "Having carefully examined the applicant’s submissions 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. 69. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 70. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 71. In respect of pecuniary damage, the applicant claimed UAH 167,847, representing the amount awarded to him as pecuniary damage by the judgment of 5 April 2000 increased to take into account inflation, as well as UAH 140,910[4] for the cost of renting a flat due to the impossibility of living in the damaged house. He also claimed EUR 30,000 for non-pecuniary damage. 72. The Government contested these claims as unsubstantiated.", "73. Having regard to the circumstances of the case, the Court finds it appropriate to award the applicant EUR 30,640, representing the outstanding sum he had legitimately expected to obtain under the judgment of 5 April 2000, plus any tax that may be chargeable. 74. The claim for losses as a result of inflation is unsubstantiated and unsupported by any documents; the Court, therefore, rejects it. It also rejects the claim for reimbursement of rental payments, as there is no causal link between the violations found and the sum claimed.", "75. The Court further considers that the applicant must have suffered distress as a result of the violations found. Ruling on the equitable basis, it awards him EUR 6,200 for non-pecuniary damage. B. Costs and expenses 76.", "The applicant claimed EUR 2,000 for the expenses incurred in the domestic proceedings and the proceedings before the Court, without providing any supporting documents. 77. The Government challenged these claims as unsubstantiated and unsupported by documents. 78. Regard being had to the information in its possession, the Court makes no award under this head.", "C. Default interest 79. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints under Article 6 § 1 of the Convention about the quashing of the judgment of 5 April 2000, under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 about the lengthy partial non-enforcement of that judgment, and under Article 6 § 1 of the Convention about the length of the court proceedings admissible and the remaining complaints inadmissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention on account of the quashing of the judgment of 5 April 2000; 3. Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of the lengthy partial non‑enforcement of the judgment of 5 April 2000; 4. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the court proceedings; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the moment when the judgment becomes final, EUR 30,640 (thirty thousand six hundred and forty euros) in respect of pecuniary damage and EUR 6,200 (six thousand two hundred euros) in respect of non‑pecuniary damage, plus any tax that may be chargeable on the above amounts, to be converted into its national currency at the rate applicable at the date of settlement: (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 9 June 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekDean SpielmannRegistrarPresident [1]1. About 31,360 euros (EUR) [2]2. About EUR 934 [3]3.", "About EUR 1,655 [4]1. About 11,566 EUR" ]

[ "FIRST SECTION CASE OF KARIMOV v. RUSSIA (Application no. 54219/08) JUDGMENT STRASBOURG 29 July 2010 FINAL 21/02/2011 This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of Karimov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 6 July 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "54219/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Uzbek national, Mr Abdumutallib Karimov (“the applicant”), on 13 November 2008. 2. The applicant was represented by Ms E. Ryabinina and Mr R. Zilberman, lawyers practising in Moscow and Yoshkar-Ola. 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 detention by the Russian authorities with a view to his extradition to Uzbekistan, where he faced politically motivated persecution by the local authorities, gave rise to violations of his rights under Articles 3, 5 and 13 of the Convention. 4. On 13 November 2008 the President of the Chamber to which the case was allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Russia, under Rule 39 of the Rules of Court, that the applicant should not be extradited to Uzbekistan until further notice. 5. On 20 May 2009 the President of the First Section of the Court decided to give notice of the application to the Government.", "It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1964 and lives in Yoshkar-Ola, the Republic of Mari-Al. 7.", "The facts of the case, as submitted by the applicant, may be summarised as follows. A. Proceedings in Uzbekistan 8. The applicant was born and used to live in Ayim, Uzbekistan. From 1997 to 2005 he owned a small grocery shop there.", "9. On 13 May 2005 the applicant went to the town of Andijan to pick up merchandise from a wholesale market. On that date a demonstration was taking place in the town's Bobur square; the applicant decided to join the event. At some point the local authorities opened fire on the demonstrators. The applicant managed to escape, but lost his passport in the crowd.", "Fearing prosecution by the authorities for participation in the Andijan demonstration, he left the country. 10. On 18 June 2005 the Prosecutor General's Office of Uzbekistan charged the applicant in absentia with a number of crimes including commission of terrorist acts, membership of a number of extremist organisations including Hizb-ut-Tahrir, attempts to overthrow the State's constitutional order and organisation of mass disorder. The applicant's name was put on the wanted list. The prosecutor's office issued an arrest warrant against the applicant.", "11. On 5 July 2008 the Prosecutor General's Office of Uzbekistan forwarded a request for the applicant's extradition to Uzbekistan to the Prosecutor General's Office of the Russian Federation. 12. On 2 August 2008 the Andijan regional prosecutor's office additionally charged the applicant with a number of crimes including conducting a holy war to create an Islamic state, financing terrorist activities, membership of extremist organisations and organisation of mass disturbances. B.", "Proceedings in Russia 1. Proceedings concerning the obtaining of a false passport 13. On an unspecified date in June 2005 the applicant arrived in Yoshkar-Ola, the Republic of Mari-Al, Russia. From June 2005 to 11 June 2008 he lived with his brother, Mr Kh.K., and worked in the construction business. 14.", "On an unspecified date in 2007 the applicant obtained a false passport of a Kirgiz national. 15. On 19 June 2008 the Tsentralniy Department of the Interior of Yoshkar-Ola (“the Tsentralniy UVD”) instituted criminal proceedings against the applicant under Article 327 of the Criminal Code (forgery of documents). 16. On 30 December 2008 the Yoshkar-Ola Town Court (“the Town Court”) found the applicant guilty of forging documents and ordered him to pay a fine of 10,000 Russian roubles (RUB).", "The applicant did not appeal against the sentence. 2. Extradition proceedings 17. On 11 June 2008 the applicant was arrested in Russia (see paragraph 31 below). On the same date and on 19 June 2008 he was questioned and stated that he was being subjected by the Uzbek authorities to politically motivated persecution in connection with events in Andijan in May 2005.", "He denied any involvement in illegal activities. 18. On 2 July 2008 the applicant was questioned again. He reiterated that he was being sought by the Uzbek authorities for alleged participation in the Andijan events in May 2005 and denied any involvement in extremist organisations. 19.", "On 5 July 2008 the Prosecutor General's Office of Uzbekistan forwarded a request for the applicant's extradition (see paragraph 11 above). 20. On 17 July 2008 the Federal Migration Service (“the FMS”) informed the Prosecutor General's Office that the applicant did not have Russian citizenship. 21. On 6 August 2008 the Mari-Al FMS informed the Mari-Al prosecutor's office that on 1 August 2008 the applicant's request for asylum had been rejected.", "22. On 4 August 2008 the Russian Ministry of Foreign Affairs informed the Prosecutor General's Office that they did not have any information precluding the applicant's extradition. The text of the document comprised three lines and stated: “The Russian Ministry of Foreign Affairs has no information precluding Mr A. Karimov's extradition to the law-enforcement bodies of Uzbekistan for criminal prosecution.” 23. On 30 August 2008 the Federal Security Service (“the FSB”) informed the Prosecutor General's Office that they did not have any information precluding the applicant's extradition to Uzbekistan. The text of the document stated: “The FSB has no information concerning either the politically motivated persecution of Mr A. Karimov (who was born in 1964 in Uzbekistan) or any obstacles precluding his extradition to the law-enforcement bodies of Uzbekistan.", "His extradition to the Uzbek authorities would not damage the interests or security of the Russian Federation.” 24. On 18 September 2008 the Russian Prosecutor General's Office ordered the applicant's extradition to Uzbekistan. 25. On 25 September 2008 the applicant was informed of the extradition order. He appealed against it to the Supreme Court of Mari-Al.", "Referring to the case-law of the European Court of Human Rights, the applicant stated that he was being sought by the Uzbek authorities for the alleged commission of political crimes and that his extradition would expose him to a real risk of ill-treatment by the local authorities. He further stated that the Russian Office of the UN High Commissioner for Refugees had recognised the need for his international protection and requested that the extradition decision be overruled as unlawful. 26. On 31 October 2008 the Supreme Court of Mari-Al rejected the applicant's appeal and upheld the extradition order stating, inter alia, the following: “....the law-enforcement bodies of the Republic of Uzbekistan charged A. Karimov with criminal conspiracy ... with the aim of undermining State security, destabilising the social and political order ... These actions on the part of A. Karimov are classified [by the Uzbek authorities] as the use of violence and force jeopardising the safety of persons and property with the aim of forcing State bodies to take or not to take certain actions ... that is, as the crime punishable under Article 155 § 3 (a) of the Uzbek Criminal Code...", "...The factual circumstances and legal assessment of the actions of which A. Karimov is accused are described in the statements of charges of 18 June 2005 and 2 August 2008... ...the [applicant's] allegations about the risk of ill-treatment in Uzbekistan were not confirmed by the documents examined during the hearing... ...the Republic of Uzbekistan guaranteed that the applicant would not be extradited to a third country without the consent of the Russian Federation ... [and] that after the trial and the completion of his sentence he would be free to leave Uzbekistan.” 27. On 7 November 2008 the applicant appealed against the above decision and the extradition order to the Supreme Court of the Russian Federation (“the Supreme Court”). He stated that the proceedings concerning his request for refugee status in Russia were still pending and that his extradition would expose him to a real risk of ill-treatment by the Uzbek authorities. 28. On 13 November 2008 the European Court of Human Rights granted the applicant's request for the application of interim measures under Rule 39 of the Rules of Court to suspend his extradition to Uzbekistan.", "29. On 23 December 2008 the Supreme Court rejected the applicant's appeal and made the extradition order final. The court stated that the applicant had applied for refugee status in Russia only after his arrest on 11 June 2008, that his allegations of a risk of ill-treatment were unsubstantiated and that “...the Uzbek Prosecutor General's Office guaranteed that ... it would prosecute A.M. Karimov only for the crimes he had been charged with...”. 30. On 22 September 2009 the applicant requested the Prosecutor General's Office to cancel the extradition order of 18 September 2008 as he had been granted temporary asylum in Russia (see paragraph 57 below).", "He did not receive any response from the authorities. 3. The applicant's detention pending extradition 31. On 11 June 2008 the applicant was arrested in Yoshkar-Ola and placed in the local detention centre IZ-12/1 (“the detention centre”). 32.", "On 12 June 2008 the Town Court ordered the applicant's detention until 12 July 2008, stating that: “...the deputy head of the Department of the Interior of the Andijan Region of Uzbekistan .... requested that A.M. Karimov be arrested ... and that the request for his extradition be submitted [to the Russian authorities] within one month”. On 17 June 2008 the applicant appealed against this decision to the Mari‑Al Supreme Court. On 2 July 2008 the latter upheld the extension order. 33. On 4 July 2008 the Town Court extended the applicant's detention until 21 July 2008.", "On 7 July 2008 the applicant appealed against this decision to the Mari-Al Supreme Court. On 1 August 2008 the latter upheld the extension order. 34. On 22 July 2008 counsel for the applicant requested the head of the detention centre to release the applicant as the term of his detention had expired on 21 July 2008 and his detention after that date was unlawful. 35.", "On the same date the head of the detention centre replied to counsel, stating the following: “...the law-enforcement bodies of the Russian Federation received a request from the Prosecutor General's Office of Uzbekistan concerning A.M. Karimov's extradition... In connection with this [the applicant's] detention is lawful and substantiated”. 36. On the same date, 22 July 2008, counsel for the applicant appealed against the reply of the head of the detention centre to the Yoshkar-Ola Town Court, under Article 125 of the Code of Criminal Procedure (complaints against acts and decisions of officials involved in criminal proceedings). He stated that the applicant's detention had been authorised only until 21 July 2008 and that his detention after that date was unlawful.", "On 25 July 2008 the Town Court examined this complaint and set it aside without examination, stating that the applicant had failed to accurately define his request and to provide copies of the relevant court extension orders. The decision stated that the applicant should correct the above deficiencies and resubmit his complaint by 30 July 2008. The applicant appealed against this decision to the Mari-Al Supreme Court, which on 4 August 2008 returned his appeal without examination for failure to comply with the requirements specified in the decision of 25 July 2008. 37. Meanwhile, on 24 July 2008 the Town Court, at the request of the Yoshkar-Ola prosecutor, extended the applicant's detention until 12 December 2008.", "As to the applicant's allegation concerning the unlawfulness of his detention between 21 and 24 July 2008, the court stated: “... Taking into account the fact that the Yoshkar-Ola prosecutor had already requested the court to detain the applicant pending his extradition, and that this request had been granted ... the present prosecutor's request for extension of the applicant's detention should cover the applicant's detention between 12 June and 24 July 2008...” On 28 July 2008 the applicant appealed against this extension order to the Mari-Al Supreme Court. On 14 August 2008 the latter upheld the extension of the applicant's detention; it left without examination the issue of the lawfulness of his detention between 21 and 24 July 2008. 38. On 5 December 2008 the Town Court, at the request of the Yoshkar Ola prosecutor, extended the applicant's detention pending extradition until 12 March 2009.", "On the same date the applicant appealed against this decision to the Mari-Al Supreme Court. On 19 December 2008 the latter upheld the extension order. 39. On 11 March 2009 the Town Court, at the request of the Yoshkar‑Ola prosecutor, extended the applicant's detention until 11 June 2009. On 13 March 2009 the applicant appealed against this decision to the Mari-Al Supreme Court.", "On 26 March 2009 the latter upheld the extension order. 40. On 22 May 2009 the Town Court rejected the request of the Yoshkar-Ola prosecutor and refused to extend the applicant's detention until 11 December 2009 (up to 18 months). The prosecutor's office appealed against the refusal to the Supreme Court. On 23 June 2009 the Supreme Court upheld the refusal to extend the applicant's detention.", "41. On 11 June 2009 the applicant was released from the detention centre. 4. The applicant's requests for refugee status and temporary asylum (a) The applicant's request for refugee status 42. On 23 June 2008 the applicant lodged a preliminary request for refugee status in Russia.", "On 7 July 2008 he lodged the full application. 43. On 1 August 2008 the Mari-Al FMS refused to examine the applicant's request. The decision referred to Article 5 § 1 (1) of the Federal Law on refugees, which stated that one of the reasons for refusing to examine an application for refugee status was the opening of criminal proceedings against the person applying for refugee status. 44.", "On 24 September 2008 the Russian Office of the UN High Commissioner for Refugees informed the Mari-Al FMS that “the refusal to provide access to the refugee status procedure to A. Karimov violates Article 14 of the UN Declaration of Human Rights of 1948...”. 45. On 1 October 2008 the applicant appealed against the refusal to the Town Court. He stated that he had left Uzbekistan out of fear of ill‑treatment by the local authorities for alleged participation in the demonstration in Andijan in May 2005 and that he was being sought by the Uzbek authorities for political crimes. The applicant requested the court to overrule the refusal and order the FMS to examine his request.", "46. On 2 October 2008 the Russian Office of the UN High Commissioner for Refugees wrote to the Russian Prosecutor General stating that the Prosecutor General's decision to extradite the applicant to Uzbekistan had been taken without proper examination of his request for refugee status in Russia. 47. On 3 October 2008 the Russian Office of the UN High Commissioner for Refugees wrote to the Head of the Russian FMS. The letter stated that the information provided by the applicant about events in Uzbekistan had been confirmed as truthful and that his fear of ill-treatment by the Uzbek authorities was justified and substantiated.", "The letter requested the Russian authorities to take into consideration the High Commissioner's opinion concerning the applicant's case during the examination of his request for refugee status in Russia. 48. On 9 October 2008 the court granted the applicant's appeal and ordered that the Mari-Al FMS examine the applicant's request for refugee status. 49. On 22 October 2008 the Mari-Al FMS decided to examine the applicant's request.", "50. On the same date, 22 October 2008, the Russian Office of the UN High Commissioner for Refugees wrote to the Supreme Court of Mari‑Al. The letter stated that the applicant “...falls under the definition of refugee as provided by the Geneva Convention...” and that he faced a real risk of ill‑treatment in Uzbekistan if extradited. The letter stated that the applicant's extradition would violate the obligations of the Russian authorities under the Convention Relating to the Status of Refugees. 51.", "On 14 November 2008 the Prosecutor General's Office informed the applicant that his extradition to Uzbekistan had been suspended pending completion of the examination of his request for refugee status. 52. On 16 January 2009 the Russian Office of the UN High Commissioner for Refugees informed the applicant's representative that the application of Rule 39 by the European Court of Human Rights should not be terminated as it was the only safeguard protecting the applicant from extradition to Uzbekistan. 53. On 22 January 2009 the Mari-Al FMS rejected the applicant's request for refugee status in Russia.", "The applicant appealed against this decision to the Town Court. On 5 March 2009 the court upheld the refusal. The applicant appealed against the court's decision to the Mari-Al Supreme Court. On 16 April 2009 the latter examined the appeal and forwarded the case for fresh examination to the Town Court. 54.", "On 27 April 2009 the Russian Office of the UN High Commissioner for Refugees wrote to the Town Court confirming that the applicant's fear of politically motivated persecution and ill-treatment in Uzbekistan was justified and substantiated. 55. On 15 May 2009 the Town Court rejected the applicant's appeal and upheld the refusal to grant him refugee status. On 18 June 2009 the refusal was made final by the Mari-Al Supreme Court. (b) The applicant's request for temporary asylum 56.", "On 16 June 2009 the applicant lodged a temporary asylum request with the FMS stating that he feared politically motivated persecution and ill‑treatment in Uzbekistan. 57. On 31 August 2009 the FMS allowed the applicant's request and granted him temporary asylum for one year. II. RELEVANT INTERNATIONAL AND DOMESTIC LEGAL MATERIALS A.", "Detention pending extradition and judicial review of detention 1. The Russian Constitution 58. The Constitution guarantees the right to liberty (Article 22): “1. Everyone has the right to liberty and personal integrity. 2.", "Arrest, placement in custody and detention are permitted only on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours.” 2. The European Convention on Extradition 59. Article 16 of the European Convention on Extradition of 13 December 1957 (CETS no. 024), to which Russia is a party, provides as follows: “1.", "In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law. ... 4. Provisional arrest may be terminated if, within a period of 18 days after arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed 40 days from the date of such arrest.", "The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.” 3. The 1993 Minsk Convention 60. The CIS Convention on legal aid and legal relations in civil, family and criminal cases (the 1993 Minsk Convention), to which both Russia and Uzbekistan are parties, provides that a request for extradition must be accompanied by a detention order (Article 58 § 2). 61. A person whose extradition is sought may be arrested before receipt of a request for his or her extradition.", "In such cases a special request for arrest containing a reference to the detention order and indicating that a request for extradition will follow must be sent. A person may also be arrested in the absence of such request if there are reasons to suspect that he or she has committed, in the territory of the other Contracting Party, an offence entailing extradition. The other Contracting Party must be immediately informed of the arrest (Article 61). 62. A person arrested pursuant to Article 61 must be released if no request for extradition is received within forty days of the arrest (Article 62 § 1).", "4. The Code of Criminal Procedure 63. Chapter 13 of the Russian Code of Criminal Procedure (“Preventive measures”) governs the use of preventive measures (меры пресечения), which include, in particular, placement in custody. Custody may be ordered by a court on an application by an investigator or a prosecutor if a person is charged with an offence carrying a sentence of at least two years' imprisonment, provided that a less restrictive preventive measure cannot be used (Article 108 §§ 1 and 3). The period of detention pending investigation may not exceed two months (Article 109 § 1).", "A judge may extend that period to six months (Article 109 § 2). Further extensions to twelve months, or in exceptional circumstances, eighteen months, may be granted only if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). No extension beyond eighteen months is permissible and the detainee must be released immediately (Article 109 § 4). 64. Chapter 16 (“Complaints about acts and decisions by courts and officials involved in criminal proceedings”) provides for the judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of adversely affecting the constitutional rights or freedoms of the parties to criminal proceedings (Article 125 § 1).", "The court must examine the complaint within five days from its receipt. 65. Chapter 54 (“Extradition of a person for criminal prosecution or execution of sentence”) regulates extradition procedures. On receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, a prosecutor must decide on the preventive measure to be applied to the person whose extradition is sought. The measure must be applied in accordance with the established procedure (Article 466 § 1).", "A person who has been granted asylum in Russia because of possible political persecution in the State seeking his extradition may not be extradited to that State (Article 464 § 1 (2)). 66. An extradition decision made by the Prosecutor General may be challenged before a court. Issues of guilt or innocence are not within the scope of judicial review, which is limited to an assessment of whether the extradition order was made in accordance with the procedure set out in the relevant international and domestic law (Article 463 §§ 1 and 6). 5.", "The Code of Civil Procedure 67. A person may apply for judicial review of decisions and acts or failures to act by a State body or a State official that are capable of violating his or her rights or freedoms, hindering the exercise of his or her rights and freedoms, or imposing an obligation or liability unlawfully (Articles 254 § 1 and 255). If the court finds the application well-founded, it must order the State body or State official concerned to remedy the violation or remove the obstacle to the exercise of the rights and freedoms in question (Article 258 § 1). 6. Case-law of the Constitutional Court (a) Constitutional Court decision no.", "292-O of 15 July 2003 68. On 15 July 2003 the Constitutional Court issued decision no. 292-O concerning a complaint by Mr Khudoyorov about the ex post facto extension of his “detention during trial” by the Vladimir Regional Court's decision. It held as follows: “Article 255 § 3 of the Code of Criminal Procedure of the Russian Federation provides that the [trial court] may ... upon the expiry of six months after the case was sent to it, extend the defendant's detention for successive periods of up to three months. It does not contain, however, any provisions permitting the courts to take a decision extending the defendant's detention on remand once the previously authorised time-limit has expired, in which event the person is detained for a period without a judicial decision.", "Nor do other rules of criminal procedure provide for such a possibility. Moreover, Articles 10 § 2 and 109 § 4 of the Code of Criminal Procedure expressly require the court, prosecutor, investigator ... to immediately release anyone who is unlawfully held in custody beyond the time-limit established in the Code. Such is also the requirement of Article 5 §§ 3 and 4 of the European Convention ... which is an integral part of the legal system of the Russian Federation, pursuant to Article 15 § 4 of the Russian Constitution...” (b) Constitutional Court decision no. 101-O of 4 April 2006 69. Verifying the compatibility of Article 466 § 1 of the CCP with the Russian Constitution, the Constitutional Court reiterated its established case-law to the effect that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings.", "70. In the Constitutional Court's view, the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution, as well as the legal norms laid down in Chapter 13 of the CCP on preventive measures, were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCP did not allow the authorities to apply a custodial measure without abiding by the procedure established in the CCP, or in excess of the time-limits fixed therein. (c) Constitutional Court decision no. 158-O of 11 July 2006 on the Prosecutor General's request for clarification 71.", "The Prosecutor General asked the Constitutional Court for an official clarification of its decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person's detention with a view to extradition. 72. The Constitutional Court dismissed the request on the ground that it was not competent to indicate specific criminal-law provisions governing the procedure and time-limits for holding a person in custody with a view to extradition. That was a matter for the courts of general jurisdiction.", "(d) Constitutional Court decision no. 333-O-P of 1 March 2007 73. In this decision the Constitutional Court reiterated that Article 466 of the CCP did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time-limits provided for in the legislation on criminal procedure. B. Status of refugees 1.", "The 1951 Geneva Convention Relating to the Status of Refugees 74. Article 33 of the 1951 UN Convention Relating to the Status of Refugees, which was ratified by Russia on 2 February 1993, provides as follows: “1. No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.” 2.", "Refugees Act 75. The Refugees Act (Law no. 4258-I of 19 February 1993) incorporated the definition of the term “refugee” contained in Article 1 of the 1951 Geneva Convention, as amended by the 1967 Protocol Relating to the Status of Refugees. The Act defines a refugee as a person who is not a Russian national and who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, ethnic origin, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, unwilling to return to it (section 1 § 1 (1)). 76.", "The Act does not apply to anyone believed on reasonable grounds to have committed a crime against peace, a war crime, a crime against humanity, or a serious non-political crime outside the country of refuge prior to his admission to that country as a person seeking refugee status (section 2 § 1 (1) and (2)). 77. A person who has applied for refugee status or who has been granted refugee status cannot be returned to a State where his life or freedom would be imperilled on account of his race, religion, nationality, membership of a particular social group or political opinion (section 10 § 1). 78. If a person satisfies the criteria established in section 1 § 1 (1), or if he does not satisfy such criteria but cannot be expelled or deported from Russia for humanitarian reasons, he may be granted temporary asylum (section 12 § 2).", "A person who has been granted temporary asylum cannot be returned against his will to the country of his nationality or to the country of his former habitual residence (section 12 § 4). C. Relevant documents concerning the use of diplomatic assurances and the situation in Uzbekistan 79. UN General Assembly resolution 62/148 of 18 December 2007 (“Torture and other cruel, inhuman or degrading treatment or punishment” (UN Doc. :A/RES/62/148)) reads as follows: “The General Assembly... 12. Urges States not to expel, return ('refouler'), extradite or in any other way transfer a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture, and recognizes that diplomatic assurances, where used, do not release States from their obligations under international human rights, humanitarian and refugee law, in particular the principle of non-refoulement...” 80.", "In his interim report submitted in accordance with Assembly resolution 59/182 (UN Doc. : A/60/316, 30 August 2005), the Special Rapporteur of the Commission on Human Rights on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, reached the following conclusions: “51. It is the view of the Special Rapporteur that diplomatic assurances are unreliable and ineffective in the protection against torture and ill-treatment: such assurances are sought usually from States where the practice of torture is systematic; post-return monitoring mechanisms have proven to be no guarantee against torture; diplomatic assurances are not legally binding, therefore they carry no legal effect and no accountability if breached; and the person whom the assurances aim to protect has no recourse if the assurances are violated. The Special Rapporteur is therefore of the opinion that States cannot resort to diplomatic assurances as a safeguard against torture and ill-treatment where there are substantial grounds for believing that a person would be in danger of being subjected to torture or ill‑treatment upon return. 52.", "The Special Rapporteur calls on Governments to observe the principle of non‑refoulement scrupulously and not expel any person to frontiers or territories where they might run the risk of human rights violations, regardless of whether they have officially been recognized as refugees.” 81. Specifically referring to the situation regarding torture in Uzbekistan and returns to torture effected in reliance upon diplomatic assurances from the Uzbek authorities, the UN Special Rapporteur on Torture stated to the 2nd Session of the UN Human Rights Council on 20 September 2006: “The practice of torture in Uzbekistan is systematic, as indicated in the report of my predecessor Theo van Boven's visit to the country in 2002. Lending support to this finding, my mandate continues to receive serious allegations of torture by Uzbek law enforcement officials... Moreover, with respect to the events in May 2005 in Andijan, the UN High Commissioner for Human Rights reported that there is strong, consistent and credible testimony to the effect that Uzbek military and security forces committed grave human rights violations there. The fact that the Government has rejected an international inquiry into the Andijan events, independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying.", "Against such significant, serious and credible evidence of systematic torture by law enforcement officials in Uzbekistan, I continue to find myself appealing to Governments to refrain from transferring persons to Uzbekistan. The prohibition of torture is absolute, and States risk violating this prohibition - their obligations under international law - by transferring persons to countries where they may be at risk of torture. I reiterate that diplomatic assurances are not legally binding, undermine existing obligations of States to prohibit torture, are ineffective and unreliable in ensuring the protection of returned persons, and therefore shall not be resorted to by States.” 82. Further referring to the situation regarding torture in Uzbekistan, the UN Special Rapporteur on Torture stated to the 3rd Session of the UN Human Rights Council on 18 September 2008: “741. The Special Rapporteur ... stressed that he continued to receive serious allegations of torture by Uzbek law enforcement officials... 743.", "Moreover, with respect to the events in May 2005 in Andijan, the UN High Commissioner for Human Rights reported that there is strong, consistent and credible testimony to the effect that Uzbek military and security forces committed grave human rights violations there. The fact that the Government has rejected an international inquiry into the Andijan events, and any independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying. Even more so, given that no independent monitoring of human rights is currently being conducted. 744. In light of the foregoing, there is little evidence available, including from the Government that would dispel or otherwise persuade the Special Rapporteur that the practice of torture has significantly improved since the visit which took place in 2002...” 83.", "The UN High Commissioner for Refugees' Note on Diplomatic Assurances and International Refugee Protection published on 10 August 2006 reads as follows: 22. In general, assessing the suitability of diplomatic assurances is relatively straightforward where they are intended to ensure that the individual concerned will not be subjected to capital punishment or certain violations of fair trial rights as a consequence of extradition. In such cases, the wanted person is transferred to a formal process, and the requesting State's compliance with the assurances can be monitored. While there is no effective remedy for the requested State or the surrendered person if the assurances are not observed, non-compliance can be readily identified and would need to be taken into account when evaluating the reliability of such assurances in any future cases. 23.", "The situation is different where the individual concerned risks being subjected to torture or other cruel, inhuman or degrading treatment in the receiving State upon removal. It has been noted that 'unlike assurances on the use of the death penalty or trial by a military court, which are readily verifiable, assurances against torture and other abuse require constant vigilance by competent and independent personnel'. The Supreme Court of Canada addressed the issue in its decision in Suresh v. Canada (Minister of Citizenship and Immigration), contrasting assurances in cases of a risk of torture with those given where the person extradited may face the death penalty, and signalling '...the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past. This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials. Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture.", "The former are easier to monitor and generally more reliable than the latter.' 24. In his report to the UN General Assembly of 1 September 2004, the special Rapporteur of the UN Commission on Human Rights on torture and other cruel, inhuman or degrading treatment or punishment examined the question of diplomatic assurances in light of the non-refoulement obligations inherent in the absolute and non-derogable prohibition of torture and other forms of ill-treatment. Noting that in determining whether there are substantial grounds for believing that a person would be in danger of being subjected to torture, all relevant considerations must be taken into account, the Special Rapporteur expressed the view that: 'in circumstances where there is a consistent pattern of gross, flagrant or mass violations of human rights, or of systematic practice of torture, the principle of non‑refoulement must be strictly observed and diplomatic assurances should not be resorted to. '” 84.", "United States Department of State, 2009 Country Reports on Human Rights Practices – Uzbekistan, 11 March 2010. “Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment Although the constitution and law prohibit such practices, law enforcement and security officers routinely beat and otherwise mistreated detainees to obtain confessions or incriminating information. Torture and abuse were common in prisons, pretrial facilities, and local police and security service precincts. Prisoners were subjected to extreme temperatures. Observers reported several cases of medical abuse, and one known person remained in forced psychiatric treatment.", "... Authorities reportedly gave harsher than normal treatment to individuals suspected of extreme Islamist political sympathies, notably pretrial detainees who were alleged members of banned extremist political organizations Hizb ut-Tahrir (HT) or Nur. Local human rights workers reported that authorities often paid or otherwise induced common criminals to beat suspected extremists and others who opposed the government. Two human rights defenders who were arrested reported beatings in pretrial detention facilities. There were reports of politically motivated medical abuse.", "Victims could request through legal counsel that their cases be reviewed by an expert medical board. In practice, however, such bodies generally supported the decisions of law enforcement authorities. ... Prison and Detention Center Conditions Prison conditions remained poor and in some cases life threatening. There continued to be reports of severe abuse, overcrowding, and shortages of food and medicine. Tuberculosis and hepatitis were endemic in the prisons, making even short periods of incarceration potentially life-threatening.", "Family members frequently reported that officials stole food and medicine that were intended for prisoners. There were reports that authorities did not release prisoners, especially those convicted of religious extremism, at the end of their terms. Instead, prison authorities contrived to extend inmates' terms by accusing them of additional crimes or claiming the prisoners represented a continuing danger to society. These accusations were not subject to judicial review.” 85. The European Committee for the Prevention of Torture (“the CPT”), in its 15th General Report of 22 September 2005 on its activities covering the period from 1 August 2004 to 31 July 2005, expressed concern about reliance on diplomatic assurances in the light of the absolute prohibition on torture: “38.", "Reference was made in the Preface to the potential tension between a State's obligation to protect its citizens against terrorist acts and the need to uphold fundamental values. This is well illustrated by the current controversy over the use of 'diplomatic assurances' in the context of deportation procedures. The prohibition of torture and inhuman or degrading treatment encompasses the obligation not to send a person to a country where there are substantial grounds for believing that he or she would run a real risk of being subjected to such methods. In order to avoid such a risk in given cases, certain States have chosen the route of seeking assurances from the country of destination that the person concerned will not be ill-treated. This practice is far from new, but has come under the spotlight in recent years as States have increasingly sought to remove from their territory persons deemed to endanger national security.", "Fears are growing that the use of diplomatic assurances is in fact circumventing the prohibition of torture and ill-treatment. 39. The seeking of diplomatic assurances from countries with a poor overall record in relation to torture and ill-treatment is giving rise to particular concern. It does not necessarily follow from such a record that someone whose deportation is envisaged personally runs a real risk of being ill-treated in the country concerned; the specific circumstances of each case have to be taken into account when making that assessment. However, if in fact there would appear to be a risk of ill-treatment, can diplomatic assurances received from the authorities of a country where torture and ill-treatment is widely practised ever offer sufficient protection against that risk?", "It has been advanced with some cogency that even assuming those authorities do exercise effective control over the agencies that might take the person concerned into their custody (which may not always be the case), there can be no guarantee that assurances given will be respected in practice. If these countries fail to respect their obligations under international human rights treaties ratified by them, so the argument runs, why should one be confident that they will respect assurances given on a bilateral basis in a particular case? 40. In response, it has been argued that mechanisms can be devised for the post‑return monitoring of the treatment of a person deported, in the event of his/her being detained. While the CPT retains an open mind on this subject, it has yet to see convincing proposals for an effective and workable mechanism.", "To have any chance of being effective, such a mechanism would certainly need to incorporate some key guarantees, including the right of independent and suitably qualified persons to visit the individual concerned at any time, without prior notice, and to interview him/her in private in a place of their choosing. The mechanism would also have to offer means of ensuring that immediate remedial action is taken, in the event of it coming to light that assurances given were not being respected.” THE LAW I. THE GOVERNMENT'S PRELIMINARY OBJECTION A. The parties' submissions 86. The Government contended that the application should be declared inadmissible as incompatible ratione personae.", "They submitted that the applicant had not been extradited by the Russian authorities to Uzbekistan, the impugned measure had not been applied to him, his extradition had been suspended and therefore he could not claim to be the victim of a violation of Article 3. 87. The applicant contested the objection and submitted that there was a high risk of his being ill-treated if extradited to Uzbekistan, that the decision to extradite him had been made final by the Russian authorities and that his extradition had been suspended only as a result of the application of the interim measures by the Court. B. The Court's assessment 88.", "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 annulled the expulsion order against the applicant, and Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996‑III). 89. As to the specific category of cases involving expulsion measures, the Court has consistently held that an applicant cannot claim to be the “victim” of a measure which is not enforceable (see Vijayanathan and Pusparajah v. France, 27 August 1992, § 46, Series A no. 241‑B; see also Pellumbi v. France (dec.), no.", "65730/01, 18 January 2005, and Etanji v. France (dec.), no. 60411/00, 1 March 2005). It has adopted the same stance in cases where execution of the deportation or extradition order has been stayed indefinitely or otherwise deprived of legal effect and where any decision by the authorities to proceed with deportation can be appealed against before the relevant courts (see Kalantari v. Germany (striking out), no. 51342/99, §§ 55-56, ECHR 2001‑X, and Mehemi v. France (no. 2), no.", "53470/99, § 54, ECHR 2003‑IV; see also Shamayev and Others v. Georgia and Russia, no. 36378/02, § 355, ECHR 2005‑III; Andriÿ v. Sweden (dec.), no. 45917/99, 23 February 1999; Benamar and Others v. France (dec.), no. 42216/98, 14 November 2000; and Djemailji v. Switzerland (dec.), no. 13531/03, 18 January 2005).", "90. The present application concerns the applicant's extradition to Uzbekistan where, according to him, he would face a serious risk of ill‑treatment by the authorities on account of his political and religious beliefs. The Court observes firstly that the decision concerning the applicant's extradition was made final by the Russian authorities on 23 December 2008 (see paragraph 29 above); secondly, the decision not to extradite the applicant until further notice from the European Court was taken by the Russian authorities in November 2008 only because of the application of Rule 39 of the Rules of Court. Clearly, the fact that the applicant had not been handed over to the Uzbek authorities did not constitute any acknowledgment, whether explicit or implicit, on the part of the Russian authorities that there had been or would have been a violation of Article 3 or that the applicant's extradition order had been deprived of its legal effect. 91.", "In these circumstances, the Court considers that the applicant may claim to be a “victim” for the purposes of Article 34 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 92. The applicant complained that his extradition to Uzbekistan would expose him to a real risk of torture and ill-treatment prohibited by Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties' submissions 93.", "The Government submitted that the allegation of politically motivated persecution of the applicant had been assessed by the Russian courts when examining his appeals against the extradition order, and rejected as unfounded. The Russian courts had relied on the statement from the Prosecutor General's Office of Uzbekistan to the effect that the applicant would face no risk of ill-treatment if he were to be extradited to Uzbekistan and on the fact that the Russian authorities such as the Ministry of Foreign Affairs and the FSB did not have any information confirming his allegation. Referring to the assurances from the Uzbek authorities the Government argued that the applicant would not be subjected to ill‑treatment or punishment contrary to Article 3 of the Convention. 94. The applicant maintained that he had argued before the Russian courts that he faced a real risk of ill-treatment and political persecution in Uzbekistan.", "He had submitted reports on Uzbekistan by the UN institutions and international NGOs confirming that torture was widespread in detention facilities and that this information had not received proper assessment from the Russian authorities. He further maintained that the authorities had failed to take into account the information from the Russian Office of the UN High Commissioner for Refugees confirming that the risk of his being ill‑treated in Uzbekistan was justified and substantiated. He pointed out that the courts had rejected his arguments without giving any reasons except a reference to the assurances given by the Uzbek authorities. Finally, he referred to a number of cases examined by the Court in which it had been established that extradition to Uzbekistan of a person sought for political crimes would constitute a violation of Article 3. B.", "The Court's assessment 1. Admissibility 95. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits 96. For a summary of the relevant general principles emerging from the Court's case-law see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 66-70, ECHR 2005‑I. 97.", "From the materials submitted by the parties it is clear that the applicant was arrested in Russia and subsequently detained at the request of the Uzbek authorities, who suspected him of a number of crimes, including an attempt to overthrow the constitutional order and membership of extremist organisations. The Russian authorities commenced extradition proceedings against him. Throughout the proceedings the applicant claimed that his extradition to Uzbekistan would expose him to a danger of ill‑treatment. He also lodged an application for asylum, reiterating his fears of torture and persecution for political motives. He supported his submissions with reports prepared by UN institutions and international NGOs describing the ill-treatment of detainees in Uzbekistan.", "The Russian Office of the UN High Commissioner for Refugees confirmed that his fear of persecution and ill-treatment in Uzbekistan was justified and substantiated. The Russian authorities rejected his application for refugee status and ordered his extradition to Uzbekistan based on assurances from the Uzbek authorities and information received from the Ministry of Foreign Affairs and the FSB (see paragraphs 26-29 above). 98. The Court's task is to establish whether there exists a real risk of ill‑treatment in the event of the applicant's extradition to Uzbekistan. Since he has not yet been extradited owing to the indication by the Court of an interim measure under Rule 39 of the Rules of Court, the material date for the assessment of that risk is that of the Court's consideration of the case.", "It follows that, although the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive (see Chahal v. the United Kingdom, 15 November 1996, § 86, Reports 1996-V). 99. As regards the applicant's allegation that detainees suffer ill‑treatment in Uzbekistan, the Court has recently acknowledged that a general problem still persists in that country in this regard (see, for example, Ismoilov and Others v. Russia, no. 2947/06, §§ 120-121, 24 April 2008, and Muminov v. Russia, no. 42502/06, §§ 93-96, 11 December 2008).", "No concrete evidence has been produced to demonstrate any fundamental improvement in this field in Uzbekistan in the last several years (see paragraphs 81, 82 and 84 above). The Court therefore considers that the ill‑treatment of detainees is a pervasive and enduring problem in Uzbekistan. 100. As to the applicant's personal situation, the Court observes that he was charged with a number of politically motivated crimes. Given that an arrest warrant was issued in respect of the applicant, it is most likely that he would be placed in custody directly after his extradition and therefore would run a serious risk of ill-treatment.", "The Court also takes note of the information received from the Russian Office of the UN High Commissioner for Refugees confirming the applicant's allegations of a risk of ill-treatment in Uzbekistan in the event of his extradition (see paragraphs 47, 50 and 54 above). 101. As to the Government's argument that assurances were obtained from the Uzbek authorities, the Court has already cautioned against reliance on diplomatic assurances against torture from a State where torture is endemic or persistent (see Chahal, cited above, and Saadi v. Italy [GC], no. 37201/06, §§ 147-148, ECHR 2008-...). Given that the practice of torture in Uzbekistan is described by reputable international sources as systematic (see paragraphs 81-83 above), the Court is not persuaded that the assurances from the Uzbek authorities offered a reliable guarantee against the risk of ill-treatment.", "102. Accordingly, the applicant's forcible return to Uzbekistan would give rise to a violation of Article 3 as he would face a serious risk of being subjected there to torture or inhuman or degrading treatment. III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 103. The applicant complained under Article 5 § 1 of the Convention that his detention pending extradition between 21 and 24 July 2008 had been unlawful as it was not based on a court order, and that the domestic regulations concerning detention pending extradition were not sufficiently clear and predictable.", "The relevant parts of Article 5 § 1 read as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” A. The parties' submissions 104. The Government acknowledged that the applicant's detention between 21 and 24 July 2008 had not been based on a court order but contended that the applicant had failed to appeal against it.", "In particular, they submitted that the applicant's lawyer had failed to lodge a proper complaint about it with the domestic courts (see paragraph 36 above). At the same time the Government contended that in any case this period of detention had been authorised by the court order of 24 July 2008 which had extended the applicant's detention until 12 December 2008. 105. The Government further contended that the applicant's detention pending extradition complied fully with the domestic legislation, in particular with the provisions of Article 466 § 1 of the Code of Criminal Procedure. Referring to Constitutional Court decision no.", "333-O-P of 1 March 2007 (see paragraph 73 above), they argued that the relevant provisions had been predictable, clear and foreseeable and had enabled the applicant to estimate the length of his detention pending extradition. 106. The applicant disagreed with the Government. He submitted that the decision concerning his complaint about the unlawfulness of his detention between 21 and 24 July 2008 had been taken on 4 August 2008, that is, after the court order of 24 July 2008 extending his detention until 12 December 2008, and that in such circumstances it would have been futile and ineffective for him to further appeal against the actions of the head of the detention centre, which would not have led to his release from unlawful detention but rather to disciplinary measures against the official. He further submitted that he had appealed against the extension order of 24 July 2008, which would have been an effective remedy, but that the domestic courts had failed to examine the issue of the lawfulness of his detention between 21 and 24 July 2008.", "107. The applicant submitted that the domestic regulations concerning detention pending extradition were not sufficiently clear and predictable. He further stated that the application of the interim measure by the Court could not serve as justification for extending his detention pending extradition indefinitely. B. The Court's assessment 1.", "Admissibility 108. The Government raised an objection of non-exhaustion of domestic remedies by the applicant. The Court reiterates that the decisive question in assessing the effectiveness of a remedy is whether the applicant could have raised that complaint in order to obtain direct and timely redress, and not merely an indirect protection of the rights guaranteed in Article 5 of the Convention (see, among other authorities, Belousov v. Russia, no. 1748/02, §§ 67-69, 2 October 2008). Further, it is incumbent on the respondent Government claiming non-exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicant did not have recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say, that they were accessible, were capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, no.", "41964/98, § 65, 27 June 2006). 109. Turning to the facts of the present case, the Court notes that the Government suggested that the applicant should have applied to a court with his complaint about his unlawful detention between 21 and 24 July 2008. They did not specify the legal norms providing for the possibility of bringing such a complaint before a court. Nor did the Government supply any example from domestic practice showing that it was possible for the applicant to successfully bring such a complaint.", "In this connection the Court notes that Russian legislation provides two avenues of appeal in the applicant's situation. The first, which was used by the applicant, is to lodge a complaint under Article 125 of the Code of Criminal Procedure within the framework of criminal proceedings; the second is to apply for compensation through civil proceedings. 110. As to the civil remedies, the Court notes that the Government did not make reference to any legal norm providing for the possibility of bringing such a complaint before a court. Nor did the Government supply any example from domestic practice showing that it was possible for the applicant to bring such a complaint.", "As to the criminal domestic remedies, the Court notes that Article 125 of the Code of Criminal Procedure stipulates that the domestic courts must examine complaints within five days from their receipt. In the present case, the applicant's complaint lodged on 22 July 2008 was examined by the Town Court on 25 July 2008; this was within the prescribed time-limit, but came after the decision of the very same court of 24 July 2008 extending the applicant's detention until 12 December 2008 and providing retrospective authorisation of his detention during the impugned period. The Court further notes that the applicant raised the issue of his unlawful detention between 21 and 24 July 2008 before the Town Court (see paragraph 37 above), thus making use of an avenue prescribed by domestic law. 111. In such circumstances, it is highly questionable whether the applicant could have effectively challenged the lawfulness of this period of detention before a court.", "The Court therefore dismisses the Government's objection as to the applicant's failure to exhaust domestic remedies in respect of his detention between 21 and 24 July 2008. 112. The Court notes, therefore, that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits 113. The Court has previously noted that where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. The requirement of “quality of law” in relation to Article 5 § 1 implies that where a national law authorises a deprivation of liberty it must be sufficiently assessable, precise and foreseeable in application, in order to avoid all risk of arbitrariness (see Baranowski v. Poland, no. 28358/95, §§ 50-52, ECHR 2000-III, and Khudoyorov v. Russia, no.", "6847/02, § 125, ECHR 2005-X (extracts)). 114. In so far as the question concerns the quality of national law governing detention pending extradition, the Court points out that it has already faced similar issues in the cases of Nasrulloyev v. Russia, no. 656/06, § 77, 11 October 2007; Ismoilov and Others, cited above, §§ 138-140, and Ryabikin v. Russia, no. 8320/04, §§ 127-130, 19 June 2008, where the Court found it established that the domestic provisions concerning detention pending extradition fell short of the “quality of law” standard required under the Convention.", "115. In their arguments in the present case the Government referred to Constitutional Court decision no. 333-O-P of 1 March 2007. The Court notes that this decision established that the domestic legal provisions and practice governing detention pending extradition should comply with the general rules of criminal procedure, and that this decision did not introduce new rules to be followed by the domestic court in dealing with such detention. Bearing in mind that in the above-mentioned cases the Court already found the rules of criminal procedure concerning such detention to be inconsistent, mutually exclusive and not circumscribed by adequate safeguards against arbitrariness, the Court cannot find that the Government's reference to the Constitutional Court's decision of 1 March 2007 warrants a different conclusion concerning the provisions of Russian law governing the detention of persons with a view to their extradition and their application in the present case.", "116. Further, the Court notes that the Government acknowledged that the applicant's detention between 21 and 24 July 2008 had not been based on a court order. At the same time they contended that in any case this detention had been authorised by the court order of 24 July 2008 which had authorised the applicant's detention between 12 June and 24 July 2008 and extended it until 12 December 2008. 117. The Court notes the inconsistency of the Government's stance concerning the legal grounds for the applicant's detention between 21 and 24 July 2008.", "But even assuming that this detention was authorised by the court order of 24 July 2008, the Court reiterates that any ex post facto authorisation of detention on remand is incompatible with the “right to security of person” as it is necessarily tainted with arbitrariness. Permitting a prisoner to languish in detention on remand without a judicial decision would be tantamount to overriding Article 5, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see Khudoyorov, cited above, § 142). 118. There has therefore been a violation of Article 5 § 1 of the Convention. IV.", "ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 119. The applicant complained under Articles 5 § 4 of the Convention that he was unable to obtain effective judicial review of his detention. 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.” A. The parties' submissions 120. The Government contended that the applicant's complaint should be rejected as manifestly ill-founded and pointed out that all of his complaints in respect of his detention pending extradition had been examined by the domestic courts in compliance with the relevant provisions of the Code of Criminal Procedure.", "Therefore, the applicant had been able to obtain a review of his detention. 121. The applicant submitted that the Russian courts had failed to speedily review the lawfulness of his detention, in violation of Article 108 § 11 of the Code of Criminal Procedure, which required the second‑instance courts to examine appeals within three days of their receipt. He pointed out that all his appeals against the extension orders had been examined by the courts with significant delays. B.", "The Court's assessment 1. Admissibility 122. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits 123. The Court reiterates that Article 5 § 4 of the Convention, in guaranteeing to persons detained a right to institute proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and ordering its termination if it proves unlawful (see Baranowski, cited above, § 68). It is for the State to organise its judicial system in such a way as to enable the courts to comply with the requirements of Article 5 § 4 (see, mutatis mutandis, R.M.D. v. Switzerland, 26 September 1997, § 54, Reports 1997-VI).", "The question whether the right to a speedy decision has been respected must be determined in the light of the circumstances of each case (see Rehbock v. Slovenia, no. 29462/95, § 84, ECHR 2000-XII). 124. Turning to the circumstances of the present case, the Court notes that the applicant lodged five appeals against the court extension orders. The first appeal was lodged on 17 June 2008 against the court order of 12 June 2008; this appeal was examined by the Mari-Al Supreme Court on 2 July 2008, that is, fifteen days after its receipt by the court.", "The second appeal was lodged on 7 July 2008 against the court extension order of 4 July 2008; this appeal was examined by the Mari-Al Supreme Court on 1 August 2008, that is, twenty-five days after its receipt by the court. The third appeal was lodged on 28 July 2008 against the court order of 24 July 2008; this appeal was examined by the Mari-Al Supreme Court on 14 August 2008, that is, twenty-one days after its receipt by the court. The fourth appeal was lodged on 5 December 2008 against the court order of the same date; this appeal was examined by the Mari-Al Supreme Court on 19 December 2008, that is, fourteen days after its receipt by the court. The fifth appeal was lodged on 13 March 2009 against the court order of 11 March 2009; this appeal was examined by the Mari-Al Supreme Court on 26 March 2009, that is, thirteen days after its receipt by the court. 125.", "The Court further observes that throughout the proceedings the applicant remained in detention and that the Government did not argue that the applicant or his counsel had in some way contributed to the length of the appeal proceedings. It therefore follows that the entire length of the appeal proceedings is attributable to the domestic authorities. 126. The Government did not provide any justification for the delays in the examination of the applicant's appeals. In that respect the Court reiterates that where an individual's personal liberty is at stake, the Court has set up very strict standards concerning the State's compliance with the requirement of speedy review of the lawfulness of detention (see, for example, Kadem v. Malta, no.", "55263/00, §§ 44-45, 9 January 2003, where the Court considered a delay of seventeen days in deciding on the lawfulness of the applicant's detention excessive, and Butusov v. Russia, no. 7923/04, § 35, 22 December 2009, where the Court considered that a delay of twenty days in deciding on the application for release was excessive). 127. Having regard to the above, the Court considers that the delays in question, ranging from thirteen to twenty-five days, cannot be considered compatible with the “speediness” requirement of Article 5 § 4. 128.", "There has therefore been a violation of Article 5 § 4 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 129. The applicant alleged that he had had no effective remedy in respect of the above violations. He referred to Article 13, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties' submissions 130.", "The Government contended that the applicant had had access to the domestic courts in respect of his complaints concerning the risk of ill‑treatment. They referred to the case of Kurbanov v. Russia (no. 19293/08), in which the order for the applicant's extradition to Uzbekistan was overruled by the Supreme Court of the Russian Federation on 28 May 2008. They contended that such a remedy was effective and that the fact that the applicant's appeals had not produced the desired outcome did not demonstrate its ineffectiveness. 131.", "The applicant reiterated his complaint. B. The Court's assessment 1. Admissibility 132. The Court notes that the applicant's complaint under Article 13 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds.", "It must therefore be declared admissible. 2. Merits 133. The Court notes that the scope of a State's obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Given the irreversible nature of the harm that might occur if the alleged risk of torture or ill-treatment materialised and the importance which the Court attaches to Article 3, the notion of an effective remedy under Article 13 requires (i) independent and rigorous scrutiny of a claim that there are 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) the provision of an effective possibility of suspending the enforcement of measures whose effects are potentially irreversible (or “a remedy with automatic suspensive effect” as it is phrased in Gebremedhin [Gaberamadhien] v. France, no.", "25389/05, § 66 in fine, ECHR 2007-V, which concerned an asylum seeker wishing to enter the territory of France); see also Jabari v. Turkey, no. 40035/98, § 50, ECHR 2000-VIII; Shamayev and Others, cited above, § 460; Olaechea Cahuas v. Spain, no. 24668/03, § 35, ECHR 2006-X; and Salah Sheekh v. the Netherlands, no. 1948/04, § 154, ECHR 2007-I (extracts). 134.", "Judicial review proceedings constitute, in principle, an effective remedy within the meaning of Article 13 of the Convention in relation to complaints in the context of expulsion and extradition, provided that the courts can effectively review the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate (see Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 99, ECHR 2002-II). Turning to the circumstances of the present case, the Court observes that the decision of the Prosecutor General's Office to extradite the applicant was upheld on appeal by the Mari-Al Supreme Court and subsequently by the Supreme Court. In their decisions the domestic courts did not conduct a detailed examination of the applicant's allegation of the risk of ill-treatment in Uzbekistan, simply referring in general terms to the assurances provided by the Uzbek authorities and the brief information received from the Ministry of Foreign Affairs and the FSB (see paragraphs 26 and 29 above). Consequently, the courts failed to rigorously scrutinise the applicant's claims that he faced a risk of ill-treatment in the event of his extradition to Uzbekistan.", "135. As to the Government's reference to the case of Kurbanov v. Russia, the Court points out that the extradition order against the applicant in that case was indeed overruled; however, this was because the Supreme Court applied the statute of limitations and discontinued the extradition proceedings as time-barred, and not because it examined the issue of the risk of the applicant's being ill-treated in the event of his extradition. 136. It should also be noted that the Government did not refer to any provisions of domestic legislation which could have afforded redress in the applicant's situation or had a suspensive effect on his extradition (see, mutatis mutandis, Muminov, cited above, §§ 102-104). 137.", "Accordingly, the Court concludes that in the circumstances of the present case there has been a violation of Article 13 of the Convention because the applicant was not afforded an effective and accessible remedy in relation to his complaint under Article 3 of the Convention. 138. As regards the applicant's complaints under Article 5 of the Convention, in the light of the Court's established case-law stating that the more specific guarantees of Article 5, which is a lex specialis in relation to Article 13, absorb its requirements (see Dimitrov v. Bulgaria (dec.), no. 55861/00, 9 May 2006), and in view of its above findings of violations of Article 5 of the Convention, the Court considers that no separate issue arises in respect of Article 13 in conjunction with Article 5 of the Convention in the circumstances of the present case. VI.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 139. The Court has examined another complaint submitted by the applicant under Article 5 § 1 of the Convention alleging that his detention pending extradition between 13 November 2008 and 11 June 2009 was unlawful, and a complaint under Article 6 § 2 alleging that the decision of the Supreme Court of the Republic of Mari-Al of 31 October 2008 violated his right to be presumed innocent. However, having regard to all the material in its possession, it finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 140. It follows that this part of application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.", "VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 141. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 142. The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage.", "143. The Government did not dispute the amount claimed. 144. The Court, making an assessment on an equitable basis, awards EUR 13,000 to the applicant in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B.", "Costs and expenses 145. Relying on the fee agreements and lawyers' timesheets, the applicant claimed EUR 9,100 (EUR 4,400 and 188,000 Russian roubles (RUB)) for the work of his representatives Mr R. Zilberman and Ms E. Ryabinina in representing him before the domestic authorities and the Court, and EUR 610 for administrative and postal expenses. 146. The Government contended that the applicant had not submitted any proof that the payments had been necessary and reasonable. 147.", "According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 9,000 covering costs under all heads. C. Default interest 148. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaints under Article 3, Article 5 § 1 in respect of the applicant's detention between 21 and 24 July 2008, Article 5 § 4 and Article 13 admissible and the remainder of the application inadmissible; 2. Holds that in the event of the extradition order against the applicant being enforced, there would be a violation of Article 3 of the Convention; 3. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the applicant's detention between 21 and 24 July 2008; 4. Holds that there has been a violation of Article 5 § 4 of the Convention; 5. Holds that there has been a violation of Article 13 in conjunction with Article 3 of the Convention; 6.", "Holds that there is no need to examine the alleged violation of Article 13 in conjunction with Article 5 of the Convention; 7. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement: (i) EUR 13,000 (thirteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 9,000 (nine thousand euros) in respect of the applicant's legal representation, plus any tax that may be chargeable to the applicant; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 8. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 29 July 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FIRST SECTION CASE OF LAMAZHYK v. RUSSIA (Application no. 20571/04) JUDGMENT STRASBOURG 30 July 2009 FINAL 30/10/2009 This judgment may be subject to editorial revision. In the case of Lamazhyk v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 7 July 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 20571/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Orlan Kan-oolovich Lamazhyk (“the applicant”), on 12 April 2004.", "2. The applicant was represented by Mr S. Damdyn, a lawyer practising in the town of Kyzyl, Tyva Republic. The Russian Government (“the Government”) were represented by Mr P. Laptev and Mrs V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights. 3. The applicant alleged, in particular, that his detention on remand had been unlawful and excessively long, that the domestic courts had delayed examination of detention issues and that the criminal case against him had not been examined within a reasonable time.", "4. On 14 November 2006 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). 5. The Government objected to the joint examination of the admissibility and merits of the application.", "Having examined the Government’s objection, the Court dismissed it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1974 and lived until his arrest in the town of Kyzyl in the Tyva Republic of the Russian Federation. A.", "Institution of criminal proceedings and the applicant’s arrest 7. On 21 January 2000 criminal proceedings were instituted against the applicant on suspicion of several counts of aggravated robbery. On the following day he was arrested. Three days later, however, his release was authorised on condition that he did not leave his town of residence. 8.", "On 3 March 2000 the head of the investigative unit of the Ministry of Internal Affairs of the Tyva Republic authorised the applicant’s arrest in a decision which, in so far as relevant, read: “On the night of 20-21 January 2000, at approximately midnight, [the applicant], who is unemployed, acting with mercenary intent for the purpose of stealing another’s property, in collusion with Mr O. and unidentified persons, arrived by car... at the village of Khalbus-Dash... [and], having unlawfully entered a house and used weapons, attacked Mr Kh. and Mr D. After beating the victims Mr Kh. and Mr D. and having tied their hands, [the applicant], Mr O. and unidentified individuals, issuing threats of murder, killed 14 [cows], placed their bodies in the cars and stole property, thus causing the victims Mr O., Mr Or. and Mr D. pecuniary damage in the amount of 78,430 roubles, and fled the crime scene. Having regard to the threat which the committed criminal offence poses to society and taking into account that [the applicant], if at liberty, may obstruct the establishment of the truth in the criminal case and may also abscond from the investigation and the court... [I] ORDER: 1.", "That a measure of restraint in the form of arrest should be applied to [the applicant], who is to be informed of this, against his signature on a copy of the present decision...” The decision bore the applicant’s signature under the last printed paragraph, confirming that the decision had been served on him on 17 May 2000. 9. On 4 March 2000 the head of the investigative unit placed the applicant on the wanted persons list. The relevant part of the decision read: “On 3 March 2000 a decision charging [the applicant] with having committed a crime proscribed by Article 162 § 3 (b) of the Russian Criminal Code and a warrant for his arrest were issued, given the particular gravity and dangerous nature of the crime committed by him. On the same day [police officers] were authorised to bring [the applicant] to the pre-trial investigating authorities for the reading out of the charges and his questioning as an accused.", "However, the accused, [the applicant], was not found at his place of residence... [It] was established that he left for the Barun-Khemchinskiy District in the Tyva Republic. His exact location was not discovered.” 10. On 6 March 2000 the applicant was arrested. On the following day the Kyzyl District Prosecutor authorised his detention on remand. B. Extensions of detention by prosecution authorities 11.", "On 9 June 2000 the acting Prosecutor of the Tyva Republic, by the same decision, extended the applicant’s and his co-defendant’s detention until 21 July 2000, relying on the particular gravity of the charges against them and the likelihood that they would pervert the course of justice and abscond if released. 12. The applicant’s and his co-defendants’ detention was further extended on 13 July, 10 and 23 October 2000 until 21 October and 6 November 2000 and 21 January 2001 respectively, with reference to the same grounds as in the decision of 9 June 2000. C. Trial proceedings and further detention on remand. 13.", "On 20 January 2001 the applicant was committed for trial before the Supreme Court of the Tyva Republic. According to the Government, the applicant’s detention from 21 January to 20 March 2001 was not covered by any legal order as the domestic authorities were not required to issue one under the legislation governing criminal procedure. D. First round of additional investigation 14. On 15 February 2001 the Supreme Court of the Tyva Republic adjourned the examination of the criminal case because one of the applicant’s co-defendants had violated the conditions of his release on bail and had absconded. The case file was sent to the Prosecutor of the Tyva Republic.", "The Supreme Court also noted that the prosecution authorities were to “determine the issue of the application of a measure of restraint [in respect of the applicant and his co-defendants]”. 15. The Supreme Court of the Tyva Republic resumed proceedings on 5 March 2001 and fixed a hearing for 12 March 2001. That hearing was adjourned because the victims and a lawyer failed to appear. E. Second transfer of the case for additional investigation 16.", "On 20 March 2001 the Supreme Court of the Tyva Republic returned the case file to the prosecution authorities with an order to correct certain serious procedural defects, noting that the defence rights had been violated. In the same decision the Supreme Court held that the measure of restraint applied to the co-defendants, including the applicant, should “remain unchanged” due to the gravity of the charges against them. 17. On 13 June 2001 the Supreme Court of the Russian Federation, acting on appeals from the applicant’s co-defendants, upheld the decision of 20 March 2001, endorsing the reasons given by the lower court. 18.", "On 20 July 2001 the acting Prosecutor of the Tyva Republic, relying on the gravity of the charges and the defendants’ liability to abscond, pervert the course of justice and re-offend, in a single decision, extended the applicant’s and his co-defendants’ detention until 20 August 2001. A further extension until 20 September 2001 was ordered by a deputy Prosecutor General of the Russian Federation, with reference to the same grounds. F. Third round of additional investigation. Further extension of the applicant’s detention and trial proceedings 19. On 14 September 2001 the prosecution authorities returned the case file to the Supreme Court of the Tyva Republic, which on 2 October 2001 remitted the case again for additional investigation, noting serious violations of the defence rights, which had not been remedied during the previous referral of the case file to the prosecution authorities.", "The Supreme Court also noted that the defendants should remain in custody, given the gravity of the charges against them. 20. Having received the case file, on 11 October 2001 the first deputy prosecutor of the Tyva Republic extended the applicant’s and co-defendants’ detention until 11 November 2001, relying on the previously used grounds, namely the gravity of the charges and the defendants’ liability to abscond, reoffend and pervert the course of justice. 21. On 8 November 2001 the additional investigation ended and the Supreme Court of the Tyva Republic received the case file.", "It fixed the first hearing for 6 December 2001. As follows from copies of court minutes presented by the Government, the hearing of 6 December 2001, and the following hearings scheduled for 10 January and 12 March 2002, were adjourned because the presiding judge was involved in other unrelated proceedings. 22. In the meantime, the composition of the bench changed: a new presiding judge and lay assessor were assigned to the case. Between 12 March and 13 June 2002 the Supreme Court of the Tyva Republic fixed five hearings, of which three were adjourned because the co-defendants’ lawyers failed to appear, one hearing was rescheduled because the victims did not attend and one hearing was adjourned because it was necessary to serve a co-defendant with a copy of the indictment bill in a language he understood.", "G. Decision of 13 June 2002 to refer the case for additional investigation 23. On 13 June 2002 the Supreme Court of the Tyva Republic, having found that the prosecution authorities had committed serious procedural violations at the indictment stage, referred the case back for additional investigation with an order to respect the rights of the defendants, including their right to the services of an interpreter, etc. The Supreme Court also stressed that the defendants should remain in detention. 24. On 15 November 2002 the Supreme Court of the Russian Federation quashed the decision of 13 June 2002 in the part concerning the referral of the case for additional investigation and sent the case for examination on the merits by the Supreme Court of the Tyva Republic.", "At the same time the Supreme Court of the Russian Federation held that there were no grounds to change the measure of restraint applied to the defendants and that they should therefore remain in custody. 25. After having received the case file on 4 February 2003, the Supreme Court of the Tyva Republic fixed the first hearing for 12 February 2003. That hearing was adjourned because the co-defendants’ counsel failed to appear. The subsequent two hearings, listed for 3 and 19 March 2003, were postponed for the same reason.", "26. On 24 March 2003 the Supreme Court of the Tyva Republic authorised an extension of the defendants’ detention for an additional three months, until 24 June 2003, holding as follows: “Taking into account the prosecutor’s arguments that [the defendants] are charged with a criminal offence which belongs to the category of particularly serious [offences], punishable by a maximum of 10 years’ imprisonment, [and] having regard to the particular complexity of the criminal case and [the fact] that the release from custody of the defendants, who pose an increased danger to society, may impede considerably a thorough, complete and objective examination of the circumstances of the case, the measure of restraint applied to the defendants should remain unchanged.” 27. Of the three hearings scheduled between 26 March and 24 June 2003 by the Supreme Court of the Tyva Republic, two were adjourned because the co-defendants’ lawyers and the victims failed to appear and one hearing was postponed to provide counsel with additional time to study the materials of the case file. 28. On 24 June 2003 the Supreme Court of the Tyva Republic, using identical wording as that in the decision of 24 March 2003, extended the defendants’ detention until 24 September 2003.", "29. Between 24 June and 25 September 2003 the Supreme Court of the Tyva Republic fixed four hearings, of which two were adjourned because the defence counsel failed to appear or were on annual leave, one hearing was postponed because a co-defendant was ill and one was rescheduled due to a victim’s failure to attend. 30. On 25 September 2003 the Supreme Court of the Tyva Republic once again extended the defendants’ detention for an additional three months, until 24 December 2003, invoking the same grounds as in the previous two detention orders of 24 March and 24 June 2003. 31.", "The applicant’s lawyer appealed against the detention order of 25 September 2003, arguing that the applicant’s detention from 24 to 25 September 2003 had not been covered by any legal order, in violation of the requirements of the Russian Code of Criminal Procedure and that the detention in general was excessively long. 32. On 4 December 2003 the Supreme Court of the Russian Federation upheld the detention order of 25 September 2003, noting that the applicant’s and his co-defendants’ detention had been regularly extended in compliance with the requirements of the Russian legislation on criminal procedure. It further stressed that in extending the defendants’ detention the Supreme Court of the Tyva Republic had correctly relied on the gravity of the charges. As regards the detention from 24 to 25 September 2003, the Supreme Court of the Russian Federation held that the detention had been lawful, since the prosecution authorities had submitted the application for the extension before 24 September 2003 and the Supreme Court of the Tyva Republic had merely scheduled the hearing for 25 September 2003.", "33. In the meantime, the Supreme Court of the Tyva Republic listed nine hearings between 25 September and 4 December 2003. Of those hearings, two were adjourned because the victims failed to appear, three hearings were rescheduled because the co-defendants’ counsel were either involved in other proceedings or failed to appear, one hearing was postponed because the presiding judge was ill, one was postponed on the applicant’s lawyer’s request and two were cancelled because it was necessary to determine the issue of the defendants’ representation. 34. On 18 December 2003 the Supreme Court of the Tyva Republic, relying on the same grounds as in the detention orders issued in 2003, issued a collective decision in respect of all the defendants, extending their detention until 24 March 2004.", "Subsequent identically-worded detention orders were issued by the Supreme Court of the Tyva Republic on 19 March and 18 June 2004, extending the defendants’ detention until 24 June and 24 September 2004 respectively. The detention orders of 18 December 2003, 19 March and 18 June 2004 were amenable to appeal. Neither the applicant nor his lawyer made use of the appeal procedure. 35. Of the sixteen hearings scheduled between January and 25 August 2004, nine hearings were adjourned because either witnesses or co-defendants’ and victims’ counsel failed to appear, two were postponed because the applicant’s lawyer did not attend, two were rescheduled because the co-defendants’ counsel were involved in other proceedings and one was cancelled following a co-defendant’s request to consult a lawyer.", "36. On 25 August 2004 the Supreme Court of the Tyva Republic found the applicant guilty of aggravated robbery and aggravated theft of weapons and sentenced him to eight years’ and two months’ imprisonment. The applicant decided not to lodge an appeal. II. RELEVANT DOMESTIC LAW Placement in custody and detention 37.", "Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic (Law of 27 October 1960, “the old CCrP”). From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”). 1. Preventive measures 38.", "“Preventive measures” or “measures of restraint” include an undertaking not to leave a town or region, a personal guarantee, bail and remand in custody (Article 89 of the old CCrP, Article 98 of the new CCrP). 2. Authorities ordering detention 39. The Russian Constitution of 12 December 1993 provides that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22). Under the old CCrP, a decision ordering detention could be taken by a prosecutor or a court (Articles 11, 89 and 96).", "The new CCrP requires a judicial decision by a district or town court on a reasoned request by a prosecutor, supported by appropriate evidence (Article 108 §§ 1, 3-6). 3. Grounds for remand in custody 40. When deciding whether to remand an accused in custody, the competent authority is required to consider whether there are “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 89 of the old CCrP). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 91 of the old CCrP, Article 99 of the new CCrP).", "41. Before 14 March 2001, remand in custody was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year’s imprisonment or if there were “exceptional circumstances” in the case (Article 96). On 14 March 2001 the old CCrP was amended to permit defendants to be remanded in custody if the charge carried a sentence of at least two years’ imprisonment, if they had previously defaulted, had no permanent residence in Russia or if their identity could not be ascertained. The amendments of 14 March 2001 also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had allegedly committed. The new CCrP reproduced the amended provisions (Articles 97 § 1 and 108 § 1) and added that a defendant should not be remanded in custody if a less severe preventive measure was available.", "4. Time-limits for detention (a) Two types of remand in custody 42. The Codes make a distinction between two types of remand in custody: the first being “during investigation”, that is, while a competent agency – the police or a prosecutor’s office – is investigating the case, and the second being “before the court” (or “during judicial proceedings”), at the judicial stage. Although there is no difference in practice between them (the detainee is held in the same detention facility), the calculation of the time-limits is different. (b) Time-limits for detention “during investigation” 43.", "After arrest the suspect is placed in custody “during investigation”. The maximum permitted period of detention “during investigation” is two months but this can be extended for up to eighteen months in “exceptional circumstances”. Under the old CCrP, extensions were authorised by prosecutors of ascending hierarchical levels but they must now be authorised by judicial decisions, taken by courts of ascending levels (under the new CCrP). No extension of detention “during investigation” beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 § 4 of the new CCrP). 44.", "The period of detention “during investigation” is calculated up to the date on which the prosecutor sends the case to the trial court (Article 97 of the old CCrP, Article 109 § 9 of the new CCrP). 45. Access to the materials in the file is to be granted no later than one month before the expiry of the authorised detention period (Article 97 of the old CCrP, Article 109 § 5 of the new CCrP). If the defendant needs more time to study the case file, a judge, on a request by a prosecutor, may grant an extension of the detention until such time as the file has been read in full and the case sent for trial (Article 97 of the old CCrP, Article 109 § 8 (1) of the new CCrP). Under the old CCrP, such an extension could not be granted for longer than six months.", "46. Under the old CCrP, the trial court was entitled to refer the case back for “additional investigation” if it found procedural defects that could not be remedied at the trial. In such cases the defendant’s detention was again classified as “during investigation” and the relevant time-limit continued to apply. If, however, the case was remitted for additional investigation but the investigators had already used up all the time authorised for detention “during investigation”, a supervising prosecutor could nevertheless extend the detention period for one additional month, starting from the date on which he or she received the case. Subsequent extensions could only be granted if the detention “during investigation” had not exceeded eighteen months (Article 97).", "(c) Time-limits for detention “before the court”/”during judicial proceedings” 47. From the date the prosecutor refers the case to the trial court, the defendant’s detention is classified as “before the court” (or “during judicial proceedings”). 48. Before 15 June 2001 the old CCrP set no time-limit for detention “during judicial proceedings”. On 15 June 2001 a new Article, 239-1, entered into force which established that the period of detention “during judicial proceedings” could not generally exceed six months from the date the court received the file.", "However, if there was evidence to show that the defendant’s release might impede a thorough, complete and objective examination of the case, a court could – of its own motion or on a request by a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with particularly serious criminal offences. 49. The new CCrP provides that the term of detention “during judicial proceedings” is calculated from the date the court received the file up to the date on which judgment is given. The period of detention “during judicial proceedings” may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).", "5. Proceedings to examine the lawfulness of detention (a) Detention “during investigation” 50. Under the old CCrP, the detainee or his or her counsel or representative could challenge the detention order issued by a prosecutor, and any subsequent extension order, before a court. The judge was required to review the lawfulness of and justification for a detention or extension order no later than three days after receipt of the relevant papers. The review was to be conducted in camera in the presence of a prosecutor and the detainee’s counsel or representative.", "The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances, if the detainee waived his right to be present of his own free will. The judge could either dismiss the challenge or revoke the pre-trial detention and order the detainee’s release (Article 220-1). An appeal to a higher court lay against the judge’s decision. It had to be examined within the same time-limit as appeals against a judgment on the merits (see paragraph 96 below) (Article 331 in fine). 51.", "Under the new CCrP, an appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention. The appeal court must rule on the appeal within three days of its receipt (Article 108 § 10). (b) During judicial proceedings 52. Upon receipt of the case file, the judge must determine, in particular, whether the defendant should be held in custody or released pending the trial hearings (Article 222 § 5 and Article 230 of the old CCrP, Article 228 (3) and Article 231 § 2 (6) of the new CCrP) and rule on any application by the defendant for release (Article 223 of the old CCrP). 53.", "At any time during the judicial proceedings the court may order, vary or revoke any preventive measure, including remand in custody (Article 260 of the old CCrP, Article 255 § 1 of the new CCrP). Any such decision must be given in the deliberation room and signed by all the judges on the bench (Article 261 of the old CCrP, Article 256 of the new CCrP). 54. An appeal against such a decision lies to a higher court. It must be lodged within ten days and examined within the same time-limit as an appeal against the judgment on the merits (Article 331 of the old CCrP, Article 255 § 4 of the new CCrP – see paragraph 96 below).", "6. Time-limits for trial proceedings 55. Under the old CCrP, within fourteen days after receipt of the case file (if the defendant was in custody), the judge was required either: (1) to fix the trial date; (2) to refer the case back for further investigation; (3) to stay or discontinue the proceedings; or (4) to refer the case to a court having jurisdiction to hear it (Article 221). The new CCrP empowers the judge, within the same time-limit, (1) to refer the case to a competent court; (2) to fix a date for a preliminary hearing; or (3) to fix a trial date (Article 227). In the latter case, the trial proceedings must begin no later than fourteen days after the judge has fixed the trial date (Article 239 of the old CCrP, Article 233 § 1 of the new CCrP).", "There are no restrictions on fixing the date of a preliminary hearing. 56. The duration of the entire trial proceedings is not limited in time. 57. Under the old CCrP, the appeal court was required to examine an appeal against the first-instance judgment within ten days after it was lodged.", "In exceptional circumstances or in complex cases or in proceedings before the Supreme Court this period could be extended by up to two months (Article 333). No further extensions were possible. The new CCrP provides that the appeal court must start the examination of the appeal no later than one month after it is lodged (Article 374). THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 (c) OF THE CONVENTION 58.", "The applicant complained under Article 5 § 1 (c) of the Convention that his detention had been unlawful. The relevant parts of Article 5 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...” A. Submissions by the parties 59. The Government, firstly, noted that the applicant had failed to exhaust domestic remedies as he had only appealed against the detention order of 25 September 2003.", "In the alternative, the Government submitted that the applicant’s detention had been regularly extended by the competent domestic authorities with reference to the gravity of the charges against him and other relevant grounds which had precluded the applicant’s release. 60. The applicant maintained his complaints, arguing that his detention had been unlawful from the very beginning, when the domestic authorities had decided to revoke the written undertaking not to leave his town of residence and had remanded him in custody for no apparent reason. He further referred to certain periods in his detention which had not been covered by any legal order. In particular, he referred to the period from 21 January to 20 March 2001 and from 24 to 25 September 2003.", "(a) Six-month issue 61. The Court observes at the outset that a part of the applicant’s complaint refers to a period of pre-trial detention which ended more than six months before he lodged the application with the Court on 12 April 2004. The most recent period of detention which the Court may examine commenced on 24 September 2003 when the three-month period of detention covered by the order of 24 June 2003 expired (see paragraph 28 above). On 25 September 2003 the Supreme Court of the Tyva Republic issued the subsequent decision, meant to cover the period of the applicant’s detention for an additional three months, starting from 24 September 2003 (see paragraph 30 above). The final decision concerning the lawfulness of that order was given on 4 December 2003, that is, within the six months preceding the lodging of the application (see paragraph 32 above).", "The Court therefore considers that the part of the applicant’s complaints concerning the alleged unlawfulness of his detention before 24 September 2003 has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention (see Salmanov v. Russia (dec.), no. 3522/04, 19 January 2006; Korchuganova v. Russia, no. 75039/01, § 44, 8 June 2006; Pavlík v. Slovakia, no. 74827/01, § 89, 30 January 2007; and Ignatov v. Russia, no. 27193/02, § 71, 24 May 2007).", "(b) Exhaustion issue 62. The Court further notes the Government’s submission, which was not contested by the applicant, that he had failed to appeal against the orders extending his detention after 24 December 2003 (see paragraph 34 above). 63. In this connection, the Court reiterates that the applicant was represented, from the pre-trial stage of the proceedings, by counsel of his own choosing. No explanation has been offered for the counsel’s failure to lodge, or advise the applicant to lodge, a judicial appeal against the detention orders.", "The Court therefore considers that the part of the applicant’s complaint concerning the detention after 24 December 2003 must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 § 1 of the Convention (see, mutatis mutandis, Belov v. Russia, no. 22053/02, §74, 3 July 2008, and Matyush v. Russia, no. 14850/03, § 63, 9 December 2008). (c) Conclusion 64. The Court finally observes that, having applied the six-month and exhaustion rules, it has competence to examine the applicant’s complaint related to the period of his detention from 24 September to 24 December 2003.", "The Court notes that that complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) General principles 65. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof.", "However, the “lawfulness” of detention under domestic law is not always the decisive element. The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion. 66. The Court must moreover ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this last point, the Court stresses that, where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied.", "It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Ječius v. Lithuania, no. 34578/97, § 56, ECHR 2000-IX, and Baranowski v. Poland, no. 28358/95, §§ 50-52, ECHR 2000-III). (b) Application of the general principles to the present case i. The applicant’s detention from 24 to 25 September 2003 67.", "The Court notes that on 24 June 2003 the Supreme Court of the Tyva Republic, relying on the gravity of the charges and the likelihood that the applicant would pervert the course of justice, extended his detention for an additional three months, until 24 September 2003. However, it was not until 25 September 2003 that the Supreme Court of the Tyva Republic authorised an extension of the applicant’s detention, noting that the extension was granted for three months, that is from 24 September to 24 December 2003. 68. The Court has to ascertain whether the detention from 24 to 25 September was “lawful”. The Government maintained that the detention was lawful because it complied with the substantive and procedural provisions of the rules of criminal procedure.", "The applicant alleged that his detention from 24 September 2003, when the order of 23 June 2003 expired, to 25 September 2005, when the Supreme Court granted a further extension, was not covered by any detention order and had therefore been unlawful. 69. The Court reiterates that for detention to be “lawful” within the meaning of Article 5 § 1, it has to conform to both the substantive and procedural rules of the domestic law (see paragraph 65 above). The authorised period of the applicant’s detention expired on 24 September 2003. It was only on the following day that the Supreme Court of the Tyva Republic issued the subsequent detention order.", "In this connection, the Court observes that neither the Government nor the Supreme Court of the Russian Federation, while examining an appeal against the detention order of 25 September 2003, pointed to any legal provision which permitted an accused to continue to be held once the authorised detention period had expired. The Russian Constitution and rules of criminal procedure vested the power to order or prolong detention on remand in courts (see paragraph 39 above). No exception to that rule were permitted or provided for, no matter how short the duration of the detention. 70. The Court further observes that the Supreme Court’s decision of 25 September 2003 could not have constituted a “lawful” basis for the applicant’s detention in the preceding period (see Belov v. Russia, no.", "22053/02, § 82, 3 July 2008, with further references). The decision authorised the applicant’s detention from 24 September to 24 December 2003, of which the period from 24 to 25 September 2003 was thus authorised retrospectively. The Court has already held in a number of cases that any ex post facto authorisation of detention is incompatible with the “right to security of person” as it is necessarily tainted with arbitrariness (see, for example, Khudoyorov v. Russia, no. 6847/02, § 142, ECHR 2005‑X (extracts); Solovyev v. Russia, no. 2708/02, § 99, 24 May 2007, and Shukhardin v. Russia, no.", "65734/01, § 69, 28 June 2007). The Court sees no reason to reach a different conclusion in the present case. It follows that the applicant’s detention, in so far as it had been authorised by the order of 25 September 2003 in respect of the preceding period, was not “lawful” under domestic law. 71. The Court thus concludes that from 24 to 25 September 2003 there was no formal decision authorising the applicant’s detention.", "The applicant was in a legal vacuum that was not covered by any domestic legal provision (see Shukhardin, cited above, § 85). In the absence of any decision that could have served as a “lawful” basis for the applicant’s detention in the impugned period, the Court finds that there has been a violation of Article 5 § 1 (c) of the Convention on account of the applicant’s detention on remand from 24 to 25 September 2003. ii. The applicant’s detention from 25 September to 24 December 2003 72. The Court observes that the applicant’s detention during the period from 25 September to 24 December 2003 was authorised by the Supreme Court of the Tyva Republic on the grounds that the charges against him were serious and that he was liable to obstruct the course of justice. 73.", "The Court reiterates that the trial court’s decision to maintain a custodial measure would not breach Article 5 § 1 provided that the trial court had acted within its jurisdiction, had power to make an appropriate order, and had given reasons for its decision to maintain the custodial measure, for which it had also set a time-limit (see Khudoyorov, cited above, §§ 152-153; Korchuganova v. Russia, no. 75039/01, § 62, 8 June 2006; and Pshevecherskiy v. Russia, no. 28957/02, §§ 41-46, 24 May 2007). 74. The trial court acted within its jurisdiction in issuing the decision of 25 September 2003 and there is nothing to suggest that it was invalid or unlawful under domestic law in so far as it authorised the applicants’ detention for the subsequent period.", "It has not been claimed that that decision was otherwise incompatible with the requirements of Article 5 § 1, the question of the sufficiency and relevance of the grounds relied on being analysed below in the context of compliance with Article 5 § 3 of the Convention. 75. Accordingly, the Court finds that there has been no violation of Article 5 § 1 (c) of the Convention on account of the applicant’s detention from 25 September to 24 December 2003. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 76.", "The applicant complained that the length of his pre-trial detention was unreasonable, in breach of Article 5 § 3 of the Convention, which reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.” A. Submissions by the parties 77. The Government claimed that the applicant had failed to exhaust domestic remedies as the only appeal he had lodged was against the detention order of 25 September 2003. They further submitted that the length of the applicant’s detention on remand had not been excessive. The extensions of the detention had been necessary in the circumstances of the case, in particular taking into account the gravity of the charges against the applicant and the risk of his obstructing the examination of the case, if released. 78.", "The applicant replied that the domestic courts had not provided any evidence to show that he had been genuinely liable to re-offend, abscond or pervert the course of justice. The only reason for his continued detention was the gravity of the charges against him. B. The Court’s assessment 1. Admissibility 79.", "The Court reiterates that the purpose of the rule requiring domestic remedies to be exhausted is to afford the Contracting States the opportunity of preventing or putting right the alleged violations before those allegations are submitted to the Court (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). In the context of an alleged violation of Article 5 § 3 of the Convention, this rule requires that the applicant give the domestic authorities an opportunity to consider whether his right to trial within a reasonable time has been respected and whether there exist relevant and sufficient grounds continuing to justify the deprivation of liberty. 80. Following his arrest on 6 March 2000 the applicant remained in pre-trial detention until his conviction on 25 August 2004.", "It is not disputed that he did not lodge any appeals against the prosecutors’ orders and the decisions of the Supreme Court of the Tyva Republic extending his detention until 24 September 2003. He did, however, challenge the later detention order of 25 September 2003 before the Supreme Court of the Russian Federation, which on 4 December 2003 held that the applicant’s detention had been lawfully extended at regular intervals. The Court thus considers that, although the applicant did not lodge appeals against the extension orders issued before September 2003, by lodging an appeal against the subsequent detention order of 25 September 2003 he gave an opportunity to the Supreme Court of the Russian Federation to consider whether his detention was compatible with his Convention right to trial within a reasonable time or release pending trial. Indeed, the Supreme Court had to assess the necessity of further extensions in the light of the entire preceding period of detention, taking into account how much time had already been spent in custody (see, for similar reasoning, Lyubimenko v. Russia, no. 6270/06, § 62, 19 March 2009 and Polonskiy v. Russia, no.", "30033/05, § 132, 19 March 2009). In these circumstances, the Government’s objection of non-exhaustion of domestic remedies must be dismissed in so far as it concerned the applicant’s failure to appeal against the detention orders issued before 25 September 2003 (see Shcheglyuk v. Russia, no. 7649/02, § 36, 14 December 2006, and Pshevecherskiy v. Russia, no. 28957/02, § 51, 24 May 2007). 81.", "The Court further notes that 4 December 2003 was the most recent date on which the appeal court examined the question of the applicant’s continued detention. It reiterates that on that date the Supreme Court upheld the order of 25 September 2003 extending the applicant’s detention until 24 December 2003. The applicant did not challenge any of the orders extending his detention after 24 December 2003. The Government argued that by failing to file appeals, the applicant had denied the domestic authorities an opportunity to consider whether these further extensions were compatible with his Convention right to trial within a reasonable time or release pending trial. They insisted that the Court should reject the applicant’s complaints in respect of that period of his pre-trial detention for the failure to exhaust available domestic remedies.", "82. In this respect the Court reiterates that the question of exhaustion of domestic remedies in respect of the extension of the applicant’s detention after 24 December 2003 will only arise if the examination of the reasons given by the domestic courts in their decisions extending the applicant’s detention until that date will lead the Court to the conclusion that by that date the detention had not exceeded a reasonable time. Indeed, the Court has already held that when detention on remand is found to have exceeded a reasonable time on the most recent date when an appeal court examined the detention matter, the detention after that date will also be found, except in extraordinary circumstances, to have necessarily kept such character throughout the time for which it was continued (see Stögmüller v. Austria, 10 November 1969, § 12, Series A no. 9, and, most recently, Pshevecherskiy, cited above, § 53). 83.", "The Court thus considers that the issue of exhaustion of domestic remedies in respect of the applicant’s detention after 24 December 2003 is closely linked to the merits of the complaint that his detention before 24 December 2003 had already exceeded a reasonable time, in violation of the requirements of Article 5 § 3 of the Convention. The Court therefore finds it necessary to join the Government’s objection to the merits of the applicant’s complaint in respect of his detention on remand before 24 December 2003. 84. The Court further notes that the applicant’s complaint under Article 5 § 3 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits (a) General principles 85. 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 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.", "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 that might justify, 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 (see Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000‑IV). 86.", "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 concrete 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). 87.", "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 (Labita, cited above, § 153). (b) Application of the general principles to the present case 88. Having regard to its finding in paragraphs 82 and 83 above and taking into account the particular circumstances of the case, the Court finds that the period to be examined commenced on 6 March 2000 when the applicant was re-arrested and ended on 24 December 2003.", "89. The Court notes that the authorities extended the applicant’s detention on a number of occasions. In their decisions they relied on the gravity of the charges as the main factor and on the applicant’s potential to abscond, reoffend or pervert the course of justice. 90. As regards the authorities’ reliance on the gravity of the charges as the decisive element, the Court has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention (see Panchenko v. Russia, no.", "45100/98, § 102, 8 February 2005; Goral, cited above, § 68; and Ilijkov, cited above, § 81). This is particularly true in the Russian legal system, where the characterisation in law of the facts – and thus the sentence faced by the applicant – is determined by the prosecution without judicial review of whether the evidence obtained supports a reasonable suspicion that the applicant has committed the alleged offence (see Khudoyorov, cited above, § 180). 91. The other grounds for the applicant’s continued detention were the authorities’ findings that the applicant could abscond, pervert the course of justice or reoffend. The Court reiterates that it is incumbent on the domestic authorities to establish the existence of concrete facts relevant to the grounds for continued detention.", "Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see Rokhlina v. Russia, no. 54071/00, § 67, 7 April 2005). It remains to be ascertained whether the domestic authorities established and convincingly demonstrated the existence of concrete facts in support of their conclusions. 92. The Court notes that the domestic authorities gauged the applicant’s potential to abscond by reference to the fact that he had been charged with serious criminal offences, thus facing a severe sentence.", "In this connection the Court reiterates that, although the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view. It must be examined with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding and reoffending or make it appear so slight that it cannot justify detention pending trial (see Letellier v. France, 26 June 1991, § 43, Series A no. 207; and Panchenko, cited above, § 106). 93. In the present case the domestic authorities did not cite any concrete facts warranting the applicant’s detention on that ground.", "They did not indicate any circumstance to suggest that, if released, the applicant would abscond, re-offend or otherwise upset the course of the trial. Although the Court does not lose sight of the fact that in March 2000 the applicant allegedly violated the conditions of his release by leaving the town of his residence, and that there could have existed certain factors warranting the authorities’ conclusion with regard to the applicant’s potential to abscond, the domestic authorities never referred to or mentioned that fact in the detention orders and it is not the Court’s task to take the place of the national authorities who ruled on the issue of detention (see Korchuganova v. Russia, no. 75039/01, § 72, 8 June 2006). The Court finds that the existence of such a risk was not established. 94.", "The Court further emphasises that when deciding whether a person should be released or detained, the authorities have an obligation under Article 5 § 3 to consider alternative measures to ensure his or her appearance at the trial (see Sulaoja, cited above, § 64, and Jabłoński v. Poland, no. 33492/96, § 83, 21 December 2000). During the entire period under consideration the authorities did not consider the possibility of ensuring the applicant’s attendance by the use of other “preventive measures” – such as a written undertaking or bail – which are expressly provided for by Russian law to secure the proper conduct of criminal proceedings, or, at the very minimum, seek to explain in their decisions why such alternatives would not have ensured that the trial would follow its proper course. 95. In sum, the Court finds that the domestic authorities’ decisions were not based on an analysis of all the pertinent facts.", "They paid no regard to the arguments in favour of the applicant’s release pending trial. It is also of particular concern to the Court that the Russian authorities persistently used a stereotyped summary formula to justify extending his detention. The Court also notes that the domestic authorities, using the same formula, simultaneously extended the detention of the applicant and his co-defendants. In the Court’s view, this approach is incompatible, in itself, with the guarantees enshrined in Article 5 § 3 of the Convention in so far as it permits the continued detention of a group of persons without a case-by-case assessment of the grounds for detention or of compliance with the “reasonable-time” requirement in respect of each individual member of the group (see Dolgova v. Russia, no. 11886/05, § 49, 2 March 2006).", "The Court also finds it striking that during certain periods the applicant was detained without any formal decision authorising his detention (see, for example, paragraphs 13, 21 and 71 above). 96. Having regard to the above, the Court considers that by failing to address concrete relevant facts or consider alternative “preventive measures” and by relying essentially on the gravity of the charges, the authorities prolonged the applicant’s detention until 24 December 2003 on grounds which cannot be regarded as “sufficient”. They thus failed to justify the applicant’s continued detention for almost three years and ten months and by 24 December 2003 the length of his detention had already ceased to be reasonable (see Rokhlina, cited above, § 69). 97.", "Having regard to the above finding and in the absence of any extraordinary circumstances, the Court cannot conclude that after 24 December 2003 the character of the applicant’s continued detention changed. Hence the applicant did not fail to exhaust domestic remedies in respect of his complaint related to his detention after 24 December 2003 (see Pshevecherskiy, cited above, § 72) and the Court rejects the Government’s objection in this respect. 98. The Court, accordingly, finds a violation of Article 5 § 3 of the Convention. III.", "ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 99. The applicant complained under Article 5 § 4 of the Convention that the Supreme Court of the Russian Federation had not examined “speedily” his appeal against the detention order of 25 September 2003. Article 5 § 4 provides: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful...” A. Submissions by the parties 100. The Government submitted that, according to information submitted by the Supreme Court of the Russian Federation, the Supreme Court had “speedily” examined the applicant’s complaints concerning the lawfulness of his detention from 24 September to 24 December 2003. They further noted that the applicant had been found guilty of a criminal offence and that the term of his pre-trial detention had counted towards his sentence.", "101. The applicant maintained his complaint. B. The Court’s assessment 1. Admissibility 102.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) General principles 103.", "The Court reiterates that Article 5 § 4, in guaranteeing to persons arrested or detained a right to take proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and ordering its termination if it proves unlawful. Although it does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention, a State which institutes such a system must in principle accord to detainees the same guarantees on appeal as at first instance (see Navarra v. France, 23 November 1993, § 28, Series A no. 273-B, , and Toth v. Austria, 12 December 1991, § 84, Series A no. 224). The requirement that a decision be given “speedily” is undeniably one such guarantee and Article 5 § 4, concerning issues of liberty, requires particular expedition (see Hutchison Reid v. the United Kingdom, no.", "50272/99, § 79, ECHR 2003-IV). In that context, the Court also observes that there is a special need for a swift decision determining the lawfulness of detention in cases where a trial is pending, because the defendant should benefit fully from the principle of the presumption of innocence (see Iłowiecki v. Poland, no. 27504/95, § 76, 4 October 2001). (b) Application of the general principles to the present case 104. The Court notes that it took the Supreme Court of the Russian Federation more than two months to examine the applicant’s appeal against the detention order of 25 September 2003 (see paragraphs 30 and 32 above).", "There is nothing to suggest that the applicant caused delays in the examination of his appeal against that detention order. The Government did not indicate any particular instance when the applicant had in any way caused a delay in those proceedings. The Court therefore considers that the impugned period cannot be considered compatible with the “speediness” requirement of Article 5 § 4, especially taking into account that their entire duration was attributable to the authorities (see, for example, Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006; Khudoyorov, cited above, §§ 198 and 203; and Rehbock v. Slovenia, no. 29462/95, §§ 85-86, ECHR 2000-XII, where review proceedings which lasted twenty-three days were found not to have been “speedy”).", "105. The Court also notes that the fact that the applicant was found guilty of a criminal offence and that the duration of his pre-trial detention counted towards his sentence cannot in principle justify the failure to examine speedily his applications for release or his appeals against the detention orders (see Bednov v. Russia, no. 21153/02, § 33, 1 June 2006). 106. There has therefore been a violation of Article 5 § 4 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 107. The applicant complained that the length of the criminal proceedings was incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Submissions by the parties 108. The Government considered that the complaint of excessive length of proceedings was inadmissible under Article 35 § 3 of the Convention. They argued that the delays had been caused by objective reasons: the complexity of the case, the victims’, witnesses’ and lawyers’ failure to attend hearings, the co-defendant’s and counsel’s illnesses, the judge’s illness and his participation in other unrelated proceedings.", "The Government, without providing further details and citing the Supreme Court of the Russian Federation, further submitted that the domestic authorities had undertaken steps to expedite the proceedings: “had taken steps to ensure the witnesses’ attendance and made changes in legal representation.” At the same time the Government accepted that a certain delay in the proceedings had been caused by the three referrals of the case for an additional investigation. 109. The applicant contested the Government’s submissions. B. The Court’s assessment 1.", "Admissibility 110. The Court observes that the period to be taken into consideration began on 22 January 2000, when the applicant was arrested. The period in question ended on 25 August 2004 when the Supreme Court of Tyva Republic convicted the applicant. It thus lasted approximately four years and seven months before the investigating authorities and the trial court. 111.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 112.", "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). 113. The Court accepts that the proceedings at issue were complex. However, the Court cannot accept that the complexity of the case, taken on its own, was such as to justify the overall length of the proceedings.", "The Court further reiterates that the fact that the applicant was held in custody required particular diligence on the part of the courts dealing with the case to administer justice expeditiously (see Panchenko v. Russia, no. 45100/98, § 133, 8 February 2005, and Kalashnikov v. Russia, no. 47095/99, § 132, ECHR 2002‑VI). 114. As to the applicant’s conduct, the Government argued that the applicant had to bear the responsibility for a delay in the proceedings because his representative had failed to appear or had applied for an adjournment.", "In this connection, the Court notes that according to a summary table of court hearings presented by the Government, the applicant’s lawyer successfully asked for an adjournment of one hearing in 2003 and failed to attend two hearings in 2004, thus causing an aggregated delay of two months (see paragraphs 33 and 35 above). The Government did not indicate any other period when the proceedings were stayed or any other hearing which was adjourned due to the applicant’s or his representative’s conduct. Having regard to the overall length of the proceedings, the Court therefore considers the delay caused by the applicant to be negligible. 115. As regards the conduct of the authorities, the Court is aware of substantial periods of inactivity for which the Government have not submitted any satisfactory explanation and which are attributable to the domestic authorities.", "The Court observes that an aggregated delay of approximately sixteen months was caused by the referral of the case for additional investigation on four occasions, and by the prosecution authorities’ repeated failure to comply with the trial court’s orders and to correct procedural defects and a change in the composition of the bench (see paragraphs 14-15, 16-21, 22, 23-25 above). In this respect, the Court reiterates that Article 6 § 1 of the Convention imposes on Contracting States the duty to organise their judicial system in such a way that their courts can meet the obligation to decide cases within a reasonable time (see, among other authorities, Löffler v. Austria (No. 2), no. 72159/01, § 57, 4 March 2004). Another delay of over three months was caused by the judge’s illness and his involvement in other unrelated proceedings.", "116. The Court furthermore notes that the conduct of the applicant’s co-accused and their counsel, the victims and witnesses was one of the reasons for the prolongation of the proceedings. The Court reiterates that the delay occasioned by their failure to attend at least thirty hearings and the Supreme Court’s failure to discipline them is attributable to the State (see Kuśmierek v. Poland, no. 10675/02, § 65, 21 September 2004, and Sidorenko v. Russia, no. 4459/03, § 34, 8 March 2007).", "The Court is mindful of the Government’s argument that the domestic authorities undertook “certain steps” to expedite the proceedings. However, the Government did not explain what steps had been taken. Furthermore, without accepting the veracity of the Government’s argument, the Court observes that even if such measures had, in fact, been applied, their effectiveness would appear to be open to doubt as counsel, witnesses and victims failed to attend hearings throughout the entire period the trial proceedings were pending. 117. Having examined all the material before it and taking into account the overall length of the proceedings, what was at stake for the applicant and the fact that the proceedings were pending for the substantial part before the trial court without apparent progress, the Court considers that in the instant case the length of the first set of the criminal proceedings was excessive and failed to meet the “reasonable time” requirement.", "There has accordingly been a violation of Article 6 § 1 of the Convention. V. 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.” 119. On 15 March 2007 the Court invited the applicant to submit his claims for just satisfaction. He did not submit any claims within the required time-limit.", "Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join to the merits the question of exhaustion of domestic remedies in respect of the applicant’s complaint concerning the excessive length of his detention after 24 December 2003 and rejects it; 2. Declares the complaints concerning the unlawfulness of the applicant’s detention from 24 September to 24 December 2003, the excessive length of his detention, the failure of the domestic authorities to decide “speedily” on the lawfulness of his detention from 24 September to 24 December 2003 and the length of the criminal proceedings against him, admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 5 § 1 (c) of the Convention on account of the applicant’s detention from 24 to 25 September 2003; 4.", "Holds that there has been no violation of Article 5 § 1 (c) of the Convention on account of the applicant’s detention from 25 September to 24 December 2003; 5. Holds that there has been a violation of Article 5 § 3 of the Convention; 6. Holds that there has been a violation of Article 5 § 4 of the Convention; 7. Holds that there has been a violation of Article 6 § 1 of the Convention; 8. Holds that there is no call to award the applicant just satisfaction.", "Done in English, and notified in writing on 30 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenNina VajićRegistrarPresident" ]

[ "THIRD SECTION CASE OF BULIN v. RUSSIA (Application no. 8681/06) JUDGMENT STRASBOURG 29 March 2016 This judgment is final but it may be subject to editorial revision. In the case of Bulin v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helen Keller, President,Johannes Silvis,Alena Poláčková, judges,and Marialena Tsirli, Deputy Section Registrar, Having deliberated in private on 8 March 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 8681/06) 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 Anton Yuryevich Bulin (“the applicant”), on 6 January 2006.", "2. The applicant was represented by Mr K. Pakin, a lawyer practising in Velikiy Novgorod. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3. On 6 November 2009 the application was communicated to the Government.", "THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1989 and lives in Kresttsy, Novgorod Region. 5. On an unspecified date the applicant was charged with theft. On 16 December 2003 the case was settled and the criminal proceedings were discontinued.", "6. On 28 July 2004 the applicant was arrested on suspicion of having committed a murder. The applicant was 15 years old at the time of the arrest. 7. On 29 July 2004 the Krestetskiy Federal Court of the Novgorod Region authorised the applicant’s pre-trial detention noting as follows: “Having heard the parties to the proceedings and examined the materials, [the court] has established that there is reasonable suspicion that [the applicant] has committed the crime.", "The other participants in the crime confessed and incriminated [the applicant]. Given that [the applicant] has been previously charged with criminal offences, that he is suspected of having committed a serious crime, it is impossible to apply a more lenient preventive measure.” 8. On an unspecified date the applicant was charged with conspiracy to commit robbery. 9. On 27 September 2004 the Novgorod Town Court extended the applicant’s pre-trial detention until 8 November 2004 noting as follows: “Regard being had to the [applicant’s] character and the seriousness of the charges against him, the court considers that it is not possible to lift or replace the earlier imposed preventive measure because [the applicant] may interfere with the establishment of the truth or abscond.” 10.", "On 4 November 2004 the Town Court extended the applicant’s detention until 8 January 2005. It reiterated verbatim its earlier reasoning. 11. On 7 December 2004 the investigator dropped the murder charges against the applicant for lack of corpus delicti. He further re-classified the charge against the applicant as robbery committed by a group of persons.", "12. On 30 December 2004 the Town Court extended the applicant’s pre‑trial detention until 28 January 2005. The court noted as follows: “Regard being had to the seriousness of the charges, the [applicant’s] character and the negative references, the court does not discern grounds to change the earlier imposed preventive measure or to release [the applicant].” 13. On 25 January 2005 the Novgorod Regional Court upheld the decision of 30 December 2004 on appeal noting that, in view of the seriousness of the charges, the applicant might interfere with the establishment of the truth, abscond or re-offend. 14.", "On 14 February 2005 the Regional Court fixed the preliminary hearing of the applicant’s case for 24 February 2005. The court also ruled that the applicant should be detained pending trial. On 28 April 2005 the Supreme Court of the Russian Federation upheld the said decision on appeal. 15. On 20 July 2005 the Regional Court rescheduled the preliminary hearing in the applicant’s case for 4 August 2005.", "The applicant and his lawyer were present. The lawyer asked for the applicant’s release into his mother’s care pending trial. The court dismissed the request and extended the applicant’s detention until 27 October 2005 noting that “the preventive measure earlier imposed on [the applicant] should remain unchanged”. Both the applicant and his lawyer appealed. 16.", "On 21 September 2005 the Supreme Court upheld the decision of 20 July 2015 on appeal. The court decided to consider the matter in the applicant’s absence noting that the applicant had attended the hearing on 20 July 2005 and had been provided with an opportunity to be heard. The applicant’s lawyer and the prosecutor were present and made submissions to the court. As regards the extension of the applicant’s detention, the court ruled that the circumstances underlying the applicant’s remand in custody continued to exist. In this connection the court noted as follows: “It follows from the materials of the case that [the applicant] has earlier committed another crime, that he had been absent from classes in school and had demonstrated anti-social behavior.", "He had not spent nights at home and had not lived with his mother for extended periods of time. His mother could not control his behavior; she did not pay due attention to his upbringing and had no influence over him. The [applicant’s] release into his mother’s care ... would not ensure his due behavior pending trial.” 17. On 17 October 2005 the Regional Court extended the applicant’s and two other defendants’ detention until 27 January 2006. The court noted: “The defendants are charged with particularly serious offences; the circumstances of their remand in custody have not changed.", "The court does not discern circumstances that would allow it to apply a more lenient preventive measure, including the [applicant’s] release into his mother’s care.” 18. On 15 December 2005 the Supreme Court upheld the decision of 17 October 2005 on appeal. 19. On 24 January 2006 the Regional Court extended the applicant’s detention and two other defendants’ detention until 27 April 2006. The court reiterated verbatim its reasoning of 17 October 2005.", "20. On 13 February 2006 the Regional Court found the applicant guilty of robbery and sentenced him to four and a half years’ imprisonment. On 27 September 2006 the Supreme Court of Russia upheld, in substance, the applicant’s conviction on appeal. 21. On 2 August 2007 the Nevelskiy District Court of the Pskov Region released the applicant on parole.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 22. The applicant complained about the excessive length of his pre-trial detention. He relied on Article 5 § 3 of the Convention read in conjunction with Article 13. The Court considers that this complaint falls to be examined under Article 5 § 3 of the Convention alone (this provision being lex specialis in this field), 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.” 23. The Government contested that argument. They considered that the applicant could not have been released into his mother’s care in view of his character. He had previously committed a theft, had been unwilling to study, and his family had been unable to supervise him. 24.", "The applicant maintained his complaint. While he considered that his remand in custody was justified given the seriousness of the charges, he argued that with the passage of time, that ground had become less relevant and the authorities had not referred to any other circumstances that would justify his pre-trial detention. The applicant had been a minor at the time. Accordingly there had been no risk that he would abscond or interfere with the proceedings. He had permanently resided with his family, had studied in school and worked part time.", "A. Admissibility 25. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 26. In the present case the period to be taken into consideration lasted from 28 July 2004, when the applicant was arrested, to 13 February 2006, when the applicant was convicted by the trial court. It amounted to one year, six months and seventeen days. 27. The Court has already, on a large number of occasions, examined applications against Russia raising similar complaints under Article 5 § 3 of the Convention and found a violation of that Article on the grounds that the domestic courts extended an applicant’s detention relying essentially on the seriousness of the charges and using stereotyped formulae without addressing his or her specific situation (see, among many other authorities, Valeriy Samoylov v. Russia, no.", "57541/09, 24 January 2012; Romanova v. Russia, no. 23215/02, 11 October 2011; Sutyagin v. Russia, no. 30024/02, 3 May 2011; Logvinenko v. Russia, no.44511/04, 17 June 2010; Gultyayeva v. Russia, no. 67413/01, 1 April 2010; Makarenko v. Russia, no. 5962/03, 22 December 2009; Lamazhyk v. Russia, no.", "20571/04, 30 July 2009; Belov v. Russia, no. 22053/02, 3 July 2008; and Shukhardin v. Russia, no. 65734/01, 28 June 2007). 28. The Court observes that the Russian courts did not avoid that pattern of reasoning in the present case.", "When extending the applicant’s detention, they consistently relied on the seriousness of the charges giving no heed to the applicant’s personal situation and, particularly, to the fact that the charge of murder, which underlay the applicant’s remand in custody, was already dropped approximately four and a half months after the applicant’s arrest. The Court accordingly considers that the national authorities extended the applicant’s detention on grounds which, although “relevant”, cannot be regarded as sufficient to justify its duration of over a year and a half. In these circumstances it would not be necessary for the Court to examine whether the domestic authorities acted with “special diligence”. 29. Having regard to the above, the Court finds that there has been a violation of Article 5 § 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 30. The applicant complained that on 21 September 2005 the Supreme Court conducted an appeal hearing in his absence. He relied on Article 5 § 4 of the Convention, which reads as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 31. The Government contested that argument.", "In their opinion, the applicant’s absence from the appeal hearing had not been contrary to the requirements set out in Article 5 § 4 of the Convention. The applicant had taken part in the hearing concerning the extension of his pre-trial detention at the court of first level of jurisdiction. Accordingly he had ample opportunity to present his arguments and to appeal against the relevant court order. He had been represented by a lawyer who had attended the appeal hearing and made submissions to the court. 32.", "The applicant maintained his complaint. A. Admissibility 33. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 34. The Court reiterates that by virtue of Article 5 § 4, an arrested or detained person is entitled to bring proceedings for review by a court of the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of Article 5 § 1, of his or her deprivation of liberty (see Brogan and Others v. the United Kingdom, 29 November 1988, § 65, Series A no. 145-B). Although it is not always necessary for the procedure under Article 5 § 4 to be attended by the same guarantees as those required under Article 6 § 1 of the Convention for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question (see Reinprecht v. Austria, no.", "67175/01, § 31, ECHR 2005‑XII). In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required (see Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999‑II). The opportunity for a detainee to be heard either in person or through some form of representation features among the fundamental guarantees of procedure applied in matters of deprivation of liberty (see Kampanis v. Greece, 13 July 1995, § 47, Series A no. 318-B).", "35. Turning to the circumstances of the present case, the Court observes that the appeal hearing of 21 September 2005 concerned a possibility of the applicant’s release into his mother’s care. That issue had already been discussed, in the applicant’s presence, by the court at the first level of jurisdiction on 20 July 2005. Furthermore, the Court discerns no evidence in the materials before it that the applicant’s circumstances had materially changed since 20 July 2005. Nor does it appear from the content of the appeal decision that the court discussed any new issues or changed the basis for the applicant’s detention.", "36. Accordingly, against this background, the Court is satisfied that the applicant’s personal attendance was not required at the appeal hearing and that counsel’s presence was sufficient to ensure that the proceedings were adversarial and the principle of equality of arms was respected (see, by contrast, Graužinis v. Lithuania, no. 37975/97, § 34, 10 October 2000, and Mamedova v. Russia, no. 7064/05, § 91, 1 June 2006). 37.", "Therefore there has been no violation of Article 5 § 4 of the Convention in that respect. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 38. Lastly, the applicant alleged that the composition of the trial court had been unlawful and that his right to obtain vocational training had been infringed. He referred to Article 6 of the Convention and Article 2 of Protocol No.", "1 to the Convention. 39. However, having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in the Convention. 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 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 30,000 euros (EUR) in respect of non‑pecuniary damage. 42.", "The Government considered that the applicant’s claim was unsubstantiated. 43. The Court observes that the applicant spent over a year and a half in custody awaiting determination of the criminal charge against him, his detention not being based on sufficient grounds. Making its assessment on an equitable basis, the Court awards EUR 1,600 to the applicant in compensation for non-pecuniary damage, plus any tax that may be chargeable on that amount. B.", "Costs and expenses 44. The applicant also claimed 20,000 Russian roubles (RUB) for the costs and expenses incurred before the domestic courts and RUB 76,701.7 for those incurred before the Court. 45. The Government did not comment. 46.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 for costs and expenses under all heads. C. Default interest 47. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the complaints concerning the length and review of the applicant’s detention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 5 § 3 of the Convention; 3. Holds that there has been no violation of Article 5 § 4 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 1,600 (one thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 29 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliHelen KellerDeputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF GIUNTA v. ITALY (Application no. 63514/00) JUDGMENT STRASBOURG 4 December 2003 FINAL 04/03/2004 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Giunta v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrP.", "Lorenzen,MrG. Bonello,MrsF. Tulkens,MrA. Kovler,MrV. Zagrebelsky,MrK.", "Hajiyev, judges,and Mr S. Nielsen, Deputy Section Registrar, Having deliberated in private on 13 November 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 63514/00) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr Salvatore Giunta (“the applicant”), on 27 July 2000. 2. The applicant was represented by MM.", "D., A. and C. Mancuso, lawyers practising in Salerno. The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza and by their successive co-Agents, respectively Mr V. Esposito and Mr F. Crisafulli. 3. On 10 October 2002 the Court declared the application admissible. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1933 and lives in Terni. 5. He is the owner of a flat in Scala (Salerno), which he had let to G.C. and R.F.", "6. In a writ served on the tenants on 17 January 1991, the applicant informed them that he intended to terminate the lease on expiry of the term on 31 December 1991 and asked them to vacate the premises by that date. 7. He summoned the tenants to appear before the Salerno Magistrate. 8.", "By a decision of 14 June 1991, which was made enforceable on the same day, the Salerno Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 April 1993. 9. On 2 August 1993, the applicant served notice on the tenants requiring them to vacate the premises. 10. On 7 October 1993, he informed the tenants that the order for possession would be enforced by a bailiff on 21 October 1993.", "11. On 21 October 1993, the bailiff made one attempt to recover possession, which proved unsuccessful, as the applicant was not granted the assistance of the police in enforcing the order for possession. After that date and until the 29 February 2000, the bailiff did not make any attempt to recover possession because the applicant was never granted the assistance of the police in enforcing the order for possession. 12. On 29 February 2000, the applicant, reaching a friendly agreement with the tenants, recovered possession of the flat.", "II. RELEVANT DOMESTIC LAW 13. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no.", "22774/93, §§ 18-35, ECHR 1999-V. Lastly, for some cases, a suspension of the enforcement of the orders for possession until 30 June 2004 was introduced by Legislative Decree no. 147 of 24 June 2003, which became Law no. 200 of 1 August 2003. A. The system of control of the rents 14.", "As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows. 15. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation. 16.", "The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price. 17.", "Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents. B. Obligations of the tenant in the case of late restitution 18. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat.", "In this regard, Article 1591 of the Italian Civil Code provides: “The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages.” 19. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat. 20.", "In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional.", "Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages. 21. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 AND OF ARTICLE 6 § 1 OF THE CONVENTION 22. The applicant complained of his prolonged inability to recover possession of his flat, owing to the lack of police assistance. He alleged a violation of his right of property, as guaranteed by Article 1 of Protocol No. 1 to the Convention, which provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 23. The applicant also alleged a breach of Article 6 § 1 of the Convention, the relevant part of which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 24. The Court has previously examined a number of cases raising issues similar to those in the present case and found a violation of Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention (see Immobiliare Saffi, cited above, §§ 46-75; Lunari v. Italy, no.", "21463/93, §§ 34-46, 11 January 2001; Palumbo v. Italy, no. 15919/89, §§ 33-48, 30 November 2000). 25. The Court has examined the present case and finds that there are no facts or arguments from the Government which would lead to any different conclusion in this instance. It notes that the applicant had to wait approximately six years and four months after the only attempt of the bailiff before being able to repossess the flat.", "Consequently, there has been a violation of Article 1 of Protocol No. 1 and of Article 6 § 1 of the Convention in the present case. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 26. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 27.", "The applicant claimed at least 50,000 euros (EUR) for the pecuniary damage he had sustained. He also left the matter to be assessed by the Court in an equitable manner. The applicant submitted this sum as the result of the difference between the market value rent of the flat and the rent imposed by law. For the purpose of assessing the market value rent, he submitted a rent contract of the year 2001 of another flat located in the same position of the one in issue but smaller. 28.", "The Government contested the claim. 29. The Court considers that the applicant must be awarded compensation for the pecuniary damage. Having regard to the means of calculation proposed by the applicant and in the light of the evidence before it and the period concerned, it decides to award on an equitable basis EUR 10,000 under this head. B. Non-pecuniary damage 30.", "The applicant claimed EUR 15,000 for the non-pecuniary damage. He also left the matter to the Court's discretion. 31. The Government contested the claim. 32.", "The Court considers that the applicant must have sustained some non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 3,000 under this head. C. Costs and expenses 33. The applicant also claimed reimbursement of legal costs and expenses as follows: - EUR 3,615.20 for the costs of the enforcement proceedings. The applicant also left the matter to the Court's discretion; - EUR 9,580.79 for the costs and expenses before the Court.", "34. The Government contested the claims. 35. On the basis of the information in its possession and the Court's case-law, the Court considers it reasonable to award the applicant the sum of EUR 500 for the costs and expenses incurred in the domestic proceedings and EUR 2,000 for the proceedings before the Court. 36.", "The Court awards a total sum of EUR 2,500 for legal costs and expenses. D. 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. Holds that there has been a violation of Article 1 of Protocol No.", "1 to the Convention; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts: (i) EUR 10,000 (ten thousand euros) for pecuniary damage; (ii) EUR 3,000 (three thousand euros) for non-pecuniary damage; (iii) EUR 2,500 (two thousand five hundred euros) for legal costs and expenses; (iv) any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 4 December 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos Rozakis Deputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF CHAUSHEV AND OTHERS v. RUSSIA (Applications nos. 37037/03, 39053/03 and 2469/04) JUDGMENT STRASBOURG 25 October 2016 FINAL 25/01/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Chaushev and others v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Helena Jäderblom,Helen Keller,Dmitry Dedov,Branko Lubarda,Pere Pastor Vilanova,Alena Poláčková, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 4 October 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in three applications (nos.", "37037/03, 39053/03 and 2469/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Russian nationals, Mr Osman Borisovich Chaushev, Mr Valeriy Aliyevich Aybazov, and Mr Timur Kazbekovich Shamanov (“the applicants”), on 13 November 2003. 2. The applicants were represented by Ms Z. Korkmazova, a lawyer practising in the town of Ust-Dzheguta. The Russian Government (“the Government”) were represented by Ms V. Milinchuk and Mr G. Matyushkin, representatives of the Russian Federation at the European Court of Human Rights. 3.", "The applicants complained, in particular, about having been tried behind closed doors. 4. On 7 January and 7 February 2008 this complaint was communicated to the Government. 5. The Government objected to the joint examination of the admissibility and merits, but the Court dismissed the objection.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicants were born in 1977, 1969, and 1975 respectively and at the time the case was introduced were imprisoned in Kochubeyevskoye and Aleksandria. 7. They were among 17 people facing assorted charges related to the so‑called Karachay-Circassian Jamaat, a militant Islamist underground movement active in the North Caucasus in the late 1990s and early 2000s.", "8. When the case came to trial before the Stavropol Regional Court, on 12 April 2002 a judge ordered – without giving any explanation – that the trial be held behind closed doors in remand prison IZ‑26/2 in Pyatigorsk. 9. On 11 July 2002 the court sentenced the applicants to ten, five, and six years respectively. The applicants lodged an appeal with the Supreme Court, complaining, among other things, that the trial had been closed to the public.", "On 14 May 2003 the Supreme Court upheld the judgment without replying to the complaint. II. RELEVANT DOMESTIC LAW 10. The Code of Criminal Procedure 1960, as in force at the material time, read as follows: Article 18 Publicity of hearing In all courts hearings shall be public, save for when this may endanger State secrets. A closed hearing is also possible, on a reasoned ruling of a court or order of a judge, in trials of persons younger than 16, in trials of sex crimes, or in other trials in order to preserve the confidentiality of participants’ intimate lives.", "A closed hearing shall respect all procedural rules. Judgments shall in all cases be proclaimed publicly. 11. The Law on Combatting Terrorism 1998, as in force at the material time, read as follows: Article 24 Peculiarities of criminal and civil trials of terrorism Criminal terrorist trials ... may, on a ruling of a court, be heard in closed hearings that respect all procedural rules. THE LAW I. JOINDER OF THE APPLICATIONS 12.", "The three applications share the facts and legal issue and must be joined, pursuant to Rule 42 § 1 of the Rules of Court. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 13. The applicants complained under Article 6 § 1 of the Convention about having been tried behind closed doors for no good reason. As far as relevant, this Article reads: “In the determination of ... any criminal charge against him, everyone is entitled to a ... public hearing....” A. Admissibility 1.", "The Government 14. The Government submitted that this complaint was inadmissible. 15. It was unclear to them whether the applicants had complied with the six-month rule as they had no confirmation that the complaint had been lodged before 14 November 2003. 16.", "The complaint was manifestly ill-founded. The public might be excluded from a trial for security reasons (see Riepan v. Austria, no. 35115/97, § 34, ECHR 2000‑XII, and Campbell and Fell v. the United Kingdom, 28 June 1984, § 88, Series A no. 80). The trial had had to be secured because the accused had belonged to a well organised and dangerous international jihadist insurgency.", "The charges had been serious and the number of the accused had been high. Of the 300-strong gang, only 17 had gone on trial and their cohorts could have tried to organise an escape from the courtroom for publicity, thus endangering guards’ lives. Unknown persons had already several times intimidated one of the witnesses. 17. An open trial would have given the accused a chance to preach their immoral and harmful cause.", "They might have called for revolt and, if broadcast by the media, that call could have threatened public order. The public had received updates on the trial from press releases of the Ministry of the Interior. 18. The closed-door trial had done the applicants no harm as their sentence had been lawful, even if passed away from the public eye. The applicants had not appealed against the decision to conduct a closed trial, nor had they objected at the trial itself.", "The Law on Combatting Terrorism did authorise closed trials in respect of terrorism-related charges lest the accused or their accomplices at large break the law. 2. The applicants 19. The applicants maintained their complaint. In defiance of the law, the trial court had given no reasons for the decision to try them in private.", "The media had misinformed the public about the trial and had depicted them as guilty. 3. The Court 20. The Court is satisfied that the applicants have complied with the six‑month rule as the final decision was taken on 14 May 2003 and their application forms were dated 13 November 2003 and posted without undue delay. The date of the receipt of the forms by the Court is immaterial (see Kemevuako v. the Netherlands, no.", "65938/09, § 19, 1 June 2010, and Biblical Centre of the Chuvash Republic v. Russia, no. 33203/08, § 46, 12 June 2014). 21. This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 22. The Court reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in Article 6 § 1. This public character of proceedings protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. Administration of justice, including trials, derives legitimacy from being conducted in public.", "By rendering the administration of justice transparent, publicity contributes to fulfilling the aim of Article 6 § 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention (see Gautrin and Others v. France, 20 May 1998, § 42, Reports of Judgments and Decisions 1998 III, and Pretto and Others v. Italy, 8 December 1983, § 21, Series A no. 71). There is a high expectation of publicity in ordinary criminal proceedings, which may well concern dangerous individuals, notwithstanding the attendant security problems (see Campbell and Fell v. the United Kingdom, 28 June 1984, § 87, Series A no. 80). 23.", "The requirement to hold a public hearing is subject to exceptions. This is apparent from the text of Article 6 § 1 itself, which contains the provision that “the press and public may be excluded from all or part of the trial in the interests of ... national security in a democratic society, ... or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”. Thus, it may on occasion be necessary under Article 6 to limit the open and public nature of proceedings in order, for example, to protect the safety or privacy of witnesses, or to promote the free exchange of information and opinion in the pursuit of justice (see B. and P. v. the United Kingdom, nos. 36337/97 and 35974/97, § 37, ECHR 2001‑III, with further references). 24.", "The Court agrees with the Government that the publicity of a trial may at times have to give way to the need to maintain courtroom security, but cases in which security concerns justify excluding the public from a trial are rare (see Riepan, cited above, § 34). In the present case, neither the first instance nor the appeal court gave any reasons for closing the trial to the public, even though Article 18 of the Code of Criminal Procedure obliges the trial judge to do so. Therefore, the Government are prevented from developing those reasons before the Court (see, in the context of reasons for detention on remand, Dolgova v. Russia, no. 11886/05, § 46, 2 March 2006). 25.", "There has accordingly been a violation of Article 6 § 1 of the Convention by the lack of a public hearing. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 26. The applicants referred to Articles 6, 7, and 9 of the Convention in complaining of the prosecution’s allegedly inadmissible and unreliable evidence, the fact that the applicants’ guilt was unproven, the harsh sentences, the hostile media coverage of the trial, the bias of the trial court, the invasive questions about their religion, the impediment to their worshipping in prison, and discomforts suffered there. 27.", "However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28. Article 41 of the Convention provides: If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.", "A. Damage 29. Each applicant claimed 500,000 euros in respect of non-pecuniary damage. The Government found that claim excessive. The Court considers that the finding of a violation should suffice (see Osinger v. Austria, no.", "54645/00, § 58, 24 March 2005). B. Costs and expenses 30. As the applicants claimed no costs and expenses, the Court awards none. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Decides to join the applications; 2. Declares the complaints concerning the closed doors trial admissible and the remainder of the applications inadmissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention by the lack of a public hearing; 4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants. Done in English, and notified in writing on 25 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Fatoş AracıLuis López Guerra Deputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF GRUBIĆ v. CROATIA (Application no. 5384/11) JUDGMENT STRASBOURG 30 October 2012 FINAL 18/03/2013 This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of Grubić v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Anatoly Kovler, President,Nina Vajić,Peer Lorenzen,Elisabeth Steiner,Khanlar Hajiyev,Linos-Alexandre Sicilianos,Erik Møse, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 9 October 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "5384/11) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Ognjen Grubić (“the applicant”), on 30 December 2010. 2. The applicant was represented by Ms V. Drenški Lasan, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.", "On 9 June 2011 the complaints concerning the lawfulness of the applicant’s detention between 16 March and 8 September 2010 were communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1972 and lives in Zagreb.", "5. On 8 May 2006 the applicant was arrested on suspicion of having committed armed robberies. 6. On 11 May 2006 an investigating judge of the Zagreb County Court (Županijski sud u Zagreb) opened an investigation in connection with a suspicion that the applicant and six other persons, acting as an organised criminal group, had committed more armed robberies, aggravated murders and attempted aggravated murders. 7.", "During the investigation the applicant was detained under Article 102 § 1(3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). 8. On 7 May 2007 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”) indicted the applicant and six other persons in the Zagreb County Court on charges of conspiracy to commit armed robbery and aggravated murder. 9. The applicant’s pre-trial detention was extended and he remained in detention throughout the trial.", "10. On 17 April 2009 a three-judge panel of the Zagreb County Court extended the maximum statutory limit of the applicant’s detention under Article 109 § 1(5) of the Code of Criminal Procedure for a further six months. This decision was based on section 28(3) of the Office for the Suppression of Corruption and Organised Crime Act, which provides for a possibility to extend the maximum duration of pre-trial detention for a further six months in cases of corruption and organised crime. 11. On 21 April 2009 the Zagreb County Court found the applicant guilty of armed robbery and aggravated murder, and sentenced him to thirty years’ imprisonment.", "On the same day the trial panel of the Zagreb County Court ordered that the applicant be committed to prison under Article 102 § 4 of the Code of Criminal Procedure. The relevant part of the decision reads: “The detention of the accused, Ognjeg Grubić, has been extended by decision of this court ... on 17 April 2009. The accused has been sentenced to long-term imprisonment of thirty years. Under Article 102 paragraph 4 of the Code of Criminal Procedure, detention shall always be ordered when a sentence of five or more years’ imprisonment is imposed. ... “ 12.", "On 21 September 2009 the applicant lodged an appeal with the Supreme Court (Vrhovni sud Republike Hrvatske) against the first-instance judgment. 13. On 6 November 2009 a three-judge panel of the Zagreb County Court extended the applicant’s detention for a further nine months, basing its decision on Article 109 § 2 of the Code of Criminal Procedure. The relevant part of the decision reads: “By the first-instance judgment of this court of 21 April 2009 ... the accused, Ognjen Grubić, was found guilty of offences under Article 218 § 2 of the [Criminal Code] and was sentenced to long-term imprisonment of thirty years ... By order of this court ... of 21 April 2009 under Article 102 § 4 of the Code of Criminal Procedure, the accused, Ognjen Grubić, has been detained since 8 May 2006. ...", "Article 109 § 2 of the Code of Criminal Procedure provides that in cases where a non-final judgment has been adopted the maximum period of detention, until the judgment becomes final, may be extended by one quarter of the term when the maximum period of detention is three years, if [the offence at issue] carries a long-term prison sentence. Since under the above-mentioned Article the maximum period of detention under Article 109 § 1(5) of the Code of Criminal Procedure against the accused, Ognjen Grubić, may be extended for a further nine months, it has been decided as noted in the operative part of this decision.” 14. On 18 November 2009 the applicant lodged an appeal against the above decision, arguing that he had not been given an opportunity to be heard when his detention had been extended and that the decision to extend his detention was not sufficiently reasoned. 15. The Supreme Court dismissed the applicant’s appeal on 25 November 2009.", "The relevant part of the decision reads: “The accused has been detained since 8 May 2006. Under Article 109 § 1(5) of the Code of Criminal Procedure the maximum period of his detention expired on 8 May 2009. Thereafter the first-instance court extended his detention under section 28(3) of the Office for the Suppression of Corruption and Organised Crime Act ... for a further six months until 8 November 2009. By the impugned decision the detention was extended under Article 109 § 2 of the Code of Criminal Procedure for one quarter, namely nine months. Therefore under this provision he may be detained until 8 August [2010].” 16.", "On 16 December 2009 the Supreme Court dismissed the applicant’s appeal against the first-instance judgment as ill-founded. 17. On 24 June 2010 the applicant lodged a further appeal with the Supreme Court against its judgment of 16 December 2009. 18. On 6 August 2010 a three-judge panel of the Zagreb County Court extended the applicant’s detention under Article 109 § 4 of the Code of Criminal Procedure for a further three months.", "The relevant part of the decision reads: “By the judgment of the Supreme Court ... of 16 December 2009 the first-instance judgment ... of this court of 21 April 2009 in which the accused, Ognjen Grubić, was found guilty was upheld in part ... The accused Ognjen Grubić is detained by order ... of the panel of the Zagreb County Court of 6 November 2009 by which his detention under Article 109 § 1(5) of the Code of Criminal Procedure was extended for a further nine months. He can therefore be detained until 8 August 2010. Given that the accused personally and through his defence lawyer ... lodged appeals against the judgment of the Supreme Court ... of 16 December 2009, and in view of the provision of Article 109 § 4 of the Code of Criminal Procedure and the fact that his detention expires on 8 August 2010, [this] panel has found that the conditions for extending his detention under Article 109 § 4 of the Code of Criminal Procedure have been met.” 19. The applicant lodged an appeal against the above decision on 17 August 2010.", "He argued that his detention after 16 March 2010 had been unlawful since under Article 109 § 4 of the Code of Criminal Procedure the detention should have lasted for a maximum of three months following the adoption of the judgment against which an appeal was allowed. He pointed out that the judgment of the Supreme Court, against which an appeal was allowed, was adopted on 16 December 2009 and that therefore his detention should have lasted only until 16 March 2010. 20. The Supreme Court dismissed his appeal on 25 August 2010. The relevant part of the decision reads: “The case file reveals that the accused Ognjen Grubić has been detained since 8 May 2006.", "On 6 November 2009 the Zagreb County Court extended his detention for a further nine months and the detention under that decision lasted until 8 August 2010. The second-instance judgment in this case was adopted on 16 December 2009. Under Article 109 § 4 of the Code of Criminal Procedure, from the date of adoption of the second-instance judgment against which an appeal is allowed, as in the present case, the accused may be detained until the judgment becomes final but not for more than three months. However, the case file reveals that the first-instance judgment, and the second-instance judgment against which an appeal is allowed (and [the appeal] was lodged in this case) were adopted within the period of detention under Article 109 § 2 of the Code of Criminal Procedure. Under Article 109 § 4 of the Code of Criminal Procedure and according to the conclusions of the meeting of the Supreme Court Criminal Division on 23 March 2006, the maximum period of detention can be extended after the period under Article 109 § 2 of the Code of Criminal Procedure.", "In this case this means beyond 8 August 2010 and not, as suggested by the accused, after the date of the second-instance judgment. Thus all the accused, regardless of the date of the second-instance judgment, are in the same position.” 21. On 3 September 2010 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the Supreme Court’s decision, reiterating that his detention after 16 March 2010 had been unlawful. 22. On 8 September 2010 the Supreme Court, acting as the final court of appeal, dismissed the applicant’s appeal against the judgment of 16 December 2009 and his conviction thus became final.", "23. On 23 September 2010 the Constitutional Court, endorsing the arguments of the Supreme Court, dismissed the constitutional complaint against the Supreme Court’s decision of 25 August 2010. 24. On 12 October 2010 the applicant lodged a constitutional complaint with the Constitutional Court against the Supreme Court’s judgment of 8 September 2010 by which his conviction became final. 25.", "The proceedings before the Constitutional Court are still pending. II. RELEVANT DOMESTIC LAW AND PRACTICE 26. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provide as follows: 9.", "Grounds for Ordering Detention Section 102 “... (4) When judgment is pronounced, detention shall be ordered if the accused is sentenced to five or more years’ imprisonment.” Article 109 “(1) Until the adoption of a first-instance judgment, pre-trial detention may last for a maximum of: 1. six months for offences carrying a statutory maximum sentence of three years’ imprisonment; 2. one year for offences carrying a statutory maximum sentence of five years’ imprisonment; 3. eighteen months for offences carrying a statutory maximum sentence of eight years’ imprisonment; 4. two years for offences carrying a sentence of more than eight years’ imprisonment; 5. three years for offences carrying a sentence of long-term imprisonment. (2) In cases where a judgment has been adopted but has not yet become enforceable, the maximum term of pre-trial detention may be extended for one sixth of the term referred to in subparagraphs 1 to 3 of paragraph 1 of this provision until the judgment becomes final, and for one quarter of the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision. (3) Where a first-instance judgment has been quashed on appeal, following an application by the State Attorney and where important reasons exist, the Supreme Court may extend the term of detention referred to in subparagraphs 1 to 3 of paragraph 1 of this provision for another six months and the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision for another year. (4) Following the adoption of an appellate judgment against which an appeal is allowed, detention may last until the judgment becomes final, for a maximum period of three months. (5) A defendant placed in detention and sentenced to a prison term by a final judgment shall stay in detention until he is committed to prison, but for no longer than the duration of his prison term.” 27.", "The relevant provision of the Office for the Suppression of Corruption and Organised Crime Act (Zakon o Uredu za suzbijanje korupcije i organiziranog kriminaliteta - USKOK, Official Gazette nos. 88/2001, 12/2002, 33/2005, 48/2005, 76/2007) is worded as follows: Section 28 “(1) Custody under Article 98 of the Code of Criminal Procedure shall be extended to 48 hours. (2) The total duration of pre-trial detention in the above proceedings, in the case of extended investigation (Article 204, paragraph 1 of the Code of Criminal Procedure) may be twelve months. (3) If the pre-trial detention during the investigation had been extended under paragraph 2 above, the total duration of the pre-trial detention under Article 109 of the Code of Criminal Procedure shall be extended for six months.” 28. The relevant part of the guidelines adopted at a meeting of the Criminal Division of the Supreme Court on 23 March 2006 (published on the Supreme Court’s website under no.", "Su IVk-155/2006-1) reads: “... I. Extending the duration of overall detention under Article 109 §§ 2 and 3 of the CCP. Where a first-instance judgment and a second-instance decision quashing the first-instance judgment have been adopted within the time prescribed for detention under Article 109 § 1 of the CCP, the overall duration of detention may be extended under Article 109 § 2 of the CCP and after the expiry of that period also under Article 109 § 3 of the CCP. The overall duration of detention under Article 109 § 3 of the CCP is to be extended only after the time-limit prescribed in Article 109 § 2 of the CCP has expired, irrespective of whether the first-instance court has adopted a fresh judgment in the retrial proceedings.", "The maximum period of detention where a judgment has been adopted but has not yet become enforceable is to be fixed according to the criminal offence of which the accused was found guilty, even where the State Attorney has filed an appeal on any grounds. II. Calculation of time-limits for the duration of detention Where a first-instance judgment or a second-instance judgment against which an appeal is allowed have been adopted within the time-limits set by Article 109 § 1 of the CCP, the overall duration of detention may be extended under Article 109 § 2 of the CCP. After the time-limit set by that Article expires, detention may be extended under Article 109 § 4 of the CCP. Where a first-instance judgment or a second-instance judgment against which an appeal is allowed have been adopted within the time-limits set by Article 109 § 2 of the CCP, the overall duration of detention may be extended under Article 109 § 2 of the CCP.", "After the time-limit set by that Article expires, detention may be extended under Article 109 § 4 of the CCP, after the expiration of the time-limit under Article 109 § 2 of the CCP. Where a second-instance decision against which an appeal is allowed has been adopted within the time-limit set by Article 109 § 3 of the CCP, the overall duration of detention may be extended under Article 109 § 4 of the CCP, after the expiration of the time-limit set by Article 109 § 3 of the CCP. Where a second-instance decision against which an appeal is allowed has been quashed within the time-limit set by Article 109 § 1 of the CCP, the overall duration of detention may be extended under Article 109 § 2 of the CCP, after the expiration of the time-limit set by Article 109 § 3 of the CCP. Where a second-instance decision against which an appeal is allowed has been quashed within the time-limit set by Article 109 § 2 of the CCP, the overall duration of detention may be extended under Article 109 § 3 of the CCP. ...” 29.", "The Supreme Court’s practice as regards interpretation of Article 109 of the Code of Criminal Procedure is reflected in decisions nos. II Kž-427/09-5 and II Kž-323/22-3. The relevant part of decision no. II Kž-427/09-5 of 22 July 2009 reads as follows: “The Supreme Court, as the court of second-instance, considers that the first-instance court correctly established that in the present case the conditions for the extension of the overall detention of the accused ... under Article 109 § 2 of the Code of Criminal Procedure had been satisfied, and thus extended his overall detention for a further nine months. In a non-final judgment of the Sisak County Court of 7 May 2008 ... the accused ... was found guilty ... and sentenced to twenty years’ imprisonment.", "That judgment ... was upheld by a judgment of the Supreme Court on 3 December 2008 ... against which the accused lodged an appeal. In view of the sentence given, the detention of the accused is obligatory under Article 102 § 4 of the Code of Criminal Procedure. The accused was detained between 6 January and 5 October 1992 (nine months) and also since 1 March 2007. The maximum period of detention [applicable to him], of three years under Article 109 § 1(5) of the Code of Criminal Procedure, was due to expire on 1 June 2009. Given that the accused was, inter alia, convicted of the criminal offence of aggravated murder ... [which is] punishable by twenty years’ imprisonment, a court may, under Article 109 § 2 of the Code of Criminal Procedure, extend his overall detention for one quarter [of the term referred to in subparagraphs 4 and 5 of paragraph 1 of Article 109 of the Code of Criminal Procedure], that is to say for a further nine months.", "Therefore, the Supreme Court finds that the extension of the accused’s detention for a further nine months by the first-instance court was well founded and lawful ... ... The accused’s submissions based on Article 109 § 4 of the Code of Criminal Procedure in which he argued that his detention should be lifted because more than three months had passed since the second-instance judgment was adopted are also unfounded. The Supreme Court considers that where, as in the present case, a first-instance judgment and a second-instance judgment against which an appeal is allowed have been adopted within the time-limit for detention under Article 109 § 1 of the Code of Criminal Procedure, the overall duration of detention may be extended under Article 109 § 2 of the Code of Criminal Procedure, and after that time-limit expires, it may be extended further under Article 109 § 4 of the Code of Criminal Procedure.” The relevant part of decision no. II Kž-323/22-3 of 27 June 2011 reads as follows: “After the adoption of the first-instance judgment, the detention was extended under Article 109 § 2 of the Code of Criminal Procedure ... until 29 June 2011. The second-instance judgment against which an appeal is allowed was adopted on 25 May 2011.", "Under Article 109 § 4 of the Code of Criminal Procedure, from the date when the second-instance judgment against which an appeal is allowed was adopted, as in the present case, detention may last until the judgment becomes final but not for more than three months. Since the first-instance judgment and the second-instance judgment against which an appeal is allowed were adopted within the time-limits for detention set out in Article 109 § 2 of the Code of Criminal Procedure, the detention can be extended under Article 109 § 4 of the Code of Criminal Procedure only after the period of detention under Article 109 § 2 of the Code of Criminal Procedure has expired, which in this case means after 29 June 2011. Therefore since the detention of the accused ... under Article 109 § 2 of the Code of Criminal Procedure can last until 29 June 2011, detention under Article 109 § 4 of the Code of Criminal Procedure was extended from that date until the judgment becomes final but not for more than three months, namely until 29 September 2011.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 30. The applicant complained that the statutory maximum period for which he could be detained had expired on 16 March 2010 and that his subsequent detention had been unlawful.", "He relied on Article 5 § 1 of the Convention which, in so far as relevant, reads: “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; ... “ A. Admissibility 31. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties’ arguments 32. The applicant submitted that, by virtue of Article 109 § 4 of the Code of Criminal Procedure, since 16 December 2009 - when the second-instance judgment against which an appeal was allowed had been adopted -the statutory maximum period for which he could have been detained had expired on 16 March 2010 and that after that period any further detention had been unlawful.", "He argued that the conclusions of the Criminal Division of the Supreme Court of 23 March 2006, to which the domestic courts had referred when extending his detention, had been neither legally binding nor sufficiently accessible to avoid any arbitrariness. 33. The Government argued that the Supreme Court’s practice clearly showed that the provision of Article 109 § 4 of the Code of Criminal Procedure had to be interpreted so as to allow the detention to be extended for a further three months after the expiry of the maximum period of detention under Article 109 §§ 1 and 2 of the Code of Criminal Procedure. In the applicant’s case this had meant that the maximum period of detention could be extended until 8 November 2010, given that the period of his detention under Article 109 §§ 1 and 2 of the Code of Criminal Procedure had expired on 8 August 2010. In the Government’s view the conclusions of the Criminal Division of the Supreme Court of 23 March 2006 and the Supreme Court’s practice had clarified any possible doubts as to the interpretation of Article 109 § 4 of the Code of Criminal Procedure.", "2. The Court’s assessment (a) Grounds for deprivation of liberty 34. The Court observes that as from the day when the 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 Solmaz v. Turkey, no. 27561/02, §§ 24 to 26, 16 January 2007; B. v. Austria, 28 March 1990, §§ 36-39, Series A no. 175; and Kudła v. Poland [GC], no.", "30210/96, § 104, 2009). 35. As to the present case the Court notes that on 21 April 2009 the Zagreb County Court adopted a judgment convicting the applicant of armed robbery and aggravated murder and sentenced him to thirty years’ imprisonment. Therefore, from that date on, the ground for the applicant’s detention was his conviction. It follows that the present case falls to be examined under sub-paragraph (a) of Article 5 § 1, as the period of detention about which the applicant is complaining is after his conviction on 21 April 2009.", "(b) “Lawful” detention “in accordance with a procedure prescribed by law” (i) General principles 36. It is well established in the Court’s case-law under the sub-paragraphs of Article 5 § 1 that any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a)-(f), be “lawful” (see Saadi v. the United Kingdom [GC], no. 13229/03, § 67, ECHR 2008, and M. v. Germany, no. 19359/04, § 90, ECHR 2009). 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; Saadi, cited above, § 67, ECHR 2008; Kafkaris v. Cyprus [GC], no.", "21906/04, § 116, ECHR 2008; and Schönbrod v. Germany, no. 48038/06, § 81, 24 November 2011). 37. This primarily requires any detention to have a legal basis in domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see Stafford v. the United Kingdom [GC], no. 46295/99, § 63, ECHR 2002‑IV and Kafkaris, cited above, § 116).", "“Quality of the law” in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness (see Amuur v. France, 25 June 1996, § 50, Reports 1996‑III; Nasrulloyev v. Russia, no. 656/06, § 71, 11 October 2007; and Mooren v. Germany [GC], no. 11364/03, § 76, 9 July 2009). The standard of “lawfulness” set by the Convention thus requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Steel and Others v. the United Kingdom, 23 September 1998, § 54, Reports 1998‑VII, and Baranowski v. Poland, no. 28358/95, § 52, ECHR 2000‑III).", "38. 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 v. the Netherlands, 24 October 1979, § 37, Series A no. 33, Saadi, § 67 and Mooren, § 72, cited above). (ii) Application of these principles to the present case 39. The Court notes that Article 109 of the Code of Criminal Procedure prescribes the maximum permissible duration of detention before a conviction becomes final and enforceable.", "Thus, paragraphs 1 and 2 prescribe general rules on calculating the maximum duration of detention, while paragraph 4 addresses the issue of the maximum period of detention following the adoption of an appellate judgment against which a further appeal is allowed. 40. The Court accepts that the wording of Article 109 creates some doubt as to the manner of calculation of the maximum permissible period of detention where an appeal judgment has been adopted. Indeed, the wording of paragraph 4 might be understood to suggest, as the applicant argues, that the maximum duration of detention after an appeal judgment has been adopted cannot exceed three months. 41.", "However, any possible lack of clarity as regards the maximum period of detention was remedied by the detailed guidelines adopted at a meeting of the Criminal Division of the Supreme Court on 23 March 2006. 42. As to the accessibility of these guidelines, the Court notes that they were published by the Supreme Court. Furthermore, the same approach was confirmed in the practice of the Supreme Court (see paragraph 29 above). The applicant was legally represented throughout the criminal proceedings against him and it should be expected of a lawyer that he or she be aware of the relevant case-law of the Supreme Court.", "The Court therefore concludes that the practice of the Supreme Court which clarified the manner of application of Article 109 of the Code of Criminal Procedure was accessible to the applicant and that it made the application of that provision sufficiently foreseeable. 43. The decisions the applicant is contesting were all taken well after the guidelines in question were adopted, namely in 2010. 44. The decisions were in conformity with domestic law as clarified in the guidelines of the Supreme Court of 23 March 2006 and its subsequent settled practice.", "The Court has found nothing to indicate that the Supreme Court’s interpretation of domestic law was in any way arbitrary. 45. There has accordingly been no violation of Article 5 § 1 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 46.", "The applicant complained, under Article 5 of the Convention, about the length of his pre-trial detention and of the fact that neither he nor his defence counsel had been informed of a panel session of the Zagreb County Court on 6 November 2009 at which his detention had been extended. He also complained under Article 13 of the Convention that he had had no effective remedy for his complaints concerning his detention and that he had not been heard in person by the Supreme Court, acting as the final court of appeal, when it had dismissed his appeal against conviction. 47. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the lawfulness of the applicant’s detention after 16 March 2010 admissible and the remainder of the application inadmissible; 2. Holds that there has been no violation of Article 5 § 1 of the Convention. Done in English, and notified in writing on 30 October 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenAnatoly KovlerRegistrarPresident" ]

[ "THIRD SECTION CASE OF BUCEAŞ AND BUCIAȘ[1] v. ROMANIA (Application no. 32185/04) JUDGMENT This version was rectified on 16 December 2014 under Rule 81 of the Rules of Court 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 Buceaş and Buciaș v. Romania[2], The European Court of Human Rights (Third Section), sitting as a Chamber compomsed of: Josep Casadevall, President,Alvina Gyulumyan,Ján Šikuta,Luis López Guerra,Johannes Silvis,Valeriu Griţco,Iulia Antoanella Motoc, 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.", "32185/04) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Romanian nationals, Mr Ioan Buceaş[3] and Mr Alexandru Buciaş (“the applicants”), on 15 July 2004. The Registry was informed that the second applicant, Alexandru Buciaș, had died on 6 December 2005. His wife, Mrs Margit Buciaș, and their daughter, Ms Margit Buciaș, applied to continue the application in his name and appointed the same counsel to represent them. For reasons of convenience, Mr Alexandru Buciaș will continue to be referred to as the \"second applicant\", although it is now his widow and his daughter who are to be regarded as having that status (see, inter alia, Pandolfelli and Palumbo v. Italy, 27 February 1992, § 2, Series A no. 231‑B).", "2. The applicants were represented by Mr T. Coloja, a lawyer practising in Oradea. The Romanian Government (“the Government”) were represented by their Agent, Mrs I. Cambrea, from the Ministry of Foreign Affairs. 3. The applicants alleged under Article 1 of Protocol No.", "1 to the Convention that they had been deprived of their possessions with no legitimate aim by the arbitrary dismissal of their action for the annulment of the sale of their immovable property. 4. On 28 March 2011 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "In 1994 the applicants’ father entered into a loan agreement with H.M.C., offering a mortgage on his immovable property, a building and the appurtenant land located in Osorhei as a guarantee. 6. On 3 June 1994, the mortgage was registered with the land registry. 7. As the applicants’ father did not reimburse the loan on the appointed day, his immovable property was sold at auction to a family, T.T.T.", "and T.T.S., on 31 May 1996. 8. The right of ownership of the successful bidders over the immovable property was entered in the land register. 9. On 1 July 1996 the applicants’ father challenged the forced sale, seeking the annulment of the order for the sale of his immovable property.", "The proceedings were registered with the land registry on 5 January 1998. 10. Subsequently, on 30 December 1998 despite the pending proceedings regarding the annulment of the sale at auction, the buyers (T.T.T. and T.T.S.) sold the immovable property to another individual, S.R.", "11. On 26 April 2000 the Oradea Court of Appeal allowed the applicants’ father’s action and consequently annulled the forced sale of the immovable property on the ground that the loan had been reimbursed and the price was considerably lower than the real value of the property. However, he could not obtain possession of the immovable property as meanwhile it had been sold to S.R. 12. Invoking the principle quod nullum est, nullum producit effectum, he lodged an action with the Oradea District Court seeking the annulment of the two sale agreements: the agreement by which T.T.T.", "and T.T.S. had acquired the immovable property at auction and the subsequent agreement concluded between T.T.T. and T.T.S and S.R. 13. During the proceedings, the applicants’ father died and he was replaced by the applicants as his heirs.", "14. On 25 October 2001 the Oradea District Court dismissed the civil action on the ground that the last buyer, S.R., had acquired the immovable property in good faith. 15. The applicants lodged an appeal, claiming that S.R. had not bought the property in good faith.", "They submitted that S.R. had been aware of the proceedings initiated by their father for the annulment of the forced sale as they had been entered in the land register. The appeal was allowed by a decision of the Bihor County Court delivered on 22 May 2003 on the ground that the annulment of the forced sale should have resulted in the annulment of all other subsequent acts concluded by persons aware of the annulment. 16. On 8 April 2004 the Oradea Court of Appeal allowed an appeal on points of law lodged by the buyers on the ground that the last buyer, S.R., had entered into the contract in good faith.", "The reasoning of the appeal court concerning the buyer’s good faith reads as follows: “In the instant case, as can be seen from the contract itself, sworn before a public notary, the sale contract had been concluded a long time before its signing before the public notary, the price being fixed by the parties and paid in full on 9 October 1996; at that date there was no element from which it could be inferred that the buyer acted with fraudulent intent.” 17. The decision contained a dissenting opinion by one of the three judges, who maintained that even though the proceedings initiated by the applicants’ father for the annulment of the forced sale - and consequently the sale of his immovable property to T.T.T. and T.T.S. - had been entered in the land register on 5 January 1998, only on 30 December 1998 had the latter sold the immovable property to S.R. Besides, T.T.T.", "and T.T.S had been parties to the annulment proceedings initiated by the applicants’ father. 18. The relevant part of the dissenting opinion reads as follows: “The defendants (T.T.T. and T.T.S.) had known since 1996 that the immovable property they had bought at public auction was the subject of proceedings as they were parties to the proceedings.", "The buyer, S.R., was also aware of the proceedings as in the sale agreement signed on 30 December 1999, sworn before a public notary, it was expressly stated that the immovable property was the subject of trial no. 6558/1996 of the Oradea District Court”. ... “The fact that the parties had inserted in the sale agreement that the price had been paid on 9 October 1996 is not relevant as long as the transfer of property from the seller to the buyer had only taken place on 30 December 1998, the date on which the parties had signed the contract before a public notary, after the proceedings had been entered in the land registry .... Moreover, according to the documents in the file it appears that none of the defendants had possession of the immovable property. They had initiated several eviction proceedings against the plaintiffs, who had refused to leave the property.” II.", "RELEVANT DOMESTIC LAW AND CASE-LAW A. Case-law concerning good faith 19. The relevant case-law regarding the definition and the burden of proof of good faith are described in Păduraru v. Romania (no. 63252/00, §§ 49-53, ECHR 2005‑XII). B. Law no.7/1996 on the cadastre and real estate publicity 20.", "In the context of Law no. 7/1996 the cadastre and the land register form a unitary and compulsory system of technical, economic and legal records, of domestic importance, of all immovable property throughout the country’s territory, having as goals: to determine the technical, economic and legal information regarding property; to provide notice to interested parties in respect of real estate on the basis of documents which have established, transferred, modified or extinguished rights relating to the property; to support the tax system and the housing market, and to help to ensure the security of real-estate transactions and facilitate mortgage loans. 21. For the purpose of notice to interested parties, real estate is registered in land books. Each individual land book makes reference to a title, indicating the registry’s identification number and the locality where the real estate is located, as well as three main parts: a) Part I contains the description of the real estate; b) Part II evidences the name of the owner, the ownership title over the real estate, related easements, as well as other registrations related to the ownership title; c) Part III refers to the rights temporarily granted to third parties (such as occupancy, leases, easements, encumbrances, information concerning litigation and or/personal prohibitions.", "22. According to Article 34 of the law, the content of the land book shall be considered exact, to the benefit of the person having acquired a real right by a juridical act, with certain obligations, if at the moment of the right’s acquisition no action has been entered in the land register, contesting its content, or if it has not known this inaccuracy in another way. 23. Article 56 of the law provides that the public notary having drawn up a deed by which a real real-estate right is transmitted, modified, constituted, or extinguished shall be obliged to request, ex officio, the inscription in the land register. C. Provisions concerning the conclusion of a sale agreement of land 24.", "Under Romanian law a sale agreement of land becomes legally binding between the parties once authenticated by the public notary. Any contract regarding the transfer of the ownership right over land which has not been sworn before a public notary is null and void. 25. For the authentication of the transfer deed having as object the real estate, the public notary needs an excerpt of the land book. In order to obtain this excerpt from the Land Registry Office, the public notary must submit to the relevant land registry office an application form, accompanied by the proof regarding the payment of the issuance fee.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 26. The applicants complained that in spite of the annulment of the sale of their immovable property at auction they were not able to obtain the annulment of its subsequent sale to a third party owing to an arbitrary decision rendered by the Oradea Court of Appeal on 8 April 2004. They relied on Article 1 of Protocol No.", "1 to the Convention, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. 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 27. The Government argued that the complaint was incompatible ratione materiae with the Convention, as the applicants had not proved that they had any “possessions” within the meaning of Article 1 of Protocol No. 1.", "28. The applicants did not agree with the Government. 29. The Court considers that the objection is closely linked to the merits of the applicants’ complaint. It will therefore deal with the objection in its examination of the merits below.", "It also notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 30.", "The applicants alleged that the sale of their immovable property to a third party who had acted in bad faith, upheld by the decision of 8 April 2004 of the Oradea Court of Appeal, had violated Article 1 of Protocol No. 1. They stressed that the Court should note not only the buyer’s bad faith, but also that of the sellers, who had bought the immovable property at public auction. Despite the fact that they had been aware of the proceedings by which the applicants’ father had contested the lawfulness of the sale of his property at public auction, they had sold the estate in order to make its return to its initial owners impossible in case of a favourable decision. They also stressed that, although the proceedings for the annulment of the forced sale had been registered in the land register on 5 January 1998, the immovable property had been sold on 30 December 1998.", "31. The Government submitted that there was no interference with the applicants’ property rights. In this connection, they contended that the buyer’s good faith should be noted because S.R. had paid the price of the immovable property in 1996, long before the signing of the sale agreement before the public notary, and accordingly before the proceedings initiated by the applicants’ father had been registered in the land register. They further maintained that if the Court considered that there was an interference with the applicants’ rights, such interference was legal, justified and proportionate.", "The decision rendered in the buyer’s favour had been in accordance with the Romanian Civil Code and the principles governing good faith, and could not be considered arbitrary. 2. The Court’s assessment (a) Whether there was a possession 32. The Court notes that by a decision of 26 April 2000, the Oradea Court of Appeal allowed the applicants’ father’s action and consequently annulled the forced sale of the immovable property at auction on the ground that the loan had been reimbursed and the price was considerably lower than the real value of the property. On the basis of the retroactive effect of the annulment, the applicants became the owners of the immovable property.", "They were entitled to the return of their property as a direct consequence of the annulment of the subsequent sale or to the value of their property. 33. The Court therefore considers that the applicants had a possession within the meaning of Article 1 of Protocol No. 1 and consequently dismisses the Government’s objection ratione materiae. (b) Whether there was interference 34.", "Despite the fact that on the basis of the retroactive effect of the annulment the applicants became the owners of the immovable property, they were not able to obtain the subsequent annulment of the sale of their property to a third party. 35. The Court considers that the dismissal by the Oradea Court of Appeal on 8 April 2004 of the applicants’ action for the annulment of the subsequent sale of their property to S.R. amounted to an interference with the applicants’ right to the peaceful enjoyment of their possessions. 36.", "In order to be compatible with the general rule set forth in the first sentence of the first paragraph of Article 1, such an interference 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 (see Sporrong and Lönnroth v. Sweden, 23 September 1982, § 69, Series A no. 52). Furthermore, the issue of whether a fair balance has been struck “becomes relevant only once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary” (see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999‑II). (c) Compliance with the principle of lawfulness 37.", "The Court reiterates that by virtue of Article 1 of the Convention each Contracting Party “shall secure to everyone within [its] jurisdiction the rights and freedoms defined in ... [the] Convention”. The obligation to secure the effective exercise of the rights defined in that instrument may result in positive obligations for the State (see X and Y v. the Netherlands, 26 March 1985, §§ 22-23, Series A no. 91). 38. As regards the right guaranteed by Article 1 of Protocol No.", "1 to the Convention, the Court reiterates that even in cases involving litigation between individuals and companies, the obligations of the State entail the taking of measures necessary to protect the right of property. In particular, the State is under an obligation to afford the parties to the dispute judicial procedures which offer the necessary procedural guarantees and therefore enable the domestic courts and tribunals to adjudicate effectively and fairly in the light of the applicable law. However, the Court reiterates that its jurisdiction to verify that domestic law has been correctly interpreted and applied is limited and that it is not its function to take the place of the national courts, its role being rather to ensure that the decisions of those courts are not flawed by arbitrariness or otherwise manifestly unreasonable (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007‑I). This means, in particular, that the States are under an obligation to afford judicial procedures that offer the necessary guarantees and therefore enable the domestic courts and tribunals to adjudicate effectively and fairly any disputes between private persons.", "39. In the present case it is clear that the Court is not entitled to call into question the decisions reached by the Romanian courts and tribunals. Its role is instead to verify whether the consequences of their interpretation and application of the domestic law were compatible with the principles laid down in the Convention. 40. In that regard, the Court notes that the domestic court of last resort overturned the judgment given on appeal and rejected the applicants’ claim on the ground that the purchaser had acted in good faith.", "The main argument advanced by the two judges of the three-judge panel for retaining the purchaser’s good faith was the fact that as the price of the real estate had been established by the parties and paid by the purchaser on 9 October 1996, it could be considered that the sale agreement was concluded in 1996. At that time the annulment proceedings initiated by the applicants’ father were not entered in the land register. 41. The Court cannot agree with that conclusion because under Romanian law sale agreements in respect of land must be sworn before a public notary. Any contract regarding the transfer of the ownership right over land which has not been sworn before a public notary is null and void.", "The Court points out that in the instant case the subject of the sale agreement was a building and its appurtenant land. It considers therefore that a valid sale agreement had only been concluded on 30 December 1998 when the parties signed the agreement before a public notary. At that time the proceedings were registered in the land book and S.R. could not claim that she had not been aware of it. 42.", "As regards the concept of good faith the Court notes that under Article 1898 § 1 of the Civil Code, in force at the relevant time, good faith represented the conviction of the buyer that the seller met all the legal requirements to be able to transfer title. 43. The Court further notes that the fate of a sale contract whose annulment is sought depends on the good or bad faith of the parties to it. If the parties acted in bad faith in concluding the contract in that they were aware that the seller was not the owner of the property, legal opinion and the case-law generally consider that the sale was a speculative operation, was unlawful in purpose and, accordingly, that it is null and void (fraus omnia corrumpit). In the instant case both parties were aware that the initial sale agreement could be annulled because the owner of the real property had contested the forced sale in court.", "However, despite the fact that they knew that the legal status of the property was uncertain they concluded the sale agreement. Furthermore, none of them was ever in possession of the real estate; the applicants continued to live in their house in spite of several eviction proceedings initiated against them by the subsequent buyers. 44. Therefore, in the light of the above considerations the Court finds the decision of the domestic court of last resort unconvincingly reasoned. 45.", "The Court considers that it is not necessary to continue its examination and assess whether a fair balance was struck between the demands of the general interest and the requirements of the protection of the individual’s fundamental rights. The foregoing considerations are sufficient to enable the Court to conclude that the State has failed to comply with its obligation to recognise the applicants’ right to the effective enjoyment of their possessions as guaranteed by Article 1 of Protocol No. 1. 46. Consequently, there has been a violation of Article 1 of Protocol No.", "1 to the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 47. Lastly, the applicants complained under Article 6 § 1 of the Convention about the alleged unfairness of the proceedings. 48.", "The Court has examined this complaint as submitted by the applicant. However, having regard to all the material in its possession, and in so far as it fall within its jurisdiction, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this complaint must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 49.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. Pecuniary damage 50. The applicants claimed 70,000 euros (EUR) in respect of pecuniary damage. The amount of EUR 70,000 represents the market value of the real estate consisting of a house of 150 sq.m and 1,439 sq.m of land located in Osorhei.", "This valuation was based on a centralised table held by the Chamber of Public Notaries for establishing the value of real estate. 51. The Government submitted that the only court decision in the applicants’ favour was the decision of the Oradea Court of Appeal of 26 April 2000 by which the forced sale of their property had been annulled. In this connection, the Government contended that they could not be obliged to execute obligations against private individuals. The Government also contested the assessment of the value of the real estate noting that it was not based on a court decision or an expert report, and therefore was of a speculative character.", "They concluded that a finding of a violation would provide sufficient just satisfaction. 52. The Court reiterates that there must be a clear causal connection between the pecuniary damage claimed by the applicants and the violation of the Convention (see, among other authorities, Çakıcı v. Turkey [GC], no. 23657/94, § 127, ECHR 1999‑IV). As it has found a violation of Article 1 of Protocol No.", "1 the Court considers that there is a direct link between this violation and the pecuniary losses alleged by the applicants. 53. It further observes that, in so far as the actual damage to property is concerned, the Government disputed the amount indicated by the applicants without indicating another amount. The Court is however satisfied that the centralised table held by the Chamber of Public Notaries for establishing the value of real estate reflected the amount of actual pecuniary damage sustained by the applicants. Therefore, the Court awards the applicants jointly EUR 70,000 in respect of pecuniary damage.", "2. Non-pecuniary damage 54. The applicants claimed EUR 5,000 in respect of non‑pecuniary damage. 55. The Government submitted that the sum of EUR 5,000 in respect of non-pecuniary damage was excessive.", "56. The Court observes that it has found a violation of Article 1 of Protocol No. 1. The applicants must have suffered distress as a result of these circumstances; however, the amount claimed by the applicant appears excessive. Having regard to these considerations, the Court considers it reasonable to award the applicants jointly, on an equitable basis, EUR 3,300 under this head, plus any tax that may be chargeable on this amount.", "B. Costs and expenses 57. The applicants did not seek reimbursement of costs and expenses relating to the proceedings before the domestic courts or the Court and this is not a matter which the Court has to examine of its own motion (see Motière v. France, no. 39615/98, § 26, 5 December 2000). C. Default interest 58.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Joins to the merits the Government’s objection as to the inadmissibility ratione materiae of the applicants’ complaint under Article 1 of Protocol No. 1 to the Convention and rejects it; 2. Declares by a majority, the complaint concerning Article 1 of Protocol No.", "1 to the Convention admissible and the remainder of the application inadmissible; 3. Holds by six votes to one, that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 4. Holds, by six votes to one, (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 70,000 (seventy thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 3,300 (three thousand three hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses, unanimously, the remainder of the applicants’ 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 In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Šikuta is annexed to this judgment. J.C.M.S.Q. DISSENTING OPINION OF JUDGE ŠIKUTA To my regret, I cannot subscribe to the Chamber’s finding of a violation of Article 1 of Protocol No. 1 to the Convention.", "I lacked several important and relevant facts in order to reach a conclusion, and therefore, from my point of view, the case was not ready for decision. In 1994 the applicants’ father entered into a loan agreement with H.M.C., offering a mortgage on his immovable property, a building and the appurtenant land located in Osorhei, by way of guarantee. On 3 June 1994 the mortgage was registered with the land registry. As the applicants’ father did not reimburse the loan on the due date, his property was sold by auction to a family, T.T.T. and T.T.S., on 31 May 1996.", "The right of ownership of the successful bidders in respect of the property was entered in the land register. On 1 July 1996 the applicants’ father challenged the forced sale, seeking the annulment of the order for the sale of his immovable property. The proceedings were registered at the land registry on 5 January 1998. Subsequently, on 30 December 1998, despite the pending proceedings regarding the annulment of the sale by auction, the buyers (T.T.T. and T.T.S.)", "sold the property to a third party, S.R. On 26 April 2000 the Oradea Court of Appeal allowed the action by the applicants’ father and consequently annulled the forced sale of the property on the grounds that the loan had been reimbursed and the price was considerably lower than the real value of the property. However, he could not recover possession of the property as, in the meantime, it had been sold to S.R. Invoking the principle quod nullum est, nullum producit effectum, he lodged an action with the Oradea District Court seeking the annulment of the two sale agreements: the agreement by which T.T.T. and T.T.S.", "had acquired the property at auction and the subsequent agreement between T.T.T. and T.T.S., of the one part, and S.R. From the facts of the instant case there are a number of points that remain unclear: at what point the right of ownership of the successful bidders was entered in the land register, what reasons were given by the applicant’s father to challenge the forced sale, what legal consequences arose from the registration of the property in the land register, why the Oradea Court of Appeal annulled the forced sale on 26 April 2000, to whom the loan had been reimbursed, what the price was, why the price was considerably lower than the real value of the property, what the real value of the property was. In the light of the above, I am convinced that our Court’s finding of a violation of Article 1 of Protocol No. 1 is premature.", "[1] The text was: “CASE OF BUCIAȘ v. ROMANIA”. [2] The text was: “Buciaș v. Romania”. [3] The text was: “Mr Ioan Buciaș”." ]

[ "THIRD SECTION CASE OF PANOV AND OTHERS v. RUSSIA (Applications nos. 42898/17 and 8 others ‑ see appended list) JUDGMENT This version was rectified on 11 October 2018 and 5 February 2019under Rule 81 of the Rules of Court STRASBOURG 20 September 2018 This judgment is final but it may be subject to editorial revision. In the case of Panov and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Alena Poláčková, President,Dmitry Dedov,Jolien Schukking, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 30 August 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the 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: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 7. The Court notes that the applicants were kept in detention in poor conditions. The details of the applicants’ detention are indicated in the appended table. The Court refers to the principles established in its case‑law regarding inadequate conditions of detention (see, for instance, Kudła v. Poland [GC], no.", "30210/96, §§ 90‑94, ECHR 2000‑XI, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 139‑165, 10 January 2012). It reiterates in particular that extreme lack of space in a prison cell or overcrowding weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see, amongst many authorities, Karalevičius v. Lithuania, no. 53254/99, §§ 36–40, 7 April 2005). 8.", "In the leading case of Sergey Babushkin v. Russia, no. 5993/08, 28 November 2013, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention were inadequate.", "10. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention. III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 11. Some applicants also complained under Article 13 of the Convention (see appended table).", "These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Sergey Babushkin, cited above, §§ 38-45 . IV. REMAINING COMPLAINTS 12.", "In applications nos. 69411/17 and 71196/17, the applicants also raised other complaints under various Articles of the Convention. 13. The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 14. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 15. Regard being had to the documents in its possession and to its case‑law (see, in particular, Sergey Babushkin v. Russia, (just satisfaction), no. 5993/08, 16 October 2014, and Mozharov and Others v. Russia, no. 16401/12 and 9 others, 21 March 2017), the Court considers it reasonable to award the sums indicated in the appended table.", "16. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the complaints concerning the inadequate conditions of detention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of applications nos.", "69411/17 and 71196/17 inadmissible; 3. Holds that these complaints 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 20 September 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Liv TigerstedtAlena Poláčková Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 3 of the Convention(inadequate conditions of detention) No. Application no. Date of introduction Applicant’s name Date of birth Representative’s 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] 42898/17 14/08/2017 Yuriy Nikolayevich Panov 14/08/1955 IK-2 Zabaykalskiy Region 04/09/2008 to 10/06/2018 9 year(s) and 9 month(s) and 7 day(s) 115 inmate(s) 0,7 m² inadequate temperature, no or restricted access to warm water, overcrowding, lack of toiletries, lack of fresh air, lack of or poor quality of bedding and bed linen Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 7,500 64134/17 21/08/2017 Daniil[1] Aleksandrovich Zorin 21/01/1979 Vinogradov Aleksandr Vladimirovich Kostroma IK-2 Kostroma Region 22/07/2012 to 11/08/2017 5 year(s) and 21 day(s) 1 m² mouldy or dirty cell, infestation of cell with insects/rodents, lack of or insufficient electric light, lack of or insufficient natural light, lack of or inadequate hygienic facilities, poor quality of food, overcrowding Art.", "13 - lack of any effective remedy in respect of inadequate conditions of detention - 5,000 67924/17 01/09/2017 Petr Vasilyevich Buyerakov 12/10/1982 IK-11 Nizhniy Novgorod Region 28/11/2016 to 21/08/2017 8 month(s) and 25 day(s) 1.6 m² no ventilation, lack of fresh air, lack of or insufficient natural light, overcrowding 3,900 68854/17 01/09/2017 Vladimir Valeryevich Lebedev 24/08/1979 IK-5 Krasnoyarsk Region 11/12/2014 pending More than 3 year(s) and 6 month(s) and 22 day(s) 1.9 m² overcrowding, lack of or poor quality of bedding and bed linen, lack of clothing, lack of privacy for showers, lack of or inadequate hygienic facilities, lack of fresh air, inadequate temperature, lack of requisite medical assistance Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 7,800 69411/17 23/08/2017 Sergey Nikolayevich Radeyko 30/06/1982 IK-5 Krasnoyarsk Region 16/03/2017 to 29/11/2017 8 month(s) and 14 day(s) IK-5 Krasnoyarsk Region 20/12/2017 pending More than 6 month(s) and 13 day(s) 105 inmate(s) 3 m² 4 toilet(s) 3 m² overcrowding, inadequate temperature, lack of fresh air, lack of or inadequate hygienic facilities, lack of or insufficient electric light, lack of or insufficient physical exercise in fresh air, lack of or restricted access to leisure or educational activities, lack of privacy for toilet, lack of or inadequate furniture, no or restricted access to shower, poor quality of food see above Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 5,800 71196/17 18/09/2017 Mikhail Anatolyevich Uvarov 18/05/1988 IK-2 Zabaykalskiy Region 29/10/2016 to 22/03/2017 4 month(s) and 23 day(s) IK-2 Zabaykalskiy Region 18/04/2017 to 28/04/2017 11 day(s) IK-2 Zabaykalskiy Region 04/06/2017 pending More than 1 year(s) and 29 day(s) 6 inmate(s) 2.5 m² lack of privacy for toilet, lack of or insufficient physical exercise in fresh air, lack of or insufficient natural light, overcrowding Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 6,800 73176/17 29/09/2017 Ali Umarovich Salekhov[2] 12/08/1968 Born Aleksandr Viktorovich Kineshma IK-6 OIK-11 Ivanovo Region 02/10/2013 to 05/05/2017 3 year(s) and 7 month(s) and 4 day(s) 120 inmate(s) 2 m² 4 toilet(s) overcrowding, infestation of cell with insects/rodents, insufficient number of sleeping places, lack of fresh air, lack of or inadequate hygienic facilities, lack of or insufficient physical exercise in fresh air, lack of privacy for toilet, no or restricted access to potable water, no or restricted access to running water, no or restricted access to warm water, poor quality of food Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 5,000 74197/17 09/10/2017 Sergey Sergeyevich Bozhko 04/10/1982 IK-27 Kirov Region 16/06/2010 to 23/06/2017 7 year(s) and 8 day(s) 2 m² inadequate temperature, infestation of cell with insects/rodents, insufficient number of sleeping places, lack of fresh air, lack of or inadequate hygienic facilities, lack of or insufficient natural light, lack of or insufficient electric light, mouldy or dirty cell, overcrowding, poor quality of food, poor quality of potable water, lack of privacy for toilet Art.", "13 - lack of any effective remedy in respect of inadequate conditions of detention - 5,000 81596/17 08/11/2017 Sergey Ivanovich Pogulyayev 13/02/1965 IK-11 Nizhniy Novgorod Region 01/01/2013 pending More than 5 year(s) and 6 month(s) and 2 day(s) 135 inmate(s) 1.2 m² 46 toilet(s) poor quality of food, no or restricted access to shower, lack of requisite medical assistance, overcrowding 7,000 [1]. Rectified on 11 October 2008: the text was “Danil”. [2] Rectified on 5 February 2019: the text was “Selekhov”. [1]. Plus any tax that may be chargeable to the applicants." ]

[ "SECOND SECTION CASE OF МILICA POPOVIĆ v. SERBIA (Application no. 33888/05) JUDGMENT STRASBOURG 24 November 2009 FINAL 28/06/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Popović v. Serbia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Vladimiro Zagrebelsky,Danutė Jočienė,Dragoljub Popović,András Sajó,Nona Tsotsoria,Kristina Pardalos, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 3 November, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "33888/05) against the State Union of Serbia and Montenegro, lodged with the Court, under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), by a Serbian national, Ms Milica Popović (“the applicant”), on 12 September 2005. 2. As of 3 June 2006, following the Montenegrin declaration of independence, Serbia remained the sole respondent in the proceedings before the Court. 3. The applicant was represented by Mr S. Stojanović, a lawyer practicing in Belgrade.", "The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić. 4. On 13 July 2006 the President of the Second Section decided to give notice of the application to the Government. Applying Article 29 § 3 of the Convention, it was also decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. On 23 October 1984 the Second Municipal Court (Drugi opštinski sud) in Belgrade issued a judgment stating, inter alia, that the applicant was the owner of 36% of a flat and a garage located in Belgrade. The remaining 64% was determined to be the property of D.S., the applicant's former partner. On 25 June 1985 this judgment became final. 6.", "In a separate set of proceedings, on 30 March 1987, the Fourth Municipal Court (Četvrti opštinski sud) in Belgrade ruled that the physical division of the said real estate was impossible, that a public auction should be held instead, and that the proceeds thereof should be divided among the former partners accordingly. 7. On 16 November 1987 this decision became final. 8. On 18 May 1990 the Fourth Municipal Court in Belgrade (hereinafter “the enforcement court”) accepted the applicant's request and ordered the enforcement of the above decision dated 30 March 1987.", "9. At the hearing held on 2 September 1996 the applicant offered to buy the 64% of the flat in question owned by D.S. and thereby become its sole owner. On the same date the enforcement court accepted this offer, “awarded” the flat (“dosudio nepokretnosi”) to the applicant and set the price at 25,126.22 Dinars. D.S.", "subsequently filed an appeal against this decision. 10. Following a remittal, on 26 April 2002 the District Court upheld the decision of the enforcement court and it thereby became final. 11. On 3 March 2004 the Supreme Court accepted the request for the protection of legality (zahtev za zaštitu zakonitosti) filed by the Chief Public Prosecutor personally.", "It quashed the lower courts' decisions and remitted the case to the enforcement court for reconsideration. It would appear that the Supreme Court's decision was served on the applicant by 12 January 2005. 12. Following their separation in 1978, D.S. retained sole possession of the flat in question while the applicant appears to have had no access since then.", "13. On 20 October 2006 the applicant was given back the nominal value of the amount paid pursuant to the decision of 2 September 1996 (see paragraph 9 above). 14. On 2 September 2007 the applicant died. 15.", "On 21 September 2007 the Fourth Municipal Court suspended the proceedings pending the determination of the applicant's legal heirs. 16. On 10 October 2008 the applicant's son, as her only legal heir, requested the continuation of the proceedings. 17. It would appear that there have been no further developments in the case since then.", "II. RELEVANT DOMESTIC LAW A. Enforcement Procedure Act (Zakon o izvršnom postupku; Official Gazette of Federal Republic of Yugoslavia nos. 28/00, 73/00 and 71/01) 18. Article 4 provides that enforcement proceedings are to be conducted with particular urgency.", "19. Articles 147-160 set out the details as regards the auctioning of real estate. B. Inheritance Act 1995 (Zakon o nasleđivanju, published in the Official Gazette of the Republic of Serbia nos. 46/95 and 101/03) 20. Article 212 § 1 provides that the deceased's estate shall be transferred ex lege to the legal heirs at the moment of death.", "THE LAW I. THE APPLICANT'S DEATH 21. On 2 June 2007 the applicant died. 22. On 20 March 2008 the First Municipal Court (Prvi opštinski sud) in Belgrade declared the applicant's son, Mr Vojko Mišković, to be her sole legal heir.", "23. On 23 April 2009 Mr Mišković informed the Court that he wished to maintain the proceedings lodged by his mother. 24. Given the relevant domestic legislation (see paragraph 20 above), as well as the fact that he has a “definite pecuniary interest” in the enforcement proceedings at issue, the Court finds, without prejudice to the Government's other preliminary objections, that Mr Mišković has standing to proceed in his mother's stead (see, mutatis mutandis, Marčić and Others v. Serbia, no. 17556/05, § 35-40, 30 October 2007).", "25. Mr Mišković shall, therefore, himself be referred to as “the applicant” hereinafter. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 26.", "Under Article 1 of Protocol No. 1, the applicant complained about the non-execution of the Fourth Municipal Court's final decision of 30 March 1987. 27. Article 1 of Protocol No. 1 reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his [or her] possessions.", "No one shall be deprived of his [or her] possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 28. The Government raised various objections to the admissibility of this matter. However, the Court has rejected similar objections in many previous cases (see, for example, EVT Company v. Serbia, no. 3102/05, §§ 39-42, 21 June 2007).", "It finds no particular circumstances in the instant case which would require a departure from this jurisprudence. It therefore declares the application admissible. B. Merits 29. The applicant reaffirmed that his property rights had been violated while the Government maintained that there had been no violation of Article 1 of Protocol No.", "1. 30. The Court has frequently found that, in the context of Article 1 of Protocol No. 1, the States' positive obligations may require that measures be taken where necessary to protect the right of property, particularly where there is a direct link between the measures which an applicant may legitimately expect the authorities to undertake and the effective enjoyment of his or her possessions (see, for example, Burdov v. Russia, no. 59498/00, §§ 39-42, ECHR 2002‑III).", "31. It is thus the State's responsibility to make use of all available legal means at its disposal in order to enforce a final court decision, notwithstanding the fact that it has been issued against a private party, as well as to make sure that all relevant domestic procedures are duly complied with (see, mutatis mutandis, Marčić and Others v. Serbia, cited above, § 56). 32. Turning to the present case, the Court first notes that the ongoing inability of the domestic authorities to auction the flat in question amounts to an interference with the applicant's property rights. Secondly, the decision at issue had become final by 16 November 1987, and its enforcement had been ordered on 18 May 1990.", "Thirdly, Protocol No. 1 had entered into force in respect of Serbia on 3 March 2004, meaning that the non-enforcement at issue has been within the Court's competence ratione temporis for a period of five years and eight months, some fourteen years having already elapsed before that date. Lastly, there is nothing to suggest that the auction should have been anything but straightforward. 33. In view of the foregoing, the Court finds that the Serbian authorities have failed to fulfil their positive obligation, within the meaning of Article 1 of Protocol No.", "1, to enforce the decision of 30 March 1987. There has, accordingly, been a violation of the said provision. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 34. The applicant further complained, under Article 13 of the Convention, that he has had no means to expedite the proceedings in question or obtain compensation for the past delay.", "35. 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.” 36. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it cannot be declared inadmissible on any other ground. The complaint must therefore be declared admissible. 37.", "Having regard to its findings in respect of Article 1 of Protocol No. 1 and its prior judgments on the issue (see, mutatis mutandis, Cvetković v. Serbia, no. 17271/04, § 59, 10 June 2008), the Court considers that, at the relevant time, there was indeed no effective remedy under domestic law for the applicant's complaint about the non-enforcement in question. There has, accordingly, been a violation of Article 13 of the Convention taken together with Article 1 of Protocol No. 1.", "IV. OTHER ALLEGED VIOLATIONS 38. Under Article 6 § 1 of the Convention, the applicant also complained about the Supreme Court's decision of 3 March 2004. 39. The Court observes that this decision was served on the applicant by 12 January 2005 while the application itself was introduced on 12 September 2005, more than six months later.", "It follows that this complaint has been lodged out of time, and must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 40. Finally, under Article 6 § 1 of the Convention, the applicant, again, complained about the non-enforcement of the Fourth Municipal Court's decision of 30 March 1987. 41. Having regard to its finding in respect of Article 1 of Protocol No.", "1 above, the Court declares the applicant's identical complaint made under Article 6 § 1 admissible, but does not find it necessary to examine it separately on the merits under this provision (see, mutatis mutandis, Davidescu v. Romania, no. 2252/02, § 57, 16 November 2006). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 42. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 43. The applicant claimed a total of 147,350 Euros (EUR) in respect of the pecuniary and the non-pecuniary damage suffered. 44. The Government contested these claims. 45.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 46. However, the Court considers that the applicant must have suffered some non-pecuniary damage as a result of the non-enforcement at issue. Accordingly, taking into account the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant EUR 1,800 under this head. 47.", "It must, further, be noted that a judgment in which the Court finds a violation of the Convention or of its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found (see Apostol v. Georgia, no. 40765/02, § 71, ECHR 2006). 48. Having regard to its finding in the instant case, the Court considers that the respondent State must secure, by appropriate means, the enforcement of the Fourth Municipal Court's final decision of 30 March 1987 (see, among many other authorities, Marčić and Others v. Serbia, cited above, § 65). B.", "Costs and expenses 49. The applicant claimed EUR 41,092 for the costs and expenses incurred before the domestic courts and EUR 2,000 for those incurred before the Court. 50. The Government contested these claims. 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 their 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 but considers it reasonable to award the sum of EUR 600 for the proceedings before the Court. C. Default interest 52. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaint concerning the non-enforcement of the final domestic decision 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 has been a violation of Article 13 of the Convention taken together with Article 1 of Protocol No. 1; 4.", "Holds that it is not necessary to examine separately the non-enforcement complaint under Article 6 § 1 of the Convention; 5. Holds (a) that the respondent State shall ensure, by appropriate means, within three months from the date on which this judgment becomes final, in accordance with Article 44 § 2 of the Convention, the enforcement of the Fourth Municipal Court's final decision of 30 March 1987; (b) that the respondent State is to pay the applicant, within the same three month period, the following sums: (i) EUR 1,800 (one thousand eight hundred euros), plus any tax that may be chargeable, for the non-pecuniary damage suffered, and (ii) EUR 600 (six hundred euros), plus any tax that may be chargeable to the applicant for costs and expenses; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 24 November 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise TulkensRegistrarPresident" ]

[ "THIRD SECTION CASE OF VOLKAN ŞAHİN v. TURKEY (Application no. 34400/02) JUDGMENT STRASBOURG 20 May 2008 FINAL 20/08/2008 This judgment may be subject to editorial revision. In the case of Volkan Şahin v. Turkey, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Rıza Türmen,Boštjan M. Zupančič,Alvina Gyulumyan,Ineta Ziemele,Luis López Guerra,Ann Power, judges,and Stanley Naismith, Deputy 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. 34400/02) 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, Volkan Şahin (“the applicant”), on 6 August 2002.", "2. The applicant was represented by Mr Ayhan Akyiğit, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3. On 6 May 2004 the Court declared the application partly inadmissible and decided to communicate to the Government the complaints concerning the length of the proceedings and the lack of remedies in that respect, as well as the complaint concerning non-communication to the applicant of the submissions of the principal public prosecutor.", "On 8 September 2006 it decided to rule on the admissibility and merits of the application at the same time, pursuant to Article 29 § 3 of the Convention. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1965 and lives in Antalya. 5. On 23 March 1993 a certain H.I.", "lodged a criminal complaint with the Marmaris public prosecutor against the applicant and a certain S.K., accusing them of forging a bond. The prosecutor initiated an investigation and questioned the applicant on 17 May 1993. 6. Once the preliminary investigation was completed and the necessary evidence was obtained, a prosecutor in Ankara filed an indictment with the Ankara Assize Court (hereinafter “the trial court”) on 21 April 1995 and requested that the applicant and S.K. be punished in accordance with Article 342 § 1 of the Criminal Code for the offence of forgery.", "7. Thirteen hearings were held by the trial court between 1 May 1995 and 12 September 1997 in the absence of the applicant. At each of these hearings the trial court noted the authorities’ failure to locate the applicant’s address. According to the applicant, the reason for his absence from those hearings was that he had not been informed about the trial. On 13 May 1996 the applicant’s co-accused S.K.", "was acquitted for lack of sufficient evidence. The trial court decided to continue the proceedings against the applicant. 8. A lawyer representing the applicant attended the 14th hearing on 21 November 1997 but, as the applicant was unable to pay his fees, the lawyer discontinued representing him. On 26 March 1998 the authorities were able to find the applicant and question him.", "In the course of the questioning the applicant denied the accusations against him. He attended the 18th hearing, held on 28 May 1998. 9. During the 19th hearing, held on 22 June 1998, the trial court acquitted the applicant for lack of sufficient evidence. On 16 September 1998 the public prosecutor appealed against the acquittal.", "On 11 November 1999 the Court of Cassation quashed the decision and referred the case to the trial court for a new trial. 10. On 11 April 2000, during its first hearing in the new trial, the trial court convicted the applicant as charged and sentenced him to one year and eight months’ imprisonment. The applicant appealed. 11.", "On 22 October 2001 the Principal Public Prosecutor at the Court of Cassation submitted his written observations to the Court of Cassation. These observations were not communicated to the applicant. On 13 February 2002, after having held a hearing, the Court of Cassation upheld the trial court’s decision. THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION 1.", "Complaint concerning the length of the criminal proceedings 12. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, 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...” 13. The Government contested that argument. 14. The Court considers that the period to be taken into consideration began on 17 May 1993 when the applicant was questioned by the prosecutor, and ended on 13 February 2002 when the Court of Cassation upheld his conviction.", "It thus lasted almost eight years and nine months for two levels of jurisdiction. A. Admissibility 15. The Government argued that the applicant did not exhaust the domestic remedies as he failed to raise his complaint before the national courts. 16. The applicant did not deal specifically with this issue other than to dispute, in general terms, the arguments of the Government.", "17. The Court observes that in previous cases it has already examined and rejected similar objections of the Government as regards the alleged failure to exhaust domestic remedies (see, in particular, Karakullukçu v. Turkey, no. 49275/99, §§ 27-28, 22 November 2005). The Court finds no particular circumstances in the instant case which would require it to depart from its findings in the above-mentioned case. It therefore rejects the Government’s objection under this head.", "18. 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 19. The Government argued that the applicant had contributed to the delay by failing to attend a large number of hearings. The authorities had done everything possible to ensure the applicant’s attendance at those hearings. 20. The applicant maintained that the prosecutor’s indictment of 21 April 1995 had not been communicated to him and, as such, he was not aware of the criminal proceedings against him.", "21. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, 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). 22. The Court does not consider the subject matter of the case to be complex.", "However, the applicant’s absence from the hearings held between 1 May 1995 and 21 November 1997 – that is, a period of over two and a half years – undoubtedly contributed to the total length of the proceedings. 23. According to the Government, the reason for the applicant’s failure to attend the hearings had been his intention to remain at large until the statute of limitations for the offence was reached. The applicant had thus hoped to avoid being prosecuted. According to the applicant, on the other hand, the reason had been the failure of the authorities to inform him about the trial.", "24. The Court does not deem it important to examine the accuracy of the parties’ submissions on this matter since it considers that the applicant, who claims to have been unaware of the trial for the period referred to above (see paragraph 22 above), cannot claim to have been affected by the proceedings against him for that period. It therefore disregards this period from its examination of the total length of the criminal proceedings. 25. As regards the conduct of the authorities, the Court observes that the Government did not offer any explanation as to why it had taken the prosecutor, who questioned the applicant on 17 May 1993 (see paragraph 5 above), almost two years to prepare and file his indictment (see paragraph 6 above).", "26. Similarly, no explanation was put forward by the Government for the time taken by the Court of Cassation to examine the appeals. In this connection the Court notes that it took the Court of Cassation almost one year and two months to decide the appeal lodged by the prosecutor against the applicant’s acquittal (see paragraph 9 above). Furthermore, the appeal lodged by the applicant against his conviction was not decided by the Court of Cassation for a period of almost two years (see paragraphs 10-11 above). 27.", "In light of the foregoing, 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. 28. There has accordingly been a breach of Article 6 § 1. 2. Complaint concerning the non-communication of the prosecutor’s observations 29.", "The applicant complained that the written opinion of the Principal Public Prosecutor at the Court of Cassation had not been served on him, thus depriving him of the opportunity to put forward his counter-arguments. He relied on Article 6 § 3 (b) of the Convention. 30. The Court considers that this complaint should be examined from the standpoint of Article 6 § 1, which in so far as relevant provides: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” A. Admissibility 31. 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 32. The Government argued, in particular, that the applicant’s representative, who attended the hearing before the Court of Cassation, could have examined the Principal Public Prosecutor’s observations before the hearing and could have challenged them.", "33. The applicant maintained his allegations. 34. The Court notes that it has already examined the same grievance in the past and has found a violation of Article 6 § 1 of the Convention (see, in particular, Göç v. Turkey, [GC], no. 36590/97, § 55, ECHR 2002-V; Sağır v. Turkey, no.", "37562/02, § 26, 19 October 2006; and Ayçoban and Others v. Turkey, nos. 42208/02, 43491/02 and 43495/02, 22 December 2005). 35. The Court has examined the present case and finds no particular circumstances which would require it to depart from its findings in the aforementioned cases. 36.", "There has accordingly been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 37. The applicant further complained about the lack of a remedy by which he could have challenged the excessive length of the proceedings. He 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.” 38.", "The Government contested that argument. 39. The Court notes that this complaint is linked to the complaint concerning the reasonable time requirement examined above and must therefore likewise be declared admissible. 40. 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). 41. The Court observes that the Turkish legal system does not provide any remedies to accelerate proceedings or to provide litigants with adequate redress for delays that have already occurred. As such, the applicant in the present case did not have any rights to compel any authority to exercise its supervisory jurisdiction over the trial court to expedite the proceedings (see Tendik and Others v. Turkey, no. 23188/02, §§ 34-39, 22 December 2005, and the cases cited therein).", "42. There has accordingly been a breach of Article 13. 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.” A.", "Damage 44. The applicant claimed 150,000 euros (EUR) in respect of pecuniary damage and EUR 50,000 in respect of non-pecuniary damage. 45. The Government contested the applicant’s claims. 46.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 3,500 in respect of non-pecuniary damage. B. Costs and expenses 47. The applicant also claimed 81 US dollars and 139,977,266 Turkish liras for the costs and expenses incurred before the domestic courts and EUR 2,600 for those incurred before the Court.", "At the time of the submission of his claims, the sums requested by the applicant in respect of his costs and expenses incurred before the domestic courts amounted to approximately EUR 137. 48. The Government contested those claims. 49. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "In the present case, regard being had to the information 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 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 remainder of the application admissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the criminal proceedings; 3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the non-communication of the public prosecutor’s written opinion to the applicant; 4. Holds that there has been a violation of Article 13 of the Convention on account of the lack of a remedy in respect of the length of the criminal proceedings; 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 3,500 (three thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 20 May 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithJosep CasadevallDeputy RegistrarPresident" ]

[ "CASE OF WAITE AND KENNEDY v. GERMANY (Application no. 26083/94) JUDGMENT STRASBOURG 18 February 1999 In the case of Waite and Kennedy v. Germany, The European Court of Human Rights, sitting, in accordance with Article 27 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), as amended by Protocol No. 11[1], and the relevant provisions of the Rules of Court2, as a Grand Chamber composed of the following judges: MrL. Wildhaber, President,MrsE. Palm,MrL.", "Ferrari Bravo,MrL. Caflisch,MrJ.-P. Costa,MrW. Fuhrmann,MrK. Jungwiert,MrM. Fischbach,MrB.", "Zupančič,MrsN. Vajić,MrJ. Hedigan,MrsW. Thomassen,MrsM. Tsatsa-Nikolovska,MrT.", "Panţîru,Mr E.Levits,MrK. Traja,MrE. Klein, ad hoc judge,and also of Mr P.J. Mahoney, Deputy Registrar, Having deliberated in private on 25 November 1998 and 3 February 1999, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case was referred to the Court, as established under former Article 19 of the Convention[3], by the European Commission of Human Rights (“the Commission”) on 16March 1998, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention.", "It originated in an application (no. 26083/94) against the Federal Republic of Germany lodged with the Commission under former Article 25 by two British nationals, Mr Richard Waite and Mr Terry Kennedy, on 24 November 1994. The Commission’s request referred to former Articles 44 and 48 and to the declaration whereby Germany recognised the compulsory jurisdiction of the Court (former Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 § 1 of the Convention. 2.", "The applicants stated that they wished to take part in the proceedings and designated the lawyers who would represent them (Rule 31 of former Rules of Court B[2]). The Government of the United Kingdom, having been informed by the Registrar of their right to intervene (former Article 48 (b) of the Convention and former Rule 35 § 3 (b)), indicated that they did not intend to do so. 3. As President of the Chamber which had originally been constituted (former Article 43 of the Convention and former Rule 21) in order to deal, in particular, with procedural matters that might arise before the entry into force of Protocol No. 11, Mr Thór Vilhjálmsson, acting through the Registrar, consulted the Agent of the German Government (“the Government”), the applicants’ lawyers and the Delegate of the Commission on the organisation of the written procedure.", "Pursuant to the order made in consequence, the Registrar received the applicants’ and the Government’s memorials on 30 July and 31 July 1998 respectively. 4. On 22 October 1998 the President of the Chamber decided, under former Rule 28 § 3, to give the applicants’ lawyers leave to use the German language at the hearing before the Court. The Agent of the Government was also given leave to address the Court in German, under former Rule 28 § 2. 5.", "After the entry into force of Protocol No. 11 on 1November 1998 and in accordance with the provisions of Article 5 § 5 thereof, the case was referred to the Grand Chamber of the Court. The Grand Chamber included ex officio Mr G. Ress, the judge elected in respect of Germany (Article 27 § 2 of the Convention and Rule 24 § 4 of the Rules of Court), MrL.Wildhaber, the President of the Court, Mrs E. Palm, Vice-President of the Court, and Mr J.-P. Costa and MrM.Fischbach, Vice-Presidents of Sections (Article 27 § 3 of the Convention and Rule 24 §§ 3 and 5 (a)). The other members appointed to complete the Grand Chamber were Mr L. Ferrari Bravo, Mr L. Caflisch, Mr W. Fuhrmann, Mr K. Jungwiert, Mr B. Zupančič, Mrs N. Vajić, Mr J. Hedigan, Mrs W. Thomassen, Mrs M. Tsatsa-Nikolovska, Mr T. Panţîru, Mr E. Levits and Mr K. Traja (Rule 24 § 3 and Rule 100 § 4). Subsequently, Mr Ress, who had taken part in the Commission’s examination of the case, withdrew from sitting in the Grand Chamber (Rule 28).", "The Government accordingly appointed Mr E. Klein to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 6. At the Court’s invitation (Rule 99), the Commission delegated one of its members, Mr K. Herndl, to take part in the proceedings before the Grand Chamber. The Commission also produced the file on the proceedings before it, as requested by the Registrar on the President’s instructions. 7.", "By a letter sent by fax on 19 November 1998 the Committee of Staff Representatives of the Coordinated Organisations sought leave to submit written comments (Rules 61 § 3 and 71). On 20 November 1998 the President granted leave subject to certain conditions. The comments were filed at the Registry on 23 November 1998. 8. In accordance with the President’s decision, a hearing in this case and in the case of Beer and Regan v. Germany (application no.", "28934/95) took place in public in the Human Rights Building, Strasbourg, on 25 November 1998. There appeared before the Court: (a)for the GovernmentMrsH. Voelskow-Thies, Ministerialdirigentin,Federal Ministry of Justice,Agent,MrK.-H. Oehler, Ministerialrat,Federal Ministry of Justice,MrD. Marschall, Ministerialrat,Federal Ministry of Labour,MrW.M. Thiebaut, Head of Legal Division,European Space Agency, Paris,Advisers; (b)for the applicantsMrG.", "Laule, of the Frankfurt Bar,Counsel,MrA. Meyer-Landrut, of the Frankfurt Bar,MrC. Just, of the Frankfurt Bar,Advisers; (c) for Mr Beer and Mr ReganMrW.J. Habscheid, of the Kempten Bar,Counsel,MrE. Habscheid, of the Dresden Bar,Adviser; (d)for the CommissionMrK.", "Herndl, Delegate. The Court heard addresses by Mr Herndl, Mr Laule, Mr W.J. Habscheid and Mrs Voelskow-Thies. 9. Subsequently, applicants and the Government variously produced a number of documents, either at the President’s request or of their own accord.", "THE FACTS 10. Mr Richard Waite is a British national, born in 1946 and resident in Griesheim. Mr Terry Kennedy is also a British national, born in 1950 and resident in Darmstadt. I.the circumstances of the case 11. In 1977 the applicants, systems programmers by profession and employed by the British company SPM, were placed at the disposal of the European Space Agency to perform services at the European Space Operations Centre in Darmstadt.", "12. The European Space Agency (“ESA”) with headquarters in Paris, formed out of the European Space Research Organisation (“ESRO”) and the European Organisation for the Development and Construction of Space Vehicle Launchers (“ELDO”), was established under the Convention for the Establishment of a European Space Agency (“ESA Convention”) of 30 May 1975 (United Nations Treaty Series 1983, vol. 1297, I – no. 21524). ESA runs the European Space Operations Centre (“ESOC”) as an independent operation in Darmstadt (Agreement concerning the European Space Operations Centre of 1967 – Official Gazette (Bundesgesetzblatt) II no.", "3, 18.1.1969). 13. In 1979 the applicants’ contracts were taken over from SPM by CDP, a limited company established in Dublin. In 1982 the applicants founded Storepace, a limited company with its registered office in Manchester, which contracted with CDP on the services to be performed by the applicants for ESA and on the payment due. As from 1984 ESA participated in the above contractual relations through Science System, a firm associated with it.", "Subsequently, the applicants liquidated Storepace, replacing it by Network Consultants, a company with its registered office on the island of Jersey. These changes in contractual relations had no bearing on the applicants’ services at ESOC. 14. By letter of 12 October 1990, CDP informed the applicants that the cooperation with their company Network Consultants would terminate on 31 December 1990, when the term of their contracts expired. 15.", "The applicants thereupon instituted proceedings before the Darmstadt Labour Court (Arbeitsgericht) against ESA, arguing that, pursuant to the German Provision of Labour (Temporary Staff) Act (Arbeitnehmerüberlassungsgesetz), they had acquired the status of employees of ESA. In their submission, the termination of their contracts by the company CDP had no bearing on their labour relationship with ESA. 16. In the labour court proceedings, ESA relied on its immunity from jurisdiction under Article XV § 2 of the ESA Convention and its Annex I. 17.", "On 10 April 1991 the Darmstadt Labour Court, following a hearing, declared the applicants’ actions inadmissible, considering that ESA had validly relied on its immunity from jurisdiction. In its reasoning, the Labour Court considered in particular that ESA had been established in 1975 as a new and independent international organisation. It therefore rejected the applicants’ argument that ESA was bound by Article 6 § 2 of the Agreement concerning ESOC, which had subjected the former ESRO to German jurisdiction in cases of disputes with its employees which were outside the competence of its Appeals Board. 18. On 20 May 1992 the Frankfurt/Main Labour Appeals Court (Landesarbeitsgericht) dismissed the applicants’ appeal.", "It gave leave to an appeal on points of law (Revision) to the Federal Labour Court (Bundesarbeitsgericht). 19. The Labour Appeals Court, referring to sections 18 to 20 of the Courts Act (Gerichtsverfassungsgesetz), considered that immunity from jurisdiction meant that foreign States, members of diplomatic missions, etc. were generally not subject to German jurisdiction and that no judicial action could be taken against them. Section 20(2) of the Courts Act supplemented the provisions of sections 18 and 19, listing three further sources of law, inter alia international agreements, which could give rise to immunity from jurisdiction, especially for international organisations.", "ESA in principle enjoyed such immunity from jurisdiction under Article XV § 2 of the ESA Convention and its Annex I. Moreover, even assuming that the former ESRO had previously waived immunity as regards labour disputes outside the competence of its Appeals Board, ESA was not bound thereby. In this respect, the Labour Appeals Court, referring to the reasoning of the decision of the first instance, set out in detail that ESA had been established as a new international organisation and not as a mere legal successor to the former ESRO. 20. In 1992 the applicants unsuccessfully requested the German federal government and the British authorities to intervene with the Council of ESA in their favour with regard to a waiver of immunity in accordance with Article IV § 1 (a) of Annex I.", "While the British authorities did not reply, the German Federal Foreign Office referred the applicants to the ESA Appeals Board. In response to their letter to the Council of ESA, its Chairman, by letter of 16 December 1992, informed the applicants that the Council, at its 105th meeting of 15 and 16 December 1992, had decided not to waive the immunity from jurisdiction in their case. This position was confirmed in subsequent correspondence. 21. On 10 November 1993 the Federal Labour Court dismissed the applicants’ appeal on points of law (file no.", "7 AZR 600/92). 22. The Federal Labour Court considered that immunity from jurisdiction was an impediment to court proceedings, and that an action against a defendant who enjoyed immunity from jurisdiction, and had not waived this immunity, was inadmissible. According to section20(2) of the Courts Act, German jurisdiction did not extend to international organisations which were exempted in accordance with international agreements. In this respect, the Federal Labour Court noted that, pursuant to Article XV § 2 of the ESA Convention, ESA had the immunities provided for in Annex I of the said Convention, and that it had not waived immunity under Article IV § 1 (a) of that annex.", "23. As regards the question of waiver, the Federal Labour Court found that Article 6 § 2 of the Agreement concerning ESOC did not apply in the applicants’ situation as they had not been employed by ESA, but had worked for ESA on the basis of a contract of employment with a third person. The questions of whether the rule in question amounted to a waiver of immunity and whether ESA was bound by this rule could therefore be left open. 24. Furthermore, the Federal Labour Court found no violation of the right of recourse to court under Article 19 § 4 of the German Basic Law (Grundgesetz), as the acts of ESA, being those of an international organisation, could not be regarded as acts of a public authority within the meaning of that provision.", "25. Finally the Federal Labour Court considered that a rather broad competence of international organisations to regulate staff matters was not unusual. The regulations on the immunity of ESA did not conflict with fundamental principles of German constitutional law. Employees of ESA could either lodge an appeal with the Appeals Board of the organisation, or the labour contract had to provide for arbitration in accordance with Article XXV of Annex I. In case of any contract conflicting with the Provision of Labour (Temporary Staff) Act which was not covered by the aforementioned regulation, the employee hired out was not without any legal protection, but could file an action against his or her employer.", "The question of whether the applicants could claim under German public law that positive action be taken by the German government to use their influence to achieve a waiver of immunity in the present case, or to submit the case to international arbitration under Article XVIII of the ESA Convention, could not be solved in labour court proceedings. 26. Sitting as a panel of three members, on 11 May 1994 the Federal Constitutional Court (Bundesverfassungsgericht) declined to accept the applicants’ appeal (Verfassungsbeschwerde) for adjudication. 27. The Federal Constitutional Court found in particular that the applicants’ appeal did not raise a matter of general importance.", "The alleged absence of rights resulted from the particular contracts entered into by the applicants, who had not been directly employed by an international organisation but had worked there on the order of a third person. 28. Furthermore, the alleged violation of the applicants’ constitutional rights was not of special importance, nor were the applicants significantly affected. In this respect the Constitutional Court noted the applicants’ submissions according to which they had suffered major disadvantages on the ground that the European legislation on the hiring out of temporary staff had been insufficient and that the termination of their contracts had affected their earning capacity. However, they had failed to show any disadvantages other than those associated with any loss of work.", "In particular there was no indication that they remained permanently unemployed and dependent upon social welfare benefits. II.RELEVANT LAW 1.The Provision of Labour (Temporary Staff) Act 29. Section 1(1)(1) of the Provision of Labour (Temporary Staff) Act (Arbeitnehmerüberlassungsgesetz) provides that an employer who, on a commercial basis (gewerbsmäßig), intends to hire out his employees to third persons – hiring employers (Entleiher) – must obtain official permission. Section 1(9)(1) provides that contracts between the hirer-out (Verleiher) and the hiring employer and between the hirer-out and the employee hired out (Leiharbeitnehmer) are void if no official permission has been obtained as required by section1(1)(1). If the contract between a hirer-out and an employee hired out is void under section 1(9)(1), a contract between the hiring employer and the employee hired out is deemed to have been concluded (gilt als zustande gekommen) as from the envisaged start of employment (section1(10)(1)(1)).", "Section 1(10)(2) further provides for a claim in damages against the hirer-out in respect of any loss suffered as a consequence of having relied on the validity of the contract, except where the employee hired out was aware of the factor rendering the contract void. 2.Immunity from jurisdiction 30. Sections 18 to 20 of the German Courts Act (Gerichtsverfassungs-gesetz) regulate immunity from jurisdiction (Exterritorialität) in German court proceedings. Sections18 and19 concern the members of diplomatic and consular missions, and section 20(1) other representatives of States staying in Germany upon the invitation of the German government. Section20(2) provides that other persons shall have immunity from jurisdiction according to the rules of general international law, or pursuant to international agreements or other legal rules.", "3.The ESA Convention 31. The ESA Convention came into force on 30 October 1980, when ten States, members of ESRO or ELDO, had signed it and had deposited their instruments of ratification or acceptance. 32. The purpose of ESA is to provide for and to promote, for exclusively peaceful purposes, cooperation among European States in space research and technology and their space applications, with a view to their being used for scientific purposes and for operational space applications systems (Article II of the ESA Convention). For the execution of the programmes entrusted to it, the Agency shall maintain the internal capability required for the preparation and supervision of its tasks and, to this end, shall establish and operate such establishments and facilities as are required for its activities (Article VI § 1 (a)).", "33. Article XV regulates the legal status, privileges and immunities of the Agency. According to paragraph 1, the Agency shall have legal personality. Paragraph 2 provides that the Agency, its staff members and experts, and the representatives of its member States, shall enjoy the legal capacity, privileges and immunities provided for in AnnexI. Agreements concerning the headquarters of the Agency and the establishments set up in accordance with Article VI shall be concluded between the Agency and the member States on whose territory the headquarters and the establishments are situated (Article VI § 3).", "34. Article XVII concerns the arbitration procedure in case of disputes between two or more member States, or between any of them and ESA, concerning the interpretation or application of the ESA Convention or its annexes, and disputes arising out of damage caused by ESA, or involving any other responsibility of ESA (Article XXVI of Annex I), which are not settled by or through the Council. 35. Article XIX provides that on the date of entry into force of the ESA Convention the Agency shall take over all the rights and obligations of ESRO. 36.", "Annex I relates to the privileges and immunities of the Agency. 37. According to Article I of Annex I, the Agency shall have legal personality, in particular the capacity to contract, to acquire and to dispose of movable and immovable property, and to be a party to legal proceedings. 38. Pursuant to Article IV § 1 (a) of Annex I, the Agency shall have immunity from jurisdiction and execution, except to the extent that it shall, by decision of the Council, have expressly waived such immunity in a particular case; the Council has the duty to waive this immunity in all cases where reliance upon it would impede the course of justice and it can be waived without prejudicing the interests of the Agency.", "39. Article XXV of Annex I provides for arbitration with regard to written contracts other than those concluded in accordance with the Staff Regulations. Moreover, any member State may submit to the International Arbitration Tribunal referred to in Article XVII of the ESA Convention any dispute, inter alia, arising out of damage caused by the Agency, or involving any other non-contractual responsibility of the Agency. According to ArticleXXVII of AnnexI, the Agency shall make suitable provision for the satisfactory settlement of disputes arising between the Agency and the Director General, staff members or experts in respect of their conditions of service. 40.", "Chapter VIII of the ESA Staff Regulations (Regulations 33 to 41) concerns disputes within ESA. As regards the competence of its Appeals Board, Regulation 33 provides as follows: “33.1 There shall be set up an Appeals Board, independent of the Agency, to hear disputes relating to any explicit or implicit decision taken by the Agency and arising between it and a staff member, a former staff member or persons entitled under him. 33.2 The Appeals Board shall rescind any decision against which there has been an appeal if the decision is contrary to the Staff Regulations; Rules or Instructions or to the claimant’s terms of appointment or vested rights; and if the claimant’s personal interests are affected. 33.3 The Appeals Board may also order the Agency to repair any damage suffered by the claimant as a result of the decision referred to in paragraph 2 above. 33.4 Should the Agency – or the claimant – maintain that execution of a rescinding decision would raise major difficulties the Appeals Board may, if it considers the argument valid, award compensation to the claimant for the damage he has suffered.", "33.5 The Appeals Board shall also be competent in the case where a staff member wishes to sue another staff member and such action has been prevented by the Director General’s refusal to waive the immunity of the latter. 33.6 The Appeals Board shall also be competent to settle disputes concerning its jurisdiction, as defined in these Regulations, or any question of procedure.” 4.The Agreement concerning ESOC 41. The Agreement was concluded between the government of the Federal Republic of Germany and ESRO for the purpose of establishing a European Space Operations Centre, including the European Space Data Centre. Articles 1 to 4 of the Agreement concern the site for construction of the ESOC buildings and related matters. 42.", "Part III of the Agreement contains general provisions. Article 6 provides as follows: “1. Subject to the provisions of the Protocol on Privileges and Immunities of the Organisation and of any complementary Agreement between the Federal Republic of Germany and the Organisation according to Article 30 of that Protocol, the activities of the Organisation in the Federal Republic of Germany shall be governed by German law. If the terms of employment of a staff member of the Organisation are not governed by the Organisation’s staff regulations, then they shall be subject to German laws and regulations. 2.", "Disputes between the Organisation and such staff members of the Organisation in the Federal Republic of Germany who are not within the competence of the Organisation’s Appeals Board, shall be subject to German jurisdiction.” PROCEEDINGS BEFORE THE COMMISSION 43. Mr Waite and Mr Kennedy applied to the Commission on 24November 1994. Relying on Article 6 §1 of the Convention, they complained that they had been denied access to a court for a determination of their dispute with ESA in connection with an issue under German labour law. 44. On 24 February 1997 the Commission declared the application (no.26083/94) admissible.", "In its report of 2 December 1997 (former Article31 of the Convention), it expressed the opinion that there had been no violation of Article 6 § 1 (seventeen votes tofifteen). The full text of the Commission’s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment[1]. FINAL SUBMISSIONS TO THE COURT 45. In their memorial the Government asked “for the applications to be rejected as inadmissible, or as an alternative for a finding that the Federal Republic of Germany has not violated Article 6 of the Convention”. 46.", "The applicants invited the Court to hold that their rights pursuant to Article 6 § 1 of the Convention had been violated and to award them just satisfaction under former Article 50 of the Convention (now Article 41). THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 47. The applicants contended that they had not had a fair hearing by a tribunal on the question of whether, pursuant to the German Provision of Labour (Temporary Staff) Act, a contractual relationship existed between them and ESA. They alleged that there had been a violation of Article 6 § 1 of the Convention, which provides: “In the determination of his civil rights and obligations …, everyone is entitled to a … hearing … by [a] … tribunal …” 48. The Government and the Commission took the opposite view.", "A.Applicability of Article 6 § 1 49. The Government did not dispute that the labour court proceedings instituted by the applicants involved the “determination of [their] civil rights and obligations”. This being so, and bearing in mind that the parties’ arguments before it were directed to the issue of compliance with Article 6 § 1, the Court proposes to proceed on the basis that it was applicable to the present case. B.Compliance with Article 6 § 1 50. Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal.", "In this way the Article 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 only (see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, p. 18, § 36, and the recent Osman v. the United Kingdom judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3166, § 136). 51. The applicants had access to the Darmstadt Labour Court and then the Frankfurt/Main Labour Appeals Court and the Federal Labour Court, only to be told that their action was barred by operation of law (see paragraphs 17 to 25 above). The Federal Constitutional Court declined to accept their case for adjudication on the grounds that it did not raise a matter of general importance and that the alleged violation of their constitutional rights was not of special importance (see paragraphs 26 to 28 above).", "The proceedings before the German labour courts had thus concentrated on the question of whether or not ESA could validly rely on its immunity from jurisdiction. 52. In their memorial and at the hearing before the Court, the applicants maintained their argument that ESA had wrongfully pleaded immunity before the German labour courts. According to them, the waiver of immunity which had been agreed for its predecessor organisation, ESRO, under Article 6 § 2 of the Agreement concerning ESOC (see paragraph 42 above) was binding on ESA. 53.", "In the Government’s submission, this view was not justifiable, having regard to the clear differentiation between the immunity enshrined in Article XV and the transfer of rights and duties set out in Article XIX of the ESA Convention (see paragraphs 33, 35 to 38 above). 54. The Court would recall that it is not its task to substitute itself for the domestic jurisdictions. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see, inter alia, the Pérez de Rada Cavanilles v. Spain judgment of 28 October 1998, Reports 1998-VIII, p. 3255, § 43). This also applies where domestic law refers to rules of general international law or international agreements.", "The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention. 55. The German labour courts regarded the applicants’ action under the German Provision of Labour (Temporary Staff) Act inadmissible as the defendant, ESA, had claimed immunity from jurisdiction in accordance with Article XV § 2 of the ESA Convention and Article IV § 1 of its Annex I. Section 20(2) of the German Courts Act provides that persons shall have immunity from jurisdiction according to the rules of general international law, or pursuant to international agreements or other legal rules (see paragraph 30 above). 56.", "In the instant case the German labour courts concluded that the conditions under section 20(2) of the German Courts Act for finding that the applicants’ action was inadmissible were fulfilled. The Darmstadt Labour Court, as upheld by the Frankfurt/Main Labour Appeals Court, considered that ESA enjoyed immunity from jurisdiction according to the ESA Convention and its Annex I. In their view, ESA had been established as a new and independent organisation and was therefore not bound by Article 6 § 2 of the Agreement concerning ESOC (see paragraphs 17 to 19 above). According to the Federal Labour Court, this provision could not, in any event, apply in the applicants’ situation as they had not been employed by ESA, but had worked for that organisation on the basis of a contract of employment with a third person (see paragraphs 21 to 25 above). 57.", "The Court observes that ESA was formed out of ESRO and ELDO as a new and single organisation (see paragraph 12 above). According to its constituent instrument, ESA enjoys immunity from jurisdiction and execution except, inter alia, to the extent that the ESA Council expressly waives immunity in a particular case (see paragraphs 33 and 36 to 38 above). Considering the exhaustive rules in Annex I to the ESA Convention and also the wording of Article 6 § 2 of the ESOC Agreement (see paragraph 42 above), the reasons advanced by the German labour courts to give effect to the immunity from jurisdiction of ESA under Article XV of the ESA Convention and its Annex I cannot be regarded as arbitrary. 58. Admittedly, the applicants were able to argue the question of immunity at three levels of German jurisdiction.", "However, the Court must next examine whether this degree of access limited to a preliminary issue was sufficient to secure the applicants’ “right to a court”, having regard to the rule of law in a democratic society (see the Golder judgment cited above, pp. 16‑18, §§ 34-35). 59. The Court recalls that the right of access to the courts secured by Article 6 § 1 of the Convention is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court.", "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 the Osman judgment cited above, p. 3169, § 147, and the recapitulation of the relevant principles in the Fayed v. the United Kingdom judgment of 21 September 1994, Series A no. 294-B, pp. 49-50, § 65). 60.", "The applicants maintained that the right of access to the courts was not met merely by the institution of proceedings. This right, they argued, required that the courts examine the merits of their claim. They considered that the German courts had disregarded the priority of human rights over immunity rules based on international agreements. They concluded that the proper functioning of ESA had not required immunity from German jurisdiction in their particular cases. 61.", "The Government and the Commission were of the opinion that the purpose of immunity in international law lay in the protection of international organisations against interference by individual governments. They saw therein a legitimate aim of restriction of Article 6. According to the Government, international organisations performed tasks of a particular significance in an age of global, technical and economic challenges; they were able to function only if they adopted uniform internal regulations, including appropriate service regulations, and if they were not forced to adapt to differing national regulations and principles. 62. The Committee of Staff Representatives of the Coordinated Organisations in their written comments (see paragraph 7 above) considered that the statutory provisions concerning immunity had to be interpreted so as to satisfy the fundamental rights under Article 6 § 1 of the Convention.", "63. Like the Commission, the Court points out that the attribution of privileges and immunities to international organisations is an essential means of ensuring the proper functioning of such organisations free from unilateral interference by individual governments. The immunity from jurisdiction commonly accorded by States to international organisations under the organisations’ constituent instruments or supplementary agreements is a long-standing practice established in the interest of the good working of these organisations. The importance of this practice is enhanced by a trend towards extending and strengthening international cooperation in all domains of modern society. Against this background, the Court finds that the rule of immunity from jurisdiction, which the German courts applied to ESA in the present case, has a legitimate objective.", "64. As to the issue of proportionality, the Court must assess the contested limitation placed on Article 6 in the light of the particular circumstances of the case. 65. The Government submitted that the limitation was proportionate to the objective of enabling international organisations to perform their functions efficiently. With regard to ESA, they considered that the detailed system of legal protection provided under the ESA Convention concerning disputes brought by staff and under Annex I in respect of other disputes satisfied the standards set in the Convention.", "In their view, Article 6 § 1 required a judicial body, but not necessarily a national court. The remedies available to the applicants were in particular an appeal to the ESA Appeals Board if they wished to assert contractual rights, their years of membership of the ESA staff and their integration into the operation of ESA. According to the Government, the applicants were also left with other possibilities, such as claiming compensation from the foreign firm which had hired them out. 66. The Commission in substance agreed with the Government that in private-law disputes involving ESA, judicial or equivalent review could be obtained, albeit in procedures adapted to the special features of an international organisation and therefore different from the remedies available under domestic law.", "67. The Court is of the opinion that where States establish international organisations in order to pursue or strengthen their cooperation in certain fields of activities, and where they attribute to these organisations certain competences and accord them immunities, there may be implications as to the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention, however, if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution. It should be recalled that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective. This is particularly true for the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial (see, as a recent authority, the Aït-Mouhoub v. France judgment of 28 October 1998, Reports 1998-VIII, p. 3227, § 52, referring to the Airey v. Ireland judgment of 9 October 1979, Series A no.", "32, pp. 12-13, § 24). 68. For the Court, a material factor in determining whether granting ESA immunity from German jurisdiction is permissible under the Convention is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention. 69.", "The ESA Convention, together with its Annex I, expressly provides for various modes of settlement of private-law disputes, in staff matters as well as in other litigation (see paragraphs 31 to 40 above). Since the applicants argued an employment relationship with ESA, they could and should have had recourse to the ESA Appeals Board. In accordance with Regulation 33 § 1 of the ESA Staff Regulations, the ESA Appeals Board, which is “independent of the Agency”, has jurisdiction “to hear disputes relating to any explicit or implicit decision taken by the Agency and arising between it and a staff member” (see paragraph 40 above). As to the notion of “staff member”, it would have been for the ESA Appeals Board, under Regulation 33 § 6 of the ESA Staff Regulations, to settle the question of its jurisdiction and, in this connection, to rule whether in substance the applicants fell within the notion of “staff members”. 70.", "Moreover, it is in principle open to temporary workers to seek redress from the firms that have employed them and hired them out. Relying on general labour regulations or, more particularly, on the German Provision of Labour (Temporary Staff) Act, temporary workers can file claims in damages against such firms. In such court proceedings, a judicial clarification of the nature of the labour relationship can be obtained. The fact that any such claims under the Provision of Labour (Temporary Staff) Act are subject to a condition of good faith (see paragraph 29 above) does not generally deprive this kind of litigation of reasonable prospects of success. 71.", "The significant feature of the instant case is that the applicants, after having performed services at the premises of ESOC in Darmstadt for a considerable time on the basis of contracts with foreign firms, attempted to obtain recognition of permanent employment by ESA on the basis of the above-mentioned special German legislation for the regulation of the German labour market. 72. The Court shares the Commission’s conclusion that, bearing in mind the legitimate aim of immunities of international organisations (see paragraph 63 above), the test of proportionality cannot be applied in such a way as to compel an international organisation to submit itself to national litigation in relation to employment conditions prescribed under national labour law. To read Article 6 § 1 of the Convention and its guarantee of access to court as necessarily requiring the application of national legislation in such matters would, in the Court’s view, thwart the proper functioning of international organisations and run counter to the current trend towards extending and strengthening international cooperation. 73.", "In view of all these circumstances, the Court finds that, in giving effect to the immunity from jurisdiction of ESA on the basis of section 20(2) of the Courts Act, the German courts did not exceed their margin of appreciation. Taking into account in particular the alternative means of legal process available to the applicants, it cannot be said that the limitation on their access to the German courts with regard to ESA impaired the essence of their “right to a court” or was disproportionate for the purposes of Article 6 § 1 of the Convention. 74. Accordingly, there has been no violation of that provision. FOR THESE REASONS, THE COURT unanimously Holds that there has been no breach of Article 6 § 1 of the Convention.", "Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 18 February 1999. Luzius WildhaberPresident Paul MahoneyDeputy Registrar [1]Notes by the Registry -2. Protocol No. 11 and the Rules of Court came into force on 1 November 1998. [3]3.", "Since the entry into force of Protocol No. 11, which amended Article 19, the Court has functioned on a permanent basis. [2]1. Note by the Registry. Rules of Court B, which came into force on 2 October 1994, applied until 31 October 1998 to all cases concerning States bound by Protocol No.", "9. [1]1. Note by the Registry. For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry." ]

[ "FIFTH SECTION CASE OF PRILUTSKIY v. UKRAINE (Application no. 40429/08) JUDGMENT STRASBOURG 26 February 2015 FINAL 26/05/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Prilutskiy v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President,Angelika Nußberger,Ganna Yudkivska,Vincent A. De Gaetano,André Potocki,Helena Jäderblom,Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 27 January 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 40429/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Igor Valentynovych Prylutskyy (“the applicant”), on 31 July 2008. 2. The applicant was represented by Mr S. Skryl, a lawyer practising in Kherson. The Ukrainian Government (“the Government”) were represented by their acting Agent at that time, Mr M. Bem.", "3. The applicant alleged that the State had failed to take appropriate preventive measures to protect his son in a life-threatening situation and that the criminal proceedings in connection with the death of his son had been ineffective. 4. On 3 September 2012 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1960 and lives in Donetsk. A. Car accident 6. On the night of 30 September 2006 the applicant’s son (born in 1984) took part in “AutoQuest”, a location-based driving game in the city of Donetsk.", "In accordance with the rules of the game, the participants were divided into teams and each team had to move by car to different locations in the city. On arrival at an intermediary destination each team had to solve a riddle in order to establish the next destination point, and the winner was the team that reached the final destination first. 7. The applicant’s son was in the team of P., who was the driver. During the game P. lost control of the car and collided with a pillar.", "As a result of the accident, P. was injured and his three passengers, including the applicant’s son, died. B. Domestic proceedings 8. On 1 October 2006 the Donetsk Region police department opened an investigation under Article 286 § 3 of the Criminal Code in connection with the fatal car accident. 9.", "On 3 October 2006 the applicant was admitted to the proceedings as a victim. 10. On 19 February 2007, in reply to an enquiry from the applicant concerning the investigation, the Donetsk City prosecutor’s office informed him that the case was complicated and the police had to order various expert examinations; the activities of the organisers of the driving game were also being examined. 11. On 23 February 2007 the police refused to institute criminal proceedings against the organisers of the driving game.", "12. On 10 July 2007 the board of forensic psychiatric experts completed their examination and found that at the time of the accident P. had been aware of his actions and able to control them. Following the injuries sustained in the accident, P. had developed a chronic mental disability. He was diagnosed with a complicated organic impairment of the brain and amnestic syndrome. The experts found that at the time of the examination P. had no longer been aware of his actions or able to control them and that he should therefore undergo mandatory psychiatric treatment.", "13. On 24 October 2008, in reply to a complaint lodged by the applicant about the ineffectiveness of the investigation, the Donetsk Region prosecutor’s office maintained that the criminal investigation was being carried out in accordance with the requirements of the Code of Criminal Procedure and that there had been no grounds to change the investigator in the criminal proceedings. 14. On 5 February 2009 the case file was referred to the Kuybashevskyy District Court of Donetsk (“the first-instance court”) in order to determine whether it was appropriate to apply compulsory medical measures in respect of P. 15. On 15 March 2010 the chairman of the Donetsk Region Council of Judges requested that the chairman of the first-instance court ensure prompt consideration of the criminal case.", "He noted that the court hearings had been repeatedly adjourned and the length of the proceedings had not been reasonable. 16. On 28 February 2011 the board of forensic psychiatric experts issued a report repeating their previous conclusions as to P.’s mental state. 17. On 8 June 2011 the first-instance court found that P. had committed a crime by violating the traffic safety regulations, which had resulted in the death of the applicant’s son and the two other passengers.", "The court noted that P. had collided with a pillar because he had exceeded the speed limits and had lost control of the car. It further noted that, according to the forensic psychiatric examination reports of 10 July 2007 and 28 February 2011, P. had been mentally aware of and able to control his actions at the time of the accident but had later developed a mental disability; at the time of the examinations, P. had been suffering from an organic brain impairment and amnestic syndrome; as a result, he had no longer been aware of or able to control his actions and needed to be provided with compulsory medical treatment, namely outpatient psychiatric assistance. Bearing those medical reports in mind, the court ordered the compulsory medical measures. 18. The applicant appealed, claiming that he was a doctor by profession and could see that the medical findings were wrong.", "He further complained of a breach of procedural rules, arguing that P. should have been brought to the court room for the hearings. 19. On 24 January 2012 the Donetsk Regional Court of Appeal quashed the decision of 8 June 2011 and remitted the case for additional pre-trial investigation. The court noted that there were witness statements, including those obtained at the pre-trial stage of the proceedings, which suggested that at the time of the accident P. might have made a sharp turn in order to avoid hitting a pedestrian who had been crossing the road. The court considered that the facts had not been established properly and that additional investigatory measures were required.", "20. Following the additional investigation, the case was referred to the first-instance court on 31 October 2012. The investigative authorities considered that P. had exceeded the speed limit, in violation of the traffic regulations; he had lost control of the car and caused the accident which had resulted in the deaths of his three passengers. P.’s actions amounted to a crime. However, due to the mental disability that he had developed after the accident, it was proposed that the court impose compulsory medical measures in respect of P. 21.", "As of 26 March 2013 the proceedings were pending. II. RELEVANT DOMESTIC LAW A. Criminal Code of Ukraine of 5 April 2001 (as worded at the relevant time) 22. Article 286 of the Criminal Code provides: “1.", "The violation of traffic safety regulations or the misuse of a vehicle by a driver, if this has caused injuries of medium severity to a victim – shall be punishable either by a fine of up to one hundred times the tax-free monthly income, or by correctional work for up to two years, or by detention for up to six months, or by restriction of liberty for up to three years, combined, if required, with a driving ban for up to three years. 2. The same actions, if they have caused the death of a victim or grievous bodily injury to the victim – ... 3. The actions provided for by the first paragraph of this Article, if they caused the death of several persons – shall be punishable by imprisonment for a period of between seven and twelve years combined with a driving ban for up to three years. ...” B.", "Code of Criminal Procedure of 28 December 1960 (in force at the relevant time) 23. The relevant provisions of the Code of Criminal procedure can be found in the judgment of Muravskaya v. Ukraine (no. 249/03, §§ 35 and 36, 13 November 2008). C. The Law on automobile roads of 8 September 2005 (“the Automobile Roads Act 2005”) 24. Section 36 of the Act provides that the procedure for using public roads for street festivities and other mass events should be established by the local authorities with the approval of the State bodies responsible for roads management and those responsible for traffic safety.", "Sports competitions, such as cross, motor and cycle races, may be conducted on public roads with the permission of the State bodies responsible for road management and those responsible for traffic safety, in accordance with the procedure provided for in the legislation. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 25. The applicant complained that the State had failed to take appropriate steps to protect his son’s life during a driving game. He also complained that the criminal proceedings in connection with his son’s death in a car accident had been ineffective.", "26. The applicant relied on Articles 2 and 13 of the Convention. The Court considers that the complaints fell to be examined solely under Article 2, which provides, in so far as relevant, 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.", "...” A. Admissibility 27. 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. Positive obligation to protect life in a life-threatening situation (a) The parties’ submissions 28. The Government submitted that during the driving game P. had been obliged to strictly abide by the road traffic regulations established by the State. Failure to observe those regulations was punishable by various sanctions, including criminal ones. According to the conclusions of the investigative authorities, the death of the applicant’s son and the other passengers had been caused by P.’s failure to abide by the traffic regulations, including by observing speed limits.", "The Government therefore argued that the life-threatening situation had been caused exclusively by the individual who had been driving the car and that, in so far as the State was concerned, it had taken appropriate legislative and administrative measures to ensure road traffic safety. 29. The applicant claimed that the State had failed in its positive obligations under Article 2. He insisted that the authorities had been aware of the systemic nature of the driving games in Donetsk and should have taken relevant administrative measures, namely the licensing of such activities to ensure the protection of life in such games. (b) The Court’s assessment (i) General principles 30.", "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, amongst many authorities, L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III). 31. The positive obligation to take all appropriate steps to safeguard life for the purposes of Article 2 covers a wide range of sectors (see Ciechońska v. Poland, no. 19776/04, §§ 62-63, 14 June 2011) and, in principle, will arise in the context of any activity, whether public or not, in which the right to life may be at stake (see Öneryıldız v. Turkey [GC], no.", "48939/99, § 71, ECHR 2004‑XII and Brincat and Others v. Malta, nos. 60908/11, 62110/11, 62129/11, 62312/11 and 62338/11, § 101, 24 July 2014). It entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life. This obligation indisputably applies in the particular context of dangerous activities, where, in addition, special emphasis must be placed on regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk to human lives. Those regulations must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks (see Öneryıldız, cited above, §§ 89-90).", "32. Still in the field of dangerous activities, the positive obligations under Article 2 should not be unduly impaired by paternalistic interpretations, bearing in mind that the notion of personal autonomy is an important principle underlying the Convention guarantees, primarily those pertinent to private life. The Court has observed that the ability to conduct one’s life in a manner of one’s own choosing may also include the opportunity to pursue activities perceived to be of a physically or morally harmful or dangerous nature for the individual concerned, and improper State interference with this freedom of personal choice may give rise to an issue under the Convention (see Pretty v. the United Kingdom, no. 2346/02, §§ 60 and 61, ECHR 2002‑III). 33.", "The scope of the positive obligation must be interpreted in a way that does not impose an unrealistic 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. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case (see Osman v. the United Kingdom, 28 October 1998, § 116, Reports of Judgments and Decisions 1998 VIII). (ii) Application to the present case 34.", "The applicant’s son took part in a form of entertainment that implied moving by car to various locations in the city; every time a team arrived at a destination point, it had to solve a riddle in order to establish the next destination. The team’s performance thus depended on both the resolution of the intellectual assignments and the manner in which it travelled between the destination points. As to the second aspect, it is not in dispute that the participants of the game had to abide by the traffic regulations established by the State, even though they were travelling by car with a specific entertainment purpose. The observance of the traffic regulations was ensured by legislative measures providing various sanctions, including criminal ones. The preventive and deterrent capacity of the available legislative framework is not in question.", "35. In respect of the general legislative and administrative measures, the only observation made by the applicant was that such entertainment should have been subjected to licensing to ensure closer supervision by the State. In that regard the Court notes that the choice of means for ensuring the positive obligations under Article 2 is in principle a matter that falls within the State’s margin of appreciation (see Ciechońska, cited above, § 65). It must now be examined whether specific operational measures were indispensable for the purpose of compliance with the positive obligations under Article 2. 36.", "The Court notes that the entertainment at issue was a private initiative without the involvement of the authorities. The applicant’s son, an adult, enjoyed a freedom to act and decided to participate in the game of his own free will, having taken upon himself the responsibility to follow the existing rules. The domestic authorities did not identify the activity in question as a “sport competition” or “festive” to be covered by section 36 of the Automobile Roads Act 2005. The applicant did not claim that he or anyone else had applied to the police or other authorities asking them to take any specific measures before the entertainment. Neither did he specify which preventive operational measures should have been taken by the authorities against the background that all the participants remained bound by the traffic regulations and the responsibilities arising in case of their breach.", "Likewise, there is no information before the Court that the available legal framework was not sufficient to ensure the requisite protection of life or that it had to be reinterpreted in light of these new activities. 37. Even if the authorities were in possession of certain general information about such forms of entertainment, the applicant does not claim that they were so widespread a social phenomenon that their growth had to alert the authorities on a necessity to put in place additional measures to protect the public. It has not been established in the present case that the danger that emanates from these games was different from an inherent danger of road traffic, and as such called for a special regulation of these activities. Furthermore, there is no information that the authorities were aware of the exact time and place of the game in which the applicant’s son took part and died.", "38. Accordingly, the circumstances of the present case do not lead the Court to the conclusion that the State failed in its positive obligation to protect life in a life-threatening situation. 39. There has therefore been no violation of Article 2 in that regard. 2.", "Procedural obligations under Article 2 (a) The parties’ submissions 40. The Government submitted that the criminal investigation had been opened immediately after the accident and that investigative measures were carried out comprehensively and promptly. The national authorities had taken all necessary steps in order to collect the evidence and to establish the circumstances of the death of the applicant’s son. Certain delays had occurred during the proceedings but those had not been attributable to the State. The applicant had been given appropriate access to the case file and had been able to participate effectively in the proceedings.", "Overall, the procedural requirements under Article 2 of the Convention had been complied with. 41. The applicant disagreed and maintained his complaint. (b) The Court’s assessment 42. The Court notes that the Government did not contend that the applicant could have effectively pursued the matter arising from the car accident outside the framework of the criminal proceedings, which had been instituted immediately after the accident and were still pending at the time when the parties were exchanging their observations (compare Sergiyenko v. Ukraine, no.", "47690/07, §§ 40 and 42, 19 April 2012). The Court will therefore confine itself to examining whether the criminal proceedings concerning the death of the applicant’s son in the car accident satisfied the criteria of effectiveness required by the procedural guarantees of Article 2 of the Convention (see Antonov v. Ukraine, no. 28096/04, §§ 47-49, 3 November 2011; Prynda v. Ukraine, no. 10904/05, § 54, 31 July 2012; and Zubkova v. Ukraine, no. 36660/08, § 38, 17 October 2013).", "43. 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.", "44. The Court notes that as of 26 March 2013, that is, about six years and six months after the car accident, the proceedings were still pending before the domestic authorities. However, there is nothing to suggest that the duration of the criminal investigations and the further proceedings before the courts was justified. The Government did not argue that this case was different from a common traffic accident which should have been concluded speedily. In that regard the Court notes that following the prolonged proceedings before the first-instance court the judicial authorities requested that the court accelerate the proceedings, as they were concerned with the unjustified delays in the case (see paragraph 15 above).", "More than five years and three months after the proceedings were opened, the Court of Appeal remitted the case for additional investigation, considering that the facts had not been established properly and that further investigative measures were required. In reaching that conclusion the Court of Appeal referred, among other things, to the witness statements which had been available at the pre-trial investigation stage (see paragraph 19 above). 45. Having regard to its well-established case-law and to the facts of the present case, the Court finds that the domestic proceedings aimed at scrutinising the circumstances of the death of the applicant’s son were not compatible with the procedural requirements of thoroughness and promptness under Article 2 of the Convention. 46.", "There has therefore been a procedural violation of Article 2 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 47. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 48.", "The applicant claimed 500,000 euros (EUR) in respect of non-pecuniary damage. 49. The Government did not provide any comments on that claim. 50. The Court considers that the applicant must have suffered distress and anxiety on account of the violation it has found.", "Ruling on an equitable basis, as required by Article 41 of the Convention, it awards the applicant EUR 6,000 in respect of non-pecuniary damage. B. Costs and expenses 51. The applicant also claimed EUR 960 for the costs and expenses incurred before the Court. 52.", "The Government did not provide any comments on that claim. 53. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to allow the claim in full. C. Default interest 54.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS THE COURT UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been no violation of Article 2 of the Convention concerning the State’s positive obligation to protect life; 3. Holds that there has been a procedural violation of Article 2 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 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 960 (nine hundred and sixty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 26 February 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekMark VilligerRegistrarPresident" ]

[ "CASE OF GÜLEÇ v. TURKEY (54/1997/838/1044) JUDGMENT STRASBOURG 27 July 1998 In the case of Güleç v. Turkey[1], The European Court of Human Rights, sitting, in accordance with Article 43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rules of Court A[2], as a Chamber composed of the following judges: MrR. Bernhardt, President, MrF. Gölcüklü, MrF. Matscher, MrC. Russo, MrL.", "Wildhaber, MrG. Mifsud Bonnici, MrU. Lōhmus, MrM. Voicu, MrV. Toumanov, and also of Mr H. Petzold, Registrar, and Mr P.J.", "Mahoney, Deputy Registrar, Having deliberated in private on 30 March and 26 June 1998, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 28 May 1997, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (no. 21593/93) against the Republic of Turkey lodged with the Commission under Article 25 by a Turkish national, Mr Hüseyin Güleç, on 16 March 1993. The Commission’s request referred to Articles 44 and 48 and to the declaration whereby Turkey recognised the compulsory jurisdiction of the Court (Article 46).", "The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 2 of the Convention. 2. In response to the enquiry made in accordance with Rule 33 § 3 (d) of Rules of Court A, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30). 3. The Chamber to be constituted included ex officio Mr F. Gölcüklü, the elected judge of Turkish nationality (Article 43 of the Convention), and Mr R. Ryssdal, the President of the Court (Rule 21 § 4 (b)).", "On 3 July 1997, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr F. Matscher, Mr C. Russo, Mr L. Wildhaber, Mr G. Mifsud Bonnici, Mr U. Lōhmus, Mr M. Voicu and Mr V. Toumanov (Article 43 in fine of the Convention and Rule 21 § 5). Subsequently the Vice-President of the Court, Mr R. Bernhardt, replaced Mr Ryssdal, who died on 18 February 1998 (Rule 21 § 6). 4. As President of the Chamber (Rule 21 § 6), Mr Ryssdal, acting through the Registrar, had consulted the Agent of the Turkish Government (“the Government”), the applicant’s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 § 1 and 38). Pursuant to the order made in consequence, the Registrar received the applicant’s and the Government’s memorials on 27 January and 17 February 1998 respectively.", "5. On 28 January 1998 the Commission had produced the file on the proceedings before it, as requested by the Registrar on the instructions of the President. 6. In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 25 March 1998. The Court had held a preparatory meeting beforehand.", "There appeared before the Court: (a)for the GovernmentMrM. Özmen,Agent,MrA. Kaya, Counsel,MrK. Alataş,MrsA. Emüler,MrsM.", "Anayaroğlu,Advisers; (b)for the CommissionM. H. Danelius,Delegate; (c)for the applicantMrH. Kaplan, of the Istanbul Bar,Counsel,MrŞ. Yılmaz, of the Diyarbakır Bar,Adviser. The Court heard addresses by Mr Danelius, Mr Yılmaz and Mr Özmen, and their replies to questions from two judges.", "AS TO THE FACTS I.the CIRCUMSTANCES OF THE CASE A.Background to the case 7. On 4 March 1991 there were a number of incidents such as spontaneous unauthorised demonstrations, shop closures and attacks on public buildings in the town of İdil in Şırnak Province. Two people were killed – one of whom was Ahmet Güleç, aged 15, a pupil at İdil Senior High School and the applicant’s son – and twelve others were wounded. 8. The owners of thirteen rifles confiscated after the incidents, spent cartridges from which had been collected by the security forces, were prosecuted in the Diyarbakır National Security Court, but acquitted because they had proved that they had not taken part in the events concerned.", "9. According to the Government, Ahmet Güleç was hit by a bullet fired by armed demonstrators at the gendarmes. According to the applicant, his son was killed by the security forces, who fired on the unarmed demonstrators to make them disperse. 10. On 5 April 1991 the applicant filed a criminal complaint with the İdil public prosecutor’s office against a person or persons unknown and against the commander of the security forces, Major Mustafa Karatan.", "11. On 19 April 1991 the public prosecutor’s office, after noting that the criminal complaint was directed against Major Karatan, declared that it had no jurisdiction to deal with it and transferred the case file to Şırnak Provincial Administrative Council for a preliminary investigation. On 18 October 1991 Şırnak Provincial Administrative Council halted the proceedings by means of a discontinuation order which was never served on the applicant’s lawyer. It found that the victim had died of bullet wounds received in the course of a confrontation between the demonstrators and the security forces. However, it found that it was impossible to identify those responsible.", "12. On 13 November 1991 the Supreme Administrative Court, to which the case had been automatically referred by law, upheld the above decision, holding that it was impossible to bring a prosecution against civil servants where the identity of those responsible and their status as civil servants had not been established. 13. On 20 January 1993 Mr Güleç’s lawyer wrote to the Chairman of İdil District Administrative Council enquiring what had been done about the applicant’s complaint. On 3 March 1993 the Şırnak Provincial Authority sent the applicant’s lawyer copies of the discontinuation order of 18 October 1991 and the Supreme Administrative Court’s judgment of 13 November 1991.", "B.The evidence before the Commission 1.Documentary evidence 14. The applicant and the respondent Government submitted various documents relating to the investigation carried out after the death of Ahmet Güleç to identify those responsible. They also produced documents relating to the criminal proceedings brought against persons who were suspected of taking part in the demonstration. (a)The criminal complaint lodged by the applicant on 5 April 1991 with the İdil public prosecutor’s office 15. The applicant alleged that his son had been shot and killed by the security forces in the course of the incidents of 4 March 1991.", "He stated that eyewitnesses had seen the killing and asked that the gendarmes who had killed his son be identified. (b)Petition lodged with the İdil public prosecutor’s office by four local councillors and eight leading members of the İdil branches of various political parties 16. The petitioners, who had all witnessed these events, alleged that during an unauthorised demonstration the gendarmes had opened fire on unarmed demonstrators. Two people had been killed and more than twenty wounded. The gendarmerie commander had given the order to fire at will on unarmed people.", "In particular, the local councillors, who had been in a meeting in the district authority offices, had seen the security forces opening fire on young people. One senior-high-school pupil had been killed and others wounded in the shooting. The petition stated that the gendarmerie had acted without reference to the District Commissioner, the public prosecutor or the police. The signatories requested the public prosecutor to take the necessary steps to bring those responsible to justice. (c)Report on the incidents of 4 March 1991 drawn up by the commanding officers of the gendarmerie, the İdil police and the army 17.", "This document contains a detailed description of the events by the commanding officers of the various security forces present in İdil. It states that, on the morning of the day in question, the shopkeepers all closed the shutters of their shops. The security forces had been informed that a group of between 1,000 and 1,500 people from the neighbouring villages was advancing on İdil. The demonstrators said that they were going to a funeral. When they reached the middle of the Atakent district of the town, more people joined the group.", "The crowd then set off towards the town hall. The gendarmerie commander, the district chief of police and other civil servants intercepted them and made several announcements to the effect that the demonstration was illegal. However, the demonstrators continued to advance along Atatürk Street, shouting slogans like “Long live the PKK”, “Long live freedom”, “Long live Kurdistan” and “Freedom for Kurdistan”. The group, composed of men, women and students, was more than 3,000 strong. When they reached the junction with Milli Egemenlik Avenue, some demonstrators began to attack the police and gendarmes with stones and sticks and firearms.", "When the demonstrators reached the centre of town they began to break the closed shutters, windows and doors of the shops. At that moment, four reinforcement units sent in by the gendarmerie and police again barred the demonstrators’ way, requiring them to disperse. Sticks and stones were thrown at the security forces who were trying to disperse the demonstrators. Certain unidentified demonstrators opened fire on the security forces with the aim of spreading panic and disorder. After the shooting the demonstrators began to disperse through the centre of town.", "One group went to İdil Senior High School, the adult education centre, the gendarmes’ quarters, the police station, the gendarmerie headquarters and the security police offices. When they reached the post office, the group threw sticks and stones, breaking all the windows, and set fire to a post-office minibus. The windows of the school and adult education centre were broken and damage caused to the interior of both buildings. When the same group started to attack the gendarmes’ quarters and the town hall, the gendarmes and police fired warning shots and gave warnings over the town hall loudspeakers. The security forces began to disperse the group.", "In the course of these events Ahmet Güleç, a senior-high-school pupil, was killed on the spot by a shot fired by armed troublemakers who had mingled with the demonstrators. A number of civilians were wounded and taken to the public hospital in Cizre. Ekrem Oruç died in hospital. Seven soldiers were injured by flying stones. Some fifty men and seventeen women who had taken part in the unauthorised demonstration were taken into police custody.", "Twenty-nine spent cartridges from Kalashnikov-type weapons were found at the scene of the demonstration. (d)Report on the medical examination and autopsy performed on Ahmet Güleç 18. “Medical examination ... The body was stripped. At the mid-point of the right axillary line towards the victim’s back there was a wound 1 cm in diameter caused by a bullet fired from some distance.", "The exit wound measures 2 cm in diameter and is 20 cm lower, about 10 cm in from the outside of the groin. Approximately 5 cm below the entry wound on the same right axillary line there is a further wound caused by a bullet fragment measuring 1 cm by 1.5 cm. The body was still warm when the examination commenced. Rigor mortis had not set in and there was no cyanosis. It was concluded from this that death had occurred approximately one hour earlier.", "... Two expert opinions were requested. These confirmed the public prosecutor’s finding (see above), that is that there is no exit wound relating to the bullet fragment which entered through the middle of the thorax, underneath the right arm. Further, they confirmed that, 5 cm above the point of impact of the fragment, there is an entry wound caused by a bullet striking at an oblique angle, with an exit wound on the same trajectory. Since neither the bullet nor the fragments touched any vital organ, the experts recommended that a full autopsy be carried out in order to determine the precise cause of death.” “Autopsy The ribcage and abdominal cavity were opened according to the usual procedures. A large quantity of accumulated blood was observed in the thoracic cavity.", "Approximately 3 litres of blood were pumped out. The left lung had been lacerated by the bullet fragment which, as noted above, struck the victim at the mid-point of the right axillary line. The bullet whose entry and exit wounds were identified and whose trajectory did not touch any vital organ could not have caused death. We conclude that death was caused by the bullet fragment which struck the victim at the mid-point of the right axillary line; this followed a horizontal trajectory, hitting the left lung and causing death by internal haemorrhaging and hypovolaemic shock. In the course of the full autopsy, the bullet fragment which struck the left lung was found in the left armpit and was placed under seal as an exhibit...” (e)Statement of Abdülvehap Öner, a resident of İdil, taken on 28 March 1991 by the İdil public prosecutor 19.", "The witness gave the following version of events: “On 4 March 1991 ... I came across the crowd of demonstrators. I did not join them, but went back the way I had come. At that moment I saw that shots were being fired at the ground from the armoured military vehicle, presumably to disperse the demonstrators. Something – I suppose pieces of lead – anyway, bits of metal – hit my left arm, right thigh and the inside of my left calf.", "I fell to the ground. I must have lost consciousness... I did not see who fired the shots which hit me, or what weapon they came from. However, shots did come from the Condor military vehicle.” (f)Declaration of lack of jurisdiction ratione materiae made on 19 April 1991 by the İdil public prosecutor 20. The İdil public prosecutor declared that he had no jurisdiction to examine the applicant’s complaint against the İdil gendarmerie commander, Major M. Karatan, for reckless and negligent homicide.", "The public prosecutor found that Major Karatan had been acting in the performance of his duties and observed that civil servants were subject to special provisions. He accordingly sent the case file to the İdil District Commissioner, who forwarded it to the Şırnak Provincial Administrative Council for investigation. (g)Declaration of lack of jurisdiction made on 7 June 1991 by the İdil public prosecutor regarding the wounding of Abdülvehap Öner 21. This declaration states: “On 4 March 1991 the security forces fired into the air from the armoured vehicle belonging to the İdil gendarmerie with the aim of dispersing the demonstrators. One person was wounded by the shooting...", "The bullets which hit the demonstrator were fired by civil servants acting in the performance of their duties. It has not been possible to identify the persons in question.” (h)Letter of 12 June 1991 from the İdil District Commissioner to the İdil gendarmerie commander 22. In this letter, the İdil District Commissioner stated: “On 4 March 1991 an illegal demonstration took place in [İdil]. In order to make the demonstrators disperse, the security forces fired into the air from the armoured vehicle belonging to the gendarmerie of our district. One citizen was wounded.", "An investigation into the conduct of the gendarmes has been opened.” The District Commissioner also requested the gendarmes to inform him of “the identity and addresses of those gendarmes in the armoured vehicle who allegedly opened fire, wounding citizens”. He added: “This information will serve as a basis for the investigation to be carried out by my officials.” (i)Letter of 14 June 1991 from the İdil gendarmerie, replying to the letter of 12 June 1991 from the İdil District Commissioner 23. In this letter, the gendarmerie state, firstly: “Your authorities know perfectly well that this illegal demonstration was organised by terrorist PKK militants. It was not simply a demonstration, since the offices of public authorities were attacked. Moreover, the infiltration of armed militants among the people and the use of weapons during the demonstration show how serious the situation was.", "The District Commissioner’s office asked us for backup in order to prevent the situation getting out of hand; in view of the urgency and dangerousness of the situation, all our available personnel were sent to the scene.” 24. The gendarmerie gave the following reply to the District Commissioner’s request: “We hereby inform you that, as stated above, given the sudden and serious nature of the events in question, the exact position of each of our men was not noted in the log-book. We are no longer in a position to verify their position on the day in question, given that more than three months have since elapsed.” (j)Documents relating to the investigation carried out by the military investigators 25. On 11 April 1991 the Governor of Şırnak Province instructed Mr Celal Uymaz, a gendarmerie lieutenant-colonel, to hold a preliminary investigation into the events of 4 March 1991. Lieutenant-Colonel Uymaz took evidence from the following witnesses: Şakir Ece, mayor of the Atakent district of İdil (statement of 22 July 1991): “... We heard children’s voices coming from the Midyat road.", "The children carried on marching towards the centre. They were not carrying anything, but simply making “V” signs and chanting slogans... The major arrived. He was in front of the Ziraat Bank. The demonstrators, who had become more agitated, carried on marching.", "The major then gave the order to fire. We heard shots from all sides. I took refuge on the second floor of the building with the people who had been in front of the District Commissioner’s offices. Through the window I could see that four or five people had fallen to the ground as a result of the shooting, but I did not recognise them. Subsequently, the gendarmes and police arrived, dispersed the demonstrators and took the wounded to hospital...” Hüseyin Güleç (statement of 23 July 1991): “I live in the Asağı Mahalle district; the place where the events took place is 250 metres from my house.", "The sound of shots gradually intensified, lasting approximately two hours. I did not leave the house, I was afraid. I was unable to see anything of what was happening. Around noon, the sound of shooting stopped. Women passing my house in tears told me that my son Ahmet had been killed in the confrontation.", "That was how I learned that my son had been killed... According to what I was told, my son was killed in front of the bakery ... in the central market... He was on his way to school but, when he saw the demonstrators, he followed them. In the confrontation which arose during this demonstration, soldiers opened fire, killing my son. The district gendarmerie major, Mustafa Karatan, gave the order to fire.", "He is responsible for the death of my son.” Habip Aslançiçek (statement of 23 July 1991): “On the day in question, at about 8.30 a.m. ... I saw a group of demonstrators coming up Midyat Avenue towards the central market. There were men, women and children in the group. Most of the demonstrators had scarves over their faces. They were armed with stones and pieces of wood and were very worked up.", "Most of them went past the post office, but others stopped there and broke the windows. The Condor vehicle from the battalion arrived to make the crowd disperse. The men in the vehicle opened fire on the agitated demonstrators – or, rather, fired at the ground. Ahmet Güleç, a relative of mine, who died later in hospital, fell to the ground. I believe he was hit by a bullet which was fired at the ground but ricocheted and hit him, because if the shots had been aimed at the crowd, everyone in the group would have been killed.", "When Ahmet Güleç fell, wounded, I took him to the medical centre in the town hall taxi. In the meantime, other people had been wounded. I did not see the soldiers who were in the Condor, nor the person who fired. However, the shots fired to disperse the demonstrators did come from the Condor. I repeat, they did not open fire on the crowd.", "Stray bullets could have caused the death.” Celal Sabuk (statement of 24 July 1991): “On the day in question, I had gone ... to the centre of town to do some shopping. I was making my purchases when I saw a large group of demonstrators approaching. They were chanting slogans, but I could not understand what they were saying. I heard shots. I saw that shots were being fired from an armoured military vehicle.", "In the ensuing confusion and surprise I was hit by three bullets, which I think were fired from the armoured vehicle. I was wounded and fell to the ground. I fainted and so I do not know what happened afterwards.” On 1 August 1991 Mr Uymaz had to withdraw from the investigation, as he had been transferred. 26. On 8 August 1991 the Provincial Governor then appointed Mr Osman Kurt, the gendarmerie battalion’s commanding officer.", "(k)Summary of the investigation, filed on 14 October 1991 by investigator Osman Kurt 27. This document contains the results of the investigation carried out by the two investigating officers. Mr Kurt, who was at the material time a gendarmerie major, made the following findings of fact: “On 4 March 1991 an unauthorised demonstration started in the early morning and lasted into the afternoon. The demonstrators were chanting PKK slogans and shouting defiance of the Turkish Republic. This demonstration grew to a crowd of 3,000 people.", "The demonstrators then began to damage public buildings and vehicles and related property. They fired shots in all directions. Since there were not enough police officers, reinforcements were requested. The gendarmerie company command and the district gendarmerie headquarters responded to this request in accordance with the provisions of Law no. 2803 on the duties and powers of the gendarmerie.", "In the course of these events two citizens were killed and approximately thirteen others injured. The majority of the persons taken into custody were arrested after initial questioning. Twenty-seven officers, warrant-officers, sergeants and men from the security forces were also injured in the same incidents.” With regard to the identity of those responsible, he concluded: “The statement of Abdülvehap Öner ... reveals that he did not see, and does not know, who opened fire... Hüseyin Güleç, the father of the victim [Ahmet Güleç] ... makes gratuitous and inopportune accusations against Major M. Karatan, who was simply obeying orders. The fact that the major has been made the target of the accusations, despite the fact that he was armed only with his handgun, reveals an ideological outlook and a complete lack of objectivity. The security forces did not aim at the citizens and have twice as many wounded as the demonstrators.", "The law was applied in order to prevent further incidents. There is, nevertheless, an imbalance (between the numbers of wounded on each side). The security forces did not reply ... to the shots from the crowd. In such circumstances, it is impossible to determine who was responsible for the incidents. In total, 200 police officers and gendarmes were deployed.” In the covering letter to the summary of the investigation he asserted: “The investigation has shown that the complaints filed by Hasip Kaplan [the applicant’s lawyer] and his fifteen friends contain unfounded and regrettable statements reflecting a lack of objectivity.” (l)Discontinuation order of 18 October 1991 made by Şırnak Provincial Administrative Council 28.", "This order stated that there were no grounds to commit for trial any civil servants belonging to the security forces responsible for maintaining order during the demonstration of 4 March 1991. According to this document, the material facts were as follows: “On the day in question, all the shops in the centre of İdil were closed. Their suspicions having been aroused by this situation, the security forces took security measures at the points of entry to the town, on the roads coming from the villages of Dirsekli, Yarbaşı and Bereketli. As they were doing this, a crowd of between 1,000 and 1,500 people was seen approaching İdil. The security forces personnel asked them what they were doing.", "The marchers replied that they were going to a funeral and carried on towards the centre of İdil. As they went through the Atakent district, a large number of men, women and children joined the group. It must then have numbered 3,000 persons, heading for the town hall. The district chief of police and the gendarmerie commander made several announcements to the effect that the march was illegal and that the participants should disperse. However, the unauthorised demonstration continued, accompanied by the chanting of slogans such as ‘Long live the PKK’ and ‘Freedom for Kurdistan’.", "The demonstrators fired shots at the security forces and attacked them with stones and sticks. Subsequently, they broke the windows of public buildings and housing and burned the post-office minibus parked outside the post office. The security forces, confronted with a situation which was becoming stormy, fired shots in the air in order to calm the demonstrators down and make them disperse. However, shots were also fired by demonstrators. Several persons died from wounds caused by shots fired during the demonstration; the medical report also proves that the wounds were caused by gunshots.", "A search of the scene of the incidents and the surrounding streets and alleyways after the demonstration produced fifty-two spent cartridges from bullets of various calibres coming from weapons registered with the security forces. An analysis of the cartridges showed that the bullets had come from thirteen different weapons. It was concluded that the demonstrators had used firearms.” The Administrative Council held that it was “not possible on the basis of the evidence on the case file to identify who had killed and injured the victims”. (m)Judgment of the Supreme Administrative Court of 13 November 1991 29. The Supreme Administrative Court upheld the above discontinuation order on the following grounds: “Offences committed by civil servants acting in the performance of their duties or by virtue of their powers must be dealt with in accordance with the procedures governing the prosecution of civil servants ..., [whereby] an administrative investigator is appointed by ordinance to carry out the investigation... ... Before an investigation can be opened into the conduct of a civil servant, the suspect must be precisely identified.", "In the absence of a precise identification, no judicial investigation can be carried out, no summary of such investigation can be prepared and no competent court can give a ruling on the matter. On 4 March 1991, in the course of a demonstration in the town of İdil, there were a number of confrontations between the security forces and the demonstrators, as a result of which two persons were killed and twelve others wounded. It has not been possible to identify those responsible. Although no judicial investigation can be carried out into this matter, the investigator appointed opened a preliminary investigation and prepared a summary of its findings, on the basis of which the Provincial Administrative Council made a discontinuation order. Since those responsible for the deaths and woundings are unknown, it is impossible for this Court to look into the case and give judgment.", "Having examined the case file, we hold that the Administrative Council’s decision was in accordance with the law and procedurally valid.” 2.Oral evidence (a)Hüseyin Güleç (the victim’s father) 30. Mr Güleç stated that he had not been in İdil at the time of the events of 4 March 1991. When he returned home in the evening he was informed that his son was dead and told that he had been shot. He heard that his son had gone to the scene of the demonstration to look for his younger brothers, at which point he was hit by a bullet. He did not know who had shot his son.", "Mr Güleç said that he had not made any statement to the authorities. He remembered being in shock after the incident. Many people had come to visit him, including journalists and members of parliament. He did not know exactly where the body of his son had been found. He had seen it for the first time at the hospital.", "As regards the investigation opened after the death of his son, he confirmed that he had signed the criminal complaint filed with the İdil public prosecutor’s office, but afterwards he had shut himself up at home. He did not know the details of how his son died. He did not know that he was entitled to compensation as a result of his son’s death. Even if his lawyer had advised him to apply for this, he was not in a fit state to understand anything at all at the time of the incidents. (b)Abdülselam Güleç (civil servant in Bor (Niğde Province), the victim’s cousin) 31.", "Mr Güleç had been present in İdil during the incidents, visiting a sick uncle. He had remained in his uncle’s house throughout the demonstration and so was not an eyewitness. He had only heard the demonstrators and the shots. When told of Ahmet Güleç’s death, he had gone to the hospital where he had looked for but failed to find the body. Later, he had brought the body back to the village for the funeral, which he had attended.", "Some of the leading citizens of İdil, together with the PKK, had organised the demonstration and publicised it energetically. All the villagers had taken part (both adults and children), except for the elderly, since those who did not take part in these demonstrations were killed or punished by the PKK. The victim, Ahmet Güleç, had been a pupil at the town’s senior high school and, as such, like all the pupils of the school, had been obliged to take part in the demonstration. If he had not done so, he would have been punished by the PKK. At that time, İdil was a “protected” area: that is, the PKK controlled people’s movements.", "If he, Abdülselam Güleç, had been found in his uncle’s house, he would have been forced to participate in the demonstration. The population of İdil district was essentially made up of nomads, who lived in İdil in winter and moved up into the mountains in summer. These people were armed, possessing one or two guns per family in order to protect themselves from the wolves and thieves in the region. There were contacts between members of the PKK and these nomads. In March winter was not yet over and the village nomads did not migrate to the mountains until May.", "At the time of the demonstration there must therefore still have been a large number of nomads in İdil. Mr Güleç asserted that the victim had told him, on an unspecified date, that the PKK had contacted him to try to persuade him to join their movement. (c)Abdurrahman Abay (mayor of İdil at the material time) (statement taken over the telephone) 32. On 4 March 1991 he had been in his office. The demonstration had taken place about a kilometre away.", "He had not realised it was happening until he heard shots. He had telephoned the police who had informed him that there were two dead and a number of wounded. He had not left his office. He was not responsible for security in the town. That was the responsibility of the police and the gendarmerie.", "Mr Abay acknowledged that he had signed the complaint lodged by leading citizens of İdil against the gendarmerie commander. At first, he had thought that the gendarmes had used excessive force against the demonstrators. However, on reflection, he recognised that the gendarmes had acted in the way they had in order to avoid losing control of the situation, so he had withdrawn his complaint. (d)Derviş Abay (civil servant at İdil town hall at the material time) (statement taken over the telephone) 33. Mr Abay said that he had not met Ahmet Güleç.", "The town hall was 800 to 900 metres away from where the demonstration took place. The demonstration and associated incidents had taken place in the centre of town. He had not been present at these incidents, nor had he seen the demonstration. He had heard noises and shots. He had been placed in police custody and held for two days after the incidents.", "He had been charged when he claimed not to have taken part in the demonstration. The charge-sheet stated that he had taken part in the demonstration, that spent cartridges from the weapons used during the demonstration had been found at the scene and that one of these weapons belonged to him. Two months after being released from police custody he had been remanded in custody for one month. At the end of the criminal proceedings brought against him and many other inhabitants of İdil, the Diyarbakır National Security Court had acquitted them all. He had a gun licence.", "On the day of the incident he had been working in the town hall and the gun in question had been at his house. He had been told that the security forces had gone to his house, taken the gun and fired shots from it inside their barracks, thus obtaining spent cartridges. (e)Şeymuz Kaplan (town councillor) 34. Mr Kaplan stated that during the demonstration of 4 March 1991 he had been at home and had not gone out. He was therefore not an eyewitness.", "His house was about 400 or 500 metres from where the demonstration took place, so he had only heard the demonstrators and gunshots. He did not know the exact reason for the demonstration. With regard to the complaint filed with the İdil public prosecutor, he had signed it, but had done so as an emotional response in the heat of the moment. He had not been interviewed in the course of the investigation conducted following the demonstration. (f)Yahya Zerey (head of the security police in İdil at the material time) 35.", "Mr Zerey stated that on 4 March 1991 the shutters of all the shops in İdil had been lowered very early in the morning. At the request of the İdil District Commissioner, the police had taken measures to prevent any untoward occurrences. While he was at the district authority offices the gendarmes had informed him by walkie-talkie that a group of three to four thousand people was heading towards the centre of town. Mr Zerey and his men had gone out to meet the demonstrators in order to inform them that they were demonstrating illegally and should stop. However, the demonstrators had continued their march.", "Mr Zerey and his men had returned to the district authority offices. After the arrival of the gendarmes, Mr Zerey had remained in the District Commissioner’s office and had not witnessed the incidents. Following a call from a group of gendarmes led by Mr Ersöz and stationed in front of the post office, the armoured vehicle had been sent to their assistance. Mr Zerey had not seen the shooting. The demonstrators had been armed and violent.", "They had damaged a post-office vehicle and other public property. The security forces had returned fire from the demonstrators. The security forces had not been equipped with batons or riot shields which could have helped them to quell the demonstrators. They had been armed with handguns and rifles. Mr Zerey also asserted that if the security forces had fired directly on the crowd, more than two people would have been killed.", "He also stated that the cartridges found in the streets after the incidents belonged to inhabitants of İdil. It was routine procedure for the security forces to pick up spent cartridges. According to Mr Zerey, the MG-3 gun mounted on the armoured vehicle could not possibly have been used against a crowd. If it had been, at least twenty people in the front ranks of the crowd would have been killed. (g)Güven Ersöz (commanding officer of the 8th İdil Gendarmerie Company at the material time) 36.", "Mr Ersöz stated that on the morning of 4 March 1991 he had learned that shops in the town had lowered their shutters. Finding this unusual, he had awaited developments in his brigade’s building. When he saw that the number of demonstrators had increased and that, despite warnings, they were continuing to advance towards the building, he had taken up position at its entrance with about thirty gendarmes. Mr Ersöz stated that the crowd of demonstrators had been made up of women and children surrounding armed men with scarves over their faces. He had warned the demonstrators that the demonstration was illegal and advised them to disperse.", "The women and children had tried to obey but the armed men had forced them to go on. He had given a second warning, but the armed men had continued to advance. Stones and sticks were then thrown at the gendarmes. The demonstrators had chanted many slogans, such as, “We want to enter the brigade building”. Mr Ersöz and some of his men in the front line had been wounded by flying stones.", "The armed demonstrators had taken advantage of this to try and seize the gendarmes’ weapons. Mr Ersöz had fired warning shots in the air, which had made the women and children disperse. He himself, his second lieutenant and his orderly had each fired about five shots. Consequently, between the three of them they would have fired about fifteen bullets, which the witness considered sufficient to make the demonstrators disperse. He and his men had then retreated to the side of the road.", "Ten seconds later they had come under very heavy fire from Kalashnikov-type automatic weapons fired by the armed men, who were also shooting with the weapons which they had stolen from the gendarmes. Mr Ersöz had used his radio to call up the Condor armoured vehicle as backup. The Condor had been standing about one kilometre away from his brigade building. When it reached his position it had managed to disperse the demonstrators without firing a shot. It had come from the gendarmes’ quarters and, in order to get to the brigade building, it must have gone past the post office, where the victim had been killed.", "However, Mr Ersöz did not know whether the Condor had opened fire on its way, but did remember that he had requested that the Condor be sent in exclusively as a deterrent and that the weapons mounted on the vehicle should not be used against the crowd. He knew the Condor crew but could not identify the person who had been driving the vehicle at the time. Mr Ersöz emphasised that PKK members provoked and built up this kind of incident, and threatened the local population to force them to participate in PKK-organised demonstrations. Refusing to take part could be fatal. There was a distance of 500 to 600 metres between the spot where the victim’s body was found and the place where he had taken up position with his men to defend his brigade’s building.", "They had been out of range of the place where the victim’s body was found and 100% of the spent cartridges found there had belonged to PKK members. Lastly, in relation to the investigation, Mr Ersöz said that he had made the necessary statements to the Diyarbakır National Security Court, the Principal Public Prosecutor and the lawyers. (h)Nazım Ayhan (gendarmerie warrant-officer at the material time and driver of the Condor vehicle) 37. Mr Ayhan stated that the commanding officer of İdil gendarmerie was Major Karatan. The second in command was a lieutenant and he was third in rank.", "He remembered that on the day of the incident, at 7.30 a.m., he had received a telephone call informing him that there was an unauthorised demonstration in town. He had gone round to the office of the İdil District Commissioner. The head of the security police and the gendarmerie commander had also been present. The crowd of demonstrators was coming towards the centre of town from the district behind the town hall and the immigrant districts. Mr Ayhan had ordered his men not to intervene.", "By then, the crowd was 3,500 strong. At that point, the Condor armoured vehicle was standing near the gendarmes’ quarters, with a view to preventing any attack on them. It was parked in a narrow lane 50 metres from the main street where the demonstration was taking place. On the order of a young man whose face was masked, the crowd had begun to advance, chanting slogans like “Up the PKK”. They were heading for the centre of town.", "At that moment handgun shots had been heard coming from the crowd. Shots had also been fired at the security forces from the surrounding alleys and roofs of houses. The Condor had not moved. At some point, the district gendarmerie commander (Major Karatan) had informed him by walkie-talkie that the demonstrators were attacking the school where his wife was teaching. The PKK militants were demanding that she be handed over to them.", "The commander had ordered Mr Ayhan to go and get his wife from the school. In order to get to the school, the Condor, driven by Mr Ayhan, had turned left into the main street, towards the centre of town, then took the first street on the right, which ran alongside the school. In that narrow street Mr Ayhan had fired two or three times in the air in order to gain the demonstrators’ attention. Shots were being fired at the vehicle from all sides. The windows of the school and of the adult education centre had been broken by stones.", "The Condor had been driven towards the demonstrators in order to disperse them, and a second armoured vehicle (a Land Rover) had succeeded in picking up the commander’s wife at the other entrance to the school and getting her away from the scene. The Condor had then returned to its position near the gendarmes’ quarters. Ten or fifteen minutes later Mr Ayhan had been informed by walkie-talkie that Lieutenant Ersöz was requesting assistance. He had started out for the infantry regiment barracks in the Condor. He had to go through the centre of town.", "In the middle of the main street, between the baker’s and the post office, he had seen a body stretched out on the ground. There was no one with it. Mr Ayhan had told the driver of the armoured vehicle to keep well away from the body because it could have been a trap. When the Condor came up behind the crowd, which had already got as far as the infantry regiment barracks, the people had moved aside. The demonstrators had run away and the disturbances had ended.", "When the Condor again returned to its position near the gendarmes’ quarters, the body was no longer lying in the main street. Mr Ayhan stated that the Condor was equipped with an MG-3 automatic rifle. This was the weapon he had used to fire into the air. He had pressed the trigger two or three times. He did not know the exact number of bullets he had fired but he estimated that it must have been between fifty and sixty.", "The MG-3 machine gun was a combat weapon. If he had fired on the crowd, many people would have been killed. Mr Ayhan stated that he knew that an investigation into these events had been opened but did not remember giving a statement to anyone in authority. He did not remember whether the spent cartridges from the weapon he had used had been passed on to the judicial authorities. If not, they would have been kept in the gendarmerie depot and handed over to superior officers.", "In response to a question concerning the death of another demonstrator, Mr Ayhan stated that the Condor had fired in the air in a narrow street. As soon as the trigger of an MG-3 machine gun was pressed, it immediately fired at least ten bullets. Mr Ayhan thought the victims had been killed by bullets fired by the PKK. PKK militants were not professionals and often hit the wrong targets. (i)Bekir Rayif Aldemir (İdil public prosecutor at the material time) 38.", "Mr Aldemir stated that on 4 March 1991 he was in İdil and had seen the demonstration. While on his way to his office, he had heard shots and slogans and had taken refuge in the gendarmerie building. At that moment, he had heard numerous gunshots coming from the centre of town. From the garden of the gendarmerie building he could see the Condor armoured vehicle moving along Atatürk Street, firing in the air in order to disperse the crowd. Shots fired in the air made a different sound than straight shots.", "He had also heard Kalashnikov and MG-3 fire coming from the gendarmerie building. As regards the investigation, he had conducted an inquiry following the criminal complaint filed with the İdil public prosecutor’s office by Hüseyin Güleç. He had taken a statement from Mr Güleç and other witnesses. He had ordered an autopsy on the victim’s body. The autopsy, which was a full one, had been performed in İdil paramedical health centre and produced the following findings: the victim had been dead for about one hour as rigor mortis had not yet set in.", "The victim had been hit by a single bullet. The point of impact was below the right armpit and the bullet had lodged in the left shoulder, causing internal bleeding. The bullet had been found in the victim’s body. It had followed a rising trajectory. Mr Aldemir considered that it was not impossible, in view of the trajectory followed by the bullet-core found in the victim’s body, that it had been fired from the Condor armoured vehicle and had then ricocheted.", "He referred to the autopsy report, which he had in front of him, and which stated that the fatal bullet must have ricocheted off a building or wall. The bullet-core found in the victim’s body had been knocked out of shape, and this could not be accounted for by the bullet’s passage through the victim’s body. A ballistic report on the spent cartridges had been drawn up by the regional criminal police laboratory. According to that report, a bullet fragment which had passed through the body had been found and compared to twelve specimen bullets. No match had been found.", "Since the other fragments of the bullet had not been found, it had been impossible to identify the weapon which had caused the victim’s death. However, the bullet-core, which was an important piece of evidence, had been preserved as an exhibit, in accordance with the relevant procedure. Mr Aldemir had seen to it that the wounded were examined by doctors. Ten medical reports had been filed and placed on the case file sent to the District Commissioner. According to those reports, certain demonstrators had wounds between the feet and the knees.", "None of them had been wounded on the upper body. The position of these wounds might have been due to crossfire and bullets ricocheting off the ground or buildings. Since the criminal complaint concerned civil servants, Mr Aldemir had made a declaration on 19 April 1991 to the effect that he had no jurisdiction to deal with it, in accordance with the legislation on prosecution of civil servants. He had then transferred the investigation file to the District Commissioner. (j)Osman Kurt (head of general security at Şırnak gendarmerie headquarters at the material time) 39.", "When appointed as the investigator in the Güleç case, he had opened an inquiry and compiled a case file. He had taken witness statements from Abdurrahman Abay, Hüseyin Demir and the other civil servants working in the town hall, who had taken part in the demonstration. In his report he stated that the accusations against Major Karatan were unfounded and did not reflect what had actually happened. Before arriving at that conclusion, he had taken evidence from witnesses, read expert reports and gathered other evidence from various official and private sources. Finally, he had taken a decision on the basis of his personal conviction.", "He had put himself in the place of the security forces faced with the demonstrators. He had thought about the case for days before reaching his decision, weighing all the possibilities. Mr Kurt had also taken evidence from the gendarmes and Major Karatan. He did not remember whether he had taken evidence from Güven Ersöz and had not taken a statement from Abdurrahman Abay, the mayor of İdil, whom he had seen by chance on his way to İdil town hall. Mr Abay had only told him that if the gendarmes had intervened sooner, they would have prevented most of the incidents.", "In his statement, Hüseyin Demir had told Mr Kurt that he had not seen exactly what had happened. He had only heard shots and seen the crowd but had not seen people being killed or wounded. Mr Kurt’s case file also contained statements from demonstrators. These statements had been taken by the public prosecutor and the previous investigator. Mr Kurt did not remember taking evidence from Mr Ayhan, the driver of the Condor vehicle.", "Nor did he remember how many shots had been fired in the air from the Condor. Before reaching his conclusion, he had taken into account not only witness statements, but also the results of his own investigations. These indicated that the young man had been killed before the security forces intervened. The PKK militants had been in the middle of the crowd of demonstrators, surrounded by women and children. They had fired shots in all directions in order to create an atmosphere of terror.", "Some bullets had ricocheted and hit Ahmet Güleç. The gendarmes had not even been there when he was wounded. He had found that the security forces had taken all necessary precautions. Those who had come forward as witnesses were reliable people. The mayor of İdil was one of them.", "There had been three or four thousand demonstrators. If firearms were discharged haphazardly, accidents could happen, even in a group of twenty to twenty-five people. In the case in point, the three or four thousand demonstrators had not been aware of the danger. It had even been inevitable that someone would be killed. He had interviewed everyone, even the victim’s relatives, who had explained to him that Ahmet Güleç had very probably been killed by PKK bullets.", "Mr Kurt had not immediately ruled out the possibility that the security forces had fired on the demonstrators. He had been completely impartial and had begun his investigation with an open mind. He had come to the conclusion that the gendarmes had intervened after the victim’s death. The complaint filed against the gendarmerie commander had really been an emotional reaction intended to tarnish his reputation. Major Karatan had been armed only with a handgun.", "The crew of the Condor armoured vehicle had controlled the situation effectively. If the machine gun mounted on the vehicle had been fired towards or at the crowd, there would have been a large number of deaths. The fifty-two spent cartridges referred to in the Administrative Council’s decision had come from bullets fired in the air by the gendarmes. The twenty-nine spent cartridges referred to in the report on the incidents and in the public prosecutor’s report of October 1991 had come from weapons used by the demonstrators. The reference to “weapons registered” related to the weapons seized during searches and preserved as exhibits.", "Mr Kurt had interviewed only those people who had been listed by the gendarmerie commander as injured. The difference between the number of injured referred to in his report and the number mentioned by the chief of police could be explained by the fact that some people had gone to hospital and received immediate attention there whereas others had been admitted. Some people did not immediately realise that they had been injured, while others did not inform all the relevant authorities. He had seen the injured gendarmes in their barracks. Their injuries had been caused by stones and other hard objects which had been thrown at them, not by bullets.", "The commanding officer was responsible for operations. The troops had taken up their positions on his orders. If a subordinate misapplied one of the commanding officer’s orders, or acted outside the scope of that order, the subordinate was answerable for the consequences. He thought that the commanding officer of the district gendarmerie had given appropriate orders. When the police proved to be unable to handle the situation, the gendarmerie had intervened.", "Major Karatan had therefore intervened in good time and taken the appropriate steps. Where the investigating officer was not a gendarmerie officer, the chief of police or his deputy could investigate the case. If no such person was available, someone else, an engineer for example, could act as the investigating officer. Mr Kurt confirmed that he had worked in Şırnak from 1991 to 1993. He also confirmed that Major Karatan had worked in Şırnak for part of that period and stated that he had taken over the investigation in the case long after the events in question.", "(k)Nurettin Güven (Deputy Governor of Şırnak at the material time) 40. Mr Güven had been standing in for the Governor as Chairman of Şırnak Provincial Administrative Council when it discontinued the proceedings against the commanding officer of the gendarmerie forces ordered to suppress the demonstration of 4 March 1991. He himself had not been present at the scene of the incidents. He described the rules governing prosecution of civil servants, which were as follows. The Governor appointed an investigator, who gathered all the evidence and submitted his conclusions to the Administrative Council.", "The case file was examined at a meeting of the Administrative Council at which each member expressed his or her views. The investigator did not attend that meeting. A decision to commit for trial or discontinue proceedings could be taken either unanimously or by a majority. The Administrative Council’s decision was transmitted to the Supreme Administrative Court which, after examining the case file, upheld or quashed it. These special rules governing the prosecution of civil servants applied in regions where a state of emergency was in force.", "A state of emergency had to be declared according to the democratic process by the National Assembly, by a majority vote. In the present case, the Administrative Council had unanimously discontinued the proceedings, on the ground that the persons responsible had not been identified. No one had testified to seeing how Ahmet Güleç had died. In Turkey, gendarmes did not fire on citizens except when driven by necessity to do so. (l)Cengizhan Uysal (Şırnak Director of Public Health at the material time) 41.", "Mr Uysal did not remember the particular circumstances of the case. At the time there had been disturbances in İdil almost every day. The Administrative Council based its decisions on the documents which the investigator had placed on the case file, and was not strictly speaking empowered to conduct an investigation itself. That power belonged to the Governor. In general, the Administrative Council met once a month, although some months there was no meeting.", "If so, the Governor circulated a draft decision among the members of the Council for signature. When the Administrative Council met, it was chaired by the Governor or his representative. The Council’s Secretary read the case file aloud. The members of the Council could examine the documents on the file. They were then invited to express their views and to sign a draft decision.", "In theory, the members could oppose the Governor’s proposal. Those who were not convinced of the correctness of what was proposed could ask for further investigations to be carried out. However, in the final analysis, the procedure was based on the trust placed in the Governor. Either the members of the Council were convinced and signed the decision, or they were replaced by others who were willing to sign it. In practice, it was not possible for the decision, as proposed by the Governor, not to be signed.", "Mr Uysal stated that he thought the decision given in the present case had not been a discontinuation order but a decision not to commence criminal proceedings against civil servants and to transfer the case file to the public prosecutor for him to carry out a further investigation with a view to identifying those responsible. He had not been informed of subsequent developments in the case. (m)Şükrü Süsin (shopkeeper and local councillor (muhtar) for one of the districts of İdil at the material time) 42. Mr Süsin stated that the local population had spontaneously organised a demonstration on 4 March 1991 in order to protest against acts of brutality committed by the gendarmes two days earlier in the village of Kömür. The District Commissioner had called him to the town hall.", "On his way there, he had seen the demonstrators in the street, and also the security forces and their armoured vehicles. When he got to the town hall, the demonstrators were already assembled. At the town hall, the witness had seen and heard gendarmerie major, Mustafa Karatan, give the order to open fire by walkie-talkie. As the town hall was the tallest building in İdil he had seen a Panzer-type armoured vehicle open fire while travelling along Atatürk Street in front of the town hall. All the demonstrators were trying to run away.", "One of his friends had been killed before his eyes. He had seen shots being fired from the armoured vehicle. The vehicle was following the demonstrators and the soldiers manning it were firing at the ground, in the direction of the demonstrators. More than fifty people had been wounded in the abdomen and chest by ricocheting bullets. Some of the wounded had refused to be taken to hospital because they were afraid of the authorities’ reaction.", "Mr Süsin had not seen how Ahmet Güleç had been killed. With others, he had signed a complaint filed with the İdil public prosecutor’s office against Mustafa Karatan. A gendarmerie officer, Major Osman, had taken his statement in the course of an investigation into the incidents. But the investigation had come to nothing. Mr Süsin had been arrested, in relation to another matter, in January 1993.", "In 1994 he had left Turkey while proceedings against him were pending. He had eventually been sentenced to twelve years and six months’ imprisonment under Article 168 § 2 of the Criminal Code for membership of an armed group, namely the PKK. After examining the photograph of the armoured vehicle on the case file, Mr Süsin stated that it was a Panzer and that the Condor was smaller. In fact, a Condor was a jeep equipped with a machine gun. The Condor had fired for four or five minutes.", "(n)Hüseyin Demir (chairman of the İdil branch of the People’s Social Democratic Party (SHP) at the material time) 43. Mr Demir stated that he had been at home when the demonstration started. His house was one kilometre from the centre of town. From his balcony, he had been able to see the route taken by the demonstrators (mainly Atatürk Street) and the armoured vehicles belonging to the security forces following them. The demonstration had been called to protest against what gendarmes had done to certain inhabitants of a village in Mardin Province.", "The demonstrators were not armed. At about 9 a.m. he had heard shots. From his balcony, he could see the armoured vehicles firing in all directions. Later he had gone to the health centre where there were a number of wounded people and Ahmet Güleç’s body. He had helped to take the wounded to various hospitals in the region.", "The soldiers inside the armoured vehicle were not necessarily shooting to kill but might have been trying to disperse the demonstrators. However, they had fired without concern for the risk to the demonstrators’ lives. Most of the wounded had not gone to hospital for fear of being prosecuted for demonstrating illegally. Mr Demir had not seen any gendarmes injured in the course of the incidents. While Mr Demir was at the health centre in the social security hospital he had been arrested by gendarmes and held in police custody for three days before being brought before one of the public prosecutors at the Diyarbakır National Security Court.", "Two members of his family had later been charged but then acquitted. The gendarmes had seized weapons and cartridges from citizens and fabricated evidence. However, this ploy had not fooled anyone for long. (o)Cüda Demir (born in Turkey in 1975, now living in Germany) 44. Ms Demir stated that the demonstration had been called in protest against searches carried out by the army and arrests made on 2 March 1991 in a village near İdil.", "Ms Demir had taken part in the demonstration together with Ahmet Güleç, who had been a school friend of hers. There were no lessons because of the demonstration. They had decided to take part with other pupils from the senior high school. There had been many demonstrators and they were not acting under anyone’s orders. They were not carrying weapons or stones.", "With regard to the circumstances surrounding the death of Ahmet Güleç, Ms Demir stated that she was with him in the middle of the crowd when they found themselves trapped between the gendarmes who were barring the road in front of them (about 150 metres away) and a Panzer tank which was following close (5 or 6 metres) behind the demonstration, having come from the centre of town. The armoured vehicle had fired from behind the demonstrators, many times, at random and directly at the demonstrators, although this was not necessary to bring them under control. She had seen Ahmet Güleç fall to the ground beside her when the shooting first started. He had remained lying on the ground while the demonstrators were running off into the adjacent streets. She had taken refuge in a house from which she had called her father.", "She had got home about two hours later. At that time, she could still hear shots. She had later found out that her friend had died. (p)Hüsnü Demir (born in 1966, manager of a café opposite the Turkish Electricity (TEK) building in Atatürk Street, İdil, at the material time, currently living in Germany) 45. On the day in question Mr Demir had gone to his café at 6 a.m. At about 8 a.m. the demonstration began.", "It was a large one. The demonstrators did not have weapons, or stones or sticks. They were chanting slogans such as, “Stop the torture, stop the repression”. The soldiers had formed a barricade in front of the demonstrators. The Panzer, which suddenly appeared behind the crowd, fired into the air, at the ground and in the direction of the demonstrators.", "One person was hit by a bullet and fell to the ground about ten to twenty metres in front of Mr Demir’s café. All the other demonstrators dispersed. The Panzer had been about 100 to 150 metres from the café. Ahmet Güleç was lying on the ground in front of the café, before the post office. When the soldiers inside the Panzer opened fire, they were not concerned to preserve human life.", "The MG-3 machine gun mounted on the vehicle was a very powerful weapon. A number of people were wounded. Shots could be heard in all the streets of İdil until 8 o’clock that evening. Mr Demir had been trying to get home when he was arrested and held in police custody for three or four days. Mr Demir’s café and other buildings in İdil had been damaged during the incidents.", "On 29 April 1991 Mr Demir had made a statement to the İdil public prosecutor to the effect that he had stayed in bed on the day of the incidents and had not opened his café, but this was a lie. (q)Beşir Arı (born in Turkey in 1963, now living in Germany) 46. Mr Arı stated that he had arrived in İdil on the morning of 4 March 1991 at 8 a.m. from the village of Yarbaşı. He had taken part in the demonstration. With regard to the circumstances of Ahmet Güleç’s death, Mr Arı had seen him fall under fire from the Panzer.", "At that time Mr Arı had been in the middle of the demonstration and had seen soldiers and police officers open fire in the direction of the crowd, without giving any warning. The Panzer, which had come from the centre of town, had been behind the demonstrators when it fired several times, in their direction, at the ground and in the air. Five or six people had fallen close to him and the demonstrators had dispersed. Ahmet Güleç, who was 50 metres from the Panzer, had also fallen to the ground. Mr Arı had run away into the surrounding streets and helped the injured to make their way to the health centre.", "He had been arrested and taken to the gendarmerie headquarters. The demonstrators had not been acting on anyone’s orders. (r)Sabri Aslan (student at the Ankara University Faculty of Political Science at the material time) 47. Mr Aslan’s parents lived in a village 15 kilometres from İdil, and he had been on holiday in the region in March 1991. He had not seen what took place in the centre of town, in Atatürk Street.", "He had arrived in İdil early that morning and seen people coming away from the scene of the incidents. Armoured vehicles were patrolling the streets. One of the vehicles had opened fire on him. He had hidden behind a rock, but his leg had been burned by bullet fragments. According to Mr Aslan, the gendarmes were out of control and were taking absolutely no precautions to preserve human life.", "They were acting like hunters. (s)Emin Aslan (present in İdil at the material time) 48. Mr Aslan stated that he had taken part in the demonstration. He had seen the Panzer fire at the crowd from a distance of about 150 to 200 metres. The demonstrators had separated into two groups, but the firing had continued and he had received a bullet wound.", "As regards the circumstances of Ahmet Güleç’s death, he had not been near him but about 400 to 500 metres away. He had seen a large Panzer and a small one. He had seen the large Panzer fire at the crowd without prior warning. He had been treated in secret after the incident by a doctor. More than fifty people who had been injured did not go to see a doctor for fear of being arrested.", "II.RELEVANT DOMESTIC LAW 49. Article 125 of the Turkish Constitution Turkey provides: “All acts or decisions of the administration are subject to judicial review... The administration shall be liable to indemnify any damage caused by its own acts and measures.” The above provision is not subject to any restrictions, even in a state of emergency or war. The second paragraph does not necessarily require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unidentified persons where the State may be said to have failed in its duty to safeguard individual life and property.", "50. Under the Turkish Criminal Code, torture and ill-treatment are criminal offences (Articles 243 and 245 deal with torture and ill-treatment inflicted by civil servants respectively). 51. Under Articles 151 and 153 of the Code of Criminal Procedure, complaints may be lodged with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure.", "A complainant may also appeal against a decision not to institute criminal proceedings. 52. Under Article 4 § 1 of Legislative Decree no. 285 (which introduced the office of Governor of a State of Emergency Region), criminal offences committed by members of the security forces within the area covered by the state of emergency must be dealt with under the procedure for prosecuting public servants. Under this procedure, the administrative investigatory authorities conduct the preliminary investigation.", "If this investigation implicates an agent of the State or a civil servant, authorisation to initiate criminal proceedings must be given by the local administrative council (the executive committee of the provincial administrative authorities). Administrative councils’ decisions may be appealed to the Supreme Administrative Court; a decision not to proceed is subject to an automatic appeal of this kind. 53. Under section 1 of Law no. 466, a person who has been wrongfully held in police custody may apply to the local assize court for compensation within three months of a decision to drop the charges against him.", "54. Furthermore, any illegal act by a civil servant, whether a crime or a tort, which causes pecuniary or non-pecuniary damage may be the subject of a claim for compensation before the ordinary civil courts. 55. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing. PROCEEDINGS BEFORE THE COMMISSION 56.", "Mr Güleç applied to the Commission on 16 March 1993. He relied on Article 2 of the Convention, alleging that his son’s death had been caused by bullets fired by the security forces during a demonstration and complaining that he had not been able to lodge a complaint with the criminal courts because of the administrative authorities’ decision to discontinue proceedings against members of the gendarmerie. 57. The Commission declared the application (no. 21593/93) admissible on 30 August 1994.", "In its report of 17 April 1997 (Article 31), it expressed the opinion that there had been a violation of Article 2 (thirty-one votes to one). The full text of the Commission’s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment[3]. FINAL SUBMISSIONS TO THE COURT 58. The applicant’s lawyer asked the Court to hold that there had been a breach of Article 2 of the Convention and to order the respondent State to pay compensation for the pecuniary and non-pecuniary damage sustained by his client, and to reimburse the costs and expenses he had incurred. 59.", "The Government asked the Court, as their principal submission, to rule that domestic remedies had not been exhausted in the present case, and for the rest to hold that there had been no breach of the Convention. AS TO THE LAW I.The Government’s preliminary objection 60. The Government objected that domestic remedies had not been exhausted, in that the applicant had not brought an action for damages in the appropriate administrative court. 61. The Delegate of the Commission observed that during the proceedings before the Commission the Government had requested and obtained two extensions of the time-limit they had been given for submitting observations on the admissibility and merits of the application.", "These observations, which had been submitted on 26 January 1994, argued that the application should be rejected, firstly because it was an abuse of the right of petition – being, in the Government’s opinion, “highly political” and, in their view, seeking to impute the applicant’s son’s death to the security forces – and secondly because there had been no breach of Article 2, as the fatal bullet had been fired by the demonstrators, not by the security forces. As the argument concerning non-exhaustion had been put forward for the first time before the Court, the Government were estopped from relying on it. 62. The Court sees no reason to disagree with that submission. II.alleged violations of Article 2 of the Convention 63.", "The applicant asserted that his son had been killed by a bullet fired by the security forces during the demonstration of 4 March 1991, while he was trying to make his way home. He further complained that the gendarmes had used excessive force and that there had been no proper investigation into the circumstances of his child’s death. He argued on that account that there had been a twofold violation of Article 2 of the Convention, which provides: “1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” 64. The Government contested the version of the events given by the applicant. Ahmet Güleç had been hit by a bullet fired by terrorists positioned among the demonstrators. The relevant authorities had properly conducted their investigations into his death.", "65. The Commission submitted that Article 2 had been breached on account of the use of disproportionate force by the gendarmes and the lack of a real investigation. A.The applicant’s son’s death 1. Arguments of the participants in the proceedings (a) The applicant 66. The applicant stated in the first place that the unauthorised demonstration of 4 March 1991, in which approximately 3,000 – unarmed – residents of İdil and nearby villages had taken part, had been called to protest against ill-treatment inflicted on the people of a neighbouring village, some of whom had been taken into police custody, during an operation by the security forces.", "Secondly, his son had not been demonstrating but had been killed while he was returning from school by shots fired from one of the armoured vehicles used by the gendarmes. The Government’s allegations, to the effect that Ahmet had been a member of the PKK and had knowingly participated in events orchestrated by terrorists belonging to that illegal organisation, were not backed up by any evidence. Numerous witnesses had testified that the crowd had been composed of men, women and children and that only the security forces had opened fire. Consequently, the Turkish State bore full responsibility for his son’s death. (b) The Government 67.", "The Government maintained that the demonstration of 4 March 1991 had quickly lapsed into insurrection and vandalism, owing to the presence of masked PKK terrorists who had fired at random, using women and children as a human shield. The demonstrators had been ordered to stop by means of a loudspeaker announcement, but at the instigation of these terrorists they had not done so. When some people realised that they were not attending a funeral (see paragraph 17 above) but rather taking part in a mass assault on public buildings and the security forces, they had tried to leave the demonstration, but had been prevented from doing so by the terrorists. The report on the incidents, the report on the official investigation and the discontinuation order made by the Administrative Council on 18 October 1991 all showed that it had been a violent demonstration, and that shots had been fired at the security forces. The applicant’s son and another person had been killed, fifteen other civilians and twenty-four members of the security forces had been wounded; many non-military buildings, both private and public, had been damaged.", "The autopsy carried out on the deceased confirmed that, as the bullet that caused death had followed a horizontal trajectory, it had come from a levelled weapon and had ricocheted off a solid surface – such as a wall. A number of spent Kalashnikov cartridges found at the incident scene proved that the applicant’s son had been killed by a shot fired from a Kalashnikov rifle (a weapon used exclusively by the terrorists). If the bullet had been fired by the Condor armoured vehicle, as the applicant alleged, it would have to have followed a downward trajectory, since the gun carried by the Condor was mounted on its turret, at least 220 cm above the ground. Moreover, if such a weapon had been used against the crowd, it would certainly have claimed many more victims. The witness statements heard by the Commission’s delegation simply indicated that the armoured vehicle had fired in the air to disperse the demonstrators, not to return fire from the terrorists hiding among them.", "The level of force used to restore public safety could not therefore be criticised. Faced with a serious situation obliging them to intervene to put a stop to acts of violence, the gendarmes had used the means at their disposal in such a way as to try to avoid loss of life. (c) The Commission 68. After conducting an investigation on the spot and hearing oral evidence in Strasbourg, the Commission concluded that it had been established that the armoured vehicle had opened fire in the main street, where the demonstration was taking place, either in the air or at the ground, in order to disperse the demonstrators, and that Ahmet Güleç had been hit by a fragment of a bullet fired from that vehicle that had ricocheted off the ground or a wall. However, the Commission did not believe that the machine gun, a combat weapon with a very rapid rate of fire, had been used to kill demonstrators intentionally.", "It accepted that the form the demonstration had taken was such that it could be described as a riot within the meaning of Article 2 of the Convention, but expressed the view that the use of a combat weapon during a demonstration for the purpose of restoring order could not be regarded as proportionate. 2. The Court’s assessment 69. The Court has been given two contradicting versions of the events of 4 March 1991. According to its settled case-law, the establishment and verification of the facts are primarily a matter for the Commission (Articles 28 § 1 and 31 § 1 of the Convention).", "While the Court is not bound by the Commission’s findings of fact and remains free to make its own appreciation in the light of all the material before it, it is only in exceptional circumstances that it will exercise its own powers in this area (see the Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2272, § 38, the Aydın v. Turkey judgment of 25 September 1997, Reports 1997-VI, pp. 1888–89, § 70, the Menteş and Others v. Turkey judgment of 28 November 1997, Reports 1997-VIII, pp. 2709–10, § 66, and the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, p. 321, § 75). 70. The file on the present case has not revealed any reason to cast doubt on the establishment of the facts as set out in the Commission’s report.", "As the Commission rightly pointed out, the demonstration was far from peaceful, as was evidenced by the damage to moveable and immoveable property in the town and the injuries sustained by some gendarmes. Confronted with acts of violence which were, admittedly, serious, the security forces, who were not present in sufficient strength, called for reinforcements, and at least two armoured vehicles were deployed. Whereas the driver of the Condor, warrant-officer Nazım Ayhan, asserted that he had fired into the air, several witnesses, including some of the leading citizens of the town, said that shots had been fired at the crowd. Although this allegation was categorically denied by the Government, it is corroborated by the fact that nearly all the wounded demonstrators were hit in the legs; this would be perfectly consistent with ricochet wounds from bullets with a downward trajectory which could have been fired from the turret of an armoured vehicle. 71.", "The Court, like the Commission, accepts that the use of force may be justified in the present case under paragraph 2 (c) of Article 2, but it goes without saying that a balance must be struck between the aim pursued and the means employed to achieve it. The gendarmes used a very powerful weapon because they apparently did not have truncheons, riot shields, water cannon, rubber bullets or tear gas. The lack of such equipment is all the more incomprehensible and unacceptable because the province of Şırnak, as the Government pointed out, is in a region in which a state of emergency has been declared, where at the material time disorder could have been expected. 72. As to the question whether there were armed terrorists among the demonstrators, the Court notes that the Government produced no evidence to support that assertion.", "In the first place, no gendarme sustained a bullet wound either in the place where the applicant’s son died or in other places passed by the demonstration. Secondly, no weapons or spent cartridges supposed to have belonged to PKK members were found on the spot. Moreover, prosecutions brought in the Diyarbakır National Security Court against the owners of thirteen rifles confiscated after the incidents, from which spent cartridges had been collected by the security forces, ended in acquittals, because the defendants had not taken part in the events in issue (see paragraph 8 above). 73. In conclusion, the Court considers that in the circumstances of the case the force used to disperse the demonstrators, which caused the death of Ahmet Güleç, was not absolutely necessary within the meaning of Article 2.", "B.The investigation conducted by the national authorities 1. Arguments of the participants in the proceedings (a) The applicant 74. The applicant asserted that those responsible for his son’s death had been protected by their superiors during the administrative inquiry. Firstly, investigating officer Kurt had not made a list of the names of the gendarmes who had opened fire from the armoured vehicle. Secondly, the discontinuation order made by Şırnak Provincial Administrative Council, and upheld on 13 November 1991 by the Supreme Administrative Court, on the ground that it had not been possible to identify those responsible, was not at all pertinent, since the complaint of 5 April 1991 had been lodged against Mustafa Karatan.", "The right to life was one of the most important Convention rights, and the Government had failed to fulfil its obligation to protect it by not bringing proceedings in the courts against the offender whenever anyone infringed it. (b) The Government 75. The Government replied that if there had been the slightest prima facie evidence, the Administrative Council would have decided to prosecute. In any event, the Regional Administrative Court, a judicial body which had a legal duty to review all discontinuation orders made by administrative councils, would have set aside the order and ordered the prosecution of the suspects. In the last two years administrative councils had brought criminal proceedings in 4,955 cases.", "During the same period, the Regional Administrative Courts and the Supreme Administrative Court, two courts composed of professional judges who could not be removed from office, had set aside no fewer than 439 discontinuation orders. As regards the lack of a public hearing during the review procedure, the Government submitted that, even if the law provided for a hearing, the court concerned would uphold the administrative council’s conclusion, since this reflected the truth as established on the basis of the evidence obtained during the investigation. In conclusion, it could not be argued that the right to life had been infringed because there were no remedies or because existing remedies were ineffective, unavailable and inaccessible. (c) The Commission 76. In the Commission’s view, the authorities responsible for the investigation lacked the requisite independence and impartiality.", "The two investigating officers appointed by the Provincial Governor, Celal Uymaz and Osman Kurt, were gendarmerie officers and the hierarchical superiors of the gendarmes whose conduct they had to investigate. As to the Administrative Council, it was composed of the District Commissioner and senior civil servants of the provincial administration, all under the orders of the Provincial Governor, who was in charge of the local gendarmerie. In the present case, there had been not only a lack of objective impartiality as defined in the Court’s case-law, but also of subjective impartiality. Certain phrases in investigating officer Kurt’s report, to the effect that the applicant had made “gratuitous and inopportune accusations against Major M. Karatan, who was simply obeying orders” and that “[t]he fact that the major has been made the target of the accusations …, reveals an ideological outlook and a complete lack of objectivity”, scarcely reflected an objective attitude and a determination to investigate the accusations against the gendarmes seriously. Analysing a number of aspects of the way in which the investigation was conducted in the present case, the Commission noted several serious shortcomings and expressed the opinion that Article 2 had been breached as regards its procedural implications also.", "2. The Court’s assessment 77. The general legal prohibition of arbitrary killing by the agents of the State laid down in Article 2 would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protect the right to life under this provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State (see the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, p. 50, § 169, and the Kaya judgment cited above, p. 324, § 86).", "78. The procedural protection for the right to life inherent in Article 2 of the Convention means that agents of the State must be accountable for their use of lethal force; their actions must be subjected to some form of independent and public scrutiny capable of determining whether the force used was or was not justified in a particular set of circumstances (see, most recently, the Kaya judgment cited above, p. 324, § 87). 79. The Court observes that the Government blamed the PKK for Ahmet Güleç’s death. In the first place, the report on the incidents drawn up by the commanding officers of the gendarmerie, the İdil police and the army indicates that the security forces were convinced that this death was the result of a “shot fired by armed troublemakers who had mingled with the demonstrators” (see paragraph 17 above).", "Similarly, in its letter of 14 June 1991 replying to the İdil District Commissioner’s letter of 12 June, the gendarmerie asserted without any reservation that the demonstration had been “organised by terrorist militants from the PKK” and that “the infiltration of armed militants among the people and the use of weapons during the demonstration show how serious the situation was” (see paragraph 23 above). This same document also reveals the lack of cooperation by the gendarmerie, which announced that it could not supply the names of the soldiers who had been on board the armoured vehicle. The investigating officer does not seem to have had any doubt about the official version of events when, in his inquiry report, he maintained, inter alia, that the victim’s father had made “gratuitous and inopportune accusations against Major M. Karatan” which revealed “an ideological outlook and a complete lack of objectivity”. He maintained that the security forces had not aimed at the citizens or returned fire from the crowd, and that they had twice as many wounded as the demonstrators. On that basis he argued that it was impossible “to determine who was responsible for the incidents” (see paragraph 27 above).", "In addition, investigating officer Kurt merely interviewed a few people without bothering to summon warrant-officer Ayhan or other witnesses, such as Cüda Demir. The Court considers that the statements of the two last-mentioned witnesses are of fundamental importance, since Mr Ayhan was the driver of the Condor and Ms Demir was standing at the applicant’s son’s side when he was hit by the bullet fragment which caused his death. A reconstruction of the events would have made it possible to determine the trajectory of the bullet fragment and the position of the weapon that had fired it. Similarly a metallurgical analysis of the fragment would have made it possible to identify its maker and supplier, and consequently the type of weapon used. Furthermore, no one seems to have taken any interest in the source of the bullet which passed through Ahmet Güleç’s body, following a downward trajectory, which is perfectly consistent with fire having been opened from the Condor’s turret.", "80. The Court further observes that Şırnak Provincial Administrative Council decided, on 18 October 1991, that there was no case to refer to the criminal courts, on the ground that it was “not possible on the basis of the evidence on the case file to identify who had killed and injured the victims” (see paragraph 28 above). Such a conclusion cannot be accepted, regard being had to the subjectivity shown by investigating officer Kurt and the nature of the administrative authority concerned, which was chaired by the Provincial Governor (who appointed the investigating officers and was in charge of the local gendarmerie) or his deputy, and composed of local representatives of the executive (the Director of Public Health and the Director of Agriculture, for example). Subsequently, on 13 November 1991, the Supreme Administrative Court noted that the Administrative Council had made a discontinuation order. Consequently, “[s]ince those responsible for the deaths and woundings [were] unknown”, it was “impossible [for the court] to look into the case and give judgment” (see paragraph 29 above).", "81. Loss of life is unfortunately a frequent occurrence in south-east Turkey in view of the security situation there (see the above-mentioned Kaya judgment, p. 326, § 91). However, neither the prevalence of violent armed clashes nor the high incidence of fatalities can displace the obligation under Article 2 to ensure that an effective, independent investigation is conducted into deaths arising out of clashes involving the security forces, or, as in the present case, a demonstration, however illegal it may have been. 82. That being so, the Court, like the Commission, concludes that the investigation was not thorough nor was it conducted by independent authorities.", "What is more, it was conducted without the participation of the complainant, who did not receive notice of the order of 18 October 1991 or the decision of 13 November 1991. C.Conclusion 83. Consequently, there has been a breach of Article 2 of the Convention on account of the use of disproportionate force and the lack of a thorough investigation into the circumstances of the applicant’s son’s death. III.application of Article 50 of the Convention 84. Under Article 50 of the Convention, “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.” A.Damage 85.", "The applicant claimed 400,000 French francs (FRF) for pecuniary damage and FRF 100,000 for non-pecuniary damage. His son Ahmet, who was a senior-high-school pupil and the family’s eldest child, worked after school. His death had deprived the applicant of valuable financial support and had caused him very great distress. 86. The Government asked the Court to dismiss these claims, arguing that there had been no breach of the Convention.", "The finding of a violation, if that were the Court’s decision, would be sufficient to make good the non‑pecuniary damage, but no sum should be awarded for pecuniary damage. 87. The Delegate of the Commission did not express an opinion. 88. The Court notes that the applicant has not proved that he suffered the pecuniary loss he alleged.", "Accordingly, it is not appropriate to award compensation. As to non-pecuniary damage, it notes that the applicant’s son died during a violent demonstration. However, having regard to the finding of a breach of Article 2, on account of the use of disproportionate force by the agents of the State and the shortcomings of the investigation into the death, the Court awards the applicant FRF 50,000. B.Costs and expenses 89. The applicant claimed FRF 238,000 for the costs and expenses he had incurred before the Convention institutions.", "The case had required lengthy, complex work. In addition, having commenced in 1991, it was still not concluded in Turkey. Long days of work had been spent on the hearings of witnesses in Ankara and Strasbourg. Three representatives and four advisers had accompanied Mr Kaplan throughout the proceedings before the Commission and the Court. The sum claimed was therefore reasonable.", "90. The Government considered that these costs should be borne by the applicant, as there had been no violation of the Convention in the present case. If the Court should decide to the contrary, no costs should be awarded, as an itemised bill had not been presented. 91. The Delegate of the Commission made no comment.", "92. The Court notes that the applicant obtained legal aid before the Commission (FRF 20,348) and later before the Court (FRF 16,351). Making an assessment on an equitable basis, the Court awards the applicant FRF 10,000, together with any value-added tax that may be chargeable. C.Default interest 93. The Court deems it appropriate to adopt the statutory rate of interest applicable in France at the date of adoption of the present judgment, which is 3.36% per annum.", "for these reasons, the court 1. Dismisses unanimously the Government’s preliminary objection; 2. Holds unanimously that there has been a breach of Article 2 of the Convention; 3. Holds by seven votes to two that the respondent State is to pay the applicant, within three months, 50,000 (fifty thousand) French francs for non-pecuniary damage; 4. Holds unanimously that the respondent State is to pay the applicant, within three months, 10,000 (ten thousand) French francs for costs and expenses, together with any value-added tax that may be chargeable; 5.", "Holds unanimously that these sums are to be converted into Turkish liras at the rate applicable on the date of settlement and that simple interest at an annual rate of 3.36% shall be payable on them from the expiry of the above-mentioned three months until settlement. 6. Dismisses unanimously the remainder of the claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 27 July 1998. Signed: Rudolf Bernhardt President Signed: Herbert Petzold Registrar In accordance with Article 51 § 2 of the Convention and Rule 53 § 2 of Rules of Court A, the joint partly dissenting opinion of Mr Gölcüklü and Mr Matscher is annexed to this judgment.", "Initialled: R. B.Initialled: H. P. JOINT PARTLY Dissenting opinion of JUDGES GÖLCÜKLÜ and matscher (Translation) We voted against the award of 50,000 French francs for non-pecuniary damage, in particular because the applicant’s son had been killed while deliberately taking part in an illegal and violent demonstration. Moreover, for reasons of principle, we disapprove of the award of compensation for non-pecuniary damage – irrespective of the amount – to the relatives of a victim, finding it rather unseemly to derive financial gain from the death of a relative, and we are not at all impressed by the astronomical sums claimed by the applicant. [1]Notes by the Registrar . The case is numbered 54/1997/838/1044. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number).", "The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission. [2]. Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.", "[3]. Note by the Registrar. For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is obtainable from the registry." ]

[ "FOURTH SECTION CASE OF KOSS v. POLAND (Application no. 52495/99) JUDGMENT STRASBOURG 28 March 2006 FINAL 28/06/2006 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 Koss v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG.", "Bonello,MrR. Maruste,MrS. Pavlovschi,MrL. Garlicki,MrJ. Borrego Borrego, judges,and MrsF.", "Elens-Passos, Deputy Section Registrar, Having deliberated in private on 7 March 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 52495/99) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Tadeusz Koss (“the applicant”), on 19 May 1999. 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. On 17 June 2003 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS A. Proceedings concerning the right of perpetual use 4.", "The applicant was born in 1936 and lives in Konstancin Jeziorna, Poland. 5. The applicant’s grandfather (“J.O.”) owned a plot of land and a house situated in the centre of Warsaw. During the Second World War the house was demolished. By virtue of the 1945 Decree on the Ownership and Use of Land in Warsaw (Dekret o własności i użytkowaniu gruntów na obszarze m. st. Warszawy) all land in Warsaw was nationalised.", "In 1948 J.O. asked the administrative authorities to grant him a right of temporary ownership (własność czasowa) of his plot. On 24 December 1951 the Board of the Warsaw National Council (Prezydium Rady Narodowej) dismissed his application. 6. On 6 August 1993 the applicant and other J.O.’s heirs filed with the Minister of Town and Country Planning (Ministerstwo Gospodarki Przestrzennej i Budownictwa) an application for the annulment of the decision of 1951.", "They also asked for a right of perpetual use (użytkowanie wieczyste) of the plot in question to be granted to them. On 27 February 1995 the Minister quashed the 1951 decision and remitted the case to the Mayor of Warsaw (Prezydent Miasta Warszawy) for re-examination. 7. By June 1996 the Mayor had not delivered any decision. On 4 June 1996 the applicant lodged with the Warsaw Self-Governmental Board of Appeal (Samorządowe Kolegium Odwoławcze) a complaint alleging inactivity on the part of the Mayor of Warsaw.", "8. On 31 July 1996 the Mayor stayed the proceedings until the applicant had submitted certain documents. On 13 August 1996, upon a further appeal by the applicant, the Board of Appeal quashed that decision. On 14 August 1996 the Board of Appeal ordered the Mayor to give a decision within 30 days. The Mayor failed to comply with this order.", "9. On 13 September 1996 the Mayor of Warsaw asked the Board of Appeal to extend the time-limit as he needed to obtain some additional documents. On 30 September 1996 the Mayor asked for an extension of the time-limit until 30 November 1996. 10. On 15 November 1996 the Mayor again stayed the proceedings, this time until the conclusion of other administrative proceedings.", "On 13 February 1997, upon the applicant’s appeal, the Board of Appeal quashed that decision and ordered the Mayor to proceed with the case. 11. On 11 March 1997 the Mayor refused the application for the grant of the right of perpetual use of the plot concerned. The applicant appealed. On 2 July 1997 the Board of Appeal set aside the first-instance decision and remitted the case.", "12. On 27 October 1997 the Mayor of Warsaw for the second time refused the application for the grant of the right of perpetual use. On 25 February 1998 the Board of Appeal again quashed this decision and remitted the case. 13. Meanwhile, on 5 August 1997 the applicant lodged a complaint with the Supreme Administrative Court (Naczelny Sąd Administracyjny), alleging inactivity on the part of the Mayor of Warsaw.", "On 12 October 1998 the Supreme Administrative Court delivered a judgment in which it ordered the Mayor to issue a decision within 30 days and awarded the applicant 5 PLN for costs and expenses. 14. On 14 December 1998 the Mayor stayed the proceedings until the conclusion of the administrative proceedings concerning the transfer of ownership to the Warsaw Municipality and the adoption of a local master plan (Miejscowy plan zagospodarowania przestrzennego). Upon the applicant’s appeal, the Board of Appeal upheld this decision on 23 April 1999. On 14 March 2000 the Supreme Administrative Court confirmed the decision of 14 December 1998 and dismissed the applicant’s further appeal.", "15. Subsequently, the applicant asked the Supreme Administrative Court to impose a fine on the Mayor of Warsaw. In its judgment of 6 December 1999 the Supreme Administrative Court dismissed his application. The court held that the Mayor had failed to comply with the judgment of 12 October 1998 for objectively justified reasons. The Mayor’s decision had depended on the conclusion of other administrative proceedings concerning the transfer of ownership to the Warsaw Municipality and the adoption of a local master plan.", "In addition, the court pointed out that, according to Section 31 § 4 of the 1995 Act, a party to proceedings who sustained damage as a result of a failure of the administrative body to act was entitled to claim compensation from the administrative authority concerned, according to principles of civil liability. 16. The proceedings were stayed and are thus pending before the Mayor of Warsaw. B. Relevant domestic law 1.", "Decree on the Ownership and Use of Land in Warsaw 17. The Decree on the Ownership and Use of Land in Warsaw of 26 October 1945 expropriated owners of real property located in Warsaw and transferred the ownership of land to the municipality of Warsaw. The 1945 Decree provided, in so far as relevant: “Section 7. (1) The owner of a plot of land ... can within six months after the taking of possession of the land by the municipality file a request to be granted ... the right to a perpetual lease (wieczysta dzierżawa) with a peppercorn rent (czynsz symboliczny). ... (2) The municipality shall grant the request if the use of the land by the former owner is compatible with its function set forth in the development plan (plan zabudowania).", "... (4) In case the request is refused, the municipality shall offer the person entitled, as long as it has spare land in its possession, a perpetual lease of land of equal value, on the same conditions, or the right to construct on such land. 5) In case no request, as provided for in paragraph (1), is filed, or the former owner is for any other reasons not granted a perpetual lease or the right to construct, the municipality is obliged to pay compensation pursuant to Article 9. Section 8. In case the former owner is not granted the right to a perpetual lease or the right to construct, all buildings located on the land shall become the property of the municipality, which is obliged to pay, pursuant to Article 9, compensation for the buildings which are fit to be used or renovated. Section 9.", "... (2) The right to compensation begins to apply six months after the day of taking the land into possession by the municipality of Warsaw and expires three years after that date. ...” 18. Pursuant to Article 33 § 2 of the Act on Local State Administration of 20 March 1950, the ownership of land located in Warsaw was assigned to the State Treasury. According to the Section 5 § 1 of the Law of 10 May 1990 the ownership of the land which had previously been held by the State Treasury and which was within the administrative territory of municipalities, was transferred to the latter. 2.", "Right of perpetual use 19. Under Article XXXIX of the Decree of 11 October 1946 introducing the Property Law (prawo rzeczowe) and the Law on Land and Mortgage Registers, the right to construct and the right to a perpetual lease could be transferred into temporary ownership (własność czasowa). Section 40 of the Law of 14 July 1961 on Administration of Land in Towns and Estates (Ustawa o gospodarce terenami w miastach i osiedlach) replaced temporary ownership with perpetual use (użytkowanie wieczyste). 20. The right of perpetual use is defined in Articles 232 et seq.", "of the Civil Code (Kodeks Cywilny). It is an inheritable and transferable right in rem which, for ninety-nine years, gives a person full benefit and enjoyment of property rights attaching to land owned by the State Treasury or municipality. It has to be registered in the court land register in the same way as ownership. The transfer of that right, like the transfer of ownership, can be effected only in the form of a notarised deed, on pain of its being void ab initio. The “perpetual user” (użytkownik wieczysty) is obliged to pay the State Treasury (or the municipality, as the case may be) an annual fee which corresponds to a certain percentage of the value of the land in question.", "3. Inactivity of the administrative authorities 21. Article 35 of the Code of Administrative Procedure (“the code”) of 1960 lays down time-limits ranging from 1 month to 2 months for dealing with a case pending before an administrative authority. If these time-limits have not been complied with, the authority must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new time-limit. Pursuant to Article 37 § 1, if the case has not been handled within the time-limits referred to in Articles 35 and 36, a party to administrative proceedings can lodge an appeal to the higher authority, alleging inactivity.", "In cases where the allegations of inactivity are well-founded, the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay. If need be, the authority may order that measures be applied to prevent such delays in the future. 22. On 1 October 1995 a new Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) came into force. According to the provisions of Article 17 of the 1995 Act, a party to administrative proceedings may, at any time, lodge with the Supreme Administrative Court a complaint about inactivity on the part of an authority obliged to issue an administrative decision.", "Article 26 of the Law provides: “When a complaint alleging inactivity on the part of an administrative authority is well-founded, the Supreme Administrative Court shall oblige that authority to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.” 23. Pursuant to Article 30 of the Law, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity is legally binding on the authority concerned. If the authority has not complied with the decision, the court may, under Section 31 of the 1995 Act, impose a fine on it and may itself give a ruling on the right or obligation in question. 24. Under the same provision, a party to the proceedings who sustains damage as a result of a failure of the administrative body to act in compliance with the judgment of the Supreme Administrative Court given under Article 17 of the Act, is entitled to claim compensation from the administrative authority concerned, according to principles of civil liability as set out in the Civil Code.", "Such a claim should be first lodged with that authority. A decision on the compensation claim should be taken by that administrative authority within three months. If the authority concerned fails to give a ruling in this respect within this time-limit, or if the party is not satisfied with the compensation granted, a compensation claim against the administrative body can be lodged with a civil court. 25. The 1995 Act was repealed and replaced by the Law of 30 August 2002 on Proceedings before Administrative Courts (“the 2002 Act”) which entered into force on 1 January 2004.", "Section 3 § 2 of the 2002 Act contains provisions analogous to Section 17 of the 1995 Act. A party to administrative proceedings can lodge a complaint about inactivity on the part of an authority obliged to issue an administrative decision with an administrative court. Under Section 149, if a complaint is well-founded, an administrative court shall oblige the authority concerned to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 26.", "The applicant complained that the length of the administrative proceedings in his case 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...” 27. The Government contested that argument. 28. The period to be taken into consideration began on 6 August 1993 and has not yet ended. It has thus lasted more than 12 years and 7 months.", "A. Applicability of Article 6 § 1 29. The applicability of Article 6 § 1 to the relevant proceedings has already been determined by the Court (cf. Potocka and Others v. Poland (dec.), no. 33776/96, 6 April 2000 unpublished). B. Admissibility 30.", "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. C. Merits 1. The applicant’s submissions.", "31. The applicant maintained that the overall length of the proceedings and, in particular, the long periods of inactivity on the part of the authorities could not be considered a “reasonable time” within the meaning of Article 6 of the Convention. He further submitted that there had been a violation of Article 6 § 1 of the Convention. 2. The Government’s submissions 32.", "The Government submitted that the case had been very complex as it involved complicated legal and factual issues. Furthermore, the Mayor of Warsaw could not have issued a decision concerning a right to perpetual use until the transfer of the ownership of that plot to the Warsaw Municipality had been completed. They further agreed that the applicant had not contributed to the length of the proceedings. Lastly, in view of the very complicated nature of the case the authorities had shown due diligence in the proceedings. 3.", "The Court’s assessment. 33. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII, Humen v. Poland [GC], no. 26614/95, 15 October 1999, § 60, Beller v. Poland no.", "51837/99, § 67-71, 1 February 2005 ). 34. The Court considers that even though the case involved a certain degree of complexity on account of the legal and factual issues involved in it cannot be said that this in itself justified the overall length of the proceedings. 35. As regards the conduct of the applicant, the Court observes that the Government acknowledged that the applicant had not contributed to the prolongation of the proceedings (see, paragraph 32 above).", "It does not see a reason to hold otherwise. 36. As regards the conduct of the authorities, the Court notes that there was a significant period of inactivity. In particular the proceedings have remained stayed since 14 December 1998 (see, paragraph 14 above). 37.", "The foregoing considerations are sufficient to enable the Court to conclude that the applicant’s case was not heard within a reasonable time. 38. There has accordingly been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 39.", "The applicant further complained under Article 13 about the lack of effective remedy in respect of the unreasonable length of administrative proceedings. This provision provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 40. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. The applicant’s submissions 41. The applicant argued that he made use of the remedies indicated by the Government but to no effect. He further claimed that despite the judgment of the Supreme Administrative Court of 12 October 1998 obliging the Mayor to issue a decision within 30 days the proceedings were still pending before the Municipality authorities.", "He therefore contended that there had been a violation of Article 13. 2 The Government’s submissions 42. The Government maintained that the applicant had at his disposal an effective remedy for his complaint concerning the length of administrative proceedings. With reference to Article 37 § 1 of the Code of Administrative Procedure they pointed out that if the case had not been handled within the time-limits set out in the Code, a party to the proceedings could lodge an appeal to the higher authority, alleging inactivity on the part of the administrative authority. In addition, under Article 17 of the 1995 Act a party to administrative proceedings may, at any time, lodge with the Supreme Administrative Court a complaint about inactivity on the part of an authority obliged to issue an administrative decision.", "Referring to the case of Futro v. Poland (Futro v. Poland (dec.), no. 51832/99, 3 June 2003) the Government concluded that the applicant had an effective remedy as required under Article 13 3. The Court’s assessment 43. The Court recalls that, in the context of Article 13 and remedies for excessive length of proceedings, it has already held that such a remedy, or the aggregate of remedies, in order to be “effective” must be capable either of preventing the alleged violation of the right to a “hearing within a reasonable time” or its continuation, or of providing adequate redress for a violation that had already occurred (see, mutatis mutandis, Kudła v. Poland, [GC], no. 30210/96, § 158 et seq, ECHR 2000-XI, Bukowski v. Poland (dec.), no.", "38665/97, 11 June 2002, unreported). 44. It has further held on several occasions that the combination of the remedies as advanced by the Government (see paragraph 40), could have enabled the applicant to put the issue of the length of the proceedings in question before the national authorities and to seek a decision terminating those proceedings “within a reasonable time” (see, Bukowski v. Poland and Futro v. Poland cited above, Grabinski v. Poland (dec.) no. 43702/02, 18 October 2005). 45.", "Turning to the facts of the present case the Court observes that the applicant did not contest the availability of the remedy relied on by the Government. He stated, on the other hand, that in his case this remedy had proved ineffective (see paragraph 41 above). 46. It is true that in the present case the Supreme Administrative Court confirmed that the proceedings had been indeed lengthy and ordered the Mayor to issue a decision within 30 days. However, subsequently, the Supreme Administrative Court altered its position and held that there had been reasons which had justified the delay in the proceedings conducted by the Mayor of Warsaw (see, paragraphs 13 and 15 above).", "47. Furthermore, the Court notes that the proceedings in the applicant’s case were stayed as they depended on the outcome of the other set of administrative proceedings (see paragraph 14 above). 48. In addition, under section 31 of the Supreme Administrative Court Act, a party to the proceedings who sustains damage as a result of a failure of the administrative body to act in compliance with the judgment of that court, is entitled to claim compensation from the administrative authority concerned, according to principles of civil liability as set out in the Civil Code. It appears that the applicant had not availed himself to this remedy.", "49. Having regard to the above the Court finds no reason to depart from its view expressed in the earlier decisions. 50. There has accordingly been no violation of Article 13 in the present case. III.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 51. The applicant lastly complained under Article 1 of Protocol No 1 about his prolonged inability to regain his rights to the property in question This provision provides as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 52.", "The Government claimed that this complaint should be rejected as being incompatible ratione materiae. They pointed to the fact that at the time of entry into force of Protocol No 1 the applicant had not had any property right with respect to the plot located in Warsaw. On that date, the plot had belonged to the Warsaw Municipality. Accordingly, the applicant’s action had not concerned his “existing possessions” and the applicant did not have the status of an owner. 53.", "The applicant objected to the Government’s submissions. 54. The Court observes that the applicant’s grandfather lodged an application for temporary ownership in 1948, but it was dismissed by a decision given in 1951. On 27 February 1995 the Minister of Planning and Construction quashed the decision refusing the application. As a result, the 1948 application for the grant of the right of perpetual use filed by the applicant’s grandfather has yet to be examined.", "55. It follows that the applicant has claims, in respect of which he can argue that he has at least a “legitimate expectation” of obtaining effective enjoyment of a property right (see, among other authorities, Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 83, ECHR 2001‑VIII), Therefore, his claims can be said to fall within the ambit of the provision relied on by him. 56. Accordingly, the Government’s preliminary objection should be dismissed.", "57. The Court further observes that this complaint is linked to the one under Article 6 of the Convention and must therefore likewise be declared admissible. B. Merits 58. The Court observes that the domestic proceedings to determine the applicant’s claim are currently pending before the Mayor of Warsaw.", "Therefore, in so far as the applicant relies on Article 1 of Protocol No. 1 to the Convention, the Court considers that it would be premature to take a position on the substance of this complaint. In so far as the applicant complains about the length of those proceedings, the Court considers that the Article 1 of Protocol No.1 complaint does not give rise to any separate issue (see, for example, Zanghì v. Italy, judgment of 19 February 1991, Series A no. 194-C, § 23, Di Pede v. Italy, judgment of 26 September 1996, Reports of Judgments and Decisions 1996-IV, p. 17, § 35; Beller v. Poland cited above § 74, Szenk v. Poland no. 67979/01, § 63, 22 March 2005).", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 59. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 60. The applicant sought an award of 125 000 euros in respect of pecuniary damage.", "He calculated that amount on the basis of the fact that he had not been able to use the property in question for a long period, in particular since 12 October 1998, that is to say the date of the judgment of the Supreme Administrative Court. He further claimed the sum of 50,000 euros for non-pecuniary damage that he had suffered as a result of the protracted length of the proceedings. 61. The Government submitted that the applicant’s claims were excessive. They further argued that there was no direct link between the pecuniary damage claimed and the alleged violation of the Convention.", "62. As regards the pecuniary damage, the Court’s conclusion, on the evidence before it, is that the applicant had 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, Kudla v. Poland [GC], § 164 cited above). 63. 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 be sufficiently 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 7,000 euros (“EUR”) under that head. B. Costs and expenses 64. The applicant did not seek to be reimbursed for any costs or expenses in connection with the proceedings before the Court. C. Default interest 65.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been no violation of Article 13 of the Convention; 4.", "Holds that there is no need to examine at this stage the complaint under Article 1 of Protocol No. 1; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 7,000 (seven thousand euros) in respect of non-pecuniary damage, to be converted into Polish zlotys at the rate applicable at the date of the settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 28 March 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Françoise Elens-PassosNicolas BratzaDeputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF ZENKOV v. RUSSIA (Application no. 37858/08) JUDGMENT STRASBOURG 30 April 2014 FINAL 30/07/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zenkov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Elisabeth Steiner,Khanlar Hajiyev,Paulo Pinto de Albuquerque,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 8 April 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "37858/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Andrey Anatolyevich Zenkov (“the applicant”), on 20 June 2008. 2. The applicant was represented by Mr A. Khinevich, a lawyer practising in the Amur Region. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicant alleged, in particular, that the conditions of his pre-trial detention had been incompatible with the standards set forth in the Convention, that his pre-trial detention had been unlawful, and that his ensuing claim for damages had been unsuccessful. 4. On 27 August 2010 the application was communicated to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1983 and lives in Blagoveshchensk.", "A. Criminal proceedings against the applicant 6. On 11 March 2006 the applicant was arrested on suspicion of fraud. On 12 March 2006 the Blagoveshchensk Town Court of the Amur Region authorised the applicant’s detention. As regards the reasons justifying applicant’s detention, the court noted as follows: “... [the applicant] is charged with moderately serious offences carrying a custodial sentence of up to five years.", "It can be seen from the materials submitted that [the applicant] is charged with offences committed by a group of people. In such circumstances, the court considers that, if at liberty, [the applicant] might abscond in order to evade justice, or fail to appear for questioning before the investigator or in court in order to obstruct the proceedings, and he might [also] put pressure on witnesses or destroy evidence.” 7. The applicant remained in custody pending the investigation and trial. His detention was extended on several occasions. 8.", "On an unspecified date the investigator reclassified the charges against the applicant to several counts of theft and robbery. 9. On 21 November 2006 the Town Court opened the trial against the applicant and seven other persons. 10. On 29 June 2007 the Town Court extended the pre-trial detention in respect of the applicant and four of the co-defendants until 21 October 2007.", "In particular, the court noted as follows: “Having heard the defence parties, who consider that the preventive detention imposed on [the defendants] can be replaced by a less strict measure, having studied the materials of the case-file, and having regard to the fact that [the defendants] are charged with grievous offences and moderately serious offences against property, the court does not consider that it is possible to [release the defendants pending trial].” 11. On 16 November 2007 the Town Court extended the pre-trial detention in respect of the applicant and the four other persons until 21 January 2008. The court reiterated verbatim its own reasoning from the detention order of 29 June 2007. The applicant appealed, alleging that from 21 October to 16 November 2007 he had been detained without a court order. 12.", "On 17 December 2007 the Town Court found the applicant guilty as charged and sentenced him to ten years’ imprisonment. 13. On 21 February 2008 the Amur Regional Court quashed the detention order of 16 November 2007 on appeal. The court acknowledged that the review by the Town Court of the applicant’s detention had been carried out more than three weeks late, in contravention of the applicable domestic rules of criminal procedure. The court further noted that, in view of the applicant’s conviction and the imposition of a ten-year sentence, he could not be released and there was no need to examine the issue of his pre-trial detention on the merits.", "14. On 31 July 2008 the Regional Court upheld, in substance, the applicant’s conviction on appeal and reduced his sentence to eight years’ imprisonment. The court quashed the applicant’s conviction in respect of one count of theft and remitted the matter for fresh consideration. 15. On 13 October 2008 the Town Court discontinued the criminal proceedings concerning one of the thefts allegedly committed by the applicant.", "The applicant did not appeal. 16. On 8 June 2009 the Presidium of the Regional Court carried out a supervisory review of the applicant’s conviction and reduced his sentence to seven years and six months’ imprisonment. 17. On 5 February 2010 the applicant was released on parole.", "B. Proceedings concerning compensation for unlawful detention 18. On 29 September 2008 the Town Court dismissed a claim by the applicant for damages in the amount of 150,000 Russian roubles (RUB) in respect of his allegedly unlawful detention from 21 October to 17 December 2007. In particular, the court noted as follows: “... in view of the fact that the period [of the applicant’s detention from 21 October to 17 December 2007] was set off against the period of the applicant’s sentence imposed by the final judgment, the court discerns no ground to find the applicant’s detention during the said period unlawful. Nor does the court find the applicant’s claim for non-pecuniary damage on account of [his] detention during the said period to be substantiated.", "Accordingly, the court dismisses the claim.” 19. On 19 November 2008 the Regional Court upheld the judgment of 29 September 2008 on appeal. 20. On 25 March 2010 the President of the Regional Court granted the applicant’s request for supervisory review of the judgments of 29 September and 19 November 2008. 21.", "On 19 April 2010 the Presidium of the Regional Court quashed the judgments of 29 September and 19 November 2008 by way of supervisory review and granted the applicant’s claims in part. Referring to the Convention and the relevant provisions of the Russian Civil Code, the court confirmed that, having been detained unlawfully, the applicant had a right to compensation, and awarded him RUB 15,000. In particular, it ruled as follows: “Given that it has been established that [the applicant] was unlawfully detained [from 21 October to 17 December 2007], and regard being had to the length of such unlawful detention, its subsequent offsetting against the period of imprisonment [the applicant] was sentenced to, and the lack of evidence of any deterioration in the [applicant’s] health resulting from his unlawful detention, the Presidium considers it appropriate to adopt a new judgment granting the applicant’s claim for damages in part and awarding him compensation in the amount of RUB 15,000.” C. Conditions of the applicant’s detention 22. From 11 March 2006 to 11 March 2008, from 19 February to 19 March 2009, and from 28 May to 20 August 2009 the applicant was detained in remand prison no. 28/1 in Blagoveshchensk.", "1. The description submitted by the Government 23. The Government’s submissions as regards the conditions of the applicant’s detention may be summarised as follows: Period of detention Cell no. Cell surface area (square metres) Number of beds Number of inmates From 11 March to 3 April 2006 209 12 2 2-4 From 4 April to 22 May 2006 31 49.2 22 20-31 From 23 May to 8 August 2006 215 18 4 2-6 From 9 August to 26 December 2006 98 8.5 3 1-4 From 27 December 2006 to 11 March 2008 31 49.2 22 17-31 From 19 February to 19 March 2009 31 49.2 22 14-22 From 28 May to 20 August 2009 237 18 4 1-4 24. According to the Government, the applicant was at all times provided with an individual bed and bedding, even though the personal space afforded to him was, on certain occasions, less than the statutory 4 square meters per person.", "The applicant was provided with three meals per day. The quality of the food was subject to the requisite quality control. 25. All the cells in the remand prison where the applicant was detained were equipped with forced ventilation. The ventilation system was in good working order.", "Natural ventilation was achieved by means of trickle vents in the windows. The temperature in the cells was between 18 and 24oC. The heating and water supply were in compliance with the applicable standards. The metal bars on the windows did not prevent access to daylight. The artificial lighting in the cells was in compliance with the applicable specifications and was on from 6 a.m. to 10 p.m. At night low‑voltage bulbs were used to maintain lighting in the cell.", "26. The toilet was located on a 35 cm-high platform in the corner of the cell. It was separated from the living area of the cell by a brick or metal screen 1.75 or 1.65 m high which ensured privacy. The distance between the toilet and the dining table was at least 1.5 metres. The closest sleeping place was located from 1 metre (cell no.", "98) to 2.45 metres (cell no. 209) away from the toilet. The distance between the toilet and the sleeping places or dining area was at least 1.6 meters. The cells were regularly cleaned and disinfected. 27.", "The applicant was allowed daily outdoor exercise. On average, the applicant was confined to his cell for 20-23 hours a day. 2. The description submitted by the applicant 28. The applicant did not contest the data submitted by the Government in respect of the measurements and population of the cells where he had been detained.", "He added that for 5 days in December 2006 and 15 days in May 2008 he had been detained in disciplinary cells nos. 49 and 61, where he was held in solitary confinement. 29. According to the applicant, he was not provided with an individual bed. The cells in the remand prison were dirty and infested with insects and mice.", "At times inmates suffering from tuberculosis were held in the cell. 3. The applicant’s complaint about the conditions of his detention in the remand prison 30. On an unspecified date the applicant complained to the regional prosecutor’s office that the conditions of his detention were appalling. In response to his complaint, the prosecutor’s office inspected the remand prison.", "31. On 31 October 2008 the prosecutor’s office informed the applicant that the irregularities found in the course of the inspection would be rectified. As regards the conditions of detention in the remand prison, the prosecutor summarised the inspection findings as follows: “The inspection found numerous violations of [the Federal Law on the detention of suspects and defendants charged with criminal offences] governing ... conditions of detention ... in remand prisons. The furnishing of the cells is not in compliance with statutory requirements. In some cells the number of tables, benches, cabinets for food storage, and sinks is insufficient in relation to the number of inmates.", "There is no artificial ventilation. Stands for drinking-water tanks and screens separating the toilet from the rest of the cell are missing. There is no radio. More than 40 per cent of the cells do not have wooden floors. Disinfection measures are not carried out to the full extent (extermination of bed bugs in disciplinary cells, extermination of cockroaches in the kitchen and bakery).", "The cells are infested with insects (bed bugs, cockroaches) ... Many cells require complete refurbishment (the walls and ceilings are covered with mould, the plaster is flaking off the walls and ceilings, there are numerous cracks). Because of the lack of forced ventilation the cells are humid; the air is stuffy and humid. Some cells are not equipped with a radio. The temperature is not in compliance with the applicable standards.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 32. The applicant complained that he had been detained in appalling conditions in remand prison no. IZ-28/1 in Blagoveshchensk, in contravention of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 33. The Government considered that the applicant had not been subjected to inhuman or degrading treatment in contravention of Article 3 of the Convention. The conditions of his detention in the remand prison had been in compliance with statutory standards as regards hygiene, heating and water supply.", "However, the Government conceded that the remand prison where the applicant had been detained had been overcrowded and the statutory requirement of 4 square metres per inmate had not always been complied with. 34. The applicant maintained his complaint. A. Admissibility 35. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 36. For an overview of the general principles, see the Court’s judgment in the case of Ananyev and Others (nos.", "42525/07 and 60800/08, §§ 139-59, 10 January 2012). 37. Turning to the circumstances of the present case, the Court observes that the parties disagreed as to certain aspects of the conditions of the applicant’s detention in remand prison no. IZ-28/1 in Blagoveshchensk during several periods between 11 March 2006 and 20 August 2009. 38.", "In this connection, the Court takes into account the Government’s admission that the remand prison was overcrowded and the personal space afforded to each inmate was on certain occasions below the statutory minimum of 4 square metres. 39. The Court further observes that, on the basis of the data submitted by the Government which was not contested by the applicant, the applicant was afforded no more than 3 square metres of personal space on average. Sometimes he had as little as 1.59 square metres of personal space (see paragraph 23 above). As a result of such overcrowding, the applicant’s conditions of detention did not meet the minimum standard laid down in the Court’s case-law (see, among many other authorities, Ananyev and Others, cited above, §§ 143-49).", "Furthermore, according to the information provided by the Government, sometimes the number of inmates held in the cell was greater than the number of sleeping places. Accordingly, the Court finds credible the applicant’s allegation that he was not provided with an individual bed. The applicant was confined to an overpopulated cell for 20‑23 hours per day. 40. These findings are sufficient for the Court to conclude that the problem of overcrowding had not been rectified by the authorities in the present case at the time of the applicant’s detention.", "The Court acknowledges that sometimes the number of inmates detained with the applicant decreased and the personal space afforded to each of them exceeded 3 square metres. The Court does not, however, regard such occasional fluctuations in the remand prison population as having an attenuating effect on the applicant’s situation as a whole. 41. Lastly, the Court takes into account the prosecutor’s response to the applicant’s complaint about the conditions of detention in the remand prison at the relevant time, which confirmed the applicant’s allegations that the cells where he was detained, and the remand prison as a whole, were in a deplorable state. It also notes that the Government did not proffer any explanation for the discrepancy between the prosecutor’s findings and the information contained in their observations.", "42. In the Court’s opinion, the conditions of the applicant’s detention must have caused him considerable mental and physical suffering that went beyond the threshold of severity under Article 3 of the Convention. There has therefore been a violation of the said Article on account of the inhuman and degrading conditions of the applicant’s detention in remand prison no. IZ-28/1 in Blagoveshchensk during several periods between 11 March 2006 and 20 August 2009. II.", "ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 43. The applicant complained under Articles 5 and 6 of the Convention that his pre-trial detention from 21 October to 16 November 2007 had been unlawful and that his ensuing claim for damages had been unsuccessful. The Court will examine the complaint under Article 5 of the Convention, which, in so far as relevant, reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (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; ... 5.", "Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. Admissibility 1. The parties’ submissions 44. The Government submitted that the applicant had lost his victim status. In their view, the Russian authorities had expressly acknowledged the violation of his rights under Article 5 and had awarded him commensurate compensation. In particular, they pointed out that on 21 February 2008 the Regional Court had quashed the detention order of 16 November 2007 on appeal.", "The court had recognised that the applicant’s detention had been reviewed belatedly, in contravention of the applicable domestic rules of criminal procedure. Subsequently, the Presidium of the Regional Court had granted in part the applicant’s civil claims concerning the unlawfulness of his pre-trial detention during the relevant period and had awarded him RUB 15,000. Alternatively, the Government submitted that the applicant’s complaints had been submitted belatedly and should be dismissed for his failure to comply with the six-month rule set out in Article 35 § 1 of the Convention. 45. The applicant considered his complaints admissible.", "2. The Court’s assessment (a) The applicant’s victim status 46. The Court reiterates that an applicant is deprived of his or her victim status if the national authorities have acknowledged, either expressly or in substance, and then afforded appropriate and sufficient redress for, a breach of the Convention (see, for example, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-93, ECHR 2006-V).", "(i) Whether the domestic authorities acknowledged the violation of the applicant’s rights 47. As regards acknowledgement of the violation of the applicant’s rights under Article 5 of the Convention, the Court notes that, as pointed out by the Government and not disputed by the applicant, on 21 February 2008 the Regional Court found that that the applicant’s pre-trial detention during the period under consideration had been unlawful. 48. Accordingly, the Court accepts that the Russian authorities acknowledged the violation of the applicant’s rights under Article 5 of the Convention. (ii) Whether the redress afforded was appropriate and sufficient 49.", "With regard to the second condition, namely appropriate and sufficient redress, the Court notes that the applicant received pecuniary compensation for the time spent in custody. 50. The first question is whether, in the circumstances, such redress was “appropriate”. The Court observes that it has previously examined this issue in an earlier case against Russia, where it found that monetary compensation for damage resulting from unlawful detention constituted “appropriate” redress for an applicant who, by the time he was awarded it, was no longer in detention (see Trepashkin v. Russia, no. 36898/03, §§ 71-72, 19 July 2007).", "The Court sees no reason to depart from such conclusion in the case under consideration. It accepts, accordingly, that the redress afforded to the applicant was appropriate. 51. As to the “sufficiency” of the redress, the Court’s task is to consider, on the basis of the material in its possession, what it would have done in the same position (see, mutatis mutandis, Scordino, cited above, § 211). 52.", "The Court observes that the Presidium of the Regional Court awarded the applicant RUB 15,000 (approximately EUR 380 at the time) in compensation for non-pecuniary damage on account of his unlawful detention from 21 October to 17 December 2007, that is, for a longer period than that under consideration in the present case. However, the Court notes that this amount is much lower than the amount it generally awards in similar Russian cases (compare, for example, Sergey Solovyev v. Russia, no. 22152/05, § 71, 25 September 2012, and Tarakanov v. Russia, no. 20403/05, § 63, 28 November 2013). That factor in itself constitutes a situation that is manifestly unreasonable having regard to the Court’s case‑law.", "53. The Court thus concludes that the redress afforded to the applicant was insufficient. Accordingly, the second condition has not been fulfilled. The Court considers that the applicant in the instant case can still claim to be a “victim” of the violation of Article 5 of the Convention. Therefore, this objection by the Government must be dismissed.", "(b) Application of the six-month rule 54. As regards the six-month rule set out in Article 35 § 1 of the Convention, the Court observes that the final decision concerning the lawfulness of the applicant’s pre-trial detention was taken by the Regional Court on 21 February 2008. Accordingly, by raising, in substance, the complaint under Article 5 § 1 (c) of the Convention in his first letter to the Court dispatched on 20 August 2008, the applicant complied with the six-month rule. The Government’s objection should therefore be dismissed. 55.", "The Court further notes that in his application form of 31 January 2009 the applicant raised an additional complaint about the domestic court’s dismissal of his claims for the damage which allegedly resulted from his unlawful detention. At the time, the final decision on the matter was that of the Regional Court of 19 November 2008 (which was subsequently quashed by way of supervisory review in 2010). Accordingly, no issue arises under the six-month rule in respect of the applicant’s complaint under Article 5 § 5 of the Convention. (c) Conclusion 56. Regard being had to the above, the Court finds that the complaints under Article 5 §§ 1 (c) and 5 of the Convention are not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention, and that they are not inadmissible on any other grounds.", "They must therefore be declared admissible. B. Merits Article 5 § 1 (c) (a) The parties’ submissions 57. The Government did not comment on the merits of the complaint. 58.", "The applicant maintained his complaint. (b) The Court’s assessment 59. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. However, the “lawfulness” of detention under domestic law is not always the decisive element. The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion.", "In particular, any ex post facto authorisation of pre‑trial detention is incompatible with the “right to security of person” as it is necessarily tainted with arbitrariness (see, among numerous authorities, Khudoyorov v. Russia, no. 6847/02, §§ 124 and 142, ECHR 2005‑X (extracts)). 60. Turning to the circumstances of the present case, the Court observes that on 16 November 2007 the Town Court authorised the applicant’s detention from 21 October to 16 November 2007 ex post facto. The Court further observes that on 21 February 2008 the Regional Court, when reviewing the relevant period of the applicant’s pre-trial detention, recognised that it had been authorised belatedly, in contravention of the applicable domestic rules of criminal procedure.", "61. Having regard to its well-established case-law on the issue and the circumstances of the present case, the Court does not see any reason to disagree with the findings of the domestic judicial authorities. It follows that the applicant’s pre-trial detention from 21 October to 16 November 2007 was not “lawful” under domestic law. There has, accordingly, been a violation of Article 5 § 1 (c) of the Convention. In these circumstances, the Court does not find it necessary to examine separately the applicant’s grievances under Article 5 § 5 of the Convention.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 62. The applicant further complained of other violations, referring to Articles 3, 5 and 6 of the Convention and to Article 3 of Protocol No. 7. 63.", "The Court has examined these complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 64. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 65. The applicant claimed 540,000 euros (EUR) in respect of non‑pecuniary damage. 66. The Government considered the applicant’s claim excessive. 67.", "The Court accepts the Government’s argument that the applicant’s claim is excessive. Nevertheless, it considers that the applicant’s suffering and frustration resulting from the infringement of his rights cannot be sufficiently compensated for by the finding of a violation alone. Making its assessment on an equitable basis, the Court awards the applicant EUR 11,700 in respect of non-pecuniary damage. B. Costs and expenses 68.", "The applicant did not submit any claims for costs and expenses. Accordingly, the Court makes no award under this head. C. Default interest 69. 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-28/1 in Blagoveshchensk and the alleged unlawfulness of his pre-trial detention from 21 October to 16 November 2007 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention; 3. Holds that there has been a violation of Article 5 § 1 (c) of the Convention; 4. Holds that there is no need to examine the complaint under Article 5 § 5 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 11,700 (eleven thousand seven hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above 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 30 April 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]

[ "FOURTH SECTION CASE OF CZYŻ v. POLAND (Application no. 21796/05) JUDGMENT STRASBOURG 11 February 2014 This judgment is final but it may be subject to editorial revision. In the case of Czyż v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Ledi Bianku, President,Paul Mahoney,Krzysztof Wojtyczek, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 21 January 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 21796/05) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Ms Elzbieta Czyż (“the applicant”), on 13 May 2005.", "2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 3. The applicant alleged, in particular, that the ex officio reopening of the social security proceedings concerning her right to an early-retirement pension, which resulted in the quashing of the final decision granting her a right to a pension, was in breach of Article 1 of Protocol No. 1 to the Convention.", "4. On 20 May 2010 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1953 and lives in Mielec.", "6. The applicant is married and has three children. Prior to her early retirement she had been employed and had paid her social security contributions to the State. A. Proceedings concerning the grant and the revocation of an EWK pension 7.", "On 25 October 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension. 8. Along with her application for a pension, the applicant submitted, among other documents concerning her daughter’s health condition, a medical certificate issued by a specialist doctor on 8 October 2001. The certificate stated that the child (born in 1992) suffered from chronic asthma and that she was in need of her parent’s constant care. 9.", "On 6 December 2001 the Rzeszów Social Security Board issued a decision granting the applicant the right to an early retirement pension. 10. The Social Security Board suspended the payment of the pension due to the fact that the applicant was still working on the date of the decision. 11. On 30 June 2002 the applicant’s employment was dissolved by a mutual consent of the parties.", "12. Consequently, on 29 July 2002 the Rzeszów Social Security Board decided to start payment of the retirement pension starting from 1 August 2002. 13. On 17 July 2002 the Rzeszów Social Security Board had asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s daughter required the permanent care of a parent. The doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care.", "14. On 30 July 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. 15. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. It follows that the applicant was never paid the pension.", "By virtue of the other decision, the Social Security Board revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an early retirement pension under the scheme provided for by the 1989 Ordinance. 16. The applicant appealed against the respective decisions divesting her of the right to an early-retirement pension. She submitted that she should receive the benefit because her child required constant care, as confirmed by the medical certificate attached to the original application for a pension. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights.", "17. On 29 December 2003 the Rzeszów Regional Court dismissed the applicant’s appeal. 18. The applicant appealed against the first-instance judgment. 19.", "On 2 June 2004 the Rzeszów Court of Appeal dismissed the applicant’s further appeal. The domestic court held that the applicant had been rightfully divested of her right to a pension under the scheme provided by the 1989 Ordinance as she had not satisfied the requirement of necessary permanent care. 20. A professional lawyer, who had been either hired by the applicant or appointed to represent her under a legal-aid scheme, prepared and lodged a cassation appeal against the second-instance judgment on the applicant’s behalf. 21.", "On 14 December 2004 the Supreme Court refused to examine the cassation appeal. B. The applicant’s financial situation 22. The applicant’s pension was revoked one day before the planned first payment. It follows that she never received any payment of the granted early retirement.", "23. According to the Government’s submissions, after the revocation of her pension, the applicant worked between 16 December 2004 and 31 May 2005 on the basis of a civil law contract. On 31 May 2005 she started working on the basis of an employment contract and she is still working on a permanent basis. 24. The Government also submitted that the applicant’s gross annual income amounted to approx.", "39% of the average brut salary in Poland in 2002 (10,063 Polish zlotys [PLN], approx. 2,472 euros [EUR]), 0.41% in 2004 (PLN 112, approx. EUR 25), 27% in 2005 (PLN 7,754, approx. EUR 1,929), 36% in 2006 (PLN 10,739, approx. EUR 2,760), 35% in 2007 (PLN 11,951, approx.", "EUR 3,162), 40% in 2008 (PLN 14,476, approx. EUR 4,124), 76% in 2009 (PLN 28,471, approx. EUR 6,590) and 77% in 2010 (PLN 7,610, approx. EUR 1,907). In 2003 the applicant had no income.", "25. Additionally, on 1 December 2008 the applicant became eligible for an early retirement pension not connected with the state of health of her child. The pension amounted to PLN 1,102 net (approx. EUR 263). It follows that as of 1 December 2008 the applicant’s income consisted of both her salary and the early retirement pension.", "26. The applicant submitted that she could not terminate her employment contract earlier than on 30 June 2002 because she had to train a new employee who would replace her at work and because of her financial commitments towards the employer. As regards her financial situation she submitted that the income in the period directly following the revocation of her pension and the following two years was “close to zero”. She also submitted a copy of the decision of 20 December 2004 issued by the Mielec Social Care Centre (Ośrodek Pomocy Społecznej) granting her a social care benefit for persons whose income per family member fell below the statutory threshold; according to the reasoning of the decision the applicant’s family’s income at the relevant time amounted to PLN 934.84 (approx. EUR 206); the income per member of the applicant’s family thus amounted to PLN 186.97 (approx.", "EUR 41). At the relevant time the threshold which enabled the applicant to claim the social care benefit was PLN 316 (approx. EUR 70) of income per family member. 27. The applicant further submitted two calls for payment addressed to her and issued by the Mielec Housing Cooperative on 18 September 2002 and on 19 May 2005 confirming that she had debt resulting from unpaid rent which amounted to PLN 1,656.65 (approx.", "EUR 407) and PLN 2,124.86 (approx. EUR 525) respectively. 28. The Government also submitted that the applicant’s husband had worked between 7 May 1999 and 29 March 2004, that her son W.C. had worked between 7 April 2000 and 31 December 2002 and her other son T.C. had worked as an adolescent employee between 1 January 1999 and 30 June 2001 and, subsequently, on the basis of an employment contract as of 18 August 2008.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 29. The legal provisions applicable at the material time and questions of practice are set out in the judgments in the case of Moskal v. Poland, no. 10373/05, §§ 31–34, 15 September 2009 and Antoni Lewandowski v. Poland, no. 38459/03, §§ 36–43, 2 October 2012).", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 30. The applicant complained that divesting her, in the circumstances of the case, of her acquired right to an early-retirement pension amounted to an unjustified deprivation of property. This complaint falls to be examined under Article 1 of Protocol No.", "1 to the Convention, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 1. The Government’s preliminary objections (a) Non-compliance with the six-month time requirement (i) The Government 31. The Government argued that the applicant had not complied with the six-month time requirement, as required by Article 35 § 1 of the Convention.", "32. They submitted that the final decision in the present case given by the Supreme Court on 14 December 2004 had been served on the applicant on 18 January 2005, the applicant signed her application form on 30 June 2005 and the application form was served on the Court on 29 July 2005. It follows, in the Government’s view, that it is doubtful whether the date entered by the applicant on the form is correct. 33. The applicant submitted that she had complied with the six-month time requirement.", "She produced a copy of the letter from the Court dated 17 June 2005 which she had received as a reply to her first letter in which she had raised the substance of her complaint. 34. The Court notes that indeed the applicant’s first letter in which she had raised the substance of her complaints was sent by the applicant on 13 May 2005 and served with the Court on 19 May 2005. The final domestic decision was given by the Supreme Court on 14 December 2004 and served on the applicant on 18 January 2005. If follows that less than six months passed between the final domestic decision and lodging of the present application with the Court.", "Therefore, the Government’s objection as regards non-compliance with the six-month time-limit must be dismissed. (b) Incompatibility ratione materiae and ratione personae with the Convention 35. The Government further submitted that the present application should be considered incompatible ratione materiae and ratione personae with the Convention because it concerned rights and freedoms which were not guaranteed by the Convention and because the applicant could not claim to be a victim of a violation of the Convention within the meaning of its Article 34. 36. The Court has already examined the Government’s objection as regards the alleged incompatibility ratione materiae of the “EWK” applications and dismissed it (see Moskal, cited above, §§ 38-45).", "It sees no reason to depart from its previous finding. 37. As regards the Government’s objection concerning the alleged incompatibility ratione personae with the Convention, the Court notes that the “EWK” pension in question had been granted personally to the applicant and that, following the revocation of the pension, the applicant was involved in the judicial proceedings complained of as a party. In any event, the Court has already examined a number of “EWK” applications and found, at the admissibility stage of their examination that they were not manifestly ill-founded or inadmissible on any other grounds (see among many other authorities, Antoni Lewandowski, cited above, §72, Lasota v. Poland, No. 6762/04, § 54, 2 October 2012).", "It follows that the Government’s objection concerning the inadmissibility ratione personae of the application must be dismissed. (c) Further preliminary objections 38. The Government also submitted that the applicant should have made an application to the Constitutional Court, challenging the compatibility of the relevant social security provisions with the Constitution. They further argued that the present application constituted an abuse of the right to individual petition. 39.", "The Court has already examined identical objections regarding non‑exhaustion as regards the applicant’s failure to lodge a constitutional complaint and abuse of the right to individual petition and dismissed them, in the follow‑up cases to Moskal (see, for instance, Antoni Lewandowski, cited above, §§ 54-72, Potok v. Poland, no. 18683/04, §§ 36-44, and Lew v. Poland, no. 34386/04, §§ 56‑62, 4 December 2012). It sees no reason to depart from its previous findings. 2.", "Conclusion on admissibility 40. The Court also notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The parties’ submissions (a) The applicant 41. The applicant submitted that divesting her, in the circumstances of the case, of her acquired right to an early-retirement pension had amounted to an unjustified deprivation of property. (b) The Government 42. The Government claimed that the interference with the applicant’s property rights had been lawful and justified.", "In particular, divesting the applicant of her right to the early-retirement pension had been provided for by law and was in the general interest. There was also a reasonable relationship of proportionality between the interference and the interests pursued. 2. The Court’s assessment 43. The Court notes at the outset that the applicant’s right to early retirement had its basis in the Social Security Board’s final decision of 6 December 2001.", "The payment was suspended because of the applicant’s employment (see paragraph 10 above). However, as soon as the applicant’s employment contract expired, the retirement right was confirmed again by the Social Security Board’s decision of 29 July 2002 in which the Board decided to start payment of the pension on 1 August 2002 (see paragraph 12 above). The Court considers that the decisions referred to above which granted and confirmed the applicant’s right amounted to “possessions” within the meaning of Article 1 of Protocol No. 1 (see Czajkowska and Others v. Poland, no. 16651/05, §§ 50-51, 13 July 2010).", "It follows that Article 1 of Protocol No. 1 is applicable in the present case. (a) General principles 44. The relevant general principles are set out in the Moskal judgment, cited above, paragraphs 49-52. The Court would nevertheless reiterate that any interference by a public authority with the peaceful enjoyment of possessions should be lawful and must pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (see Moskal, cited above, §§ 49 and 50).", "(b) Application of the above principles to the present case (i) Whether there has been an interference with the applicant’s possessions 45. The parties did not dispute that the decisions of the Rzeszów Social Security Board of 30 July 2002, subsequently validated by two court instances (the regional court and the court of appeal), which deprived the applicant of the right to receive the EWK pension, amounted to an interference with her possessions within the meaning of Article 1 of Protocol No. 1 to the Convention. The Court sees no reason to hold otherwise. (ii) Lawfulness of the interference and legitimate aim 46.", "As in the Moskal case the Court considers that this interference was provided for by law and pursued a legitimate aim, as required by Article 1 of Protocol No. 1 to the Convention (see Moskal, cited above, §§ 56, 57 and 61–63 and also Iwaszkiewicz v. Poland, no. 30614/06, §§ 47, 48, 26 July 2011). (iii) Proportionality 47. In the instant case, a property right was generated by the favourable evaluation of the applicant’s dossier attached to the application for a pension, which was lodged in good faith, and by the Social Security Board’s recognition of the right (see paragraphs 7-9 above).", "48. It must be stressed that the delay with which the authorities reviewed the applicant’s dossier was relatively long. The decision of 6 December 2001 was left in force for eight months before the authorities became aware of their error. On the other hand, as soon as the error was discovered the decision to discontinue the payment of the benefit was issued relatively quickly and with immediate effect (see paragraphs 14 and 15 above). Even though the applicant had an opportunity to challenge the Social Security Board’s decision of 30 July 2002 in judicial review proceedings, her right to the pension was eventually determined by the courts almost two and a half years later (see paragraphs 17-21 above).", "49. In examining the conformity of these events with the Convention, the Court reiterates the particular importance of the principle of good governance. It requires that where an issue pertaining to the general interest is at stake, especially when it affects fundamental human rights, including property rights, the public authorities must act promptly and in an appropriate and above all consistent manner (see Beyeler v. Italy [GC], no. 33202/96, § 120, ECHR 2000 I; Öneryıldız v. Turkey [GC], no. 48939/99, § 128, ECHR 2004 XII; Megadat.com S.r.l.", "v. Moldova, no. 21151/04, § 72, 8 April 2008; and Rysovskyy v. Ukraine, no. 29979/04, § 71, 20 October 2011). It is desirable that public authorities act with the utmost care, in particular when dealing with matters of vital importance to individuals, such as welfare benefits and other such rights. In the present case, the Court considers that having discovered their mistake, the authorities failed in their duty to act speedily and in an appropriate and consistent manner (see Moskal, cited above, § 72).", "50. Moreover, in the Court’s opinion, the fact that the applicant was not paid the pension is not decisive for the assessment of proportionality of the interference in her property rights. The right was granted to her by means of a final administrative decision (see paragraph 9 above) and she had the reasonable basis to expect when consenting to the expiration of her employment contract that once the contract expired, the payment of the pension would start. Moreover, the payment was confirmed by the Social Security Board’s decision of 29 July 2002 issued immediately after the expiry of the applicant’s employment (see paragraph 12 above). As a result of the impugned measure, the applicant was faced, without any transitional period enabling her to adjust to the new situation, with the total loss of her right to early retirement pension, which – if not revoked - would constitute her only source of income after the expiry of her employment.", "The Court notes that following the revocation of the pension, the applicant did not work for two and a half years (see paragraphs 15 and 23 above). Subsequently, between 16 December 2004 and 31 May 2005 she worked on the basis of a civil law contract and only after 31 May 2005 did she manage to find a permanent job. The Government admitted in their observations that the applicant had had no income at all in 2003 and that her income in 2004 had amounted to EUR 25 (see paragraph 24 above). The applicant’s difficult financial situation is also confirmed by the fact that in 2004 she was granted a social care benefit for persons whose family income was below the established statutory level (see paragraph 26 above). 51.", "The Government submitted that the applicant’s husband and sons had worked at the relevant time. However, the Court considers that this fact is not decisive for the matter at hand, namely whether the revocation of the EWK pension placed an excessive burden on the applicant as an individual in her own right irrespective of third-party financial support. 52. In view of the above considerations, the Court does not see any reason to depart from its ruling in the leading case concerning EWK pensions, Moskal v. Poland, and finds that in the instant case a fair balance has not been struck between the demands of the general interest of the public and the requirements of the protection of the individual’s fundamental rights and that the burden placed on the applicant was excessive. 53.", "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 54. Lastly, the applicant complained of an alleged violation of Article 14 of the Convention, without further explanation.", "55. The Court has already examined the complaint under Article 14 of the Convention in the context of “EWK” pensions (see, Moskal, cited above §§ 100–101). It found that even if there had been a difference in the treatment of “EWK” pensioners in the Podkarpacki region, and particularly the applicant, it could not be excluded that such a difference may have resulted from the more efficient practices implemented by the local social security authority for verifying pension applications as compared to other regions. In particular, there was no evidence which would indicate that persons in receipt of the “EWK” pensions in the Podkarpacki region were deliberately targeted by the State authorities. 56.", "In consequence, similarly as in the Moskal case, this complaint 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 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 PLN 45,000 (approx. EUR 10,715) in respect of pecuniary and PLN 30,000 (approx. EUR 7,143) in respect of non-pecuniary damage. 59. The Government submitted that since the application was inadmissible, the claims for pecuniary and non-pecuniary damage should be rejected.", "60. 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 finds that the applicant was deprived of her income in connection with the violation found and must take into account the fact that she undoubtedly suffered some pecuniary and non-pecuniary damage (see Moskal, cited above, § 105 with a further reference). Making an assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 6,000 to cover all heads of damage. B.", "Costs and expenses 61. The applicant did not make any claim in respect of costs and expenses. C. Default interest 62. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the complaint concerning 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, the amount of EUR 6,000 (six thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of pecuniary and non-pecuniary damage, plus any tax that may be chargeable to the applicant; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 11 February 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıLedi BiankuDeputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF LUPSA v. ROMANIA (Application no. 10337/04) JUDGMENT STRASBOURG 8 June 2006 FINAL 08/09/2006 . In the case of Lupsa v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Boštjan M. Zupančič, President,John Hedigan,Lucius Caflisch,Corneliu Bîrsan,Alvina Gyulumyan,Egbert Myjer,Davíd Thór Björgvinsson, judges,and Vincent Berger, Section Registrar, Having deliberated in private on 18 May 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 10337/04) 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 national of Serbia and Montenegro, Mr Dorjel Lupsa (“the applicant”), on 19 January 2004.", "2. The applicant was represented by Mr E. Iordache and Ms D. Dragomir, lawyers practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mrs R. Rizoiu, and then by Mrs B. Rămăşcanu, of the Ministry of Foreign Affairs. 3. On 18 February 2005 the President of the Third Section decided to give notice of the application to the Government.", "Under the provisions of Rule 41 of the Rules of Court and Article 29 § 3 of the Convention, he decided that the application would be given priority and that the admissibility and merits of the case would be examined at the same time. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in Yugoslavia in 1965 and currently lives in Belgrade. 5.", "In 1989 the applicant, a Yugoslavian citizen, came to Romania and settled there. He lived in Romania for fourteen years and, in 1993, set up a Romanian commercial company whose main activity was roasting and marketing coffee. He also learnt Romanian and cohabited with a Romanian national from 1994. 6. On 2 October 2002 the applicant’s girlfriend, who was visiting him in Yugoslavia, gave birth to a child.", "A few days later the applicant, his girlfriend and the baby returned to Romania. 7. On 6 August 2003 the applicant, who had been abroad, came back to Romania unimpeded by the border police. The next day, however, border police officers came to his home and deported him. 8.", "On 12 August 2003 the applicant’s lawyer lodged an application with the Bucharest Court of Appeal against the Aliens Authority and the public prosecutor’s office at the Bucharest Court of Appeal for judicial review of the deportation order against the applicant. 9. She submitted that she had not been served with any document declaring the applicant’s presence in Romanian territory to be undesirable. She added that the applicant had been living in Romania since 1989, had been awarded a medal for his role in the anti-communist revolt of 1989, had set up a commercial company, was supporting his family and had not in any way been a danger to national security. 10.", "The only hearing before the Bucharest Court of Appeal was held on 18 August 2003. The representative of the Aliens Authority provided the applicant’s lawyer with a copy of an order of 28 May 2003 of the public prosecutor’s office at the Bucharest Court of Appeal in which, at the request of the Romanian Intelligence Service (Serviciul Român de Informaţii) and in accordance with Government Emergency Ordinance no. 194/2002 on the rules governing aliens in Romania, the applicant had been declared an “undesirable person” and banned from Romania for ten years on the ground that there was “sufficient and serious intelligence that he was engaged in activities capable of endangering national security”. The last paragraph of the order stated that it should be served on the applicant and enforced by the Aliens Authority in accordance with section 81 of Government Emergency Ordinance no. 194/2002.", "11. According to the documents filed in the proceedings by the representative of the Aliens Authority, the Ministry of the Interior had informed the Romanian Intelligence Service, the Ministry of Foreign Affairs and the border police on 2 and 11 June 2003 that the applicant had been banned from entering the country. 12. The applicant’s lawyer requested an adjournment in order to send the applicant a copy of the order of the public prosecutor’s office and take his instructions. 13.", "Although the representative of the public prosecutor’s office supported that request on the ground that it had not been established that the obligation to serve the order on the applicant had been complied with, the Court of Appeal decided to go ahead with the examination of the case. Considering that the evidence already adduced was sufficient, it also dismissed a further request by the applicant’s lawyer for an adjournment in order to produce documents in support of her application. 14. Ruling on the merits, the Court of Appeal rejected the application as follows: “After analysing the evidence in the case and the parties’ arguments, the Court rejects as ill-founded the application against the public prosecutor’s order ... and the deportation order, considering that, in accordance with sections 83 and 84(2) of Government Emergency Ordinance no. 194/2002, the measure ordered is justified and lawful ... With regard to the reasoning of the impugned administrative order, [the Court] notes that it satisfies the substantive and formal conditions required by the special provisions, power to authorise residence on the State’s territory being exercised by the appropriate State authorities in compliance with the relevant provisions and with the principle of proportionality between the restriction of fundamental rights and the situation giving rise to that restriction.", "Accordingly, the deportation was lawfully ordered. It is alleged that the measure taken pursuant to the public prosecutor’s order of 28 May 2003 was communicated to the border police, the Ministry of Foreign Affairs and the Romanian Intelligence Service on 2 and 11 June 2003, whereas in the operative part of the order it was stated that, pursuant to section 81 of Government Emergency Ordinance no. 194/2002, the Aliens Authority had to notify and enforce it; the details of the alien’s passport and residence being mentioned in the preamble to the order. Accordingly, the Court rejects as ill-founded, on every ground, the application lodged against the order of the public prosecutor’s office at the Bucharest Court of Appeal.” 15. In accordance with section 85(1) of Government Emergency Ordinance no.", "194/2002, that judgment was final. 16. Subsequently, in 2003 and 2004, the applicant’s girlfriend, who does not speak Serbian, and their son, who is a national of Romania and of Serbia and Montenegro, went to Serbia and Montenegro on a number of occasions, staying for periods ranging from a few days to several months. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "Government Emergency Ordinance no. 194 of 12 December 2002 on the rules governing aliens in Romania, published in the Official Gazette of 27 December 2002 Section 81 “(1) The Aliens Authority, or its regional offices, shall inform the alien concerned that he must leave Romanian territory. (2) The order to leave the territory shall be drawn up in two copies, one in Romanian and the other in an international language. (3) If the alien is present on the territory, he shall be served with a copy which he shall sign... (4) If the alien is absent, notification shall be: (a) by mail, by way of letter sent to his address, if known, requiring acknowledgment of receipt; or (b) displayed at the head office of the Aliens Authority if his address is unknown.” Section 83 “(1) A declaration that an alien is undesirable is an administrative measure taken against a person who has previously engaged, is currently engaged, or in respect of whom there is sufficient intelligence that he has the intention of engaging in activities capable of endangering national security or public order. (2) On a proposal of the Aliens Authority or another institution having appropriate powers in the sphere of public order and national security and being in possession of sufficient intelligence of the kind referred to above, the measure envisaged in the preceding sub-section shall be taken by a prosecutor designated from among the members of the public prosecutor’s office at the Bucharest Court of Appeal.", "(3) After receiving the proposal, the prosecutor shall give his reasoned decision within five days and, if he accepts the proposal, shall send the order declaring the alien undesirable to the Aliens Authority for enforcement. If the order is based on reasons of national security, those reasons shall not be mentioned in it. (4) The alien’s right of residence shall cease automatically on the date of the order. (5) The alien can be declared undesirable for a period of five to fifteen years ... ...” Section 84 “(1) The order declaring an alien undesirable shall be served on the person concerned by the Aliens Authority in accordance with the procedure provided for in section 81. (2) Communication of the data and information justifying a declaration that an alien is undesirable for reasons related to national security shall be authorised only on the terms and to the persons expressly mentioned in the legislation on activities relating to national security and the protection of secret information.", "Such information cannot be communicated in any form, whether direct or indirect, to the alien who has been declared undesirable.” Section 85 “(1) An application for judicial review of an order declaring an alien’s presence undesirable may be lodged with the Bucharest Court of Appeal by the party concerned within five days of the date of service of the order. The court’s judgment shall be final. (2) Such an application shall not stay enforcement of the order ...” B. Decision no. 324 of 16 September 2003 of the Constitutional Court 17.", "In a case similar to the applicant’s, the Constitutional Court ruled on the compatibility of section 84(2) of Government Emergency Ordinance no. 194/2002 with the constitutional principles of non-discrimination, the right of access to a tribunal and the right to a fair trial. An objection on grounds of unconstitutionality had been raised by an alien when seeking judicial review of an order by the public prosecutor’s office declaring him undesirable on the ground that “sufficient intelligence had been received that he had been engaged in activities capable of endangering national security”. 18. The Constitutional Court held that the above-mentioned section was in conformity with the Constitution and the Convention, for the following reasons: “The situation of aliens who are declared undesirable in the interests of national security and the protection of secret information is different from that of other aliens, which allows the legislature to establish different rights for these two categories of alien without that difference infringing the principle of equality.", "The genuine difference arising from the two situations justifies the existence of different rules. The Court also notes that the prohibition on communicating to undesirable aliens the data and information justifying that measure is in conformity with the provisions of Article 31 § 3 of the Constitution, which provides that ‘the right to information shall not undermine national security’. Nor do the provisions of section 84(2) of the Government Emergency Ordinance infringe the principle of free access to the courts, as provided for in Article 21 of the Constitution. In accordance with section 85(1) [of the above-mentioned ordinance], the person concerned can apply for judicial review of the prosecutor’s order ... Nor can the Court accept [the criticism] concerning the independence of the judges [of the Court of Appeal]; they must comply with the law giving priority to Romania’s national security interests.", "The Court of Appeal is required to rule on the application for judicial review of the order in accordance with the provisions of Emergency Ordinance no. 194/2002, reviewing, in the conditions and within the limits laid down by that ordinance, the lawfulness and merits of the order of the public prosecutor’s office. With regard to the provisions of Article 6 § 1 of the Convention ..., the Court notes that the impugned provision does not prevent those concerned from applying to the courts to defend themselves and assert all the guarantees of a fair trial. Furthermore, the European Court of Human Rights held, in its judgment of 5 October 2000 in the case of Maaouia v. France [[GC], no. 39652/98, § 40, ECHR 2000-X], that decisions regarding the entry, stay and deportation of aliens did not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him within the meaning of Article 6 § 1 of the Convention.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 19. The applicant alleged that the deportation order against him and his exclusion from Romanian territory infringed his right to respect for his private and family life secured in Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 20.", "The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It notes further that no other ground for declaring it inadmissible has been established and that it must therefore be declared admissible. B. Merits 1. Whether there was an interference 21.", "The Government did not dispute that the applicant had a private and family life in Romania before being deported, but argued that the deportation and exclusion order had not amounted to an interference with his private and family life. In that connection, they submitted that the applicant had not had a permanent right of abode in Romania but had stayed there on the basis of a business visa that had been periodically renewed. They further argued that, after the applicant had been deported, his girlfriend and child had gone to Serbia a number of times without any particular problems and had stayed there several months. Accordingly, the Government maintained that the applicant’s family life had not been disrupted. 22.", "In the applicant’s submission, since 1989 and up until 2003, his private, family and professional life had been in Romania. He added that, despite the visits from his girlfriend and their child, their private and family life had been irremediably affected by the deportation order. 23. He also denied that his girlfriend and their child could settle in Serbia and Montenegro, arguing that his girlfriend did not speak Serbian which would make it very difficult for her to adapt culturally and socially to the country. He also asserted that, following his deportation, the commercial company he had set up in Romania and which had been their livelihood had had to stop operating, and that they therefore did not have sufficient income to attain a decent standard of living in Serbia and Montenegro.", "24. The Court notes at the outset that it is not disputed that the applicant had a private and family life in Romania before being deported. 25. The Court reiterates that the Convention does not guarantee, as such, any right of an alien to enter or to reside in a particular country. However, the removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed in Article 8 § 1 of the Convention (see Boultif v. Switzerland, no.", "54273/00, § 39, ECHR 2001‑IX). 26. The Court notes that in the instant case the applicant, who had come to Romania in 1989, had subsequently been lawfully resident there, learnt Romanian, set up a commercial company and founded a family with a Romanian national. The couple had had a child who was a national both of Romania and of Serbia and Montenegro. 27.", "Since the applicant had indisputably integrated into Romanian society and had a genuine family life, the Court considers that his deportation and exclusion from Romanian territory put an end to that integration and radically disrupted his private and family life in a way which could not be remedied by the regular visits from his girlfriend and their child. Accordingly, the Court considers that there has been an interference in the applicant’s private and family life. 2. Whether the interference was justified 28. Such an interference will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 8.", "It is therefore necessary to determine whether it was “in accordance with the law”, motivated by one or more of the legitimate aims set out in that paragraph, and “necessary in a democratic society”. 29. The Government argued that the measure satisfied the criteria of paragraph 2 of Article 8. In their submission, it had been in accordance with the law, namely, Emergency Ordinance no. 194/2002 published in the Official Gazette, and therefore fulfilled the condition of accessibility.", "The Government considered that the criterion of foreseeability had also been satisfied in that section 83 of the above-mentioned ordinance provided that aliens could be banned from the country only in strictly defined circumstances, that is, if they had engaged, were engaged or had the intention of engaging in activities capable of endangering national security or public order. 30. Lastly, the Government asserted that the measure in question had pursued a legitimate aim, namely, the protection of national security, had been necessary in a democratic society because it had been justified by a pressing social need and had been proportionate to the legitimate aim pursued. In reaching the conclusion that the interference had been proportionate, the Government pointed out that account had to be taken of the seriousness of the offence of which the applicant had been suspected and the fact that his girlfriend and their child were free to visit him and, if they wished, to settle in Serbia and Montenegro. 31.", "The applicant submitted that the Government had never informed him of the offence of which he had been suspected and that no criminal proceedings had been brought against him either in Romania or in Serbia and Montenegro. He therefore considered that the order against him had been totally arbitrary. 32. The Court reiterates that it has consistently held that the expression “in accordance with the law” requires firstly that the impugned measure should have a basis in domestic law, but also refers to the quality of the law in question, requiring that it be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. 33.", "Admittedly, in the particular context of measures affecting national security, the requirement of foreseeability cannot be the same as in many other fields (see Leander v. Sweden, 26 March 1987, § 51, Series A no. 116). 34. Nevertheless, domestic law must afford a measure of legal protection against arbitrary interferences by public authorities with the rights guaranteed by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power (see Malone v. the United Kingdom, 2 August 1984, § 68, Series A no.", "82). The existence of adequate and effective safeguards against abuse, including in particular procedures for effective scrutiny by the courts, is all the more important since a system of secret surveillance designed to protect national security entails the risk of undermining or even destroying democracy on the ground of defending it (see, mutatis mutandis, Rotaru v. Romania [GC], no. 28341/95, §§ 55 and 59, ECHR 2000‑V). 35. In the instant case the Court notes that section 83 of Emergency Ordinance no.", "194/2002 constitutes the legal provision on the basis of which the deportation and exclusion order was issued against the applicant. It accordingly concludes that the impugned measure had a basis in domestic law. 36. As regards accessibility, the Court notes that the aforementioned ordinance was published in the Official Gazette of 27 December 2002. Accordingly, the Court considers that the ordinance satisfied the criterion of accessibility.", "37. With regard to the condition of foreseeability, the Court reiterates that the level of precision required of domestic legislation depends to a considerable degree on the field it is designed to cover. Threats to national security vary in character and time and are therefore difficult to define in advance (see Al-Nashif v. Bulgaria, no. 50963/99, § 121, 20 June 2002). 38.", "However, a person subject to a measure based on national security considerations must not be deprived of all guarantees against arbitrariness. He must, among other things, be able to have the measure in question scrutinised by an independent and impartial body competent to review all the relevant questions of fact and law, in order to determine the lawfulness of the measure and censure a possible abuse by the authorities. Before that review body the person concerned must have the benefit of adversarial proceedings in order to present his point of view and refute the arguments of the authorities (see Al-Nashif, cited above, §§ 123-24). 39. The Court notes in the present case that, by an order of the public prosecutor’s office, the applicant’s presence on Romanian territory was declared undesirable and he was excluded from Romania for ten years and deported on the ground that the Romanian Intelligence Service had received “sufficient and serious intelligence that he was engaged in activities capable of endangering national security”.", "40. The Court observes that no proceedings were brought against the applicant for participating in the commission of any offence in Romania or any other country. Apart from the general ground mentioned above, the authorities did not provide the applicant with any other details. The Court notes, furthermore, that, in breach of domestic law, the applicant was not served with the order declaring his presence to be undesirable until after he had been deported. 41.", "The Court attaches weight to the fact that the Bucharest Court of Appeal confined itself to a purely formal examination of the order of the public prosecutor’s office. In that connection, the Court observes that the public prosecutor’s office did not provide the Court of Appeal with any details of the offence of which the applicant was suspected and that that court did not go beyond the assertions of the public prosecutor’s office for the purpose of verifying that the applicant really did represent a danger for national security or public order. 42. As the applicant did not enjoy before the administrative authorities or the Court of Appeal the minimum degree of protection against arbitrariness on the part of the authorities, the Court concludes that the interference with his private life was not in accordance with “a law” satisfying the requirements of the Convention (see, mutatis mutandis, Al‑Nashif, cited above, § 128). 43.", "Having regard to that finding, the Court deems it unnecessary to continue the examination of the applicant’s complaint to determine whether the interference pursued a “legitimate aim” and was “necessary in a democratic society”. 44. There has therefore been a violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.", "7 45. The applicant complained of an infringement of the procedural guarantees in the event of deportation. He relied on Article 1 of Protocol No. 7, which reads as follows: “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.” A. Admissibility 46. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It notes further that no other ground for declaring it inadmissible has been established and that it must therefore be declared admissible. B.", "Merits 47. The Government did not dispute the applicability of Article 1 of Protocol No. 7 in the present case and admitted that the applicant had been deported before benefiting from the guarantees in that Article. 48. However, they submitted that reasons of national security required urgent measures.", "Accordingly, they considered that the deportation of the applicant had been justified under paragraph 2 of Article 1. 49. The Government also submitted that, despite being deported, the applicant had benefited from the procedural guarantees before a court. In that connection, they submitted that the applicant had been represented by his lawyer, who had been able to plead before the Court of Appeal the reasons militating against the applicant’s deportation (see, mutatis mutandis, Mezghiche v. France, no. 33438/96, Commission decision of 9 April 1997, unreported).", "50. The applicant reiterated that he had never been informed of the reasons for his deportation. Accordingly, he considered that his lawyer had been unable to defend him before the Court of Appeal. He added that the order of the public prosecutor’s office had not been communicated to his lawyer until 18 August 2003, at the only hearing before the Court of Appeal, which, moreover, had dismissed all his lawyer’s requests for an adjournment. 51.", "The Court notes at the outset that, in the event of deportation, in addition to the protection afforded by Articles 3 and 8 of the Convention taken in conjunction with Article 13, aliens benefit from the specific guarantees provided for in Article 1 of Protocol No. 7 (see, mutatis mutandis, Al-Nashif, cited above, § 132). 52. The Court notes further that the above-mentioned guarantees apply only to aliens lawfully resident on the territory of a State that has ratified this Protocol (see Sejdovic and Sulejmanovic v. Italy (dec.), no. 57575/00, 14 March 2002, and Sulejmanovic and Sultanovic v. Italy (dec.), no.", "57574/00, 14 March 2002). 53. In the present case the Court notes that it is not disputed that the applicant was lawfully resident on Romanian territory at the time of the deportation. Accordingly, although he was deported urgently for reasons of national security, which is a case authorised by paragraph 2 of Article 1, he was entitled, after being deported, to rely on the guarantees contained in paragraph 1 (see the explanatory report to Protocol No. 7).", "54. The Court notes that the first guarantee afforded to persons referred to in this Article is that they shall not be expelled except “in pursuance of a decision reached in accordance with law”. 55. Since the word “law” refers to the domestic law, the reference to it, like all the provisions of the Convention, concerns not only the existence of a legal basis in domestic law, but also the quality of the law in question: it must be accessible and foreseeable and also afford a measure of protection against arbitrary interferences by the public authorities with the rights secured in the Convention (see paragraph 34 above). 56.", "The Court reiterates its finding in respect of its examination of the complaint under Article 8 of the Convention, namely, that Emergency Ordinance no. 194/2002, which formed the legal basis for the applicant’s deportation, did not afford him the minimum guarantees against arbitrary action by the authorities. 57. Consequently, although the applicant was deported in pursuance of a decision reached in accordance with law, there has been a violation of Article 1 of Protocol No. 7 in that the law did not satisfy the requirements of the Convention.", "58. In any event the Court considers that the domestic authorities also infringed the guarantees to which the applicant should have been entitled under paragraph 1 (a) and (b) of that Article. 59. In that connection, the Court notes that the authorities failed to provide the applicant with the slightest indication of the offence of which he was suspected and that the public prosecutor’s office did not send him the order issued against him until the day of the only hearing before the Court of Appeal. Further, the Court observes that the Court of Appeal dismissed all requests for an adjournment, thus preventing the applicant’s lawyer from studying the aforementioned order and producing evidence in support of her application for judicial review of it.", "60. Reiterating that any provision of the Convention or its Protocols must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory, the Court considers, in the light of the purely formal review by the Court of Appeal in this case, that the applicant was not genuinely able to have his case examined in the light of reasons militating against his deportation. 61. There has therefore been a violation of Article 1 of Protocol No. 7.", "III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 62. Relying on Articles 6 § 1 and 13 of the Convention, the applicant also complained of the unfairness of the proceedings before the Bucharest Court of Appeal and the fact that no appeal lay against the judgment of 18 August 2003 of that court. 63. The Court reiterates that decisions relating to the deportation of aliens, such as the aforementioned judgment in the present case, do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him within the meaning of Article 6 § 1 of the Convention (see Maaouia v. France [GC], no.", "39652/98, § 40, ECHR 2000‑X). 64. As to the complaint based on Article 13 of the Convention, the Court reiterates that no provision of the Convention entitles an applicant to several levels of jurisdiction in proceedings other than criminal ones. 65. Accordingly, the Court considers that this part of the application is incompatible ratione materiae with the provisions of the Convention and must be dismissed in accordance with Article 35 §§ 3 and 4 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 66. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 67. Relying on an accountant’s report, the applicant claimed 171,000 euros (EUR) in respect of pecuniary damage for the economic loss sustained by his company since his deportation.", "68. He also claimed EUR 100,000 for the non-pecuniary damage sustained on account of his deportation. 69. The Government disputed those claims, considering them to be excessive. They also submitted that there was no direct link between the violations alleged and the pecuniary and non-pecuniary damage alleged.", "70. The Court observes at the outset that it cannot speculate as to how the company set up by the applicant would have developed economically if he had not been deported. However, it considers that deporting the applicant did objectively disrupt the management of his business and that the consequences of that disruption cannot be precisely quantified. 71. The Court considers further that the applicant undeniably sustained non-pecuniary damage on account of the violations found.", "72. Having regard to all the evidence in its possession and ruling on an equitable basis, as required by Article 41 of the Convention, the Court decides to award the applicant EUR 15,000 to cover all heads of damage. B. Costs and expenses 73. The applicant sought the reimbursement of his lawyers’ fees and the various costs and expenses incurred in lodging his application with the Court.", "In support of his claim, he submitted a bill for his lawyers’ fees in the sum of EUR 6,500. 74. The Government disputed the amount claimed, considering it excessive. They also pointed out that the applicant’s lawyers had not specified either the number of hours spent preparing the application before the Court or the hourly rate. 75.", "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. 76. In the instant case the Court considers that the total amount claimed by the applicant in lawyer’s fees is excessive. 77. On the basis of the evidence in its possession and its relevant case-law, the Court, ruling on an equitable basis, as required by Article 41 of the Convention, considers it reasonable to award the applicant EUR 3,000 in respect of all costs and expenses.", "C. Default interest 78. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible regarding the complaints under Article 8 of the Convention and Article 1 of Protocol No. 7 and the remainder inadmissible; 2.", "Holds that there has been a violation of Article 8 of the Convention; 3. Holds that there has been a violation of Article 1 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, EUR 15,000 (fifteen thousand euros) in respect of pecuniary and non-pecuniary damage and EUR 3,000 (three thousand euros) for costs and expenses, plus any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in French, and notified in writing on 8 June 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerBoštjan M. ZupančičRegistrarPresident" ]

[ "FOURTH SECTION CASE OF KALANTARI v. GERMANY (Application no. 51342/99) JUDGMENT (Striking out) STRASBOURG 11 October 2001 FINAL 11/01/2002 In the case of Kalantari v. Germany, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: MrA. Pastor Ridruejo, President,MrG. Ress, MrL. CaflischMrI.", "Cabral Barreto,MrV. Butkevych,MrsN. Vajić,MrM. Pellonpää, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 28 September 2000 and 20 September 2001, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no.", "51342/99) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Iranian national, Mr Ali Reza Kalantari (“the applicant”), on 2 August 1999. 2. The German Government (“the Government”) were represented by their Agent, Mr K. Stoltenberg, Ministerialdirigent, of the Federal Ministry of Justice. The applicant was represented by his sister, Mrs H. Yaghoubinia-Kalantari, who has political-refugee status and lives with her husband and two children in Geneva, and by ELISA, an association for the defence of asylum-seekers in Switzerland, represented by Ms C. Wenninger. 3.", "The applicant alleged, in particular, that he would face inhuman and degrading treatment contrary to Article 3 of the Convention if he were expelled to Iran. 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.", "The Chamber decided to apply Rule 39, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled pending the Court’s decision. 6. By a decision of 28 September 2000, the Chamber declared the application admissible [Note by the Registry. The Court’s decision is obtainable from the Registry]. 7.", "The applicant and the Government each filed observations on the merits (Rule 59 § 1). 8. On 12 April 2001 the Section Registrar contacted the parties with a view to securing a friendly settlement within the meaning of Article 38 § 1 (b) of the Convention. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A.", "The proceedings in the domestic courts 9. The applicant is an Iranian national and was born in 1971. His present address is unknown. 10. He entered Germany in October 1997 after fleeing Iran and applied for political-refugee status.", "11. At a hearing on 16 October 1997 at the Federal Office for Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge), the applicant gave evidence that one of his sisters had been executed in Iran in 1982 or 1983, while another had been imprisoned from 10 January 1983 to 13 September 1984 and had been missing since 1987 or 1988. He had raised funds in Iran and taken notes during radio programmes which he had subsequently added to and circulated. He had decided to leave Iran on learning from third parties that the family home had been searched on 6 September 1997. The verbatim record taken by the Federal Office for Refugees indicates that the applicant had produced a list of the martyrs of the People’s Mujahidin Organisation of Iran (an opposition movement in Iran), which included his first sister, and a certificate from the Sari Islamic Revolutionary Court of 31 December 1984 indicating that his second sister had been arrested and imprisoned from 10 January 1983 to 11 September 1984 on account of her activities for the Monafeghin.", "12. In a decision of 31 August 1998 the Federal Office for Refugees dismissed his application on the ground that there was no bar to his expulsion under section 51 or 53 of the Aliens Act (Ausländergesetz – see “Relevant Domestic Law” below), since he had not succeeded in establishing that he risked persecution if he returned to Iran. The Federal Office found his account vague and parts of it self-contradictory; it also considered it strange that it had not been until several years after the persecution of his sisters that he had become involved in activities against the regime. 13. On 5 November 1998 a group of Iranian political refugees sent a letter to the Federal Office for Refugees stating that the applicant was a supporter of the People’s Mujahidin of Iran and a member of a family of “martyrs” in Iran that was under threat from the incumbent regime, one of his sisters having been arrested, tortured and executed in the 1980s.", "14. At a hearing on 10 November 1998 in the Regensburg Administrative Court (Verwaltungsgericht) the applicant asked for Mr Yaghoubinia, his brother-in-law, who has political-refugee status in Switzerland, to be called as a witness. The court, however, turned his request down. 15. On 11 November 1998 the Regensburg Administrative Court upheld the decision of the Federal Office for Refugees.", "On 15 December 1998 the Bavarian Administrative Court of Appeal (Bayerischer Verwaltungs-gerichshof) dismissed a further appeal by the applicant. 16. On 2 March 1999 the applicant made a fresh application for asylum (Asylfolgeantrag), inter alia, on the ground that he had been interviewed by the Offener Kanal Dortmund television channel at a demonstration outside the Iranian embassy in Bonn on 9 January 1999 and had signed a resolution against the Iranian regime that had been published in an opposition newspaper in Iran on 2 February 1999. 17. On 28 April 1999 the Federal Office for Refugees dismissed that application, finding that the new evidence was insufficient to establish that the applicant would face political persecution if he returned to Iran.", "18. On 25 May and 23 June 1999 the applicant appealed against that decision and applied for a stay of execution of the expulsion order, inter alia, on the ground that he had taken part in a demonstration against Iran on 20 June 1999 at the G8 summit in Cologne and had been filmed by Simaye Moghavemat, the Mujahidin people’s television station based in London. 19. On 25 June 1999 Mrs Hajar Yaghoubinia-Kalantari, the applicant’s sister, who has political-refugee status in Switzerland and represented the applicant in the proceedings in the Court, sent a letter to the German consulate in Geneva stating that she and her husband had been political prisoners in Iran, that her sister had been executed by the Iranian regime and that a law had been passed by the Iranian parliament making it an offence to engage in any political activity against the regime abroad. She sent a copy of that letter to various international organisations such as the Office of the United Nations High Commissioner for Refugees (UNHCR), the United Nations High Commission for Human Rights, Amnesty International’s Berne office and the European Court of Human Rights.", "20. On the same day the Regensburg Administrative Court requested information from the German Ministry of Foreign Affairs about the risk the applicant would face as a signatory of the resolution against the Iranian regime in the event of his expulsion to Iran. 21. On 8 July 1999 the OMCT (World Organisation Against Torture) contacted the Permanent Mission of Germany to the United Nations in order to apprise Germany of the risks the applicant would face if expelled to Iran. 22.", "In a first judgment of 21 July 1999 the Regensburg Administrative Court ordered a stay of the expulsion order, holding that the Federal Office for Refugees should have taken the applicant’s open criticism of the Iranian regime into account and that it would not be possible to decide the case until the information requested from the Ministry of Foreign Affairs had been received. 23. In a second judgment delivered on 23 July 1999 the Administrative Court reversed that decision when a sworn statement adduced by the applicant of the person who had interviewed him at the demonstration and had identified himself as the editor of the Offener Kanal Dortmund television channel turned out to be false, as the director of that television channel had said in evidence that the person concerned had never worked for the channel. As a result, the Administrative Court concluded that the grounds relied on by the applicant following his flight (Nachfluchtgründe) were a total fabrication. 24.", "However, on 27 July 1999 the director of Offener Kanal Dortmund sent a letter to the Administrative Court admitting that he had made a mistake and that, while the person who had interviewed the applicant was not the editor of the channel, he had reported for it on a regular basis. 25. Notwithstanding these developments and the fact that it had yet to receive information from the Ministry of Foreign Affairs, the Regensburg Administrative Court dismissed the applicant’s application for a stay of execution of the expulsion order in judgments delivered on 27 July, and 5 and 10 August 1999, holding that he had not succeeded in establishing that he would face political persecution if he returned to his country. In particular, the resolution against the Iranian regime that had been signed by the applicant and published in an opposition newspaper in Iran on 2 February 1999 and in which he had declared himself to be a supporter of the People’s Mujahidin of Iran, did not suffice to establish a risk of persecution, as it had been signed by 1,500 Iranians living in exile. Nor did the mere fact that the applicant’s name had been mentioned in a television programme broadcast on a private channel on 12 January 1999, or that he had been filmed at a demonstration against the Iranian regime in Bonn suffice.", "The same was also true of the applicant’s participation in a demonstration outside the Iranian embassy during the G8 summit in Cologne on 20 June 1999, as it had been attended by the majority of Iranian asylum-seekers living in Germany. 26. On 6 August 1999, on being informed by the applicant’s family that the applicant’s expulsion was imminent, the Special Rapporteur on Torture of the United Nations High Commission for Human Rights launched an urgent appeal to prevent the applicant’s deportation to Iran. 27. On 9 August 1999 the applicant made a further application to the Regensburg Administrative Court for a stay of execution of the expulsion order.", "He enclosed the Swiss authorities’ decision of 16 January 1989 granting Mrs Hajar Yaghoubinia-Kalantari, his sister, political asylum and an article from the 29 June 1999 edition of the Modjahed newspaper reporting the execution of his other sister, Ms Masoumeh Kalantari. 28. In a decision of 10 August 1999 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a bench of three members, declined to accept a constitutional appeal by the applicant for adjudication. 29. The substantive proceedings are still pending in the Regensburg Administrative Court, but have no suspensive effect.", "30. Initially, the applicant attempted to flee to France and then on to Switzerland, where he was stopped at the border and sent back to France, where he is probably in hiding. 31. The applicant also made an application to the Swiss consulate in Lyons for political asylum in Switzerland, but the Federal Office for Refugees dismissed his application on 29 October 1999 and refused him permission to enter Swiss territory. The Swiss Asylum Appeals Board, before which the case is pending, issued a provisional opinion on 10 November 1999 opposing a grant of asylum.", "B. The subsequent proceedings before the Court 32. On 24 September 1999 the applicant asked the European Court of Human Rights to intervene as a matter of urgency in order to prevent his expulsion to Iran, saying that he faced imprisonment and torture there. 33. On 27 September 1999 the President of the Fourth Section decided not to apply Rule 39 of the Rules of Court.", "34. On 13 December 1999 the applicant made a further application to the Court under Rule 39 in which he relied on new evidence. 35. This consisted of two letters: a letter of 8 July 1999 from the OMCT to the German authorities and a letter of 22 October 1999 from the UNHCR Liaison Office for Switzerland and Liechtenstein to the Swiss authorities. Both letters said that the applicant was at risk of persecution if expelled to Iran.", "They added that one of the applicant’s sisters had been executed, while another sister and her husband had been arrested and tortured in Iran before managing to escape and obtain political-refugee status in Switzerland. 36. In its letter of 8 July 1999 the OMCT said that, according to the information in its possession, the applicant “had been forced to flee his country of origin, as his life was in danger there. His sister and her husband had already left the Islamic Republic of Iran some years earlier, after being arrested and tortured; his other sister had been executed by the incumbent regime”. 37.", "In its letter of 22 October 1999 the UNHCR Liaison Office for Switzerland and Liechtenstein expressed the opinion that “the applicant may be in danger if he is sent back to his country of origin, since it appears that his participation in a demonstration against the government was filmed and broadcast in a television programme that can also be received in Iran. Further, the petition signed by the applicant and the names of the signatories to it have been published in an opposition newspaper. These details could thus lead the Iranian government to identify the applicant as an opponent, especially in view of the active political role his two sisters have played in the past”. 38. In a letter of 20 December 1999 the Government was informed pursuant to Rule 40 of the Rules of Court that the applicant had made a request to the Court for the application of Rule 39.", "39. On 6 January 2000 a Chamber composed of judges from the Fourth Section decided to apply Rule 39 and to request the Government not to expel the applicant before 6 April 2000. It invited the parties to provide further details on the persecution of the other members of the applicant’s family in Iran and the reasons for such persecution, together with copies of the Swiss authorities’ decisions relating to the grant of political asylum to the applicant’s sister and her husband in Switzerland. 40. On 25 January 2000 the Government informed the Court that they were not in a position to furnish the information requested.", "41. On 29 January and 28 February 2000 the applicant’s sister provided, inter alia, the following information to the Court: “My sister Mina (Massoumeh) Kalantari was arrested for her political activities and, after being subjected to torture over several months, executed (she died under torture) ... Both my husband and I were political prisoners and tortured in common with all other opponents of the Iranian regime who have been to prison ... I spent a long time in an isolated cell and from time to time heard the cries of other prisoners being tortured, even at night ... This is but the briefest of summaries of our prison ordeal ...", "It is for this reason that we fled Iran ...” 42. She also described the persecution of the other members of her family in Iran, her other sister Zara (Khadijeh) Kalantari, her brother Mohammad Raza Kalantari and her mother Effat Kalantari. 43. She enclosed copies of the following documents: (i) a decision, in Persian and French, of the Sari Islamic Revolutionary Court dated 31 December 1984 accusing her of being a member of the “organisation of hypocrites” (the organisation of the Mujahidin) and of engaging in activities as part of that organisation, as a result of which she had been sentenced to a term of imprisonment from 10 January 1983 to 11 September 1984; (ii) a decision dated 25 June 1987 of the person responsible for supervising the execution of that court’s judgments certifying that her husband was also a member of that organisation and had served a 22-month prison sentence on that account; (iii) an extract from the 29 June 1999 edition of the opposition newspaper Modjahed reporting the martyrdom of her sister Massoumeh Kalantari; (iv) documents attesting to her and her husband’s political activities in Switzerland (such as attending demonstrations against the Iranian regime); (v) a letter of 16 January 1989 from the Swiss Commissioner for Refugees informing her and her husband of the Swiss decision to grant her asylum (without giving reasons); (vi) a letter from the Head of the UNHCR Liaison Office for Switzerland and Liechtenstein dated 24 February 2000, attesting to the fact that by reason of their political activities as members of the PMOI (People’s Mujahidin Organisation of Iran), Mr and Mrs Yaghoubinia (the applicant’s brother-in-law and sister) had been “severely beaten and tortured and sentenced to respectively five years’ and one year’s imprisonment. Mr Yaghoubinia was released on 6 November 1984 on health grounds (heart problems), shortly after his wife’s release on 13 September 1984”.", "It added that Mr and Mrs Yaghoubinia had fled Iran and travelled to Turkey after the Iranian government had launched a vast operation for the interrogation of former political prisoners and they had been questioned by security forces. The letter said, in its conclusion: “After examining their application for refugee status, the eligibility officer accorded them refugee status on 10 November 1987 under the HCR mandate under Article 6 paragraph A(ii) of the Statute of the Office of the United Nations High Commissioner for Refugees of 14 December 1950. In view of the geographical reservation issued by Turkey when it ratified the Geneva Convention relating to the Status of Refugees of 28 July 1951, the HCR has attempted to find a country where Mr and Mrs Yaghoubinia will be able to resettle. By a letter of 17 June 1988, the Commissioner for Refugees of the Swiss Confederation informed the HCR that it would accept these refugees in Switzerland as part of its quota policy.” 44. On 1 March 2000 the assistant to the Special Rapporteur on Torture at the United Nation’s High Commission on Human Rights sent the Court the following extract from a report of the Special Rapporteur on Torture, which was made public at the beginning of April 2000: “On 6 August 1999 the Special Rapporteur sent an urgent appeal on behalf of Ali Reza Kalantari, an Iranian national who was reportedly facing imminent and forcible repatriation to Iran on 10 August 1999 from Flughafen Frankfurt on Lufthansa, Iran where he may be at risk of torture.", "His applications for refugee status were reportedly rejected by the German authorities and he was forced to sign a document from the Iranian Consulate in Munich agreeing to return to Iran. He was reportedly arrested by the police in Köln on 20 June 1999 while he was protesting against the Iranian Government.” 45. In a letter of 18 June 2001 the Government informed the Court that, by a decision of 15 June 2001, the Federal Office for Refugees had set aside its decision of 31 August 1998 (see paragraph 12 above) on the ground that a bar existed, within the meaning of section 53(4) of the Aliens Act (see “Relevant Domestic Law” – paragraph 48 below) to the applicant’s expulsion. Consequently, the applicant was not to be expelled to Iran (“Herr Kalantari darf nicht in den Iran abgeschoben werden”). II.", "RELEVANT DOMESTIC LAW 46. Section 51(1) of the Aliens Act (Ausländergesetz) provides that aliens cannot be expelled to a State where their life or freedom would be at risk on account of their race, religion, nationality, membership of a particular social group or political convictions. 47. Section 53(1) of that Act provides, inter alia, that an alien may not be expelled to a State in which he faces a real risk of being subjected to torture. 48.", "Section 53(4) provides that an alien may not be expelled if such expulsion would not be authorised under the European Convention on Human Rights (“soweit sich aus der Anwendung der Konvention zum Schutze der Menschenrechte und Grundfreiheiten ... ergibt, dass die Abschiebung unzulässig ist”). 49. Section 42 of the Asylum Procedure Act (Asylverfahrensgesetz) lays down that the Aliens Office (Ausländerbehörde) is bound by a decision of the Federal Office for Refugees as to the existence of a bar to expulsion under Section 53 of the Aliens Act. 50. Section 73(3) of that Act provides that a decision as to the existence of a bar to expulsion within the meaning of section 53(1), (2), (4) or (6) of the Aliens Act must be set aside (widerrufen) if the conditions are no longer satisfied (“wenn die Vorausetzungen nicht mehr vorliegen”).", "An appeal to the administrative courts will lie against the new decision. THE LAW I. STRIKING OUT OF THE LIST 51. The applicant complained that his expulsion to Iran would expose him to a risk of inhuman and degrading treatment contrary to Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 52. The Government said that since the Federal Office for Refugees had set aside its decision of 31 August 1998 and ruled that there were bars to the applicant’s expulsion under section 53(4) of the Aliens Act, the applicant was now fully protected against an expulsion to Iran in breach of Article 3 of the Convention.", "The new decision could only be set aside by the Federal Office for Refugees itself and, in such event, an appeal would lie to the administrative courts. Furthermore, the federal government as such could not give assurances concerning the grant of a residence permit (in this instance, an authority to remain – Aufenthaltsbefugnis), as the issue of such permits was the responsibility of the relevant Länder authorities. 53. The applicant referred to the Court’s decision on the admissibility of his application and replied that he had provided the German courts with documents showing that he faced persecution if expelled to Iran right from the start of the proceedings. Accordingly, he requested the authorities to grant him refugee status and a work permit.", "He also sought an award of 22,060 German marks (DEM) and DEM 600 monthly for the period from December 2000 until the Court’s judgment on the merits for pecuniary damage. His current immigration status was neither valid nor satisfactory. Referring to Ahmed v. Austria (judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI), he asked the Court to rule on the merits, as, in his submission, he remained a victim of a violation of Article 3 of the Convention. Lastly he alleged that, owing to his unstable situation, one that prevented him from getting married or starting a home, he was also a victim of a violation of Articles 8 and 12 of the Convention. 54.", "The Court observes at the outset that it only has jurisdiction to determine the present application in so far as it concerns the complaint of a violation of Article 3 of the Convention which it declared admissible on 28 September 2000. 55. It considers, furthermore, that the present case is distinguishable from that in Ahmed, cited above, which the Court refused to strike out of the list as the Austrian authorities had merely decided to stay execution of a deportation order which otherwise remained valid. 56. However, in the instant case, by a decision of 15 June 2001, the Federal Office for Refugees set aside its previous decision, holding that the applicant’s expulsion to Iran was barred by section 53(4) of the Aliens Act (see paragraph 48 above).", "That decision is binding on the Aliens Office and may only be set aside by the Federal Office for Refugees itself; an appeal will lie to the administrative courts against any new decision (see paragraphs 49-50 above). 57. In the light of the Federal Office for Refugees’ decision of 15 June 2001, the Court considers that the continued examination of the application is no longer justified (Article 37 § 1 (c) of the Convention). In addition, there is no reason pertaining to respect for human rights as defined in the Convention or its Protocols that requires it to continue the examination of the application (Article 37 § 1 (c) in fine of the Convention). 58.", "Accordingly, the case must be struck out of the list. II. APPLICATION OF RULE 44 § 3 OF THE RULES OF COURT 59. The applicant sought DEM 16,000 by way of reimbursement of the costs and expenses he had incurred in the proceedings in the German courts and the Court. 60.", "The Government argued that the applicant was not entitled to reimbursement of his costs and expenses in the domestic courts, as he should have produced all evidence in support of his allegation that he would face persecution if expelled to Iran when first making his application for asylum. 61. The Court reiterates that it has a discretion as to costs when striking an application out of the list (Rule 44 § 4). 62. It notes that in the present case costs and expenses in the sum of DEM 16,000 were genuinely and necessarily incurred by the applicant in the proceedings in the domestic courts and the Court in order to prevent his expulsion to Iran and that those costs were reasonable in amount.", "63. Ruling on an equitable basis, the Court therefore decides to award the applicant the sum claimed, less 355 euros that have already been paid in legal aid by the Council of Europe. 64. According to the information available to the Court, the statutory rate of interest applicable in Germany at the date of adoption of the present judgment is 8.62% per annum. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Decides to strike the case out of the list; 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, for costs and expenses, DEM 16,000 (sixteen thousand German marks), less EUR 355 (three hundred and fifty-five euros); (b) that simple interest at an annual rate of 8.62% shall be payable from the expiry of the above-mentioned three months until settlement. Done in French, and notified in writing on 11 October 2001, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerAntonio Pastor RidruejoRegistrarPresident" ]

[ "THIRD SECTION CASE OF M.O. v. SWITZERLAND (Application no. 41282/16) STRASBOURG 20 June 2017 FINAL 20/09/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of M.O.", "v. Switzerland, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Helena Jäderblom, President,Branko Lubarda,Helen Keller,Pere Pastor Vilanova,Alena Poláčková,Georgios A. Serghides,Jolien Schukking, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 30 May 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 41282/16) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Eritrean national, Mr M.O. (“the applicant”), on 13 July 2016. 2.", "The applicant, who had been granted legal aid, was represented by Mr R. Schuler and Ms A. Stettler, lawyers practising in Zürich. The Swiss Government (“the Government”) were represented by their Deputy Agent, Mr A. Scheidegger, of the Federal Office of Justice. 3. The applicant alleged that his expulsion to Eritrea would give rise to a violation of Articles 3 and 4 of the Convention. 4.", "On 22 July 2016 the Vice-President of the Section to which the case had been allocated decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be expelled to Eritrea for the duration of the proceedings before the Court, and granted priority to the application under Rule 41 of the Rules of Court, and anonymity to the applicant under Rule 47 § 4 of the Rules of Court. 5. On the same day, the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6.", "The applicant is an Eritrean national and was born in 1990. He grew up in Eritrea and currently lives in Switzerland. 7. The applicant entered Switzerland illegally on 23 June 2014 and applied for asylum the next day. He was heard in person three times by the Swiss authorities responsible for asylum and migration (until 31 December 2014 the Bundesamt für Migration, renamed with effect from 1 January 2015 as the Staatssekretariat für Migration, SEM – hereafter “the State Secretariat for Migration”).", "During all three hearings an interpreter was present and the record was translated for the applicant prior to his signing it. 8. The first hearing was a summary interview at the Centre for Reception and Procedure (Empfangs- und Verfahrenszentrum) in Kreuzlingen on 1 July 2014. The applicant stated that he had not been allowed to continue at school beyond the eighth grade because he had failed the national admission exams for secondary school, and had been summoned for military service, which he had tried to avoid. Once he had reported for duty, he had tried to escape but had been caught.", "He stated that he had been beaten and subsequently imprisoned in Wi’a in conditions of very poor hygiene. He was unable to recall the exact dates of his imprisonment, but stated that he had been imprisoned from June 2012 to September 2013. He had managed to escape from prison one night when the guards were asleep. After staying in Eritrea for one more week, he had left the country on foot on 3 October 2013, crossing the border at Mereb. He had been picked up by Ethiopian soldiers the next day.", "9. In order to support his account, the applicant submitted copies of his student card and a card showing that he was a church deacon, as well as the original of a card used for food distribution in Italy. He stated that he had been issued with an identity card in Eritrea in 2010, but had had to hand it in in Ethiopia. The applicant further stated that he was married and had a son born in October 2012. 10.", "The second, more detailed, hearing took place at the office of the State Secretariat for Migration in Berne on 11 March 2015. A member of a non-governmental organisation was present as a neutral witness, in order to guarantee the fairness of the hearing. He had the opportunity to add comments at the end of the record of the hearing in the event that he had witnessed any irregularities, but did not note down any such observations. 11. The applicant again gave an account of the alleged events in Eritrea leading up to his escape.", "This time he stated that he had been imprisoned in Wi’a from March to October 2013 following his attempt to escape from the military. When confronted with the discrepancy in comparison with his previous account in that regard, he stated that he might have made a mistake in the first interview. When asked about the conditions of his detention, the applicant claimed that it had been very dirty and very hot, and that he had been locked up all the time. Other than beatings suffered due to his attempt to escape, there had been no particular incidents. He did not recall any rules other than fixed meal times and being brought outside in the mornings and evenings to relieve himself.", "12. When asked about his military training, the applicant claimed that he had only been there for a very brief period of time prior to his attempted escape. He had not learned how to use weapons. He could neither provide a name of his superior nor his unit nor his military number. 13.", "When questioned about his departure from Eritrea, the applicant described leaving A. (a village) on foot at around 6 p.m., together with a person living in the neighbourhood who knew the area. They had walked towards Mereb, but had lost their way as it was night-time. They had been very afraid and also hungry and thirsty. There were lots of thorn bushes in their way and they had heard the howling of hyenas.", "They had not been sure whether they had reached Ethiopian territory until soldiers who spoke Amharic had apprehended them at around 3 a.m. When informed by the interviewer that his account in relation to his departure might not be considered credible, which would result in the conclusion that he had left the country legally, the applicant said that he could not give more details about the departure because he did not know the area well and had been following the person with whom he had fled. 14. The applicant claimed that he had always been in good health. 15.", "In order to support his account, the applicant submitted the originals of his marriage certificate of 2010 and his son’s baptism certificate of 2012, as well as an attestation that he was a church deacon. He claimed that these documents had been sent to him from Eritrea. 16. The applicant was heard for a third time by the State Secretariat for Migration on 29 January 2016. Again, a member of a non-governmental organisation was present as a neutral witness, who did not note down any observations relating to irregularities.", "17. The interviewer explicitly advised the applicant that the interview was taking place to give him another opportunity to describe his departure from Eritrea, and that the account he had so far provided in this regard would probably be dismissed as not credible, which would result in the conclusion that he had left the country legally. 18. The applicant responded that he had spent two days at his parents’ home in A. after escaping from prison. His family had contacted a people smuggler from the Mereb area.", "He and the smuggler had left A. on foot at around 6 p.m. When confronted with his previous account that he had left with a person from the neighbourhood, the applicant clarified that the person he had travelled with (the smuggler) came from a neighbouring village. During the night the smuggler had told him that he had taken many people across the border, but that he and the applicant had already been walking for too long a time, which meant that they must have lost their way. They had become disorientated and had only realised that they had crossed the border when they had been apprehended by Ethiopian soldiers at around 4 a.m. who had spoken to them in Amharic. 19.", "On 8 March 2016 the State Secretariat for Migration rejected the applicant’s asylum request and ordered his departure from Switzerland. It found that his account was not credible, and concluded that, having failed to prove or credibly demonstrate his refugee status pursuant to section 7 of the Asylum Act, the applicant was not a refugee as defined in section 3 of the Asylum Act. 20. The State Secretariat for Migration pointed out that the applicant had stated in the first hearing that he had been detained for a period of one year and three months, from June 2012 to September 2013, whereas in the second hearing he had said that he had been detained for seven months, from March to October 2013. It added that the applicant had also contradicted himself a number of times in the second hearing in relation to the commencement of his military training and the end of his schooling.", "Furthermore, his account as regards his time in prison and his escape from prison lacked substance, and he could not provide details as to what he had learned during his military training. 21. The State Secretariat for Migration also found that the applicant’s submissions regarding his illegal exit from Eritrea were not credible. Despite being asked several times to provide a detailed account of his departure or specific events in that connection, the applicant’s statement in that regard was superficial and limited to phrases. The State Secretariat for Migration argued that, particularly in relation to the hours during which the applicant and the smuggler had lost their way, it could legitimately be expected that the applicant would provide a substantiated account, which he had failed to do.", "Nor had he provided a consistent account in that regard. Moreover, he had made contradictory statements as to how long he had stayed at home between escaping from prison and leaving the country. 22. On 14 April 2016 the applicant lodged an appeal against that decision before the Federal Administrative Court. He submitted that the authorities had initially refrained from drafting him because of his role as a deacon – the fact that he was a deacon not having been contested by the asylum authority.", "He referred to a report of the European Asylum Support Office (EASO), which stated that the relevant authorities had, at times, deferred the draft of clerics, until a change in practice in 2010 had led to a stricter approach (see paragraph 49 below). The applicant submitted that he had had to undergo his military training in Wi’a, a place to which, according to a report by the US Department of State (see paragraph 51), students with poor grades were typically assigned. Shortly after reporting for duty, he had attempted to escape. He had been caught and, as a result, detained in March 2013. He had managed to escape from detention in September 2013 after seven months.", "Fearing that he would be detained once again or forced to perform military service, he had decided in early October 2013 to leave the country illegally. His family had organised a smuggler. They had fled during the night and, while attempting to cross the border at Mereb, had lost their way. They had been apprehended by Ethiopian soldiers early in the morning of 4 October 2013 and taken to Endabaguna. One week later, they had been transferred to the Hitsas refugee camp.", "23. With regard to the alleged discrepancies relating to his schooling, the applicant submitted that he had difficulties with dates concerning the duration of his schooling and his age when he had started and left school, but emphasised that he had consistently stated that he had left school after eighth grade, having failed the exams to move on to secondary school, and referred to a report by EASO regarding the national examination at the end of eighth grade (see paragraph 49 below). Also, during the hearing he had corrected himself in relation to the commencement of his military training. Furthermore, it was comprehensible that he could not give a detailed account about things which he had learned during that training, given that he had attempted to escape almost immediately after reporting for duty. 24.", "The applicant claimed that the discrepancies between his statements in the first and the second hearings concerning the duration of his detention were due to his poor level of education. He emphasised that his statements as regards the time of the end of his detention, September 2013, were consistent. In relation to the conditions of detention, he argued that the account he had given to the asylum authorities very much reflected his personal experiences: he had stated that the prison had been dirty, that it had been very hot, that detainees had had lice, that there had been fixed meal times, and that he had been taken outside in the mornings and evenings to relieve himself. In light of this monotonous pattern, the mistake, if any, had been on the part of the interviewer, who had asked for a description of specific events. In that regard, the applicant argued that his account that he had been beaten with a wooden stick and kicked while lying on the ground in front of everyone as punishment related to a specific personal event.", "He emphasised that the interviewer had not questioned him about his scars, which he alleged were the result of that incident, or about specific events surrounding his escape from prison, pointing out that the latter issue had been raised by the representative of the non-governmental organisation who had been present as a neutral witness at the second hearing. As to the time between his escape from prison and his departure from Eritrea, the applicant argued that his first statement that he had left Eritrea one week after escaping from prison, and his second statement that he had spent two days at his parents’ home in A. during that time, were not contradictory. 25. With regard to the circumstances of his departure from Eritrea, he emphasised that his account had been consistent as regards the time when he and the smuggler had left the village and when they had been apprehended by Ethiopian soldiers. It was only logical that he could not make detailed statements about the area, as he had no knowledge of that area and had fled during the night.", "His most prominent memory related to the fears he had experienced when they lost their way. He could also recall the exact words in Amharic used by the Ethiopian soldiers when they had been apprehended. His account, which revolved around feelings of thirst, hunger and fear, and which mentioned the many thorn bushes in their way and the howling of hyenas, corresponded to his young age and poor level of education. Moreover, the State Secretariat for Migration had wrongfully concluded that there was a contradiction in his statements concerning the smuggler’s reaction when they had lost their way. 26.", "Lastly, the applicant submitted that he did not belong to any of the groups of people who could possibly obtain a visa to exit Eritrea. Referring to a letter from UNHCR – the original of which he presented – stating that he was registered in the Hitsas refugee camp in Ethiopia on 8 November 2013, and to the fact that crossing the border to enter Ethiopia by land was always unlawful (see paragraph 49 below), he argued that he had proved his illegal exit from Eritrea. 27. In conclusion, the applicant argued that he was a refugee as defined in section 3 of the Asylum Act, on account of his fear of ill-treatment for having deserted from military service. In the alternative, he claimed to qualify for temporary admission because of “subjective post-flight grounds” (as set out in section 54 of the Asylum Act), notably his illegal exit from Eritrea and his asylum application in Switzerland.", "Further, in the alternative, he alleged that his removal to Eritrea was neither permitted in the light of Article 3 of the Convention nor reasonable, entitling him to temporary admission to Switzerland. 28. On 9 May 2016 the Federal Administrative Court rejected the applicant’s appeal, finding that he had failed to credibly demonstrate his asylum claim. It noted that it was not apparent why the applicant’s age – he was 24 years old at the time of his interviews – or level of education should lead to different conclusions as to the credibility of his account, and considered that his two statements concerning the end of his schooling, either in 2005/2006 or 2007/2008, could not be reconciled with each other or with his student identity card, which indicated that he was a student in 2010. The court also considered that the applicant’s statements regarding the time and content of his military training lacked substance.", "It commented that, even if the applicant had left the military shortly after reporting for duty, he could be expected to provide a detailed and specific account of it, given that he merely had to talk about something which he had experienced in person. Viewing the duration and dates of the applicant’s detention as key elements of his asylum claim, the court noted that a discrepancy of eight months as regards the duration, and the different dates given in the first two hearings as regards the end of the detention, constituted fundamental contradictions which could not be resolved by his references to conditions of poor hygiene and being let outside twice a day to relieve himself. 29. Referring to its judgment in an earlier case concerning Eritrea, the court reiterated that the only way to exit Eritrea legally was with a valid passport and an additional exit visa, and that the practice concerning the issuance of an exit visa was very restrictive. They were issued to a few people who were considered loyal, in exchange for payment of significant sums.", "As a rule, children aged 11 or more, men under the age of 54, and women under the age of 47, were not granted exit visas. People attempting to leave the country without authorisation risked their life, as the border guards were under orders to prevent attempts to flee by way of targeted shots (a “shoot to kill” policy), in addition to imposing punishment as set out by law. The Eritrean Government viewed illegal exits as an indication of political opposition, and tried to get both the reduction in defence readiness and the mass exodus under control through draconian measures. 30. The Federal Administrative Court noted that finding that the applicant had concealed the true circumstances of his departure was not in itself sufficient to conclude that he had left the country legally.", "However, the burden of proof did not shift to the authorities, and the applicant was required to provide a substantiated and consistent account concerning the reasons for and circumstances of his departure. Considering that his account given at first-instance level was not credible, which also raised doubts about his overall credibility, and that he had not provided comprehensible explanations in his submissions on appeal, the court found that the applicant had failed to credibly demonstrate that he had left Eritrea illegally. 31. The Federal Administrative Court added that the applicant could not rely on the letter from UNHCR stating that he was registered in the Hitsas refugee camp in November 2013, since the conditions in Ethiopian refugee camps were chaotic and, in the case of people of Eritrean origin, there was no comprehensive assessment of whether they faced persecution at the time they were registered in those camps. This was supported by the wording of the registration, which read that it constituted a recognition prima facie that the applicant was a refugee within the mandate of UNHCR.", "32. Furthermore, the court found that the applicant’s removal was possible, permitted and reasonable within the meaning of section 83(1)-(4) of the Aliens Act. In particular, the applicant was a young man in good health who had a support network in his hometown, notably his wife and their son, who lived in the same house as his parents. 33. On 19 May 2016 the State Secretariat for Migration set a deadline for the applicant’s voluntary departure, which passed on 17 July 2016.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 34. The relevant provisions of the Asylum Act of 26 June 1998 (Asylgesetz, 142.31) read as follows: Section 3 – Definition of the term refugee “1. Refugees are persons who, in their native country or last country of residence, are subject to serious disadvantages or have a well-founded fear of being exposed to such disadvantages for reasons of race, religion, nationality, membership of a particular social group, or owing to their political opinions. 2.", "Serious disadvantages include a threat to life, physical integrity or freedom, as well as measures which exert intolerable psychological pressure. Motives for seeking asylum which are specific to women must be taken into account. 3. Persons who are subject to serious disadvantages or have a well-founded fear of being exposed to such disadvantages because they have refused to perform military service or have deserted are not refugees. The provisions of the Convention of 28 July 1951 relating to the Status of Refugees are reserved.", "4. Persons who claim grounds based on their conduct following their departure which are neither an expression nor a continuation of a belief already held in their native country or country of origin are not refugees. The provisions of the Convention of Refugee Convention are reserved.” Section 5 – Ban on refoulement “1. No person may be forced in any way to return to a country where his or her life, physical integrity or freedom is threatened for any of the reasons stated in section 3(1), or where he or she would be at risk of being forced to return to such a country. 2.", "The ban on refoulement may not be invoked if there are substantial grounds for the assumption that, because the person invoking it has a legally binding conviction for a particularly serious felony or misdemeanour, he or she represents a threat to Switzerland’s security or is to be considered dangerous to the public.” Section 7 – Proof of refugee status “1. Any person who applies for asylum must prove or at least credibly demonstrate his or her refugee status. 2. Refugee status is credibly demonstrated if the authority regards it as proven on the balance of probabilities. 3.", "In particular, cases are not credible if they are unfounded in relation to essential points or are inherently contradictory, do not correspond to the facts, or are substantially based on forged or falsified evidence.” Section 54 – Subjective post-flight grounds “Refugees shall not be granted asylum if they became refugees in accordance with section 3 only by leaving their native country or country of origin, or as a result of their conduct after their departure.” The relevant provision of the Aliens Act of 16 December 2005 (Bundesgesetz über die Ausländerinnen und Ausländer, 142.20) provided as follows: Section 83 – Order for temporary admission “1. If the enforcement of removal or expulsion is not possible, not permitted or not reasonable, the SEM [State Secretariat for Migration] shall order temporary admission. 2. Enforcement is not possible if the foreign national is unable to travel or be taken to his or her native country, or country of origin, or a third country. 3.", "Enforcement is not permitted if Switzerland’s obligations under international law prevent the foreign national from making an onward journey to his or her native country, country of origin, or a third country. 4. Enforcement may be unreasonable in respect of foreign nationals if they are specifically endangered by situations such as war, civil war, general violence and medical emergency in their native country or country of origin. ... 8. Refugees for whom there are reasons to refuse asylum in accordance with sections 53 and 54 [of the Asylum Act] shall be granted temporary admission.", "...” 35. In accordance with the consistent case-law of the domestic courts, cases where applicants made new submissions which were not part of previous asylum proceedings, and on the basis of which they claimed to be refugees, were to be treated as subsequent asylum applications under section 111c of the Asylum Act (see, for example, Federal Administrative Court judgment of 16 December 2014, no. E-1666/2014, paragraph 4.6). Where the submissions only related to new impediments to the enforcement of the person’s removal and did not contain new aspects concerning the criteria of the refugee definition, they were to be treated as requests for reconsideration under section 111b of the Asylum Act (ibid.). III.", "RELEVANT COUNTRY INFORMATION ON ERITREA A. Reports by the UN Commission of Inquiry on Human Rights in Eritrea 1. The first report (2015) 36. On 5 June 2015 the UN Commission of Inquiry on Human Rights in Eritrea (“the Commission”) presented the 483-page detailed findings of its first report to the UN Human Rights Council (A/HRC/29/CRP.1). 37.", "It observed that, pursuant to Article 5 of Proclamation No. 82/1995 (National Service Proclamation), all Eritrean nationals between the ages of 18 and 50 had a duty to participate in national service (§ 1178 of the report). Exemptions were applied very narrowly in practice, and mainly concerned people with severe permanent disabilities, as well as married women and single mothers (§§ 1193-1210). Those between the ages of 18 and 40 had a duty to participate in an 18-month period of active national service, comprising six months of military training in a training centre, followed by twelve months of active military service and development work in a combat force unit (§ 1179). The Government extended the statutory national service period of 18 months and made it an indefinite period, effectively leading to a constant state of general mobilisation, arguing that the “no war, no peace” situation with Ethiopia justified the indefinite extension of the period of conscription (§ 1181).", "National service was also designed to contribute to the economic reconstruction of the country following the struggle for independence, and conscripts were assigned to perform a broad set of tasks, going far beyond military core functions, and working in the development, construction and maintenance of infrastructure projects, in the agricultural sector and in the fledgling industrial and mining sectors (§§ 1176-1177). 38. The Commission documented a pattern of conscription into national service at an early age with no prospect of formal discharge or release for other reasons, noting that there was a clear pattern of conscription beyond the statutory period of 18 months of national service (§ 1250). Conscripts were not informed about the length of time they were expected to serve beyond the statutory 18 months, and had to remain in national service when the mandatory period of active national service lapsed (ibid.). 39.", "While the majority of conscripts were sent to the Sawa military training camp, certain conscripts were sent to other military training camps (§ 1294). The latter category of conscripts included children and adults who had been caught attempting to flee and were thus seen as “traitors”; individuals who were being punished for the conduct of their parents; those who had not reached twelfth grade because they had dropped out of school, had not attended classes or had not passed exams; and those suspected to have purposely repeated classes several times to avoid reaching twelfth grade and being sent to Sawa (ibid.). One of the most notorious camps was opened in Wi’a in around 2003 and was in operation until its closure sometime before 2010 following a high number of deaths among conscripts (§ 1295). Testimonies corroborated by satellite imagery indicated that Wi’a had subsequently been reopened (ibid.). The Commission found that the harsh treatment, the lack of a clear distinction between training and labour, combined with the blurred line between trainees and detainees suggested that Wi’a may have been used as a re-education and correction camp rather than a normal training centre (§ 1302).", "40. Article 37 of the National Service Proclamation provided for punishments for the non-performance of military service, without prejudice to more rigorous punishment under the 1991 Transitional Penal Code of Eritrea (§ 1234). Under the Transitional Penal Code, this statutory offence could lead to imprisonment for longer periods of time, up to life imprisonment in the case of desertion in times of emergency, general mobilisation or war (ibid.). Desertion from active service could be punished by the death penalty (ibid.). In practice, draft evaders and deserters, if caught, were severely punished (§ 1241), and the treatment of apprehended draft evaders and deserters during detention often amounted to torture, cruel, inhumane or degrading punishment (§ 1389).", "41. The Commission further noted that Eritrea imposed severe restrictions on citizens’ departure from the country (§ 400). Exit visas were required (§ 401). The criteria and conditions for granting an exit visa were not provided for by law and were left to the determination of the Government (§ 402). Testimony collected by the Commission revealed that exit visas were issued to certain individuals like older women, individuals who had completed national service, when the nature of their occupation required regular travel, and individuals who needed medical treatment abroad (§§ 403-404).", "Proclamation No. 82/1995 prohibited Eritrean citizens of military age from going abroad unless they could prove that they had fulfilled their national service duty or were permanently exempt from doing so (§ 406). 42. The Commission considered that the testimony collected indicated that the border was relatively porous (§ 416). Escapees usually crossed the border on foot (§ 417) and often hired smugglers who knew where border guards were stationed (§ 418).", "43. As regards individuals forcibly returned to Eritrea, the Commission stated: “431. Individuals forcefully repatriated are inevitably considered as having left the country unlawfully, and are consequently regarded as serious offenders, but also as ‘traitors.’ A common pattern of treatment of returnees is their arrest upon arrival in Eritrea. They are questioned about the circumstances of their escape, whether they received help to leave the country, how the flight was funded, whether they [had] contact with opposition groups based abroad, etc. Returnees are systematically ill‑treated to the point of torture during the interrogation phase.", "432. After interrogation, they are detained in particularly harsh conditions, often to ensure that they will not escape again. Returnees who spoke to the Commission were held in prison between eight months to three years. Male returnees from [country A] were held on Dhalak Island after a few months of detention at Adi Abeito. Deportees from other countries were held in prisons such as Prima Country and Wi’a.", "433. Witnesses who spoke to the Commission noted the severe conditions during their detention. They were made to undertake forced labour and were frequently punished by prison guards for inconsequential matters. [Country A] returnees recounted that, on one occasion, they had been reportedly even denied drinking water where they were detained at Dhalak Island where temperatures often soared to 50 degrees Celsius. As a consequence, many fell sick after drinking unsafe water.", "... 435. At no point are returnees given opportunity to contact their families, nor are they informed of the length of their detention. Relatives find out about individuals who have been forcefully repatriated only when the latter manage to escape from the prison or the national service, or flee the country another time. After their release, women and accompanied children are usually allowed to go home. Male unaccompanied minors and those of draft age are sent to military training.", "436. The Commission found however two exceptions to the rule that returnees are arrested, detained and forced to enlist in the national service upon their arrival in Eritrea. A group of Eritreans was returned from [country D] with a letter certifying that they had paid the 2 per cent Rehabilitation Tax and had already been detained several years in [country D]. The witness had himself been imprisoned for three years in [country D]. He was given a permit to return to his hometown, but which had to be renewed every two months.", "He left Eritrea again shortly after being deported. The other case concerned forced repatriations to Eritrea in 2014, where seven older men were reportedly freed while the younger men who were returned in Eritrea at the same time were not released.” 2. The second report (2016) 44. On 9 May 2016 the Commission presented its second report to the UN Human Rights Council (A/HRC/32/47), which stated: “33. On 8 April 2015, Yemane Gebreab, at the Bruno Kreisky Forum for International Dialogue, announced that Eritrea intended to limit its military/national service programmes to 18 months.", "Eight months later, however, the Government stated: Eritrea has no option but to take necessary measures of self-defense that are proportionate to the threat it faces ... This is the reason why National Service – limited by law to 18 months – remains prolonged. 34. In February 2016, the Minister for Information, Yemane Ghebremeskel, confirmed that there were no plans to limit military service programmes, stating that ‘demobilization is predicated on removal of the main threat’, and ‘You are talking about prolongation of national service in response to ... continued belligerence by Ethiopia.’ 35. The commission emphasizes that mandatory military/national service is not necessarily a human rights violation.", "What distinguishes the military/national service programme in Eritrea from those in other States is (a) its open-ended and arbitrary duration, which routinely exceeds the 18 months provided for in a decree issued in 1995, frequently by more than a decade; (b) the use of conscripts as forced labour in a wide range of economic activities, including private enterprises; and (c) the rape and torture perpetrated in military camps, and other conditions that are often inhumane. ... 37. In its first report, the commission reported extensively on cases of arbitrary detention, enforced disappearance, and torture and other cruel, inhuman or degrading treatment in detention centres, military and civilian, official and unofficial. 38. The commission interviewed many Eritreans who had fled the country in the previous two years and reported that the violations described continue.", "Almost all of those arrested are detained in violation of fundamental rules of international law. Apart from those accused of minor common crimes or misdemeanours, most are detained without any form of judicial proceeding whatsoever. In the vast majority of those cases, the families of those detained receive no official information about the fate of their relatives. Lastly, many of those detained who spoke with the commission – either because they had been released or because they had escaped – described various forms of torture inflicted on them to obtain information or to punish them for alleged wrongs, or simply to create a general climate of fear. ... 57.", "In its resolution 29/18, the Human Rights Council extended the mandate of the commission of inquiry to investigate systematic, widespread and gross violations of human rights in Eritrea, including where these violations may amount to crimes against humanity. ... 65. ... [T]he victims of the military/national service schemes in Eritrea are not bought and sold on an open market. Rather, the powers attaching to the right of ownership in Eritrea are revealed by (a) the uncertain legal basis for the national service programmes; (b) the arbitrary and open-ended duration of conscription, routinely for years beyond the 18 months provided for by the decree of 1995; (c) the involuntary nature of service beyond the 18 months provided for by law; (d) the use of forced labour, including domestic servitude, to benefit private, PFDJ-controlled and State-owned interests; (e) the limitations on freedom of movement; (f) the inhumane conditions, and the use of torture and sexual violence; (g) extreme coercive measures to deter escape; (h) punishment for alleged attempts to desert military service, without an administrative or judicial proceeding; (i) the limitations on all forms of religious observance; and (j) the catastrophic impact of lengthy conscription and conditions on freedom of religion, choice, association and family life. ... 68.", "The commission concludes that there are reasonable grounds to believe that, within the context of military/national service programmes, Eritrean officials exercise powers attaching to the right of ownership over Eritrean citizens. It also determines that, despite the justifications for a military/national service programme advanced in 1995, the programmes today serve primarily to boost economic development, to profit State-endorsed enterprises and to maintain control over the Eritrean population in a manner inconsistent with international law. The commission therefore finds that there are reasonable grounds to believe that Eritrean officials have committed the crime of enslavement, a crime against humanity, in a persistent, widespread and systematic manner since no later than 2002.” 45. These aspects are further elaborated on in the detailed findings which the Commission presented to the UN Human Rights Council on 8 June 2016 (A/HRC/32/CRP.1). B.", "Reports by EASO 1. The November 2016 report “Eritrea – National Service and Illegal Exit” 46. In November 2016 EASO published a country of origin information report entitled “Eritrea – National Service and Illegal Exit”. The report was authored by the Swiss State Secretariat for Migration, which also published the German version of the report in June 2016, and reviewed by the Norwegian and Swedish asylum and migration departments prior to its publication. It constituted a partial update of the May 2015 EASO report “Eritrea Country Focus”.", "47. In its introductory chapter (pp. 13-17), the November 2016 report elaborated on the methodology employed and the sources used. A fact‑finding mission to Eritrea and neighbouring countries had been conducted in February and March 2016. The report stated: “[It] was not possible to visit any detention facilities during official visits made to Eritrea.", "Other migration services, international organisations and diplomats likewise had no access to Eritrean prisons. ... Access to information about Eritrea, particularly on human rights issues, is difficult. The Eritrean Ministry of Information controls all media in Eritrea. Researchers, journalists and representatives of human rights organisations are generally unable to conduct research in the country, or can do so only to a very limited degree. The Eritrean authorities publish very little detailed information about the national service.", "There is a similar lack of transparency regarding the implementation of legislation on national service and illegal exit; and the authorities do not publish any guidelines or implementing provisions. This means that there is a lack of essential sources of information on those topics that are relevant to international protection status determination. The information available is based almost exclusively on the following three categories of sources: Statements made by the Eritrean government: The Eritrean government generally dismisses all allegations of human rights violations. It makes its statements public, inter alia, via Eritrea’s state media, including the portal www.shabait.com. Representatives of the Eritrean government, of the ruling party (the People’s Front for Democracy and Justice, PFDJ) and of organisations close to the government also constantly make statements to foreign media and delegations.", "These statements can be accessed via the media and in various Country of Origin Information (COI) reports. Assessments by persons in Eritrea: Residents of Eritrea (Eritreans and foreign nationals) are best placed to report on the current situation in the country. However, in the experience of the SEM, their knowledge is limited: just like foreign visitors, people from Asmara who are normally contacted by journalists and other observers have no access, for example, to prisons or military camps, meaning that information they provide is based on reports from acquaintances. In recent years, the Eritrean authorities have appeared to tolerate greater criticism. However, residents of Eritrea are rather cautious and reserved when speaking to foreigners (in particular foreign media and official delegations).", "Accordingly, situation reports provided by Eritrean residents and foreign observers (diplomats, employees of international organisations) tend to be more positive than those provided by exiled Eritreans. These assessments – predominantly assessments by foreign observers – are accessible, inter alia, in the reports produced by various national COI units in Europe. Assessments by persons who have left Eritrea: Reports by human rights organisations in particular are based to a considerable extent on statements by people who have left Eritrea. In the experience of the SEM, these organisations are mainly contacted by people who claim to have had terrible experiences before leaving the country or who, for other reasons, would like to draw attention to abuses in Eritrea. The Eritrean government is likewise frequently the subject of harsh criticism in pro‑opposition diaspora media; there are, however, also pro-government diaspora media.", "The views of people who have left Eritrea can mostly be found in human rights reports produced by organisations such as Human Rights Watch and Amnesty International or by the US Department of State, and also sometimes in the media in the destination countries of Eritrean migrants. ... The Swiss [Country of Origin Information] unit’s views on the sources used in the individual sections are as follows: Legal position: The Eritrean legal provisions on national service and illegal exits are publicly accessible. However, the authorities’ and the military’s internal guidelines are not accessible despite apparently also being applied in those areas. Position of the Eritrean government: This information is mostly based on statements made by representatives of the Eritrean government, of the authorities, of the ruling party (the PFDJ) or of one of two organisations that are close to the government, the National Union of Eritrean Youth and Students (NUEYS) and the National Union of Eritrean Women (NUEW).", "During the fact-finding mission, these representatives provided information on the topics covered in this report. The Eritrean authorities proofread and confirmed all the statements taken from the discussions held and used in the report. In addition to the interviews conducted as part of the fact‑finding mission, public statements made by representatives of the Eritrean government were also included in the report. The government representatives provided information about the arrangements for dealing with deserters, draft evaders etc. that is at odds with the legal position.", "However, neither they nor other people interviewed as part of the fact-finding mission were able to substantiate the information provided by means of guidelines, court judgments or statistics. Nor was it possible to discuss issues relating to national service with the competent ministry – the Ministry of Defence. Views of international observers in Asmara: The assessments of the situation by people in Eritrea were mostly obtained by interviewing representatives of international organisations and foreign embassies as well as a number of other residents of Asmara. The views of the international observers are based almost exclusively on anecdotal knowledge acquired from conversations with Eritreans and on the conclusions that they themselves have drawn from that information. Since these observers are based in Asmara, this anecdotal knowledge relates mostly to the capital and its surrounding areas; regional variations cannot be ruled out.", "They also do not have access to guidelines, court judgments or statistics about the arrangements for dealing with deserters, draft evaders etc. Since only relatively few international representatives reside in Asmara and they are in frequent contact with one another, there is a risk of information round-tripping and false corroboration. In addition, in isolated cases, this section also provides information obtained from interviews with Eritreans living in Asmara. At the request of the people interviewed for this report, the sources of all information of this kind have been made anonymous. 2015 and 2016 reports: Four different categories of reports were used: • Detailed human rights reports published by the UN Commission of Inquiry in June 2015 and 2016 and by Amnesty International in December 2015.", "Both sets of reports are mainly based on statements made by people who have left Eritrea for reasons that make them very critical on the situation there, and in addition on external experts and public sources. The statements used by Amnesty International relate to 2014 and 2015, and those used by the UN Commission of Inquiry cover the period from 1991 to 2015/2016. • Annual summary reports on the human rights situation in 2015 produced by Amnesty International, Human Rights Watch and the US State Department. These reports are based on a variety of sources, primarily from outside Eritrea, which in most cases are not explicitly stated. • Reports by Country of Origin Information (COI) units in the United Kingdom, Norway and Sweden that were published following fact-finding missions conducted in late 2015 or in the spring of 2016.", "In producing these reports, and in addition to the findings of the fact-finding missions, these units (with the exception of the UK unit) also used findings taken from other reports and the views of experts from outside Eritrea. • Various relevant media reports from Europe, Eritrea and the Eritrean diaspora that are based on a very wide variety of sources.” 48. In substance, the report stated: “According to most sources consulted for this report, deserters apprehended within Eritrea are usually returned to their military unit or civilian duty and punished. These punishments are imposed extrajudicially by their superiors. There is no possibility of appeal.", "However, the treatment of deserters appears to have become less harsh in recent years. Most sources report that first time offenders are now usually detained for several months. Punishment for deserters from the military part of national service is reportedly more severe than punishment imposed on those deployed in the civilian part. As deserters are not tracked down systematically, a number of them effectively go unpunished. ...", "According to almost all sources, individuals who leave Eritrea illegally are also subjected to extrajudicial punishment. It is unclear who is in charge of imposing penalties. No judgments are made public and there is no possibility of appeal. However, the policy currently applied by the authorities appears to allow for shorter prison sentences than those enshrined in the law. According to most reports, the detention period now commonly lasts a few months up to two years, depending on the circumstances.", "After being released, deserters have to resume their national service, while draft evaders are conscripted for military training. The alleged ‘shoot-to-kill order’ at the border is not followed strictly, according to most consulted sources. However, shootings may occur. For voluntary returnees from abroad who had previously evaded draft, deserted or left the country illegally, the draconian laws are reportedly not applied at the moment, provided they have regularised their relationship with the Eritrean authorities prior to their return. According to a new, unpublished directive, such returnees are exempt from punishment.", "It is understood that the majority of the individuals who have returned according to this directive have effectively not been persecuted. Nonetheless, concerns remain. There is no legal certainty, because the directive has never been made public. Furthermore prospective returnees are obliged to pay a diaspora tax (2% tax) to an Eritrean representation abroad and to sign a ‘letter of regret’ in case they have not yet fulfilled their national service duty. It should also be noted that not all Eritreans are able to return this way.", "For example, persons who were critical of the Eritrean government during their time abroad are either denied return or would risk detention upon their return. So far, the majority of Eritreans who returned did so voluntarily and only temporarily. The long-term consequences of returns on a permanent base are still unknown. There is hardly any information available regarding the treatment of forcibly returned persons. In the last few years, only Sudan (and possibly Egypt) forcibly repatriated Eritreans.", "As opposed to voluntary returnees, those forcibly returned are not able to regularise their relation with the Eritrean authorities prior to returning. The few available reports indicate that the authorities treat them similarly as persons apprehended within Eritrea or while leaving illegally. For deserters and draft evaders, this means being sent back to national service after several months of detention. Regularisation is not necessary for persons who have not reached conscription age yet or who have fulfilled their national service duty already. Nevertheless, it cannot be excluded that adults are punished for non-payment of the diaspora tax or for illegal exit.", "Over the last few years, the Eritrean authorities have announced several reforms of the national service. Most notably, they promised to limit the length of duty to 18 months starting from the 27th conscription round. This has not been fulfilled yet. National service remains open-ended and conscription lasts for several years. According to sources consulted, a growing number of conscripts who had been deployed in civilian roles are discharged once they have served for between 5 and 10 years.", "However, no reliable information is available on the demobilisation and dismissal of conscripts assigned to the military part of national service. In early 2016, the authorities announced a pay rise in the civilian part of the national service. According to sources consulted, implementation has already started.” 2. The May 2015 report “Eritrea – Country Focus” 49. The report set out, inter alia, the following: “Education ...", "In theory, school attendance is compulsory for the first eight years. At the end of the eighth year, children sit a national examination before moving on to secondary school; the pass rate stands at about two-thirds. ... Exemptions from national/military service ... In the past, religious leaders of the four official religious communities ... were partially exempt from military service but this stopped being the case in 2010 at the latest.", "... Legal exits ... [Legal] [b]order crossings are only possible at one of the allocated border control points, which include Asmara airport, Massawa sea port and several border crossings into Sudan ...” 3. The report “Latest asylum trends – 2016 overview” 50. The report set out, inter alia, that in 2016 92% of the decisions on applications for international protection from Eritrean nationals taken in Member States of the European Union plus Switzerland and Norway were positive, that is resulting in the grant of either refugee status or another form of protection. C. The 2009 Country Report by the US Department of State 51. The 2009 Country Report on Human Rights Practices – Eritrea, published by the US Department of State on 11 March 2010, stated, inter alia: “Students who received poor grades in high school had in the past been sent to the Wi’a Military Camp in lieu of being allowed to complete the academic year.” D. Relevant case-law of the Upper Tribunal (Immigration and Asylum Chamber) of the United Kingdom 52.", "On 10 October 2016 the Upper Tribunal (Immigration and Asylum Chamber) of the United Kingdom (hereafter “the Upper Tribunal) issued country guidance in its judgment in the case of MST and Others (national service – risk categories), Eritrea CG [2016] UKUT 00443 (IAC), which contained a comprehensive examination of all up-to-date material on Eritrea. The judgment’s findings included the following: “... National service ... 280. [T]he preponderance of the evidence points strongly to the conclusion that the Eritrean regime of military/national service (excluding civilian national service and the people’s militia), is characterised by a system that often responds to transgressors with harsh and disproportionate punishments. We exclude from this conclusion civilian national service and the people’s militia because by contrast the evidence does not demonstrate that punishment for transgressions by persons evading or deserting from one or the other is either as likely or as severe in nature. 281.", "We would accept that the preponderance of evidence also indicates that roundups (giffas) are happening less frequently and that the ‘shoot to kill’ policy is now intermittent and arbitrarily applied and that punishment of family members or associates may not be as common as it was, but these are only some of the regime’s repertoire of punishments, and there is a substantial body of evidence, including the US State Department reports, indicating that the generality of evaders and deserters are harshly punished and this is a common thread running through the majority of source evidence. We note that the 2015 [UN Commission of Inquiry] Report ... refers to the grant of an amnesty to deserters in November 2014, but this was from detention and the Report does not suggest this represented a change of government policy. The main evidence concerning this matter on which the respondent relies is that from Eritrean government ministers and interviews with individuals during the [fact-finding mission of the United Kingdom] and we have explained why we feel that this evidence should be approached with caution ... We have taken into account the evidence of [Amnesty International] ... that punishment for deserters is generally more severe although this is arbitrary and that the generality of evaders and deserters are punished with imprisonment for varying periods. Those caught on the border trying to flee are almost always subjected to periods of arbitrary detention. Generally ... those arrested for evading service are detained for some time between one and six months.", "The reports demonstrate ... a high level of variation which is said to be indicative of the arbitrary nature of punishments that are at the discretion of officers. The EASO Report [of May 2015] concludes ... that deserters and evaders are punished by imprisonment if caught within the country before being able to leave or on return at the airport and that punishment is harsh being more severe for deserters. [The] evidence [of expert witness Professor Kibreab] throughout is that deserters/evaders will be subject to persecution. 282. The 2015 [UN Commission of Inquiry] Report ... reports arbitrary detention, enforced disappearance, torture and mistreatment generally in Eritrean detention centres.", "The Commission spoke to those who had fled in the past two years and reported that they had been subject to ill-treatment and detained without due process. The Commission ... reports arbitrary detention for periods ranging from months to years, enforced disappearances ... and torture ... EASO reports ... poor conditions in detention. The Swiss fact-finding report of March 2016, to which several references are made in the new Home Office [Country Information and Guidance] of August 2016, considers that even though the treatment of deserters appears to have become less harsh in recent years, ‘[m]ost sources report that first time offenders are now usually detained for several months’ ... Given that we consider anything beyond very short-term detention in Eritrea to create a real risk of ill-treatment, this confirms our view that deserters/evaders continue to face a real risk of persecution. 283.", "To summarise, we reject the respondent’s case that enforcement and punishment is reserved for those who are involved in oppositional activity over and above desertion or evasion. It is impossible in our view to derive from the evidence as a whole any other conclusion than that for Eritreans inside the country any evasion of military service or desertion still carries a real risk that the generality of transgressors will be subject to treatment which amounts to persecution as well as serious harm. ... 287. As regards the eligibility requirements for national service, age (and duration) in particular, we will deal below with the age requirements when considering the categories of lawful exit visas ... But in a nutshell we consider that the age limits for national service are likely to remain the same as stated in MO [(illegal exit – risk on return), Eritrea CG [2011] UKUT 00190 (IAC)], namely 54 for men and 47 for women except that for children the limit is now likely to be 5 save for adolescents in the context of family reunification.", "For the people’s militia, the age limits are likely to be 60 for women and 70 for men. 288. In relation to duration, it is agreed on all sides that national service is indefinite and open-ended, but there is disagreement as to whether this means that it results in most Eritreans performing military/national service duties permanently or for very prolonged periods. As noted above, the respondent’s position is that actual performance of military/national service is variable and uncertain, but that there is a real prospect of discharge. This is in stark contrast to the position of the appellants, UNHCR and [Professor Kibreab].", "289. We accept that there are no clear statistics relating to the number of individuals in national service, but it is reasonable to infer from what evidence there is, that at any one time most people are not engaged in the performance of military or national service duties. Most sources estimate Eritrea to have a population of over 6.3 million. The 2015 [UN Commission of Inquiry] Report states that there are 201,750 active members of the armed forces, the majority being national service conscripts ... The EASO Report [of May 2015] ... states that there is no official data available regarding the number of people engaged in national service but various estimates place the figure at between 200,000 and 600,000 in recent years, approximately half of whom are assigned to active military service.", "[Professor Kibreab]’s opinion is that 9.2 per cent of the population has been conscripted over the past 20 years (the figures, he states, do not take into account those who have fled the country). The respondent does not accept [Professor Kibreab]’s percentage figure, claiming that it is far less. However, even if we accept [Professor Kibreab]’s opinion on the issue, which is the most favourable to the appellants, the figures are significant. The only logical conclusion we can draw from them is that active performance of national service duties cannot be as extensive as the appellants and UNHCR assert. The system remains indefinite and open-ended in the sense that all persons of or approaching eligible draft age or within the age limits for the people’s militia remain obliged to perform military/national service; but it is a distinct matter whether persons have to actually perform military/national service and for what periods of time.", "We shall return to the possible implications of this conclusion when we deal further with demobilisations/discharges ... 290. We also consider the evidence to indicate that discharge/release is a more common phenomenon than the appellants contend. We will address this issue more fully when we deal with demobilisations/discharges and with draft evaders and deserters ... 294. We note that there is wide recognition that (separate from the legal possibilities for exemption, which all agree are limited by legislation to medical cases), a significant number of people appear able to obtain exemptions based on contacts and/or bribes. We take the principal thrust of the evidence regarding such avenues as being that national service is not necessarily an unavoidable experience for everyone in Eritrea.", "... 304. A person starts national service at age 18 or indeed even younger in some cases. It is very unlikely that a conscript will be released within the first 18 months of service when a conscript is engaged in active national service (which comprises six months military training and 12 months military service). Our understanding is that immediately after this period conscripts are redeployed. The evidence points strongly, therefore, to a system which conscripts young people at 18 (or earlier) and then requires them to continue national service uninterrupted beyond completion of the initial 18 months.", "When a person starts national service, the term they will be expected to complete is not known and to this extent it is arbitrary and indefinite. Ordinarily, by the time they are in their mid-20s (unless they have been discharged or dismissed or released) they are likely to have been in national service for 7 years. The critical issue is how long the period is likely to be for them to be accepted to have completed national service in the eyes of the Eritrean authorities. Here there is evidence going both ways. ... 306.", "We are bound to say we have had very considerable difficulty deciding this issue, notwithstanding the preponderance of sources that describe national service as protracted, for two reasons. First, because for reasons set out earlier we consider it likely that release is commonplace. Secondly because (as also noted earlier) the figures of persons involved in national service at any one time appear to indicate that 9 out of 10 persons are not engaged in national service duties. If we had felt able to draw inferences from these two findings alone, we might well have concluded that the Eritrean authorities are likely to regard 7 years as being long enough for them to be satisfied an Eritrean citizen has completed national service. We are certainly satisfied that the great majority of Eritreans begin national service at the age of 18 (if not earlier) and continue in national service beyond the 18 months period and that this means that ordinarily, by the time they reached 25 (if they have not been discharged, dismissed or released), they would have performed 7 years of national service.", "As a corollary, we would have concluded that the category of those who have left Eritrea illegally who would be perceived on return as draft evaders or deserters would be confined to those who were under the age of 25 or could otherwise show that they had not yet served 7 years. However, we do not think inferences can be drawn from these two findings alone. It seems to us that the broader body of evidence identifying national service as prolonged must be weighed in the balance and accorded due weight. Even in relation to the evidence regarding release, it is likely that in a significant number of cases release is simply de facto, without it being confirmed by official documentation which makes it likely that it would be difficult for the generality of beneficiaries to show that their national service was formally complete. ...", "Eligibility for national service and exit visas 308. By Article 17 of Proclamation No.82/1995 an Eritrean citizen ‘under the obligation of national service ... may be allowed to travel abroad’ by producing evidence that he or she is exempted or has completed his or her service or by producing a registration card and entering into a security bond. Lawful exit from Eritrea requires an exit visa issued by the Department of Immigration. According to the 2015 [UN Commission of Inquiry] Report ... exit visas are issued to certain individuals without difficulty and in this regard mention is made of three categories: older women; individuals who have completed national service when the nature of their occupation requires regular travel; and conscripts travelling for official business for the government, although it is emphasised that the system operates arbitrarily. ... 326.", "Of course, in regard to all ... categories we accept there are continuing uncertainties and contradictions (as highlighted by the EASO Report [of May 2015]) and a certain degree of arbitrariness (as highlighted by [Professor Kibreab] and the [UN Commission of Inquiry] Reports). [The] categories represent therefore only those mostly likely to be available; there remains the possibility in any individual case of denial. ... 328. We conclude that the categories of lawful exit have not significantly changed since MO. The Eritrean system of exit visas continues to afford, and to be perceived by a significant number of Eritreans as affording, real, albeit restricted, possibilities for them to avail themselves of and accordingly we would list the exit categories as follows (where the categories are different from those given by EASO [in May 2015], they are underlined): ...", "The 2 per cent tax and the regret letter ... 333. The weight of the evidence points very much in the direction that the letter and the tax do not guarantee safety for Eritreans returning; rather they enable them to access consular services. There is scant evidence of anyone who has not been naturalised in another country paying the tax and/or signing the letter and returning safely or otherwise. We accept [Professor Kibreab]’s evidence about this, which was very much corroborated by evidence from other sources. There being insufficient detail about the returnees to draw conclusions, we would have reached this conclusion independently in any event.", "Apart from the two exceptions referred to by the [UN Commission of Inquiry], it would appear that the bulk of the examples cited concern or may concern persons who voluntarily returned, which in our view (as set out below when dealing with failed asylum seekers and forcible returns ...) puts them in a different category. 334. Suffice to say for the purpose of this section, that we do not accept that the evidence goes anywhere close to establishing that the payment of the tax and the signing of the letter would enable draft evaders and deserters to reconcile with the Eritrean authorities. In relation to the letter of regret, we also have serious doubts that it can properly be described as a basis for reconciliation, since its terms amount to a confession of guilt by the person who signs it to what the Eritrean regime considers ‘appropriate punishment’ in the context of a regime with a very poor human rights record. Failed Asylum Seekers 335.", "In MO the Tribunal ... held that failed asylum seekers as such are not at risk of persecution on return. We do not detect any enthusiasm from any of the parties for a different view being taken today. Indeed the appellants’ expert witness [Professor Kibreab], was adamant that failed asylum seeking could not be enough on its own to engender risk because of the main reasons highlighted in MA [(Draft evaders – illegal departures – risk) Eritrea CG [2007] UKAIT 00059] and MO that the Eritrean authorities have a vested interest in embedding abroad people who claim asylum but are in reality well-regarded by the government and that a significant number appear to be in reality supporters of the Eritrean government or able to demonstrate that they are through attendance at rallies etc. 336. We note that references can be found in some of the sources taking a different view, but here we regard the way the matter was put by the April 2015 Landinfo Report, that there was ‘no empirical evidence’ to support the contention that an application for asylum will lead to adverse reactions from the Eritrean authorities, as being entirely fair.", "337. To the extent that any inferences can be drawn from the evidence overall, it seems to us that there is likely to be a further reason presently why the Eritrean authorities would not view the mere fact of being a failed asylum seeker adversely. This is that the Eritrean authorities consciously recognise the economic value to them of having a sizeable diaspora who send remittances and some of whose members also pay the 2 per cent tax. Rightly or wrongly, they clearly consider that many of the Eritreans who have left have done so out of a desire for economic betterment rather than asylum yet go on to claim asylum as a way of residing elsewhere. That may be a factor that has played a part in Eritrean government thinking for some time, but recent evidence does underscore how greatly the Eritrean government depends on foreign remittances.", "According to Crisis Group Africa Briefing No 100 August 2014 (‘Eritrea: Ending the Exodus?’) remittances inject hard currency into the country’s meagre foreign exchange reserves, whilst bolstering the economic resilience of the families left behind and the government has become increasingly dependent on Eritreans abroad as a source of capital. It was estimated that approximately one third of Eritrea’s 2005 GDP came from remittances and this may have increased. Whilst there are still references in some sources to the Eritrean authorities viewing failed asylum seekers as traitors, we continue to follow MO in considering this as something only likely to be acted on in any way when there is a particular symbolic importance for Eritrea public policy e.g. when dealing with collective expulsions back to Eritrea. This last observation, however, is we think of greater importance than previously, because what we have to consider is not just how failed asylum seeking as such would be perceived, but how the Eritrean authorities would react to persons perceived as draft evaders or deserters when forcibly returned.", "Illegal exit by those perceived on return to be draft-evaders or deserters ... 344. As regards the issue of how decision-makers should decide whether a person has left illegally, we see no reason to differ from the precise terms of the guidance in MO ...: ‘(iii)... The general position as regards illegal exit remains as expressed in MA, namely that illegal exit by a person of or approaching draft age and not medically unfit cannot be assumed if they have been found to be wholly incredible. However, if such a person is found to have left Eritrea on or after August/September 2008, it may be that inferences can be drawn from their health history or level of education or their skills profile as to whether legal exit on their part was feasible, provided that such inference can be drawn in the light of adverse credibility findings.’ None of the parties has pointed to any evidence indicating the need for a different approach on this issue. We would next reiterate that it is incorrect of the March and September 2015 and August 2016 [Country Information and Guidance] to portray (as they certainly do in places) the position set out in MO as being that Eritreans who left illegally are considered to be, per se, at risk.", "The MO position was explicitly stated as being subject to three exceptions ... Indeed, UK country guidance has never asserted that the fact of illegal exit from Eritrea is of itself enough to place a person at risk. 345. ... [O]ur view is that the totality of the evidence continues to support the view that the fact of illegal exit is not of itself enough to place an individual at risk. 346.", "The question is, therefore, what further characteristics are needed to place a person at real risk of persecution or serious harm on return. 347. We consider two further characteristics are needed: (i) that they will be perceived on return as evaders/deserters; and (ii) that they will be persons subject to forcible return. Even then, however, we continue to think that this category is subject to certain exceptions and that they are exactly the same as those identified in MO, namely (1) persons whom the regime’s military and political leadership perceives as having given them valuable service (either in Eritrea or abroad); (2) persons who are trusted family members of, or are themselves part of, the regime’s military or political leadership. A further possible exception, requiring a more case specific analysis is (3) persons (and their children born afterwards) who fled (what later became the territory of) Eritrea during the War of Independence.", "We do not accept the position identified in the latest version of the Home Office [Country Information and Guidance] on Illegal Exit published on 4 August 2016 that the scope of these exceptions has widened. ... 354. What, then, is the basis for considering that those who left illegally and will be perceived on return as draft evaders/deserters would be at risk? There is first of all, the evidence as to what happens to evaders/deserters within Eritrea. As explained ..., we are satisfied that despite a lessening in the frequency of round-ups (giffas) and ‘shoot to kill’ operations and punishment of relatives, the treatment such persons are likely to face amounts to persecution or serious harm, since it continues to take the form of widespread recourse to detention.", "[The respondent’s counsel] conceded during the hearing that anything more than a very short period in detention in Eritrea would carry a real risk of ill-treatment and on the available evidence there is in our judgement a real risk that draft evaders/deserters regularly face more than very short-term detention. There is some evidence that some persons may, instead of detention, face assignment to military/national service, but for an initial period of time, it is likely this will be assignment to military duties and, in any event, as will be explained below, we consider that a requirement to perform national service duties, military or civilian, would constitute forced labour contrary to Article 4 of the ECHR, if not also Article 3. 355. Second, argument that the Eritrean authorities would treat returning evaders/ deserters differently from in-country evaders/ deserters seems to us insufficiently made out. Indeed, one of the most recent sources cited ... [in] the August [Country Information and Guidance] on Illegal Exit (the Swiss Report of March 2016) states that ‘[t]he few available reports indicate that the authorities treat them similarly as persons apprehended within Eritrea.’ This brings us to the second characteristic which we consider is required to bring a person within a risk category.", "356. The specific category of persons with whom we are concerned are not draft evaders or deserters who have left illegally and would be making a voluntary return. In relation to the latter there are some possible examples in the evidence which suggest they can reach reconciliation with the Eritrean authorities. We have taken particular note in this regard of the sources relating to voluntary returns cited by the latest version of the Home Office [Country Information and Guidance] on Illegal Exit ... Those with whom we are concerned are persons who are or will be perceived as evaders/ deserters and who will be known to be persons who are the subject of a forcible return. Whilst we do not necessarily think the Eritrean authorities would react in precisely the same way to individual forced returnees as they have in the past to mass forcible returnees, we consider it reasonably likely that they would feel similarly impelled to adopt a punitive stance in a way they have not sometimes done to voluntary returnees.", "On the totality of the evidence we consider this is a reasonably likely state of affairs. We must analyse the issue of forcible returns in more depth in the next subsection. Forcible Returns ... 366. [T]he recent evidence of forcible returns made from non-Western countries, chiefly the overland repatriations from Sudan, is really the only type of evidence we have against which to assess risk on return from Western countries ... And it constitutes evidence showing that in the last few years those who are likely to be perceived on return as draft evaders/deserters and who have been the subject of such forcible returns have met with, or are likely to have met with, ill-treatment on return. Further, recommencement of forcible returns from Europe would very likely in our judgement be seen by the Eritrean authorities as requiring them to adopt a punitive stance even in relation to persons in the aforementioned category who are returned individually.", "We infer that their reaction to such a re-commencement would be a matter of high importance to the regime. 367. It is possible to conjecture that the Eritrean government would feel the need, especially in the light of recent EU funding, to demonstrate a more relaxed or softer policy, such as was mooted in the [Danish Fact-Finding Mission] Report mainly (it seems) by reference to voluntary returnees. On the other hand, the evidence points more strongly to the policy imperatives of the current Eritrean government being driven not by concerns about its image in the eyes of Europe and the West but by domestic concerns about the maintenance of control and regulation of their own population and the need to show that those perceived as draft evaders or deserters would not receive preferential treatment on return. In our judgement there is a real risk that the likely reaction would therefore be similar to that given to those forcibly repatriated from Sudan and the evidence we have about that indicates such persons are likely to face treatment contrary to basic human rights.", "Draft Evaders and Deserters 368. To this point our assessment of the issue of risk on return to those who left illegally and are likely to be perceived on return as draft evaders and deserters is not markedly different from MO. We now have to consider whether it remains sufficient that such persons have exited illegally and are of or approaching eligible draft age (unless falling within one of three specified exceptions). ... 370. ... [W]e conclude that the preponderance of the evidence continues to support the MO position and that, although it is reasonably likely that persons who have been released will have documentation which will enable them to travel within Eritrea, the fact that they are reservists (a term we use here simply to identify those who have been discharged/released) would not entitle them to an exit visa.", "Whilst release is commonplace, it appears that it is often de facto and that those who benefit would not ordinarily be given or hold official documents confirming that they have completed national service. We consider that recall is not common but that the Eritrean system operates to ensure that the great majority of those of or approaching draft age are regarded as still ‘on the books’ and as not having completed national service. What was noted in the EASO Report [of May 2015] regarding civilian national service and those in ministries strikes us as very pertinent: ‘[m]any employees of ministries do not know whether they are still engaged in national service or have been dismissed’. We remind ourselves that the great majority of sources, including the very recent UNCOI Reports, consider that the duration of national service is prolonged. From the evidence we conclude that a person who exits Eritrea illegally and is of or approaching draft age, is likely on return to be perceived as an evader or deserter because of non‑completion of national service.", "National service as slavery or servitude or forced labour ... 402. The principal basis on which the appellants contend that the Eritrean national service system amounts to slavery is the conclusions of the 2016 [UN Commission of Inquiry] Report to this effect. We would note that we think they are entirely right to focus on the 2016 Report ... 403. We have considerable reservations about the reasoning adopted in the 2016 Report as regards slavery and servitude. ... 405.", "Whilst it has oppressive features, we do not consider that the Eritrean system of military/national service constitutes anything comparable to the paradigm identified in Siliadin of ‘the obligation for the ‘serf’ to live on another person’s property and the impossibility of altering his condition’, certainly not in the context of assessing the military/national service system as a whole, whose conditions are extremely variable ... Even those who are required to perform lengthy national service cannot sensibly be described as being compelled to live permanently on government property and whilst the possibilities for exemption or de facto demobilisation are limited, it cannot be said that there is an impossibility to alter one’s condition. Nor do we consider that the obligation to perform military/national service can sensibly be described as amounting to the ‘exercise [by the Eritrean state] of a genuine right of legal ownership .... reducing those called up to the status of an ‘object’. Eritrean law does not create such a legal ownership. 406.", "... However, even on the Commission of Inquiry’s own application of ... indicia [of ownership] to the Eritrean context, we do not follow how it progresses from its argument that there are certain aspects of the Eritrean system of military/national service that constitute the crime of enslavement to its conclusion that the programme generally, including civilian national service and service in the people’s militia, constitutes such a crime. 407. Of the ten indicia relied on to justify the finding that the system amounts to enslavement, there are at least three that can only be applied to civilian national service and the people’s militia with considerable difficulty: e.g. ‘(vi) inhumane conditions’, ‘(vii) torture and killing’ (where all the examples cited relate to military national service, not civilian national service) and ‘(x) impact on family life’.", "... 414. We consider that very similar difficulties apply when one turns to consider whether, even if not slavery, the Eritrean system of military/national service amounts to ‘servitude’ contrary to Article 4(1). ... 416. That leaves the issue of whether the system amounts to ‘forced or compulsory labour’. 417.", "In this context and in light of the legal framework summarised earlier, it seems to us that the evidence we have before us is on a different footing. For one thing we have the ILO analysis and (unlike the international criminal law framework) the ECtHR has seen the ILO framework to have a bearing on interpretation of Article 4 ... For another, the ILO analysis, taken together with other sources, constitutes a considerable body of very specific evidence tending to show that the workings of the Eritrean system cannot be seen to fall under any of the exclusions set out in Article 4(3). That is important because in the course of various ILO proceedings the Eritrean government has not disputed that their military/national service system amounts to forced or compulsory labour. Their argument is directed only to their system falling under one or more of the permitted exemptions or exclusions. 418.", "We take first the exclusion of ‘any service of a military character’ (Article 4(3)(b)). 419. Paragraph 3(b) of the Article excludes from the ambit of the term ‘forced or compulsory labour’, as used in paragraph (2), ‘any service of a military character’. There are at least two respects in which the Eritrean system of military/national service falls out with this exclusion. First of all, its legislative framework, Article 5 of the 1995 decree in particular, identifies one of the objectives of military service as ‘to develop and enforce the economy of the national by investing in development work....’ The legislative framework thereby endorses the use of compulsory labour for purposes of economic development.", "Second, there is overwhelming evidence that in its actual practice the Eritrean state uses conscript labour for services of a non-military character. The 2015 [UN Commission of Inquiry] Report documents the use of conscript labour in construction projects and in support of private enterprise, in agriculture, in the civil service and in the judiciary ... 421. We have not found it easy to decide the issue of whether it is correct to conclude that the Eritrean system of military/national service as a whole constitutes forced labour, given that civilian national service does not ordinarily result in significant punishments and can sometimes amount to little more than attending an office in normal working hours and in the case of older women is sometimes said to be undertaken voluntarily. On balance we consider that the breach is a generic one for several reasons. First, the Eritrean government representatives before the ILO have not sought to argue that civilian national service is other than forced labour (although they dispute whether it falls within permitted exceptions).", "Second, ILO organs have seen it as generic. Third, even though we are unable to accept the findings of the 2016 [UN Commission of Inquiry] Report that the Eritrean system constitutes enslavement and servitude, it does particularise aspects that have a strong bearing on the issue of forced labour. Thus the 2015 [UN Commission of Inquiry] Report notes ... that; ‘The length and conditions of work for conscripts, including wages, working hours, place of assignment, leave time and rest days do not per se constitute elements of forced labour. But the open-ended nature of national service and the often harsh working and living conditions of conscripts subjected to forced labour have a significant impact on the enjoyment of some rights including safe and healthy working conditions, the right to security, integrity of the person, and the highest attainable standard of physical and mental health’. 422.", "... Fourth, even if not performed in oppressive conditions, civilian national service (like service in the people’s militia) nevertheless falls within the description of work ‘exacted ...under the menace of any penalty’ and also performed against the will of the person concerned, that is work for which he ‘has not offered himself voluntarily’. ... 423. In relation to the exemption for ‘any work or service which forms part of normal civic obligations’ (Article 4(3)(d)), we consider that the reasoning of the ILO organs applies with equal force in the context of Article 4 of the ECHR. We do not consider that the use of conscripts in civilian national service can escape the application of Article 4(3) on the basis that they form part of normal civic obligations. ... [A]s the ILO organs have consistently noted, the range and extent of work conscripts in Eritrea are required to perform in civilian national service goes well beyond anything that can be described as the performance of ‘normal civic obligations’, (emphasis added).", "The [UN Commission of Inquiry] Report of 2015 reinforces the findings of the ILO that national service is a way of controlling the population. Even though we consider discharge/release is granted more frequently than has been contended by the appellants and UNHCR, it remains that for those who have to perform such duties, the type of work a conscript is expected to do is again arbitrary and includes agricultural work, working in the mining industry and construction work. There is evidence of conscripts working for the private benefit of commanders and of the government lending conscripts to foreign companies ... 424. As regards the exemption based on provision of emergency services (Article 4(3)(c)), we consider that the ILO organs are entirely right in their repeated conclusion that the Eritrean reliance over a lengthy period on this provision goes well beyond the restricted nature of this exemption. The 2015 [UN Commission of Inquiry] Report reinforces the ILO observations, noting ... in respect of the people’s militia for example, that ‘[T]he Commission is not aware of any such situation of emergency in the last few years that would have justified the establishment of the People’s Army.", "In any case, by definition, such situations of emergency are limited in time and compulsory labour cannot be exacted beyond the critical and genuine phase of emergency.’ 425. ... We are entirely satisfied that the open-ended duration of national service, coupled with the fact that its duration appears to be prolonged, gives rise to a real risk of a violation. There is a significant body of evidence showing that conscripts will be required to engage in work where the conditions amount to forced labour. There is strong evidence of conscripts working in the agricultural and construction industry in poor conditions. There is the Bisha mine evidence.", "There is strong evidence of poor conditions and mistreatment during military and some types of civic service. However, despite such evidence, we do not find that such conditions are sufficiently widespread for us to conclude that they amount to forced labour. Not all conscripts are working in conditions that would constitute forced labour. Nevertheless, ... we consider that the lack of freedom of choice is sufficient to give rise to a breach. ... 427.", "For similar reasons we also consider that to the extent that the Eritrean system of military/national service breaches Article 4(2) it is also likely to give rise to a violation of Article 3. 428. We would emphasise, however, that our findings above concern active national service only. If one is a reservist subject to recall, we do not find that the risk of recall is sufficiently likely to amount to a breach of Article 4 ... 429. We conclude that the national service regime in Eritrea does not as a whole constitute enslavement or servitude contrary to Article 4(1) of the ECHR, but that it does constitute forced labour under Article 4(3) which is not of a type permitted under Article 4(3)(a)-(d).", "A real risk on return of having to perform military national service duties (including civilian national service but not with the people’s militia) is likely to constitute a flagrant or a mere breach of Article 4(3) as well as a breach of Article 3 of the ECHR. ... Conclusions 431. ... Although reconfirming parts of the country guidance given in MA and MO, this case replaces that with the following: 2.", "The Eritrean system of military/national service remains indefinite and since 2012 has expanded to include a people’s militia programme, which although not part of national service, constitutes military service. 3. The age limits for national service are likely to remain the same as stated in MO, namely 54 for men and 47 for women except that for children the limit is now likely to be 5 save for adolescents in the context of family reunification. For peoples’ militia the age limits are likely to be 60 for women and 70 for men. 4.", "The categories of lawful exit have not significantly changed since MO and are likely to be as follows: (i) Men aged over 54 (ii) Women aged over 47 (iii) Children aged under five (with some scope for adolescents in family reunification cases) (iv) People exempt from national service on medical grounds (v) People travelling abroad for medical treatment (vi) People travelling abroad for studies or for a conference (vii) Business and sportsmen (viii) Former freedom fighters (Tegadelti) and their family members (ix) Authority representatives in leading positions and their family members 5. It continues to be the case (as in MO) that most Eritreans who have left Eritrea since 1991 have done so illegally. However, since there are viable, albeit still limited, categories of lawful exit especially for those of draft age for national service, the position remains as it was in MO, namely that a person whose asylum claim has not been found credible cannot be assumed to have left illegally. The position also remains nonetheless (as in MO) that if such a person is found to have left Eritrea on or after August/September 2008, it may be that inferences can be drawn from their health, history or level of education or their skills profile as to whether legal exit on their part was feasible, provided that such inferences can be drawn in the light of adverse credibility findings. For these purposes a lengthy period performing national service is likely to enhance a person’s skill profile.", "6. It remains the case (as in MO) that failed asylum seekers as such are not at risk of persecution or serious harm on return. 7. Notwithstanding that the round-ups of suspected evaders (giffas), the ‘shoot to kill’ policy and the targeting of relatives of evaders and deserters are now significantly less likely occurrences, it remains the case, subject to three limited exceptions set out in (iii) below, that if a person of or approaching draft age will be perceived on return as a draft evader or deserter, he or she will face a real risk of persecution, serious harm or ill-treatment contrary to Article 3 or 4 of the ECHR. (i) A person who is likely to be perceived as a deserter/evader will not be able to avoid exposure to such real risk merely by showing they have paid (or are willing to pay) the diaspora tax and/have signed (or are willing to sign) the letter of regret.", "(ii) Even if such a person may avoid punishment in the form of detention and ill‑treatment it is likely that he or she will be assigned to perform (further) national service, which, is likely to amount to treatment contrary to Articles 3 and 4 of the ECHR unless he or she falls within one or more of the three limited exceptions set out immediately below in (iii). (iii) It remains the case (as in MO) that there are persons likely not to face a real risk of persecution or serious harm notwithstanding that they left illegally and will be perceived on return as draft evaders and deserters, namely: (1) persons whom the regime’s military and political leadership perceives as having given them valuable service (either in Eritrea or abroad); (2) persons who are trusted family members of, or are themselves part of, the regime’s military or political leadership. A further possible exception, requiring a more case specific analysis is (3) persons (and their children born afterwards) who fled (what later became the territory of) Eritrea during the War of Independence. 8. Notwithstanding that many Eritreans are effectively reservists having been discharged/released from national service and unlikely to face recall, it remains unlikely that they will have received or be able to receive official confirmation of completion of national service.", "Thus it remains the case, as in MO, that ‘(iv) The general position adopted in MA, that a person of or approaching draft age ... and not medically unfit who is accepted as having left Eritrea illegally is reasonably likely to be regarded with serious hostility on return, is reconfirmed, subject to limited exceptions...’ A person liable to perform service in the people’s militia and who is assessed to have left Eritrea illegally, is not likely on return to face a real risk of persecution or serious harm. 9. Accordingly, a person whose asylum claim has not been found credible, but who is able to satisfy a decision-maker (i) that he or she left illegally, and (ii) that he or she is of or approaching draft age is likely to be perceived on return as a draft evader or deserter from national service and as a result face a real risk of persecution or serious harm. While likely to be a rare case, it is possible that a person who has exited lawfully may on forcible return face having to resume or commence national service. In such a case there is a real risk of persecution or serious harm by virtue of such service constituting forced labour contrary to Article 4(2) and Article 3 of the ECHR.", "10. Where it is specified above that there is a real risk of persecution in the context of performance of military/national service, it is highly likely that it will be persecution for a Convention reason based on imputed political opinion.” 53. Turning to the circumstances of the cases before it, the Upper Tribunal found that two of the appellants lacked credibility, and did not accept their accounts (ibid., §§ 440, 448). It considered that they could not be assumed to have left Eritrea illegally and reiterated that failed asylum‑seekers were not at risk per se (ibid., §§ 441, 449). The Upper Tribunal considered it reasonably likely that they had performed several years of national service, making it feasible for them to qualify for lawful exit (ibid., §§ 442, 450), and concluded that they would not be at risk on return (ibid., §§ 443, 451).", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 54. The applicant complained that he would face a real risk of being subjected to treatment in breach of Article 3 of the Convention if he were deported to Eritrea. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 55. The Government contested that argument.", "A. Admissibility 56. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The parties’ submissions (a) The applicant 57. The applicant submitted that he would be arrested immediately at the airport in Asmara if he were deported to Eritrea, as the Eritrean authorities would realise that he had neither a passport nor an exit visa and was of draft age. He would then face arbitrary detention, torture, and arbitrary and inhumane punishment at the hands of either the secret service or the police owing to his desertion and illegal exit. Afterwards he would be returned to the commander of his military unit, who could also punish him arbitrarily.", "58. The applicant asserted that his account as presented to the Swiss authorities was consistent and credible. He had provided satisfactory explanations as to the alleged discrepancies, and sufficient evidence in support of his account. There were no strong reasons to question the veracity of his account. Moreover, he was to be accorded the benefit of the doubt.", "Mainly repeating the submissions he had made in his appeal to the Federal Administrative Court with regard to the duration and end of his schooling, the commencement, duration and content of his military training, the date, duration and conditions of his detention, and his escape from detention, he claimed that that court had not addressed all aspects of his submissions, and had carried out a brief and superficial assessment. 59. In particular, the Federal Administrative Court had drawn wrongful conclusions in relation to his illegal exit. His account was concrete, substantial and reflected his personal experiences, such as losing his way. It could not be dismissed as lacking credibility.", "His statements concerning the smuggler were not contradictory. They had crossed the border by crossing the river Mereb at night and, as the river was dry for most parts of the year, they had not perceived it as anything but a rift, hence their not realising that they had crossed the border until they had been apprehended by Ethiopian soldiers. Moreover, the documents he had submitted, notably the marriage certificate of 2010 and the baptism certificate of his son of 2012, showed that he had been living in Eritrea when he was of draft age, and that he had been registered in a refugee camp in Ethiopia in November 2013, as confirmed by UNHCR. It was impossible for him to confirm his illegal exit by way of additional evidence, since he had left the country from an area without a border post. He had been in good health and thus not in need of medical treatment which was only available abroad, was poorly educated and thus unable to get a scholarship abroad, and was neither a businessman nor a sportsman.", "Consequently, it had been impossible for him to obtain an exit visa required for a lawful exit. He had therefore proved or at least established prima facie that he had exited Eritrea illegally. The Government had failed to present a plausible alternative story as to how he could have left Eritrea legally. 60. The applicant asserted that the report by the State Secretariat for Migration of June 2016, to which the Government had referred in their submissions, and which had been published as the EASO report “Eritrea – National Service and Illegal Exit” in November 2016 (see paragraphs 46 to 48 above), did not meet the standards for country information as established by the case-law of the Court in terms of independence, reliability and objectivity of sources.", "Relying on Saadi v. Italy [GC] (no. 37201/06, § 143, ECHR 2008) and NA. v. the United Kingdom (no. 25904/07, §§ 119-120, 17 July 2008), he argued that the sources used by that report were not sufficiently independent, reliable or objective. Most of the information came from anonymous sources.", "Reiterating that the Court generally exercised caution when considering reports from anonymous sources which were inconsistent with the remainder of the information before it (Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 234, 28 June 2011), he submitted that the report ran counter to the reports of, inter alia, the Commission. The fact-finding mission during which the information had been gathered had not visited detention centres or military institutions. Rather, the report was mainly based on statements by representatives of the Eritrean government and public authorities, who had an interest in portraying the situation in a positive light. Likewise, the interviews with returnees had been arranged for and conducted in the presence of government officials, who had also ensured the translation of the statements, following instructions from an official circular.", "The applicant made reference to one source who had made a sensitive statement contrary to that circular and had had to flee the country immediately to avoid grave repercussions. Prior to the report’s publication, the Eritrean authorities, which did not allow international organisations to conduct investigations in the country, had cross-checked and confirmed all the statements used. 61. The applicant further referred to the judgment of the Upper Tribunal of 10 October 2016 in the case of MST and Others (see paragraph 52 above), and relied in particular on that judgment’s findings. Firstly, it could not be established that the payment of the 2% diaspora tax and the signing of the letter of regret would enable draft evaders and deserters to reconcile with the Eritrean authorities (see paragraph 52 above, §§ 333-334 and 431 point 7 (i) of the judgment).", "Secondly, a person whose asylum claim had not been found credible, but who was able to satisfy a decision-maker (i) that he or she had left illegally, and (ii) that he or she was of or approaching draft age, was likely to be perceived on return as a draft evader or deserter from national service, and as a result face a real risk of persecution or serious harm (see paragraph 52 above, § 431 point 9 of the judgment). The applicant argued that his illegal exit was sufficient for him to be perceived as a draft evader or deserter and to face ill-treatment as a result. He could not avoid such harm by paying the 2% diaspora tax. In the light of the Upper Tribunal’s findings, little or no weight should be given to the report by the State Secretariat for Migration. (b) The Government 62.", "The Government submitted that the applicant mainly challenged the Swiss authorities’ assessment of evidence, emphasising that it was not the Court’s task to substitute its own assessment of the facts for that of the domestic courts, which were, as a general principle, best placed to assess the evidence before them. They reiterated that it was the applicant who had to adduce evidence capable of proving that there were 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. They acknowledged that, owing to the special situation in which asylum-seekers often found themselves, it was frequently necessary to give them the benefit of the doubt in relation to assessing the credibility of their statements. Relying on A.F. v. France (no.", "80086/13, § 46, 15 January 2015), the Government submitted that, when information was presented which gave strong reasons to question the veracity of an asylum-seeker’s submissions, the individual had to provide a satisfactory explanation for the alleged inaccuracies in those submissions. 63. Observing that these discrepancies in the applicant’s account related to the duration and end of his schooling, the date of commencement and duration of his military training, the duration of his detention and the circumstances of his escape, as well as his illegal exit from Eritrea, the Government submitted that these aspects had been the subject of detailed analyses by both the State Secretariat for Migration and the Federal Administrative Court. In substance, the Government mainly repeated the arguments of the domestic authorities. In relation to the alleged illegal exit, they submitted in particular that the applicant had not explained the discrepancies concerning the time between his escape from detention and his departure from Eritrea, and had made contradictory statements concerning the person who had facilitated his attempt to flee.", "They submitted that it was hard to imagine that the applicant and the smuggler had not realised that they had crossed the border and gone into Ethiopia at the river Mereb before being apprehended by Ethiopian soldiers, even though that river was dry for large parts of the year. The documents submitted by the applicant, notably the confirmation of his registration in the Hitsas refugee camp, did not prove that he had left Eritrea illegally. 64. The Government concluded by stating that the applicant had failed to clarify the significant discrepancies in his account, and that these could not be explained by the mere passage of time between his interviews with the asylum authorities. In view of the absence of substantive statements and evidence, the Federal Administrative Court could not be criticised for dismissing the applicant’s account as not credible.", "Despite being granted an additional opportunity to clarify existing doubts concerning his allegedly illegal exit in the form of a third interview, the applicant had not presented a plausible account in relation to his alleged desertion or his alleged illegal exit, distinguishing his case from that of Said v. the Netherlands (no. 2345/02, ECHR 2005‑VI). 65. Referring to the information on Eritrea, notably the reports by the State Secretariat for Migration of June 2016, which had been published as an EASO report in November 2016 (see paragraphs 46 to 48 above), the Government argued that the human rights situation was not such that any removal to Eritrea would be in breach of Article 3 of the Convention. In relation to illegal exit in particular, they submitted that, in some cases, people who had left Eritrea illegally were detained without being charged and could spend up to five years in detention.", "In other cases, however, the people concerned were reassigned to national service or not sanctioned at all. In the majority of documented cases it was not possible to ascertain whether a sanction had been imposed as result of the illegal exit or for other reasons, such as desertion or disciplinary issues. They argued that an illegal exit from Eritrea was not in itself sufficient to put a person at risk of treatment in breach of Article 3 of the Convention. Notably, this concerned people who had left Eritrea prior to reaching draft age and people who had left Eritrea after completing national service. 66.", "In response to the applicant’s criticism that the report by the State Secretariat for Migration did not meet the relevant standards for country information reports, the Government pointed out that the report contained several references to sources other than the Eritrean authorities, notably independent organisations and representatives of international organisations, whose statements partly contradicted those of the authorities. All sources used, including those which were anonymised, were evaluated in a thorough and transparent manner. The type of source was systematically indicated throughout the report, and the credibility of the different sources was taken into consideration in the conclusions of each chapter. Adding that the weaknesses of the report were made transparent in the report itself, and were also reflected in the conclusions of each chapter, the Government concluded by saying that the report was both comprehensive and balanced. 67.", "In so far as the applicant alleged that parts of the report were superseded by the judgment of the Upper Tribunal of 10 October 2016, the Government contested that the respective change of practice pertained to the United Kingdom only, emphasising that neither the Norwegian nor the Swedish asylum and migration departments had expressed reservations in respect of the conclusions drawn during the peer review of the report in November 2016 in connection with its publication as an EASO report that month. In any event, as the applicant’s account as a whole had been dismissed as not credible, his submissions concerning the question of whether or not he could avoid excessive sanctions by paying the 2% diaspora tax were not pertinent. 2. The Court’s assessment (a) General principles 68. The relevant general principles concerning the application of Article 3 have recently been summarised by the Court in J.K. and Others v. Sweden [GC] (no.", "59166/12, §§ 77-105, ECHR 2016). (b) Application of these principles to the present case 69. In accordance with the Court’s established case-law, the existence of a risk of ill-treatment 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 expulsion (see F.G. v. Sweden [GC], no. 43611/11, § 115, ECHR 2016). However, if the applicant has not yet been deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Saadi, cited above, § 133).", "Since the applicant in the present case has not yet been deported, the question of whether he would face a real risk of persecution upon his return to Eritrea must be examined in the light of the present-day situation. 70. The Court notes that it is evident from the current information on Eritrea that the human rights situation in the country is of grave concern, and that people of various profiles are at risk of serious human rights violations. This is also evidenced in 92% of the applications in 2016 for international protection by Eritrean nationals in Member States of the European Union plus Switzerland and Norway resulting in either refugee status or another form of protection (see paragraphs 36 to 52 above). Reiterating that a general situation of violence would, however, only be of sufficient intensity to create a real risk of treatment contrary to Article 3 of the Convention “in the most extreme cases” where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return (see, for instance, Sufi and Elmi, cited above, §§ 216 and 218, and J.K. and Others v. Sweden, cited above, § 86, with further references), the Court notes that none of the reports conclude that the situation in Eritrea, as it stands, is such that any Eritrean national, if returned to his or her country, would run such a risk, nor do the reports contain any information capable of leading to such a conclusion.", "The Court therefore finds that the general human rights situation in Eritrea does not prevent the applicant’s removal per se. 71. Hence, the Court must assess whether the applicant’s personal circumstances are such that he would face a real risk of treatment contrary to Article 3 of the Convention if expelled to Eritrea. 72. The applicant claimed to be at risk of ill-treatment owing to his desertion from military service and his illegal exit from Eritrea, things which in themselves were sufficient to lead to the perception that he was either a draft evader or deserter, considering that he was of draft age.", "The Court notes that the harsh punishment of deserters and people of draft age who leave Eritrea illegally continues to be widely reported (see paragraphs 40, 48 and 52 above, §§ 281, 283, 354-355, 366-368, and 431 points 7 and 9 of the judgment). It also notes that there are somewhat different assessments as to whether such harm could be avoided by signing a letter of regret and paying a 2% diaspora tax (compare paragraphs 48 and 52 above, §§ 333-334 and 431 point 7 (i) of the judgment). Forcible return to Eritrea is likely to put the person concerned at increased risk of ill‑treatment (see paragraphs 43, 48 and 52 above, §§ 366-367 of the judgment). 73. Noting that the Swiss authorities dismissed the applicant’s account as not credible, the Court reiterates that, as a general principle, the national authorities are best placed to assess the credibility of an individual, since it is they who have had an opportunity to see, hear and assess his or her demeanour (see, for example, F.G. v. Sweden, cited above, § 118).", "It also reiterates that asylum-seekers are normally the parties who are able to provide information about their own personal circumstances, which is why the burden of proof, as far as individual circumstances are concerned, should in principle lie with the applicant, who must submit, as soon as possible, all evidence relating to his or her individual circumstances that is needed to substantiate his or her application for international protection (J.K. and Others v. Sweden, cited above, § 96). 74. The Court observes that the applicant did not submit direct documentary evidence relating to a real risk of ill-treatment which he would face in Eritrea. While this cannot be decisive per se (ibid., § 92), it distinguishes the present case from that of M.A. v. Switzerland (no.", "52589/13, 18 November 2014). In that case, the failure of the domestic authorities to conduct a meaningful assessment of documentary evidence relating to the alleged risk of ill-treatment in the country of origin played a crucial role in finding that the applicant in that case had adduced evidence capable of proving that there were substantial grounds for believing that, if expelled, he would be exposed to a real risk of treatment contrary to Article 3 of the Convention. 75. Reiterating that the rules concerning the burden of proof should not render the applicant’s rights under Article 3 of the Convention ineffective, and that it is frequently necessary to give asylum-seekers the benefit of the doubt when assessing the credibility of their statements (J.K. and Others v. Sweden, cited above, §§ 93, 97), the Court notes that the Federal Administrative Court found that there were several discrepancies in the applicant’s account. The account also lacked substance and detail, notably with regard to the end of his schooling, the date of commencement, duration and content of his military training, as well as the duration and dates of his detention (see paragraph 28 above).", "The discrepancies and credibility concerns thus related to core aspects of the applicant’s claim and his account as a whole (compare and contrast N. v. Finland, no. 38885/02, §§ 154-155, 26 July 2005). 76. The applicant submitted that it had been impossible for him to obtain an exit visa required for lawful exit, given his age, health, level of education, and lack of involvement in business or sports (see paragraph 59 above). He relied on the country information which stated that the illegal exit of a person of draft age was sufficient for that person to be perceived as a draft evader or deserter, and consequently face ill-treatment upon a forced return to Eritrea (see paragraph 52 above, §§ 344-347, 354-356, 366-368, 370 and 431 points 7 (iii) and 9 of the judgment).", "In addition, he referred to the requirement to obtain an exit visa in order to leave Eritrea legally, and the categories of people eligible for exit visas (see paragraphs 41 and 52 above, §§ 308, 326, 328 and 431 point 4 of the judgment). He also relied on his student identity card, his marriage certificate and his son’s baptism certificate to support his claim that he had been living in Eritrea when of draft age, and added that it was impossible for him to confirm his illegal exit by way of additional evidence, as he had left the country on foot from an area without a border post. He also relied on his registration as a prima facie refugee in the Hitsas refugee camp in November 2013 to support his claim. 77. The Court acknowledges that, in circumstances such as those claimed by the applicant, it is impossible to confirm an illegal exit from Eritrea by way of documentary evidence.", "It is for precisely that reason that decisive weight is attached to the plausibility of the applicant’s testimony. The Court notes that his account appears plausible in the light of the country information on Eritrea, and that some specific elements of his account were corroborated by the country information, notably that the Eritrean authorities initially refrained from drafting him because of his role as a church deacon, as they deferred the draft of clerics until a change in practice in 2010 led to a stricter approach (see paragraph 49 above), and that students with poor grades were typically assigned to Wi’a for military training (see paragraph 51 above). 78. However, the Court also notes that, in their submissions, the State Secretariat for Migration, the Federal Administrative Court and the respondent Government pointed towards a number of discrepancies and a lack of substance and detail in various parts of the applicant’s account, including in relation to his departure from Eritrea and other key elements of his claim. It observes that the State Secretariat for Migration heard the applicant in person three times, explicitly informed him about credibility concerns at the beginning of the third hearing, and gave thorough reasons for its assessment as to why it did not consider his account credible, in relation to his alleged illegal exit or at all (see paragraphs 19 to 21 above).", "The Court also observes that the applicant undertook to explain the alleged discrepancies in his submissions to the Federal Administrative Court (see paragraphs 22 to 27 above). That court, in turn, gave thorough reasons as to why it did not consider his account in relation to his alleged illegal exit credible, also by drawing inferences from the concerns about the overall credibility of his account (see paragraphs 28 to 32 above). 79. In so far as the applicant asserted that he had credibly demonstrated that he had left Eritrea illegally, and that the Government had failed to present a plausible alternative story as to how he could have left Eritrea legally (see paragraph 59 above), the Court reiterates that it was for the applicant to substantiate his claim, at least as far as his individual circumstances were concerned. In that regard, the Court notes that the applicants in the case of J.K. and Others v. Sweden (cited above) had credibly confirmed that they were victims of past ill-treatment.", "The Court considered that past ill-treatment served as an indicator of future ill-treatment, and that the information available on the country concerned confirmed such a risk, concluding that it was for the respondent Government to dispel any doubts about that risk (ibid., § 102). In the context of Eritrea, a similar distribution of the burden of proof may apply where it is likely – if need be by drawing inferences from the overall credibility of the person’s account – that a person left the country illegally despite being of or approaching draft age (see also paragraph 52 above, § 431 point 9 of the judgment of the Upper Tribunal of the United Kingdom in the case of MST and Others), leaving it for the authorities to dispel any doubts about risks upon return despite those factors. However, the shared burden of proof cannot be construed in a way which would require the authorities to prove that the applicant in question left Eritrea legally in each and every case, notably where the applicant’s overall account was not deemed to be credible. The Court shares the views of the Upper Tribunal that a person whose asylum claim has not been found credible cannot be assumed to have left Eritrea illegally (ibid., § 431 point 5), and that being a failed asylum-seeker is not in itself sufficient for a person to face a real risk of treatment contrary to Article 3 of the Convention upon his or her removal to Eritrea (ibid., §§ 335-337 and 431 point 6). 80.", "Having regard to the above, and reiterating that the Convention system is founded on the principle of subsidiarity, and that it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts, which are, as a general principle, best placed to assess the evidence before them, the Court is satisfied that the assessment made by the domestic authorities was adequate, sufficiently reasoned, and supported by material originating from reliable and objective sources (see F.G. v. Sweden, cited above, § 117). It endorses the assessment by the Swiss authorities that the applicant failed to substantiate that he would face a real risk of being subjected to treatment contrary to Article 3 of the Convention if forced to return to Eritrea. 81. Consequently, his expulsion to Eritrea would not involve a violation of Article 3 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION 82. The applicant alleged that he would risk being subjected to treatment in breach of Article 4 of the Convention if he were deported to Eritrea. He claimed that he would be sent back to his military unit and forced to carry out indefinite military service, which, in its current state, would violate his right not to be held as a slave or in servitude and not to be required to perform forced labour. A. The parties’ submissions 1.", "The Government 83. The Government submitted that the applicant had not exhausted domestic remedies in relation to this complaint, and argued for it to be dismissed as inadmissible in accordance with Article 35 § 1 of the Convention. They submitted that, before the Federal Administrative Court, the applicant had alleged a fear of ill-treatment upon his removal due to his desertion and illegal exit from Eritrea. Before the domestic authorities, he had neither explicitly nor in substance alleged a risk of slavery, servitude and/or forced labour in the Eritrean military if he were removed to Eritrea. 84.", "Referring to the case-law of the Federal Administrative Court (see paragraph 35 above), the Government asserted that the applicant’s submissions before the Court relating to his fear of slavery, servitude and/or forced labour in the Eritrean military constituted an example of a new asylum application, as the relevant facts – the details of the conditions of military service in Eritrea and its legal classification – had not been known at the time of the last domestic decision, and the new submissions would seek to establish the applicant’s refugee status and not only relate to impediments to the enforcement of his removal. Therefore, this did not constitute an extraordinary remedy. Consequently, the applicant could not be exempted from the requirement of pursuing it before the domestic authorities. The Government added that they would not speculate as to the outcome of such an application. 2.", "The applicant 85. The applicant contested the Government’s arguments. He pointed out that he had stated in his appeal to the Federal Administrative Court that he had also fled Eritrea out of fear of having to return to the military service from which he had escaped. Acknowledging that he had not argued before that court that the military service constituted slavery, servitude and/or forced labour, he argued that he could only reasonably have been expected to make this claim following the publication of the detailed findings of the Commission on 8 June 2016, which had provided the necessary details about the different human rights violations inherent to military service in Eritrea. At the same time, he submitted that this new fact was merely a new legal classification of military service in Eritrea, and that he had asserted the fear of being forced to return to military service in substance before the domestic authorities, and the reasons for his departure had been examined in the set of proceedings leading to the present application.", "A new asylum application therefore constituted an extraordinary remedy which he did not need to make use of to comply with the requirements of Article 35 § 1 of the Convention. 86. In that regard, he also argued that it was clear from the outset that such a new asylum application would have no prospects of success. The Swiss authorities had dismissed his account in its entirety owing to a lack of credibility. He had no new facts or evidence to present to establish the credibility of his account.", "Hence, there was no prospect that the domestic authorities would arrive at a different conclusion in relation to his claim that he feared being forced to perform military service in breach of Article 4 of the Convention. B. The Court’s assessment 87. The Court reiterates that, under Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, the purpose being to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see Gäfgen v. Germany [GC], no. 22978/05, § 142, ECHR 2010).", "While Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it normally requires that the complaints intended to be brought subsequently before the Court should have been made to the competent domestic courts, at least in substance (ibid. ; see also Association Les témoins de Jéhovah v. France (dec.), no. 8916/05, 21 September 2010). 88. Applicants are only obliged to exhaust domestic remedies offering reasonable prospects of success (Scoppola v. Italy (no.", "2) [GC], no. 10249/03, § 71, 17 September 2009). A mere doubt on the part of the applicant as to the prospects of success of a particular remedy will not absolve him or her from the obligation to try it (Epözdemir v. Turkey (dec.), no. 57039/00, 31 January 2002). Extraordinary remedies normally need not be used (Prystavska v. Ukraine (dec.), no.", "21287/02, 17 December 2002). 89. The Court notes that the applicant’s claim as presented to the State Secretariat for Migration and the Federal Administrative Court focused on the risk that he would face ill-treatment if he were deported to Eritrea, for reasons of his alleged desertion from the military and his illegal exit. He did not argue before the domestic authorities that the military service constituted slavery, servitude and/or forced labour, as he has acknowledged himself (see paragraph 85 above). In so far as he asserted before the Court that he had claimed to fear being forced to return to military service following his deportation, it has to be noted that the applicant stated in his appeal to the Federal Administrative Court that, following his escape from prison, he had feared that he would be detained once again or forced to perform military service, and had therefore decided in early October 2013 to leave the country illegally (see paragraph 22 above).", "The Court considers that, in the set of proceedings leading to the present application, the description of this fear was primarily relevant to the description of the circumstances of the applicant’s departure from Eritrea, and not as relevant to the dangers he would be exposed to if he were forcibly returned (compare and contrast Kalantari v. Germany (dec.), no. 51342/99, 28 September 2000). 90. The Court observes that the Federal Administrative Court rendered its decision on the applicant’s appeal on 9 May 2016. It considers that the applicant could only reasonably have made his claim that military service in Eritrea constituted slavery, servitude and/or forced labour after the publication of the second report of the Commission on 9 May 2016.", "More importantly, he could only have done so after the detailed findings of that report, published on 8 June 2016, had provided the necessary details about the human rights violations inherent in military service in Eritrea (see paragraphs 44 and 45 above). It also notes that country information on Eritrea which has been published since considers that, even if a person likely to be perceived as a draft evader or deserter could avoid punishment in the form of detention and ill-treatment, he or she would likely be assigned to perform (further) national service, which would likely amount to treatment contrary to Articles 3 and 4 of the Convention (see paragraph 52 above, § 431 point 7 (ii) of the judgment of the Upper Tribunal). 91. Indeed, the Court notes that the Government, referring to the case-law of the Federal Administrative Court (see paragraph 35 above), submitted that the applicant’s submissions relating to his fear of slavery, servitude and/or forced labour in the Eritrean military constituted an example of a new asylum application, as the relevant facts – the details of the conditions of military service in Eritrea and its legal classification – had not been known at the time of the last domestic decision, and the new submissions would seek to establish the applicant’s refugee status (see paragraph 84 above). Therefore, the Court considers that the applicant may institute a new set of proceedings for asylum or temporary admission, in which his claim regarding Article 4 of the Convention will be examined on the merits by the State Secretariat for Migration and, in the event of an appeal, by the Federal Administrative Court.", "A new asylum application based on this claim would thus not constitute an extraordinary remedy. 92. The Court reiterates that a mere doubt on the part of the applicant as to the prospects of success of a particular remedy does not absolve him from the obligation to try it. It also reiterates the Government’s submission that they would not speculate as to the outcome of a new asylum application based on the applicant’s fear of being sent back to his military unit and forced to carry out indefinite military service, which, in its current state, would violate his right not to be held as a slave or in servitude and not to be required to perform forced labour. The Court adds that the applicant has the opportunity to lodge a new application before the Court, should such a new asylum request be rejected by the domestic authorities and courts.", "93. In view of the foregoing considerations, the Court finds that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint concerning Article 3 of the Convention admissible, and the remainder of the application inadmissible; 2. Holds that the implementation of the expulsion order against the applicant would not give rise to a violation of Article 3 of the Convention; 3.", "Decides to continue to indicate to the Government under Rule 39 of the Rules of Court that it is desirable in the interests of the proper conduct of the proceedings not to expel the applicant until such time as the present judgment becomes final, or until further order. Done in English, and notified in writing on 20 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsHelena JäderblomRegistrarPresident" ]

[ "FIFTH SECTION CASE OF KOHLHOFER AND MINARIK v. THE CZECH REPUBLIC (Applications nos. 32921/03, 28464/04 and 5344/05) JUDGMENT STRASBOURG 15 October 2009 FINAL 01/03/2010 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kohlhofer and Minarik v. the Czech Republic, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Renate Jaeger,Karel Jungwiert,Rait Maruste,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 15 September 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications (nos.", "32921/03, 28464/04 and 5344/05) 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 an Austrian national, Mr Bruno Kohlhofer (“the first applicant”) and German nationals, Mr Roman Minarik (“the second applicant”) and Susanne Minarik (“the third applicant”), on 8 October 2003, 21 July 2004 and 29 April 2005, respectively. 2. The applicants were represented by Mr Petr Zima, a lawyer practising in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, of the Ministry of Justice.", "3. On 4 September 2006 the President of the Fifth Section decided to give notice of the applications and to communicate complaints under Article 6 § 1 of the Convention to the Government. On 11 September 2006 he decided to give notice of the applications to the Government of Austria and the Government of Germany respectively in order to enable them to exercise their right to intervene in the proceedings (Article 36 § 1 and Rule 44). Neither the Government of Austria nor the Government of Germany exercised their right to intervene (Rule 44 § 1(b)). 4.", "The applicants and the Czech Government each filed written observations (Rule 59 § 1). The Chamber decided that no hearing on the admissibility and merits was required (Rule 59 § 3 in fine). It was further decided to join the aforementioned applications for examination and 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 5.", "The facts of the case, as submitted by the parties, may be summarised as follows. Application no. 32921/03 6. Through the acquisition of shares before January 2001, the first two applicants became minority shareholders of Českomoravský cement, a.s., a joint stock company incorporated under Czech law. 7.", "On 1 January 2001 the Commercial Code (hereinafter “the CC”) was amended. In accordance with its newly introduced Article 220p, a general meeting of a joint stock company was empowered to decide to wind up the company and transfer all its assets to a shareholder who owned shares representing more than 90% of the company's share capital (“the main shareholder”). An asset transfer contract between the main shareholder and the company was to be concluded to that end and compensation paid to the minority shareholders. 8. On 31 May 2001 the general meeting of the company adopted, by votes of the main shareholder, a resolution on the winding-up of the company and on the transfer of all its assets to the main shareholder (together also referred to as “the transfer”).", "9. On the same day the applicants filed an action to have that resolution and the asset transfer contract set aside with the Prague Municipal Court (městský soud). They asserted that the resolution had been adopted contrary to law, treaties concerning the encouragement and reciprocal protection of investments and their property rights. They informed the court administering the commercial register (obchodní rejstřík) about this step. 10.", "On 31 October 2001 the court administering the commercial register (rejstříkový soud) approved the transfer. No hearing was held prior to that decision. 11. On 14 December 2001 the applicants contested the decision to register the transfer before the Constitutional Court (Ústavní soud), alleging an infringement of the right to a fair trial and their property rights. They claimed not to have been able to raise their objections to the general meeting resolution in a hearing during the non-contentious proceedings preceding the delivery of the decision.", "They invited the court to strike down inter alia Articles 220h(3) and (4) and 220p of the CC. 12. On 25 March 2003 the Constitutional Court in its decision no. IV. ÚS 720/01 rejected the applicants' appeal without holding a hearing.", "It found that the applicants were not entitled to participate in the proceedings as the task of the court in charge of the commercial register had been to decide on the rights of the company, not on theirs. It noted that that court had the applicants' arguments in their action to set aside at its disposal and had taken them into consideration before delivering the impugned decision, whilst reviewing the lawfulness of the resolution as a preliminary question. It held that the power to stay the proceedings was still available to that court under the law as it stood at the relevant time. The Constitutional Court dismissed the applicants' second claim according to which that decision amounted to other interference by public authority into their right to access to a court. Referring to Article 220h of the CC, it found the application of Article 131 of the CC in conformity with constitutional law.", "In this regard, the court pointed to procedural safeguards enshrined in Articles 131, 220h, 220k, 2201 and 220p of the CC which were available to the applicants, and emphasised the aim of the regulation providing for legal certainty and expeditious transformation of companies. As for the applicants' challenge to the law providing for the winding-up and the transfer on the ground of insufficient protection of the rights of minority shareholders, the court did not examine it since it went beyond the scope of that court's review defined by the applicants' constitutional appeal contesting the decision in which the court in charge of the commercial register had approved the registration of the winding-up and the transfer at the commercial register, but not any decisions adopted in other proceedings available to the complaining minority shareholders. 13. On 27 July 2006 the Municipal Court dismissed the applicants' action lodged on 31 May 2001. Having noted that the court in charge of the commercial register had approved the registration of the transfer, the Municipal Court, referring to Article 131(3)(c) of the CC, refused to deal with the applicants' assertions of unlawfulness of the impugned general meeting resolution, their principal allegation being that the resolution had been adopted by the main shareholder whose voting rights had been suspended.", "As for the applicants' plea of invalidity of the asset transfer contract, namely the insufficient number of experts commissioned for the expert report on the compensation and the determination of the decisive day (rozhodný den), the court expressed the view that the validity of the asset transfer contract must have been examined as a preliminary question by the court approving the registration of the transfer into the commercial register. At the same time, having reviewed the contract, the Municipal Court found that the determination of decisive day complied with the CC. Having interpreted relevant provisions of the CC, the court further found that the law did not require that more experts be commissioned for the purposes of assessing the compensation to be paid by the main shareholders to the applicants. Finally, the court examined and dismissed the applicants' claims that the compensation had not been properly determined as unfounded or reviewable only by a court reviewing the compensation in separate proceedings. 14.", "On 6 September 2007 the Prague High Court (vrchní soud), sharing the legal view of the court of first instance, upheld the Municipal Court's judgment of 27 July 2006. 15. The proceedings are now pending before the Supreme Court (Nejvyšší soud). According to the applicants, they have no prospect of success before that jurisdiction due to its settled case law. 16.", "According to the Government, the applicants filed with a court actions under Article 220k of the CC whereby they asserted that the compensation paid for the transfer pursuant to Article 220p(2) of the CC was not adequate and claimed the remainder thereof. According to the Government, these proceedings and the set-aside proceedings are still pending. Application no. 28464/04 17. The third applicant owned 3% of the share capital of YTONG, a.s., a joint stock company incorporated under Czech law.", "18. On 24 June 2003 the general meeting of that company adopted, by votes of the main shareholder, a resolution on the winding up of the company and the transfer of all its assets to the main shareholder. 19. On 25 June 2003 the third applicant filed with the Brno Regional Court (krajský soud) an action to have the resolution set aside, asserting that it had been adopted contrary to the applicable law, treaties concerning the encouragement and reciprocal protection of investments and their property rights. Asserting the unlawfulness of the asset transfer contract on account of its clause reserving for arbitration jurisdiction over disputes concerning the value of the compensation, she further emphasised a number of irregularities of the resolution.", "She informed the court administering the commercial register about the action. 20. On 1 September 2003 the court in charge of the commercial register approved the registration of the transfer. No hearing was held before that decision, which was not served on the third applicant as she did not have standing to participate in the proceedings. 21.", "On 11 December 2003 the Olomouc High Court rejected the third applicant's appeal contesting that decision. It ruled that since the applicant did not have standing to take part in the impugned proceedings, she was not entitled to appeal their outcome. 22. On 28 November 2005 the High Court, relying on Article 220h(4) of the CC, discontinued the set-aside proceedings without examining the merits. 23.", "According to the Government, the third applicant filed with a court an action under Article 220k of the CC whereby she asserted that the compensation for the transfer paid pursuant to Article 220p(2) of the CC was not adequate and claimed the remainder thereof. 24. According to the parties, these proceedings are after dismissive rulings of courts of first two instances pending before the Supreme Court. 25. On 24 June 2008 the Supreme Court rejected the applicant's appeal on points of law and upheld the High Court's ruling of 28 November 2005.", "26. On 11 December 2008 the Constitutional Court rejected the applicant's constitutional appeal, in which the applicant claimed an impairment of her right to a fair trial in the set-aside proceedings by reason of the limitation on access to court brought about by Article 220h(4) of the CC. The Constitutional Court found that the Supreme Court had not erred in its impugned decision of 24 June 2008 and that neither the applicant's right to a fair trial nor any other constitutional right had been breached. 27. The third applicant also raised the claim for compensation, together with two other petitioners, before an arbitration tribunal to which she was referred in the decisions of the ordinary courts.", "The arbitration proceedings were discontinued and the petition rejected on 11 October 2006 for lack of jurisdiction. Application no. 5344/05 28. The first applicant was a minority shareholder of Biocel, a.s., a joint stock company incorporated under Czech law. 29.", "On 21 November 2001 the company's general meeting decided to wind up the company and transfer its assets to the main shareholder. 30. On the same day the applicant brought an action in the Ostrava Regional Court (krajský soud) to have the general meeting resolution and the asset transfer contract set aside. He argued that the general meeting resolution was void on the grounds of unlawfulness as the main shareholder had taken part in the vote although not entitled to do so, the resolution had been adopted despite the fact that the shares had been lodged as securities, and the compensation payable to minority shareholders had been determined improperly. He further asserted a violation of treaties concerning the encouragement and reciprocal protection of investments and his right to the peaceful enjoyment of his possessions.", "31. On 12 November 2002 the Regional Court, acting as a court in charge of the commercial register, approved the registration of the transfer at the commercial register without holding a public hearing. 32. On 21 November 2002 an appeal by the first applicant against this decision was rejected by the Olomouc High Court, which found that the minority shareholders were not parties to the proceedings concerning the approval of the registration at the commercial register. 33.", "On 14 January 2003 the Regional Court stayed the set-aside proceedings and asked the Constitutional Court to strike down Article 220p and other provisions of the Commercial Code. 34. On an unspecified date the first applicant filed a constitutional appeal alleging a violation of his right to judicial protection under Article 36 § 1 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod). He claimed that he had not been allowed to act as a party in the proceedings conducted by the court in charge of the commercial register and had been prevented de facto, by Articles 131(3)(c), 220h(4), 220p of the CC and 109(2)(c) of the Code of Civil Procedure (hereinafter “the CCP”), from acting before the court in the proceedings to set aside the general meeting resolution. He further contended that the relevant law was contrary to the Third Council Directive 78/855/EEC.", "The first applicant requested that the aforementioned provisions be struck down as being contrary to Article 36 § 1 of the Charter. 35. On 31 August 2004 the Constitutional Court by its decision no. II. ÚS 21/03 rejected the applicant's constitutional appeal against the decision approving the registration of the transfer at the commercial register.", "It found that, under Article 131 of the CC a court in charge of the commercial register is entitled to review as a preliminary question the lawfulness and validity of a general meeting resolution on the basis of which a registration in the commercial register is to be made. It held that the right to judicial protection was not denied to the first applicant having regard to the remedies enshrined in Article 131 taken in conjunction with Articles 220h, 220k, 2201 and 220p of the CC. Therefore, shareholders of a joint stock company could seek protection of their rights before an independent and impartial court by another way than by taking part in the proceedings held before the court in charge of the commercial register. 36. On 22 February 2005 the Plenary of the Constitutional Court rejected by its decision no.", "Pl. ÚS 51/03 the request of the Regional Court that it should strike down, inter alia, Article 220p of the CC. It found that the Regional Court's request was ill-founded as Article 220p of the CC could no longer be applied by the Regional Court on account of Article 131(3)(c) of the CC, which barred that court from deciding the case before it on the merits once the general meeting resolution on the winding-up of the company and the transfer had been inserted into the commercial register. Four constitutional judges joined their dissenting opinions to the Plenary's decision. 37.", "On 14 March 2008 the Ostrava Regional Court, relying on Article 220h(4) of the CC discontinued the set-aside proceeding without examining the merits as the transfer was registered in the commercial register. 38. On 1 July 2008 the Olomouc High Court upheld that decision of the Regional Court. Referring to the Constitutional Court's decision no. IV.", "ÚS 720/01, the High Court found Articles 131(3)(b) and (c) and 220h(3) and (4), and Article 220k(1) of the CC conform with Czech law including the Charter of Fundamental Rights and Freedoms. The first applicant did not pursue the case before higher instances. He alleged to have no prospect of success due to the settled case law of the Supreme Court and the Constitutional Court. 39. According to the Government, the applicant filed with a court an action under Article 220k of the CC whereby he asserted that the compensation for the transfer paid pursuant to Article 220p(2) of the CC was not adequate and claimed the remainder thereof According to the Government, these proceedings are still pending.", "II. RELEVANT DOMESTIC LAW 1. The Constitution 40. Article 83 provides that the Constitutional Court is the judicial body responsible for the protection of constitutionality. 41.", "Article 89(2) provides that all national authorities and individuals are bound by enforceable rulings of the Constitutional Court. 2. The Commercial Code (as in force at the relevant time) 42. Article 27(3) provided inter alia that facts inserted in the commercial register became effective as of the date on which they were made public. 43.", "In accordance with Article 33 a court administering the commercial register made a registration into the commercial register public. 44. Article 131(1) gave shareholders the right to contest a general meeting resolution by means of an application to set aside if it was deemed to contravene the law, a deed of incorporation or by-laws. An application to set aside could be lodged within three months or, in certain circumstances, one year of the adoption of the resolution. The provision was applicable to general meeting resolutions of joint stock companies by virtue of Article 183(1).", "45. Under Article 131(3)(c) the court could not set aside a general meeting resolution if a court in charge of the commercial register had recorded a transfer of the company's assets in the commercial register. 46. Article 131(4) provided, inter alia, that persons who had suffered damage by a resolution of the general meeting adopted contrary to law, the deed of incorporation or by-laws, were entitled to claim damages and/or just satisfaction for an impairment of fundamental shareholders' rights. This right could be asserted even if a court did not declare the general meeting resolution void for one of the reasons set out in Article 131(3) of the Code.", "Such a claim had to be made before a court within the same time-limit as applied for introducing an application to set aside of a general meeting resolution, or within three months of the day on which a court decided on such an action. 47. Under Article 131(7) everyone is bound by an enunciation of decision delivered pursuant to Article 131(1), (2) or (3). 48. Article 131(7) provides that if a resolution of general meeting was not contested under Article 131(1),(2) or such a claim was not upheld, the resolution may be reviewed only in proceedings on the registration of the resolution in the commercial register, unless the resolution involves amendments of by-laws or a deed of incorporation contrary to law.", "49. Pursuant to Article 220a(11) proceedings to set aside a contract providing for a merger may be brought only if an application to set aside the relevant general meeting resolution has been filed. 50. Under Article 220h(3) an action to set aside a general meeting resolution, or a contract, on merger could not be filed if a registration of the merger into the commercial register had been allowed by a court in charge thereof. 51.", "By Article 220h(4), proceedings to set aside a general meeting resolution, or a contract, on merger brought prior to an registration of the merger in the commercial register could be continued after the registration had been made only if the plaintiff changed his or her action so as to seek damages or an adequate payment for surrendered shares pursuant to Article 220k, provided that those claims had not previously been raised. 52. Under paragraph (1) of Article 220k, if the exchange ratio for shares together with financial compensation was not adequate, shareholders of a merging company were entitled to seek compensation from an acquiring company. The ratio decidendi of a judicial decision granting compensation to a shareholder was by virtue of paragraph (5) thereof binding, in respect of remaining shareholders, upon an acquiring company. 53.", "Pursuant to Article 220l members of boards of directors and supervisory boards of companies involved in a merger, and experts who drew up an expert report for these companies were liable jointly and severally for damages caused by a breach of their duties during the merger. 54. Article 220p(l) empowered a general meeting of a joint stock company to decide to wind up the company and transfer all its assets to a shareholder owning shares which represented more than 90% of the company's share capital (the main shareholder). 55. Under Article 220p(2) the main shareholder was obliged to provide other shareholders with adequate compensation paid in cash in order to settle such a transfer.", "56. Article 220p(3) provided, inter alia, that Articles 220a(l)-(4),(7)-(11), 220h and 2201 were to be applied appropriately to the winding-up of a company and the transfer of its assets to its main shareholder. 57. According to Article 220p(4), among other obligations, a company must have concluded a contract for the transfer of its assets with its main shareholder. Shareholders must have been thereby informed of their right to apply for review by a court of the value of the compensation.", "Article 220k(l),(5) and (7) governing an exchange of shares pending mergers were to be applied appropriately. 3. The Act on Transformation of Companies and Cooperatives (no. 125/2008) 58. The Act which entered into force on 1 July 2008 replaced inter alia the provisions of the CC governing the winding up of a company and the transfer of its assets to its main shareholder, Articles 220h (3) and (4) and 220p (3) of the CC being among them.", "59. Under Article 55(2) a court may declare a general meeting resolution on the transfer null and void only until the time when the transfer is inserted into the commercial register. Article 56(a) provides that such a registration may not be rescinded. 4. The Code of Civil Procedure (as in force in the relevant time) 60.", "Under Article 109(2)(c) a court is empowered to stay proceedings should a legal issue which might be relevant for its decision be examined in other pending proceedings. Courts deciding in proceedings on a registration into the commercial register ceased to have that power upon the amendment of that provision, which came into force on 31 December 2001. 61. Article 200c(1) defines the persons having standing to participate in proceedings on a request for a registration into the commercial register. Only the requesting entrepreneur and the persons whose names are required to be inserted into the commercial register have such standing.", "62. Under Article 200c(3) a court in charge of the commercial register is obliged to proceed so as to take steps to prepare for delivery of decision within fifteen days from the day when the request was lodged. 63. According to Article 200d(2) a court in charge of the commercial register may decide the matter before it without holding a hearing if, inter alia, it can do so on the basis of deeds before it which have been written pursuant to a particular statute (deeds by notary public etc.). 64.", "By virtue of Article 243d a court to which a case was remitted following a quashing judgment of the Supreme Court is bound by a legal view enshrined therein. 5. The Constitutional Court Act (Act no. 182/1993) 65. Section 72(1)(a) stipulates that a constitutional appeal may be submitted: a) pursuant to Article 87(l)(d) of the Constitution, by a natural or legal person, if he or she alleges that his or her fundamental rights and basic freedoms guaranteed in the constitutional order have been infringed as a result of the final decision in proceedings to which he or she was a party, of a measure, or of some other encroachment by a public authority.", "66. By virtue of Section 82(3) if the Constitutional Court grants the constitutional appeal of a natural or legal person under Article 87(l)(d) of the Constitution, it shall: a) quash the contested decision of the public authority, or b) if a constitutionally guaranteed fundamental right or basic freedom was infringed as the result of an encroachment by a public authority other than a decision, enjoin the authority from continuing to infringe this right or freedom and order it, to the extent possible, to restore the situation that existed prior to the infringement. 6. Act on Courts and Judges (acts nos. 335/1991 and 182/1993 respectively) 67.", "The Supreme Court is by virtue of that legislation the highest Czech court of ordinary jurisdiction with the task inter alia to settle case law of ordinary courts. III. RELEVANT DOMESTIC PRACTICE 1. Judgment of the Constitutional Court no. I. ÚS 70/96 68.", "In its judgment of 18 March 1997 the Constitutional Court, interpreting Article 89(2) of the Constitution, rejected the assumption according to which its views enshrined in reasoning of its judgments are legally irrelevant. The court held inter alia that an a priori disrespect by ordinary courts towards such views raises doubts whether ordinary courts decide in conformity with Article 90 of the Constitution, according to which their principal task is to ensure the protection of rights pursuant to law. Ordinary courts declining to follow such views must be aware that their rulings will be most probably brought by the Constitutional Court in line with its existent case law. The Constitutional Court added in this regard that an a priori disrespect towards existent case law, resulting in different decisions on a same matter, contravenes the principle of legal certainty, which is an indispensable component of constitutional law and the rule of law. 2.", "Decision of the Constitutional Court no. III. ÚS 527/04 69. In this decision of 25 May 2005 in which it rejected an appeal against a court's decision approving the registration of a transfer of company's assets to the main shareholder at the commercial register and a request to strike down Articles 131(3)(c), 220h(3) and 220p of the CC, the Constitutional Court held as follows: “The law providing for the winding up of a company and the transfer of its assets to its main shareholder is at the very limit of constitutional conformity owing to the imperfect coordination of proceedings for a registration into the commercial register with proceedings to set aside an asset transfer contract (filed together with an application to set aside a general meeting resolution) which makes possible the irreversible registration of [the winding up of a company and the transfer of its assets to its main shareholder] into the commercial register without examination of an action to set it aside. It cannot be said, however, that minority shareholders have no remedy at their disposal.. ..[A]ccording to Article 131(4) of the [CC], they can seek damages and just satisfaction.", "The law governing proceedings before a court in charge of the commercial register is proportionate to the aim and objective of the legislation providing for transformations of companies, whose purpose is to accommodate expeditious registration of those transformations, made on the basis of the agreement among the companies' shareholders, into the commercial register, with regard to the fact that such a transformation is from a certain moment irreversible owing to legal, economic and technical aspects of that process. ...[T]he impugned decision of the court in charge of the commercial register did not amount to unconstitutional interference with the appellant's property rights as he retained access to legal remedies for the protection of his ownership rights to the shares in a proportionate manner.. ..[L]egitimate expectations of shareholders do not have the same intensity as those of owners of other property. ..[as] the nature of a joint stock company implies risks of a change in the shareholders' status... The gist of the appeal consists in the applicant's disagreement with the law providing for [the winding-up of a company and the transfer of its assets to its main shareholder] as such, in particular with the insufficient guarantees for minority shareholders. The Constitutional Court, however, by Section 74 of the Constitutional Court Act is not empowered to examine these complaints as the appeal at hand contested only the decision adopted by the court in charge of the commercial register in the proceedings on the registration of the winding up and the transfer into the commercial register.", "[Examination] of these complaints would go beyond the scope of that court's review defined by the applicants' constitutional appeal contesting the decision of the court in charge of the commercial register which decided on the registration in the commercial register, not on decisions adopted in other proceedings available to the complaining minority shareholders.” 3. Decision of the Supreme Court no. 29 Odo 1128/2005 of 23 May 2007 70. In this decision the Supreme Court upheld lower court's views according to which a legal impediment, enshrined in Article 131(3)(c) of the CC taken in conjunction with Article 183(1) thereof, and Article 220h(4) of the CC taken in conjunction with Article 220p(3) thereof, barred courts from setting aside general meeting resolutions and asset transfer contracts after such an asset transfer had been recorded into the commercial register. THE LAW I. JOINDER OF THE APPLICATIONS 71.", "The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 72. The applicants, minority shareholders, complained that Czech law permitted them to challenge neither a company resolution to wind up the company and transfer its assets to the main shareholder nor an asset transfer contract, once the resolution had been registered in the commercial register. They relied on Article 6 § I 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...” 73.", "The Government disagreed. A. Admissibility 74. The Government maintained that the applications were inadmissible for non-exhaustion of domestic remedies or, alternatively, premature. They argued that only the proceedings before the courts administering the commercial register had ended, whilst the others - actions to set aside the general meeting resolutions, actions to determine the value of the compensation, and actions in damages and/or seeking just satisfaction - were still pending or were never brought. They maintained that the law hindering the applicants from seeking a review of lawfulness, i.e.", "Article 131(3)(c) and Article 220h(3) and (4) of the CC, had not yet been directly examined by the Czech higher courts. The existing case law of the Constitutional Court (decisions nos. IV. ÚS 720/01, PI. ÚS 51/03, III.", "ÚS 527/04 and III. ÚS 84/05) consisted of unpublished resolutions whose normative force was “much less intensive” than that of that court's judgments. It could not therefore be argued that the relevant domestic case law was so settled as to prevent the applicants from defending their cause in proceedings before domestic courts. 75. The applicants disputed that objection, asserting that they had no prospect of success in the pending proceedings.", "76. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach. It is for the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time; that is to say, that the remedy was accessible, capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (V. v. the United Kingdom [GC], no. 24888/94, § 57, ECHR 1999-IX). The Court has 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 (D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 116, ECHR 2007-XII). The Court further reiterates that where a suggested remedy did not offer reasonable prospects of success, for example in the light of settled domestic case law, the fact that the applicant did not use it is not a bar to admissibility (Radio France and Others v. France, no. 53984/00, decision of 23 September 2003, § 34).", "77. In the instant case, the Court notes that it appears from the Government's submissions that not all of the set-aside proceedings have ended. The Court understands their contention to be that, absent a determination by the Constitutional Court of the issues in the individual set-aside proceedings, the Court is not able to consider those proceedings. 78. The Court first notes that as regards application no.", "28464/04, on 11 December 2008 the Constitutional Court - that is, after the Government's admissibility submissions - dealt with the third applicant's constitutional complaint by confirming the approach of the Supreme Court of 24 June 2008. As the third applicant had raised the compatibility of Article 220h(4) of the Commercial Code with provisions of constitutional law guaranteeing the right to a fair trial in those proceedings, the Government's contention as regards this particular application is no longer accurate and must be rejected. 79. As regards applications nos. 3291/03 and 5344/05, it is true that the applicants did not bring about a decision of the Constitutional Court: in application no.", "5344/05 the proceedings ended with a ruling of 1 July 2008 by the Olomouc High Court, and in application no. 32921/03 the set-aside proceedings are still pending before the Supreme Court. In its decisions IV. ÚS 720/01 of 25 March 2003 (that is, the appeal of the applicants in application no. 3291/03 concerning, as such, the challenge to the registration of the asset transfer, see paragraph 12 above) and II.", "ÚS 21/03 of 31 August 2004 (in the context of the challenge by the applicant in application no. 5344/05 to the registration of the transfer (see paragraph 35 above) the Constitutional Court examined the constitutional issues raised in applications no. 32921/03 and 5344/05. In particular, although the Constitutional Court was formally dealing with challenges to decisions to register asset transfers, in each case it made comprehensive findings that the legislation on regulation of actions to set aside was compatible with the Constitution, as extensive procedural safeguards were contained in the CC. Those safeguards included, in its view, the possibility of an action for compensation under Articles 131, 220h, 220(k), 2201 and 220p of the CC.", "Moreover, the Constitutional Court subsequently took the same approach in its decision III. ÚS 527/04 of 25 May 2005, and on 23 May 2007 the Supreme Court applied those principles in a decision dealing directly with applications to set aside general meeting resolutions once the transfer had been registered. Furthermore, as to application no. 5344/05, the Plenary Constitutional Court did deal in the set-aside proceedings with the first applicant's complaint of denial of access to a court, when it refused the Ostrava Regional Court's request to strike down as unconstitutional the provisions of the Commercial Code preventing the first applicant from having his case decided on the merits (see paragraphs 33 and 36 above). The outcome of that review by the Constitutional Court embodied in its decision no.", "Pl. ÚS 51/03 did not differ from its earlier case law. In these circumstances, the Court considers that the domestic courts' case law on the question was settled such that the applicants could not reasonably be expected to have pursued (or, in the case of application no. 32921/03, to await the outcome of) separate constitutional complaints in the individual set-aside proceedings. It is true, as the Government point out, that that case law consists of decisions rather than judgments.", "However, in the absence of any such judgments, or any indication that the Constitutional Court would regard those decisions as irrelevant, the Court does not consider that the decisions should be afforded lesser weight for the purposes of the review under Article 35 § 1 of the Convention. Accordingly, the Government's objection is in this respect dismissed for all three applications. 80. As for the other proceedings which, according to the Government, the applicants could have brought or whose outcome they should have awaited, that is, actions in damages or for just satisfaction, or actions for compensation, the Court considers that the question of alternative remedies is inseparably linked to the Government's plea on merits that those remedies justified the limitation on the applicants' access to a court in the set-aside proceedings. The Court therefore joins those legal questions to its examination on the merits of the applications.", "81. The Court notes that non-compliance with other admissibility criteria was not asserted by the Government. Recalling that the right to seek a review of the lawfulness of a general meeting resolution and related measures affecting applicants' shares falls within the ambit of Article 6 § 1 of the Convention (Pafitis and Others v. Greece, judgment of 26 February 1998, Reports of Judgments and Decisions 1998-1, § 87), it therefore declares the applicants' complaints under Article 6 § 1 of the Convention admissible. B. Merits 1.", "The parties' submissions (a) The applicants 82. The applicants alleged that the main shareholders voted in the respective general meetings for resolutions approving the transfers against the applicants' will. Their right to have the lawfulness of those resolutions reviewed by means of an action to set aside was infringed by the outcome of separate proceedings initiated by the respective companies requesting the courts in charge of the commercial register to insert the impugned resolution therein and wind them up. Having granted these requests, the courts made it impossible for the applicants to pursue their actions to set aside as the CC prevented them from doing so once the requests for registration had been granted. Since the applicants were not allowed to participate in the proceedings before the courts granting those requests, and as the courts were obliged to decide on the requests within fifteen days of their introduction, the applicants lost any chance of a fair trial on their actions for review of the lawfulness of the transfer.", "They maintained that on account of these shortcomings and the inevitably perfunctory examination of the lawfulness of the transfers caused by the fifteen-day time-limit, these proceedings should be deemed contrary to Article 6 § 1 of the Convention and bilateral treaties concerning encouragement and reciprocal protection of investments binding upon the Czech Republic and Germany and Austria, respectively. 83. The applicants further asserted that the legal protection of their impaired rights consisting of actions in damages referred to in the decisions of the domestic courts was infeasible or, at very best, quasi-feasible. The right to bring proceedings against the main shareholder in order to be paid the value of the compensation was excessively difficult to assert before the courts. The third applicant stressed in that regard that, according to the asset transfer contract, entered into by the company and the main shareholder, whereby all the company's assets had been transferred from the former to the latter, she could assert that right only before an arbitration tribunal.", "84. The applicants moreover contended that the legislation providing for the transfer was allegedly inspired by Austrian and German law, yet its conformity with the purpose of the Third Council Directive 78/855/EEC was not ensured. (b) The Government 85. The Government conceded that an action to set aside a general meeting resolution whereby a company's assets had been transferred to the main shareholder when the company was wound up could be brought only if a court administering the commercial register had not yet authorised the registration of the transfer into the commercial register. Nevertheless, they maintained that such a court was indeed obliged to review the lawfulness of that resolution as a preliminary question.", "The impossibility for shareholders to take part in proceedings before that court pursued a legitimate aim to eliminate protraction of the issue and abusive challenges which would weaken the protection of shareholders' rights, including those of minority shareholders. They added that the court deciding in the case of the first applicant was empowered to stay the proceedings if it thought that to be necessary. 86. As regards the alleged breach of bilateral treaties concerning protection of investments, that issue was, in the Government's view, outside the scope of review under the Convention. 87.", "Moreover, where the majority shareholder possessed more than 90 percent of a company's shares, minority shareholders could not influence the company's conduct. Therefore, benefits arising from their shares were de facto reduced to the asset value of the shares which they possessed, the other rights attached thereto being rather theoretical. The influence of minority shareholders could not be durable and those shareholders were to be considered rather as brakes delaying the plans of the main shareholder. In these circumstances, the legislature allowed a main shareholder to squeeze out minority shareholders by winding up a company without liquidation whilst all its assets were transferred to the main shareholder. This form of squeeze out had been found to be in conformity with the Convention in the case of Bramelid and Malmström v. Sweden (nos.", "8588/79 and 8589/79, Commission decision of 12 October 1982, Decisions and Reports (DR) 29, p. 64). 88. The Government further maintained that alternative legal remedies were available to the applicants. In the event of disagreement regarding the compensation, it was possible for the applicants to request that the value of that compensation be determined by a court. In such proceedings a court was obliged to seek and take into account even evidence which was not presented by the parties but which was necessary for it to establish relevant facts.", "Moreover, if the decision depended on an expert opinion, a party could be discharged of its obligation to pay the costs of proceedings even if it was only partly successful. Therefore, such proceedings, in the Government's view, did not put the applicants at a disadvantage in comparison with their standing as the plaintiffs in set-aside proceedings. Furthermore, an action for compensation for the damage inflicted by the resolution and an action for just satisfaction for a breach of fundamental shareholders' rights were at the applicants' disposal. 89. They concluded that even though the applicants had been hindered from seeking a review of the transfer through actions to set aside, this limitation of their rights under Article 6 of the Convention had to be regarded as justified, since it pursued the legitimate aim of promoting legal certainty in legal relations, protecting the interests of third parties and the main shareholder and, alternatively, of guaranteeing the efficient operation of business companies.", "The judicial protection afforded to minority shareholders must therefore be considered adequate. 2. The Court's assessment 90. The Court recalls that Article 6 § 1 of the Convention 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 (Osman v. the United Kingdom, 28 October 1998, § 147, Reports of Judgments and Decisions 1998-VIII). However, being able to put a case to a court does not in itself satisfy all the requirements of that provision.", "It must also be established that the degree of access afforded under the national legislation was sufficient to secure the individual's “right to a court”, having regard to the rule of law in a democratic society (Petkoski and Others v. \"the former Yugoslav Republic of Macedonia\", no. 27736/03, § 40, 8 January 2009 which itself refers to Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, § 57). Moreover, Article 6 § 1 of the Convention guarantees the right of access to a court which does not only include the right to institute proceedings, but also the right to obtain a “determination” of the dispute by a court. As stated in the Court's case-law, “it would be illusory if a Contracting State's domestic legal system allowed an individual to bring a civil action before a court without securing that the case would be determined by a final decision in the judicial proceedings.", "It would be inconceivable that Article 6 § 1 of the Convention should describe in detail procedural guarantees afforded to litigants - proceedings that are fair, public and expeditious - without guaranteeing the parties to have their civil disputes finally determined” (Petkoski, cited above, and Multiplex v. Croatia, no. 58112/00, §§ 44 and 45, 10 July 2003). At the same time, the “right to a court” is not absolute; it is subject to limitations permitted by implication, 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 (Edificaciones March Gallego S.A. v. Spain, 19 February 1998, § 34, Reports of Judgments and Decisions 1998‑I). In addition, the principle of the rule of law and the notion of fair trial enshrined in Article 6 § 1 of the Convention preclude any interference by the legislature with the administration of justice designed to influence the judicial determination of the dispute (Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no.", "301-B, § 49). i. Application no. 32921/03 91. In the instant case, the Court observes that the applicants' action lodged on 31 May 2001 was twofold, consisting of the claim of unlawfulness of the general meeting resolution of Českomoravský cement, a. s. and that of unlawfulness of the asset transfer contract (see paragraph 9 above).", "92. Dealing first with the applicants' claim before the Municipal Court that the asset transfer contract had been unlawful, the Court notes that the Municipal Court dealt with all heads of the claim (see paragraph 13 above). In particular, it dealt on the merits with the claims concerning the determination of the decisive day and the number of experts commissioned. There was therefore no limitation on access to court in this respect. As regards the head of unlawfulness purportedly deriving from the manner of determining compensation for minority shareholders, the Municipal Court referred the applicants to the other fora which were available.", "Given that such fora were set up and used by the applicants, this part of the decision did not limit the applicants' access to court, either. It follows that there was no limitation on access to court concerning the applicants' claim that the asset transfer contract was unlawful. 93. However, as regards the claim that the courts failed to deal with the applicants' contention that the resolution of the general meeting of Českomoravský cement, a. s. was unlawful, on 27 July 2006 the Municipal Court declined to examine the applicants' challenge of unlawfulness to the general meeting resolution of 31 May 2001 on the ground that the resolution had been registered in the commercial register, and that Article 131(3)(c) of the CC, taken in conjunction with Article 183(1) thereof, therefore deprived the Municipal Court of jurisdiction (see ibidem). The Court finds that the application of Article 131(3)(c) of the CC in the case constituted a limitation on the applicants' access to court as it prevented them from having a court determination on merits of the legal issue at stake, namely whether the resolution had been adopted contrary to law.", "94. The Court must examine whether that limitation is compatible with Article 6 § 1 of the Convention. 95. The Court first notes that the limitation on access to court came about as a result of the operation of Article 131(3)(c) of the CC, and it is clear that that provision covered the present case. The limitation was therefore lawful in the sense that it was provided for by domestic law.", "As to the applicants' contention that the domestic law was, itself, incompatible with Community law, and apart from the fact that it is in the first place for the domestic authorities to interpret domestic law and for the Community judicial organs to interpret Community law, the applicants, referring to the Third Council Directive 78/855/EEC, have not specified what provisions thereof they invoked. The Court therefore finds this applicant's plea unsubstantiated. The same applies mutatis mutandis to the contention whereby the applicants relied on the aforesaid bilateral treaties. 96. Consequently, it is to be examined whether the interference was justified, i.e.", "whether it pursued a legitimate aim in the public interest and was proportionate (Osman v. the United Kingdom, referred to above, § 147). 97. The Government maintained that the limitation aimed to preserve legal certainty and facilitate the operation of business. The applicants disagreed, contesting the existence of any public interest in the case. 98.", "The Court recognises that giving companies flexibility in determining their share-holdership, and a concomitant limitation on challenges to asset transfers once they have been registered, can be seen as enhancing trade and economic development. The Court further recognises that Article 131(3)(c) of the CC can have the effect of preventing delays by abusive challenges to company resolutions, which in turn promotes stability in commercial markets and also contributes to trade and economic development. This is so, even though in the present cases the immediate beneficiary of the transfer was the main shareholder: the mere fact that legislation benefits a private person does not mean that the impugned legislation cannot have pursued a public interest (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, §§ 39-40). The Court finds that the denial of access to a court through the contested legal provision, which is part of the legislation on asset transfers, pursued a legitimate aim in the public interest.", "99. As for the proportionality of the contested limitation, the Court reiterates that a limitation will not be compatible with Article 6 § 1 of the Convention if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (Ashingdane v. the United Kingdom, cited above, § 57). 100. The Court first observes that the application by the Municipal Court on 27 July 2006 of Article 131(3)(c) of the CC in the case at hand prevented any further examination of the merits of the applicants' claim that the resolution of 31 May 2001 was unlawful. As to the Government's suggestion that the applicants' interests were adequately considered in the proceedings connected with the registration of the resolution, the Court notes that the applicants had no standing in the registration proceedings as is shown in rulings of domestic courts upheld by the decision of the Constitutional Court of 25 March 2003.", "Thus, the applicants' interests under Article 6 § 1 of the Convention could not be protected in those proceedings. Further, the registration was not adjourned pending the outcome of the challenge to the resolution, even though the applicants informed the court of their views, and even though the law at the relevant time would have permitted such an adjournment. 101. As to the Government's contention that it was open to the applicants to seek to vindicate their interests in other ways, such as by requesting a separate judicial review of the compensation paid by the main shareholder, or by claiming damages or just satisfaction for a breach of fundamental rights of shareholders, the Court would note that those proceedings had different objectives and dealt with the separate issue of the monetary satisfaction. Moreover, just satisfaction could be claimed for breach of not all but only fundamental rights of shareholders.", "The Government have not shown that these legal avenues were capable of giving rise to a discussion of the lawfulness of the resolution in circumstances comparable to a review in the set-aside proceedings. They cannot be therefore regarded as a means of mitigating the effects of Article 131(3)(c) of the CC in connection with the core issue in the proceedings. Nor could they be considered as effective remedies to be exhausted by the applicant (see paragraph 74 above), an issue which the Court joined to merits (see paragraph 80 above). 102. Thus, the Court concludes that as a result of the operation of Article 131(l)(c) of the CC, the applicants were deprived of a determination on the merits of the claim that the resolution of the general meeting was unlawful.", "Their access to a court was therefore limited, and no reasons have been established which could render that limitation proportionate to the legitimate aims of furthering stability in the business community by preventing abusive challenges to resolutions. Accordingly, the Court dismisses the Government's objection of non-exhaustion of domestic remedies in this respect and finds that there has been a violation of Article 6 § 1 of the Convention. ii. Application no. 28464/04 103.", "The Court notes that on 25 June 2003 the third applicant contested by her action to set aside both the general meeting resolution of YTONG, a. s. and the asset transfer contract to which she was not a party (see paragraph 19 above) and pursuant to which the compensation she received from the main shareholder for the transfer was reviewable not by courts but only an arbitral tribunal. The Court further notes that she claimed, in particular, that the transfer was unlawful because of a compulsory arbitration clause in the contract. The Court further notes that the Olomouc High Court discontinued the set-aside proceedings initiated by the third applicant without reviewing the merits with reference to Article 220h(4) of the CC. The Court observes that she had no standing in the proceedings on the registration of the transfer into the commercial register, and that those proceedings were not adjourned pending the outcome of the challenge to the resolution and the contract. 104.", "After the transfer had been registered with the commercial register, it was no longer possible for the applicant to seek that the general meeting resolution and the asset transfer contract be set aside, as the proceedings could have continued only if she had changed the object of her action so as to claim damages or to request a review of compensation. Article 220h(4) of the CC thus constituted a limitation on the third applicant's access to a court as it prevented her from having a court determination on merits of the legal issue at stake, in particular whether the resolution and the contract had been adopted contrary to law. Its effects on the third applicant were thus similar to those of Article 131(3)(c) of the CC on the applicants in application no. 32921/03 examined above. 105.", "Reviewing whether that limitation was justified, the Court notes that Article 220h(4) of the CC pursued according to the Government the same aim as Article 131(3)(c) thereof. Having regard to its considerations expressed in paragraph 98 above, the Court finds Article 220h(4) of the CC to have pursued a legitimate aim in the public interest within the meaning of Article 6 § 1 of the Convention. As for the proportionality of that limitation, the Court notes that the Government relied, as in application no. 32921/03 above, on the existence of alternative legal avenues which rendered the limitation compatible with the Convention. The Court further notes that in its view expressed above those legal avenues did not constitute remedies to be exhausted within the meaning of Article 35 § 1 of the Convention, nor could they adequately mitigate the impairments of minority shareholders' rights caused by that limitation (see paragraph 101 above).", "Given that the third applicant's right to access to a court was limited as a result of the operation of Article 220h(4) of the CC in a manner similar to that in application no. 32921/03, the Court finds that the availability of alternative remedies could not satisfy the requirements of Article 6 § 1 of the Convention in the present application. 106. It ensues that the third applicant's right of access to a court was limited as a result of the operation of Article 220h(4) of the CC which deprived her of a determination on merits of the claim of unlawfulness of the general meeting resolution and the asset transfer contract, and no reasons that would render that limitation justified were established. Therefore, the Court dismisses the Government's objection of non-exhaustion of domestic remedies in this respect and finds that there has been a violation of Article 6 § 1 of the Convention.", "iii. Application no. 5344/05 107. The applicant in application no. 5344/05 complained about a lack of access to court in the set-aside proceedings in two respects.", "He complained, first, that the courts had not dealt with his claim that the asset transfer contract was invalid because of the way it provided for the calculation of compensation, and he complained that the courts had not dealt with his claim that the asset transfer contract and the general meeting resolution were invalid on the ground of serious irregularities at the general meeting of Biocel, a. s. 108. As to the claim that the courts did not deal with the claim concerning compensation provisions, the Court notes, as the Government contended, that it was open to him to raise precisely this issue in proceedings under Article 220k of the CC. The applicant did bring such proceedings, and they are still pending. It follows that the refusal to deal with the claim in the set-aside proceedings did not deprive the applicant of access to court in this respect. As to the claim that the courts did not deal with the merits of the proceedings to have the transfer set aside, the Court notes that those proceedings were discontinued by the decisions of the Ostrava Regional Court and Olomouc High Court of 14 March 2008 and 1 July 2008 respectively, without having been examined on merits.", "Both courts, referring to the registration of the transfer in the commercial register, relied on Article 220h(4) of the CC which prevented them from further reviewing the action to set aside. The Court observes that the first applicant had no standing in the proceedings on the registration of the transfer into the commercial register, and that those proceedings were not adjourned pending the outcome of the challenge to the resolution and the contract. 109. The Court notes that the situation of the first applicant in the set-aside proceedings became after the decision of the Regional Court and High Court respectively, analogous to the position of the third applicant in application no. 28464/04 (see paragraph 103 above), as he was prevented from having a court determination on merits of his action to have the general meeting resolution set aside.", "His access to a court was therefore limited in a manner similar to that in application no. 28464/04. Having found that the alternative legal avenues referred to by the Government did not constitute an effective legal remedy within the meaning of Article 35 § 1 of the Convention and did not adequately mitigate such a limitation (see paragraphs 101 and 105 above), the Court finds that no reasons that would render that limitation proportionate to the legitimate aims of furthering stability in the business community by preventing abusive challenges to general meeting resolutions were established. In the light of the foregoing, the Court dismisses the Government's non-exhaustion arguments in this respect and finds that there has been a violation of Article 6 § 1 of the Convention. III.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 110. The applicants further complained that the transfer of the companies' assets amounted to the expropriation of their property, which was not safeguarded by sufficient procedural safeguards. They contested the relevant legislation as such, in particular the way it governed determination of the compensation. Furthermore, they argued that the relevant law did not provide for a sufficient level of precision, foreseeability and certainty regarding the rights of minority shareholders.", "It lacked such features as duty for companies to provide information, joint representation of minority shareholders and other safeguards. They considered the relevant law unbalanced as it failed to strike a fair balance between the interests of a main shareholder and those of minority shareholders. Finally, they alleged an interference with their legitimate expectation, as Czech law had not provided for that form of transformation of a company when they acquired their shares. Moreover, it had to be considered legitimate to expect observation of the legal standards of west European countries and international treaties on protection of investments by the Czech legislature when it introduced the impugned provisions contravening Article 1 of Protocol No. 1, the relevant part of 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.” 111. The Government maintained that the complaints under this provision of the Convention were inadmissible. 112. The Court observes that the complaint before it aims at the entire process of the company's transformation and the position of minority shareholders therein.", "However, this process has not yet been fully completed, as the compensation proceedings, crucial in the light of Article 1 of Protocol No. 1, are still pending. It follows that this part of the applications is premature within the meaning of Article 35 § 1 of the Convention and must be declared inadmissible pursuant to Article 35 § 4 of the Convention. IV. APPLICATION OF ARTICLE 13 OF THE CONVENTION 113.", "The applicants complained that they did not have at their disposal any remedy against the interference with the property rights asserted in their applications. 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.” 114. The Court notes that this complaint is linked to the claims made by applicants under Article 1 of Protocol No. 1, which were declared inadmissible as premature. It follows that this complaint is manifestly ill-founded pursuant to Article 35 § 3 of the Convention and must de declared inadmissible in accordance with Article 35 § 4 of the Convention.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 115. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 116. The applicants asserted that they had not yet been able to assess pecuniary damage inflicted by the “expropriation” of their shares as the relevant domestic proceedings were still pending. They reserved the right to specify the damages once those proceedings are terminated.", "The third applicant claimed in addition CZK 622,160 (EUR 22,200) for fees she had been obliged to pay in the arbitration proceedings. The Government maintained that the applicants failed to establish any damage. They saw no casual link between the alleged damage and the violation of Article 6 § 1 of the Convention. They noted in respect of the third applicant that the asserted arbitration fee was incurred by all three petitioners together, not just by the third applicant. The Court considers that the damage alleged by the applicants is connected to the loss of their shares upon the liquidation of the companies and the attempts to recover it in proceedings before domestic courts.", "These claims, however, are linked to the complaint under Article 1 of Protocol No. 1, which has been declared inadmissible. It follows that no casual link has been established between the alleged damage and the violation found. As for the damage allegedly incurred by the payment of the arbitration fee, the third applicant did not allege in her submissions under Article 1 of Protocol No. 1 that her property rights had been impaired by the payment of that fee.", "Even if she had done so, no casual link between the alleged damage and the violation found could be established as only a violation of Article 6 § 1 of the Convention was found. No award under this head is therefore granted. 117. As for non-pecuniary damage the applicants claimed EUR 1,000,000 for having suffered on account of uncertainty and frustration caused by their inability to enjoy rights under the Convention. They considered that sum to be proportionate to the size of their investment and of the class of shareholders affected by the impugned legislation and case law.", "In the applicants' view a smaller amount would not compel the responding Party to bring that legislation in line with European standards. The Government pointed out that the Convention system does not recognize actio popularis and therefore only the situation of the applicants may be taken into consideration. They consider that a mere statement of finding a violation of Article 6 § 1 of the Convention is sufficient satisfaction for the applicants. The Court, ruling on an equitable basis and in accordance with its case law concerning the denial of access to a court, holds that finding a violation of Article 6 § 1 of the Convention represents in itself just satisfaction for the applicants. B.", "Costs and expenses 118. Each applicant claimed the costs of legal representation amounting to CZK 120,000 (EUR 4,528). They asserted that the legal representation in each case consisted of fifty billable hours charged CZK 2,400 (EUR 90) per hour. Invoking Rule 60 paragraph 2 and 3 of the Rules of Court, the Government asserted that it appeared that the applicants had not provided within the time specified therein any documents proving the payment of those costs at the amount sought. They contended that the Court should reject the claim as insufficiently grounded (Aldoshkina v. Russia, no.", "66041/01, § 32, 12 October 2006). 119. The Court reiterates that an applicant may recover his costs and expenses only in so far as they have been actually and necessarily incurred and are reasonable as to quantum (Bottazzi v. Italy [GC], no. 34884/97, § 22, ECHR 1999-V). Having regard to the material before it, particularly the complexity of the case, domestic proceedings pursued in search of remedy of violation found, the aforementioned criteria, and the fact that the applicants were successful only in part of their claim raised in their applications, the Court finds it proportionate to award the applicants, in respect of each application, EUR 2,264 for costs and expenses, plus any tax that may be chargeable to the applicants on this amount, all that to be converted into Czech crowns at the rate set by the Czech National Bank and applicable at the date of settlement.", "C. Default interest 120. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Decides unanimously to join the applications; 2. Joins unanimously to the merits the Governments' contention that the applicants did not exhaust domestic remedies in that they did not avail themselves of the available alternative remedies and declares the complaints under Article 6 § 1 of the Convention concerning the denial of access to a court admissible and the remainder of the applications inadmissible; 3.", "Dismisses by five votes to two the non-exhaustion argument which was joined to the merits and holds that there has been a violation of Article 6 § 1 of the Convention in respect of each application; 4. Holds by five votes to two that finding a violation of Article 6 § 1 of the Convention represents in itself just satisfaction for the applicants; 5. Holds by five votes to two 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, EUR 2,264 (two thousand two hundred and sixty four euro) in respect of each application for costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, together with 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; 6. Dismisses unanimously the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 15 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Claudia WesterdiekPeer LorenzenRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Jaeger joined by Judge Rait Maruste is annexed to this judgment. P.L. C.W. DISSENTING OPINION OF JUDGE JAEGER,JOINED BY JUDGE MARUSTE I am unable to agree with the majority's finding of a violation of Article 6 § 1 of the Convention – access to court – without any determination of the substantive civil right at stake. The case is about the rights of shareholders as defined by the Czech law.", "On the one hand owners of shares may be protected under Article 1 of Protocol No. 1 in so far as these shares constitute a possession or a property right of a certain variable value according to the stock market. But the Chamber declared these claims inadmissible as being premature (§ 110-112). On the other hand shareholders are empowered to participate in certain decisions concerning the future of the company concerned by means of resolutions taken within a general meeting, which is an added value to the pure monetary value. These decisions are taken under the majority rule.", "Shareholders being in the majority have the overwhelming power to transform the company into something different and to transfer its assets. Minority rights are rather limited, according to the restrictions by law: the minority, or a single shareholder, can institute proceedings to set aside such resolutions, but cannot inhibit registration following the majority's vote by virtue of his own right. After registration the minority's rights dwindle to a mere right to compensation. This is all set out in the judgment under § 42-59. The Czech courts gave some reasoning why they considered those restrictions of shareholder rights to be legitimate – legal certainty and the expeditious transformation of companies.", "The court administering the commercial register was established to project majority rights and the rights of the company as such (see paragraph 12 of the judgment). In addition, by reviewing the legality of the decision-making process within the company the courts administering the commercial register also protect the public interest in ensuring that the law is complied with. I am of the opinion that the restrictions of which the applicants complain are partly implemented by substantive provisions, partly by procedural ones. Whether these restrictions are in conformity with Convention rights cannot be answered by Article 6 § 1 of the Convention only focusing on the procedural aspect, even limited to one single factor within the procedural safeguards. In the context of civil rights that are not to be exercised individually but collectively together with other shareholders in the same position and under the obligation to reach a majority vote, access to court cannot be understood as a purely individual right to challenge and suspend every decision.", "This would at the same time grant every single shareholder a veto right against majority decisions. Thus the scope of shareholders' voting rights is defined within the limits of judicial control attached to them. Whether the rights enshrined in the Convention demand for an extension of minority rights with the aim to sufficiently protecting a minority of shareholders cannot be answered by Article 6 § 1 of the Convention but only by Article 1 of Protocol No. 1. It is a substantive and not a procedural question.", "Article 6 of the Convention applies under its “civil head” if there was a “dispute” over a “right” which can be said, at least, on arguable grounds, to be recognised under domestic law irrespective of whether it is also protected under the Convention (see Associazone Nazionale Reduci Dalla Prigonia Dall'Internamento E Dalla Guerra Di Liberazione and others v. Germany, no. 45563/04; J.S. and A.S. v. Poland, no. 40732/98, 24 May 2005). The absence of a legitimate expectation of a property right or any other civil right does not presuppose the absence of a right recognised on arguable grounds and the applicability of Article 6 of the Convention.", "The Court therefore has always to examine whether there was a dispute over a defendable right, which the Chamber did not do in any depth in this case. The civil right under dispute might be the purely financial property right embodied in the share. This dispute is still pending as conceded by the majority of the Chamber. It might as well be the additional right to influence important resolutions taken in a general meeting. The only existing legal provisions regarding a right to influence the future of a company clearly limit shareholders' bearing to a right to participate and vote in the general meeting, to a right to challenge resolutions as long as the changes are not registered and assets transferred by the commercial court, and – after the registration finalises the transactions – to claim compensation in case of any damages sustained or of inadequate compensation paid for their shares.", "Domestic law neither provides for any right to set aside majority resolutions nor to suspend their execution after registration. Minority shareholders are clearly excluded from these rights. Thus they cannot claim to have such right on arguable grounds. Article 6 § 1 of the Convention is not applicable (see Associazone Nazionale, referred to above). Finding Article 6 of the Convention not applicable in the case does not necessarily exclude finding a violation under Article 1 of Protocol No.", "1 to the Convention. This question, especially whether the law strikes a fair balance between the competing interests of the majority's rights and the public interest in the functioning of economy under the safeguards of the rule of law on the one hand and the protection of minority rights on the other hand, cannot be decided before compensation is determined. In the course of their scrutiny the courts will have to examine whether the totality of restrictions, including those on access to court, can be deemed necessary to control the use of property in accordance with the general interest (under the second paragraph of Article 1 of Protocol No. 1). I agree with the majority of the Chamber under § 112 that this part of the application is premature." ]

[ "FOURTH SECTION CASE OF KARAKULLUKÇU v. TURKEY (Application no. 49275/99) 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 Karakullukçu v. Turkey, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrR.", "Türmen,MrM. Pellonpää,MrR. Maruste,MrK. Traja,MsL. Mijović, judges,and Mr M. O’Boyle, 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. 49275/99) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Altan Karakullukçu (“the applicant”), on 20 April 1999. 2. The applicant was represented by Mr Ç. Hasdemir, a lawyer practising in İstanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.", "3. On 21 October 2004 the Court declared the application partly inadmissible and 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. 4. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1).", "The case was assigned to the newly composed Fourth Section. 5. The applicant and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1981 and lives in Elazığ.", "7. On 20 June 1991 the applicant was seriously injured in an explosion of a bomb placed in the garden of the Military barracks in Gaziosmanpaşa district of İstanbul. He was ten years old at the time of the events. 8. On 10 February 1992 the applicant’s father, acting as his legal guardian, filed a petition with the Ministry of Internal Affairs requesting compensation for the damage the applicant had sustained.", "The Ministry of Internal Affairs rejected this request on 15 April 1992. 9. On 3 June 1992 the applicant’s father brought an action for compensation before the İstanbul Administrative Court against the Ministry of Internal Affairs (hereinafter “the respondent”). 10. On 16 June 1992 the case was notified to the respondent which submitted its observations on 11 August 1992.", "11. On 3 March 1993 the İstanbul Administrative Court dismissed the respondent’s preliminary objection. 12. Between 3 March 1993 and 4 December 1994 the first-instance court took certain procedural decisions on 10 December 1993, 27 June 1994 and 16 September 1994. 13.", "On 4 December 1994 the İstanbul Administrative Court considered that there was neither fault nor negligence attributable to the authorities and dismissed the case. 14. On 30 January 1995 the applicant appealed against the aforementioned decision and requested the suspension of the execution of the judgment. On 30 January 1995 the applicant paid the expenses pertaining to the appeal procedure. The applicant was warned that the amount paid was insufficient and on 30 March 1995 he paid the remaining costs of the appeal procedure.", "15. On 3 May 1995 the Supreme Administrative Court dismissed the applicant’s request for a suspension of the execution of the judgment of 4 December 1994. 16. On 16 November 1995 the Supreme Administrative Court quashed the judgment of the first-instance court. The court referred to the doctrine of “social risk”, which did not require the establishment of any causal link between the harmful action and the loss, and reasoned that the damage caused by terrorism should be shared by the society as a whole in accordance with the principles of “justice” and “social state”.", "17. On 15 March 1996 the respondent requested the rectification of the judgment of the Supreme Administrative Court. 18. On 9 March 1998 the Supreme Administrative Court dismissed the request of the respondent. 19.", "On 30 September 1998 the Istanbul Administrative Court decided to abide by the judgment of the Supreme Administrative Court. 20. On 27 November 1998 the case-file was sent to an expert. On 29 December 1998 the expert submitted its report to the Court. 21.", "On 17 February 1999 the Istanbul Administrative Court awarded the applicant an amount of compensation for pecuniary and non-pecuniary damage with legal interest running from 18 February 1992. 22. On 30 April 1999 the judgment became final. 23. On 18 September 2000 the applicant was paid the due amount of compensation.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 24. 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. Admissibility 25. The Government asked the Court to dismiss the complaint as being inadmissible for failure to comply with the requirement of exhaustion of domestic remedies under Article 35 of the Convention. They maintained that the applicant did not raise the substance of his complaint before the domestic courts.", "26. The applicant did not deal specifically with this issue other than to dispute, in general terms, the arguments of the Government. 27. The Court reiterates that the obligation to exhaust domestic remedies requires only that an applicant make normal use of effective and sufficient remedies, that is those capable of remedying the situation at issue and affording redress for the breaches alleged. 28.", "The Court observes that the Turkish legal system does not provide any remedies to accelerate the proceedings. Nor does it award any compensation for delays in the proceedings. The Court accordingly concludes that there was no appropriate and effective remedy which the applicants should have exercised for the purposes of Article 35 § 1 of the Convention (see Hartman v. the Czech Republic, no.53341/99, § 69, ECHR 2003‑VIII (extracts)). It therefore rejects the Government’s preliminary objections. 29.", "In these circumstances, the Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible has been established. It must therefore be declared admissible. B. Merits 30.", "The Court considers that the period to be taken into consideration in determining whether the proceedings satisfied the “reasonable time” requirement laid down by Article 6 § 1 began on 10 February 1992 when the applicant’s father petitioned the Ministry of Internal Affairs (see König v. Germany, judgment of 28 June 1978, Series A no. 27, pp. 33‑34, § 98, Schouten and Meldrum v. the Netherlands, judgment of 9 December 1994, Series A no. 304, p. 25, § 62, and Vallée v. France, judgment of 26 April 1994, Series A no. 289‑A, p. 17, § 33) and ended on 30 April 1999 when the judgment became final.", "The period under consideration thus lasted seven years and two months, which comprised the proceedings before the Ministry of Internal Affairs and two instances of court which examined the case twice. 31. The Government submitted that the case was complicated as it raised a number of factual and legal issues which needed a detailed examination. The Government submitted that during the period in question, the applicant obtained two judgments at first-instance and two judgments at appeal stage as well as several interim decisions and many notifications. They submitted that there was no delay attributable to the authorities and that the length of the proceedings was caused by the number of legal reviews sought by the parties.", "32. The applicant contested to the Government’s arguments. They argued, in particular, that the length of the proceedings was unnecessarily prolonged by the decision of the first-instance court to dismiss their request for compensation despite the well-established jurisprudence in this area. 33. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the 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). 34. As regards the complexity of the case, the Court does not consider that the case presented any exceptional legal or factual difficulties since the impugned proceedings concerned an action for compensation in respect of the injuries sustained by the applicant as a result of the explosion of a bomb placed in the Military barracks. 35. As regards the conduct of the applicant, the Court observes that the applicant was responsible for the prolongation of the proceedings by about two months between 30 January 1995 and 30 March 1995 (see, paragraph 14).", "The Court also considers that the applicant’s unsuccessful request for the suspension of the execution of the judgment of 4 December 1994 (see, paragraphs 14 and 15) further contributed to the protraction of the proceedings. 36. As to the conduct of the domestic authorities, while the Court finds that the İstanbul Administrative Court’s conduct was not beyond reproach, it does not find that the proceedings before this instance warrant a conclusion that there were unreasonable delays in the processing of the case. Nor does it find that there were any excessive delays before the Supreme Administrative Court when it dismissed the applicant’s request for suspension of the execution of the decision of the first-instance court and quashed the judgment of 4 December 1994. However, the Court cannot overlook the fact that a lengthy period - two years- elapsed before the Supreme Administrative Court dismissed the unsuccessful request of the Ministry of Internal Affairs to rectify its judgment.", "The Government did not offer any explanation for this state of affairs. In the absence of such an explanation, or of any indication that the applicant was to blame, the delay must be considered to be attributable to the domestic courts’ handling of the appeal proceedings (see, mutadis mutandis, Nuri Özkan v. Turkey, no. 50733/99, §§ 21-22, 9 November 2004). 37. Finally, the Court considers that what was at stake for the applicant in the domestic litigation was of considerable importance to him.", "38. 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. 39. There has accordingly been a breach of Article 6 § 1. 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 claimed 145,600 United States Dollars (USD) (approximately 111, 272 euros (EUR)) in respect of pecuniary and USD 36,400 (approximately EUR 27,818) in respect of non-pecuniary damage. 42.", "The Government contested these claims, considering them excessive. 43. The Court does not discern any causal link between the violation found and the pecuniary damage alleged, it therefore rejects this claim. On the other hand, the Court accepts that the applicant must have suffered non‑pecuniary damage, such as distress and frustration, on account of the duration of the proceedings, which cannot be sufficiently compensation by the finding of a violation alone. Taking into account the circumstances of the case and having regard to its case-law, the Court awards the applicant EUR 3,600 under this head.", "B. Costs and expenses 44. The applicant did not seek any reimbursement of any costs and expenses in connection with the proceedings before the Court. C. Default interest 45. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the 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 according to Article 44 § 2 of the Convention, EUR 3,600 (three thousand and six hundred euros), to be converted into New Turkish liras at the rate applicable at the date of settlement, in respect of non‑pecuniary damage, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 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. Michael O’BoyleNicolas BratzaRegistrarPresident" ]

[ "FIFTH SECTION CASE OF BARYSHEVSKYY v. UKRAINE (Application no. 71660/11) JUDGMENT STRASBOURG 26 February 2015 This judgment is final. It may be subject to editorial revision. In the case of Baryshevskyy v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Angelika Nußberger, President,Boštjan M. Zupančič,Vincent A. de Gaetano, judges,and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 3 February 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "71660/11) 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 Vyacheslav Vasylyovych Baryshevskyy (“the applicant”), on 9 November 2011. 2. The applicant, who had been granted legal aid, was represented by Mr M.A. Tarakhkalo, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Ms N. Sevostianova.", "3. The applicant alleged, in particular, that he had not been provided with adequate medical care in detention, the length of his pre-trial detention was unreasonable, he had no effective procedure by which to challenge the lawfulness of his detention, and that the length of proceedings in his case was unreasonable. 4. On 4 December 2013 the application was declared partly inadmissible and the above complaints were communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1975 and lives in Konotop. A. Criminal proceedings against the applicant and his detention 6. On 8 January 2009 the Konotop Transport Prosecutor’s Office of the Sumy Region instituted proceedings against the applicant, then an officer of the Konotop Transport Police, on suspicion of abuse and exceeding his authority with respect to Mr Z.", "7. On 9 January 2009 the applicant was arrested and taken to the Konotop Temporary Detention Facility (“the ITT”). 8. On 12 January 2009 the Konotop Court examined the applicant’s complaint against his arrest and the investigator’s request for the applicant’s detention. The court rejected the applicant’s complaint and extended his detention for up to ten days.", "9. On 17 January 2009 the applicant was charged with abuse and exceeding his authority. 10. On 19 January 2009 the Konotop Court ordered the applicant’s pre-trial detention on the grounds that he was accused of a serious offence related to corruption which had become publicly known, that being at large he could evade investigation, continue his criminal activities and influence persons related to the investigation, and that his state of health was compatible with detention. 11.", "The same day, the applicant’s lawyer appealed against the above decision. 12. On 26 January 2009 the applicant was transferred to the Sumy Pre-Trial Detention Centre (“the SIZO”). 13. On 3 February 2009 the Sumy Regional Court of Appeal (“the Court of Appeal”) upheld the decision of 19 January 2009.", "14. On 5 March 2009 the Zarichnyy District Court of Sumy extended the applicant’s pre-trial detention for up to three months. The court noted that the applicant was accused of a serious offence and if released could evade investigation and trial, obstruct the establishment of the truth in the case, influence witnesses and victims. This decision was upheld by the Sumy Regional Court of Appeal (“the Court of Appeal”) on 24 March 2009. 15.", "On 3 April 2009 the investigator brought additional charges against the applicant for misappropriation of money and documents. 16. On 7 April 2009 the Zarichnyy District Court of Sumy extended the applicant’s detention for up to four months on the same grounds as in its decision of 5 March 2009. This decision was upheld by the Court of Appeal on 28 April 2009. 17.", "On 6 May 2009 the Court of Appeal extended the applicant’s detention for up to six months on the ground that the applicant was accused of serious offences punishable by up to 10 years’ imprisonment and that being at large he could obstruct investigation and continue his criminal activities. 18. On 30 June 2009 the Konotop Court (“the trial court”) held a preparatory hearing. The applicant’s lawyer requested the applicant’s release, but this request was rejected. The court stated that there were no reasons to change the preventive measure in respect of the applicant.", "19. On 23 February 2010 the trial court found the applicant guilty of misappropriation of property and abuse of authority sentencing him to five years’ and one month’s imprisonment and confiscation of half of his property other than his residence. It also barred him from occupying positions in law enforcement for three years. 20. On 18 May 2010 the Court of Appeal quashed the judgment of 23 February 2010 and remitted the case for a fresh consideration to the trial court.", "It also decided that the applicant was to remain in detention pending retrial. 21. On 17 September 2010 the trial court found the applicant guilty as in its judgment of 23 February 2010, changing the applicant’s sentence of imprisonment to five years and three months. 22. On 25 November 2010 the Court of Appeal quashed the judgment of 17 September 2010 and remitted the case for retrial.", "It also decided that the applicant was to remain in detention pending retrial. 23. On 31 January 2011 the applicant lodged a request with the trial court seeking release from custody on an undertaking not to abscond. He argued in particular that there was no reason to believe that he presented a risk of absconding or influencing witnesses, that he had a wife who was ill and in need of hospitalisation. On the same day the trial court rejected the request stating that it was “premature”.", "24. On 21 February 2011 the trial court convicted the applicant as in its judgment of 23 February 2010. 25. On 17 May 2011 the Court of Appeal quashed the judgment of 21 February 2011 and remitted the case for retrial. It also decided that the applicant was to remain in detention pending retrial.", "26. On the same day the Court of Appeal issued a separate ruling pointing out to the president of the trial court that the trial court had repeatedly failed to rectify the errors found by the Court of Appeal in its previous decisions. 27. On 22 September 2011 the applicant requested release claiming that his state of health was not compatible with detention and that he could not receive appropriate medical treatment in SIZO. The trial court rejected this request the same day without giving any reasons.", "28. On 29 September 2011 the trial court found the applicant guilty of misappropriation of property and documents, and abuse of authority, sentencing him to the same punishment as in the judgment of 23 February 2010. 29. On 17 January 2012 the Court of Appeal upheld the judgment of 29 September 2011 with certain amendments. 30.", "On 31 January 2012 the applicant was transferred to the Mensk Prison to serve his sentence. 31. On 13 July 2012 the applicant was released on parole in accordance with the ruling of the Mensk Court of 5 July 2012. 32. On 29 January 2013 the Higher Specialised Civil and Criminal Court quashed the decision of the Court of Appeal of 17 January 2012 and remitted the case for a fresh examination on appeal.", "33. On 16 April 2013 the Court of Appeal quashed the judgment of 29 September 2011 and remitted the case for retrial. 34. As of 31 March 2014 the proceedings in the applicant’s case were pending before the trial court. B.", "The applicant’s state of health and medical care in detention 35. From 29 December 2008 to 6 January 2009 the applicant was treated at the Konotop District Hospital where he was diagnosed with hypertension of the first (mildest) degree, hyperlipidemia, myocardial fibrosis, ventricular dilation, obesity, fatty hepatosis, chronic cholecistitis, and chronic pancreatitis. As treatment, the applicant was put on a diet excluding fried, salty, spicy foods, strong tea or coffee and certain other foods. 36. On 12 January, 15 January and 17 January 2009 the applicant complained to the ITT medical officer of headaches, numbness of limbs, and weakness.", "He was diagnosed with hypertensive crises and medication was administered. 37. On 22 January 2009 the applicant was examined at a hospital. It was determined that the applicant did not require hospitalisation. 38.", "On 25 January 2009 the ITT medical officer noted that the applicant complained on that day about headache and dizziness. Previous diagnosis was confirmed and medication was administered to the applicant. 39. On 26 January 2009 the applicant was examined by a medical assistant on his admission to the Sumy Pre-Trial Detention Centre (“the SIZO”). The applicant did not complain about his health.", "40. On 28 January 2009 the applicant was examined by a doctor of the SIZO medical unit. He was diagnosed with gastritis and medication was prescribed. 41. On 4 February 2009 the applicant was examined by a doctor who diagnosed him with cardioneurosis and prescribed medication.", "42. According to the Government, the applicant was examined by medical specialists at the SIZO on 23 occasions from 9 February 2009 to 16 August 2011, both on his initiative and as part of regular check-ups. He complained about headaches and stomach aches. Previously established diagnoses were confirmed. In addition, on 25 August 2010 the applicant was diagnosed with dermatitis.", "The applicant was prescribed various medications. 43. On 17 August 2011 the head of the SIZO medical unit wrote to the applicant saying that the SIZO provided only urgent dental care, including tooth extraction and pain relief, and did not provide implant care or treatment for cavities. 44. On 25 November 2011 the applicant complained about a headache, was examined by a neuropathologist and ophthalmologist.", "He was diagnosed with astheno-vegetative syndrome and prescribed certain medicines. 45. On 13 January 2012 the applicant complained of stomach aches, was diagnosed with chronic gastroduodenitis and prescribed medication. 46. On 31 January 2012 the applicant was examined by medical staff on his admission to the Mensk Prison.", "His state of health was found to be satisfactory. 47. On 15 June 2012 the applicant was diagnosed as having an inguinal hernia. He was prescribed bed rest. On 18 June, 20 June, 25 June, 5 July and 7 July 2012 the diagnosis and the recommendation were confirmed.", "48. On 13 July 2012 the head of the medical unit of the SIZO issued a certificate which stated that the applicant had repeatedly undergone courses of outpatient treatment while at the SIZO. It further stated that at the time the certificate was issued the applicant continued to complain about his state of health, regularly requested consultations in connection with stomach, liver, heart and kidney pains. It went on to state that in this connection the applicant was recommended additional consultation from gastroenterologist, cardiologist, nephrologist and an infrasound examination and that the SIZO had no such specialists on its staff. II.", "RELEVANT DOMESTIC LAW 49. The relevant provisions of the Code of Criminal Procedure of Ukraine with respect to detention pending investigation and trial can be found in the Court’s judgment in the case of Molodorych v. Ukraine (no. 2161/02, §§ 56-58, 28 October 2010). THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 50.", "The applicant complained under Article 3 of the Convention that he had been subjected to inhuman treatment on account of the inadequate medical care with which he had been provided in detention. The invoked Article provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 51. The applicant submitted that the medical care he received was inadequate. In particular, he stated that: (i) there had been no overall assessment and examination of his health and no overall plan for his treatment and any treatment he received was merely situational and symptomatic. In particular, in detention he was not provided the diet analogous to the one he had been receiving during his stay at the Konotop District Hospital prior to his arrest; (ii) there had been delays in medical care.", "In particular, even though he had complained of headache and shortness of breath on 12 January 2009 he had not been examined in hospital conditions until several days later. In addition, his examination on 28 January 2009 had been superficial because on that day had only been diagnosed with gastritis while later, on 4 February 2009, he had been also diagnosed with cardioneurosis; (iii) his health had deteriorated in detention, in particular he had made repeated requests for medical attention and he had developed a new condition, an inguinal hernia, in detention; (iv) the certificate which had been issued by the chief of the SIZO medical department on 13 July 2012 had indicated that his state of health had deteriorated and the SIZO had not had the specialists needed to examine him. 52. The Government argued that the medical care received by the applicant had been adequate. They stressed that the applicant had suffered from neurocirculatory dystonia of hypertensive type, chronic gastritis and fatty hepatosis prior to his detention and that there had been no recorded instances of significant deterioration of his health.", "The symptoms which had manifested themselves had resulted from the natural course of the applicant’s existing chronic illnesses. Throughout the period of his detention he had been under constant medical supervision. Upon his every complaint he had been examined by physicians and had been prescribed treatment which he had received in full. 53. The Court reiterates that it is the duty of the State to provide detained persons with requisite medical assistance (see, e.g., Ukhan v. Ukraine, no.", "30628/02, §§ 72-74, 18 December 2008, with further references). In determining whether the authorities have discharged their health-care obligations vis-à-vis a detainee in their charge, the Court’s task is to assess the quality of the medical services provided to the detainee in the light of his state of health and “the practical demands of imprisonment” and to determine whether, in the circumstances of a particular case, the health-care standard applied was compatible with the human dignity of the detainee (see Kaverzin v. Ukraine, no. 23893/03, § 138, 15 May 2012, with further references). 54. Turning to the facts of the present case, the Court notes that according to the Government’s submissions all of the applicant’s particular health complaints were addressed and he was provided adequate outpatient treatment in response to his every complaint.", "The applicant did not contest this. However, according to the applicant, this revealed that the treatment he received was merely situational and symptomatic. 55. The Court recalls that the need for a comprehensive therapeutic strategy in treatment of a detainee’s diseases must be determined in light of the nature of the applicant’s condition (see Popov v. Russia, no. 26853/04, § 211, 13 July 2006; Komarova v. Ukraine, no.", "13371/06, § 64, 16 May 2013). In this case, there is no evidence that the applicant’s conditions required any specific systemic medical treatment or that he was denied such treatment (see and compare Zinchenko v. Ukraine, no. 63763/11, § 58, 13 March 2014; Andrey Yakovenko v. Ukraine, no. 63727/11, § 79, 13 March 2014). The applicant’s contention that he needed a particular diet as an element of such systemic treatment and was prevented from following it is not supported by any evidence.", "56. As to the applicant’s submissions about delays in examination and diagnosis between 12 and 22 January 2012 and between 28 January and 4 February 2009, the Court notes that there is no indication that the applicant’s health suffered in any way as a result. 57. The majority of conditions the applicant suffered from in custody had been diagnosed prior to his arrest and were of a chronic nature. The evidence before the Court does not support the conclusion that the applicant’s health deteriorated in detention.", "Likewise, no evidence supports the applicant’s allegation that his hernia diagnosed in detention was caused by a lack of medical treatment. 58. As to the applicant’s complaint that on 13 July 2012, following his release, he was advised to consult additional specialists who were not on the SIZO’s staff, there is no indication that the examination recommended was of any urgency or that the applicant sought and was denied it outside of the SIZO. 59. While the applicant alleged in general terms that he had been refused unspecified dental treatment since the SIZO had not possessed the necessary facilities, he did not identify the nature of the treatment he had sought.", "Moreover, there is no suggestion that he requested but was refused such care outside the SIZO. 60. The Court observes that the applicant has not advanced any medical evidence in support of his statement that his state of health deteriorated while in detention and, if so, that it happened because of a lack of adequate medical assistance. Neither has he provided evidence that his conditions necessitated any particular treatment which was not given to him. 61.", "In such circumstances, the Court rejects the applicant’s complaint of a lack of adequate medical assistance in detention as manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 62. The applicant complained that the length of his pre-trial detention had been excessive. He relied on Article 5 § 3 of the Convention, which reads: “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 63. 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 64. The applicant submitted that the domestic courts, while they had referred in general to various risks justifying his continuing detention, had failed to refer to any circumstances or evidence showing that such risks indeed existed. According to him, they had also failed to analyse his arguments and had not considered any alternatives to detention. The only reason for the applicant’s continuing detention, according to him, had been the gravity of the charges against him.", "In addition, he argued that the domestic authorities had not displayed “special diligence” in the conduct of his case. 65. The Government submitted that the applicant’s pre-trial detention had lasted from 9 January 2009 to 29 September 2011, that is two years, eight months and twenty days. During this period the authorities had interviewed a number of witnesses, the victim, and the applicant, and had conducted other investigative actions. The reasons for the applicant’s detention had been stated in the relevant decisions of domestic courts.", "The Government argued that there had been adequate and sufficient grounds for keeping the applicant in custody and the domestic authorities had demonstrated diligence in the conduct of the case, as required by Article 5 § 3 of the Convention. 2. The Court’s assessment 66. The Court notes that the applicant remained in continuous detention following his arrest on 9 January 2009 until his conviction on 29 September 2011. With the periods when he was detained after conviction for the purposes of Article 5 § 1 (a) of the Convention deducted from the total period of detention, the period to be taken into consideration is two years and twenty-one days, comprising the following periods: from 1 January 2009 to 23 February 2010, from 18 May 2010 to 17 September 2010, from 25 November 2010 to 21 February 2011, and from 17 May 2011 to 29 September 2011.", "67. During this period domestic courts examined whether the applicant should remain in detention on numerous occasions. However, they did not analyse the applicant’s situation in any detail, employing stereotyped language without addressing specific facts of the applicant’s case. Moreover, in its rulings of 18 May 2010, 25 November 2010, and 17 May 2011 the Court of Appeal did not provide any reasons whatsoever, be it even in stereotyped language, for keeping the applicant in detention. 68.", "The Court has held that when domestic courts maintain the detention using each time similar, not to say stereotyped, wording, without showing that they actually pay attention to the passage of time, the requirements of Article 5 § 3 of the Convention are not met (see Mansur v. Turkey, 8 June 1995, § 55, Series A no. 319 B; Svipsta v. Latvia, no. 66820/01, § 109, 9 March 2006; Tiron v. Romania, no. 17689/03, § 39, 7 July 2009). 69.", "The Court has often found a violation of Article 5 § 3 of the Convention in cases against Ukraine on the basis that, even for lengthy periods of detention, the domestic courts referred to the same set of grounds, if any, throughout the period of the applicant’s detention (see, e.g., Yeloyev v. Ukraine, no. 17283/02, §§ 59-61, 6 November 2008, Kharchenko v. Ukraine, no. 40107/02, §§ 80-81 and 99, 10 February 2011; Gerashchenko v. Ukraine, no. 20602/05, § 103, 7 November 2013). 70.", "In the present case the seriousness of the charges against the applicant and the risk of his absconding or reoffending had been advanced in the initial order for his detention. This reasoning did not evolve with the passage of time. Nor did the domestic courts consider at any stage any alternative preventive measure instead of detention on remand. 71. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 5 § 3 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 72. The applicant further complained that the procedure by which he had sought to challenge the lawfulness of his detention following the completion of pre-trial investigation in his case had not been in conformity with Article 5 § 4 of the Convention, which provides: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Admissibility 73. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties’ submissions 74. The applicant argued that his situation was analogous to the situation found to constitute a violation of Article 5 § 4 in the case of Anatoliy Rudenko v. Ukraine (no.", "50264/08, § 82, 17 April 2014). 75. The Government considered that there was no violation of Article 5 § 4. In particular, the applicant could and did appeal against the initial order placing him in detention on remand and subsequent orders extending his detention during the pre-trial investigation. 2.", "The Court’s assessment 76. The Court notes that it has already found that Ukrainian law, as it stood at the relevant time, did not provide a procedure for reviewing the lawfulness of continued detention after the completion of a pre-trial investigation that satisfied the requirements of Article 5 § 4 of the Convention. Namely, trial courts were not required to give reasons for their decisions authorising detention or to fix the term of such detention (see Molodorych v. Ukraine, no. 2161/02, § 108, 28 October 2010, Anatoliy Rudenko, cited above, § 82). 77.", "The courts’ decisions in the present case were based on the same rules of domestic law and demonstrated the same practice. In particular, on 30 June 2009 the trial court in the applicant’s case decided to maintain the applicant in detention pending trial but neither gave any reasons for this decision nor fixed the term of detention. Similarly, on 31 January 2011 and on 22 September 2011 the trial court rejected the applicant’s requests for release, simply stating that the request was “premature” in the former case and without giving any reasons whatsoever in the latter case. 78. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 5 § 4 in this respect.", "IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 79. The applicant further complained that the criminal proceedings against him had exceeded a reasonable length of time within the meaning of Article 6 § 1 of the Convention which reads, in 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 ...” A. Admissibility 80. 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 81. The applicant argued that the length of proceedings in his case had been excessive.", "He submitted that the case had not been complex, that there had been numerous remittals for retrial, the Government had been responsible for witnesses’ repeated failure to appear because no diligence had been shown in summoning them, the applicant’s own conduct had not contributed to the delay since he had been detained and his motions in the course of investigation and trial had been reasonable. 82. The Government submitted that the period to be taken into account had started on 8 January 2009, when criminal proceedings had been initiated against the applicant. They stated that the proceedings were still pending as of 31 March 2014, the date of submission of the Government’s observations. They considered that the length of proceedings was reasonable, in particular since delays could be attributed to the victims’ and witnesses’ persistent failure to appear.", "They also noted that the applicant, in the course of consideration of his case, had repeatedly lodged various motions which had delayed the investigation. 2. The Court’s assessment 83. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the applicant’s conduct and the conduct of the competent authorities (see, e.g., Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).", "It also reiterates that where a person is held in custody pending the conclusion of the proceedings against him, this is a fact that requires particular diligence on the part of the authorities dealing with the case to administer justice expeditiously (see, e.g., Gavula v. Ukraine, no. 52652/07, § 96, 16 May 2013). 84. As regards the present case, the Court notes that criminal proceedings were instituted against the applicant on 8 January 2004. The parties do not dispute that this was the date when the criminal proceedings commenced for the purposes of Article 6 § 1 of the Convention.", "As of 31 March 2014 the proceedings were still pending. The proceedings had thus lasted five years and two months up to that date. 85. The Court notes that the case against the applicant was remitted for retrial three times. In fact, in its separate ruling of 17 May 2011 the Court of Appeal stressed that these repeated remittals had occurred due to the trial court’s persistent failure to rectify the errors found by the Court of Appeal.", "Although the Court is not in a position to analyse the quality of the adjudication by the domestic courts, it considers that, since the remittal of cases for re-examination is usually ordered as a result of errors committed by lower courts, the repetition of such orders within one set of proceedings discloses a serious deficiency in the judicial system (see Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003). 86. 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 Baglay v. Ukraine, no. 22431/02, § 31, 8 November 2005; Vergelskyy v. Ukraine, no.", "19312/06, §§ 115 and 119, 12 March 2009; Kiryakov v. Ukraine, no. 26124/03, §§ 62 and 64, 12 January 2012; Osakovskiy v. Ukraine, no. 13406/06, § 103, 17 July 2014). 87. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.", "88. There has accordingly been a breach of Article 6 § 1. V. 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 40,000 euros (EUR) in respect of non-pecuniary damage. 91. The Government considered the amount claimed to be excessive and argued that there was no causal link between the alleged violations and the amount claimed. 92. The Court considers that the applicant must have suffered distress and anxiety on account of the violations it has found.", "Ruling on an equitable basis, it awards the applicant EUR 3,500 in respect of non-pecuniary damage. B. Costs and expenses 93. The applicant also claimed EUR 5,880 for the costs and expenses incurred before the Court, to be transferred to his representative’s account. 94.", "The Government considered that the amount claimed was excessive. 95. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court awards the applicant EUR 1,525 under this head. This award is to be paid into the bank account of the applicant’s lawyer, Mr Tarakhkalo, as indicated by the applicant.", "C. Default interest 96. 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 length of the applicant’s pre-trial detention and of criminal proceedings against him and the availability of procedure by which to challenge the lawfulness 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 that there has been a violation of Article 5 § 4 of the Convention; 4. Holds that there has been a violation of Article 6 § 1 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,525 (one thousand five hundred and twenty-five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be transferred directly to the account of the applicant’s lawyer Mr M.A. Tarakhkalo; (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 26 February 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoAngelika Nußberger Deputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF MAMCHUR v. UKRAINE (Application no. 10383/09) JUDGMENT STRASBOURG 16 July 2015 FINAL 16/10/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mamchur v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President,Boštjan M. Zupančič,Ganna Yudkivska,Vincent A. De Gaetano,André Potocki,Helena Jäderblom,Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 23 June 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 10383/09) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Aleksandr Yegorovich Mamchur (“the applicant”), on 7 February 2009. 2. The applicant was represented by Mr A. Kristenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Ms N. Sevostyanova, of the Ministry of Justice.", "3. The applicant complained of interference with his parental rights, in particular the rights of custody and direct contact with his child and the right to bring up the child. He further complained under Article 14 of the Convention that he had suffered discrimination in the exercise of his right to respect for his family life due to his having a disability. The applicant also alleged, relying principally on Article 6 § 1 of the Convention, that the court proceedings in his case had been unfair. 4.", "On 4 March 2013 the application was communicated to the Government. It was given priority pursuant to Rule 41 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1954 and lives in Chernigiv.", "Since childhood the applicant has suffered from the second-highest officially recognised degree of disability. In particular, the applicant’s walking ability is impaired – he can only walk with the aid of crutches. Since August 1977 the applicant has worked as a senior researcher at the Chernigiv Institute of Agricultural Microbiology. A. The applicant’s family situation and the events leading to the child custody and care dispute 6.", "The applicant was married to O.M., with whom he had a daughter – A.M. – who was born on 5 May 2002. They lived together as a family in the applicant’s flat in Chernigiv. Y.L. – another daughter of O.M.’s – who was born on 30 April 1994, and M.M., the applicant’s mother, also lived in the same flat. 7.", "In October 2005 O.M. moved to live at her mother’s flat in Chernigiv, as O.M. was suffering from cancer and required external assistance, taking with her A.M., who was then three years old. 8. On 3 April 2006 a lawyer acting on behalf of O.M.", "lodged a claim with the Desnyanskyy District Court in Chernigiv against the applicant, seeking maintenance payments. In particular, in the claim it was stated that O.M. and the applicant “had not lived as a married couple” since August 2005, that the applicant “had left the family”, that he was not participating in the upbringing of A.M. and was not contributing to it financially. 9. The applicant submitted his observations on the claim, in which he stated that it had been O.M.", "who “had left the family” to live at her mother’s flat and that O.M. had taken A.M. with her. The applicant asserted that he was contributing money towards his daughter’s upbringing and that whenever his daughter had been unwell she had stayed at his home in order to protect O.M. against possible infection, most recently from 31 March to 5 April 2006. The applicant further contended that O.M.", "was in a poor state of health and taking opioids constantly, and that the claim had been instigated by her relatives, in particular by V.K., O.M.’s mother. The applicant asked the court to order A.M. to return to live at his flat as long as O.M. remained in a poor medical condition. 10. On 16 May 2006 the Desnyanskyy District Court allowed O.M.’s claim, finding that she and A.M. were living separately from the applicant and that he was not contributing money towards the child’s upbringing.", "The applicant did not appeal against that judgment, stating that he had only learnt of it after some delay. 11. On 16 June 2006 O.M. died. V.K.", "took A.M. away from Chernigiv without informing the applicant of the latter’s whereabouts. 12. The applicant stated that he had lodged a number of complaints and requests with the police, prosecutors, local child-care authorities and non-governmental organisations seeking assistance in his daughter’s return. In particular, he submitted a copy of his complaint of 19 September 2006 addressed to the police and to the Municipal Centre of Social Services for Family, Children and Youth (Міський центр соціальних служб для сім’ї, дітей та молоді, “the Municipal Family Welfare Centre”) in Chernigiv. 13.", "In a letter dated 16 October 2006, the Municipal Family Welfare Centre informed the applicant that his request of 19 September 2006 for his daughter’s return had been examined. The applicant was also informed by V.K.’s neighbours that she had left Chernigiv for Andriyivka, a village in the Chernigiv oblast (about 25 km away from Chernigiv), and had taken A.M. with her. The local authorities in Andriyivka were thus asked to assist the applicant in his request for the return of his daughter. The Chernigiv Municipal Family Welfare Centre also informed the applicant that he should raise the issue of establishing his daughter’s place of residence before the courts. 14.", "In October 2006 the police informed the applicant that there were no grounds for opening a criminal case on the basis of his complaint and that he should pursue it directly before the courts in the framework of a private action. 15. On 11 December 2006 V.K. lodged a request with the Desnyanskyy District Council in Chernigiv asking that she be appointed as A.M.’s tutor, stating that A.M. had been living with her since O.M.’s death, that the applicant suffered from the second-highest officially recognised degree of disability, and that she was not receiving any help from him. 16.", "The applicant was not informed about V.K.’s request. 17. On 22 December 2006, in response to V.K.’s request, the Desnyanskyy District Council adopted a decision appointing her as tutor of A.M. on the grounds that “the child’s mother had died [and] her father, who suffered from the second [highest officially recognised] degree of disability, could not take care of [the child’s] upbringing because of his state of health” (“the tutelage decision”). The decision noted that A.M. was living with V.K. at the latter’s place of residence.", "18. By a letter dated 24 February 2007, the Desnyanskyy District Council informed the applicant about the tutelage decision. 19. On 31 December 2006 A.M. broke her hip after falling from a cupboard in V.K.’s flat. According to the applicant, this had happened because V.K.", "had left his daughter without supervision for a long period of time. B. First set of court proceedings 20. In February 2007 the applicant lodged a claim with the Desnyanskyy District Court seeking his daughter’s return. On 8 May 2007 the claim was left undecided as the applicant had failed to appear before the court.", "According to the applicant, it was his lawyer who had failed to attend the court hearing. 21. In September 2007 the applicant lodged a new claim with the Desnyanskyy District Court seeking his daughter’s immediate return pursuant to Article 162 of the Family Code. The applicant argued that after his wife’s death, V.K. had retained his daughter unlawfully and without his consent.", "He also stated that V.K. had hindered his contact with A.M. The applicant invoked Articles 151, 153, 154 and 163 of the Family Code and Article 23 of the Civil Code. 22. V.K.", "disputed the applicant’s claim, arguing that she was A.M.’s tutor and that her granddaughter was therefore living lawfully at her home. V.K. stated that in October 2005 O.M. and A.M. had come to live in her flat as O.M. had required assistance for health reasons.", "After the latter’s death, A.M. had remained with V.K. 23. V.K. also lodged a counterclaim seeking compensation for non-pecuniary damage in respect of allegedly false information the applicant had submitted to the courts. In her counterclaim, V.K.", "stated that after the death of O.M. the applicant had, “periodically”, made phone calls asking her to return A.M. to him. V.K. alleged that he had verbally abused her, but provided no further details. 24.", "The representatives of the tutelage service (орган опіки та піклування) within the Desnyanskyy District Council submitted that the tutelage decision had been taken because the applicant – due to his disability – had not been able to take care of the child’s upbringing, that the living conditions at the child’s place of residence had been inspected and that the interests of the child had been taken into account. 25. During a court hearing on 19 December 2007 the applicant stated that he wished his claim to be amended to include a request for cancellation of the tutelage decision. The judge invited the applicant to submit an amended claim in writing. 26.", "At a hearing on 8 February 2008 the applicant submitted to the court his amended claim challenging the lawfulness of the tutelage decision and asking the court to order the Desnyanskyy District Council to adopt immediate measures to bring about his daughter’s return. The applicant argued that the contested decision had been taken without his consent and that he had not been informed that the matter had been considered. Referring to the incident on 31 December 2006 as a result of which A.M. had been injured (see paragraph 19 above), the applicant argued that his daughter’s life and health were at risk while she was staying with V.K. The applicant relied inter alia on Articles 152, 153, 157, 160 and 163 of the Family Code, Articles 58, 79, 1167 and 1168 of the Civil Code, and Articles 3 and 9 of the Convention on the Rights of Children of 1989. 27.", "The judge sitting in the case refused to include the amended claim in the case file on the grounds that the “amended” claim was in fact a new claim. The judge noted that its inclusion in the case would require the participation of new parties and would complicate consideration of the original claim. 28. At the hearing on 8 February 2008 the court delivered a judgment rejecting the applicant’s original claim. The court found that the applicant had been informed of the tutelage decision before he had lodged his claim with the court and as he had not challenged that decision, A.M. was staying with V.K.", "lawfully. 29. By the same judgment, the court also rejected V.K.’s counterclaim as unsubstantiated. 30. The applicant appealed, stating that the first-instance court’s refusal to consider his amended claim was groundless and that the judgment was not in accordance with the relevant law.", "The applicant also stated that the court had not allowed him to question the witnesses who had appeared before the court, but provided no details in that regard. 31. On 10 April 2008 the Chernigiv Oblast Court of Appeal rejected the applicant’s appeal. It noted that A.M. had been living “permanently” at V.K.’s place of residence since October 2005 and that, by the judgment of 16 May 2006, the Desnyanskyy District Court had ordered the applicant to pay maintenance to O.M. in respect of A.M.’s upbringing (see paragraph 10 above).", "The Court of Appeal held that there were no grounds for returning A.M. to the applicant pursuant to paragraph 2 of Article 163 of the Family Code, given that the tutelage decision was in force, that A.M. was staying lawfully with V.K., and that the latter was opposed to the child’s returning to living with the applicant because she believed that it would be contrary to the child’s interests. 32. Relying on Article 3 of the Convention on the Rights of the Child of 1989, the Court of Appeal found that the applicant had not produced evidence showing that it would be in A.M.’s best interests to live with the applicant or that it was contrary to her interests to live with her tutor. 33. The Court of Appeal refused to deal with the arguments brought by the applicant on the basis of his amended claim, since it had not been examined by the court of first instance.", "In that context the Court of Appeal held that the first-instance court’s decision not to include the amended claim was in compliance with Article 126 of the Code of Civil Procedure. 34. The applicant lodged a cassation appeal. He argued that, in dealing with his case, the courts had not acted in accordance with the proper procedure. In particular, the applicant alleged that the courts had unlawfully refused to consider his amended claim, that they had refused to summon witnesses on his behalf without stating the reasons why, that they had not considered the applicant’s request for the inclusion of important documentary evidence, and that they had systematically restricted his procedural rights, in particular the right to study the case file and to put questions to those taking part in the proceedings.", "35. The applicant also argued that the courts’ decisions had not been in accordance with the law. 36. In his cassation appeal the applicant further alleged that V.K. had systematically hindered his access to the child.", "37. By a decision of 9 September 2008, the Supreme Court rejected the cassation appeal as unsubstantiated, finding that the arguments contained in it did not constitute a basis for concluding that the judgments of the lower courts were wrong or unlawful. No further reasons were given by the Supreme Court. 38. According to the applicant, some of the court hearings had been held in the absence of his representative, who was unable to attend for health reasons.", "He provided no further details in that regard. C. Second set of court proceedings 39. On 1 April 2008 the applicant lodged a claim with the Desnyanskyy District Court seeking cancellation of the tutelage decision. The claim was based on the same arguments as those supporting the original and amended claims lodged by the applicant in the course of the first set of proceedings (see paragraphs 21 and 26 above). 40.", "On 18 August 2008 the Desnyanskyy District Court, relying on paragraph 1 of Article 3 of the Convention on the Rights of the Child of 1989, Articles 243-244 of the Family Code and Section 2.2 of the Regulations on Tutelage and Guardianship of 1999, found against the applicant. 41. The court noted that (i) the applicant had not produced any evidence showing that it would be in A.M.’s best interests to live with the applicant or that it would be contrary to her interests to live with her tutor; (ii) the tutelage service within the Desnyanskyy District Council had not had any concerns about the fulfilment by V.K. of her duties as a tutor; (iii) A.M. had lived at her grandmother’s home for three years before the decision in the case had been taken; (iv) during that period the applicant had not enquired about his child’s situation, had not used any means to communicate with her, and had not visited the child either at her place of residence or at the nursery which she had been attending; and (v) the applicant had participated in his daughter’s upbringing only by making maintenance payments. The court held that the contested decision had been adopted in accordance with the law and that A.M.’s interests had been duly taken into account.", "42. The applicant appealed, stating that the first-instance court had not taken into consideration his submissions that (i) V.K. had unlawfully retained his daughter before the tutelage decision had been adopted; (ii) V.K. had been hindering his communication with the child; (iii) there were witnesses alleging that V.K. had been abusing alcohol and “misbehaving”; (iv) V.K.", "had been responsible for the incident on 31 December 2006 (see paragraph 19 above); and (v) in addition to paying maintenance, the applicant had been sending money and parcels to A.M. by post, as he had not had the opportunity to deliver them in person. Moreover, V.K. had allegedly refused to let him into her house when he had come to see his daughter and had not answered his phone calls. 43. The applicant also alleged that the first-instance court had refused to question witnesses on his behalf and that he had not been allowed to put questions to the witnesses who had been questioned by the court.", "The applicant did not provide further details in respect of those allegations. 44. On 4 November 2008 the Chernigiv Oblast Court of Appeal rejected the applicant’s appeal, finding that (i) A.M. had been living with V.K. at her home since October 2005; (ii) A.M. had been under the medical supervision of the clinic in that location since birth; (iii) after O.M.’s death the applicant had not taken charge of the child’s upbringing; (iv) the applicant had not challenged the lawfulness of his daughter’s living with the grandmother prior to the adoption of the tutelage decision; (v) the applicant suffered from the second-highest degree of disability; and (vi) due to his “impaired moving capacity” the applicant had been sleeping in his office overnight on workdays (from Monday to Friday), returning home only for weekends. Relying on those grounds, the Court of Appeal held that the tutelage decision safeguarded the interests of the child, was in accordance with the law, and did not violate the applicant’s rights to educate and support his child.", "45. The Court of Appeal also held that the applicant’s allegations that the retention of his daughter by V.K. had been unlawful, that his communication with A.M. had been hindered and that V.K. had failed to fulfil her duties as a tutor were not supported by evidence and had been disproved by the information submitted by the Desnyanskyy District Council. 46.", "The applicant lodged a cassation appeal. He argued that, in violation of the proper procedure, the first-instance and appeal courts (i) had refused the applicant’s requests to have certain audio recordings examined in court and to check the reliability of the documents provided by the Desnyanskyy District Council; (ii) had not included the documentary evidence on which the applicant had relied; (iii) had not allowed the applicant to put questions to witnesses – in particular Y.L. – or to express his views regarding the way the hearings had been held; and (iv) had not observed the relevant regulations when accepting medical information (which he did not further specify). The applicant also stated that the courts had not taken into account his arguments that he had been unable to take care of A.M. because V.K. had hindered his communication with the child.", "In particular, she had allegedly “hidden” A.M. from the applicant, had not opened the door of her house when the applicant had tried to visit, and had otherwise blocked any opportunity for the applicant to see A.M. The applicant also argued that the courts had not applied the law pertinent to the case. 47. On 27 January 2009 the Supreme Court rejected the cassation appeal, finding that it contained no arguments requiring examination of the case material or demonstrating that the lower courts had violated procedural or substantive law. D. The situation after completion of the court proceedings 48.", "According to the applicant, V.K. had continued to hinder his communication with A.M. and he had not been able to participate in his daughter’s upbringing. In particular, on occasions when the applicant had come to visit his daughter, V.K. had not opened the door of her house. She had also refused to allow the applicant to take A.M. for medical examination.", "49. The applicant alleged that, despite his repeated requests for assistance in obtaining access to his daughter to enforce his parental rights, the authorities had been reluctant to help him. The applicant submitted copies of letters from the Desnyanskyy District Council and the Andriyivka Council stating inter alia that the living conditions of A.M. were satisfactory and that she was doing well at school. However, the applicant had not contacted the school administration to learn about the child’s everyday life and progress. In a letter dated 6 July 2009, the Desnyanskyy District Council stated that it would no longer deal with further similar requests from the applicant.", "50. The applicant also argued that he could provide adequate living conditions for his daughter, being a physiologist with a teaching qualification; he had sufficient income and owned a flat. The applicant also stated that he had been a tutor to Y. L. 51. According to the applicant, his daughter’s living conditions at V.K.’s place of residence were worse than the conditions at his home, V.K.’s house in Andriyivka having no sanitary facilities or no natural gas supply. The applicant explained that the school which his daughter attended was about to be closed on the grounds of having too few pupils.", "The school was two kilometres away from V.K.’s house, whereas the applicant’s house was only about two hundred metres from a school. II. RELEVANT DOMESTIC LAW A. Children’s upbringing and contact with their parents 52. Under Article 51 of the Constitution and Article 5 of the Family Code of 2002, the family, childhood, motherhood and fatherhood all fall under the protection of the State. In particular, the State must promote and encourage motherhood and fatherhood and ensure that children are brought up in a family (paragraphs 2 and 3 of Article 5 of the Family Code).", "Where the State puts in place regulations concerning family matters, it must take into account the interests of the child to the greatest extent possible. 53. Articles 151 and 163 of the Family Code provide that children who are minors should, as a priority, be “brought up personally” by their parents and live with them. The rights of parents – including those living separately from the child – to bring up a child who is a minor and to communicate with him or her can only be restricted by law (Articles 153 and 157). A parent living separately from a child may seek the assistance of the State Tutelage Service or of the courts to enforce his or her parental rights in cases where no agreement has been reached on that matter with the parent who has custody of the child (Articles 157-161).", "Where the child is being retained by a person without lawful basis, the courts may, at the parents’ request, order the return of the child if this does not run contrary to the child’s interests (Articles 162 and 163). Parents determine jointly where a child who is a minor should live (Article 160). Article 155 generally prohibits the exercise of parental rights where it is contrary to the interests of the child. 54. Similar provisions concerning the upbringing of children and contact with their parents are contained in Sections 11, 12, 14, 15 and 15-1 of the Act on the Protection of Childhood of 26 April 2001.", "B. Tutelage and guardianship 55. Article 243 of the Family Code and Article 58 of the Civil Code of 2003 provide that orphans and “children deprived of parental care” should be placed under tutelage or guardianship. A tutor should be appointed for children aged up to fourteen years and a guardian should be appointed for children who are between fourteen and eighteen years old. Under Article 63 of the Civil Code such an appointment may be made only upon a written request from the person wishing to become that tutor or guardian.", "Article 60 of the Civil Code sets out specific situations in which such an appointment should be made by the courts; in other situations it is for the tutelage authorities to decide on the matter. In its overview of court practice in 2007 (issued in December 2008), the Supreme Court noted inter alia that there had been no unified practice regarding the allocation between the courts and the tutelage and guardianship bodies of powers relating to the tutelage and guardianship of children. In particular, there had been instances where courts had refused to appoint a guardian or a tutor when deciding to deprive parents of parental rights, although they had power to do so under Article 60 of the Civil Code. 56. According to Section 1 of the Act on the Protection of Childhood of 26 April 2001 and Section 1 of the Act on the Social Protection of Orphan Children and Children Deprived of Parental Care of 13 January 2005, the notion of “children deprived of parental care” covers situations where such care is not being provided because (i) the parents have been deprived of their parental rights; (ii) the children have been removed from their parents without depriving them of parental rights; (iii) the parents are found to be missing or legally incapable or declared dead; (iv) the parents are serving a prison sentence or are being detained during pre-trial investigations; (v) the parents are wanted by the law-enforcement authorities for failure to pay maintenance and their whereabouts are unknown; (vi) the parents have been suffering from a long-term illness which prevents them from fulfilling their parental obligations; (vii) the parents have abandoned the child.", "Children deprived of parental care also include foundlings whose parents are unknown and homeless (abandoned) children. 57. The Regulations on Tutelage and Guardianship, enacted by the Cabinet of Ministers on 26 May 1999 (no. 34/166/131/88), provide that a child may be placed under tutelage where parents “have not been able (because of their state of health (people suffering from the first or the second officially recognised degree of disability) ...) to take care of the child’s upbringing for over six months” or “have not lived with the child and, for no justifiable reason, have not taken part in the child’s upbringing and sustenance, have not taken care of the child for over six months, or have abandoned the child, which is demonstrated by the corresponding police reports”. 58.", "Under Article 247 of the Family Code and Article 62 of the Civil Code, a child under tutelage should live with the tutor, either at the tutor’s home or at the child’s place of residence. The tutor determines the child’s upbringing and may seek the child’s return from any person who retains the child without legal grounds. The tutor should not hinder the child’s communication with his or her parents where such communication does not run contrary to the child’s interests (Article 249 of the Family Code). The tutor’s actions may be challenged before the authorities, including the courts (Article 79 of the Civil Code). 59.", "Tutelage should be terminated when a child who is a minor is transferred to the parents’ care or when the child becomes fourteen years old (paragraph 1 of Article 76 of the Civil Code). In the latter case the child’s tutor becomes his or her guardian, for which no separate decision is needed. 60. Paragraph 27 of the Regulations on Actions to be taken by the Tutelage and Guardianship Authority on Protection of Children’s Rights, enacted by the Cabinet of Ministers on 24 September 2008 (no. 866), provides inter alia that “a child [previously given the status of] ‘deprived of parental care’ should lose that status when one or both parents resume taking care [of him or her] on the basis of ... a report by the tutelage service that the child may be transferred to his or her parent or parents.” District administrations are empowered to take decisions concerning issues of status.", "Paragraph 5.4 of the Regulations on Tutelage and Guardianship (see paragraph 57 above), empowers the tutelage service to take a decision terminating tutelage if the child is returned to his parents’ care. 61. Pursuant to Article 79 of the Civil Code, the actions of a tutor can be challenged before tutelage authorities or courts. III. The United Nations Convention on the Rights of the Child of 1989 62.", "The relevant provisions of the United Nations Convention on the Rights of the Child of 1989, which entered into force in respect of Ukraine on 27 September 1991, read: Article 3 “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. ...” Article 5 “States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.” Article 9 “1.", "States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence. 2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. 3.", "States Parties shall respect the right of the child who is separated from one or both parents 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 20 “1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. 2. States Parties shall in accordance with their national laws ensure alternative care for such a child.", "3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.” THE LAW I. ALLEGED VIOLATION OF THE CONVENTION 63. The applicant complained that his communication with A.M. had been hindered and that he had not been able to participate in the child’s upbringing.", "In his view, the authorities had failed to protect his parental rights. 64. The applicant complained under Article 14 of the Convention that he had been discriminated against by the authorities, including the courts, which had given preference to V.K. in his child-care case because of his gender and disability. After the termination of the court proceedings he had allegedly continued to suffer discrimination in the exercise of his parental rights as regards A.M. 65.", "The applicant further complained under Articles 6 § 1 and 13 of the Convention that the courts which had dealt with his case had been biased, that they had not applied the relevant law, that they had restricted his procedural rights in an unfair manner, and that their decisions had been wrong, discriminatory and ill-founded. 66. The Court notes that the applicant’s complaints touch on several distinct issues. 67. Firstly, they are about the alleged interference with the applicant’s family life in so far as it concerns his child, A.M., which falls to be examined under Article 8 of the Convention taken alone and also in conjunction with Article 14, as the applicant complained that he had been, and continued to be, discriminated against by the authorities.", "These provisions read: Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 68. Secondly, the applicant’s complaints concern the allegations of unfair court proceedings which fall to be examined under Article 6 § 1 of the Convention, which reads, in so far as relevant to the applicant’s submissions: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an ... impartial tribunal ...” 69.", "The Court notes that at the heart of the present case are the applicant’s grievances concerning the violation of his parental rights. Accordingly, the Court will deal first with the applicant’s complaints under Article 8 of the Convention taken alone and in conjunction with Article 14, and then with his complaints under Article 6 § 1 of the Convention. A. Alleged violation of Article 8 of the Convention 70. The Court notes that the applicant’s complaints falling to be examined under Article 8 of the Convention are twofold.", "They concern, firstly, the alleged hindrance of the applicant’s access to his child and his inability to participate in her upbringing after his wife’s death in June 2006 and, secondly, the allegedly deficient decisions of the authorities, including the courts, concerning the placement of A.M. The Court will examine these two aspects of the applicant’s complaints in turn. 1. Alleged hindrance of the applicant’s access to his child and his inability to participate in her upbringing (a) Admissibility 71. The Government submitted that the applicant’s communication with the child had not been hindered prior to the adoption of the tutelage decision; at no time between October 2005 and June 2006 had the applicant asked the Desnyanskyy District Council to determine the manner of his participation in the child’s upbringing and communication with her; that he had not lodged a claim with the courts for the child’s return within six months of his wife’s death; that the applicant had requested the assistance of the police in that matter only once, namely on 19 September 2006; and that, having been informed in October 2006 by the police that no criminal investigation could be initiated in his case and that he should raise the matter before the courts, the applicant had waited until February 2007 to lodge a claim which had eventually been left undecided because the applicant had failed to appear before the court.", "According to the Government, the latter demonstrated that the applicant had no interest in the child’s return and did not wish to participate in her upbringing. Relying on those arguments, the Government stated that the applicant’s allegations of hindrance to his contact with the child, in so far as they concerned the period before the adoption of the tutelage decision, were unsubstantiated and that, moreover, he had not exhausted the domestic remedies available for those grievances. 72. As to the applicant’s complaints of hindrance to his communication with the child and his participation in her upbringing after the adoption of the tutelage decision, the Government claimed that they were inadmissible for non-exhaustion of domestic remedies. In particular, they argued that the applicant had not sought termination of the tutelage and the return of his child, which he could have done pursuant to Article 76 of the Civil Code, paragraph 5.4 of the Regulations on Tutelage and Guardianship, and paragraph 27 of the Regulations on Actions to be taken by the Tutelage and Guardianship Authority on Protection of Children’s Rights (see paragraphs 59-60 above).", "Under those provisions the return of a child was possible in cases where the child could no longer be considered as “deprived of parental care”. 73. The applicant disagreed, claiming that he had pursued all remedies available under Ukrainian law, but that they had proved to be ineffective. In particular, he had raised his complaints before the domestic courts. He had also made complaints to the police and the municipal authorities.", "74. The applicant also referred to an overview of court practice issued by the Supreme Court in December 2008, in which it was noted that there was no unified practice regarding the allocation between the courts and the tutelage and guardianship bodies of powers relating to the tutelage and guardianship of children (see paragraph 55 above). The applicant claimed that the above-mentioned legal inconsistency and the lack of cooperation between the different bodies involved in his case had meant that he had been deprived of any assistance in having his daughter returned to him. 75. The Court reiterates that it is only remedies which are effective that have to be exhausted.", "It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available both in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. Once this burden of proof has been satisfied, it falls to the applicant to show that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that special circumstances existed which absolved him or her from this requirement. The application of the rule of exhaustion of domestic remedies should be applied with some degree of flexibility and without excessive formalism (see, as a recent example, Manic v. Lithuania, no. 46600/11, § 80, 13 January 2015). 76.", "The Court notes that in the present case the question of exhaustion of domestic remedies is closely linked to the merits of the applicant’s complaints under Article 8 of the Convention in so far as they concern the allegedly inadequate response of the authorities to the applicant’s complaints of hindrance to his access to the child and his inability to participate in her upbringing (see paragraph 63 above). This question should therefore be joined to the merits. 77. The Court further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. (b) Merits (i) Relevant principles 78. The Court reiterates that, even though the primary object of Article 8 is to protect the individual against arbitrary action by public authorities, there are, in addition, positive obligations inherent in effective “respect” for private and family life. In relation to the fundamental guarantee of mutual enjoyment by parent and child of each other’s company, the Court has repeatedly held that Article 8 includes both a parent’s right to take measures for the purpose of being reunited with his or her child and an obligation on the part of the national authorities to take such action (see, among other authorities, Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000‑I).", "This applies not only to cases dealing with the compulsory taking of children into public care and the implementation of care measures, but also to cases where contact and residence disputes concerning children arise between parents and/or other members of the children’s family (see Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299, and Fuşcă v. Romania, no. 34630/07, § 34, 13 July 2010). 79. The obligation on the part of the national authorities to take measures to facilitate contact between a non-custodial parent and a child is not, however, absolute (see Hokkanen, cited above, § 58).", "It may not be possible for the establishment of contact to take place immediately and preparatory or phased measures may be required. Moreover, any such contact, as well as its nature and extent will depend on the circumstances of each case and will ultimately be subject to the best interests of the child. Although national authorities must do their utmost to facilitate such co-operation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, with paramount importance being attached to the best interests of the child and his or her rights under Article 8 of the Convention (see, among others, Johansen v. Norway, 7 August 1996, § 78, Reports of Judgments and Decisions 1996‑III, and Hokkanen, cited above, § 58). 80. What is decisive is the question of whether or not the national authorities have taken all such appropriate steps to facilitate contact as can reasonably be demanded in the specific circumstances of each case (see Hokkanen, cited above, § 58, and Ignaccolo-Zenide, cited above, § 96).", "In this context, the adequacy of the steps or of the measures is to be judged by the swiftness of their implementation, as the passage of time can have irremediable consequences for relations between the child and a parent who does not live with the child (see Ignaccolo-Zenide, cited above, § 102). (ii) Application of these principles in the present case 81. The Court notes that the applicant was not formally deprived either of the right of access to his child or of the right to participate in the child’s upbringing. However, according to the applicant, he could not effectively exercise those rights because after his wife’s death V.K. had hindered the applicant’s access to and communication with A.M.", "In particular, V.K. moved with A.M. to another location, did not answer the applicant’s phone calls and did not let him visit his daughter at her home (see paragraphs 11, 42 and 48 above). 82. As demonstrated by the evidential material submitted by the parties, the applicant complained about this issue initially to the Municipal Family Welfare Centre in Chernigiv and to the local police. The Municipal Family Welfare Centre informed the applicant that the authorities in the locality where his daughter lived at the time had been asked to assist him in his request for her return, though no further action was taken in that regard.", "The police, for their part, had refused to intervene. The applicant was advised to raise this matter before the courts, which he did. The courts rejected his complaints, finding that they were not supported by any evidence. They also found that the applicant had not visited his daughter either at her place of residence or at the nursery she had been attending for a long time (see paragraphs 41 and 44 above). 83.", "After the court proceedings in question were terminated, the applicant continued complaining to the authorities about the lack of access to his child, though to no avail. Eventually, the authorities refused to communicate with the applicant on this issue (see paragraph 49 above). 84. Given the above circumstances, the Court finds that, firstly, the applicant did try to get access to his daughter after his wife’s death, which was confirmed by V.K. (see paragraph 23 above).", "Secondly, given that V.K. had taken his daughter to another location and the applicant’s requests to various authorities seeking their assistance in obtaining access to his daughter had been unsuccessful, he arguably encountered difficulties in communicating with her. Thirdly, in the light of the replies from the authorities and the findings of the courts, the issue of access was not thoroughly examined. No effort was made to check whether the applicant could have had effective access to his daughter. It appears that it was presumed that the blame for his failure to visit his daughter lay with him, even though there was no comprehensive and thorough analysis that demonstrated this.", "In the circumstances, the Court cannot accept domestic findings that were based on such a restricted approach on the part of the authorities when dealing with the applicant’s complaints regarding access. Given the situation at the time, they were arguably obliged to make an effort to regulate the applicant’s access to his child and to help him attain the effective enforcement of his parental rights. 85. The failure of the authorities to do this had the effect of depriving the applicant of the corresponding legal safeguards as regards his parental rights (see paragraphs 52-54, 58 and 62 above). 86.", "In these circumstances, the Court does not consider that the applicant can be reproached for failing to take action under the procedure provided for in Article 162 of the Family Code (see paragraph 53 above) before the tutelage decision was taken. The Court further notes that in the second set of proceedings the domestic courts upheld the tutelage decision and dismissed the applicant’s complaints concerning access. Thus, it cannot reasonably be argued that there would have been any prospect of a different decision being reached with regard to these matters had the applicant lodged a claim for the termination of tutelage, as suggested by the Government (see paragraph 72 above). In any event, the Government had not demonstrated that such a procedure could have remedied the authorities’ failure to address adequately and thoroughly the issue of the applicant’s lack of access to his child and his inability to participate in the child’s upbringing. 87.", "Accordingly, the Court rejects the Government’s objection of non-exhaustion of domestic remedies and finds that there has been a violation of Article 8 of the Convention as regards the authorities’ failure to take any meaningful action in order to safeguard the applicant’s access to his child and his ability to participate in her upbringing. 2. Allegedly unjustified placement of the applicant’s child (a) Admissibility 88. The Court notes that the applicant’s complaints under Article 8 of the Convention about the allegedly deficient decisions of the authorities, including the courts, concerning the placement of A.M. 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 (i) The parties’ submissions 89. The applicant stated that the tutelage decision had been based on law of poor quality that was incompatible with the principle of the rule of law, and the application of which was not foreseeable. In particular, the applicant argued that at the material time there had been inconsistency in terms of how different legal instruments had determined the bodies responsible for tutelage and guardianship (see paragraph 74 above). The applicant argued that the domestic law did not provide for any safeguards against arbitrary decisions by the tutelage authorities.", "In particular, there was no obligation to inform the parties concerned, no obligation to examine living conditions at the parents’ place(s) of residence or possible reasons why they might be unable to take care of a child, and no obligation to seek the parents’ opinion concerning the appointment of a tutor. 90. The applicant further argued that the domestic authorities had not pursued a “legitimate aim” within the meaning of Article 8 § 2 of the Convention, because he had not been involved in the decision-making process regarding the tutelage. 91. The applicant also argued that there had been insufficient grounds justifying the interference with his family life and that the authorities and the courts had failed to duly examine whether he had in actual fact been prevented from taking care of his daughter.", "The mere fact that he suffered from a disability was not sufficient to demonstrate that he was unable to take care of her. No medical evidence had been examined in that regard. 92. The applicant claimed that, while the law gave precedence to parents’ rights to look after of their children and determine their place of residence, this principle had been wholly disregarded in his case. 93.", "The Government contended that the tutelage decision had been based on clear, accessible and foreseeable legal provisions and had been taken after the appropriate examinations and checks had been completed. The decision pursued the legitimate aim of protecting the child’s interests and preventing harm to her health and mental state. It was not disproportionate. In particular, the authorities had taken into account the relevant aspects of the case, such as the length of the child’s stay with her grandmother and the applicant’s failure to participate in the child’s upbringing. According to the Government, the tutelage decision in the present case had not set in motion a process of bonding between the child and the tutor but, on the contrary, had consolidated and formalised the existing ties between the child and her grandmother.", "The Government further argued that the tutelage decision had not deprived the applicant of his parental rights and he had remained entitled to communicate with the child and to participate actively in her upbringing. (ii) The Court’s assessment 94. This part of the case concerns a measure, namely the placement of the applicant’s child with her grandmother, as a result of which the applicant’s access to the child and participation in her upbringing were substantially limited. In particular, under Ukrainian law, the tutelage decision entitled the tutor to have sole custody of the child and to determine the child’s upbringing. It may remain valid until the child becomes fourteen years old, beyond which the tutor may automatically become his or her guardian and continue exercising the power of custody and care until the child reaches full legal age (majority) (see paragraphs 58 and 59 above).", "Thus, there is no doubt that the tutelage decision constituted an interference with the applicant’s right to respect for his family life within the meaning of Article 8 § 1 of the Convention, and it must be determined whether such interference was justified under Article 8 § 2 – namely whether it was in accordance with the law, pursued a legitimate aim and was necessary in a democratic society (see, among many other authorities, McMichael v. the nited Kingdom, 24 February 1995, §§ 86-87, Series A no. 307‑B). 95. The Court observes that the measure at issue was based on legal provisions empowering the authorities to appoint a tutor for a child who “was deprived of parental care”. The notion “deprivation of parental care” covers a range of situations set out in the law, including the situation where “long-term illness” prevents parents from fulfilling their parental duties (see a summary of the relevant domestic law in paragraphs 55-57 above).", "The administrative authority which issued the tutelage decision found that the applicant was not able to take care of the child because of his disability. The courts which later reviewed that decision also found that the child had not lived with the applicant and the applicant had failed to take care of the child for a long time prior to the adoption of the tutelage decision. The courts further found that the tutor had fulfilled her obligations and that the applicant had not demonstrated that it had been in the best interests of the child to live with him rather than the tutor. 96. In the light of the foregoing, the Court is satisfied that the interference with the applicant’s parental rights had a sufficient legal basis and pursued the legitimate aim of protecting the rights of others, namely those of A.M. to be raised in a safe, secure and stable environment.", "97. The applicant’s argument regarding inconsistency in how the domestic regulations allocated powers between the tutelage and guardianship authorities was not raised in the domestic proceedings and there is nothing to suggest that the authorities involved in the present case overstepped their powers in that regard or that an incorrect procedure was followed. Although the applicant’s allegation that the domestic law lacked safeguards against arbitrary decisions by the tutelage authorities may have a bearing on the question of whether the measure meets the requirement of lawfulness, the Court considers that, in the circumstances, it is more appropriate to examine that allegation from the perspective of the necessity and proportionality of the measure, thereby taking due account of the entirety of the decision-making process, including the courts’ proceedings. (α) Relevant principles 98. In determining whether a particular interference was “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify it were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention and whether the requisite decision-making process was fair and of a kind affording due respect to the interests safeguarded by Article 8 (see, for example, Kutzner v. Germany, no.", "46544/99, § 65, ECHR 2002-I, and Sommerfeld v. Germany [GC], no. 31871/96, § 66, ECHR 2003-VIII). 99. In reaching decisions on child-care measures, national authorities and courts are often faced with a task that is extremely difficult. They normally have the benefit of direct contact with all the persons concerned, often at the stage when care measures are first being envisaged or immediately after their implementation.", "There is therefore a need to allow them a certain margin of appreciation in deciding how best to deal with the cases before them, provided it is clear that the relevant assessments are being made properly and by professionals. It is not the Court’s task to substitute itself for the domestic authorities but to review, in the light of the Convention, the decisions taken and assessments made by those authorities in the exercise of their margin of appreciation (see K. and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001-VII, and R. and H. v. the United Kingdom, no. 35348/06, § 81, 31 May 2011). The scope of the review may vary depending on the nature and seriousness of the interference.", "Whereas, in dealing with disputes between parents regarding the custody of children, domestic authorities normally enjoy a wide margin of appreciation, a stricter scrutiny by the Court may be required where limitations on parental rights might entail the curtailment of family relations between parent and child (see, for instance, Y.C. v. the United Kingdom, no. 4547/10, § 137, 13 March 2012, and M.D. and Others v. Malta, no. 64791/10, § 71, 17 July 2012).", "100. The assessment of the overall proportionality of any given measure that risks the severance of family ties will require courts to weigh carefully a number of factors in the balance, and these may vary depending on the circumstances of the case in question. However, it must be borne in mind that paramount importance should be attached to the best interests of the child (see Johansen, cited above, § 78; Kearns v. France, no. 35991/04, § 79, 10 January 2008; and R. and H., cited above, §§ 73 and 81). In identifying the child’s best interests in a particular case, two considerations must be taken into account: first, it is in the child’s best interests that his or her ties with the family be maintained, except in cases where the family has proved particularly unfit or is clearly dysfunctional; and second, it is in the child’s best interests to ensure his or her development in a safe, secure and stable environment and in an environment which is not dysfunctional.", "As the Court stated in Neulinger and Shuruk v. Switzerland ([GC], no. 41615/07, ECHR 2010): “136. The child’s interest comprises two limbs. On the one hand, it dictates that the child’s ties with its family must be maintained, except in cases where the family has proved particularly unfit. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to ‘rebuild’ the family [Gnahoré v. France, no.", "40031/98, § 59, ECHR 2000‑IX]. On the other hand, it is clearly also in the child’s interest to ensure its development in a sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (see, among many other authorities, Elsholz v. Germany [GC], no. 25735/94, § 50, ECHR 2000‑VIII, and Maršálek v. the Czech Republic, no. 8153/04, § 71, 4 April 2006).” In this context, it is not enough to show that a child could be placed in a more beneficial environment for his upbringing (see K. and T., cited above, § 173). Nor can a measure severing family ties be justified by a mere reference to the parents’ precarious situation, which can be addressed by less radical means than splitting the family such as targeted financial assistance and social counselling (see, for example, Saviny v. Ukraine, no.", "39948/06, § 50, 18 December 2008). 101. Taking a child into care should normally be regarded as a temporary measure, to be discontinued if and as soon as circumstances permit. It cannot, therefore, be justified without prior consideration of the possible alternatives (see K. and T., cited above, § 166, and Kutzner, cited above, § 67) and should be viewed in the context of the State’s positive obligation to make serious and sustained efforts to facilitate the reuniting of children with their natural parents and, until that time, to enable regular contact between them (see, mutatis mutandis, Kutzner, cited above, §§ 76‑77, and K. and T., cited above, § 179). 102.", "As to the decision-making process, what must be determined is whether, having regard to the particular circumstances of the case and the serious nature of the decisions to be taken, the parents were involved in the decision-making process, seen as a whole, to a sufficient degree to satisfy the requisite protection of their interests, and have been able fully to present their case (see R. and H., cited above, § 75). Thus, it is incumbent upon the Court to ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors – in particular of a factual, emotional, psychological, material and medical nature – and made a balanced and reasonable assessment of the respective interests of each person, being constantly mindful of what would be the best solution for the child. In practice, there is likely to be a degree of overlap in this respect with the need for relevant and sufficient reasons to justify a measure in respect of the care of a child. (β) Application of the general principles in the present case 103. Before turning to an assessment of the necessity and proportionality of the interference in the present case, the Court notes that it has dealt with a somewhat similar situation where the custody of a child had been transferred to grandparents who had previously hindered access to the child by her sole parent (the applicant in that case) for a considerable period of time.", "In that case the Court accepted the domestic judgment finding that it was based on relevant and sufficient reasons supported by an expert opinion and that the matter was well within the domestic margin of appreciation (see Hokkanen, cited above, § 64). 104. In the present case, the Court is not prepared to accept the domestic judgment, having taken into consideration the following aspects of the case, which appear to be decisive. 105. Firstly, the applicant was not involved in the decision-making process leading to the tutelage decision.", "He was not informed of it and was not invited to take part in those proceedings. The District Council did not carry out any meaningful or professional assessment of the overall situation or the parties’ interests, finding instead that the mere fact that the applicant suffered from a disability was sufficient to demonstrate that he could not take care of his child. For instance, the District Council did not even check whether the applicant could have outside assistance in housekeeping matters. 106. Secondly, although the District Council’s flawed assessment could have been remedied during the ensuing court proceedings – in which the applicant took part and had an opportunity to raise and defend his arguments – the Court notes that the judicial process fell short of the requirements of thoroughness and objectivity.", "The courts’ decision to uphold the contested measure is not based on “sound and weighty” considerations. 107. In particular, one of the principal arguments on which the measure was based – that the applicant’s disability prevented him from taking care of the child – was not supported by any further analysis. No independent assessment of his ability to take care of his child was ordered nor was any potential for assistance or support even considered. The observation made by the Court of Appeal that the applicant was staying at work overnight on workdays does not appear to be conclusive as regards the applicant’s inability to fulfil parental duties.", "The information available concerning the applicant’s level of disability does not indicate definitively that he would have been unable to take care of his child. 108. As regards the courts’ findings that the child had not lived with the applicant for a long time prior to the adoption of the tutelage decision and that the applicant had not taken care of the child, the Court notes that the applicant consistently contested those findings during the proceedings, claiming that he had not had access to the child during that period and that he had unsuccessfully requested the authorities’ assistance in having his daughter returned. As the Court found above, the applicant’s claims in this regard required a more thorough and professional analysis and examination than can be found in the decisions of the domestic courts (see paragraph 84 above). 109.", "The courts’ other findings – that the tutor had fulfilled her obligations and that the applicant had not demonstrated that it had been in the best interests of the child to live with him rather than the tutor – relate to considerations concerning the more or less beneficial environment of the child’s upbringing, which are not sufficient in themselves to justify such an extreme measure as separating the child from her sole parent (see, for instance, Y.C. v. the United Kingdom, cited above, § 134). 110. Although the child’s staying with the grandmother might have been justified – in particular considering the length of time she had already lived with her and her lack of contact with the applicant – the possibility of reuniting the applicant with his daughter was not assessed, and no effort to facilitate such a reunion was made (see Saviny, cited above, § 57). Little, if any, consideration was given to the applicant’s interests in having custody of his child and in taking full responsibility for her upbringing, nor to the child’s interest in preserving close ties with her father and her half-sister.", "111. Finally, the Court notes that, although the measure at issue did not involve the permanent severance of family ties – the applicant remains formally entitled to have access to the child and to participate in the child’s upbringing – the domestic authorities made no effort to help the applicant to enforce his parental rights, which had the effect of rendering the relevant legal guarantees futile (see paragraph 85 above). 112. Given the foregoing considerations, the Court finds that the interference at issue was not based on a thorough and professional assessment of the entire family situation and factors pertinent to the applicant’s interests. 113.", "Therefore, there has been a violation of Article 8 of the Convention in this regard too. B. Alleged violation of Article 14 of the Convention taken in conjunction with Article 8 114. The applicant complained that in the exercise of his family rights he had been, and continued to be, treated differently from V.K. 115.", "In particular, he alleged that prior to the start of the first set of proceedings, his disability had been the only reason for the interference with his family rights. During the subsequent examination of the matter by the courts in the first set of proceedings, the District Council had relied on other reasons concerning the living conditions at V.K.’s home. The applicant’s disability had thus remained the principal reason for the interference. During the second set of proceedings the applicant’s disability had also been the decisive reason behind the courts’ conclusion that he was not able to take care of his daughter, which was not based on any medical reports. 116.", "The Government submitted that there were no grounds for considering that the applicant had suffered any form of discrimination. 117. The Court notes that this part of the application is essentially linked to the applicants’ complaints under Article 8 of the Convention in so far as they concern his argument that the authorities and the courts had advanced his disability as the principal reason for the interference with his family rights, having failed to give a thorough assessment of the entire family situation and factors pertinent to the applicant’s interests and those of his child. This part of the application must therefore likewise be declared admissible. 118.", "The Court reiterates that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and the Protocols, since it protects individuals placed in similar situations from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention or its Protocols has been invoked both on its own and together with Article 14 and a separate breach has been found of the substantive Article, it is not generally necessary for the Court to consider the case under Article 14 also, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999‑III, and Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45). In the circumstances of the present case and having regard to its findings under Article 8 (see paragraphs 84, 87, 112 and 113 above), the Court considers that it is not necessary to examine the applicant’s complaints under Article 14 of the Convention taken in conjunction with Article 8 (see A.K.", "v. Croatia, no. 37956/11, §§ 93-94, 8 January 2013). C. Alleged violation of Article 6 § 1 of the Convention 119. The applicant complained that the courts had dealt with his case in an unfair and biased manner. In particular, they had given preference to the opposing party’s arguments, had disregarded the applicant’s arguments and pertinent evidence, and had failed to provide sufficient reasons for their decisions.", "The applicant further complained that the courts had refused to summon witnesses on his behalf and had not given him the opportunity to put questions to the witnesses who had been questioned by the courts. 120. The Government argued that the first set of proceedings had not concerned the determination of the applicant’s civil rights and obligations. His claim for the child’s return had had no prospects of success because he had been aware of the tutelage decision at the time of lodging the claim, and his amended claim of 8 February 2008 could not have been examined within the framework of those proceedings. For those reasons, the Government stated that the applicant’s complaints regarding the unfairness of the first set of proceedings were incompatible ratione materiae with Article 6 § 1 of the Convention.", "121. The Court notes that by bringing his claims before the courts the applicant sought to have his parental rights protected, in particular the rights of custody and direct contact with his child and the right to bring her up. While the matters examined by the courts in the two sets of proceedings at issue overlapped to a certain degree – in particular as regards the applicant’s argument that it was in his child’s interest to live with him rather than with V.K. (see paragraphs 32 and 41 above) – the first set of proceedings was focussed mainly the applicant’s claim for the return of his child and the second set on the question of whether the tutelage decision was lawful and well-founded. Those matters were examined by the courts on the merits.", "Both sets of proceedings were therefore decisive for determining the applicant’s parental rights, which fall within the ambit of “civil rights” within the meaning of Article 6 § 1 of the Convention. The fact that the applicant’s claims were eventually dismissed does not retrospectively deprive them of their arguability (see, for instance, Le Calvez v. France, 29 July 1998, § 56, Reports of Judgments and Decisions 1998‑V). Consequently, the Court holds that Article 6 § 1 of the Convention applied to the impugned proceedings and that the Government’s objection in this regard must be rejected. 122. The Court further notes that this part of the application is essentially linked to the applicants’ complaints under Article 8 in so far as they concern defects in the judicial assessment of the applicant’s claims and must therefore likewise be declared admissible.", "123. Notwithstanding the difference in the nature of the interests protected by Articles 6 and 8 of the Convention, which may require separate examination of the relevant complaints, in the present case the interference with the applicant’s family life is at the heart of the application (see paragraph 69 above). Therefore, having regard to its findings concerning the procedural aspect of Article 8 (see paragraphs 84, 87, 112 and 113 above), the Court considers that it is not necessary to examine whether in the present case there has been a violation of Article 6 § 1 (see Saviny, cited above, § 70). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 124.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 125. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage. 126. The Government contested the claim, stating that it was exorbitant.", "127. Making its assessment on an equitable basis, the Court considers it reasonable to award the applicant EUR 15,000 for non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 128. The applicant also claimed 97,405 Ukrainian hryvnias (UAH), at the material time equivalent to about EUR 9,000, for legal costs and UAH 179, at the material time equivalent to about EUR 17, for postal expenses incurred before the Court.", "The applicant asked for those sums to be paid directly into the bank account of his representative. The sum claimed as regards legal costs was based on a rate of UAH 2,420, at the material time equivalent to about EUR 222, per hour, though it was not stated whether the sum included tax. According to the applicant, his representative had needed to spend about forty hours studying the case materials, communicating with the applicant and preparing observations and just satisfaction claims on his behalf. 129. The Government contested the claim, stating in particular that the lawyer’s hourly rate was excessive, as was the time he claimed to have spent on the case, and that part of the claim for postal expenses was not supported by acceptable evidence.", "130. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that the present case involves complex and serious issues under the Convention and that the time the applicant’s representative had to spend on it appears to be generally justified. It is also mindful that certain parts of the applicant’s complaints were declared inadmissible. Regard being had to all these aspects of the case and to the documents in its possession, the Court considers it reasonable to award the sum of EUR 4,000 for costs and expenses in the proceedings before the Court, plus any tax that may be chargeable to the applicant.", "This sum should be paid into the applicant’s lawyer’s bank account. C. Default interest 131. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Joins to the merits the Government’s objection as to the exhaustion of domestic remedies, and dismisses it; 2.", "Declares the complaints under Article 8 of the Convention taken alone and also in conjunction with Article 14 about the interference with the applicant’s family life and his complaints under Article 6 § 1 of the Convention about unfair court proceedings admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 8 of the Convention as regards the authorities’ failure to take any meaningful action in order to ensure the applicant’s access to his child and his ability to participate in her upbringing; 4. Holds that there has been a violation of Article 8 of the Convention as regards the unjustified placement of the applicant’s child; 5. Holds that there is no need to examine the complaints under Article 14 of the Convention taken in conjunction with Article 8; 6. Holds that there is no need to examine the complaint under Article 6 § 1 of the Convention; 7.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the bank account of the applicant’s lawyer, Mr A. Kristenko; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 8. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 16 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekAngelika NußbergerRegistrarPresident" ]

[ "CASE OF PERNA v. ITALY (Application no. 48898/99) JUDGMENT STRASBOURG 6 May 2003 In the case of Perna v. Italy, The European Court of Human Rights, sitting as a Grand Chamber composed of the following judges: MrL. Wildhaber, President,MrC.L. Rozakis,MrJ.-P. Costa,MrG. Ress,SirNicolas Bratza, MrB.", "Conforti,MrsE. Palm,MrI. Cabral Barreto,MrV. Butkevych,MrB. Zupančič,MrJ.", "Hedigan,MrsW. Thomassen,MrM. Pellonpää,MrsS. Botoucharova,MrM. Ugrekhelidze,MrsE.", "Steiner,MrS. Pavlovschi, and also of Mr P.J. Mahoney, Registrar, Having deliberated in private on 25 September 2002 and 5 March 2003, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 48898/99) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr Giancarlo Perna (“the applicant”), on 22 March 1999.", "2. The applicant was represented by Mr G.D. Caiazza, of the Rome Bar. The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza, Head of the Diplomatic Disputes Department, Ministry of Foreign Affairs, assisted by Mr F. Crisafulli, Deputy Co-Agent. 3. The applicant alleged a violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the Italian courts’ refusal to admit the evidence he wished to adduce, and an infringement of his right to freedom of expression, guaranteed by Article 10 of the Convention.", "4. 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. It was composed of the following judges: Mr C.L. Rozakis, President, Mr B. Conforti, Mr G. Bonello, Mrs V. Stráznická, Mr M. Fischbach, Mrs M. Tsatsa-Nikolovska, Mr E. Levits, and also of Mr E. Fribergh, Section Registrar.", "5. In a decision of 14 December 2000 the Chamber declared the application admissible. 6. On 25 July 2001 the Chamber delivered a judgment in which it held unanimously: “1. ... that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention; 2.", "... that there has been a violation of Article 10 of the Convention on account of the applicant’s conviction for alleging, in the form of a symbolic expression, that the complainant had taken an oath of obedience to the former Italian Communist Party, and that there has been no violation of Article 10 arising from the applicant’s conviction on account of his allegations concerning participation by the complainant in an alleged plan to gain control of the public prosecutors’ offices in a number of cities and the real reasons for using the criminal-turned-informer Buscetta; 3. ... that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant; 4. ... (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, 9,000,000 (nine million) Italian lire for costs and expenses, together with any sum that may be chargeable in value-added tax and a contribution to the lawyers’ insurance fund (the ‘CAP’); ...” It dismissed the remainder of the claim for just satisfaction. The concurring opinion of Mr Conforti joined by Mr Levits was annexed to the judgment. 7.", "On 19 and 24 October 2001 the Government and the applicant requested that the case be referred to the Grand Chamber, in accordance with Article 43 of the Convention and Rule 73. The panel of the Grand Chamber accepted their requests on 12 December 2001. 8. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. 9.", "The Government filed a memorial. In addition, observations were received from Mr G. Caselli, to whom the President had given leave to intervene as an interested party (Article 36 § 2 of the Convention and Rule 61 § 3). 10. A hearing took place in public in the Human Rights Building, Strasbourg, on 25 September 2002 (Rule 59 § 2 [As in force prior to 1 October 2002]). There appeared before the Court: (a) for the GovernmentMrF.", "Crisafulli,Deputy Co-Agent; (b) for the applicantMrG.D. Caiazza, Lawyer,Counsel; (c) for the third-party intervenerMrG. Caselli, Third-party intervener,MrG.C. Smuraglia, Lawyer,Counsel. The Court heard addresses by them.", "THE FACTS 11. The applicant was born in 1940 and lives in Rome. 12. He is a journalist by profession and on 21 November 1993 he published in the Italian daily newspaper Il Giornale an article about Mr G. Caselli, who was at that time the Principal Public Prosecutor in Palermo. The article was entitled “Caselli, the judge with the white quiff” and subtitled “Catholic schooling, communist militancy like his friend Violante – Are the charges against Andreotti the start of a new Sogno case?”.", "13. In the article the applicant, after referring to the proceedings brought by Mr Caselli against Mr G. Andreotti, a very well-known Italian statesman accused of aiding and abetting the Mafia (appoggio esterno alla mafia) who has in the meantime been acquitted at first instance, expressed himself as follows: “In the last few days Giulio Andreotti has told an Israeli newspaper that he fears he is to be eliminated. If I may be permitted to begin with a digression, I wonder why he was talking to a foreign paper rather than the Italian press. He’s not the only one. It’s getting to be an epidemic.", "During the same period the industrialist Carlo De Benedetti chose an English newspaper in which to say that Italy is his Siberia. Even Bettino Craxi, when he feels like uttering threats or complaints, generally does so via the Spanish papers. This might be a form of gratuitous snobbery. But it might also be a victimisation syndrome of the type ‘We’re foreigners in our own country and are obliged to raise our voices abroad in order to make ourselves heard at home.’ That’s what Andreotti is suggesting when he adds that he feels like an exile and the victim of a plot, but he doesn’t exactly know what kind of plot. Those who have seen him recently say that he’s pale, his pointed ears are drooping and he’s bent forward to the point of being hunchbacked.", "He’s worried about his wife Lidia, who’s been plunged in a kind of cataleptic trance since that fateful 27 March. That was the day when the official notification that he was under investigation – a document running to some 250 typewritten pages – turned the most well known Italian politician into the number one godfather of the Sicilian Mafia. Now Andreotti is bewildered. He tries to understand but he can’t. He thinks there must have been some sort of spur-of-the-moment conspiracy.", "But the antibody that’s eating away at him has been there for some time. It’s been cultured for years in precisely those religious environments that Andreotti likes best. While he was already dominating Rome in the 1950s Giancarlo Caselli, the Principal Public Prosecutor in Palermo, author of the 250 pages which have annihilated him, was learning his lessons at the school of the Salesian brothers in Turin. Giancarlo was a fine, studious boy. Turin is full of people like that because it’s a rainy city and the houses have no balconies to watch the street from, so there’s nothing else for a boy to do but get his head down over his books.", "That’s why the place specialises in the mass-production of intellectuals. From Bobbio to Conso, the Minister of Justice. It’s a puritan brotherhood. The more Giancarlo progressed towards self-knowledge the heavier his complex about his father weighed on him. The father was a very worthy man but only the chauffeur of a captain of industry.", "While driving he breathed in the air of the bourgeoisie and then he blew it out again over his son. The boy decided that when he grew up he would pass over to the other side of the fence. No longer subservient like dad, but keeping the upper hand. At university, he drew close to the PCI [the Italian Communist Party], the party which exalts the frustrated. When he was admitted to the State legal service he swore a threefold oath of obedience – to God, to the Law and to via Botteghe Oscure [formerly the headquarters of the PCI, now those of the PDS – the Democratic Party of the Left].", "And Giancarlo became the judge he has remained for the last thirty years – pious, stern and partisan. But he cannot really be understood without a mention here of his alter ego Luciano Violante, Caselli’s twin brother. Both from Turin; the same age – 52; both raised by the Catholic teaching orders; both communist militants; both judicial officers; and a deep understanding between them: when Violante, the head, calls, Caselli, the arm, responds. Luciano has always been one step ahead of Giancarlo. In the mid-1970s he indicted for an attempted coup d’état Edgardo Sogno, a former member of the Resistance, but also an anti-communist.", "It was a typical political trial which led nowhere. Instead of facing a judicial inquiry, Violante found that his career began to take off. In 1979 he was elected as a Communist MP. And ever since then he has been the via Botteghe Oscure’s shadow Minister of Justice. Today he’s the chairman of Parliament’s anti-Mafia committee, the great choreographer of the to-ing and fro-ing of the pentiti [criminals-turned-informers] and the PDS’s strongman.", "While Violante was climbing the ladder, Caselli had turned into a handsome figure with the shock of prematurely white hair he’s so proud of. If he goes away anywhere, even on a short trip, he always takes his hairdryer with him. During breaks in proceedings he pats his quiff into place on his forehead and pushes his hair over his ears. Afterwards, as you will have noticed on TV, he moves his head the bare minimum, so as not to ruin his handiwork. Vain – he’s vain.", "When Giancarlo was a member of the National Council of the Judiciary, from 1986 to 1990, his colleagues used to make fun of him, saying ‘Under his hair there’s nothing there’. That’s true up to a point, as a comment on his narcissism and his ideological blinkers. But it’s not true as regards his intelligence, which cannot be faulted. So far, as can be seen, there’s nothing to suggest that one day Caselli’s and Andreotti’s paths would cross. Apart from his spell at the National Council of the Judiciary, Giancarlo continued to live in Turin.", "He was a judge in the public eye and in the first line of the battle against terrorism. It was he who obtained the confession of Patrizio Peci, whose evidence as a witness for the prosecution devastated the Red Brigades. In the meantime, the PCI set in motion its strategy for gaining control of the public prosecutors’ offices of every city in Italy. That campaign is still going on, as the PDS has picked up the baton. The whole thing was the product of two linked but very very simple ideas Violante had.", "The first idea was that if the Communists could not manage to gain power through the ballot box, they could do so through the courts. There was no shortage of material. The Christian Democrats and the Socialists were nothing but thieves and it would be easy to catch them out. The second idea was more brilliant than the first: the opening of a judicial investigation was sufficient to shatter people’s careers; there was no need to go to the trouble of a trial, it was enough to put someone in the pillory. And to do that it was necessary to control the entire network of public prosecutors’ offices.", "And that was the start of Tangentopoli. The Craxis, De Lorenzos and others were immediately caught with their hands in the till and destroyed. But Andreotti was needed to complete the picture. More cunning than the rest, or not so greedy, the sly old Christian Democrat nearly always avoided getting caught up in corruption cases. It was at that precise moment that Giancarlo was getting ready to leave the rain of Turin for the sun of Palermo.", "A campaign of unsubstantiated allegations saw off the incumbent public prosecutor Giammanco, who crept away with his tail between his legs. And at the start of this year the handsome judge was able to take Giammanco’s place and finally place Violante’s seal on the Palermo prosecution service. Before he took up his new post Caselli was summoned to the Quirinale [the President’s official residence]. President Scalfaro, knowing the type, was concerned. When he had Caselli in front of him he said: ‘Do whatever you think is right, but be objective.’ Once in Palermo his fate and Andreotti’s, which had remained separate for years, became intertwined.", "Less than two months later the senator-for-life was suddenly accused of belonging to the Mafia. The file was an implausible rag-bag containing statements by pentiti, old and new documents and information given by the same old Buscetta [a pentito] to Violante and the anti-Mafia committee, now used by Caselli as evidence in a kind of game of ping-pong between the two twins. To cut a long story short, even the most long-lived brontosaurus in the Palazzo [i.e. Palazzo Madama – the Senate-House] was destroyed, thanks to the principle that an accusation is sufficient to destroy anyone. In April Caselli flew off to the United States, where he met Buscetta.", "He offered the informer 11,000,000 lire a month to continue to cooperate. Buscetta could still be useful to him during the investigation, even if the outcome was no longer of much importance. The result sought had already been achieved. What will happen next is already predictable. In six to eight months’ time the investigation will be closed.", "But Andreotti will not be able to resurrect his political career. What a stroke of luck. Caselli, on the other hand, will be portrayed as an objective judge whose duty obliged him to prosecute but who realised he had been in the wrong. He will become a hero. And that, if there is a God, cries out for vengeance.” 14.", "On 10 March 1994, acting on a complaint by Mr Caselli, the judge responsible for preliminary investigations committed the applicant and the manager of Il Giornale for trial in the Monza District Court. The applicant was accused of defamation through the medium of the press (diffamazione a mezzo stampa), aggravated by the fact that the offence had been committed to the detriment of a civil servant in the performance of his official duties. 15. At the trial on 10 January 1996 the civil party asked for the report on the evidence given by Buscetta to the New York judicial authorities and a copy of the Italian weekly newspaper l’Espresso in which that evidence had been published to be added to the file. The defence asked for two press articles concerning Mr Caselli’s professional relations with the pentito Buscetta to be added to the file and for the complainant to be required to give evidence.", "In an order made on the same day the District Court refused these requests on the grounds that the documents in question were not relevant to the object of the proceedings (defamation) and that there was no point taking evidence from Mr Caselli in view of the tenor of the article written by the applicant. 16. On the same day, applying Article 57, Article 595 §§ 1 and 2 and Article 61 § 10 of the Criminal Code and section 13 of the Press Act (Law no. 47 of 8 February 1948), the District Court sentenced the manager of Il Giornale and the applicant to fines of 1,000,000 and 1,500,000 Italian lire (ITL) respectively, payment of damages and costs in the sum of ITL 60,000,000, payment of the civil party’s costs and publication of the judgment in Il Giornale. In its reasoning the District Court included the following considerations: “...", "The author of this article, taking as his theme the case against Senator Giulio Andreotti, gave a biography of the complainant in terms which emphasised his cultural background and above all his ideological leanings – allegedly close to the PCI (now the PDS) – contending that these leanings had decisively influenced [the complainant’s] professional activity to the extent of making him the instrument of a grand design of that party, namely to take control of the judicial organs, particularly the public prosecutors’ offices. Mr Perna stressed the long-standing friendship between the complainant and the MP Violante, asserting that the latter acted as the head in a strategy where Mr Caselli was the arm. He added to his summary biography phrases with a particularly striking literal meaning such as: ‘When he was admitted to the State Legal Service he swore a threefold oath of obedience – to God, to the Law and to via Botteghe Oscure. And Giancarlo became the judge he has remained for the last thirty years – pious, stern and partisan.’ He accused Mr Caselli of having managed ‘the Andreotti investigation’ in furtherance of a grand political design hatched by Violante on behalf of the PCI/PDS, which was to break up by judicial process the dominant political class at the time, so that the favoured party could take power by non-electoral means. He suggested that the charges against Mr Andreotti, the last politician of any standing not to have been laid low by the ‘clean hands’ [mani pulite] inquiries in progress, should be seen in the context of that exploitation of the investigation.", "... The defamatory nature of the article ... is absolutely manifest, given that the text categorically excluded the possibility that Mr Caselli might be faithful to the deontological obligations of his duties as an officer in the State legal service and denied that he possessed the qualities of impartiality, independence, objectivity and probity which characterise the exercise of judicial functions, an activity which the complainant was even alleged to have used for political ends, according to the author of the article. In the present case exercise of the right to report current events cannot be pleaded as an extenuating circumstance, Mr Perna not having adduced the slightest evidence in support of his very serious allegations. Nor can he rely on exercise of the right to comment on them – a right which would certainly be enjoyed by a journalist who, in reporting court proceedings, criticises this or that measure – given that the offending assertions in the article amount to nothing more than an unjustified attack on the complainant, which foully besmirched his honour and reputation. ...” 17.", "The applicant appealed. Relying on the freedom of the press, and in particular the right to report and comment on current events, he contended, among other arguments, that what he had written about Mr Caselli’s political leanings was true and that the court could have verified that by agreeing to take evidence from the complainant himself; that Caselli and Violante were indeed friends; and that it was likewise true that Caselli had used the help of the pentito Buscetta in the proceedings against Andreotti, and, as the representative of the State, had paid him sums of money, all pentiti being remunerated by the Italian State. Describing himself in addition as an opinion columnist (opinionista), he asserted that he had not intended to give a biography of Caselli but rather to express his critical opinions, in a figurative and forceful way. More precisely, he had made critical judgments, which were admittedly more or less well founded and with which readers might or might not agree, but which were explicitly derived from the factual premise, namely Caselli’s political activity. Lastly, he demanded that evidence be taken from the complainant and from certain journalists and figures in Italian politics who, like Mr Caselli, had been Communist Party militants.", "In particular, he asked for evidence to be taken from Mr S. Vertone and Mr G. Ferrara and for press articles on interviews in which the two men had confirmed the complainant’s active political militancy to be added to the file. In particular, in an interview published in the daily newspaper Corriere della Sera on 11 December 1994, extracts from which were quoted in the applicant’s appeal, Mr Vertone had stated, inter alia, that the complainant was a brave man of great integrity but that he was influenced by the cultural and political model of communism, that his relations with the former Communist Party had been very close and that he had later all but joined the party. In an interview given to another daily newspaper, La Stampa, which published it on 9 December 1994, Mr Ferrara had asserted that he had taken part in dozens of political meetings with Caselli and Violante among others during the 1970s in the Turin federation of the former Communist Party. He had gone on to say that although Caselli, a man of integrity, had done good work against terrorism as an officer of the State legal service, he was heavily politicised and should therefore avoid speaking like a tribune of the people. 18.", "In a judgment of 28 October 1997 the Milan Court of Appeal dismissed the applicant’s appeal, ruling as follows: “... the statements noted in the charges ... are undeniably seriously damaging to the reputation of the injured party. They go further than casting doubt – as the charges say – on Mr Caselli’s loyalty to the country’s institutions, his faithfulness to the principle of legality, his objectivity and his independence; they categorically deny that he possesses those qualities and even attribute to him, among other accusations, instances of conduct which constitute disciplinary and criminal offences.” The Court of Appeal held that it was evident that the article essentially referred to facts, some of which were not in the least defamatory and were therefore not relevant to the decision to be taken. “In particular, the following elements are undeniably facts (not judgments), and one of the appeal pleadings (from lawyer D’A.) refers to them as such: (i) Giancarlo Caselli’s political leanings; (ii) the friendship between Mr Caselli and MP Violante; (iii) the information that as public prosecutor in Palermo Mr Caselli used the statements of the criminal-turned-informer Buscetta in the investigation concerning Mr Andreotti, and the information that the same Buscetta, like other pentiti, is paid by the State. Those elements are facts and in itself merely stating them is not in the least defamatory; they are therefore not relevant to the decision this Court has to take.", "That seems quite obvious as regards the last two pieces of information above, but is also true of the first (Giancarlo Caselli’s political leanings), since the State guarantees not only freedom of thought and the freedom to express thoughts but also the freedom of association in political parties. It is therefore not relevant to try to ascertain what political beliefs Giancarlo Caselli holds and whether or not he expressed them in specific circumstances (and at all events outside the judicial sphere and the performance of his duties) since that information could not in any case be considered defamatory in itself... There is therefore no basis for the request that the proceedings be reopened, firstly so that Giancarlo Caselli can be heard as a witness, and secondly to obtain the production of the press articles of Saverio Vertone and Giuliano Ferrara, but also so that witness evidence can be taken from them, once again on the subject of [Caselli’s] political militancy or at any rate of [his] ... political participation in the PCI/PDS. First of all, that information, as has already been said, is barely touched upon in the article, and in the second place it cannot in any event be regarded as damaging to the complainant’s reputation and accordingly does not need to be verified.” 19. Other facts imputed to the complainant were, on the contrary, undeniably defamatory.", "First of all, there was the oath of obedience, which, beyond its symbolic import, bore the precise accusation that Mr Caselli had given a personal and lasting undertaking to “obey”, in the course of his duties, the law, his religious beliefs and “the instructions of the leaders” of a political party. The Court of Appeal continued: “The remainder of the article, which gives a highly defamatory account of Mr Caselli’s alleged obedience to the Communist Party, confirms that the journalist was not expressing judgments or personal opinions but imputing specific conduct to Mr Caselli. Further on the article asserts (i) that Mr Caselli is Mr Violante’s twin brother, ... (ii) that the PCI ... set in motion a strategy of seizing control of all the public prosecutors’ offices in Italy by applying two of the MP’s ideas, the first being to gain power ... by using the judicial machine and the second to resort simply to opening a judicial investigation ... in order to destroy the careers [of political opponents] since there was no need to go to the trouble of a trial, it was enough to put someone in the pillory. It is in that context that the journalist referred to two actions by Giancarlo Caselli: his request for a transfer to the Palermo public prosecutor’s office and subsequent appointment to the post of public prosecutor there and his notification to Mr Andreotti that he faced prosecution for belonging to a Mafia-type organisation. ...", "The journalist Perna did not therefore express opinions or judgments but attributed to the complainant Giancarlo Caselli in a highly defamatory manner conduct and acts about which – and here we can only repeat what the District Court said – he did not adduce a scrap of evidence; he did not even seek to prove his case, as his lawyers argue that he was merely expressing opinions. ... The journalist [having] attributed specific acts to public prosecutor Giancarlo Caselli without verifying his assertions in any way and in a totally gratuitous manner, his conduct cannot be explained by errors or misunderstandings, but only as a deliberate act. That is confirmed by the literal content of the whole article, in which the person of Giancarlo Caselli is constantly and subtly denigrated, even though a few positive remarks are skilfully mixed in with the attacks. ...", "The content of the whole article shows that there was no unintentional fault on the defendant’s part but that he was fully aware that he was damaging another’s reputation and even that he intended to do so.” 20. In a judgment of 9 October 1998, deposited with the registry on 3 December 1998, the Court of Cassation upheld the Court of Appeal’s judgment, ruling that it was quite correct both as regards the merits and from the procedural point of view. “... Contrary to what has been alleged, the requests for leave to adduce evidence filed by the defence were interpreted in accordance with their exact significance and probative value and were rightly refused because they were totally devoid of relevance to the decision. The appeal written and signed jointly by the defendant Perna and his lawyer Mr Caiazza contains a request for the proceedings to be reopened, with a view, firstly, to ‘taking witness evidence from the civil party’, in particular ‘about the forms and modalities of his militancy, or at least of his political participation in the activities of the PCI/PDS during the period when he was already a public prosecutor, and about all the other points which offended the complainant’.", "The absolutely vague and irrelevant nature of the request is manifest in the light of the tenor of the phrases used by Mr Perna (in whose article the allusion to Mr Caselli’s militancy is by no means limited, as Mr Caiazza argued in the grounds of appeal, to the assertion that Mr Caselli associated himself with the Communist Party while he was at university, an assertion which would, incidentally, not constitute an insult); the article set out to give a detailed account of the forms taken by that militancy by imputing certain acts to Mr Caselli with the aim of proving that his militancy existed. Consequently, either this point remains vague or the problem is resolved by trying to make the complainant admit the facts noted in the charges, with the result that the burden of proof is shifted away from [Mr Perna and Mr Montanelli]. ... Moreover, the ‘direct witnesses’, Giuliano Ferrara and Saverio Vertone, are mentioned in connection with the above point [the forms taken by the complainant’s militancy]; what has just been said about the vagueness and irrelevance of that point therefore applies equally to those persons. Furthermore, giving further details about facts of which they had direct knowledge would have had no bearing on the trial since these were assertions which the trial court did not consider offensive and to speak of this as exculpatory evidence is accordingly meaningless.", "Lastly, Mr Caselli’s militancy within the PCI has nothing to do with the specific facts attributed to him, and therefore with his alleged oath of obedience to via Botteghe Oscure (to which, however, this ground of appeal makes no allusion), with the relations between Caselli and Violante and above all with an alleged link with Buscetta. Apart from the procedural aspect of the question, it should be stated at the outset that even the argument that the content of the article was not objectively offensive is absolutely devoid of foundation, as the judgment given by the trial court was justified in every respect as regards the offensive nature, for a man even more than for an officer of the State legal service, of imputations of specific facts implying a lack of personality, dignity, independent thought, coherence and moral honesty, and conduct signifying explicitly that there have been instances of dereliction of professional duty. ... The trial court’s reasoning on the extenuating circumstances of the right to report current events and the right to comment on them is also correct, as evidenced by an appropriate statement of the reasons which was free of mistakes in law and errors of logic. No link can be established, and moreover no link was established by the Court of Appeal, between the personality [of Mr Caselli] and an alleged right to report current events exercised through the offensive imputation of facts which have not been proved to be true and play no informative role.", "The essential point in the judgment is its categorical exclusion of the idea that the article expressed a critical judgment, hence the rejection of the plea that the right to freedom of expression constituted an extenuating circumstance. And in fact it is precisely by virtue of this comparative parameter and of its accessory powers of cognition that this court must repeat that the reasons given [by the Court of Appeal] are immune to criticism: the article is quite clearly a bare list of acts and conduct imputed to Mr Caselli in which there cannot be seen, even in veiled form, the slightest contribution to thought which might be regarded as a critical judgment, or even the attempt at irony which is said to be hidden in the elusive ‘caustic phrases’ referred to in the grounds of appeal. As the Court of Appeal concluded, this case was not about respect for the limits of formal propriety. It follows from all of the foregoing considerations that, as it is impossible to speak of critical comment, there is no cause to expatiate about exercise of the right to comment, still less about the extenuating circumstance of gross negligence in the exercise of the right to comment or about the hypothetical exercise of that right. ...” THE LAW I.", "PRELIMINARY ISSUE: THE SCOPE OF THE CASE 21. In their request for the case to be referred to the Grand Chamber, and again at the hearing, the Government asserted that that part of the Court’s judgment of 25 July 2001 which concerned the complaint under Article 6 §§ 1 and 3 (d) of the Convention would be final and would accordingly not fall within the scope of the present proceedings. 22. The applicant, on the other hand, asked the Court to hold that there had been violations of Articles 6 and 10 of the Convention. 23.", "The Court does not accept the Government’s argument. As it has already had occasion to observe, the wording of Article 43 of the Convention makes it clear that, whilst the existence of “a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance” (paragraph 2) is a prerequisite for acceptance of a party’s request, the consequence of acceptance is that the whole “case” is referred to the Grand Chamber to be decided afresh by means of a new judgment (paragraph 3). This being so, the “case” referred to the Grand Chamber necessarily embraces all aspects of the application previously examined by the Chamber in its judgment, the scope of its jurisdiction in the “case” being limited only by the Chamber’s decision on admissibility. In sum, there is no basis for a merely partial referral of the case to the Grand Chamber (see K. and T. v. Finland [GC], no. 25702/94, §§ 139-41, ECHR 2001-VII, and Göç v. Turkey [GC], no.", "36590/97, §§ 35-37, ECHR 2002-V). 24. The Court will therefore examine the two complaints under Articles 6 and 10 which were declared admissible by the Chamber and which were dealt with in its judgment. II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION 25.", "The applicant alleged that his right to due process had been infringed on account of the Italian courts’ refusal to admit the evidence he wished to adduce, including adversarial examination of the complainant. He asked the Court to find a violation of Article 6 §§ 1 and 3 (d), the relevant parts of which provide: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” 26. The Government emphasised at the outset that the admissibility of evidence was a matter for the domestic courts and that the applicant’s guilt had been confirmed by “courts at three levels of jurisdiction which examined the evidence adduced at the trial according to adversarial procedure”.", "The domestic courts had thus taken the view that the evidence the applicant wished to adduce was not relevant to his trial and there was nothing to indicate that the refusal to admit that evidence had breached Article 6. Relying on the Court’s established case-law, the Government observed that a defendant did not have an unlimited right to have witnesses called; he also had to show that the evidence of the witnesses he wished to have examined was necessary to establish the facts, which the applicant had not done in the instant case. None of the witness evidence he wished to adduce was relevant to the defamatory statements made in the offending article. 27. The applicant contested the Government’s assertion that the domestic courts had convicted him on the basis of the evidence examined at his trial.", "In his submission, they had refused to admit the crucial evidence in any trial for defamation, namely examination of the complainant. The result had been that, as the defendant, he had been denied the most elementary of his rights, namely the right to ask the complainant to say, under oath, whether the facts which formed the basis of the criticisms in the article were true or false. Moreover, he had not been able to adduce any evidence at all, a fact which was symptomatic of the abnormal character of his trial. In particular, it was hard to understand how the courts could describe as irrelevant testimony about the complainant’s political militancy at a time when he was already an officer in the State legal service, since that had been at the heart of the doubts he had expressed about Mr Caselli’s independence. In basing his conviction on the impugned article alone, the relevant domestic courts had, in substance, regarded the trial itself as superfluous.", "28. Mr Caselli, the third-party intervener, submitted that the evidence the applicant had sought to adduce was of no relevance to the object of the defamation proceedings. 29. The Court observes in the first place that the admissibility of evidence is primarily a matter for regulation by national law. The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among many other authorities, Van Mechelen and Others v. the Netherlands, judgment of 23 April 1997, Reports of Judgments and Decisions 1997-III, p. 711, § 50).", "In particular, “as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce ... Article 6 § 3 (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses” (see Vidal v. Belgium, judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 33). It is accordingly not sufficient for a defendant to complain that he has not been allowed to question certain witnesses; he must, in addition, support his request by explaining why it is important for the witnesses concerned to be heard and their evidence must be necessary for the establishment of the truth (see Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A no.", "22, pp. 38-39, § 91; and Bricmont v. Belgium, judgment of 7 July 1989, Series A no. 158, p. 31, § 89). That principle also applies where a defendant asks for the complainant in a defamation case to be examined. 30.", "The Court notes that at first instance the applicant asked for two press articles on Mr Caselli’s professional relations with the criminal-turned-informer Mr Buscetta to be added to the file and for the former to be required to give evidence (see paragraph 15 above). On appeal, he repeated his request for the complainant to be examined and also asked for Mr Vertone and Mr Ferrara to be heard and for two further articles which had appeared in the press in December 1994 to be added to the file. These articles contained reports on interviews in which Mr Vertone and Mr Ferrara had stated that Mr Caselli had “all but joined the [Communist Party]” and was “heavily politicised” (see paragraph 17 above). 31. By those means the applicant sought to establish that Mr Caselli’s political leanings, his friendship with Mr Violante and his professional relations with Mr Buscetta were facts.", "But the Italian courts which tried the merits of the case held that Mr Caselli’s political convictions and any manifestation of them unconnected with the performance of his duties as State Counsel, the existence of ties of friendship between Mr Violante and Mr Caselli and the use of the statements made by Mr Buscetta, a criminal-turned-informer paid by the State, in the proceedings against Mr Andreotti were facts without any defamatory import. On the other hand, it was defamatory to say that the complainant had “managed the Andreotti investigation in furtherance of a grand political design hatched by Violante” in order to take power by non-electoral means, thus committing an abuse of authority for political ends. The offending article manifestly denied that Mr Caselli possessed “the qualities of impartiality, independence, objectivity and probity which characterise the exercise of judicial functions” by attributing to him conduct “signifying that there [had been] instances of dereliction of professional duty” which “constituted disciplinary and criminal offences”. As the Court of Cassation noted in its judgment of 9 October 1998, the applicant’s requests for evidence to be admitted “were interpreted in accordance with their exact significance and probative value and were rightly refused because they were totally devoid of relevance to the decision” (see paragraph 20 above). The vague and irrelevant nature of the request for the proceedings to be reopened was, in the Court of Cassation’s view, quite evident in the light of the tenor of the applicant’s assertions: “the article set out to give a detailed account of the forms taken by [Mr Caselli’s] militancy by imputing certain acts to Mr Caselli with the aim of proving that his militancy existed.", "Consequently, either this point remains vague or the problem is resolved by trying to make the complainant admit the facts noted in the charges, with the result that the burden of proof is shifted away from [Mr Perna and Mr Montanelli]. ...” The Court agrees with the Italian courts that, even supposing that adding the two press articles to the file and taking evidence from Mr Caselli could have shed light on the latter’s political leanings and his relations with third parties, those measures would not have been capable of establishing that he had failed to observe the principles of impartiality, independence and objectivity inherent in his duties. On that crucial aspect, at no time did the applicant try to prove the reality of the conduct alleged to be contrary to those principles. On the contrary, his defence was that these were critical judgments which there was no need to prove. 32.", "In the light of the above considerations, the Court considers that the decisions in which the national authorities refused the applicant’s requests are not open to criticism under Article 6, as he had not established that his requests to produce documentary evidence and for evidence to be taken from the complainant and witnesses would have been helpful in proving that the specific conduct imputed to Mr Caselli had actually occurred. From that point of view, it cannot therefore be considered that the defamation proceedings brought by Mr Caselli against the applicant were unfair on account of the way the evidence was taken. The Court observes in passing, and although this is not decisive in the present case, that on 10 January 1996 the Monza District Court also ruled to be irrelevant the report on the evidence given by Mr Buscetta and the account of it given in a press article, documents which Mr Caselli’s counsel had asked to be admitted in evidence in order to make clear what course the interview had taken (see paragraph 15 above). In conclusion, there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention. III.", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 33. The applicant complained of an infringement of his right to freedom of expression, both because of the Italian courts’ decisions on the merits and because of their procedural decisions, which had prevented him from proving that the offending article was an example of the right to report and comment on current events within the context of the freedom of the press. He relied on Article 10 of the Convention, which provides: “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.” 34. As regards the second limb of that complaint, namely the Italian courts’ refusal to admit the evidence the applicant wished to adduce, the Court considers that in substance it raises no issue separate from the one it has already determined in connection with Article 6 §§ 1 and 3 (d). Consequently, the Court will examine only the first limb, that is the applicant’s conviction as such, from the standpoint of the substantive guarantees set forth in Article 10.", "A. Arguments of the parties 1. The Government 35. Before the Court the Government submitted that the object of the decisions complained of by the applicant was to protect the reputation of others, namely the reputation of the Palermo public prosecutor, Mr Caselli, and to maintain the authority of the judiciary; they therefore pursued legitimate aims for the purposes of the second paragraph of Article 10. The applicant’s assertions, far from concerning a matter of public debate, had been a personal affront to Mr Caselli.", "Referring to the Court’s case-law on the question, the Government argued that, in view of the special place of the judiciary in society, it might prove necessary to protect it against unfounded attacks, especially where the duty of discretion prevented the targeted judges from reacting. In accusing Mr Caselli of breaking the law, or at the very least of dereliction of his professional duties, the applicant had damaged not only his reputation but also public confidence in the State legal service. As the Milan Court of Appeal had observed, the applicant had not expressed opinions but had attributed conduct without checking his facts and without producing any concrete evidence to support his assertions. 36. In their request for the case to be referred to the Grand Chamber, and later at the hearing, the Government concentrated on the reasons which had led the Chamber to hold in its judgment of 25 July 2001 that there had been a violation of Article 10.", "In their submission, the finding of a violation had no factual basis: far from asserting that Mr Caselli’s militancy was a matter of public knowledge, the Italian courts had held that the symbolic phrase about the oath of obedience was not defamatory, and that was why the request for evidence to be taken from the complainant had been refused as irrelevant. 2. The applicant 37. In the applicant’s submission, a politically militant officer of the State legal service was inevitably influenced in the performance of his duties by his militancy. While it was possible to disagree with that opinion, it was not right to describe it as a very serious accusation and punish it with a criminal penalty without permitting the defence to adduce any evidence at all.", "3. The third-party intervener 38. Mr Caselli submitted that the political militancy to which the Chamber had referred in its judgment of 25 July 2001 (paragraphs 28, 29, 41 and 42) was not stated as a fact in the decisions of the domestic courts. None of them had ever taken such militancy to have been established. In addition, Mr Caselli asserted that he had never hidden his beliefs (which should not be confused with militancy) and that he was a member of Magistratura Democratica, an association of officers of the State legal service represented within the National Council of the Judiciary.", "B. The Court’s assessment 1. General principles 39. The Court reiterates the following fundamental principles in this area: (a) 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 that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, among other authorities, Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, p. 23, § 31; Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999-I; Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII; and Fuentes Bobo v. Spain, no.", "39293/98, § 43, 29 February 2000). The press plays an essential role in a democratic society. Although it must not overstep certain bounds, regarding in particular protection 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, including those relating to justice (see De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports 1997-I, pp. 233-34, § 37). Not only does it have the task of imparting such information and ideas: the public also has a right to receive them.", "Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see Thorgeir Thorgeirson v. Iceland, judgment of 25 June 1992, Series A no. 239, p. 27, § 63, and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III). Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see Oberschlick v. Austria (no. 1), judgment of 23 May 1991, Series A no.", "204, p. 25, § 57). 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, and Thoma v. Luxembourg, no. 38432/97, §§ 45 and 46, ECHR 2001-III). (b) The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”.", "The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see Janowski, cited above, § 30). (c) In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicant and the context in which he made them. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see Barfod v. Denmark, judgment of 22 February 1989, Series A no. 149, p. 12, § 28, and Janowski, cited above, § 30).", "In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see Jersild, cited above, p. 24, § 31; Fuentes Bobo, cited above, § 44; and De Diego Nafría v. Spain, no. 46833/99, § 34, 14 March 2002). (d) The nature and severity of the penalty imposed are also factors to be taken into account when assessing the proportionality of the interference (see, for example, Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV, and Tammer v. Estonia, no. 41205/98, § 69, ECHR 2001-I).", "2. Application of the above principles to the instant case 40. As the decisions of the domestic courts show, the applicant was committed for trial and later convicted for casting doubt on Mr Caselli’s “faithfulness to the principle of legality, his objectivity and his independence” (see paragraph 18 above) by accusing him, among other allegations, of having carried on his profession improperly and acted illegally, particularly in connection with the prosecution of Mr Andreotti. The courts took account of the following aggravating circumstances: (i) the fact of having imputed to the injured party the acts mentioned (and even criminal acts as regards the criminal-turned-informer Buscetta); (ii) the fact of having committed the act (defamation) to the detriment of a civil servant in the performance of his official duties. The conviction at first instance was subsequently upheld by the Court of Appeal and the Court of Cassation (see paragraphs 18-20 above).", "41. The conviction incontestably amounted to interference with the applicant’s exercise of his right to freedom of expression. The question arises whether such interference can be justified under the second paragraph of Article 10. It therefore falls to be determined whether the interference was “prescribed by law”, had a “legitimate aim” for the purposes of that paragraph and was “necessary in a democratic society” (see Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, pp.", "24-25, §§ 34-37). 42. The Court notes that the competent courts based their decisions on Article 595 §§ 1 and 2 and Article 61 § 10 of the Criminal Code, and section 13 of the Press Act (Law no. 47 of 8 February 1948) (see paragraph 16 above) and that, as the Government submitted, the reasons for those decisions showed that they pursued a legitimate aim, namely protection of the reputation and rights of others, in this instance those of Mr Caselli, who was head of the Palermo public prosecutor’s office at the time. 43.", "However, the Court must verify whether the interference was justified and necessary in a democratic society, and in particular whether it was proportionate and whether the reasons given by the national authorities in justification for it were relevant and sufficient. It is thus essential to determine whether the national authorities made proper use of their power of appreciation in convicting the applicant of defamation. 44. The Monza District Court held that the defamatory nature of the article was “absolutely manifest”, because the text excluded the possibility that Mr Caselli might be faithful to the deontological obligations of his duties as an officer in the State legal service and in addition denied that he possessed the qualities of impartiality, independence and objectivity which characterise the exercise of judicial functions. In short, the applicant’s assertions amounted to nothing more than “an unjustified attack on the complainant, which foully besmirched his honour and reputation” (see paragraph 16 above).", "45. The Court of Appeal held that some of the statements Mr Perna made about the complainant were not in the least defamatory. Others, on the contrary, which the applicant wrongly presented as judgments or opinions, had imputed conduct to Mr Caselli in a highly defamatory and gratuitous manner without any attempt to check the facts beforehand. The fact that the journalist had acted deliberately was fully confirmed by the content of the whole article, in which Mr Caselli had been “constantly and subtly denigrated”. Its author had therefore indeed intended to damage another’s reputation (see paragraphs 18 and 19 above).", "46. Lastly, the Court of Cassation upheld the Court of Appeal’s judgment, ruling that it was not open to criticism. It held that the factual statements made about Mr Caselli played no informative role and had not been proved to be true. The offensive nature of the article, for a man, even more than for an officer of the State legal service, was not in doubt, as the applicant had made imputations of specific facts implying a lack of personality, dignity, independent thought, coherence and moral honesty, and conduct signifying explicitly that there had been instances of dereliction of professional duty (see paragraph 20 above). 47.", "The Court observes that a finding of a violation of Article 10 cannot be excluded a priori where a defendant has been convicted by the domestic courts on the basis of a separate examination of the various assertions made in an article like the one in issue. In the present case, however, merely to scrutinise each of the statements taken into consideration by the national authorities in reaching their decision that the offence of defamation had been committed would be to lose sight of the article’s overall content and its very essence. Mr Perna did not confine his remarks to the assertion that Mr Caselli harboured or had manifested political beliefs and that this justified doubts about his impartiality in the performance of his duties. It is quite apparent from the whole article – as the national authorities rightly noted – that the applicant sought to convey to the public the following clear and wholly unambiguous message: that Mr Caselli had knowingly committed an abuse of authority, notably in precise circumstances connected with the indictment of Mr Andreotti, in furtherance of the alleged PCI strategy of gaining control of public prosecutors’ offices in Italy. In that context, even phrases like the one relating to the “oath of obedience” take on a meaning which is anything but symbolic.", "The Court further observes that it has just found, in paragraph 31 of this judgment, that at no time did the applicant try to prove that the specific conduct imputed to Mr Caselli had actually occurred and that in his defence he argued, on the contrary, that he had expressed critical judgments which there was no need to prove. 48. Having regard to the foregoing, the Court considers that the applicant’s conviction on account of his defamatory article and the sentence imposed on him (a fine of 1,500,000 Italian lire (ITL), payment of damages and costs in the sum of ITL 60,000,000, reimbursement of the civil party’s costs and publication of the judgment) were not disproportionate to the legitimate aim pursued, and that the reasons given by the Italian courts in justification of those measures were relevant and sufficient. The interference with the applicant’s exercise of his right to freedom of expression could therefore reasonably be regarded as necessary in a democratic society to protect the reputation of others within the meaning of Article 10 § 2. There has accordingly been no violation of Article 10 of the Convention.", "FOR THESE REASONS, THE COURT 1. Holds unanimously that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention; 2. Holds by sixteen votes to one that there has been no violation of Article 10 of the Convention. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 6 May 2003. Luzius WildhaberPresidentPaul MahoneyRegistrar In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Mr Conforti is annexed to this judgment.", "L.W.P.J.M. DISSENTING OPINION OF JUDGE CONFORTI (Translation) Annexed to the Chamber’s judgment is a separate opinion in which I criticised the approach followed by the majority, particularly the fact that they considered the complaint about the procedural aspect separately from the complaint under Article 10. I would have preferred an overall approach focused on Article 10. The Grand Chamber has now endorsed the Chamber’s approach and, like the Chamber, has held that the proceedings were not conducted in a manner incompatible with the principles laid down in Article 6. Moreover, it did not agree with the Chamber on the Article 10 issue, since it found that Article 10 had not been breached.", "For my part, I can only repeat the opinion I expressed in connection with the Chamber’s judgment. In my view, the issues raised in cases of this type are still Article 10 issues even where the procedure followed is concerned; and what can normally be tolerated from the point of view of due process according to the fair-trial rules laid down in Article 6 may not be acceptable when it is a matter of verifying whether an interference with freedom of expression is “necessary in a democratic society”. In the present case the courts refused all requests for permission to adduce evidence and, what to my mind is exceptionally serious, refused to take evidence from the complainant, who could have and should have been examined by the applicant’s counsel. It is not right to speculate beforehand about what the result of such an examination might be. In the trial of a journalist for defamation of a judicial officer in the public prosecution service, the conduct of the domestic courts, whether intentional or not, gives the clear impression of intimidation, which cannot be tolerated in the light of the Court’s case-law on restrictions of the freedom of the press.", "Indeed, the Italian courts acted very speedily in determining the charges against the applicant in less than four years, at three levels of jurisdiction. However, that circumstance too, although praiseworthy from the point of view of the reasonable length of judicial proceedings, cannot fail to reinforce – in a country condemned many times for the length of its proceedings – the impression I mentioned above. That is why I consider that there has been a violation of Article 10. In expressing my opinion, I do not need to emphasise the importance I attach to the freedom of the press. In that connection it is striking how many actions are brought by judicial officers against journalists in Italy and how large are the sums awarded by the Italian courts in damages, as the Press Association complained in 1999 (see Ordine dei giornalisti, Tutela della reputazione e libertà di stampa, Contenuti e riflessioni sul Convegno di Roma Citazioni e miliardi, Rome, 1999).", "As freedom of the press is my only concern, I regret that I have had to express my opinion in a case which involves a judicial officer – the third-party intervener – whom every Italian citizen must admire for risking his life in the fight against the Mafia." ]

[ "THIRD SECTION CASE OF BELYAYEV v. RUSSIA (Application no. 43852/12) JUDGMENT STRASBOURG 15 January 2019 This judgment is final but it may be subject to editorial revision. In the case of Belyayev v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helen Keller, President,Pere Pastor Vilanova,María Elósegui, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 11 December 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 43852/12) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vladimir Ivanovich Belyayev (“the applicant”), on 16 June 2012.", "2. The applicant was represented by Mr P. Kozyukov, a lawyer practising in Yekaterinburg. The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3. On 30 August 2013 the Government were given notice of the application.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1968 and was detained in LPU-3, Chelyabinsk. A. Ill-treatment in respect of the applicant 1. Beatings by prison warders and criminal charges against the applicant 5.", "On 14 November 2003 the Saint Petersburg City Court found the applicant guilty of aggravated murder and possession of firearms, and sentenced him to twenty-one years’ imprisonment. On 1 November 2004 the conviction was upheld on appeal. 6. On 28 September 2007 the applicant arrived at medical detention facility no. LPU-3 in Chelyabinsk, where he stayed until 30 October 2007.", "7. On 2 October 2007 the applicant was ordered to leave his cell. He entered the corridor, turned to face the wall and took up a spread-eagle position leaning against the wall. Having refused to strip naked for a body search, he was immediately subjected to beatings. A warder hit him a number of times on the buttocks with a rubber truncheon.", "At the same time another warder started kicking and hitting the applicant on the back and head. Trying to protect himself from more serious harm, the applicant turned and faced his assailants. He raised his arm and inadvertently hit the warder’s face. The beatings intensified and the applicant was pushed to the floor. The warders continued kicking and punching him and hitting him with truncheons.", "The applicant lost consciousness. A warder dragged him back to the cell and the applicant was left there on the floor. 8. On the same date the applicant was examined by a prison doctor. The doctor found hematomas on his buttocks and documented them in the applicant’s medical records as follows: “Skin hyperaemia on both buttocks, traces of blunt injury, blue hematomas.", "Moderate pain on palpation.” 9. On 5 October 2007 criminal proceedings were instituted against the applicant on suspicion of assault on a warder and disruption of order in the detention facility. The prosecution’s case was that on 2 October 2007 the applicant had refused to be subjected to a body search and had waved his hands to prevent the search. Warder B. had warned the applicant about the intention to use force should he fail to comply with the order. In response, the applicant had punched another warder, Mr L., in the face, splitting his lip.", "10. On 2 September 2008 the Chelyabinsk Regional Court, by a jury verdict, acquitted the applicant. Having established that he had hit warder L. once and had split his lip, the jury nevertheless concluded that the applicant had caused the injury in an attempt to protect himself. The relevant part of the judgment read as follows: “The jury has established in a verdict that two injuries to Mr L.’s lower lip were caused by [the applicant] with a single punch to Mr L.’s face. [The applicant] had refused to strip naked and to submit his clothes to a check-up, and had asked for a copy of a decision by the head or deputy head of the facility authorising a full body search.", "[The applicant] who had stayed with his face to the wall, had been subsequently kicked and punched, and hit with rubber truncheons a number of times, at least ten, on various parts of his body, head [and] limbs. [The beating] had been accompanied by verbal assaults. In an attempt to prevent further beatings and to protect himself, [the applicant], while falling down, had turned and taken an aimless swing in the direction of the persons who had continued hitting him.” 11. On 18 November 2008 the Supreme Court of the Russian Federation upheld the judgment on appeal. 2.", "Investigation into the applicant’s allegations of ill-treatment 12. After the acquittal had become final, the applicant lodged a complaint with the prosecutor’s office of the Chelyabinsk Region, providing his version of the events of 2 October 2007 and complaining of ill‑treatment. 13. On 28 January 2009 the investigative department of the Metallurgicheskiy District of Chelyabinsk opened a criminal investigation into the events of 2 October 2007 on charges of abuse of power committed with violence. The investigators questioned the applicant along with fourteen witnesses and conducted three cross-examinations.", "14. On 28 September 2009 the investigation was suspended for failure to identify the alleged perpetrators. 15. On 18 November 2009 the investigation was reopened. 16.", "On 22 December 2009 the criminal proceedings against the prison warders were discontinued and the investigation was suspended for failure to identify the alleged perpetrators. The investigators had questioned the warders B. and L. mentioned in the acquittal judgment of 2 September 2008, who had testified that they had indeed administered up to six truncheon blows to the applicant’s buttocks because he had refused to go through a body search and had hit warder L. in the face. 17. On 8 November 2012 the criminal proceedings against the warders were reopened. 18.", "On 19 November 2012 the investigation was suspended again for failure to identify the alleged perpetrators. The investigator analysed the depositions of warders and other witnesses, and the findings of the medical examination of 2 October 2007, and concluded that the applicant had not obeyed the warders’ lawful orders and had been aggressive. Therefore, the use of rubber truncheons had been justified. Moreover, the medical records contained a vague summary description of the applicant’s injuries, which were not life-threatening. Lastly, the jurors’ verdict did not contain any assessment of the warders’ actions or any proof of the warders’ guilt.", "19. On 14 November 2013 the prosecutor’s office of the Chelyabinsk Region quashed the decision of 19 November 2012 and reopened the investigation. 20. On 28 February 2014 the criminal proceedings against the warders were terminated. The investigator found that the warders had not abused their powers and had acted in accordance with the law.", "3. Challenging the investigator’s decisions before the court (a) Challenging the decision of 28 September 2008 21. The applicant’s representative challenged the decision of 28 September 2009, arguing that the jury verdict of 2 September 2008 had already identified the assailants and that there had therefore been no reason to adjourn the proceedings. 22. On 10 February 2011 the Metallurgicheskiy District Court of Chelyabinsk dismissed the complaint, having found as follows: “As follows from the case-file materials, on 28 September 2009 a senior investigator of the investigative department, Mr V., refused to open a criminal case against officers of [medical colony no.", "3], Mr M., Mr B. and Mr L., who, as follows from that decision, had lawfully used force against [the applicant]. That decision remains in force. In those circumstances, the decision by which the criminal proceedings were adjourned is lawful and well-founded; there are no grounds to consider it unlawful.” 23. On 9 April 2012 the Chelyabinsk Regional Court quashed that decision on appeal and remitted the case for re-examination. 24.", "On 1 June 2012 the Metallurgicheskiy District Court of Chelyabinsk held to discontinue the proceedings as the decision of 28 September 2008 had been quashed on 18 November 2009. (b) Challenging of the investigator’s decision of 22 December 2009 and other decisions 25. On an unspecified date the applicant asked the court to declare unlawful the investigator’s decisions of 28 September 2008, 11 November 2008, 22 December 2009 and an opinion of 12 October 2009 justifying suspension of the investigation. He argued that those decisions contradicted each other and sought to conceal the warders’ crime. 26.", "On 9 November 2012 the Metallurgicheskiy District Court of Chelyabinsk discontinued the proceedings on the applicant’s claim. 27. On 21 March 2013 the Chelyabinsk Regional Court quashed that decision and remitted the case for fresh examination. 28. On 18 April 2013 the District Court allowed the applicant’s claim.", "It held that the decisions of 28 September 2008 and 22 December 2009 lacked sufficient reasoning, did not contain any references to the jurors’ verdict, and were based only on the testimony of warders. It ordered that the violations found be remedied. B. Compensation proceedings 29. The applicant brought a civil action against the prosecutor’s office of the Chelyabinsk Region, the Treasury and the Ministry of Finance, seeking compensation for non-pecuniary damage caused by the unlawful institution of criminal proceedings.", "He also sought apologies from the implicated officials. 30. On 10 August 2011 the applicant and his lawyer asked the court to consider the case in their absence. 31. On 11 August 2011 the Tsentralnyy District Court of Chelyabinsk awarded the applicant 15,000 Russian roubles (RUB) (353 euros (EUR)) in compensation for non-pecuniary damage and dismissed the remaining claims.", "The District Court held the hearing in the applicant’s absence. The applicant lodged an appeal against this decision. 32. On 6 February 2012 the Chelyabinsk Regional Court upheld the decision of 11 August 2011 and rejected the applicant’s appeal. The appellate court also noted that as an inmate, the applicant had been duly notified of the court hearing but had failed to attend it.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 33. For domestic law concerning the use of force and special measures in detention facilities, see Vladimir Romanov v. Russia (no. 41461/02, §§ 34-38, 24 July 2008). 34.", "For domestic law and practice relevant to the participation of detainees in civil proceedings, see Yevdokimov and Others v. Russia (nos. 27236/05 and 10 others, §§ 9-15, 16 February 2016). THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 35. The applicant, relying on Article 3 of the Convention, complained that he had been severely beaten by warders on 2 October 2007 and that the ensuing investigation 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.” 36. The Government submitted that the complaint was premature because the preliminary investigation had been reopened on 14 November 2013, the proceedings were still pending. In their additional observations they stated that the criminal investigation had been closed on 28 February 2014. It had established that on 2 October 2007 the warders had lawfully used force against the applicant. The investigation had been thorough and had involved cross-examinations, expert reports and witnesses’ testimonies.", "The Government also argued that the warders could not have been brought to trial on the sole basis of the jury verdict of 2 September 2008. 37. The applicant disagreed. He submitted that despite the fact that the judgment of 2 September 2008 contained a description of the beatings and the names of the possible perpetrators, the criminal investigation had failed to establish their identity and had eventually been closed. A. Admissibility 38.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "Alleged ill-treatment and establishment of the facts 39. As the Court has reiterated on many occasions, Article 3 of the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s behaviour (see Balogh v. Hungary, no. 47940/99, § 44, 20 July 2004, and Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). 40.", "In the context of detainees, the Court has emphasised that persons in custody are in a vulnerable position and that the authorities are under a duty to protect their physical well-being (see Tarariyeva v. Russia, no. 4353/03, § 73, ECHR 2006‑XV (extracts); Sarban v. Moldova, no. 3456/05, § 77, 4 October 2005; and Mouisel v. France, no. 67263/01, § 40, ECHR 2002‑IX). In respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see Sheydayev v. Russia, no.", "65859/01, § 59, 7 December 2006). 41. Turning to the circumstances of the present case, the Court first notes that the parties did not dispute the fact that on 2 October 2007 warders of the prison hospital had used physical force against the applicant and had hit him with rubber truncheons. The Government alleged that the force had been used lawfully in response to the applicant’s unruly conduct and had not exceeded what was reasonable and necessary in the circumstances of the case. 42.", "As shown by the medical reports referred to in the criminal case against the warders (see paragraph 8 above), the applicant’s hematomas had been caused by the use of force by warders on 2 October 2007. In particular, a prison doctor who examined the applicant immediately after the incident in question recorded hematomas on his buttocks. Moreover, the judgment of 2 September 2008 issued in criminal proceedings initiated against the applicant on account of his disobedience to warders, contains a description of the applicant’s beatings. In particular, it says that, as established by jurors in their verdict, after the applicant had hit one of the warders, he had been hit back “at least ten times” by means of punches, kicks and blows with truncheons. It has therefore been established “beyond reasonable doubt” that the applicant was hit several times with rubber truncheons by the warders.", "43. The Court observes that it is clear that the acts of violence against the applicant were committed by warders in the performance of their duties. The Court notes the Government’s argument that the force was used lawfully in response to the applicant’s unruly conduct and that the applicant did not deny that he had demonstrated a defiant attitude towards the warders. 44. The Court accepts that the use of force may be necessary on occasion in order to ensure prison security, to maintain order or prevent crime in penal facilities.", "Nevertheless, such force may be used only if indispensable and must not be excessive (see Ivan Vasilev v. Bulgaria, no. 48130/99, § 63, 12 April 2007, with further references). 45. In the instant case, the Court accepts – and this conclusion is supported by the findings of the domestic authorities – that the warders used truncheons to put an end to the applicant’s refusal to comply with their orders in accordance with the law. However, the manner in which the domestic law regulates the use of force against detainees does not absolve Russia from its responsibilities under the Convention.", "The Court must scrutinise the alleged breach of Article 3 with heightened vigilance, irrespective of the applicant’s conduct (see Vladimir Romanov v. Russia, no. 41461/02, § 64, 24 July 2008 with further references). 46. The Court notes that it was established in the domestic proceedings that the applicant had disobeyed warders’ orders and had hit one of them. In those circumstances, the warders may have needed to resort to physical force in order to protect themselves.", "However, the Court is not convinced that hitting a detainee with a truncheon was conducive to the desired result. 47. The Court does not discern any necessity which might have prompted the use of rubber truncheons against the applicant. On the contrary, the warders’ actions were disproportionate to the applicant’s imputed transgressions, and were manifestly inconsistent with the goals they sought to achieve. The Government did not provide any plausible explanation as to why several warders confronting only one prisoner could not have settled the conflict without recourse to truncheons.", "In the Court’s eyes, the use of truncheons in those circumstances amounted to a form of reprisal or corporal punishment. 48. The Court further considers that the number and location of the injuries the applicant sustained indicate that the beatings to which the warders had subjected him were sufficiently serious to be considered of a nature amounting to inhuman treatment prohibited by Article 3 of the Convention. 49. Regard being had to the above, the Court concludes that there has been a violation of Article 3 of the Convention under its substantive limb.", "2. Effectiveness of the investigation 50. The Court reiterates 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. This investigation should be capable of leading to the identification and punishment of those responsible (see Labita, cited above, § 131). The minimum standards as to effectiveness defined by the Court’s case-law also 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 Isayeva and Others v. Russia, nos.", "57947/00, 57948/00 and 57949/00, §§ 208-13, 24 February 2005, and Chitayev v. Russia, no. 59334/00, §§ 163-66, 18 January 2007). 51. The Court notes that the events of which the applicant complained had unfolded under the control of the authorities and with their full knowledge. On the day the applicant had been beaten up by the warders for refusing a body search, he was taken to a prison medical officer, who recorded some hematomas.", "The applicant brought the incident to the prison administration’s attention. Against that background, the Court concludes that the above considerations raised a reasonable suspicion that his injuries could have been caused by representatives of the State and that the matter was duly brought before the competent authorities. The latter were therefore under an obligation to conduct an effective investigation satisfying the requirements of Article 3 of the Convention. 52. The Court also notes that on 28 January 2009, criminal proceedings were initiated against the warders on suspicion of abuse of power.", "Thereafter, the proceedings were suspended several times, and the investigators’ decisions were reversed by their superiors or the courts on the grounds of various deficiencies. In these circumstances, the Court cannot conclude that the investigation was prompt and thorough. 53. The Court finds that the authorities have failed to carry out an effective investigation into the applicant’s allegations of ill-treatment, as required by Article 3 of the Convention. Accordingly, there has been a violation of Article 3 of the Convention under its procedural limb.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 54. The applicant complained that his right to a fair hearing under Article 6 § 1 of the Convention had been breached on account of the domestic courts’ refusal to ensure his effective participation in compensation proceedings to which he was a party. The relevant part of Article 6 § 1 reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public ... hearing ... by [a] ... tribunal ...” 55. The Government submitted that the applicant had been duly notified of the hearing dates and that the nature of the legal dispute did not call for his personal attendance.", "Moreover, the applicant had asked the first-instance court to consider the case in his and his lawyer’s absence. The applicant and his lawyer had been duly informed of the appeal hearing and could therefore have attended the hearing. As there was no absolute right to be present at a civil court hearing, the applicant’s right to effective participation in the proceedings to which he had been a party had not been breached. 56. The applicant maintained his complaint.", "A. Admissibility 57. The Court reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance (see Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006-XII). 58.", "The Court notes that on 10 August 2011 the applicant and his lawyer asked the Tsentralnyy District Court of Chelyabinsk to consider the case in their absence. Therefore, the applicant waived in an unequivocal manner his right to be present at the first-instance court hearing on 11 August 2011 (see Gladkiy v. Russia, no. 3242/03, §§ 105-09, 21 December 2010, and Belan v. Russia (dec.), no. 56786/00, 2 September 2004). 59.", "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. 60. The Court further considers that the applicant’s complaint about his absence from the appeal hearing on 6 February 2012 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 61. The Court observes that the general principles regarding the right to present one’s case effectively before a court and to enjoy equality of arms with the opposing side, as guaranteed by Article 6 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Steel and Morris v. the United Kingdom, no. 68416/01, §§ 59‑60, ECHR 2005-II). The Court’s analysis of alleged violations of the right to a fair trial in respect of cases where incarcerated applicants have complained about their absence from hearings in civil proceedings includes the following elements: examination of the manner in which the domestic courts assessed the question of whether the nature of the dispute required the applicants’ personal presence, and determination of whether the domestic courts put in place any procedural arrangements aimed at guaranteeing their effective participation in the proceedings (see Yevdokimov and Others v. Russia, nos. 27236/05 and 10 others, § 48, 16 February 2016).", "62. The Court notes that the civil proceedings in question concerned the applicant’s claim in respect of non-pecuniary damage, which involved his personal experience. Therefore, his presence at the hearing was necessary. 63. The Court, however, observes that neither the applicant, nor his lawyer attended the appeal hearing on 6 February 2012.", "The Government did not provide any confirmation that the applicant and his lawyer had been properly notified of the appeal hearing. The appellate court did not verify whether the nature of the case was such as to require the applicant’s personal testimony, did not provide an explanation as to why it considered that his absence would not be prejudicial to the fairness of the proceedings as a whole, and did not make any appropriate procedural arrangements enabling the applicant to be heard. 64. In the leading case of Yevdokimov and Others, cited above, the Court found a violation in respect of issues similar to those in the present case. 65.", "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 in the present case. The Court considers that, in the instant case, the authorities deprived the applicant of the opportunity to present his case effectively at the appellate court, and failed to meet their obligation to ensure respect for the principle of a fair trial. 66. There has therefore been a violation of Article 6 § 1 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 67. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 68. The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage. 69.", "The Government found that claim excessive. 70. The Court awards the applicant EUR 15,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable to him. B. Costs and expenses 71.", "The applicant did not claim any costs or expenses. Accordingly, there is no call to make an award under this head. C. Default interest 72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares complaints concerning the applicant’s alleged ill-treatment under Article 3 of the Convention and his absence from the appeal hearing on 6 February 2012 under Article 6 of the Convention admissible and his complaint concerning his absence from the hearing on 11 August 2011 under the same Article inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention under its substantive limb in that the applicant has been subjected to inhuman and degrading treatment; 3. Holds that there has been a violation of Article 3 of the Convention under its procedural limb on account of the lack of an effective investigation into the applicant’s claim of inhuman and degrading treatment; 4. Holds that there has been a violation of Article 6 of the Convention on account of the applicant’s failure to attend the appeal hearing on 6 February 2012; 5. 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; and (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 15 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıHelen KellerDeputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF PUZRINA AND OTHERS v. RUSSIA (Application no. 5855/09 and 9 others - see appended list) JUDGMENT STRASBOURG 8 February 2018 This judgment is final but it may be subject to editorial revision. In the case of Puzrina 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 18 January 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of detention during their transport.", "Some applicants also raised other complaints under the provisions of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. THE LOCUS STANDI ISSUE FOR APPLICATION NO.", "46330/10 6. The applicant, Mr Suzdalev, (application no. 46330/10) died while the case was pending before the Court. The applicant’s sister, Ms E. Suzdaleva, expressed her intention to pursue the application. The Government did not object to that request.", "7. The Court considers that the applicant’s sister has a legitimate interest in obtaining a finding of a breach of her brother’s right related to the inadequate conditions of detention during transport (see Streltsov and other “Novocherkassk military pensioners” cases v. Russia, nos. 8549/06 and 86 others, §§ 36-42, 29 July 2010; Sobelin and Others v. Russia, nos. 30672/03 and 11 others, §§ 43-45, 3 May 2007; Shiryayeva v. Russia, no. 21417/04, §§ 8-9, 13 July 2006; Ressegatti v. Switzerland, no.", "17671/02, §§ 23-25, 13 July 2006; and Marie-Louise Loyen and Bruneel v. France, no. 55929/00, §§ 29-30, 5 July 2005). 8. Accordingly, the Court holds that Ms Suzdaleva has standing to continue the proceedings in respect of application no. 46330/10 on behalf of her late brother.", "III. THE GOVERNMENT’S REQUEST TO STRIKE OUT SOME APPLICATIONS UNDER ARTICLE 37 § 1 OF THE CONVENTION 9. The Government submitted a unilateral declaration in some applications which did not offer a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (Article 37 § 1 in fine). The Court rejects the Government’s request to strike the applications out and will accordingly pursue its examination of the cases (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR 2003‑VI).", "IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 10. The applicants complained principally of the inadequate conditions of detention during their transport. 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.” 11. The Court notes that the applicants were detained in poor conditions during transport.", "The details of the applicants’ detention are indicated in the appended table. The Court refers to the principles established in its case‑law regarding cramped and defective conditions in the detention and transit of prisoners (see, for instance, Khudoyorov v. Russia, no. 6847/02, §§ 118‑120, ECHR 2005 X (extracts), and Starokadomskiy v. Russia, no. 42239/02, §§ 53‑60, 31 July 2008). It reiterates in particular that extreme lack of space in a prison cell or overcrowding weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Muršić v. Croatia [GC], no.", "7334/13, §§ 122‑141, ECHR 2016, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 149‑159, 10 January 2012). 12. In the leading case of Idalov v. Russia [GC], no. 5826/03, §§ 103‑108, 22 May 2012, the Court already found a violation in respect of issues similar to those in the present case.", "13. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention during their transport were inadequate. 14. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention.", "V. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 15. Some applicants submitted other complaints which also raised issues under the Convention, in accordance with the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Idalov v. Russia [GC], no.", "5826/03, §§ 142-149 and §§ 152‑158, 22 May 2012, regarding the reasons for the lengthy detention on remand and lack of speedy review of detention; and M.S. v. Russia, no. 8589/08, §§ 80-86, 10 July 2014, pertaining to absence of domestic remedies for a complaint about the poor conditions of transport. VI. REMAINING COMPLAINTS 16.", "In applications nos. 46330/10 and 42878/16, the applicants also raised other complaints under various Articles of the Convention. 17. The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.", "VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 18. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 19. Regard being had to the documents in its possession and to its case‑law (see, in particular, Pukhachev and Zaretskiy v. Russia, nos. 17494/16 and 29203/16, 7 November 2017), the Court considers it reasonable to award the sums indicated in the appended table.", "20. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Decides that Ms Suzdaleva, the sister of the applicant in application no.", "46330/10, has locus standi in the proceedings; 3. Rejects the Government’s request to strike some applications out of its list of cases under Article 37 of the Convention on the basis of the unilateral declarations which they submitted; 4. Declares the complaints concerning the inadequate conditions of detention during transport and the other complaints under well‑established case-law of the Court, as set out in the appended table, admissible and the remainder of the applications nos. 46330/10 and 42878/16 inadmissible; 5. Holds that these complaints disclose a breach of Article 3 of the Convention concerning the inadequate conditions of detention during transport; 6.", "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); 7. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 8 February 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtLuis López Guerra Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 3 of the Convention (inadequate conditions of detention during transport) No. Application no.", "Date of introduction Applicant name Date of birth Representative name and location Means of transport Start and end date Sq. m per inmate 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] 5855/09 18/11/2008 Svetlana Aleksandrovna Puzrina 06/08/1961 transit cell 23/10/2009 to 02/07/2010 van 23/10/2009 to 02/07/2010 0.5 m² 0.2 m² damp underground cell, no natural light or fresh air, dim electric light, no ventilation, walls covered with cement coat dirty van, lack of fresh air, no ventilation Art. 5 (3) - excessive length of pre-trial detention - the period of pre-trial detention from 22/05/2008 till conviction on 15/11/2010; fragile reasoning for non-violent crime; lack of diligence on the part of authorities 3,400 46330/10 23/07/2010 Aleksey Yuryevich Suzdalev 14/05/1978 transit cell, van 11/07/2010 to 19/05/2011 0.2 m² overcrowding, lack of sitting places, no ventilation and fresh air, dirty and hot in summer and cold in winter, due to the medical condition the applicant needed to use toilet often, but was not given this possibility by the guards, inmates infected with tuberculosis, no hot meals Art. 5 (3) - excessive length of pre-trial detention - detention on remand from 11/07/2010 to 01/03/2011, Art. 5 (4) - excessive length of judicial review of detention - detention order of 30/12/2010, the appeal examined only on 10/02/2011 1,300 70881/13 25/09/2013 Sergey Vladimirovich Kramarenko 29/10/1977 Train 07/04/2013 to 11/04/2013 transit cell 11/04/2013 to 11/04/2013 train 14/04/2013 to 16/04/2013 train 18/04/2013 to 20/04/2013 transit cell 23/04/2013 to 24/04/2013 0.3 m² 1.5 m² 1 m² 0.3 m² 0.4 m² overcrowding, no or restricted access to toilet, no or restricted access to potable water, no or restricted access to running water, no or restricted access to shower, lack of fresh air, passive smoking overcrowding, no or restricted access to running water, lack of or inadequate hygienic facilities, no or restricted access to potable water, lack or insufficient quantity of food overcrowding, no or restricted access to potable water, no or restricted access to running water, lack of or inadequate hygienic facilities, lack of fresh air, passive smoking overcrowding, no or restricted access to toilet, no or restricted access to potable water, lack of or inadequate hygienic facilities, lack of fresh air, passive smoking overcrowding, no sleeping places, no or restricted access to running water, no or restricted access to potable water, lack of or inadequate hygienic facilities 1,000 6216/14 03/01/2014 Andrey Alekseyevich Zaytsev 24/08/1964 train 28/11/2013 to 28/11/2013 0.3 m² no ventilation, constant cigarette smoke Art.", "13 - lack of any effective remedy in domestic law - 1,000 53395/15 03/11/2015 Sergey Yevgenyevich Mokhnatkin 06/03/1954 Mezak Ernest Aleksandrovich Syktyvkar van, train 23/04/2015 to 04/05/2015 0.3 m² overcrowding, no or restricted access to toilet, no or restricted access to running water, no or restricted access to warm water, lack or inadequate furniture, lack of or insufficient natural light, lack of or insufficient electric light, impossibility to stand up, insufficient number of sleeping places, lack of or poor quality of bedding and bed linen Art. 13 - lack of any effective remedy in domestic law 1,000 33531/16 26/05/2016 Mikhail Nikolayevich Baurov 15/06/1978 train, van, transit cell 15/11/2015 to 10/12/2015 0.3-0.6 m² overcrowding, lack of or insufficient natural light, lack of or insufficient electric light, passive smoking, lack of or poor quality of bedding and bed linen, insufficient number of sleeping places 1,000 34065/16 25/05/2016 Gennadiy Sergeyevich Afanasyev 08/11/1990 Mezak Ernest Aleksandrovich Syktyvkar van, train 01/12/2015 to 02/12/2015 train, van 05/12/2015 to 05/12/2015 0.4 m² 0.3 m² overcrowding overcrowding Art. 13 - lack of any effective remedy in domestic law - 1,000 42878/16 08/07/2016 Andrey Aleksandrovich Aksenov 11/07/1990 van 11/01/2016 to 15/01/2016 0.3 m² overcrowding, lack of or insufficient natural light, lack of fresh air, inadequate temperature Art. 13 - lack of any effective remedy in domestic law 1,000 50716/16 12/10/2016 Sergey Viktorovich Matskevich 09/06/1986 train 07/06/2016 to 09/06/2016 train 15/06/2016 to 17/06/2016 train 23/06/2016 to 24/06/2016 0.5 m² 0.5 m² 0.5 m² overcrowding, lack of or insufficient natural light, lack of or insufficient electric light, lack of fresh air, passive smoking, inadequate temperature, insufficient number of sleeping places, bunk beds, no or restricted access to toilet, lack of privacy for toilet, lack of requisite medical assistance overcrowding, lack of or insufficient natural light, lack of or insufficient electric light, lack of fresh air, passive smoking, inadequate temperature, insufficient number of sleeping places, bunk beds, no or restricted access to toilet, lack of privacy for toilet, lack of requisite medical assistance overcrowding, lack of or insufficient natural light, lack of or insufficient electric light, lack of fresh air, passive smoking, inadequate temperature, insufficient number of sleeping places, bunk beds, no or restricted access to toilet, lack of privacy for toilet Art. 13 - lack of any effective remedy in domestic law - 1,000 64175/16 24/10/2016 Gennadiy Olegovich Zayev 15/03/1990 Malinin Andrey Anatolyevich Pechora van 25/07/2016 to 25/07/2016 van 04/09/2016 to 04/09/2016 train 04/09/2016 to 04/09/2016 0.3 m² 0.4 m² 0.3 m² overcrowding, lack of or insufficient natural light, lack of fresh air overcrowding overcrowding 1,000 [1] Plus any tax that may be chargeable to the applicants." ]

[ "GRAND CHAMBER CASE OF O’KEEFFE v. IRELAND (Application no. 35810/09) JUDGMENT STRASBOURG 28 January 2014 In the case of O’Keeffe v. Ireland, The European Court of Human Rights, sitting as a Grand Chamber composed of: Dean Spielmann, President, Josep Casadevall, Guido Raimondi, Ineta Ziemele, Mark Villiger, Isabelle Berro-Lefèvre, Boštjan M. Zupančič, Alvina Gyulumyan, Nona Tsotsoria, Zdravka Kalaydjieva, Nebojša Vučinić, Vincent A. de Gaetano, Angelika Nußberger, André Potocki, Krzysztof Wojtyczek Valeriu Griţco, judges, Peter Charleton, ad hoc judge, and Michael O’Boyle, Deputy Registrar, Having deliberated in private on 6 March and on 20 November 2013, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 35810/09) against Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Irish national, Ms Louise O’Keeffe (“the applicant”), on 16 June 2009. 2.", "The applicant was represented by Mr E. Cantillon, a lawyer practising in Cork. The Irish Government (“the Government”) were represented by their Agent, Mr P. White, of the Department of Foreign Affairs. 3. The applicant mainly complained under Article 3 of the Convention that the system of primary education had failed to protect her from sexual abuse by a teacher in 1973 and, under Article 13, that she did not have an effective domestic remedy in that respect. She also relied on Article 8 and Article 2 of Protocol No.", "1, both alone and in conjunction with Article 14. She also complained of the length of her civil proceedings and of the absence of an effective domestic remedy in that respect, relying on Article 6 alone and in conjunction with Article 13. 4. The application was allocated to the Fifth Section of the Court (Rule 52 § 1 of the Rules of Court). Ann Power-Forde, the judge elected in respect of Ireland, withdrew from sitting in the case (Rule 28).", "On 13 June 2012 the President of the Chamber decided to appoint Mr Justice Charleton to sit as an ad hoc judge (Article 26 § 4 of the Convention, and Rule 29 § 1). 5. On 26 June 2012 a Chamber of that Section (composed of Dean Spielmann, President, Mark Villiger, Karel Jungwiert, Boštjan M. Zupančič, Ganna Yudkivska, André Potocki, judges, Peter Charleton, ad hoc judge, and Claudia Westerdiek, Section Registrar) examined the case. The Chamber, unanimously, struck out the complaints regarding the length of the domestic proceedings and the lack of an effective domestic remedy in that regard, given the friendly settlement reached between the parties on those issues. It also, unanimously, declared admissible the remaining complaints.", "6. On 20 September 2012 that Chamber (Angelika Nußberger, substitute judge, replaced Ganna Yudkivska who was unable to take part in the further consideration of the case (Rule 24 § 3)) relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72). 7. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24, with Mr Justice Charleton continuing to act as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1). 8.", "The applicant and the Government each filed further observations (Rule 59 § 1) on the merits. In addition, the Irish Human Rights Commission and the European Centre for Law and Justice had been given leave by the President of the Chamber (Article 36 § 2 of the Convention and Rule 44 § 3) to intervene in the written procedure and their submissions to the Chamber were admitted to the Grand Chamber file. 9. A hearing took place in public in the Human Rights Building, Strasbourg, on 6 March 2013 (Rule 59 § 3). 10.", "There appeared before the Court: (a) for the GovernmentMrP. White, Agent,Mr F. McDonagh, Senior Counsel,MrC. Power, Barrister,Counsel,MsS. Farrell, Office of the Attorney General, MsM. McGarry, Department of Education and Skills,Advisers; (b) for the applicantMrD.", "Holland, Senior Counsel,MrA. Keating, Senior Counsel,Counsel,MrE. Cantillon, Solicitor,MrsM. Scriven, Solicitor,Representatives. The applicant also attended.", "11. The Court heard addresses by Mr Holland and Mr McDonagh. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 12. The applicant was born in 1964 and lives in Cork, Ireland.", "A. Background 13. The following facts were not contested by the parties. 14. The applicant attended Dunderrow National School from 1968.", "The school was owned, through trustees, by the Catholic Bishop of the Diocese of Cork and Ross who was recognised by the Department of Education and Science (“the Department”) as the school’s patron. The manager (S.), acting on behalf of the bishop, was the local parish priest. The latter being elderly and infirm, a local priest (Ó.) was the de facto manager who acted on behalf of, and in the interests of, S. The term “manager” used below refers both to Ó. and to the management function he performed. Dunderrow National School had two teachers, one of whom (L.H.)", "was the school’s principal, a married man. Dunderrow was one of four national schools in the applicant’s parish. 15. In 1971 a parent of a child complained to the manager that L.H. had sexually abused her child.", "That complaint was not reported to the police, to the Department or to any other State authority and was not acted upon by the manager. 16. During the first six months of 1973 the applicant was subjected to approximately twenty sexual assaults by L.H. during music lessons in his classroom. During the time she attended those lessons, the applicant and her parents were unaware of the allegation made in 1971 about L.H.", "17. In September 1973 other parents brought to the applicant’s parents’ attention similar allegations concerning L.H. Following a meeting of parents chaired by the manager about this, L.H. went on sick leave. In September 1973 he resigned from his post.", "Those allegations were not reported at that time to the police, to the Department or to any other State authority. In a brief conversation, the applicant’s mother asked her whether L.H. had touched her. The applicant responded to the effect that something of a sexual nature had happened but she did not recall the conversation going any further. In January 1974 the manager notified the Department that L.H.", "had resigned and named his replacement. Soon thereafter L.H. took up a position in another national school where he taught until his retirement in 1995. 18. Between 1969 and 1973, the inspector assigned to the region visited Dunderrow National School on six occasions which was, as he later stated in evidence, an above average number of visits.", "He met with L.H. and S. He attended parent meetings on the question of Dunderrow’s amalgamation with other schools. No complaint about L.H. was made to him. He observed the teaching work of L.H.", "and considered it satisfactory. 19. The applicant suppressed the sexual abuse. While she had significant psychological difficulties, she did not associate those with the abuse. In 1996 she was contacted by the police who were investigating a complaint made in 1995 by a former pupil of Dunderrow National School against L.H.", "The applicant made a statement to the police in January 1997 and was referred for counselling. During the investigation a number of other pupils made statements. L.H. was charged with 386 criminal offences of sexual abuse involving some twenty-one former pupils of the school during a period of about ten years. In 1998 he pleaded guilty to twenty-one sample charges and was sentenced to imprisonment.", "His licence to teach was withdrawn by the Minister for Education (“the Minister”) under Rule 108 of the National School Rules 1965 (“the 1965 Rules”). 20. In or around June 1998, and as a consequence of the evidence of other victims during the criminal trial and subsequent medical treatment, the applicant realised the connection between her psychological problems and the abuse by L.H. and understood the extent of those problems. B.", "Criminal Injuries Compensation Tribunal (“the CICT”) 21. In October 1998 the applicant applied to the CICT for compensation. An initial award (44,814.14 euros (EUR)) was made by a single judge. The applicant appealed to a CICT panel. She claimed that the CICT gave her the option of continuing her appeal (at the risk of finding that her CICT application would be rejected as out of time) or of accepting the initial offer of the CICT with some additional expenses (EUR 53,962.24, the non-pecuniary aspect being EUR 27,000).", "The applicant accepted the offer by letter of 5 November 2002 and gave the standard undertaking to repay the CICT award from any other award she may receive, from whatever source, in relation to the same injury. The award was made on an ex gratia basis. Since the State is never a party to CICT proceedings, it became aware of this award later before the High Court (see directly below). C. Civil action for damages (No. 1998/10555P) 1.", "High Court 22. On 29 September 1998 the applicant instituted a civil action against L.H. and the Minister, as well as against Ireland and the Attorney General, claiming damages for personal injuries suffered as a result of assault and battery including sexual abuse by L.H. Her claim against the latter three defendants (“the State Defendants”) was threefold: (a) negligence by the State arising out of the failure of the State Defendants in relation to the recognition, examination and supervision of the school and in failing to put in place appropriate measures and procedures to protect against, and put a stop to, the systematic abuse by L.H. since 1962; (b) vicarious liability of the State Defendants for the acts of L.H.", "since, inter alia, the true relationship between him and the State was one of employment; and (c) liability given the applicant’s constitutional right to bodily integrity, the responsibility of the State Defendants to provide primary education under Article 42 of the Constitution and the measures put in place to discharge that responsibility. 23. Since L.H. did not file a defence, on 8 November 1999 the applicant obtained judgment in default against him. On 24 October 2006 the High Court assessed and awarded damages payable by L.H.", "in the sum of EUR 305,104, comprising EUR 200,000 in general damages, EUR 50,000 in aggravated damages, EUR 50,000 in exemplary damages, and EUR 5,104 in special damages. The applicant took enforcement proceedings. L.H. claimed he had insufficient means and she obtained an instalment order of EUR 400 per month. The first payment was received in November 2007 so that she has been paid in the region of EUR 31,000 to date.", "She registered a judgment mortgage against that part of the family home owned by L.H. 24. As regards her case against the State Defendants, she requested a Professor Ferguson to advise her on the question of the adequacy of child-protection mechanisms in Ireland in the 1970s. He responded by letter of 14 April 2003. Professor Ferguson agreed that, if the child-protection protocols existing in 2003 had been in place in 1973, it was very likely that the applicant’s abuse would have been acted upon in a manner which would have ensured the promotion of her welfare.", "He feared that pleading the case on the basis of what the State should have known at the time would be unsuccessful because it would not be possible to project onto the past the knowledge and systems of accountability that existed in the present day. 25. The High Court hearing against the State Defendants began on 2 March 2004. On 5 March 2004, while the applicant was presenting her evidence, the High Court judge, in response to the applicant’s complaint regarding the absence of a State system for adverting to and addressing sexual abuse in national schools, asked Counsel for the applicant as follows: “What evidence do I have, or what should I have deduce[d] from the evidence that has been given that either the system in operation was a bad system, and I will come back to that, or that there was an alternative system that should have been applied, and what that alternative system might have been.” 26. When the applicant’s case concluded, the State Defendants applied for a direction to strike out the case on the basis that no prima facie case had been made out by the applicant as regards all three grounds, submitting, inter alia, that there was no evidence of negligence.", "On 9 March 2004 the High Court accepted the State Defendants’ application, the court being “satisfied that the plaintiff had not established a case in negligence against the [State Defendants]” (the “non-suit” order). The court did not and was not called upon to distinguish between the two bases of the negligence claim. However, a prima facie case had been made out on the questions of vicarious and constitutional liability and evidence would be called from the defendants on those matters. The trial finished on 12 March 2004. 27.", "On 20 January 2006 the High Court delivered judgment. It found that the action was not statute barred. It also concluded that the State was not vicariously liable for the sexual assaults perpetrated by L.H. given the relationship between the State and the denominational management of national schools. Although counsel for the applicant had orally suggested that the State should be vicariously liable for the inaction of the manager, the High Court judgment did not address this point.", "Finally, the High Court found that no action lay for a breach of a constitutional right where existing laws (in this case, tort) protected that right. The costs of the proceedings against the State Defendants were awarded against the applicant. 2. Supreme Court (O’Keeffe v. Hickey, [2008] IESC 72) 28. In May 2006 the applicant appealed to the Supreme Court.", "Her Notice of Appeal challenged the finding on vicarious liability and referred to two matters: the absence of reasons for the interim ruling of 9 March 2004 and the High Court judgment’s failure to rule on the vicarious liability for the inaction of the manager. Mr Justice Hardiman described the appeal as limited to the State’s vicarious liability for the acts of L.H. and the manager, although he commented in his judgment on the other two initial claims of the applicant (direct negligence and the constitutional claim). Mr Justice Fennelly also considered that the appeal concerned only vicarious liability for the acts of L.H., although he refused to accept that the State was vicariously liable for the manager. 29.", "The appeal was heard from 11 to 13 June 2006. By a majority judgment of 19 December 2008 (Hardiman J and Fennelly J, with whom Chief Justice Murray and Mr Justice Denham concurred and Mr Justice Geoghegan dissented), the Supreme Court dismissed the appeal. 30. Hardiman J described in detail the legal status of national schools. While the arrangements for national-school education might “seem rather odd today”, they had to be understood in the context of Irish history in the early nineteenth century.", "Following denominational conflict and the later concession of Catholic emancipation in 1829, the dissenting churches and the Catholic Church wished to ensure that children of their denominations be educated in schools controlled by the denomination and not by the State or the established (Anglican) Church. Those churches were “remarkably successful” in achieving this aim: from the very beginning of the Irish system of national education (encapsulated in the “Stanley letter” of 1831), State authorities paid for the system of national education “but did not manage it or administer it at the point of delivery”. The latter function was left to the local denominational manager. While State funding was accorded on a proportionate basis to all denominational schools, the population was at the time overwhelmingly Catholic so that the majority of national schools had Catholic patrons and managers. 31.", "Hardiman J went on to describe as “remarkable” the fact that, whilst in nineteenth-century Europe firmer distinctions were being drawn between Church and State and Church influence in the provision of public services (including education) was ebbing, in Ireland the position of the Church became stronger and more entrenched. He adopted the evidence of one expert witness (in the history of education in Ireland) who described the position after the inception of the Irish Free State in 1922 and noted that the Catholic managers in this “managerial” system “were very clearly articulate and very absolutely ... precise in how they interpreted what the situation was for national schools in the new Ireland ... It had to be Catholic schools under Catholic management, Catholic teachers, Catholic children”. 32. That expert witness went on to describe the answer of the Catholic Church in the 1950s to a request by a teachers’ trade union to have local committees deal with maintaining and repairing school buildings.", "The Catholic Church had responded that there could be no interference whatever with the “inherited tradition of managerial rights of schooling”. The limited proposal of the union was considered to be the thin edge of the wedge because, in due course, the request might be to interfere with “other aspects of the manager’s authority vis-à-vis the appointment and dismissal of teachers which was of course the key concern that had been fought for and won over the years”. Hardiman J referred to the “urgent desire” of the denominations to maintain their role in primary education. 33. As Hardiman J explained, the Constitution reflected this managerial structure: the obligation in Article 42 § 4) on the State to “provide for” free primary education reflected a largely State-funded, but entirely clerically administered, system of education.", "As a result there were approximately 3,000 national schools in Ireland: most were under the control of Catholic patrons and managers, a few were under the control of other denominations and even fewer were controlled by non-denominational groups. 34. Hardiman J noted that, in recent times and after more than a century and a half, the provision of education was belatedly and at least partially placed on a statutory basis by the Education Act 1998; prior to that Act the system had been administered by the 1965 Rules as well as by other ministerial letters, circulars and notes. 35. As to what could be gleaned from the 1965 Rules, Hardiman J noted: “The Minister laid down rules for national schools but they were general in nature and did not allow him to govern the detailed activities of any individual teacher.", "He inspected the schools for their academic performance, other than religious instruction, but it did not go further than that. He was ... deprived of the direct control of the schools, and of the enormous power which that brings, because ‘there was interposed between the State and the child the manager or the committee or board of management’. Equally, the Minister did not appoint the manager or the teacher or directly supervise him. This, indeed, was the essence of the ‘managerial system’. I cannot see, on the evidence, that he had any scope whatever to make a personal judgment about either of these two individuals.", "Moreover, it seems to have been instinctively recognised by the parents who complained about the first defendant that the person with direct authority to receive the complaint and do something about it was the clerical and clerically appointed manager. No complaint, on the evidence, was directed to the Minister or to any State body. The matter was handled, so to speak, ‘in house’ at the election of the complainants. The end result of the process was a voluntary resignation followed by the employment of [L.H.] in another school in the vicinity.", "All these factors tending to distance the Minister and the State authorities from the management of the school and the control of the first defendant are direct consequences of the long established system of education, described above and mandated in the Constitution whereby the Minister pays and, to a certain extent, regulates, but the schools and the teachers are controlled by their clerical managers and patrons. It is not the concern of the Court either to endorse or to criticise that system but merely to register its existence and the obvious fact that it deprives the Minister and the State of direct control of schools, teachers, and pupils.” 36. Hardiman J observed that the sexual abuse of a pupil was the negation of what L.H. was employed to do but he also found that in 1973 it “was an unusual act, little discussed, and certainly not regarded as an ordinary foreseeable risk of attending at a school”. He considered it “notable” that she did not sue the patron, the diocese of which he was bishop, his successors or his estate, the trustees of the property of the Diocese of Cork and Ross (owners of the school), the manager or his estate or successors.", "37. Hardiman J concluded that, having regard to the relevant test for vicarious liability and to the above-described arrangements for the control and management of national schools, the State Defendants were not liable to the applicant for the wrongs committed against her. In particular, even applying the wider form of vicarious liability invoked, the Minister’s absence of direct control over L.H., long since ceded to the manager and the patron, prevented a finding against the Minister. The relationship of L.H. and the State – a “triangular one with the Church” – was entirely sui generis and a product of Ireland’s unique historical experience.", "The manager was “the nominee of the patron, that is of a power other than the Minister and he did not inform the Minister of any difficulties with, or complaints about, [L.H.] or of his resignation and appointment to teach elsewhere until they were faits accomplis. He was the agent not of the Minister, but of the Catholic Church, the power in whose interest the Minister was displaced from the management of the school”. 38. Hardiman J commented on two of the applicant’s original claims which had “not been proceeded with”.", "39. As to the claim of negligence by the State, he remarked “... this is a claim which could more appropriately be made against the manager. It was he who had the power to put in place appropriate measures and procedures governing the running of the school. The Minister can hardly be responsible for a failure to ‘cease’ a course of action of whose existence he was quite unaware”. 40.", "As to the claim about the responsibility of the State in the provision of primary education under Article 42 of the Constitution and the measures put in place to discharge that responsibility, Hardiman J stated: “I have already analysed the terms of Article 42 from which it will be seen that the Minister, in the case of this national school, was simply providing assistance and subvention to private and corporate (i.e. Roman Catholic) endeavour, leaving the running of the school to the private or corporate entities. The Minister is thereby, as Kenny J pointed out in Crowley v. Ireland [1980] I.R. 102, deprived of the control of education by the interposing of the patron and the manager between him and the children. These persons, and particularly the latter, are in much closer and more frequent contact with the school than the Minister or the Department.", "I do not read the provisions of Article 42.4 as requiring more than that the Minister shall ‘endeavour to supplement and give reasonable aid to private and corporate educational initiative’, to ‘provide for free primary education’. ... In my view the Constitution specifically envisages, not indeed a delegation but a ceding of the actual running of schools to the interests represented by the patron and the manager.” 41. Hardiman J concluded by pointing out that nothing in the judgment could be interpreted as suggesting liability on the part of the Church and, in any event, it was quite impossible to do so because those authorities had not been heard by the Supreme Court since the applicant had not sued them. 42.", "Fennelly J, who delivered the other majority judgment, began by noting that the “calamity of the exploitation of authority over children so as to abuse them sexually” had shaken society to its foundations. Cases of sexual abuse had preoccupied the criminal courts and the Supreme Court for many years and it was surprising that that court was confronted for the first time with questions relating to the liability of institutions including the State for sexual abuse of schoolchildren in a national school by a teacher. 43. Fennelly J also described in some detail the history and consequent legal status of national schools, which system had survived independence in 1922 and the enactment of the Constitution in 1937. He accepted the expert’s evidence that it was not a State system but rather a “State-supported system”.", "He noted the clear division of power between the State (funding and fixing the curriculum) and the manager (day-to-day running of the school including hiring and firing teachers), noting that the different religions were determined to preserve and guard their own distinct religious education so that national schools developed on a denominational basis. 44. He considered inspectors to be a crucially important part of the system of State oversight and maintenance of standards which enabled the Minister to be satisfied about the quality of the system. However, he noted that the inspection regime did not alter the division of responsibilities between the State and the manager, the inspectors having no power to direct teachers in the carrying out of their duties. The 1965 Rules reflected this allocation of responsibilities between the Church and State authorities.", "Even if, in modern times, the State played a more intrusive role, responsibility for day-to-day management remained with the manager. He concluded that the State was not vicariously liable for the acts of L.H. or, for the same reasons, for the failure of the manager to report the 1971 complaint to the State. L.H. was not employed by the State but, in law, by the manager.", "While L.H. had to have the qualifications laid down by the Minister and had to observe the 1965 Rules and while the State had disciplinary powers in those respects, L.H. was not engaged by the State and the State could not dismiss him. 45. Referring back to the reference in the Notice of Appeal to the State’s liability for the failure of the manager to report the 1971 complaint, Fennelly J concluded that “[f]or the same reason, insofar as it is necessary to say so, there can be no liability for the failure of [the manager] to report the 1971 complaint.", "[The manager] was not the employee of the second defendant.” 46. Geoghegan J dissented. He accepted that neither the Department nor its inspectors had any knowledge of the assaults. He noted that, for all practical purposes, most primary education in Ireland took the form of a joint enterprise between Church and State and he considered that that relationship was such that there was a sufficient connection between the State and the creation of the risk as to render the State liable. Geoghegan J relied, notably, on the role of school inspectors.", "He examined in some detail the evidence given by, and concerning the role of, school inspectors noting, inter alia, that if an allegation of sexual assault by a teacher on a national-school pupil was considered well-founded by an inquiry set up by the Department, it could lead to the withdrawal of recognition or to a police investigation and, if the police found the complaint justified, to the withdrawal of the teacher’s licence to teach. 47. By a judgment of 9 May 2009 the Supreme Court vacated the High Court order for costs against the applicant since it was not disputed that hers was an important and complex test case. It determined that each party had to bear its own costs related to the action against the State Defendants. 48.", "The applicant was legally represented throughout the civil proceedings, although she did not have legal aid. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Primary education in Ireland 1. Background 49.", "The Court refers to the description of the history and structure of the national-schools system of primary education provided by the Supreme Court in O’Keeffe v. Hickey, ([2008] IESC 72) and, notably, by Hardiman J and Fennelly J (see paragraphs 30-35 and 42‑44 above). 50. Section 4 of the School Attendance Act 1926 required parents to ensure their children attended a national school or another suitable school, unless there was a reasonable excuse for not so doing, for example if the child was receiving suitable primary education elsewhere, if there was no national school accessible to which the parent did not object on religious grounds, or if the child was prevented from attending by some other sufficient cause. Attendance in full-time education was therefore compulsory for all children between 6 and 14 years of age until 1969 when the official school-leaving age was increased to 16. Primary education has been universally free in Ireland since the nineteenth century.", "51. The vast majority of children attending primary school attended “national schools” which are State-financed and denominational primary-education establishments. Department reports for 1972/73 and 1973/74 recorded the existence of 3,776 and 3,688 national schools, respectively. The Department’s statistical report for February 1973 indicated that 94% of primary schools were national schools. According to the 1965 Investment in Education Report, 91% of national schools were Catholic-run and catered for 97.6% of national-school pupils while 9% were Protestant-run, catering for 2.4% of such pupils.", "A 2011 report by the Department notes that approximately 96% of primary schools remained under denominational patronage and management (including 89.65% under Catholic patronage and management). 52. In 1963/64 there were 192 fee-paying non-State-aided primary schools for approximately 21,000 children which represented about 4 to 4.5% of all primary-school pupils. The vast majority of these schools were in urban areas, the great majority of which were in Dublin. 53.", "The “Commission on School Accommodation’s Report on the Revised Criteria for the Establishment of New Primary Schools” in February 2011 confirmed that, until the 1970s, the only choice effectively available to parents was the local national school. It considered that by the end of the 1970s there was evidence of change with the establishment in 1978 of the first multi-denominational school and a growth in Irish language inter-denominational and multi-denominational schools. 2. The 1937 Constitution 54. Article 42 is entitled “Education” and reads as follows: “1.", "The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children. 2. Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State. 3. (1) The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.", "(2) The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social. 4. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation. 5. In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.” 55.", "In McEneaney v. the Minister for Education ([1941] IR 430), the Supreme Court observed that for “more than a century it has been recognised that the provision of primary education is a national obligation”. Article 42 § 4) conferred on children a right to receive free primary education and the words “provide for” meant that the State did not itself have to educate children but rather had to ensure that appropriate education was provided to them (Crowley v. Ireland [1980] IR 102). 3. Relevant legislation 56. The Children Act 1908 governed child protection and contemplated State intervention in the form of taking a child into care in cases of inter-familial abuse.", "The Education Act 1998 (“the 1988 Act”) was the first comprehensive legislation on education since the foundation of the State. It put on a statutory basis the State-funded and privately managed nature of primary education, making no fundamental structural changes thereto. 4. Rules for national schools (“the 1965 Rules”) and relevant ministerial circulars 57. Rules in place before independence in 1922 were applied to national schools until the 1965 Rules were adopted by the Department.", "While the 1965 Rules were neither primary nor secondary legislation, they have legal force and form part of the relevant statutory regime (Brown v. Board of management of Rathfarnham Parish national school and Others ([2006] IEHC 178). Otherwise, the Department regulated matters within its remit by notes, circulars and other official Department instruments. The Minister could withdraw recognition from a school or withdraw an individual teacher’s licence if the 1965 Rules were not complied with (Rules 30 and 108 of the 1965 Rules, respectively). 5. Managers and boards of management 58.", "Rule 15 of the 1965 Rules provided that the manager was charged with the direct government of the school, the appointment of the teachers and, subject to the Minister’s approval, their removal. A manager was to visit a school and ensure the 1965 Rules were complied with (Rule 16). Subject to the authority of the manager, the principal was responsible for discipline, the control of the other members of the teaching staff and all other matters connected with school arrangements (Rule 123(4)). 59. Rule 121 set out rules for teachers’ conduct: they had to, inter alia, act in a spirit of obedience to the law; pay the strictest attention to the morals and general conduct of their pupils; take all reasonable precautions to ensure the safety of their pupils; and carry out all lawful instructions issued by the manager.", "Rule 130 required teachers to have a lively regard for the improvement and general welfare of their pupils, to treat them with kindness, combined with firmness, and to govern them through their affections and reason and not by harshness and severity. 60. Most primary schools now have boards of management. A ministerial circular (16/76) set out arrangements until the 1998 Act put the boards on a statutory basis. Section 14 of that Act provides that it is the duty of the patron to appoint, where practicable and in accordance with the “principle of partnership”, a board the composition of which is agreed between the Minister and the education partners.", "As bodies corporate with perpetual succession, the boards could sue and be sued. 6. Inspectors 61. The 1965 Rules envisaged that the Minister and persons authorised by him (inspectors) could visit and examine the schools whenever they thought fit (Rule 11). Rule 161 defined inspectors as being agents of the Minister required to supply the Minister with such local information as he or she might require for the effective administration of the system.", "They were required to call the attention of managers and teachers to any rules which appeared to them to be being infringed. They were entitled to communicate with the manager with reference to the general condition of the school “or to matters requiring the manager’s attention, making such suggestions as they may deem necessary”. An inspector was required to pay frequent incidental visits to the schools in his district and to make obligatory annual visits to assess the work of teachers. Circular 16/59 provided guidance to inspectors as to their role vis-à-vis managers and teachers, as to the manner in which incidental and general inspections were to be carried out and as regards their assessment of the work of teachers. 7.", "Complaints 62. A Guidance Note of 6 May 1970 outlined the practice to be followed as regards complaints against teachers. The complainant was to be informed that the matter was one for the manager, in the first instance, and asked to clarify whether the complaint had been notified to the manager. The manager had to obtain observations from the relevant teacher and to forward those observations, together with the manager’s own views, to the Department. The Deputy Chief Inspector within the Department would then identify whether an investigation was required.", "If so, the inspector was to interview the manager, the teacher and parents. If an inquiry led to relevant findings against the teacher, Rule 108 authorised the Minister to take action against a teacher if the latter had conducted him or herself improperly or failed or refused to comply with the 1965 Rules. The Minister could pursue the teacher’s prosecution, withdraw recognition and/or withdraw or reduce the teacher’s salary. As noted above, the manager could dismiss a teacher, subject to the Minister’s approval. B.", "Criminal law and related matters 63. The sexual abuse of a minor was prohibited by sections 50 and 51 of the Offences Against the Person Act 1861 (as amended). The Criminal Law Amendment Act 1935 (“the 1935 Act”) was designed to make further provision for the protection of young girls and to amend the law concerning sexual offences. Sections 1 and 2 of the 1935 Act created the offences of defilement of girls under 15 years of age and of girls between 15 and 17 years of age. Section 14 of the 1935 Act also provides: “It shall not be a defence to a charge of indecent assault upon a person under the age of fifteen years to prove that such person consented to the act alleged to constitute such indecent assault.” Consequently, any girl under 15 years of age cannot consent to any form of sexual contact and any such contact was (and still is) a crime.", "In addition to these statutory offences, these acts amounted to ordinary assault. 64. There was no limitation period applicable to indictable offences in Ireland so that an offender could be prosecuted until the end of his or her life. 65. A victim can apply for compensation for injury suffered as a result of violent crime under the Scheme of Compensation for Personal Injuries Criminally Inflicted.", "The Scheme is administered by the CICT. The prescription period is three months, but it can be extended. The initial decision is taken without a hearing and a hearing is held in private before a division of the CICT. The appeal decision is final. Compensation is paid on an ex gratia basis.", "It covers expenses and losses (out-of-pocket expenses and bills less social welfare payments, salary or wages received while on sick leave) and, until 1986, non-pecuniary loss. C. Civil law and related matters 66. A tort is a civil wrong which causes someone to suffer loss resulting in legal liability for the person who commits the tortious act, the tortfeasor. The tort of negligence requires proof that there was a duty of care between the plaintiff and the defendant (which involves establishing the existence of a relationship of proximity between the parties such as would call for the exercise of care by one party towards the other), that that duty was breached and that that breach was causative of damage (for example, Beatty v. The Rent Tribunal [2005] IESC 66). 67.", "Vicarious liability is the attribution of liability to a person or entity who did not cause injury and who may not be at fault but who has a particular legal relationship to the person who did cause the injury, and who himself was at fault, including through negligence. Legal relationships that can lead to vicarious liability include the relationship of employer and employee. 68. It is also possible to rely on the Constitution to seek redress against an individual for a breach of one’s constitutional rights. In Meskell v. CIE [1973] IR 121), the court stated: “... if a person has suffered damage by virtue of a breach of a constitutional right or the infringement of a constitutional right that person is entitled to seek redress against the person or persons who have infringed that right.” Such a resort to constitutionally created torts only occurs if there is a gap in existing tort law which needs to be supplemented.", "D. Relevant public investigations and child-protection developments 1. The Carrigan Report 1931 69. The Carrigan Committee was appointed in 1930 to consider whether certain criminal statutes needed amendments and to make proposals to deal with “the problem of juvenile prostitution”. It held seventeen sittings, heard twenty-nine witnesses and considered other written submissions. 70.", "On 20 August 1931 the Committee submitted its final report to the Minister for Justice. The report recommended a combination of social and legislative reforms as regards, inter alia, sexual crimes against minors. 71. The Police Commissioner was an important witness before the Committee. Prior to appearing, he submitted statistical information he had gleaned from responses to a circular issued by him to over 800 police stations about the prosecution of sexual offences from 1924 to 1930 including for the offences of “defilement, carnal knowledge or rape” of girls under 10 years of age, between 10 and 13, between 13 and 16, between 16 and 18 and over 18 years of age.", "He submitted a detailed analysis of those statistics noting, inter alia, that there was an “alarming amount of sexual crime increasing yearly, a feature of which was the large number of cases of criminal interference with girls and children from 16 years downwards, including many cases of children under 10 years of age”. He was of the opinion that less than 15% of sexual crime was prosecuted for various reasons including the reluctance of parents to pursue matters for various reasons. 72. On the advice of the Department of Justice (in a memorandum accompanying the report), neither the evidence before, nor the report of, the Carrigan Committee was published. In so advising, the Department of Justice criticised the report in several respects and noted that the obvious conclusion to be drawn from it was that the ordinary feelings of decency and the influence of religion had failed in Ireland and that the only remedy was by way of police action.", "The debate on the report took place in a parliamentary committee. Several recommendations were implemented including the adoption of the Criminal Law Amendment Act 1935 (see paragraph 63 above). The Department of Justice’s files on this report were published in 1991. Further archival material was released in 1999. 2.", "Reformatory and industrial schools 73. Reformatory schools were established in the 1850s and industrial schools in the 1860s. These schools were mainly denominational and State-funded. The former received young offenders but there were never more than a few of such schools. However, there were fifty or so industrial schools which were schools for the training of children: children were lodged, clothed and fed as well as taught (section 44 of the Children Act 1908).", "From 1936 to 1970, a total of 170,000 children and young persons (involving about 1.2% of the relevant age group) entered industrial schools. The average stay was approximately seven years. The great majority of children were committed to industrial schools because they were “needy” and the next most frequent grounds of entry were involvement in a criminal offence or non-attendance at school. Each of these grounds involved committal by the District Court. Section 7 of the Rules and Regulations for Industrial Schools 1933 provided that children’s literary instruction would be in accordance with the national-schools programme and set down recommended hours for both literary instruction and industrial training.", "3. The Cussen and Kennedy Reports on reformatory and industrial schools 74. The Cussen Report, published in 1936, was commissioned by the State into the running of reformatory and industrial schools. The report endorsed the system contingent on its implementing fifty-one conclusions and recommendations. The system continued largely unchanged until a later committee, set up by the State and chaired by Justice Eileen Kennedy, surveyed these schools.", "The Kennedy Report was published in 1970, when the reformatory and industrial school system was already in decline. The closure of certain schools was recommended and other proposals for change were made. It found, notably, that the system of inspection had been totally ineffective and it recommended, together with other reporting mechanisms, the establishment of an independent statutory body to ensure the highest standards of child care and to act, inter alia, as a watchdog. 4. The Ryan Report on reformatory and industrial schools 75.", "Following public disclosures and controversies in the late 1980s and early 1990s about, notably, clerical child abuse in Ireland, the Prime Minister issued the following written statement on 11 May 1999: “On behalf of the State and of all citizens of the State, the Government wishes to make a sincere and long overdue apology to the victims of childhood abuse for our collective failure to intervene, to detect their pain, to come to their rescue.” 76. The Commission to Inquire into Child Abuse Act 2000 was adopted (amended in 2005). A Commission (later known as the Ryan Commission) investigated and reported on child abuse (including sexual abuse) primarily in reformatory and industrial schools. Since there were relatively few reformatory schools, the Commission’s work principally concerned industrial schools. 77.", "The Commission’s mandate mainly covered the 1930s to 1970s, the period between the Cussen and Kennedy Reports. Evidence was collected over a period of nine years and included voluminous documentation, expert evidence and the testimony of around 1,500 complainants. The “Investigation Committee” heard evidence from witnesses who wished to have their allegations investigated whereas the “Confidential Committee” provided a private forum for witnesses to recount abuse suffered by them. The evidence to the latter committee was therefore unchallenged. 78.", "The Commission reported in May 2009 (“the Ryan Report”). It found that there had been widespread, chronic and severe physical, including sexual, abuse of children mainly by clergy in the reformatory and industrial schools. While the religious authorities managed cases of abuse so as to protect the congregations and minimise the risk of public disclosure, the report confirmed that they had reported complaints of sexual abuse of pupils by lay persons to the police. The Secretary General of the Department, in evidence to the Investigation Committee, regretted the significant failings in its responsibility to children in the reformatory and industrial schools: while those institutions were privately owned and operated, the State had a clear responsibility to ensure that the care children received was appropriate and the Department had not ensured a satisfactory level of care. Complaints of clerical child abuse were seldom reported to the Department itself and it had dealt inadequately with the complaints which were received.", "79. Chapter 14 of Volume 1 (“the Brander Chapter”) examined the career of “a serial sexual and physical abuser” who was a lay teacher in around ten schools (including six national schools) for forty years ending in 1980. After retirement, he was convicted on numerous charges of sexual abuse of pupils. The report noted that, when parents had tried to challenge his behaviour in the 1960s and 1970s, he was protected by diocesan and school authorities and moved from school to school. Evidence was given of complaints to the police in the 1960s.", "Complaints to the Department in the early 1980s were ignored, an attitude which, as the Department accepted before the Commission, was impossible to defend even by the standards of the time. Not only was the investigation shocking in itself, but it illustrated “the ease with which sexual predators could operate within the educational system of the State without fear of disclosure or sanction”. 80. Volume III comprised the Report of the Confidential Committee which heard evidence of abuse from 1930 to 1990 from 1,090 persons about 216 institutions which comprised mainly reformatory and industrial schools but also included national schools. The Committee heard eighty-two reports of abuse from seventy witnesses in relation to seventy-three primary and second level schools: most concerned children leaving prior to or during the 1970s and sexual abuse was reported by over half of the witnesses.", "Contemporary complaints were made, inter alia, to the police and the Department. Certain witnesses emphasised the public, and therefore evident, nature of the sexual abuse. 81. Volume IV, Chapter 1, concerned the Department which had legal responsibility under the Children Act 1908 for children committed to the reformatory and industrial schools. The Department had insufficient information because its inspections were inadequate.", "Department officials were aware that abuse occurred and should have exercised more of the Department’s ample legal powers over the relevant schools in the interests of the children, such as the power to remove a manager. However, the Department made no attempt to impose changes that would have improved the lot of the children in those schools. Indeed: “The failures by the Department ... [could] also be seen as tacit acknowledgment by the State of the ascendancy of the Congregations and their ownership of the system. The Department[‘s] Secretary General ... [stated] that the Department had shown a ‘very significant deference’ towards the religious Congregations. This deference impeded change, and it took an independent intervention in the form of the Kennedy Report in 1970 to dismantle a long out-dated system.” 82.", "Volume V contained copies of, inter alia, expert reports. Certain complainants had briefed a senior lecturer in Irish history, Professor Ferriter, to address the proposition that the State had only become aware, at a policy level, of the physical abuse of minors in the 1970s and of the sexual abuse of minors in the 1980s. The Commission took over as sponsor of his report and annexed it to its own report. Professor Ferriter’s report put the events before the Ryan Commission in their historical context. He described the Carrigan Report (1931) as a “milestone” as regards the provision of compiled information about the rate of prosecution of sexual crime in Ireland.", "He also provided and analysed later prosecution statistics (from the 1930s to the 1960s) drawn from criminal-court archives. The police had been quite vigorous in their prosecution of paedophiles but the fact that most sexual crimes were not actually reported suggested that such crime was a serious problem throughout the twentieth century in Ireland. Professor Ferriter went on to point out that the criminal-court archives demonstrated a “consistently high level of sexual crime directed against young boys and girls”. While most of those cases were not recorded in the media, he considered that the police had extensive contemporaneous knowledge of the existence of such crimes. 83.", "Volume V annexed a research report completed by Mr Rollison, requested by the Ryan Commission itself and entitled “Residential Child Care in England, 1948-1975: A History And Report”. He set out the history of residential school care in England during the period 1948 to 1975. Under the heading “Abuse”, Mr Rollison indicated that, prior to the mid-1980s, there was “little professional or adult sensitisation either to the word or to the possibility of abuse” and that it was “essential to avoid the trap and potential excesses” of judging this period by today’s standards. 84. The Ryan Report contained several recommendations.", "It was considered important, as a first step, for the State to admit that abuse of children occurred because of failures of systems and policy, of management and administration, as well as of senior personnel who were concerned with the reformatory and industrial schools. A series of other recommendations were made about the development and review of child-orientated State policies and services, about accountability, about the necessity for adequate and independent inspections of all services to children and for the fullest implementation of “Children First: National Guidelines for the Protection and Welfare of Children” (see paragraph 89 below). 5. Later reports on sexual abuse 85. Later public inquiries and reports criticised the response by the Catholic Church to allegations of child sexual abuse by the clergy.", "86. The Ferns Report 2005 identified over 100 complaints of child abuse made between 1962 and 2002 against twenty-one priests of the Diocese of Ferns. The report criticised the response of the Church but referenced few complaints to the State authorities prior to or during the 1970s. 87. The Murphy Report 2009 concerned the handling by the Church and State of complaints of child abuse made between 1975 and 2004 against clergy of the Archdiocese of Dublin.", "The report accepted that child sexual abuse by clerics was widespread during the relevant period. While the need for child-protection legislation had been clearly recognised in the early 1970s, the legislative delay until the early 1990s was described as extraordinary. 88. In 1996 the Irish Catholic Bishops adopted a framework document entitled “Child Sexual Abuse: Framework for a Church Response”. The Cloyne Report 2011 examined the response of the Catholic Church authorities to complaints made to them about clerical sexual abuse after the framework document was adopted, a point at which those authorities could reasonably be considered to have been aware of the extent of the problem and of the manner of dealing with it.", "The report was highly critical of the response of the Church, even during this later period. 6. Additional child-protection developments 89. In November 1991 the Department issued guidelines on procedures for dealing with allegations or suspicions of child abuse (Circular 16/91). They were updated in 2001 (“Child Protection – Guidelines and Procedures”) and in 2006 (“Child Protection Guidelines and Procedures for Primary Schools”).", "In 1999 the first comprehensive framework for child protection was adopted by the State (“Children First: National Guidelines for the Protection and Welfare of Children”). These guidelines were to assist in the identification and reporting of child abuse and to improve professional practices in organisations providing services to children and families. The code has been updated since then, most recently in 2011. The Government have published the Children First Bill 2012 with a view to ensuring effective implementation of these guidelines. 90.", "The Ombudsman for Children was established in 2002 to promote public awareness of children’s rights. New and focused criminal offences were adopted including the offence of reckless endangerment of a child (section 176 of the Criminal Justice Act 2006). Various compensation schemes have been set up providing redress mainly to abuse victims from reformatory and industrial schools. The “children’s rights” referendum of 2012 led to the approval of the thirty-first amendment to the Constitution which proposes to insert provisions, orientated towards child rights and protection, into Article 42 of the Constitution. The amendment has not come into force pending litigation.", "III. RELEVANT INTERNATIONAL LAW AND PRACTICE A. The Council of Europe 91. The Parliamentary Assembly of the Council of Europe (“PACE”) first made recommendations concerning child protection in 1969 with its Recommendation 561 entitled “Protection of Minors against ill-treatment”. Although primarily concerned with the beating of children in the home, it recommended that States be invited to “take all necessary measures to ensure that the competent ministries and departments are aware of the gravity and extent of the problem of children subject to physical or mental cruelty” and, further, to “request the official services responsible for the care of maltreated children to coordinate their action as far as possible with the work undertaken by private organisations”.", "Recommendation No. R (79) 17 of the Committee of Ministers on the protection of children against ill-treatment builds on this PACE Recommendation: governments were to take all necessary measures to ensure the safety of abused children “where the abuse is caused by acts or omissions on the part of persons responsible for the child’s care or others having temporary or permanent control over him”. 92. The European Social Charter 1961 provides in Article 7 that children and young persons have the right to special protection against physical and moral hazards to which they are exposed. B.", "The United Nations 93. The Geneva Declaration of the Rights of the Child was adopted by the League of Nations in 1924 and emphasised, as a preamble to its five protective principles, that mankind owed to the child “the best that it had to give”. By unanimous vote in 1959, the General Assembly of the United Nations adopted its Declaration of the Rights of the Child extending the 1924 Declaration. This 1959 Declaration is prefaced by the general principle that a child, by reason of his physical and mental immaturity, needed special safeguards and care. Principle 2 provides that a child shall enjoy special protection and shall be given opportunities and facilities to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity, the best interests of the child being always paramount.", "Principle 8 provides that the child shall in all circumstances be among the first to receive protection and relief and Principle 9 states that the child shall be protected against all forms of neglect, cruelty and exploitation. 94. The Universal Declaration of Human Rights 1948 (UDHR) contains two Articles which expressly refer to children – Article 25 on special care and assistance and Article 26 on the right to free elementary education – as well as the catalogue of human rights which apply to all human beings including the right not to be subjected to cruel, inhuman or degrading treatment. 95. Article 24 of the International Covenant on Civil and Political Rights (ICCPR) stipulates that “every child shall have, without any discrimination ... the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State”.", "Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESC) requires States to take steps, including legislating, to progressively realise the rights guaranteed by the Covenant. Article 10 of the ICESC consistently stipulates that special measures of protection and assistance should be taken on behalf of the young. Article 12 addresses the right of all to “the enjoyment of the highest attainable standard of physical and mental health”, and incorporates a specific provision under which States Parties are obliged to take steps for the provision for the healthy development of children. Both Covenants were opened for signature in 1966 and they were signed and ratified by Ireland in 1973 and 1989 respectively. 96.", "The Preamble to the 1989 United Nations International Convention on the Rights of the Child recalls, inter alia, the various child-protection provisions of the 1924 and 1959 Declarations, the UDHR, the ICCPR and the ICESC. Article 19 provides that the State shall protect the child from maltreatment by parents or others responsible for the care of the child and establish appropriate social programmes for the prevention of abuse and the treatment of victims. THE LAW 97. The applicant complained that the State failed to protect her from sexual abuse by a teacher in her national school and that she did not have an effective remedy against the State in that regard. She relied on Article 3 (alone and in conjunction with Article 13), Article 8, Article 2 of Protocol No.", "1 as well as these latter Articles taken in conjunction with Article 14 of the Convention. I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS 98. The Government submitted that the Court should reconsider its admissibility decision arguing that the applicant had failed to exhaust domestic remedies, that she was no longer a victim of a violation of the Convention, that her application was out of time and, finally, that her complaints were manifestly ill-founded. The applicant rejected these submissions relying, inter alia, on the Chamber’s unanimous admissibility decision.", "A. Submissions of the parties 1. The Government 99. The Government maintained, in the first place, that the applicant had failed to exhaust effective domestic remedies. They disagreed with the Chamber that she was entitled to choose remedies when the result was that her core complaint to this Court was precisely the claim abandoned before the domestic courts. Since she did not appeal to the Supreme Court the order of the High Court to the effect that she had not established a case in negligence (the “non-suit” order), the State was deprived of the opportunity to contest the negligence claims, with its evidence, in the proper domestic forum.", "As a result, much controversial material had been opened before this Court without the necessary domestic court analysis. The Government were not suggesting that, having unsuccessfully pursued one remedy, she should have begun another but rather that she should not have abandoned at the High Court stage an appeal concerning her core complaint to this Court. 100. Secondly, if that non-suit order of the High Court that she had not established a case in negligence was clearly not appealable, the application should be rejected as out of time as it was not introduced within six months of that order which was dated 9 March 2004. 101.", "Thirdly, the Government maintained that the applicant could no longer claim to be a victim given the awards of damages to her by the CICT and by the High Court (Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000‑I; Hay v. the United Kingdom (dec.), no. 41894/98, ECHR 2000‑XI and Calvelli and Ciglio v. Italy [GC], no. 32967/96, ECHR 2002‑I). The CICT scheme was a reasonable and independent assessment of compensation for criminal damage which was drawn from public funds.", "If the applicant considered the CICT award inadequate, she should have taken an action in judicial review. That the CICT award was lower than that of the High Court did not mean it was inadequate: the higher award could be explained by additional information before the civil courts or by the differing elements comprising the respective awards. The interaction between the CICT award, the award against LH and any award by this Court was illustrated by the requirement to repay the CICT award if damages were received from the other two sources. 102. The Government also argued, albeit in the context of Article 13 of the Convention, that an effective remedy did not necessarily mean one in which the State was a defendant.", "They underlined that the Court did not find a breach of Article 13 in Costello-Roberts v. the United Kingdom (25 March 1993, § 27, Series A no. 247‑C) as the applicant was able to sue the private school or its authorities for assault. They also relied on the sufficiency of the negligence action in Calvelli and Ciglio v. Italy (cited above). They considered Z and Others v. the United Kingdom ([GC], no. 29392/95, ECHR 2001‑V) to be distinguishable: that respondent Government had conceded that a negligence action was the only effective remedy but that that action did not lie against local authorities.", "103. Finally, the Government maintained that the application was manifestly ill-founded. 2. The applicant 104. The applicant considered she had exhausted all effective domestic remedies.", "Given the nature of her complaints, only a remedy which determined State liability and offered adequate compensation could be considered effective. As the Chamber found, she was entitled to choose the most feasible remedy against the State (vicarious liability for acts of LH) and she was not required to exhaust other remedies once that remedy was ultimately unsuccessful. She was then entitled to introduce her application within six months of the Supreme Court judgment and not, as the Government argued, within six-months of the High Court non-suit order. 105. The applicant maintained that she retained her victim status since there had been no recognition of State liability or adequate compensation from the State.", "She rejected the relevance of the case-law on which the Government relied: in the above-cited Caraher case, the applicant was no longer a victim because his civil action was against the State and Calvelli and Ciglio was a medical negligence case. 106. As to the CICT award, she pointed out that the Court had already found the similar system in the United Kingdom to be an inadequate means of establishing State responsibility: the CICT did not concern, let alone acknowledge, any liability of the State and, consistently, the award was ex gratia. She argued that the award was inadequate as demonstrated by the difference between it and the significantly greater civil award against LH (the core non-pecuniary award against LH was EUR 200,000 as well as EUR 100,000 in aggravated and exemplary damages and the non-pecuniary element of the CICT award was EUR 27,000). Judicial review of the CICT award stood no chance of success in which case she risked a heavy costs’ order against her: there had been approximately 5 such cases since 1982 and the scope of judicial review was too narrow to accommodate a simple disagreement over the amount of the award.", "107. The case against LH, the applicant submitted, did not concern State liability and, while she had done all she could to recover the award against him, she had received only a small part of it. She had registered a judgment mortgage on his interest in the family home but, since the house was registered land, the registration of a judgment mortgage did not (at the time) sever the joint tenancy or therefore allow for the sale of the house. Moreover, where the property was a family home and the judgment mortgage related to one spouse only, an order for sale would not be given. In any event, it was not a satisfactory remedy if it required her to deprive an innocent third party of a family home.", "B. The Court’s assessment 108. It is recalled that, even at the merits stage and subject to Rule 55 of the Rules of Court, the Court may reconsider a decision to declare an application admissible where it finds that it should have been declared inadmissible for one of the reasons outlined in the first three paragraphs of Article 35 of the Convention (for example, Odièvre v. France [GC], no. 42326/98, § 22, ECHR 2003‑III. 109.", "As regards the applicant’s exhaustion of domestic remedies, the Chamber retained the following relevant principle: “... 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 (O’Reilly v. Ireland, no. 24196/94, Commission decision of 22 January 1996; T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999; Moreira Barbosa v. Portugal (dec.), no.", "65681/01, ECHR 2004-V; Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, 15 November 2005; and, more recently, Shkalla v. Albania, no. 26866/05, § 61, 10 May 2011; as well as Leja v. Latvia, no. 71072/01, § 46, 14 June 2011).” 110. The Chamber noted that the applicant’s core grievances concerned the State’s responsibility for the sexual assaults by LH as well as the availability of a civil remedy against the State in that respect.", "The Chamber therefore considered her pursuit of a claim alleging the State’s vicarious liability for LH to be a reasonable choice. It could not be said that the outcome of that action was clearly foreseeable since her action was a lead case in the domestic courts and since it ended with a majority judgment of the Supreme Court. If successful, that action could have addressed her essential grievances through a finding of State responsibility and an award of damages against the State. While the basis of State responsibility invoked domestically was different to that pursued before the Court, the Court’s case-law made it clear that the applicant had the right, consistently with Article 35, to pursue the vicarious liability action with a view to addressing her grievance against the State without being required, when the route reasonably chosen proved unsuccessful, to exhaust another remedy with essentially the same objective. 111.", "The Grand Chamber does not consider that the Government’s observations undermine the Chamber’s findings. Just as the established case-law of this Court entitles an applicant to choose one feasible domestic remedy over another, the applicant was entitled to devote resources to pursue one feasible appeal (vicarious liability) over another (a claim in negligence and/or a constitutional tort). The Grand Chamber re-affirms therefore the findings of the Chamber that the applicant fulfilled the exhaustion requirements of Article 35 of the Convention. 112. The Court has examined below, in the context of Article 13, whether the remedies not exhausted by the applicant could be considered, nevertheless, to be effective (paragraphs 179 and 183-186).", "113. It also follows that the applicant was entitled to introduce the present application within six months of the final decision in the proceedings chosen, namely within six months of the Supreme Court judgment on vicarious liability of 19 December 2008. The application cannot therefore be dismissed as having been introduced outside of the time-limit fixed by Article 35 of the Convention. 114. As to the applicant’s victim status, the Chamber was of the view that this preliminary objection had to be joined to the merits of the complaint under Article 13 of the Convention.", "The Grand Chamber considers that it must examine this issue as a preliminary objection. However, even assuming that a damages award in her favour could take away the applicant’s victim status as the Government argued based on Caraher v. the United Kingdom (and related jurisprudence), the Grand Chamber considers that she can still claim to be a victim of a violation of the Convention as regards her complaints about the State’s failure to protect her or to provide her with an effective remedy in that respect. 115. 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” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (for example, Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI).", "Where rights of such fundamental importance as those protected under Article 3 are at stake and where an alleged failure by the authorities to protect persons from the acts of others is concerned, Article 13 requires that there should be available to victims a mechanism for establishing any liability of State officials or bodies for acts or omissions involving the breach of their rights under the Convention and, furthermore, that compensation for the non-pecuniary damage flowing from the breach should in principle be part of the range of available remedies (Z and Others v. the United Kingdom, cited above, § 109). An applicant’s victim status may also depend on the level of compensation awarded at domestic level, having regard to the facts about which the applicant complains before the Court (see, inter alia, Gäfgen v. Germany [GC], no. 22978/05, § 115 and 118, ECHR 2010). 116. As to the case-law relied upon by the Government to argue that a remedy addressing State liability was not a pre-requisite to effectiveness, the Court notes as follows.", "The present case is substantively different from Costello-Roberts: the applicant in the latter case essentially challenged the application by a teacher of the law (allowing corporal punishment) whereas the present applicant challenged the State’s failure to legislate to provide an adequate legal framework of protection. Calvelli and Ciglio concerned medical negligence so that a civil negligence action against doctors (and, potentially, disciplinary proceedings) was considered adequate for the purposes of the procedural aspect of Article 2 of the Convention. That the Government made concessions about domestic law in Z and Others does not change the Convention principles stated therein to the effect that, in a case such as the present, a remedy against the State was required. 117. However, the applicant has neither obtained acknowledgement of the Convention breach alleged nor adequate redress.", "118. In the first place, neither LH’s criminal conviction nor the damages award against him concerned State responsibility. The CICT award, on which the Government relied, did indeed come from State funds and constituted compensation by the State to the applicant for criminal damage inflicted on her by a third party. However, it was made on an ex gratia basis and did not concern in any way, let alone acknowledge, any liability of the State. Consistently with this fact, the State is never a party to CICT proceedings (Z and Others v. the United Kingdom, cited above, § 109; E. and Others v. the United Kingdom, no.", "33218/96, § 112, 26 November 2002; and August v. the United Kingdom (dec.), no. 36505/02, 21 January 2003). 119. Secondly, while the High Court awarded over EUR 300,000 to the applicant she has only been able to recover from LH approximately 10%, of that award, even following enforcement proceedings. Given LH’s age, the level of monthly payments fixed and the fact that LH’s main asset is a family home, the prospects of recovering the rest of that award remain minimal.", "While the CICT award (EUR 54,000) included a non-pecuniary element (EUR 27,000), that was very substantially lower than the non-pecuniary damage assessed by the High Court at EUR 200,000 (for example, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 214-215, ECHR 2006‑V). There being little evidence that the applicant’s CICT non-pecuniary award was unusual by CICT standards, it has not been demonstrated that a challenge, whether before the CICT panel or on judicial review, stood any chance of success. 120.", "For these reasons, and even if the Caraher line of case-law relied upon by the Government (see paragraphs 102 and 114 above) were to apply, the Grand Chamber considers that the applicant can still claim to be a victim of a failure by the State, contrary to Articles 3 and 13, to protect her from ill-treatment and to provide her with a domestic remedy in that respect. 121. Consequently, the Grand Chamber rejects the preliminary objections of the Government, with the exception of their argument that the applicant’s complaints are manifestly ill-founded as this objection must be joined to the merits of those complaints. II. ALLEGED VIOLATION OF THE SUBSTANTIVE ASPECT OF ARTICLE 3 OF THE CONVENTION 122.", "Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 1. The applicant 123. The applicant’s core complaint was that the State had failed, in violation of its positive obligation under Article 3, to put in place an adequate legal framework of protection of children from sexual abuse, the risk of which the State knew or ought to have known and which framework would have countered the non-State management of national schools. There were no clear or adequate legal obligations or guidance for the relevant actors to ensure they acted effectively to monitor the treatment of children and to deal with any complaints about ill-treatment including abuse.", "Articles 3 and 8, as well as Article 2 of Protocol No. 1, read together put a duty on the State to organise its educational system so as to ensure it met its obligation to protect children, an obligation facilitated, but not required, by Article 42 of the Constitution. 124. Education was a national obligation (McEneaney and Crowley, cited above), as it was in any advanced democracy. Article 42 of the Constitution was permissive so that the State could and should have chosen to provide education itself.", "Even if the State outsourced that obligation to non-State entities, the national-school model could and should have accommodated greater child-protection regulations. One way or the other, a State could not avoid its Convention protective obligations by delegating primary education to a private entity (see Costello-Roberts v. the United Kingdom[, 25 March 1993, Series A no. 247-C]). Finally, the State could not absolve itself by saying that the applicant had had other educational options which, in any event, she had not. 125.", "The applicant relied on certain material, notably the Carrigan and Ryan Reports, to substantiate her claim that the State either had, or ought to have had, knowledge of the risk of abuse of children in national schools. She pointed out that the Ryan Report had been published after nine years of investigation and after the Supreme Court judgment in her civil action. She also maintained that the State had or ought to have had knowledge of the fact that appropriate protective measures, including adequate monitoring and reporting mechanisms, were not in place to prevent such abuse. In short, she maintained that the abuse of national-school pupils was facilitated by the national-school model of primary education combined with a failure to put in place effective measures of protection to prevent and detect sexual abuse. 126.", "The measures, on which the Government relied, were inadequate and, indeed, the applicant considered they confirmed an absence of State control. The 1965 Rules and Circulars were neither primary nor secondary legislation; their legal basis was unclear; they were so numerous and overlapping that the extent to which they remained in force was also unclear; and they were not readily available to the public. In any event, those Rules and Circulars were not effective: there was no reference to sexual abuse, no procedure for complaining about abuse and no binding requirement to monitor, investigate or report abuse to a State authority. The point of contact for the parents remained the manager. Whether or not action would have been taken on foot of a complaint to the State, the absence of an effective detection and complaints procedure meant that complaints were not passed on to the State.", "127. The applicant also considered that the system of inspection could have protected children from abuse, but did not. It was designed to ensure the quality of teaching and not to control the conduct of teachers or to receive complaints of abuse. Accordingly, parents considered themselves obliged to complain to the manager and, indeed, the Guidance Note of 6 May 1970 directed them to do so. There was no relationship between the inspector and the parents, either in principle or practice and none of the guidelines or circulars referred to any contact between parents and inspectors.", "The inadequacy of the State system of inspection was, in the applicant’s opinion, established by, inter alia, the Ryan Report, by a comparison with the extensive child-protection guidelines which have been adopted since then and by the facts of the present case. In this latter respect, there had been 400 instances of abuse since the mid-1960s in Dunderrow National School by L.H. and not one related complaint to an inspector. 128. More generally, the applicant pointed out the stark contrast between the State’s detailed pleadings in her domestic action – where it claimed to have no control, knowledge or role in school management or as regards teachers’ conduct or propensities and where it laid full responsibility squarely on the patrons and managers – and the State’s position before this Court – where it is argued that there was a clear legal framework of State protection in place.", "129. Finally, the causation test was set out in E. and Others v. the United Kingdom, [no. 33218/96], §§ 98-100[, 26 November 2002]). The applicant submitted that, had there been an effective reporting mechanism, the 1971 complaint would have been reported and there was therefore more than a “real prospect” that the 1973 abuse would not have happened. 2.", "The Government 130. The Government endorsed the Supreme Court’s description of the development and structure of the Irish primary-education system adding that it existed when the Irish State was created in 1922 and was maintained with the enactment by the people of Article 42 of the Irish Constitution in 1937. Dunderrow National School was therefore owned, operated and managed by the Catholic Church and its representatives. L.H. was not a State employee but was employed by the manager who, in turn, managed the school on behalf of the patron.", "This was not a technical bureaucratic distinction but a real “ceding” of the ownership and management of schools to denominations. This situation suited the majority and minority denominations, it reflected the will of the Irish people and it was not the function of this Court to recast the relationships which formed the basis of a significant portion of the Irish primary-school system. The suggestion that primary education was a national enterprise to be entirely State run in an advanced democratic State stemmed from a particular ideological outlook that was not necessarily shared by all Contracting States and not by Ireland. They pointed to the fact that no legislation obliged a child to attend a national school as the law allowed other schooling options. 131.", "As regards the substantive complaint about a failure to protect under Article 3, the Government argued that the liability of the State was not engaged. The case of Van der Mussele v. Belgium (23 November 1983, Series A no. 70) was distinguishable because there was no question of “delegation” of obligations since Article 2 of Protocol No. 1 only required States to ensure that no one was denied an education. The above-cited Costello-Roberts case was different because corporal punishment was part of a disciplinary system and therefore within the ambit of education whereas L.H.’s behaviour was “the very negation” of a teacher’s role.", "State responsibility for criminal offences unrelated to securing a Convention right was therefore limited to an operational obligation to protect (see Osman v. the United Kingdom, 28 October 1998, Reports of Judgments and Decisions 1998‑VIII) and there was no evidence that the State knew or ought reasonably to have known in 1973 of a real risk of a teacher abusing a pupil or of L.H. abusing the applicant. 132. As to what the State actually knew, the Government noted that neither the documents disclosed in discovery, nor the evidence of the inspector of Dunderrow National School, to the High Court indicated that the State authorities had received any complaint about L.H.’s behaviour. 133.", "Nor could it be said that the State ought to have been aware of a risk of sexual abuse of children by teachers in national schools in the 1970s. It was fundamental to assess the question of the State’s constructive knowledge without the benefit of hindsight: in 1973 awareness of the risk of child abuse was almost non-existent and standards could not be retrospectively imposed on the early 1970s on the basis of today’s increased knowledge and standards. The core question was what ought to have been the perceived risk of sexual abuse of children by teachers in primary schools in Ireland in the early 1970s and the answer was none. The Government pointed out the reference by Hardiman J to the different ethos which existed in the 1970s which explained why no parent had made a direct complaint to the State authorities at the relevant time. The Government relied also on the research paper entitled “Residential Child Care in England, 1948-1975: A History And Report” annexed to the Ryan Report.", "The applicant herself had presented no evidence to the domestic courts as to the level of awareness of risk in the 1970s and, indeed, her own expert (Professor Ferguson) considered that there was no evidence to support the need for preventative strategies in the early 1970s. The Carrigan Report did not assist her: while it contained some information about an increase in sexual crime and indicated that the police were active in prosecuting such crimes against young girls, there was no suggestion that a girl was at risk in school from a teacher. While the Government accepted that the Department had mishandled a complaint about Mr Brander, one could not extrapolate from this a constructive knowledge on the part of the State in the 1970s of a general risk to children from sexual abuse in schools. Once the State had a relevant awareness and understanding of the issues, relevant guidelines were introduced. 134.", "In any event, domestic law contained effective protective mechanisms commensurate with any risks which could have been perceived at the time. The actions of L.H. were offences in the criminal law and, indeed, as soon as complaints were made to the police in the mid-1990s, a full criminal investigation was carried out and L.H. was convicted and imprisoned. The civil law of tort provided grounds for a civil action against L.H.", "and the religious authorities. 135. The 1965 Rules also provided protection. These were legal rules which clearly bound a teacher and a manager and which clearly set out how to make and pursue a complaint. The Government relied, in particular, on Rules 121 and 130, which set down standards for teachers conduct, as well as Rule 108 and the Guidance Note of 6 May 1970 as regards mechanisms to deal with teachers who did not conduct themselves properly.", "Moreover, the inspector’s role was, inter alia, to report to the Minister on the quality of the system and, notably, on whether the 1965 Rules were being complied with and to ensure an “appropriate standard of education” in all primary schools. In addition, each manager, teacher and parent had a role in protecting children and each could have made, but did not make in the applicant’s case, a complaint directly to an inspector, the Minister, the Department or to the police. Any such complaint would have led to relevant inquiries and investigations, and, as appropriate, a sanction such as the withdrawal by the Minister of a teacher’s licence to teach. The real problem was that no use was made of the procedures which existed: the earlier complaint about L.H. was made to the manager and not to a State authority.", "136. In sum, the Government argued that there were safeguards in place commensurate with any risk of which the State ought to have been aware at the time, that constructive knowledge ought to be assessed from the point of view of the 1970s and without the benefit of hindsight and, notably, without imposing today’s knowledge and standards on a forty-year-old context. B. The third parties’ submissions 1. The Irish Human Rights Commission (“the IHRC”) 137.", "The IHRC was established by statute in 2000 to promote and protect the human rights of everyone in Ireland and it has its origins in the Good Friday Agreement of 1998. It has already intervened as a third party in cases before the Court. 138. The IHRC noted, inter alia, the positive obligations to prevent treatment contrary to Article 3 including a more general duty to structure the primary-education system in such a way as to protect children, which obligations could not be avoided by delegating a public-service function to a private body. In this context, the IHRC considered that a serious question arose as to whether the State maintained a sufficient level of control over publicly funded national schools to ensure that Convention rights were upheld.", "The legal status of the 1965 Rules was unclear. The Rules were unclear about an inspector’s role as regards a teacher’s conduct and, while the Rules addressed “improper conduct” by teachers, they did not define this or indicate any process whatsoever for dealing with it. Since private fee-paying schools and home schooling were not options accessible to the vast majority of Irish parents, rendering primary education obligatory effectively required parents to send their children to national schools, failing which they risked criminal proceedings, fines and the possibility of children being taken into care. In sum, in a typical national school, which most Irish children inevitably attended, school management had little guidance as to how to deal with allegations or suspicions of abuse, schools were under no duty to report such allegations to the Department or to the police, social services had limited powers to deal with any such allegations or suspicions and, finally, children and parents faced difficulties making any such complaints. 2.", "The European Centre for Law and Justice (ECLJ) 139. The ECLJ describes itself as a non-governmental organisation dedicated mainly to the defence of religious liberty. It has previously intervened as a third party in cases before this Court. The ECLJ focused on the question of whether the State could be considered responsible for the abuse by L.H. of the applicant.", "140. The ECLJ noted that, since the creation of the education system, the role of the State therein was limited to financing it and controlling the quality of the syllabus and teaching. This system did not create hierarchical relationships between the State and the school and its teachers or, indeed, any legal basis for an obligation by the latter to keep the former informed. Neither did Article 2 of Protocol No. 1 require a State to directly administer schools to the point of managing all disciplinary matters.", "141. As to whether, nevertheless, the State had fulfilled its positive obligation to prevent treatment in breach of Article 3, the ECLJ did not consider that the State was required to adopt other measures in addition to making criminal and civil proceedings available in the early 1970s. 142. Since the State was required neither by domestic law nor the Convention to take on the day-to-day management of primary education, the State was not responsible for the acts of a primary-school teacher. To suggest that it was responsible for not preventing the acts of a teacher would amount to imposing strict liability.", "The private and denominational character of school management was never an obstacle to the prevention or deterrence of abuse and never excluded the application of the law. C. The Court’s assessment 143. The relevant facts of the present case took place in 1973. The Court must, as the Government stressed, assess any related State responsibility from the point of view of facts and standards of 1973 and, notably, disregard the awareness in society today of the risk of sexual abuse of minors in an educational context, which knowledge is the result of recent public controversies on the subject, including in Ireland (see paragraphs 73‑88 above). 1.", "The applicable positive obligation on the State 144. The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment. The obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals. This positive obligation to protect is to be interpreted in such a way as not to impose an excessive burden on the authorities, bearing in mind, in particular, the unpredictability of human conduct and operational choices which must be made in terms of priorities and resources.", "Accordingly, not every risk of ill-treatment could entail for the authorities a Convention requirement to take measures to prevent that risk from materialising. However, the required measures should, at least, provide effective protection in particular of children and other vulnerable persons and should include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (see X and Y v. the Netherlands, 26 March 1985, §§ 21-27, Series A no. 91; A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998‑VI; Z and Others v. the United Kingdom, [no. 29392/95], §§ 74-75[, ECHR 2001‑V]; D.P. and J.C. v. the United Kingdom, no.", "38719/97, § 109, 10 October 2002; and M.C. v. Bulgaria, no. 39272/98, § 149, ECHR 2003‑XII). 145. Moreover, the primary-education context of the present case defines to a large extent the nature and importance of this obligation.", "The Court’s case-law makes it clear that the positive obligation of protection assumes particular importance in the context of the provision of an important public service such as primary education, school authorities being obliged to protect the health and well-being of pupils and, in particular, of young children who are especially vulnerable and are under the exclusive control of those authorities (see Grzelak v. Poland, no. 7710/02, § 87, 15 June 2010, and Ilbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey, no. 19986/06, § 35, 10 April 2012). 146. In sum, having regard to the fundamental nature of the rights guaranteed by Article 3 and the particularly vulnerable nature of children, it is an inherent obligation of government to ensure their protection from ill-treatment, especially in a primary-education context, through the adoption, as necessary, of special measures and safeguards.", "147. Furthermore, this is an obligation which applied at the time of the events relevant to this case, namely in 1973. The series of international instruments adopted prior to this period, summarised at paragraphs 91 to 95 above, emphasised the necessity for States to take special measures for the protection of children. The Court notes, in particular, the ICCPR and the ICESC which were both opened for signature in 1966 and signed by Ireland in 1973, although both were ratified in 1989 (see paragraph 95 above). In addition, this Court’s case-law confirmed, as early as in its fifth judgment, that the Convention could impose positive obligations on States, and it did so in the context of Article 2 of Protocol No.", "1 concerning the right to education (see Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, § 3, Series A no. 6). The formulation used in Marckx v. Belgium (13 June 1979, § 31, Series A no. 31) to describe the positive obligations under Article 8 to ensure a child’s integration into a family, has been often cited (notably, in Airey v. Ireland, 9 October 1979, pp. 30-31, § 25, Series A no.", "32). Most pertinently, the seminal case of X and Y v. the Netherlands, cited above, found that the absence of legislation criminalising sexual advances to a mentally handicapped adolescent meant that the State had failed to fulfil a positive obligation to protect the Article 8 rights of the victim. In so concluding, the Court rejected the Government’s argument to the effect that the facts were “exceptional” and that the legislative gap was unforeseeable. The respondent State should have been aware of a risk of sexual abuse of mentally handicapped adolescents in a privately run care home for children and should have legislated for that eventuality. Those cases concerned facts prior to or contemporaneous with those of the present application.", "It is, of course, true that the Court has further elucidated the breadth and nature of the positive obligations on States since those early cases. However, this is considered to be mere clarification of case-law which remains applicable to earlier facts without any question of retroactivity arising (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, § 140, ECHR 2009). 148. As to the content of the positive obligation to protect, the Court observes that effective measures of deterrence against grave acts, such as those in issue in the present case, can only be achieved by the existence of effective criminal-law provisions backed up by law-enforcement machinery (see X and Y v. the Netherlands, cited above, § 27; as well as, for example, Beganović v. Croatia, no.", "46423/06, § 71, 25 June 2009; Mahmut Kaya v. Turkey, no. 22535/93, § 115, ECHR 2000‑III; and M.C. v. Bulgaria, cited above, § 150). Importantly, the nature of child sexual abuse is such, particularly when the abuser is in a position of authority over the child, that the existence of useful detection and reporting mechanisms are fundamental to the effective implementation of the relevant criminal laws (see Juppala v. Finland, no. 18620/03, § 42, 2 December 2008).", "The Court would clarify that it considers, as did the Government, that there was no evidence before the Court of an operational failure to protect the applicant (see Osman, cited above, §§ 115-16). Until complaints about L.H. were brought to the attention of the State authorities in 1995, the State neither knew nor ought to have known that this particular teacher, L.H., posed a risk to this particular pupil, the applicant. 149. The Court also notes that it is not necessary to show that “but for” the State omission the ill-treatment would not have happened.", "A failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the State (see E. and Others v. the United Kingdom, cited above, § 99). 150. It is indeed the case, as emphasised by the applicant, that a State cannot absolve itself from its obligations to minors in primary schools by delegating those duties to private bodies or individuals (see Costello-Roberts, cited above, § 27; see also, mutatis mutandis, Storck v. Germany, no. 61603/00, § 103, ECHR 2005‑V). However, that does not mean that the present case challenges, as the Government suggested, the maintenance of the non-State management model of primary education and the ideological choices underlying it.", "Rather, the question raised by the present case is whether the system so preserved contained sufficient mechanisms of child protection. 151. Finally, the Government appeared to suggest that the State was released from its Convention obligations since the applicant chose to go to Dunderrow National School. However, the Court considers that the applicant had no “realistic and acceptable alternative” other than attendance, along with the vast majority of children of primary-school-going age, at her local national school (see Campbell and Cosans v. the United Kingdom, 25 February 1982, § 8, Series A no. 48).", "Primary education was obligatory (sections 4 and 17 of the School Attendance Act 1926) and few parents had the resources to use the two other schooling options (home schooling or travelling to attend the rare fee-paying primary schools), whereas national schools were free and the national-school network was extensive. There were four national schools in the applicant’s parish and no information was submitted as to the distance to the nearest fee-paying school. In any event, the State cannot be released from its positive obligation to protect simply because a child selects one of the State-approved education options, whether a national school, a fee-paying school or, indeed, home schooling (see Costello-Roberts, cited above, § 27). 152. In sum, the question for current purposes is therefore whether the State’s framework of laws, and notably its mechanisms of detection and reporting, provided effective protection for children attending a national school against the risk of sexual abuse, of which risk it could be said that the authorities had, or ought to have had, knowledge in 1973.", "2. Was the positive obligation fulfilled? 153. It was not disputed that the applicant was sexually abused by L.H. in 1973.", "L.H. pleaded guilty to several sample charges of sexual abuse of pupils from the same national school. He did not defend the applicant’s civil action and the Supreme Court accepted that L.H. had abused her. The Court also considers, and it was not contested, that that ill-treatment fell within the scope of Article 3 of the Convention.", "In particular, when the applicant was nine years of age and for around six months, she was subjected to approximately twenty sexual assaults by L.H. who, as her teacher and school principal, was in a position of authority and control over her (see, for example, E. and Others v. the United Kingdom, cited above, § 89). 154. There was also little disagreement between the parties as to the structure of the Irish primary-school system, although they disputed the resulting liability of the State under domestic law and the Convention. 155.", "The respective roles of religious communities and the State in Irish primary education have been consistent from the early nineteenth century to date. The State provided for education (set the curriculum, licenced teachers and funded schools) but most primary education was provided by national schools. Religious bodies owned national schools (as patrons) and managed them (as managers). As pointed out by Hardiman J, the management of national schools by religious bodies was not just an authorisation by the State to take part in the provision of primary education but rather it was a “ceding” of the running of national schools to the denominational actors and to their interests, which bodies were interposed between the State and the child. The Minister for Education did not, therefore, have any direct or day-to-day management or control of national schools (see paragraphs 35 and 40 above).", "As observed by Hardiman J and Fennelly J in the Supreme Court, the denominations expressed their firm wish to retain that national-school model of primary education and their control of that system. Since the purpose of the denominations was to ensure that their ethos was reflected in the schools, national schools developed into a predominantly denominational system: accordingly, a Catholic-managed national school generally referred to a Catholic manager (usually the local parish priest) with Catholic teachers and pupils (see Hardiman J and Fennelly J, at paragraphs 31-32 and 43 above). 156. This national-school model was carried over through independence in 1922 and was foreseen and facilitated by the text of Article 42 § 4) of the Constitution adopted in 1937. By the early 1970s, national schools represented 94% of all primary schools.", "Approximately 91% of those national schools were owned and managed by the Catholic Church, although the percentage of primary-school children catered for in Catholic‑managed national schools was likely to be higher. 157. Accordingly, in the early 1970s, the vast majority of Irish children under the age of 12 or 13 attended, like the applicant, their local national school. As Hardiman J and Fennelly J of the Supreme Court noted, national schools were educational institutions owned and managed by, and in the interests of, a non-State actor, to the exclusion of State control. It was, moreover, a non-State actor of considerable influence on, in particular, pupils and parents and one resolved to retain its position.", "158. This model of primary education appears to have been unique in Europe. The Supreme Court recognised this, describing the system as one which was entirely sui generis, a product of Ireland’s unique historical experience. 159. Parallel to the maintenance by the State of this unique model of education, the State was also aware of the level of sexual crime against minors through the enforcement of its criminal laws on the subject.", "160. The Irish State maintained laws, or adopted new laws, after independence in 1922 specifically criminalising the sexual abuse of minors including sections 50 and 51 of the Offences Against the Person Act 1861 (as amended) and the Criminal Law Amendment Act 1935 (“the 1935 Act”). Such acts also constituted common-law offences of indecent and ordinary assault. 161. Moreover, the evidence before the Court indicates a steady level of prosecutions of sexual offences against children prior to the 1970s.", "It has noted, in particular, the detailed statistical evidence provided by the Police Commissioner to the Carrigan Committee as early as 1931 (see paragraph 71 above). Based on information he had gathered from 800 police stations in Ireland, he concluded that there was an alarming amount of sexual crime in Ireland, a feature of which was the large number of cases concerning minors including children under 10 years of age. Indeed, this witness considered prosecutions to represent a fraction of the offences actually taking place. Drawing a causal connection between the frequency of assaults on children and the impunity expected by abusers, the Committee’s report recommended legislative changes and more severe punishments leading to the adoption of the 1935 Act which, inter alia, created certain sexual offences as regards young girls. Professor Ferriter’s report, sponsored by the Ryan Commission and annexed to its report (see paragraph 82 above), analysed the statistical evidence of prosecutions gathered from criminal-court archives covering the period after the Carrigan Report and until the 1960s.", "In his report, he concluded, inter alia, that those archives demonstrated a high level of sexual crime directed against young boys and girls. Lastly, the Ryan Report also evidenced complaints made to State authorities prior to and during the 1970s about the sexual abuse of children by adults (see paragraphs 78-81 above). While that report primarily concerned industrial schools where the programme was different from national schools and where the resident children were isolated from families and the community (see the description of industrial schools at paragraph 73 above), these earlier complaints still amounted to notice to the State of sexual abuse by adults of minors in an educational context. In any event, the complaints to the State prior to and during the 1970s recorded in Volume III of the Ryan Report concerned, inter alia, national schools (see paragraph 80 above). 162.", "The State was therefore aware of the level of sexual crime by adults against minors. Accordingly, when relinquishing control of the education of the vast majority of young children to non-State actors, the State should also have been aware, given its inherent obligation to protect children in this context, of potential risks to their safety if there was no appropriate framework of protection. This risk should have been addressed through the adoption of commensurate measures and safeguards. Those should, at a minimum, have included effective mechanisms for the detection and reporting of any ill-treatment by and to a State-controlled body, such procedures being fundamental to the enforcement of the criminal laws, to the prevention of such ill-treatment and, more generally therefore, to the fulfilment of the positive protective obligation of the State (see paragraph 148 above). 163.", "The first mechanism on which the Government relied was a reporting process outlined in the 1965 Rules and the Guidance Note of 6 May 1970 (see paragraph 62 above). However, none of the material submitted referred to any obligation on a State authority to monitor a teacher’s treatment of children and none provided for a procedure prompting a child or parent to complain about ill-treatment directly to a State authority. On the contrary, those with complaints about teachers were expressly channeled to the non-State denominational manager by the text of the Guidance Note of 6 May 1970 on which the Government relied. If a parent had been hesitant to bypass a manager (generally a local priest as in the present case) to complain to a State authority, the relevant rules would have discouraged them from doing so. 164.", "The second mechanism invoked was the system of school inspectors governed also by the 1965 Rules as well as by Circular 16/59 (see paragraph 61 above). However, the Court notes that the principle task of inspectors was to supervise and report upon the quality of teaching and academic performance. There was no specific reference, in the instruments on which the Government relied, to an obligation on inspectors to inquire into or to monitor a teacher’s treatment of children, to any opportunity for children or parents to complain directly to an inspector, to a requirement to give notice to parents in advance of an inspector’s visit or, indeed, to any direct interaction between an inspector and pupils and/or their parents. The rate of visits by inspectors (see paragraph 61 above) did not attest to any local presence of relevance. Consistently with this fact, the Government did not submit any information about complaints made to an inspector about a teacher’s ill-treatment of a child.", "As pointed out by Hardiman J in the Supreme Court, the Minister (via his inspectors) inspected the schools for their academic performance but it did not go further than that: the Minister was deprived of the direct control of the schools because the non-State manager was interposed between the State and the child (see paragraph 35 above). 165. The Court is therefore of the view that the mechanisms on which the Government relied did not provide any effective protective connection between the State authorities and primary-school children and/or their parents and, indeed, this was consistent with the particular allocation of responsibilities in the national-school model. 166. The facts of the present case illustrate, in the Court’s opinion, the consequences of this lack of protection and demonstrate that an effective regulatory framework of protection in place before 1973 might, “judged reasonably, have been expected to avoid, or at least, minimise the risk or the damage suffered” by the present applicant (see E. and Others v. the United Kingdom, cited above, § 100).", "There were over 400 incidents of abuse concerning L.H. since the mid-1960s in Dunderrow National School. Complaints were made in 1971 and 1973 about L.H. to the denominational manager but, as the Supreme Court accepted, the manager did not bring those complaints to the notice of any State authority. The inspector assigned to that school made six visits from 1969 to 1973 and no complaint was ever made to him about L.H.", "Indeed, no complaint about L.H.’s activities was made to a State authority until 1995, after L.H. had retired. Any system of detection and reporting which allowed such extensive and serious ill-conduct to continue for so long must be considered to be ineffective (see C.A.S. and C.S. v. Romania, no.", "26692/05, § 83, 20 March 2012). Adequate action taken on the 1971 complaint could reasonably have been expected to avoid the present applicant being abused two years later by the same teacher in the same school. 167. Finally, Professor Ferguson’s letter, on which the Government relied, was not an expert investigation report but rather pre-litigation advice and thus inevitably also concerned with issues such as chances of success and costs exposure. The comments of Professor Rollison, on which the Government also relied, were directed to the state of awareness of the risk of sexual abuse in the United Kingdom whilst the issue before the Court requires a country-specific assessment.", "168. To conclude, this is not a case which directly concerns the responsibility of L.H., of a clerical manager or patron, of a parent or, indeed, of any other individual for the sexual abuse of the applicant in 1973. Rather, the application concerns the responsibility of a State. More precisely, it examines whether the respondent State ought to have been aware of the risk of sexual abuse of minors such as the applicant in national schools at the relevant time and whether it adequately protected children, through its legal system, from such treatment. The Court has found that it was an inherent positive obligation of government in the 1970s to protect children from ill-treatment.", "It was, moreover, an obligation of acute importance in a primary-education context. That obligation was not fulfilled when the Irish State, which must be considered to have been aware of the sexual abuse of children by adults through, inter alia, its prosecution of such crimes at a significant rate, nevertheless continued to entrust the management of the primary education of the vast majority of young Irish children to non-State actors (national schools), without putting in place any mechanism of effective State control against the risks of such abuse occurring. On the contrary, potential complainants were directed away from the State authorities and towards the non-State denominational managers (see paragraph 163 above). The consequences in the present case were the failure by the non-State manager to act on prior complaints of sexual abuse by L.H., the applicant’s later abuse by L.H. and, more broadly, the prolonged and serious sexual misconduct by L.H.", "against numerous other students in that same national school. 169. In such circumstances, the State must be considered to have failed to fulfil its positive obligation to protect the present applicant from the sexual abuse to which she was subjected in 1973 whilst a pupil in Dunderrow National School. There has therefore been a violation of her rights under Article 3 of the Convention. Consequently, the Court dismisses the Government’s preliminary objection to the effect that this complaint was manifestly ill-founded.", "III. ALLEGED VIOLATION OF THE PROCEDURAL ASPECT OF ARTICLE 3 OF THE CONVENTION 170. The applicant argued that the State had also failed to investigate properly or provide an appropriate judicial response to an arguable case of ill-treatment. She maintained that the lack of effective detection and reporting mechanisms meant that the 1971 complaint about L.H. was not reported and led to a long delay before a criminal investigation and L.H.’s conviction.", "171. The Government argued that sufficient procedures existed in 1973 but that no complaint had been made to a State actor until 1995. At that point, the State fulfilled its procedural obligations: police investigations took place, L.H. was convicted, an award was made by the Criminal Injuries Compensation Tribunal, the applicant’s civil action against L.H. was successful and her civil action in negligence against the State failed on evidential grounds only.", "172. The Court reiterates the principles outlined in C.A.S. and C.S. v. Romania (cited above, §§ 68-70) to the effect that Article 3 requires the authorities to conduct an effective official investigation into alleged ill-treatment inflicted by private individuals, which investigation should, in principle, be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. That investigation should be conducted independently, promptly and with reasonable expedition.", "The victim should be able to participate effectively. 173. The existence of adequate detection and reporting mechanisms has been examined above in the context of the positive obligations of the State under the substantive aspect of Article 3 of the Convention. Thereafter, the procedural obligations arise once a matter has been brought to the attention of the authorities (see C.A.S. and C.S.", "v. Romania, § 70, with further references therein). In the present case, once a complaint about the sexual abuse by L.H. of a child from Dunderrow National School was made to the police in 1995, the investigation opened. The applicant was contacted for a statement which she made in early 1997 and she was referred for counselling (see, for example, C.A.S. and C.S.", "v. Romania, § 82). L.H. was charged on 386 counts of sexual abuse involving twenty-one pupils from Dunderrow National School. L.H. pleaded guilty to twenty-one sample charges.", "He was convicted and imprisoned. It is not clear from the submissions whether the applicant’s case was included in the sample charges: however, she did not take any issue with the fact that L.H. was allowed to plead guilty to representative charges or with his sentence. Any question concerning her inability to obtain recognition of, and compensation for, the State’s failure to protect falls to be examined below under Article 13 of the Convention taken in conjunction with Article 3. 174.", "For these reasons, the Court finds that there has been no violation of the procedural obligations of the State under Article 3 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH THE SUBSTANTIVE ASPECT OF ARTICLE 3 175. 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.” 176. The applicant complained that she was entitled to, but did not have, an effective domestic remedy against the State as regards the failure of the State to protect her from sexual abuse.", "The Government argued that effective remedies existed against the State and non-State actors. 177. The Court observes, as it did at paragraph 115 above, that in a case such as the present, Article 13 requires a mechanism to be available for establishing any liability of State officials or bodies for acts or omissions in breach of the Convention and that compensation for the non-pecuniary damage flowing therefrom should also be part of the range of available remedies (see Z and Others v. the United Kingdom, cited above, § 109). The Court also observes the relevant case-law and principles set out at paragraphs 107 and 108 of the judgment in McFarlane v. Ireland ([GC], no. 31333/06, 10 September 2010).", "In particular, the Court’s role is to determine whether, in the light of the parties’ submissions, the proposed procedures constituted effective remedies which were available to the applicant in theory and in practice, that is to say, were accessible, capable of providing redress and offered reasonable prospects of success. The importance of allowing remedies to develop in a common-law system with a written Constitution is also stressed (see, in particular, D. v. Ireland (dec.), no. 26499/02, § 85, 27 June 2006). A. Civil remedies against non-State actors 178.", "The Government argued that the applicant should have sued the past and/or current patron of the school, the diocese of which he was bishop, the manager and/or the de facto manager or their successors or estates, pointing out that Hardiman J of the Supreme Court found the failure to do this to be “notable”. Without prejudice to her primary submission that a remedy against the State was required, the applicant noted that the patron and manager had passed away at the time of her civil action, that the present bishop denied liability in response to her pre-action letter and that the law was in his favour given that a bishop could not be sued as he was not a corporation sole with perpetual succession. 179. Since the Court considers that the applicant was entitled to a remedy establishing any liability of the State, the proposed civil remedies against other individuals and non-State actors must be regarded as ineffective in the present case, regardless of their chances of success (the patron and manager) and regardless of the recoverability of the damages awarded (civil action against L.H.). Equally the conviction of L.H.", "also relied upon by the Government, while central to the procedural guarantees of Article 3, was not an effective remedy for the applicant within the meaning of Article 13 of the Convention. B. Civil remedies against the State 1. The parties’ submissions 180. The Government argued that the applicant should have pleaded the State’s vicarious liability for the patron and/or manager.", "However, the Government mainly relied on two other remedies. In the first place, they referred to an action claiming that the primary-education system, foreseen by Article 42 of the Constitution, breached her unenumerated constitutional right to bodily integrity (the constitutional tort action). Secondly, they argued that she could have continued her claim in negligence in her appeal to the Supreme Court arguing that the State had failed to structure the primary-education system so as to protect her from abuse. This was her complaint under Article 3 of the Convention. The High Court had summarily dismissed (“non-suited”) her claims because she had failed to adduce any evidence: indeed, her own expert (Professor Ferguson, see paragraph 24 above) had advised her against litigating on the basis of a lack of relevant awareness of risk on the part of the State.", "It was therefore disingenuous to argue that she should now be excused from appealing because she had been non-suited on evidential grounds. In any event, the Government maintained that certain domestic case-law indicated that a non-suit on evidential grounds was appealable and, further, that she could have appealed the non-suit because the High Court gave no clear reasons for that decision and because it failed to address her negligence claim separately. 181. The applicant maintained that she had pleaded, in her domestic action, the State’s vicarious liability for the patron and/or manager. She also disputed the effectiveness of the other two remedies against the State on which the Government relied.", "The High Court’s dismissal of the constitutional tort claim was unappealable. The State’s protection for the unenumerated constitutional right to bodily integrity was implemented through the law of tort and there was no discrete action for damages for breach of the constitutional right to bodily integrity. Neither would the negligence action have been effective. She was non-suited at first instance and, although no reasons were given, it was clearly because her evidence did not demonstrate a prima facie case of negligence. However, she did not have the resources to carry out the necessary investigation, the extent of which was demonstrated by the enormous State resources later required by the Ryan Commission’s investigation and report (see paragraph 77 above).", "An appeal against an evidential finding of the High Court was unlikely to succeed whether or not one applied the case-law on which the Government relied. 2. The IHRC’s submissions 182. The IHRC did not consider the constitutional tort remedy to be effective. In particular, it pointed out that, while the courts had, in theory, endorsed the idea of fashioning remedies for alleged breaches of constitutional rights (Byrne v. Ireland [1972] IR 241, p. 281; and Meskell v. CIE [1973] IR 121), the same courts tended to avoid replacing existing statutory and common-law remedies with a separate constitutional remedial regime so that the constitutional courts relied on existing remedies such as tort (W v. Ireland (no.", "2) ([1999] 2 IR 141). The IHRC submitted that this was precisely what had occurred in this case: to dispose of the constitutional claim against the State it was sufficient to direct the applicant to a remedy in tort for breach of her rights to bodily integrity and privacy. However, the nature of the tortious relationship (negligence/vicarious liability) defined the State’s obligations and liabilities rather than the possibly broader duty of the State to vindicate the rights of a child in the public education system. This, in turn, raised the question of whether the private law remedy in tort was adequate to protect the substance of the applicant’s constitutional rights not least because the private-law remedy focused on the State’s conduct rather than on the applicant’s rights. 3.", "The Court’s assessment 183. The Court is not persuaded that any of the remedies against the State has been shown by the Government to be effective in the present case. 184. In the first place, the Supreme Court rejected the State’s vicarious liability for the acts of L.H., who was a lay teacher with a salary funded by the State. The State’s vicarious liability for the patron and/or manager, who were clerics not paid by the State, must be considered to have been even less likely.", "Consistently, Fennelly J noted that there could be no State liability for the manager since he was not employed by the State (see paragraph 45 above). 185. Secondly, a claim against the State in direct negligence would require the recognition, inter alia, of a relationship between the State and the applicant of such proximity as to give rise to a duty of care on the part of the State to the applicant (see paragraph 66 above). However, the interposition of the denominational managers to the exclusion of State control in national schools would appear to be incompatible with the existence of any such duty of care (see also Hardiman J at paragraphs 35 and 39 above). 186.", "Thirdly, the Government argued that the applicant should have maintained her constitutional tort claim before the Supreme Court (see paragraph 180 above). However, even if the Supreme Court would not have directed her to existing tort remedies as the High Court did, the Government have not demonstrated, with relevant case-law, how the State could be held responsible for a breach of her constitutional right to bodily integrity because of a system which was specifically envisaged by Article 42 of the Constitution. Whether or not this ground was properly pleaded before the Supreme Court, it remains relevant to note that Hardiman J of the Supreme Court rejected it (see paragraph 40 above). C. The Court’s conclusion 187. For these reasons, the Court considers that it has not been demonstrated that the applicant had an effective domestic remedy available to her as regards her complaints under the substantive limb of Article 3 of the Convention.", "There has, therefore, been a violation of Article 13. The Court therefore dismisses the Government’s preliminary objection that this complaint was manifestly ill-founded. V. ALLEGED VIOLATION OF ARTICLE 8 AND ARTICLE 2 OF PROTOCOL NO. 1, ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION 188. Article 8, in so far as relevant, reads as follows: “1.", "Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... 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.” 189. Article 2 of Protocol No. 1 reads as follows: “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” 190.", "Article 14, in so far as relevant, reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground ...” 191. The applicant also complained under Article 8 about the State’s failure to protect her from sexual abuse, relying on her submissions under Article 3 and adding that the State’s margin of appreciation could not diminish its responsibility to protect her physical integrity. She submitted that the sexual abuse suffered by her caused her significant relationship, sexual and marital problems thereafter. The Government considered it unnecessary to consider separately the complaint under Article 8 and, alternatively, argued that that there had been no violation of that Article, relying on their submissions made under Article 3 and underlining the margin of appreciation accorded to the State under Article 8. 192.", "The Court notes that the complaint under Article 8 concerns the same facts and issues evoked under Article 3 and that the parties relied on essentially the same submissions. The case does not concern a particular and separate Article 8 issue, such as the specific home and family life matters to which the facts of the above-cited case of C.A.S. and C.S. v. Romania gave rise (§ 12). The impact of the abuse on the applicant’s later life can equally be a consequence of the Article 3 breach established above.", "The Court concludes that the complaint under Article 8 does not give rise to any issue separate to that examined already under Article 3 of the Convention (the above-cited cases of A. v. the United Kingdom, Z and Others v. the United Kingdom; and E. and Others v. the United Kingdom and, most recently, Valiuliene v. Lithuania, no. 33234/07, § 87, 26 March 2013). 193. As regards Article 2 of Protocol No. 1, the applicant argued that that Article was prominent in the Court’s mind when it found that the liability of the State could be engaged in relation to the conduct of a teacher in a private school.", "She also complained under Article 14 in conjunction with Article 8 and Article 2 of Protocol No. 1 to the Convention because the State had accepted responsibility and compensated those abused in a reformatory or industrial school but not those who had suffered such ill-treatment in National Schools. The Government rejected these complaints. They submitted, inter alia, that there had been no discriminatory difference in treatment because the reference groups were not analogous: on the one hand, a child in a reformatory and industrial school where the State was to a significant degree in loco parentis and, on the other, a day pupil in a National School otherwise living at home and in the community. Moreover, the suggestion that there was discrimination as regards compensation was artificial and academic when the applicant had in fact been compensated (CICT and the High Court award against LH).", "194. Having regard to the Court’s finding of a violation under Article 3 of the Convention and the reasoning leading to thereto, it considers that these complaints under Article 2 of Protocol No. 1 and under Article 14 of the Convention as described above, do not give rise to any issues separate to those examined already under Article 3 of the Convention. 195. The Court concludes that it is not necessary to examine separately the complaints under these Articles of the Convention.", "VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 196. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High 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 197.", "The applicant claimed 223,000 euros (EUR) in non-pecuniary damage: the High Court award of EUR 250,000 (general and aggravated damages) less the Criminal Injuries Compensation Tribunal (CICT) non-pecuniary award of EUR 27,000 and assuming that reimbursement of the CICT award would not be sought by the State. She referred to medical and psychiatric evidence before the High Court as to the impact on her of the sexual abuse by L.H. Having regard to the nature of the abuse, its duration and impact on her, she considered that the breach of Article 3 had to be considered as extremely serious. She also claimed EUR 5,104 in pecuniary loss, being the sum vouched by her before, and awarded by, the High Court as special damages. This award comprised past and future medical, travel and other expenses related to the sexual abuse suffered by her.", "The applicant accepted that the CICT award, as well as the money already recovered by her from L.H., amounted to partial reparation. 198. The Government argued that the applicant’s claims for pecuniary and non-pecuniary loss were not properly itemised or substantiated and they considered that there was no causal link between the violation established and any damage. The Government did not propose a sum for non-pecuniary damage but they challenged the applicant’s reliance, without more, on the High Court non-pecuniary damages award. That reliance was misplaced (as it was an award concerning L.H.’s actions and not the State) and insufficient (the High Court award was uncontested by L.H.).", "The applicant had obtained some payments to date, she had a range of enforcement mechanisms available to her against L.H. and the State was not responsible for L.H.’s finances. The Government also highlighted the CICT award funded by the State and noted that the applicant accepted the relevance of that award for any just satisfaction award. The Government similarly challenged the applicant’s reliance, as regards her pecuniary claim to this Court, on the High Court’s award of special damages. 2.", "The Court’s assessment 199. The Court reiterates that Article 41 empowers it to afford the injured party such satisfaction as appears to it to be appropriate. 200. If the Court finds a violation of an important Convention right which has led to significant pain and suffering, it may award a sum in non-pecuniary damages (see, for example, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 269, ECHR 2012).", "201. As regards pecuniary loss, there must be a clear causal connection between the damage claimed and the violation of the Convention established. A precise calculation of the sums necessary to make complete reparation (restitutio in integrum) may be prevented by the inherently uncertain character of the damage flowing from the violation but an award can be made: the question is the level of just satisfaction, in respect of both past and future pecuniary losses, which it is necessary to award, the matter to be determined by the Court at its discretion, having regard to what is equitable (see E. and Others v. the United Kingdom, no. 33218/96, §§ 120‑21, 26 November 2002). 202.", "The Court has taken note of the evidence accepted by the High Court as to the applicant’s past and future pecuniary losses (comprising mainly past and future medical and psychiatric treatment expenses) and of the sum of EUR 5,104 awarded in that respect. Moreover, having regard to the nature of the serious ill-treatment to which the applicant was subjected, the Court considers that she has suffered non-pecuniary damage which cannot be sufficiently compensated by the finding of a violation of the Convention. While there is a distinction to be made between the awards made domestically not concerning State liability and the present complaint focusing on State liability, the Court considers that any award under Article 41 should take account of the High Court award (EUR 305,104 in total) as well as the extent to which that award has been, and will be, paid by L.H. Account must also be taken of the CICT award paid to the applicant (EUR 53,962.24), assuming that it will not have to be reimbursed. Both awards had pecuniary and non-pecuniary elements.", "203. Having regard to the financial compensation received by the applicant to date and in light of the uncertainties about any future payments by L.H., the Court has decided to award a global figure for pecuniary and non-pecuniary damage. On an equitable basis therefore, the Court awards the sum of EUR 30,000 in total as regards pecuniary and non-pecuniary loss, plus any tax that may be chargeable. B. Costs and expenses 204.", "The applicant claimed EUR 355,039.38 as regards the costs and expenses of the domestic proceedings: she did not have legal aid and each party was required to pay their own costs and expenses. 205. The Government disputed this claim underlining, in particular, that the claim had not been properly itemised, detailed or vouched as required by the Court’s Practice Direction and case-law. They argued, inter alia, that the issues before this Court had already been dealt with by the High Court as early as March 2004 so that later legal expenses were not necessarily incurred. The Government accepted that the costs and expenses of the High Court action until March 2004 amounted to EUR 75,000.", "206. The applicant also claimed EUR 115,730.50 as regards the costs and expenses of the Convention proceedings. The Government accepted the vouched travel expenses for the hearing before the Grand Chamber (EUR 3,606.96) but otherwise considered this claim excessive also considering that it was neither properly vouched nor sufficiently detailed. 207. The Court recalls its established case-law to the effect that an applicant is entitled to the reimbursement of costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (for example, X and Others v. Austria [GC], no.", "19010/07, § 163, 19 February 2013). 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 (A, B and C v. Ireland [GC], no. 25579/05, § 281, ECHR 2010). 208. The Court notes that the Government accepted as reasonable the sum of EUR 75,000 as far as the High Court costs and expenses were concerned.", "It is also true that the Court has endorsed the applicant’s later appeal to the Supreme Court in response to the Government preliminary objections. However, significant parts of the billed costs and expenses, concerning the Supreme Court and the later Convention proceedings, are unsubstantiated, in particular, as regards the hours spent by the solicitors and barristers working on specific tasks as well as their hourly rates. 209. Having regard to the parties’ submissions and ruling on an equitable basis, the Court awards EUR 85,000 in total, plus any tax that may be chargeable, in respect of the costs and expenses of the domestic and Convention proceedings. C. Default interest 210.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Dismisses, (a) by eleven votes to six, the Government’s preliminary objections that the applicant failed to exhaust domestic remedies and failed to lodge the application within the six-month time-limit; (b) by twelve votes to five, the Government’s preliminary objection that the applicant had lost her victim status; 2. Joins to the merits, by fourteen votes to three, the Government’s preliminary objection that the complaints are manifestly ill-founded; 3. Holds, by eleven votes to six, that there has been a violation of the substantive aspect of Article 3 of the Convention as regards the State’s failure to fulfill its obligation to protect the applicant and, consequently, dismisses the Government’s objection that that complaint was manifestly ill-founded; 4.", "Holds, by eleven votes to six, that there has been a violation of Article 13 of the Convention taken in conjunction with the substantive aspect of Article 3 on account of the lack of an effective remedy as regards the State’s failure to fulfill its obligation to protect the applicant and, consequently, dismisses the Government’s objection that that complaint was manifestly ill-founded; 5. Holds, unanimously, that there has been no violation of the procedural aspect of Article 3 of the Convention; 6. Holds, unanimously, that it is not necessary to examine separately the complaints under Article 8 or under Article 2 of Protocol No. 1, whether alone or in conjunction with Article 14 of the Convention; 7. Holds, by eleven votes to six, (a) that the respondent State is to pay the applicant, within three months, the following amounts: (i) EUR 30,000 (thirty thousand euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage; and (ii) EUR 85,000 (eighty-five thousand euros), plus any tax that may be chargeable to the applicant, in respect of the costs and expenses of the domestic and Convention proceedings; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 8.", "Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 28 January 2014. Michael O’BoyleDean SpielmannDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Judge Ziemele; (b) joint partly dissenting opinion of Judges Zupančič, Gyulumyan, Kalaydjieva, De Gaetano and Wojtyczek; and (c) partly dissenting opinion of Judge Charleton. D.S.M.O’B. CONCURRING OPINION OF JUDGE ZIEMELE 1.", "I endorse the view of the majority in this case. My disagreement relates only to the reasoning, and more specifically to paragraph 143, which outlines the methodology used in analysing the facts and the submissions of the parties. This case raises the issue of the application of the Convention over time. Recently the Court has been increasingly confronted with this issue (see, for example, Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, ECHR 2009, and S.H.", "and Others v. Austria [GC], no. 57813/00, § 84, ECHR 2011 (in the latter case, see also the joint dissenting opinion of Judges Tulkens, Hirvelä, Lazarova Trajkovska and Tsotsoria); see also Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, ECHR 2013). It is indeed high time that the Court acknowledged the issue of time and took care to explain clearly its methodology as regards the application of the Convention over time. 2.", "The facts giving rise to the domestic proceedings and subsequently the proceedings before the European Court of Human Rights took place in 1973. The domestic proceedings began in 1998, and the applicant lodged a complaint with the European Court of Human Rights in 2009. In this context, the Government rather naturally argued that “[i]t was fundamental to assess the question of the State’s constructive knowledge without the benefit of hindsight: in 1973 awareness of the risk of child abuse was almost non-existent and standards could not be retrospectively imposed on the early 1970s on the basis of today’s increased knowledge and standards” (see paragraph 133 of the judgment). 3. The Court decides to deal with the issue of application of the Convention over time as follows: “The Court must, as the Government stressed, assess any related State responsibility from the point of view of facts and standards of 1973 and, notably, disregard the awareness in society today of the risk of sexual abuse of minors in an educational context ...” (see paragraph 143).", "It should be noted that there are two strands to the Government’s argument. Firstly, the Government say that knowledge and awareness of the issue of child abuse have grown considerably since that time. Secondly, they say that [legal] standards cannot be applied retroactively. In fact, both arguments are perfectly correct. For the Court, however, the task is to establish what the legal standards were in 1973.", "The Court indeed says as much. What the Court does not address is the commonly accepted evolution of the applicable standards. Nor does the Court explain why the evolution of standards should not be examined since there is a difference, as just suggested, between raised awareness and the evolution of legal standards. It is in this respect that I find paragraph 143 incomplete. 4.", "Furthermore, the subsequent arguments of the Court concerning Ireland’s obligations in 1973 do not sit very easily with the approach taken. For example, although the two International Human Rights Covenants to which the Court refers were adopted in 1966, Ireland signed them in 1973 and ratified them even later, in 1989 (see paragraph 147). Indeed, it could be said that the case-law referred to was also adopted subsequent to the events in this case (see paragraph 147). These difficulties are directly linked to the approach chosen by the majority in this case. 5.", "Before explaining what the approach should have been, a few preliminary clarifications are called for. Firstly, this is not a case in which the Court’s jurisdiction ratione temporis is at issue (see, conversely, Janowiec, cited above). Ireland had ratified the Convention by 1973 and thus Article 3 was applicable. It is also clear that the treatment to which the applicant was subjected while attending primary school was contrary to Article 3 at that time. The only disputed issue is whether or not Ireland was under an obligation to put in place mechanisms and safeguards that would have at least minimised the risk of child abuse in primary-education establishments at that time.", "On this point, the Irish Government’s argument is twofold. Firstly, they argue, there was an adequate mechanism in place. Secondly, it was a historical tradition in Ireland for primary schools to be run by the Catholic Church and there was nothing wrong with this system per se, and in any event the State could not be held responsible for the lack of knowledge of the risks that the system might entail. 6. I certainly agree with the majority that the basic principle of intertemporal law requires that the wrongfulness of an act be assessed in the light of the law applicable at the time the facts occurred.", "It is however true that the law is not static. It evolves. The International Law Commission (ILC), in its commentary on draft Article 13, noted the following with reference to the Advisory Opinion of the International Court of Justice (ICJ) in the Namibia case[1]: “One possible qualification [of the basic rule of intertemporal law] concerns the progressive interpretation of obligations ... But the intertemporal principle does not entail that treaty provisions are to be interpreted as if frozen in time. The evolutionary interpretation of treaty provisions is permissible in certain cases, but this has nothing to do with the principle that a State can only be held responsible for breach of an obligation which was in force for that State at the time of its conduct” (see ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001).", "7. In the ICJ case on Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), one of the questions was whether the Italian courts were justified under international law in denying immunity to Germany for the acts committed by its armed forces during the Second World War. The International Court of Justice decided that these acts fell outside its jurisdiction ratione temporis. However, with regard to the decisions of the Italian courts which were given much later and thus came within its jurisdiction ratione temporis, the ICJ stated as follows: “The Court must nevertheless inquire whether customary international law has developed to the point where a State is not entitled to immunity in the case of serious violations of human rights law or the law of armed conflict” (see Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), ICJ judgment of 3 February 2012, § 83, emphasis added ). 8.", "I have already pointed out that in 1973 L.H.’s behaviour was clearly contrary to Article 3 of the Convention for the reason that, in accordance with Article 1, Ireland was under an obligation to ensure that children in its territory were not subjected to ill-treatment contrary to Article 3. There was clearly a general obligation. When it comes to its detailed implementation, it is quite true that with time more knowledge is acquired as to how to tackle the problem of child abuse more effectively. The time factor is important as regards making improvements and filling the gaps. At the same time, there is nothing in the field of the rights of the child, as now regulated by the 1989 United Nations Convention on the Rights of the Child in particular, to suggest that a new or particular understanding of the vulnerability of children has come about in recent years.", "It is true that there have been some important clarifications, especially those developed within the framework of the Committee on the Rights of the Child, and to that extent it can be said that the law has been elaborated upon, but there was really no development of new rights or general obligations to implement those rights over the period concerned in the present case. The 1959 Declaration of the Rights of the Child stated as follows: “The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.” 9. At least since 1959 children have been identified as a group in need of special attention and the principle of the best interests of the child as a guiding light in developing mechanisms for the protection of children has been articulated (see more in paragraph 93 of the judgment). I think it would have been relevant for the purposes of the judgment to refer to post-1973 developments in international human rights law to demonstrate that the underlying principle has been maintained and has given rise to a detailed set of proposals as to how to ensure the rights of children.", "It is very clear that in itself the principle and the related obligation are not recent. The Court does not apply them retroactively. The law has evolved and has acquired more detail while the general obligation remains the same. The area of the protection of children from abuse matches perfectly the exception referred to by the ILC, and the ICJ Opinion in the Namibia case is the right analogy to follow. It should be recalled that South Africa argued in those proceedings that the Mandate system created under the auspices of the League of Nations did not impose an obligation to eventually grant independence to the colonies (see the Namibia case, cited above, § 50).", "The ICJ examined the nature of the Mandate system as adopted at the time of the League of Nations and disagreed with the South African interpretation. It further noted that “[e]vents subsequent to the adoption of the instruments in question should also be considered” (ibid., § 51). The ICJ’s ultimate statement on how to take developments in relevant legal concepts into consideration reads as follows: “All these considerations are germane to the Court’s evaluation of the present case. Mindful as it is of the primary necessity of interpreting an instrument in accordance with the intentions of the parties at the time of its conclusion, the Court is bound to take into account the fact that the concepts embodied in Article 22 of the Covenant – ‘the strenuous conditions of the modern world’ and ‘the well-being and development’ of the peoples concerned – were not static, but were by definition evolutionary, as also, therefore, was the concept of the ‘sacred trust’. The parties to the Covenant must consequently be deemed to have accepted them as such.", "That is why, viewing the institutions of 1919, the Court must take into consideration the changes which have occurred in the supervening half-century, and its interpretation cannot remain unaffected by the subsequent development of law, through the Charter of the United Nations and by way of customary law. Moreover, an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation. In the domain to which the present proceedings relate, the last fifty years, as indicated above, have brought important developments. These developments leave little doubt that the ultimate objective of the sacred trust was the self-determination and independence of the peoples concerned” (§ 53, emphasis added). 10.", "There is little doubt that the prohibition of ill-treatment was applicable to young children in the Contracting States at the time the Convention was adopted and in 1973. The nature of obligations is by definition an evolving concept, precisely in conjunction with the evolution of understanding and of means. In the domain of human rights, as in that of self-determination, important developments occurred before and since 1973. These developments should have been taken into consideration by the Court in interpreting the obligations under Article 3 in this case. A fully-fledged test of intertemporal law would have been appropriate in this judgment.", "11. Finally, the parties did not invoke any arguments relating to the principle that the Convention is a living instrument. In order to make my point clear, however, it is necessary to invoke this principle briefly. It is important to distinguish between the application of the Convention over time in situations where it is clear that the Convention obligation was applicable in the circumstances of the case, as in the case at hand, and the interpretation of the Convention Articles in a manner which brings within the scope of the right in issue new elements that were clearly not there at the time of the drafting of the Convention (see, for example, Demir and Baykara v. Turkey [GC], no. 34503/97, ECHR 2008).", "I do not exclude the possibility that there may at times be some confusion also in the Court’s case-law between these principles, and it is quite obvious that the Court needs to provide more clarity as to its choice of the applicable methodological principle when adjudicating the case before it. It is clear that in the case at hand we are not dealing with the principle of the Convention as a living instrument or with the retroactive application of the Convention. This is a case about the assessment of the State’s compliance with its obligations over time. JOINT PARTLY DISSENTING OPINION OF JUDGES ZUPANČIĆ, GYULUMYAN, KALAYDJIEVA, DE GAETANO AND WOJTYCZEK 1. The present case concerns the responsibilities of the State for the protection of children against sexual abuse committed by a teacher in the 1970s.", "Like our colleagues who voted for the majority judgment, we consider child sexual abuse to be a quintessential example of inhuman treatment proscribed by Article 3; we are also in agreement that States are under an obligation to undertake the necessary measures to protect children from such abuse. 2. Like the majority, we sympathise with the applicant’s suffering because of what she had to go through. She was subjected to the sexual assaults of a lay and married teacher (L.H., who was also the school principal) during music lessons held in his classroom from early to mid‑1973, at a time when she was nine years old. At that time neither she nor her parents were aware of the complaints of parents of other victims of sexual abuse (at the hands of the same teacher) raised before the manager of the school.", "Later evidence indicated that in September 1973 other parents brought to the applicant’s parents’ attention certain “difficulties” in connection with the said teacher, and that the parent of a child had complained to Ó. (the de facto manager) that L.H. had sexually abused her child in 1971. Following a meeting of parents chaired by Ó., L.H. went on sick leave.", "In September 1973 he resigned from his post (see paragraphs 14‑17 of the judgment). 3. It is an uncontested fact that neither the parents, the victims nor the manager of the school reported the above-mentioned facts to the police or to any public authority until 1995 – more than twenty years after the events. Nor did the applicant do so after attaining majority in 1985. The applicant reacted only in 1996 – when contacted by the police in the context of an investigation into the 1995 complaint of another former pupil of Dunderrow National School.", "In this context, it is important to underscore that if the applicant’s complaint concerning abuse by a private party had been lodged with the Court prior to 1995 and without having first been brought before a domestic authority, that complaint would have been declared inadmissible on account of the lapse of time and/or on account of the failure to exhaust domestic remedies (Article 35 of the Convention). 4. The Irish authorities reacted as soon as they became aware of the abuse. It has not been contested that at the time of the events Irish law envisaged criminal sanctions for the perpetrators of sexual abuse of children as well as compensatory remedies for the victims, and this regardless of the context in which the crime was perpetrated. Following the statements made to the police some twenty years after the events, L.H.", "was charged with 386 criminal offences, he pleaded guilty to twenty-one sample charges and was sentenced to imprisonment. In 1998 the applicant applied to the Criminal Injuries Compensation Tribunal. She eventually obtained 53,962.24 euros (EUR). In 2002 she accepted this sum and gave the standard undertaking to repay this sum to the Tribunal from any other award, from whatever source received, in relation to the same injury (see paragraph 21). The applicant also brought a civil action against L.H., the Minister for Education and Science, the Attorney General and the State of Ireland, and on 24 October 2006 obtained a default judgment against L.H.", "in the total sum of EUR 305,104. L.H.’s licence to teach was withdrawn by the Minister of Education under Rule 108 of the National School Rules of 1965. 5. There is nothing to indicate that these measures were not applicable or could not have been imposed at an earlier point in time. Had similar criminal or civil proceedings been undertaken in the 1970s or 1980s, the complaints lodged before this Court would have been declared inadmissible on the ground that the applicant no longer had victim status.", "6. We cannot emphasise enough the fact that the complaints of insufficient protection and insufficient prevention of abuse on the part of the State could be examined by this Court only as a result of the authorities’ prompt response to reports of abuse made more than twenty years after the events. It is, indeed, doubtful whether such a prompt and effective response would have been equally available in the legal systems of all States Parties to the Convention, and whether the lapse of time would not have prevented, through extinctive prescription, other domestic authorities from imposing the measures described above as a reaction to complaints. In our view these measures constituted sufficient protection for the applicant’s rights under Article 3 of the Convention. The fact that an appropriate and prompt reaction was provided in the case only after 1995 – despite the lapse of twenty years – cannot legitimately be turned into a nunc pro tunc instrument of analysis for the purposes of declaring admissible the complaints against the respondent State.", "These are our reasons for disagreeing with the majority on the question as to the admissibility of the complaints. 7. We also regret being unable to follow the majority in their analysis and conclusions as to the scope of the positive obligations of the State in the circumstances of the present case. These positive obligations have to be construed with due consideration to the different values and rights protected by the Convention. According to the Preamble to the Convention, fundamental freedoms are best maintained in an effective political democracy.", "The notion of a democratic society encompasses the idea of subsidiarity. A democratic society may flourish only in a State that respects the principle of subsidiarity and allows the different social actors to self‑regulate their activities. This applies also to the domain of education. Legislation pertaining to private education should respect the legitimate autonomy of private schools. Article 2 of Protocol No.", "1 guarantees the right of parents to ensure education and teaching in conformity with their own religious and philosophical convictions. It is clear that the democratic State has to respect the education choices of the parents as well as the parents’ primary responsibility for the development and well-being of their children. 8. The interpretation of the Convention and the understanding of the scope of State obligations that it imposes have evolved considerably since the Convention’s entry into force. This means that the relevant facts occurring in 1973 may not be legitimately examined in terms of standards attained subsequently.", "These facts should be assessed in the light of the Convention as understood at that time and in the context of international law as in force at that time. The same principle applies to State obligations. The scope of State obligations in 1973 should be assessed in the context of international law as is stood at that time. In this regard the majority attempts to demonstrate (in our view, and with all due respect, in a strained way) that a positive obligation to protect, and prevent the ill-treatment of, children at school through an appropriate framework of regulations encouraging complaints was clearly established under the Convention in 1973. There is, however, no relevant case-law which supports this view.", "The Case “relating to certain aspects of the laws on the use of languages in education in Belgium” ((merits), 23 July 1968, Series A. no 6) pertains to a completely different question and order of ideas, namely “the right to be educated in the national language or in one of the national languages, as the case may be”, and is not related to the right of children to protection against ill-treatment. All the other cases cited in the present judgment were determined many years after the abuse of the applicant in 1973. 9. We disagree with the retrospective application of the present-day understanding of positive obligations of the State to a situation obtaining about forty years ago. It is Kafkaesque to blame the Irish authorities for not complying at the time with requirements and standards developed gradually by the case-law of the Court only in subsequent decades.", "10. Being unable to cite relevant case-law from the pre-1973 period, the majority further refers to various international declarations and covenants (see paragraphs 91-96). A proper analysis of the instruments pertaining to children’s rights shows an acute deficit regarding the protection of children under international law until the entry into force of the 1989 United Nations Convention on the Rights of the Child. The declarations cited contain general principles of protection of children lacking specificity, and are of a non-binding nature. At that time States preferred non-binding instruments to treaties imposing legal obligations on them.", "Furthermore, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which impose firm legal obligations on States, were signed by Ireland on 1 October 1973 and ratified only in 1989. Therefore, none of the international instruments cited by the majority can be seen as relevant to the assessment of the liability of Ireland in the present case. 11. Even assuming that present-day standards established by the case‑law of the Court might be applicable to facts that occurred in 1973, we are not able to follow the majority as to the scope of the positive obligations of the State. In this regard the current case-law of this Court requires the enactment and effective enforcement of criminal legislation that penalises sexual abuse of minors by private parties as a positive obligation for adequate protection against treatment contrary to Article 3 committed by private parties (see, inter alia, X and Y v. the Netherlands, 26 March 1985, §§ 23-24, Series A no.", "91, and M.C. v. Bulgaria, no. 39272/98, § 153, ECHR 2003‑XII), as well as appropriate civil responsibility and compensation. It is not contested that Irish law envisaged such protection and that it was afforded as soon as the authorities were duly informed. 12.", "The majority, however, merges or rather confuses the examination of the responsibilities of State authorities under Article 3 of the Convention to protect against ill-treatment by private parties with a presumed responsibility arising under Article 2 of Protocol No. 1 to examine “the risk of ill-treatment in the context of education”, and comes to the conclusion that there was a specific obligation to prevent the risk of ill-treatment in the context of education (see paragraph 162). This extends the scope of these obligations under the Convention in such a way that they are no longer predictable. 13. In coming to this conclusion, the majority appears to base its factual analysis on several unjustified assumptions.", "(i) The first of these assumptions is that the applicant’s suffering was the result not of the unpredictable criminal conduct of a private individual, but of some inherent risk of such treatment arising in the context of education. Regrettably, child abuse of various kinds takes place both in a private and in a public context. While we agree that children must be under the constant and special protection of the State, we remain unconvinced that the risk of such abuse is necessarily inherent, or higher, in the context of education, or that such acts are necessarily more visible if committed (albeit secretly) in a school than if committed in a family context. (ii) The second unjustified assumption is based on a fact to which the majority appears to attribute special importance, namely that the respondent State had “ceded” its responsibility for the education of children in national schools to a private entity – the Catholic Church. We fail to see a causal link between this choice of the respondent State and the frequency of sexual abuse by teachers, or knowledge thereof, in State-managed schools as compared with schools managed by private entities.", "In the absence of complaints the authorities will remain equally unaware of this risk and/or of the failure to report such abuse. (iii) The third unjustified assumption on the basis of which our colleagues arrive at the conclusion that further specific positive obligations arose in the context of education is their view that “the State was aware” (see paragraph 162) of the said inherent risk in the context of education in 1973. This assumption is especially dangerous as it implies not only that the allegedly inherent risk was known to the authorities, but also that, having criminalised the acts at the relevant time, the authorities “ought to have had knowledge” of the risk notwithstanding the absence of complaints. This unjustified conclusion appears to have been reached by merging with hindsight a twenty-first century level of social awareness of child abuse with the results of reports on such abuse in closed institutions dating back to the 1930s, as well as with studies and analyses carried out in the 1980s and 1990s. We find it necessary to distinguish the information available to the national authorities in 1973 from what was available to Irish society after the mid-1980s as a result of ex post facto studies of child sexual abuse in Ireland.", "The Carrigan Report of 1931 (see paragraphs 69-72) and the Cussen and Kennedy Reports (see paragraph 74) appear to have been the only sources of public information existing and available in 1973. They concerned primarily the abuse of children deprived of parental care and control in closed institutions – a situation manifestly and fundamentally different from the circumstances of the present case (albeit equally repugnant and regrettably still valid for many parts of the world). (iv) It was only “[f]ollowing public disclosures and controversies in the late 1980s and early 1990s” (see paragraph 75) that on 11 May 1999 the Prime Minister of Ireland issued a statement of “sincere and long overdue apology to the victims of childhood abuse for [the] collective failure to intervene, to detect their pain, to come to their rescue”. A closer look at the results of the subsequently commissioned inquiries shows that these are not necessarily relevant to the circumstances of the present case, which concerns acts committed by a lay teacher in an open school – a matter on which the reports cited do not shed much light. However, these reports show that “[w]hile the religious authorities ... [minimised] the risk of public disclosure [in the closed institutions, that is, in reformatory and industrial schools] ... they had reported complaints of sexual abuse of pupils by lay persons to the police” (see paragraph 78).", "We cannot see why the same could not be validly expected in regard to the open national schools as a matter of principle – in contrast to the findings of the majority that the “ceding” of State responsibility for education was linked to the failure of the manager of Dunderrow School. In this regard the subsequent reports cited seem only to confirm a high probability of reporting on lay perpetrators. The reports also show that “[t]he police had been quite vigorous in their prosecution of paedophiles but the fact that most sexual crimes were not actually reported suggested that such crime was a serious problem throughout the twentieth century in Ireland ... the criminal-court archives demonstrated a ‘consistently high level of sexual crime directed against young boys and girls’”, and that “[w]hile most of those cases were not recorded in the media ... the police had extensive contemporaneous knowledge of the existence of such crimes” (see paragraph 82). In our understanding this only confirms that, when made, complaints and the reporting of such acts were followed by appropriate measures. The fact that one of these reports also referred to a particular instance of failure to react to complaints in the case of a lay teacher (described as “a serial sexual and physical abuser” at paragraph 79) simply goes to prove the rule, namely that when reports were made to the State authorities, these always reacted promptly and appropriately.", "(v) Our conclusion, therefore, is that it has not been shown that Irish society, or the Irish authorities, were aware or should have been aware of some inherent risk of child abuse in (the open) national schools in the mid‑1970s. Moreover, to our best knowledge, no social studies show that this risk is higher in schools than anywhere else (other than closed institutions); and nothing has been submitted to indicate a difference in risk between publicly managed and privately managed (open) schools. We regret that in this regard the majority failed to give appropriate consideration to an expert’s opinion (see paragraph 83) that “prior to the mid-1980s, there was ‘little professional or adult sensitisation either to the word or to the possibility of abuse’ and that it was ‘essential to avoid the trap and potential excesses’ of judging this period by today’s standards”. (vi) These unjustified assumptions resulted in the retrospective expansion of the positive obligations of States, imposing standards far beyond those existing not only in 1973 but also today. 14.", "In Osman v. the United Kingdom (28 October 1998, Reports of Judgments and Decisions 1998‑VIII) the Court required that “it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk” (see Osman, § 116, emphasis added). The Court held that it was sufficient for an applicant to show that the authorities had not done all that could reasonably be expected of them to avoid a real and immediate risk to life of which they had or ought to have had knowledge. Ever since Osman the Court has stated that a positive obligation to prevent unnecessary loss of life arises only in the particular circumstances of an imminent and known risk to life. More recently, and in the context of Article 3, the Court has required that a State take all steps that can reasonably be expected “to prevent real and immediate risks” where vulnerable persons are concerned (see, for example, in relation to prisoners, D.F. v. Latvia, no.", "11160/07, § 84, 29 October 2013, and other cases referred to in that judgment). 15. In our view the majority went far beyond the principles established in Osman (cited above) and later judgments concerning the limited positive obligations of States to protect persons against unpredictable human conduct. The majority judgment imposes a positive obligation of constant and retrospective vigilance with regard to assumed inherent risks arising out of unpredictable human conduct “in an educational context”, which in our view amounts to imposing (to use the Court’s words in Osman) “an impossible and disproportionate burden”. 16.", "In an effort to bridge the gap between the extent to which it was shown that the authorities “knew” of the allegedly inherent general risk and the standards of Osman (cited above) concerning established knowledge of an imminent risk in respect of specific individuals, the majority came to the conclusion that the authorities were not informed as a result of the system, which “discouraged” complaints and failed to provide for a procedure “prompting a child or parent to complain about ill-treatment directly to a State authority” (see paragraph 163), while at the same time the way in which schools were managed made inadequate provision for appropriate participation by parents. 17. The essence of the first argument concerns the victims’ parents’ failure to complain to the relevant State authorities and thus their failure to avail themselves of the existing remedies. In this regard the finding converts their failure into a reproach wrongly addressed to the authorities. We are not aware of any earlier case in which the authorities were blamed for the victims’ failure to complain.", "This approach defeats the admissibility requirement to exhaust domestic remedies. Moreover, in setting retrospectively a positive obligation to “encourage complaints” in any context of governance, the reasoning of the majority seems to open the gates for any person to claim to have been a victim of a failure to encourage his or her complaints at any moment from the ratification of the Convention to the present day. In the instant case parents had noticed the abuse of their children. In addition to the possibility of informing the police, parents (like managers) could also complain directly to the inspectors, or to the Department, which provided them with additional instruments of protection that complemented the protection offered by the criminal legislation. The facts show clearly that in response to the acts of L.H.", "a meeting of parents chaired by Ó. took place, following which L.H. went on sick leave. It is a different question whether these parents and/or the applicant’s parents wished, or demonstrated that they had requested, any further measures to be taken at the time. We do not wish to be seen as cynical and we can understand their hesitation to do so. What we wish to emphasise in any event is that there is nothing to support the assumption that these parents would have complained more vigorously if “encouraged” by further regulations and/or by the creation of a special body responsible for examining complaints about teachers.", "The reality remains that victims of child sex abuse understandably feel embarrassed to complain, while their parents more frequently prefer to withhold complaints so as to protect their children from exposure to the further distress of inevitable inquiries. Regrettably, silence constitutes the major difficulty in investigating these cases. The respondent State cannot be held responsible for the parents’ silence in 1973. 18. We are not convinced that if such allegations of child abuse had been brought by the parents and examined by either the Department of Education or the police in 1971 – when the first instance of abuse was noted by a parent – this would not have resulted in the appropriate and sufficient measures envisaged by the law at the time.", "In this regard our answer to the question posed in paragraph 152 – whether the State’s 1973 framework of laws, and notably its mechanisms of detection and reporting, provided effective protection for children attending a national school against the risk of sexual abuse – differs from that of the majority. We are of the view that not only were appropriate measures envisaged by the national law at the time, they were also imposed ex officio as soon as the authorities became aware of the facts. In our view, no further positive obligations arise in the present case above and beyond those that existed in 1973 and were promptly fulfilled in the 1990s. 19. We are further concerned that the reasoning of the majority is founded on ideological premises that are difficult to accept.", "The majority states that “when relinquishing control of the education of the vast majority of young children to non-State actors, the State should also have been aware ... of potential risks to their safety if there was no appropriate framework of protection” (see paragraph 162). What is advocated as a solution to the problem is the creation of mechanisms for the detection and reporting of any ill‑treatment by and to a State-controlled body. This part of the reasoning is based on the implicit assumption that educational systems with a strong State role or State participation offer better protection to children. There is no social-science evidence to support this belief. In particular, there is no evidence that States which provide for an “intensive” surveillance of both public and private schools obtain better results in eradicating paedophilia.", "There is nothing to support the assumptions that the applicant would not have become a victim of sexual abuse had she been a pupil in a school placed under stricter State surveillance or that the acts of L.H. would have been reported if the school had been placed under such surveillance. The approach adopted by the majority is in contradiction with the idea of a democratic society flourishing within the legal framework of subsidiarity. It calls unnecessarily into question the Irish model of education, which is deeply rooted in the nation’s history. In this regard the majority does not hesitate to venture into the field of relatively detailed questions of internal social organisation and State administration in the field of education, areas which fall within the exclusive domestic competence of States and should therefore be left to the appreciation of the High Contracting Parties.", "20. In conclusion, we discern no causal link between the circumstances of the present case and the fact that the school, in which the applicant was abused by a lay teacher, was managed by the Catholic Church. It cannot be said that Ireland failed to honour the positive obligations imposed on it by the Convention. We regret to note that the Court, established to ensure the protection of human rights and fundamental freedoms, promotes as a remedy for rights violations a model of the State which restricts the scope of freedom and individual responsibility. 21.", "Judge Zupančič voted for a finding of inadmissibility of the present application. In the proceedings before the Chamber (and before relinquishment) he voted in favour of admissibility. He changed his position for the reasons explained in paragraphs 2 to 6 above. PARTLY DISSENTING OPINION OF JUDGE CHARLETON 1. A dissent from the majority opinion is necessitated on three grounds: firstly, the approach of the majority to Article 35 of the Convention which requires the exhaustion of domestic remedies; secondly, the finding of the Court that Ireland is responsible under Article 3 of the Convention for subjecting the applicant to torture or to inhuman or degrading treatment or punishment; and, finally, on the finding of the Court that the applicant was left by Ireland without an effective remedy under Article 13 of the Convention.", "2. The facts and the analysis of Irish law are as stated in the majority judgment. In applying that analysis, the majority opinion is dissented from. In what follows, particular reliance is placed on the factors that: the applicant was abused while a minor attending a day school and in the legal custody of her parents; she was abused by L.H., a married head teacher in that day school; a report in 1971 to a Roman Catholic priest acting in place of the manager of the school was not reported by him or the parent complaining to the police or to the Department of Education; the discovery in 1973 by parents of children attending the school of the abuse of multiple victims led those parents solely to insist that the head teacher L.H. leave the school; neither the parents nor the school manager reported the crimes thus uncovered to the police or to the Department of Education; there was no inhibition in Irish law or in administrative procedure against such a report; the abuse of the applicant and the other victims was a serious crime in Irish law (sexual assault or indecent assault on a person under 15 years of age); when one of the victims of these crimes reported the abuse to the police from 1995 on, the police immediately initiated a thorough investigation, uncovering the abuse of the applicant, and commenced appropriate prosecutions; the head teacher L.H.", "was swiftly brought before the courts and was convicted of a representative sample of his crimes; in pursuing Ireland in respect of civil liability, the applicant chose to allege negligence and vicarious liability, but on those claims not succeeding before the court of trial (High Court) her legal representatives chose only to appeal the negative vicarious liability finding to the final appeal court (Supreme Court); there thus was a failure to exhaust domestic remedies. The applicant was the victim of L.H. She was subjected to a hideous experience that has been a burden over decades. She could have done nothing to prevent what occurred. L.H.", "subjected the applicant to torture. Here the issue is whether Ireland breached the Convention, essentially by not finding some means to prevent that abuse. Like any legal analysis, this depends upon the application of the conditions of responsibility to the precise facts. In 2014, awareness of paedophilia suggests that children be informed against unwanted touching and thus empowered against predators like L.H. In 1973, no one would have suspected that a senior head teacher could be a source of sexual violence to his child pupils.", "Without proof that Ireland in the 1970s should have taken the precautions that bitter experience and decades of official reports now demonstrate is appropriate, the case that Ireland failed in human rights obligations is not made out. Article 35 of the Convention 3. The availability of the transcript of the domestic proceedings only after the admissibility decision necessitates a reconsideration of this issue. Article 35 of the Convention provides: “The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.” 4. This is a claim of negligence against Ireland.", "That this is the claim now being made is referenced clearly by the majority in paragraph 123: “The applicant’s core complaint was that the State had failed, in violation of its positive obligation under Article 3, to put in place and adequate framework of protection of children from sexual abuse, the risk of which the State knew or ought to have known and which framework would have countered the non-State management of National Schools.” 5. The majority judgment, at paragraph 162, references the claim under Article 3 as being one of failure to put in place in schools “effective mechanisms for the detection and reporting of any ill-treatment by and to a State-controlled body”. This is regarded as one which might have been expected to avoid, or at least minimise the risk or damage suffered (referencing E. and Others v. the United Kingdom, no. 33218/96, 26 November 2002). That claim is for a civil finding to be made in negligence against Ireland.", "That claim in negligence is the same claim which was dismissed in the High Court for no evidence. That ruling was not appealed to the Supreme Court. In the majority judgment, at paragraphs 69 to 90, reference is made to evidence that was presented in argument before this Court and which was never referenced before the domestic tribunal. The Carrigan Report of 1931 concerned child prostitution. There is no connection between that issue and the control of teachers in ordinary primary schools.", "Even if there were such, that issue was required by Article 35 to be debated as to its impact before a domestic tribunal. It was not. The Ryan Report of May 2009 is after the High Court judgment of 20 January 2006 dismissing the negligence claim for no evidence. Yet, this report is referenced in the majority opinion as evidence of Ireland’s failure to protect children. Such a case, if brought by one of the inmates of such an industrial school or a reformatory school would be completely different factually to this application.", "The Ryan Report of 2009 concerned children who were through being brought before the District Court, including for such minor infractions as not attending school, or through parental poverty, sent to industrial schools or reformatory schools. The context is entirely different. Those children were isolated from parental intervention. The resonance in the majority judgment is that these places of incarceration were somehow equivalent to boarding schools. There is no evidence that in 1973, the teachers in day schools might be anticipated to behave in a sexually abusive way against their pupils.", "Further, even were such a connection demonstrated, the proper place for debate as to the impact of such evidence is before the domestic tribunal. There was no discussion of the impact of this report before the domestic tribunal. Reference is also made to reports of sexual abuse of children by Catholic clerics, almost always outside any kind of educational setting, in the Ferns Report of 2005 and the Murphy Report of 2009. How are these relevant? The abuser in this instance was LH, a married school head teacher and not a celibate cleric.", "The relevance of such reports might, perhaps, be debated. But is that not a matter for the domestic forum of trial? Any possible reference to the need for a heightened State of awareness among school inspectors cannot be debated before this court under Article 35 of the Convention unless that case has been made, in this case in negligence, before a domestic tribunal. 6. This is not a question of an applicant legitimately choosing one domestic remedy over another where the choice of that remedy addresses the essential grievance; as in Odièvre v. France [GC],no.", "42326/98, § 22, ECHR 2003‑III, referenced at paragraph 108-109 of the majority judgment. It is not a question of choosing, as the majority say at paragraph 111, “one feasible domestic remedy over another” or of pursuing “one feasible appeal (vicarious liability) over another (a claim in negligence and or a constitutional tort).” Furthermore, the majority judgment conflates the concept of vicarious liability with that of liability in negligence in ruling at paragraph 110 “that the applicant had the right, consistently with Article 34, to pursue the vicarious liability action with a view to addressing her grievance against the State without being required, when the route reasonably chosen proved unsuccessful, to exhaust another remedy with essentially the same objective.” This is incorrect in law. Two points need to be made. 7. Firstly, the prior decisions of the Court underline that a case cannot be made before the Court without full debate before a domestic tribunal and any relevant appeals.", "This must be correct as it accords with the wording of Article 35 of the Convention. In Selmouni v. France ([GC], no. 25803/94, ECHR 1999‑V), paragraph 74 illustrates: “The Court points out that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions ... Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. 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 ...", "Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law.” 8. This principle is referenced in later cases (see particularly, D v. Ireland, no. 26499/02, (dec.), 27 June 2006). The authorities in Ireland have not had any opportunity to consider whether the evidence uncovered in official investigations about child sexual abuse in other contexts - abuse of children while in State confinement (Ryan report of May 2009) and abuse by celibate Roman Catholic clerics (Ferns report of 2005 not referenced in evidence before the High Court and Murphy report of 2009) - established liability. It is not in accordance with established practice that novel evidence which was not referenced before a domestic tribunal is introduced before the Court with a view to establishing a case based on negligence which the applicant pleaded apart from such reports before the High Court, lost and did not appeal to the Supreme Court.", "Further, it must be noted that those reports were not introduced in evidence at the trial; many of them being dated subsequently (Ryan report and Murphy report, both of 2009). Professor Ferguson was consulted by the applicant prior to the domestic proceedings and furnished a report dated April 2003. In that report he advised the applicant that he was not convinced that an argument that preventative strategies should have been in place at the time the applicant was abused would succeed in terms of proof of her case. This opinion was given in the context of the sociological and historical context of the 1970s. As noted at Volume 5 Chapter 8 of the Ryan Report, referencing Rollinson – Residential Child Care in England, 1948 – 1975: A History and Report, “Prior to the mid-1980s there was little professional or adult sensitisation either to the word or to the possibility of abuse (Corby et al, 2001).” The majority reference this view by dismissing its relevance.", "Why is it not relevant? Surely the answer is that if it is relevant, the place to consider such evidence as advancing or undermining the case is before the domestic tribunal. As to the majority referencing statistics on prosecutions for the sexual abuse of children, it must be remembered that Ireland was aware that the crime of child abuse could occur; otherwise, the criminalisation measures that provided for imprisonment would not be in place. What was unexpected was the abuse of children by principal teacher in a local day school. No one expected that.", "Contrary to the majority view, the statistics cited show an active criminal justice system. That criminal justice system dealt effectively with the case of the victims of LH once a report was made to the police from 1995 on. Furthermore, if a case of negligence was to be made, then the school manager or the school board would have to answer for a lack of action in respect of the 1971 complaint, as Professor Ferguson advised. They were not joined in the proceedings; see below § 12 of this opinion. 9.", "Fundamentally, in dissenting on this point, it needs to be pointed out that the law which binds the Court through Article 35 has been elided in favour of the Court now being asked to decide an issue of negligence which was abandoned by the applicant. On advice, the applicant appealed only on vicarious responsibility issue to the Supreme Court. The Court should not take on the task of analysing facts which could have been presented before domestic tribunals. Every government has the entitlement to debate such evidence before the domestic forums of justice. That debate would necessarily have been through the examination of witnesses and the scrutiny of any reports on which they founded opinions.", "That entitlement is central to Article 35. It has been by-passed. 10. Secondly, the majority statement in paragraphs 110 to 113, does not distinguish properly the nature of vicarious liability from a claim of failure to foresee and take appropriate precautions against abuse. These are not the same.", "Only vicarious liability was debated before the Supreme Court on appeal. That concept may be illustrated. An employee accidentally injures a visitor to the employer’s premises by the employee doing a negligent action within the scope of employment. The relationship of employer-employee, together with the task through which the damage occurred being mandated by that employment, establishes the resultant liability of the employer to pay damages. This is so even though the employer warned against such conduct and trained employees in order to prevent its occurrence.", "That establishes vicarious responsibility: a wrong by an employee and the necessary relationship of responsibility within the scope of employment makes an employer liable. On the other hand, a failure to engage in appropriate training when the employer knew or ought reasonably to have known that the risk of such an accident existed is negligence. Negligence liability depends on proof of a foreseeable risk of harm and a failure to take reasonable measures in prevention. In negligence, the defendant is liable because the defendant did not take care or was at fault. In vicarious liability, the employer as defendant is liable even though that employer defendant did take care and so was not at fault but the employee of that defendant was at fault.", "These heads of liability, in negligence and in vicarious responsibility, are very different. They are not, to paraphrase the words of the Court in Odièvre v. France (§ 22 cited above and referenced at paragraph 108 of the majority judgment) remedies which are essentially the same. What is essentially the same about a defendant being liable for that defendant’s own failure to take appropriate care (the tort of negligence abandoned after the High Court ruling of January 2005 and not appealed to the Supreme Court) and a defendant being liable despite carefully training employees but who becomes liable because of the employment relationship and because the wrong of the employee is within the scope of the employment relationship (the attribution of vicarious responsibility for the wrong of another)? The vicarious liability claim was argued fully before the relevant domestic tribunals in Ireland; it was claimed before the High Court and appealed when it did not succeed to the Supreme Court. The negligence claim was abandoned once the High Court ruled against it.", "It does not accord with Article 35 to now revive and argue this claim afresh. 11. Finally, if the applicant’s legal representatives had decided to pursue the Catholic hierarchy for the failure of the school manager to report the incident of 1971, then section 78 of the Courts of Justice Act 1936 allowed the joinder of such parties without a penalty in costs. This provides: “Where, in a civil proceeding in any court, there are two or more defendants and the plaintiff succeeds against one or more of the defendants and fails against the others or other of the defendants, it shall be lawful for the Court, if having regard to all the circumstances it thinks proper so to do, to order that the defendant or defendants against whom the plaintiff has succeeded shall (in addition to the plaintiff’s own costs) pay to the plaintiff by way of recoupment the costs which the plaintiff is liable to pay and pays to the defendant or defendants against whom he has failed.” Thus another domestic remedy was left aside. Article 3 of the Convention 12.", "Article 3 of the Convention provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 13. 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 this Convention.” 14. To find torture or inhuman or degrading treatment regard must be had to all of the circumstances, including “the duration of the treatment, its physical and mental effects” and where relevant “the sex, age and state of health of the victim” (see Kafkaris v. Cyprus [GC], no. 21906/04, ECHR 2008). Because of its gravely invasive nature and consequent on the deep wounds that it inflicts on the psyche, sexual violence is indisputably torture within the meaning of Article 3.", "The experience of the applicant was dreadful; the issue is the liability of Ireland for that appalling ill-treatment. 15. It is not disputed that there is a positive obligation on States to ensure that those within their jurisdiction are freed from torture or inhuman or degrading treatment (see Moldovan and Others v. Romania (no. 2), nos. 41138/98 and 64320/01, ECHR 2005‑VII).", "The prohibition in Article 3 is absolute (see Saadi v. Italy [GC], no. 37201/06, ECHR 2008). Further, positive obligations must be assumed by States to place torture or inhuman or degrading treatment outside the sphere of lawful conduct. States cannot abide by Article 3 through passing empty laws securing that right merely on paper. Nor may States pursue administrative measures that have the appearance of advancing that right while not empowering or, similarly, through dis-empowering, the national authorities from taking potent measures against torture or inhuman or degrading treatment or punishment.", "16. Two related principles might usefully now be reaffirmed. Firstly, Article 3 protects against conduct at a minimum level of seriousness (Ireland v. the United Kingdom, 18 January 1978, Series A no. 25). The abuse of the applicant undoubtedly meets that standard.", "Secondly, however, the terms of Article 3 make it clear that the prohibition is against subjecting anyone over whom a State has authority to torture or inhuman or degrading treatment. The scope of this Article, correctly construed, engages both serious conduct as to the action against the victim and a requirement that for a State to be found by the Court to infringe Article 3, it must have responsibility for subjecting someone within its jurisdiction to that conduct. To make a finding under Article 3 against a State is thus a most serious matter for the Court. This remains the position in law notwithstanding the development of case-law. Earlier decisions of the Court were to the effect that a finding that a State had subjected a person within their jurisdiction to torture should not be made unless proven beyond reasonable doubt (see Ireland v. United Kingdom, cited above).", "Even still, the present jurisprudence of the Court affirms that there must be proof of the dual nature of an Article 3 violation: conduct of the level of gravity required for each of the separate tests of torture, of inhuman or of degrading treatment is established; and that the respondent State bears culpability for subjecting the applicant to that breach. In Nachova and Others v. Bulgaria ([GC], nos. 43577/98 and 43579/98, ECHR 2005‑VII) the Court declared: “147. ... 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. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights ...” 17. Extensions beyond the scope of the Convention as to when a State subjects a person to torture cannot be made without running the risk that the integrity of the prohibition in its absolute nature will be undermined, thereby replacing legal certainty with the less satisfactory standard that what may merely be argued actually represents the law. Since it is agreed that the actions of L.H., the school head teacher, infringed Article 3 by what he did to the applicant no further analysis is necessary on that issue. It is the finding that Ireland subjected the applicant to torture that is at issue.", "This finding is unsupportable on a plain reading of the facts. It is also inconsistent with the established jurisprudence of the Court. 18. The requirement of a close connection between a State and the wrong prohibited by Article 3, together with the culpability in moral terms that a finding of a breach of Article 3 intrinsically engages, demands that the Court should not retreat from these principles. In particular, common carelessness is not a sufficient basis for an Article 3 finding; unless that want of care is shown to be morally culpable in the context of State inaction.", "In particular, the negligence standard on its own cannot, without culpable moral wrong on behalf of a State, amount to subjecting a person to torture or inhuman or degrading treatment. No sustainable evidence of negligence by Ireland was produced by the applicant before the High Court in Ireland and the dismissal by that court on the basis of no evidence was not appealed by the applicant to the Supreme Court. 19. No one in 1971 to 1973 then anticipated that a head teacher in a primary school could be a serial paedophile. It is also accepted by the majority that the Department of Education knew nothing about the predation on school children by their teacher L.H.", "It is further accepted in the agreed facts that the police were not informed once the crimes had been reported to parents. For whatever reason, the person representing the school manager, namely Father Ó., did not pass on knowledge of any crime either in 1971 or 1973 to any official authority of Ireland and nor did the parents of the twenty-one child victims. Instead, the board of the school – representatives of the local community – met in 1973 in consequence of a general parental decision not to allow children to attend the school. There is no information as to how long this lasted but, by clear inference from the evidence, the board presented L.H. with a “resign or be sacked” situation in consequence of which he went elsewhere, apparently with no stigma.", "If there is fault here, and no comment is made, it is not the fault of the Irish State. 20. There was no failure to enact legislation. The reference by the majority to X and Y v. the Netherlands (26 March 1985, Series A no. 91) at paragraph 144 on the lack of legislation criminalising sexual advances to a mentally handicapped adolescent, contrasts the availability of genuine prohibitory remedies in Ireland; sexual touching of a minor was then and is now a crime in Ireland and consent was rightly deemed irrelevant to liability (see the analysis of Irish law at paragraphs 63-65 of the majority judgment).", "Article 3 engages positive obligations. States must adopt legislation or administrative measures that, considered as a whole, are an effective deterrent against torture or inhuman or degrading treatment or punishment: see A. v. the United Kingdom (23 September 1998, Reports 1998‑VI) on the burden of proof in assault on a child by way of domestic chastisement, and Opuz v. Turkey (no. 33401/02, ECHR 2009) on complaints to domestic violence responses being manifestly inadequate. Article 3 thus requires that States put in place effective measures of investigation that are thorough and expedient and independent, and that are thus capable of leading to prosecution in the case of violation by domestic or State actors (see Mikheyev v. Russia, no. 77617/01, 26 January 2006, and Akkoç v. Turkey, nos.", "22947/93 and 22948/93, ECHR 2000‑X). As the Court said in Veznedaroğlu v. Turkey (no. 32357/96, 11 April 2000) at paragraph 32: “... where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to ‘secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention’, requires by implication that there should be an effective official investigation capable of leading to the identification and punishment of those responsible ... If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity ...” 21. In Ireland, the Criminal Law Amendment Act 1935 prohibited sexual intercourse with a girl under 15 and further negatived any apparent consent to sexual assault, thus rendering a victim incapable in law of ostensibly agreeing to any form of sexual action.", "All such acts were classified as indecent assaults, and later renamed more appropriately as sexual assaults: crimes in which a victim could not be criminally complicit. There is a complete absence of evidence that this law was an empty piece of hypocrisy. Its usefulness is demonstrated by the vigorous investigation by police authorities starting in 1995 immediately a criminal complaint was made against L.H., and by his conviction and imprisonment three years later. What happened in 1995 would most likely have happened in 1971. Thus the horrible experience of this victim in 1973 would have been prevented.", "Further, even the reports cited by the majority, including Carrigan and Ryan, reference the enthusiasm of the police authorities in Ireland for such forms of prosecution. There is no clearer indication that an action is prohibited by a State, moreover, than the declaration that said action is a crime. If the Irish police and administrative authorities are not engaged, counsels of perfection in retrospect are not to replace the fundamental requirements that a finding under Article 3 is only to be made in circumstances of grave moral failure by a State. That is absent here. The failing that the majority judgment purport to identify here under Article 3 cannot be regarded as compatible with a legislative failure, such as occurred in the above-cited case of X and Y v. the Netherlands (§§ 21-27) where there was an absence of legislation prohibiting the sexual exploitation of mentally handicapped adolescents.", "As to civil protection, any form of unwanted touching in Ireland is a civil wrong by law; it is the tort of assault. This is demonstrated as effective on the evidence by the award of damages in favour of the applicant against L.H. 22. In the majority judgment, the allegation is made that such rules as governed Ireland’s relationship with national schools did not require parents to complain to the police or to seek redress from any other body except the school manager (see paragraphs 163-65). The majority judgment, at paragraphs 57 to 62, correctly quotes these rules and then at paragraph 168 makes the claim that the rules “directed away” complaints to a non-State actor, namely the school manager.", "No case can be made that the relevant rules discouraged parents from making complaints to the police and to another official authority. It is inappropriate to quote a rule which suggests that complaints about a teacher should initially be made to the school manager as an inhibition against a criminal complaint to police. Every school in every European country must have a mechanism for dealing with complaints about a teacher in his or her capacity as a teacher. What, considered in any common-sense way, are such rules about? Parents complain about teachers: the teacher is not good at a particular subject, the teacher does not turn up on time or at all, the teacher has a personal problem which interferes with his or her teaching.", "This has nothing to do with directing criminal complaints of sexual abuse away from the police. Any such rule does not operate to divert a complaint that a teacher committed a crime against a child. Could anyone reasonably construe such a rule in this way? The matter was not even debated before the national trial court. This is not surprising at all.", "This ostensible view of the majority could not be a reference to Rule 15 of the 1965 Rules which provides for the manager to govern the school. That means what it says: governing a school does not permit or encourage any breach of the criminal law; in every legal system a crime is a breach of the fundamental rules of society, not a problem within education. Nor could Rule 121 be relevant to the majority judgment in that it requires teachers to “act in a spirit of obedience to the law”. That rule further demands “strict attention to the moral and general conduct of pupils” and for teachers to take “reasonable precautions to ensure [their] safety”. In so far as it may be said that teachers were obliged to “carry out the lawful instructions” of the school manager, there was no instruction not to report a crime to anyone.", "The text of the relevant rules indicates no such situation of discouragement or diversion or suppression of criminal complaints. Further, any person would draw the obvious distinction between a complaint about a teacher as a teacher, thus perhaps engaging the rules, and a complaint that a teacher was a serial sexual abuser of children and thus a criminal, thereby engaging the criminal law. The Guidance Note of 6 May 1970 of the Department of Education outlined a practice to be followed in respect of complaints against teachers. There are many complaints about teachers, often totally unjustified: incompetence, absence, indolence, bullying, drinking. Every country has a procedure for dealing with such justifiable or unjustifiable complaints in the sphere of education.", "Ireland has this too, unsurprisingly, and Ireland also has a criminal law where the complaint to be made is of sexual violence. Nothing in that procedure obliged or directed or encouraged parents whose children were sexually abused [to refrain] from going to the police. Before dissenting, the transcript of the domestic proceedings was obtained and carefully considered. In the evidence at trial in the High Court of Ireland, neither the victims of L.H. who gave evidence nor the parent who complained in 1971 to the cleric acting in place of the school manager referenced the Guidance Note, or any other rule, as [constituting] a diversion, a “directing away” or a discouragement [with regard to making] a complaint to the police.", "In fact, the issue was not even discussed. Article 35 is, similarly, relevant here. There is no suggestion or hint that this Guidance Note was referenced by anyone in relation to the complaint to the manager in 1971 and there is no reference that it in any way directed the parents who became aware of the scale of the abuse in 1973 away from the police. Nor is there any evidence whatsoever that the parents were impeded in any way in making a complaint. The matter simply never came up at trial.", "The question was not put. 23. The majority judgment fails to complain of an absence of rules requiring the reporting of serious sexual crime. Such a development of mandatory reporting is a matter of serious debate (see the discussion by Simon O’Leary in “A Privilege for Psychotherapy? Parts 1 and 2” ([2007] Bar Reviews 75 and 76).", "But it can be wondered: is this the underlying but tacit reasoning of the majority judgment? The setting of appropriate rules requiring reporting may now be thought necessary in some situations in order to prevent and detect the sexual abuse of children; but that is a matter in respect of which the majority offer no view and no decided case to date has established liability for an Article 3 violation on the basis of the absence of such a rule. The setting of any such rule would require careful evaluation as to its scope and the circumstances of its application by the High Contracting Parties in the light of the national conditions that may be thought to require its application. The absence of any such rule was not argued as a ground by the applicant. 24.", "In the context of the litigation, the applicant’s representatives commissioned an educational expert, Professor Ferguson, to direct how child abuse might have been prevented in the relevant period forty and more years ago now. As previously referenced at paragraph 24 of the majority judgment, he concluded that there was no basis on which he could testify that Ireland had failed in its duty of care towards school children. Since even the expert on behalf of the applicant cannot say that Ireland failed, there is no combination of legal ingredients that can possibly replace the Court’s jurisprudence. His reasoning was that it was not possible to project onto the past the knowledge and systems of accountability of the present day. This is right.", "The same emerges from another report referenced but not analysed by the majority, that of Mr Rollinson, which the Ryan Commission appended to Volume V of its report. 25. The Convention is a living document. This has been reiterated in many cases. In Tyrer v. the United Kingdom (25 April 1978, § 31, Series A no.", "26) the Court set down a standard that has been consistently followed since: “The Court must also recall that the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions. In the case now before it the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field ...” 26. In Henaf v. France (no. 65436/01, § 55, ECHR 2003‑XI) the Court reiterated its view that: “... certain acts which were classified in the past as ‘inhuman and degrading treatment’ as opposed to ‘torture’ could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies ...” 27.", "The Convention has developed over time in accordance with changing conditions and with developing understanding. The obverse cannot be the case. Is it either logical or legally correct for the Court to pursue jurisprudence that the obligations under the Convention develop according to the times and conditions of the day while at the same time not recognising that the prevention and detection of child sexual abuse has been in a process of development over several decades? It is not supportable to find Ireland liable on the basis of not having programmes that only modern experience and a more open recognition of the criminal sickness of paedophilia and its repetitive nature have now revealed. The majority might ask: how was this to be expected in 1973?", "To make a finding under Article 3 is to detract from the living nature of the Convention as a fundamental document for the protection of human rights that evolves over time. This finding is instead, and in the absence of evidence, to make a State culpable of torture for failing to do what should today be recognised as appropriate. 28. Further, there is no other indication in any research carried out by the Court that contemporary practice in Ireland should have been applied forty years ago. 29.", "Effectively, the main finding of the majority has been made on an interpretation of the evidence that stretches rules away from their clear purpose and intent and, in addition, applies the best practice of the suspicious present as to the protection of children to a time when consciousness of this danger is not demonstrated to be as it is today, four decades later. Furthermore, the Ryan, Murphy and other reports indicate a growing awareness that led to the current practice of warning and detection in relation to child sexual abuse. The investigations by Ireland into this grave wrong demonstrate a serious determination to uncover wrongs related to this gross human violation and to set standards in the future that ensure the protection of children in accordance with the most modern experience and thinking. Article 13 of the Convention 30. Article 13 provides: “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.” 31.", "The applicant was the repeated victim of several crimes of sexual abuse. That crime was not reported to the police authorities by the parents of the several victims who identified the nature of the gross abuse of their children to each other and to the school manager. Instead the abuse was first reported by one of the victims to the police on that victim attaining majority age some twenty years later. There were up to twenty-one such sets of parents or single parents or guardians. A single complaint to the school manager was made in 1971 and was not acted upon by him.", "The several complaints that were uncovered in September 1973 were responded to by a meeting of parents chaired by the school manager that led to the result outlined in the majority judgment at paragraphs 12 to 20, that is to say the resignation of L.H. and his displacement to another school. The lack of reporting to the police authorities cannot be blamed, as it is in paragraph 168 of the judgment of the majority, on complaints being “directed away” from the police. There was simply no evidence of this at the trial before the High Court. No rule relating to discouragement from reporting a breach of the criminal law is referenced.", "Furthermore, at trial, there was no case made by either of the victims who gave evidence or by the parent of the child who complained to the school manager in 1971 that they were discouraged from a police complaint by any rule. That was not even discussed at the trial. The criminal law of Ireland was there to be accessed by any person and the evidence indicates that it worked effectively 32. The criminal remedies were of Convention standard. Following a complaint, several years after the 1973 meeting of parents which merely resulted in the resignation of L.H., in 1995 a victim complained to the police.", "The applicant was interviewed. Her evidence was investigated. A large body of evidence was collected. Ireland did not have any law which prohibited or inhibited a trial on a serious criminal charge such as this – even after a gap of this duration. In other words, Ireland has no statute of limitation for the initiation of a criminal investigation or the prosecution of an offender on a serious crime.", "This accepted state of the law resulted in the complaint being acted upon. This led to the conviction of L.H. and his imprisonment. There is no legal deficit. Furthermore, there is no suggestion that the rules referenced by the majority as ostensibly diversionary, changed in any way or were replaced.", "33. In terms of remedies, the majority complain of the interposition of “denominational actors” between Ireland and school children and that this would “appear incompatible with the recognition of a direct duty of care between the State and children”. Remedies were available against the State on proof of fault; a claim in negligence which, experience tells, is the most frequently litigated civil wrong before the Irish courts. The proof of such fault, amounting to negligence, could have resulted in an award against the State. No sustainable evidence was led at trial that the Irish authorities either knew or ought to have known that the person appointed as principal of Dunderrow National School was a paedophile.", "As the Court held in Mastromatteo v. Italy ([GC], no. 37703/97, § 95, ECHR 2002‑VIII), the availability of a remedy only on proof of actual fault is not incompatible with the Convention: “It is true that these remedies are available only on proof of fault on the part of the relevant authorities. However, the Court observes that Article 2 of the Convention does not impose on States an obligation to provide compensation on the basis of strict liability and the fact that the remedy ... is made dependent on proof of malice or gross negligence on the part of the judge ... is not such as to render the procedural protection afforded under domestic law ineffective ...” 34. It might also be commented that a State is entitled to organise for a minimum level of education for its citizens in the way which accords to the arrangement in Ireland. In terms of actual fault, such a finding was made at the civil trial against L.H.", "only, and not against Ireland, and damages were ordered. The inability of L.H. to pay more than the approximately 10% of the award paid to date is a regrettable circumstance but there is no obligation under any of the Articles of the Convention that defendants who are in fact liable, in contrast to defendants against whom a finding of no fault has been made and not appealed, should be able to pay the full amount of damages. 35. Had there been proof of fault on the part of Ireland in failing reasonably to foresee and to take appropriate measures of care thus leading to damages, there existed a remedy for establishing any liability of State actors for such acts or omissions and for the payment of compensation.", "That remedy was the tort remedy in negligence which was, first of all, not proven against the State at trial and was then abandoned on appeal. Contrary to the majority analysis at paragraphs 183 to 186 of the judgment, this demonstrates a system that was accessible and was capable of providing redress and offered reasonable prospects of success once there was appropriate evidence. Result 36. It is thus on the absence of evidence on which this dissent is based. The standards of today can illuminate how those four decades ago were remiss in protecting children.", "The standards of today based on experience up to today are not necessarily how conduct in the past is fairly to be judged. The applicant was subjected to conduct that amounts to torture or inhuman or degrading treatment. Ireland did not subject the applicant to that horrible experience; L.H. did. The Irish authorities could not reasonably have anticipated that the origin of such behaviour would be a head teacher with a mandated duty to protect children under his care.", "It is to be recognised that the victims of sexual abuse can be locked up in their experience over decades and be thus unable to report those crimes. It is also to be recognised that parents would not easily let their children into the criminal justice system to relive their experience as witnesses in the cold forum of a criminal trial. What cannot be avoided in any discussion of the facts of this sad case is that the result of the complaints of parents in 1973 was that the teacher left the school to take up teaching elsewhere. If there was failure here, this demonstrates that it was a failure of society in approaching this criminal behaviour and not failure by Ireland as a State. [1].", "Legal Consequences for States of the continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 ICJ Reports 16 (“the Namibia case”)." ]

[ "FIRST SECTION CASE OF ZIAJA v. POLAND (Application no. 45751/10) JUDGMENT STRASBOURG 16 May 2019 This judgment is final but it may be subject to editorial revision. In the case of Ziaja v. Poland, The European Court of Human Rights (First Section), sitting as a Committee composed of: Ksenija Turković, President,Krzysztof Wojtyczek,Armen Harutyunyan, judges, and Renata Degener, Deputy Section Registrar, Having deliberated in private on 23 April 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 45751/10) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Ms Janina Ziaja (“the applicant”), on 2 August 2010.", "2. The applicant was represented by Ms E. Draga-Buchta, a lawyer practising in Katowice. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs. 3. On 16 May 2012 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1956 and lives in Golasowice. A. Main proceedings 5.", "On 1 February 1999 the applicant instituted civil proceedings before the Jastrzębie Zdrój District Court for the purposes of establishing an easement. In particular the applicant sought a decision allowing her to use a strip of land belonging to her neighbours as a roadway allowing her access to her property. The roadway in question, which has been used by her in the past, runs along a causeway (grobla) between fishponds. 6. By a decision of 11 July 2000 (file no.", "I Ns 57/99) the Jastrzębie Zdrój District Court allowed the applicant’s claim. The other party appealed against this decision. 7. On 15 November 2000 the Katowice Regional Court quashed the first-instance decision and remitted the case (file no. III Ca 661/00).", "8. At a hearing on 13 March 2001 the court ordered the preparation of an expert opinion. Two experts declined the invitation to prepare an opinion, and the third expert approached by the court eventually prepared it on 17 October 2001. 9. The defendants contested both the expert opinion itself and the fee for drafting it.", "In March 2002 they requested preparation of another expert opinion. 10. It appears that the next hearing was held on 23 April 2002. The court questioned the expert and appointed another one to assess the value of the plot of land. 11.", "On 12 November 2002 the court held a viewing of the property. 12. At a hearing on 13 January 2003 the court decided to appoint yet another expert to establish whether the easement would have any impact on the fishponds. The opinion was submitted to the court on 11 April 2003. The expert was questioned at a hearing on 3 July 2003.", "On 27 January 2004 another expert submitted a complementary opinion, at the request of the court. 13. The next hearing was held on 17 June 2004. The court subsequently dealt with an application lodged by the applicant to exempt her from payment of the fees for the expert opinion. 14.", "On 2 June 2005 the Jastrzębie Zdrój District Court allowed, in essence, the applicant’s claim (file no. I Ns 57/99). The other party appealed against the decision. 15. On 26 January 2006 (file no.", "III Ca 1322/05) the Gliwice Regional Court quashed the first-instance decision and remitted the case for the second time. 16. At a hearing on 26 June 2006 the court requested preparation of an expert geological opinion. The opinion was submitted one year later, on 22 June 2007. 17.", "At a hearing on 18 October 2007 the court decided that further defendants should join the proceedings. 18. A viewing of the land took place on 6 November 2007. Afterwards anther expert opinion on road construction was ordered by the court. It was submitted to the court in January 2008 and the parties duly commented on it.", "19. At a hearing on 23 July 2008 the court questioned the expert and requested the preparation of another expert opinion on the value of the plot of land. 20. The opinion was submitted to the court on 12 January 2009. 21.", "The court held a hearing on 25 November 2009 and decided to hold another viewing of the property. Two subsequent viewings scheduled for December 2009 and February 2010 were cancelled due to the weather conditions. 22. A hearing was held on 4 March 2010 and on 30 April 2010 the court held a viewing of the land. 23.", "Another expert opinion ordered by the court was prepared on 6 August 2010. 24. The court held hearings in March 2011. On 31 March 2011 it gave a decision granting the applicant the easement in question. 25.", "The defendants appealed. 26. On 22 February 2012 the Gliwice Regional Court finally dismissed the appeals. B. Proceedings under the 2004 Act 27.", "On 9 December 2004 the applicant lodged a complaint with the Gliwice Regional Court under the Law of 17 June 2004 on complaint about breach of the right to have a case examined in judicial proceedings without undue delay (ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”). She stated that she had lodged her claim in 1999 and that her case had still not been examined. She also claimed PLN 10,000 in compensation. 28. By a decision of 21 December 2004 (file no.", "III S 36/04) the Gliwice Regional Court rejected the claim on formal grounds, having found that the applicant “had not specified the circumstances on which her complaint had been based.” 29. Subsequently, the applicant lodged another complaint under the 2004 Act. She sought a finding that the length of the proceedings had been excessive and claimed PLN 10,000 in compensation. 30. By a decision of 5 April 2006 (file no.", "III S 7/06) the Gliwice Regional Court dismissed the claim. It analysed in detail the course of the proceedings after September 2004 and held that they had generally been conducted in a correct and timely manner. As regards the period prior to September 2004, the court relied on the Supreme Court’s jurisprudence and held that the 2004 Act applied to delays caused by the court’s inactivity occurring before that date but only if that delay still continued; what had not been the case in the case under the consideration. II. RELEVANT DOMESTIC LAW AND PRACTICE 31.", "A detailed description of the relevant domestic law and practice concerning remedies for excessive length of judicial proceedings – in particular the applicable provisions of the 2004 Act – are presented in the Court’s decisions in the cases of Charzyński v. Poland ((dec.), no. 15212/03, §§ 12-23, ECHR 2005-V), Ratajczyk v. Poland ((dec.), no. 11215/02, ECHR 2005-VIII), and in its judgments in the cases of Krasuski v. Poland (no. 61444/00, §§ 34-46, ECHR 2005-V) and, most recently, Rutkowski and Others v. Poland (nos. 72287/10, 13927/11 and 46187/11, §§ 75-107, 7 July 2015).", "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 his civil rights and obligations ..., 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 1 February 1999 and ended on 22 February 2012. It thus lasted thirteen years at two levels of jurisdiction. A. Admissibility 35. The Government raised a preliminary objection and invited the Court to reject the application on the grounds that the applicant had failed to exhaust the domestic remedies as required under Article 35 § 1 of the Convention. They maintained that the applicant had not lodged a third complaint about unreasonable length of proceedings under the 2004 Act.", "The Government observed that she had already lodged two complaints which had been dismissed on 9 December 2004 and on 5 April 2006. However, as of 25 September 2006 the applicant had had the possibility of lodging a new complaint under section 5 of the 2004 Act. The proceedings had lasted for almost six more years, during which the applicant had remained passive and had not used the available remedies to speed up the proceedings. 36. The applicant contested that argument.", "She argued that there was no justification for requiring her to lodge a fresh complaint under the 2004 Act when her previous two complaints had been dismissed. 37. The Court finds that the question of the exhaustion of domestic remedies is inextricably linked to the merits of this complaint. Therefore, to avoid prejudging the latter, both questions should be examined together. Accordingly, the Court holds that the question of exhaustion of domestic remedies should be joined to the merits.", "38. 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 39. The applicant argued that the length of the proceedings had clearly been in breach of the “reasonable time” principle. They lasted thirteen years in total. The proceedings were not complex and the necessity to obtain expert evidence had been known from the beginning and should have been secured in a timely manner. There were many periods of inactivity for which the domestic courts had been responsible.", "For instance, the first hearing after the quashing of the judgment on 26 January 2006 had been set for 26 July 2006. Other periods of inactivity lasted up to fifteen months. The hearings had been adjourned repeatedly and without valid reason. 40. The Government refrained from commenting on the merits of the applicant’s complaint.", "41. 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 taking into account 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. On the latter point, account must also be taken of what is at stake for the applicant (see Kudła v. Poland [GC], no. 30210/96, § 124 ECHR 2000‑XI, for further case-law references see Rutkowski and Others, cited above, §§ 126‑128). 42.", "The Court agrees with the applicant that the proceedings in which she sought the establishment of an easement did not involve complex issues of facts and law, even though evidence from experts in different fields needed to be obtained. While it is true that taking expert evidence necessarily takes time, it should be noted that on several occasions the experts had needed almost a year to prepare their opinion. 43. The Court considers that the procedure for taking expert evidence had lacked the requisite efficiency. The court sent the case-file material to each expert in turn, meaning that they had to delay the preparation of their reports until their predecessor’s work had been finished.", "No attempts were made to impose discipline on the experts and ensure that they complied with the deadlines set. It is also not clear whether after each remittal of the case to the District Court all expert evidence needed to be repeated. 44. In this connection, the Court would reiterate that experts work in the context of judicial proceedings under the supervision of a judge, who remains responsible for the preparation and speedy conduct of proceedings (see, for instance, Proszak v. Poland, 16 December 1997, § 44, Reports of Judgments and Decisions 1997‑VIII, and Łukjaniuk v. Poland, no. 15072/02, § 28, 7 November 2006).", "45. It must also be noted that there were lengthy intervals between the hearings, which appear not to be related to the work of experts, on several occasions of as long as a year (see paragraphs 13 and 14, 20 and 21 and 23 and 24 above). 46. Lastly, it is to be noted that following two remittals ordered by the Regional Court, the applicant’s case was examined three times at first instance (see paragraphs 6, 14, 24 above). Although the Court is not in a position to analyse the juridical quality of the case-law of the domestic courts, the remittal of cases for re-examination is usually ordered as a result of errors committed by lower courts.", "The repetition of such orders within one set of proceedings points to a deficiency in the judicial system. Moreover, this deficiency is imputable to the authorities and not the applicants (see, among many others, Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003; Matica v. Romania, no. 19567/02, § 24, 2 November 2006; and Vlad and Others v. Romania, nos. 40756/06, 41508/07 and 50806/07, § 133, 6 November 2013).", "47. In the circumstances, the Court cannot find sufficient justification for the delay in the examination of the applicant’s case and an overall length of proceedings of thirteen years. 48. Turning to the question of whether the applicant should have repeated the complaint under the 2004 Act, the Court considers it necessary to repeat some of the conclusions of its pilot judgment in the case of Rutkowski (cited above, §§ 176-186). In that judgment the Court examined the domestic court’s application of the 2004 Act, including its interpretation by the Supreme Court (ibid, §§ 93-106).", "49. In Rutkowski the Court found that considerable delays occurring in the applicants’ cases, which were relevant as regards the assessment of the breach of Article 6 § 1 alleged by them, were not taken into account by the courts dealing with their complaints. Contrary to the Court’s established case-law on the assessment of the reasonableness of the length of proceedings, the courts did not examine the overall length of the proceedings but only selected parts of them. In some cases the courts disregarded periods occurring before the 2004 Act’s entry into force and examined only the length of proceedings at the current instance. The Supreme Court’s interpretation allowing for “fragmentation of proceedings” applied until 20 March 2013, when the Supreme Court issued the 2013 Resolution, analysing critically its previous case-law on the matter and endorsing a new interpretation in compliance with the Court’s case-law on the assessment of the reasonableness of the length of proceedings.", "Moreover, the Court reiterated the standards for “appropriate and sufficient redress” for violations of the “reasonable time” requirement and its strong, although rebuttable, presumption in favour of non-pecuniary damage being normally occasioned by the excessive length of proceedings (ibid, § 182). In view of the above, the Court found in its pilot judgment that the 2004 Act failed to provide the applicants with “appropriate and sufficient redress” in terms of adequate compensation for the excessive length of the proceedings in their cases (Rutkowski, cited above,§ 183). 50. The Court considers that its findings as to the Polish courts’ deficient practice in respect of the application of the 2004 Act also apply to the instant case. Furthermore, it notes that the domestic court rejected the complaint on 21 December 2004 for formal reasons (see paragraph 28 above).", "The Court has already found that declaring a complaint inadmissible on the grounds that an applicant “had not specified the circumstances on which his/her complaint had been based” is too formalistic an approach, which may prevent an applicant’s claims from being examined on the merits (see Wende and Kukówka v. Poland, no. 56026/00, §§ 49-57, 10 May 2007). The applicant’s second complaint under the 2004 Act was examined on the merits on 5 April 2006, but the court examined only the length of proceedings after September 2004 and disregarded periods occurring before the 2004 Act’s entry into force. 51. The foregoing considerations are sufficient to enable the Court to conclude that the length of the proceedings was already excessive and failed to meet the “reasonable time” requirement in the periods which were susceptible to the domestic courts’ scrutiny.", "It has inevitably remained so throughout the subsequent period. In these circumstances, to ask the applicant to lodge a third complaint under the 2004 Act would be to overstretch her duties under Article 35 § 1 of the Convention (see, for example, Antonić-Tomasović v. Croatia, no. 5208/03, §§ 25-34, 10 November 2005). 52. In conclusion, the Court rejects the Government’s objection as to the exhaustion of domestic remedies and finds that there has been a breach of Article 6 § 1 of the Convention in the present case.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 53. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 54. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.", "55. The Government contested the claim. 56. The Court awards the applicant EUR 10,000 in respect of non‑pecuniary damage. B.", "Costs and expenses 57. The applicant, represented by a lawyer, did not make any claim in respect of costs and expenses. C. Default interest 58. 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 applicant’s failure to exhaust domestic remedies and dismisses it; 2. Declares the application admissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 16 May 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Renata DegenerKsenija TurkovićDeputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF KIRIL IVANOV v. BULGARIA (Application no. 17599/07) JUDGMENT STRASBOURG 11 January 2018 FINAL 11/04/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kiril Ivanov v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President,Erik Møse,André Potocki,Síofra O’Leary,Gabriele Kucsko-Stadlmayer,Lәtif Hüseynov, judges,Maiia Rousseva, ad hoc judge,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 5 December 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "17599/07) against the Republic of Bulgaria lodged with the Court on 16 March 2007 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Kiril Kostadinov Ivanov (“the applicant”). 2. The applicant was represented by Mr K. Kanev, chairman of the Bulgarian Helsinki Committee, a non-governmental organisation based in Sofia, and by Mr S. Ovcharov, a lawyer working with the Bulgarian Helsinki Committee and practising in Sofia. On 15 January 2016 the President of the Section gave Mr Kanev leave to represent the applicants in all pending and future cases in which he personally acts as a representative (Rule 36 § 4 (a) in fine of the Rules of Court). The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova of the Ministry of Justice.", "3. In his original application, the applicant alleged that a rally planned for 30 September 2006 in whose organisation he had taken part had been banned by the authorities, and that he had not had an effective domestic remedy in respect of that. This, he alleged, had been due to the Macedonian ethnic consciousness of the people who had intended to take part in it. In follow-up submissions filed with the Court on 28 November 2007, the applicant alleged that another rally, planned for 12 September 2007, which he had also helped organise, had been banned by the authorities for the same reasons. 4.", "On 18 December 2012 the Government were given notice of the application. In his observations in reply to those of the Government, filed with the Court on 21 June 2013, the applicant in addition alleged that he had not had an effective domestic remedy in respect of the second rally either. 5. On 12 April 2015 Mr Yonko Grozev, the judge elected in respect of Bulgaria, withdrew from sitting in the case (Rule 28 § 3). Accordingly, on 19 October 2017 the President selected Ms Maiia Rousseva as ad hoc judge from the list of five persons whom the Republic of Bulgaria had designated as eligible to serve in that office (Article 26 § 4 of the Convention and Rule 29 § 1 (a)).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1942 and lives in Blagoevgrad. A. Background 7.", "The background to the banning of the two rallies at issue in the present case has been set out in detail in the judgments in the following cases: Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, ECHR 2001-IX; United Macedonian Organisation Ilinden and Ivanov v. Bulgaria, no. 44079/98, 20 October 2005; United Macedonian Organisation Ilinden-PIRIN and Others v. Bulgaria, no. 59489/00, 20 October 2005; Ivanov and Others v. Bulgaria, no. 46336/99, 24 November 2005; United Macedonian Organisation Ilinden and Others v. Bulgaria, no.", "59491/00, 19 January 2006; United Macedonian Organisation Ilinden and Ivanov v. Bulgaria (no. 2), no. 37586/04, 18 October 2011; United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 2), no. 34960/04, 18 October 2011; Singartiyski and Others v. Bulgaria, no.", "48284/07, 18 October 2011; and United Macedonian Organisation Ilinden-PIRIN and Others v. Bulgaria (no. 2), nos. 41561/07 and 20972/08, 18 October 2011. 8. The applicant was one of the applicants in Ivanov and Others (cited above).", "He is the brother of Mr Yordan Kostadinov Ivanov, who was one of the applicants in United Macedonian Organisation Ilinden and Ivanov, United Macedonian Organisation Ilinden and Others, United Macedonian Organisation Ilinden and Ivanov (no. 2), and United Macedonian Organisation Ilinden and Others (no. 2) (all cited above). B. Rallies in September 2006 1.", "Rally planned for 30 September 2006 9. On 15 September 2006 the applicant, acting on behalf of the unregistered organisation the Macedonian Initiative Committee, notified Blagoevgrad’s mayor that the Committee intended to stage a rally at 4 p.m. on 30 September 2006 in Macedonia Square to commemorate the eighty-second anniversary of “the day of the genocide of Macedonians in Bulgaria – 12 September 1924”. The rally would consist of the laying of wreaths and flowers and the reading of a short address. 10. The same day the mayor replied to the applicant that the rally could not proceed as the municipality had planned an event in Macedonia Square for the same date – a concert marking the Day of Music.", "That parallel event made the staging of the rally impossible. 11. On 18 September 2006, again acting on behalf of the Macedonian Initiative Committee, the applicant sought judicial review of the mayor’s decision. He argued that under the applicable international-law agreements, that organisation was entitled to stage peaceful rallies without being registered. 12.", "In a final decision of 19 September 2006, the Blagoevgrad District Court held that the application was admissible and that the mayor’s decision was amenable to judicial review. However, it went on to find that the mayor’s decision was lawful, because there was a risk that the rights and freedoms of others might be infringed. It was not appropriate to hold the rally, which, in view of its intended theme, was political in character, alongside the municipality’s event. The performance of musical works could not at all be reconciled with political addresses. It was not proper to force music lovers to listen to political speeches and declarations, especially ones not accepted unequivocally by Bulgarian society, which was particularly sensitive to assertions that a Macedonian minority existed in Bulgaria and that its rights were being infringed.", "13. As a result, the Macedonian Initiative Committee called off the rally. The applicant submitted that he was not aware of whether the municipality’s event had in fact taken place. He had made a request for information in that connection under freedom-of-information laws, but had not received a reply. The municipality’s cultural calendar for 2006 showed that the concert marking the Day of Music had been scheduled for 1 October rather than 30 September 2006.", "2. Rally planned for 12 September 2006 14. An earlier attempt by the United Macedonian Organisation Ilinden (“Ilinden”), an unregistered association based in south-western Bulgaria, in an area known as the Pirin region or the geographic region of Pirin Macedonia, to organise a similar rally on 11 or 12 September 2006 had also been fruitless. Blagoevgrad’s mayor had banned that rally, and a legal challenge to his decision had been dismissed by the Blagoevgrad District Court on 8 September 2006 (see United Macedonian Organisation Ilinden and Ivanov (no. 2), cited above, §§ 58-63).", "C. Rally on 12 September 2007 15. The circumstances relating to the rally organised by Ilinden on 12 September 2007 are set out in United Macedonian Organisation Ilinden and Ivanov (no. 2) (cited above, §§ 90-95) in the following way: “90. On 28 August 2007 Ilinden notified the Mayor of Blagoevgrad of its intention to stage a rally on Macedonia Square, in front of Gotse Delchev’s monument, at 4.30 p.m. on 12 September 2007. The event, which was to mark the anniversary of ‘the genocide against the Macedonians’, would consist of the laying of a wreath and flowers on the monument and a short speech.", "It would last one hour. 91. On 29 August 2007 the Mayor replied that the notification could not be examined as Ilinden had not produced documents proving its official registration. It was thus impossible to identify the ‘managing bodies of [the] event’. Moreover, the municipality had planned an event on Macedonia Square for the same date, a children’s holiday under the name ‘Hello, school’, to mark the beginning of the school year, which made the holding of the rally impossible.", "92. On 30 August 2007 Ilinden sought judicial review by the newly created Blagoevgrad Administrative Court ..., reiterating the arguments raised in its previous applications. In a decision of 30 August 2007 the Blagoevgrad Administrative Court found that under the 1990 Meetings and Marches Act, which was lex specialis in relation to the general rules of administrative procedure, the court competent to examine an application for judicial review of a Mayor’s decision to ban a rally was the district court. It therefore sent the file to the Blagoevgrad District Court. 93.", "In a final decision of 5 September 2007 the Blagoevgrad District Court dismissed the application. It held that, while the lack of registration did not amount to sufficient grounds to prohibit the rally, the fact that another event, likely to draw a number of people, many of whom were children, was due to take place on the same date in Macedonia Square was enough to justify the ban. In the court’s view, it was inopportune to allow two wholly different events to be staged at the same time and place. 94. According to the applicants, no school event took place at 4 p.m. on 12 September 2007 on Macedonia Square.", "When a number of members and supporters of Ilinden gathered in front of the American University in Blagoevgrad at about 5 p.m., they were stopped by the police and a number of them were arrested. They were taken to a police station, held for about three hours and charged with committing administrative offences for having tried to take part in a banned rally. 95. On 22 October 2007 the deputy Mayor of Blagoevgrad imposed administrative punishments (fines of 200 Bulgarian levs (102.26 euros) each) on [Mr Yordan Kostadinov Ivanov] and on a number of members of Ilinden for having taken part in a banned rally, in breach of a public-order regulation issued by the Blagoevgrad Municipal Council. All of them sought judicial review.", "In a series of judgments delivered on 18 and 19 February, 11 March, and 22 and 29 May 2008 the Blagoevgrad District Court annulled the fines. In some of the judgments it found that they were invalid, as under the applicable rules the deputy Mayor had no power to impose administrative punishments. In other judgments the court found that the deputy Mayor’s decisions were defective because they did not specify which administrative offences had been committed. In others it held that although the Mayor’s ban on the rally planned for 12 September 2007 was legally binding, the actions of the members of Ilinden on that date had not amounted to the staging of a rally, as they had been too few and had not tried to wave banners and make speeches, but merely to lay flowers on Gotse Delchev’s monument. The court went on to say that every person, regardless of their political convictions, had the right to honour the memory of national heroes in peace.” 16.", "It was the applicant who acted on behalf of Ilinden in its dealings with Blagoevgrad’s mayor and the courts in relation to that rally. II. RELEVANT DOMESTIC LAW AND PRACTICE 17. The relevant domestic law and practice have been set out in United Macedonian Organisation Ilinden and Ivanov (no. 2) (cited above, §§ 107-12).", "THE LAW I. STRIKING OUT OF PART OF THE APPLICATION A. The parties’ submissions 18. The Government submitted that in United Macedonian Organisation Ilinden and Ivanov (no. 2) (cited above) the Court had already given a broad ruling in relation to interference by the authorities with rallies organised by Ilinden.", "It was therefore not warranted to take up the same issue in a case brought by an individual claiming to have himself suffered a breach of his rights under Article 11 of the Convention. Although the applicant had not been a party to that earlier case, he did not have any separate legal interest requiring protection, and could not claim that he had suffered separate damage calling for an award of just satisfaction. Nor did the case concern a continuing breach, so as to require consecutive rulings by the Court. 19. The applicant submitted that since in United Macedonian Organisation Ilinden and Ivanov (no.", "2) (cited above) the Court had already examined the authorities’ actions in relation to the rally on 12 September 2007 and found a breach of Article 11 of the Convention, it was no longer justified to examine that complaint. By contrast, his complaint under Article 14 of the Convention in conjunction with Article 11 in relation to that rally still required examination. 20. The applicant went on to say that the rally planned for 30 September 2006 had had nothing to do with Ilinden. It had been planned by the Macedonian Initiative Committee, which was a separate organisation.", "He therefore maintained his complaints under Articles 11 and 14 of the Convention in relation to that rally. He stated that he also maintained his complaints under Article 13 of the Convention in relation to both rallies. B. The Court’s assessment 21. In United Macedonian Organisation Ilinden and Ivanov (no.", "2) (cited above, §§ 58-63, 90-95 and 126-37) the Court examined events which had unfolded concomitantly with the applicant’s dealings with the authorities in connection with the rally planned for 30 September 2006 (see paragraph 14 above), as well as the events surrounding the rally on 12 September 2007 (see paragraph 15 above). 22. It does not however follow that the present application is “substantially the same as a matter that has been examined by the Court” within the meaning of Article 35 § 2 (b) of the Convention. 23. With respect to the rally on 30 September 2006, the application concerns facts which are related to but do not coincide with those examined in that earlier case.", "The rally under consideration there was planned by Ilinden and was due to take place on 11 or 12 September 2006, whereas the rally at issue here was planned by a different organisation, the Macedonian Initiative Committee, and was due to take place two and half weeks later, on 30 September 2006. Moreover, both Blagoevgrad’s mayor and the Blagoevgrad District Court gave separate decisions in relation to the two rallies (see paragraphs 9-14 above, and United Macedonian Organisation Ilinden and Ivanov (no. 2), cited above, §§ 58-63). Last but not least, the applicants in the two cases are different: Ilinden and the applicant’s brother in the earlier one, and the applicant in the one under consideration (see paragraph 8 above). 24.", "As regards the rally on 12 September 2007, the facts examined in United Macedonian Organisation Ilinden and Ivanov (no. 2) (cited above, §§ 90-95) and here were indeed the same (see paragraph 15 above). However, the applicants in that case and in this one are different. For an application to be “substantially the same as a matter that has already been examined by the Court”, it must not only concern substantially the same facts and complaints but also be introduced by the same persons (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 118, ECHR 2009; Berdzenishvili and Others v. Russia, nos.", "14594/07 and 6 others, § 37, 20 December 2016; Dzidzava v. Russia, no. 16363/07, § 65, 20 December 2016; and Shioshvili and Others v. Russia, no. 19356/07, § 47, 20 December 2016). 25. Nevertheless, the fact that the Court has already dealt with the events relating to the rally on 12 September 2007 in that earlier case gives rise to the further question of whether the applicant’s complaints in relation to those events should be struck out under Article 37 § 1 (c) of the Convention.", "26. Under the terms of that provision, “[t]he Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ... for any other reason established by [it], it is no longer justified to continue the examination of the application.” 27. It is clear from the Court’s case-law that the power to strike out under Article 37 § 1 can be exercised with respect to parts of an application as well (see, for example, Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 104, ECHR 2007-I). 28.", "The wording of Article 37 § 1 (c) shows that the Court has considerable leeway in identifying the reasons why it is no longer justified to examine an application. Although those reasons must invariably reside in the particular circumstances of the case, they can be quite diverse (see Association SOS Attentats and de Boery v. France [GC] (dec.), no. 76642/01, § 37, ECHR 2006-XIV). 29. One such reason may be that, owing to the nature of the breach and of the measures required to put it right, the Court’s ruling in an earlier case relating to the same facts but lodged by a different applicant has dealt sufficiently with the relevant issues, and that it would hence be superfluous to examine the matter again at the instance of another applicant who has a sufficiently close link with the applicant in the earlier case.", "30. Thus, in a case which concerned interference by the authorities in the affairs of the Bulgarian Orthodox Church the Court struck out follow-up applications. In its judgments in the leading case, Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v. Bulgaria (nos. 412/03 and 35677/04, 22 January 2009 (merits) and 16 September 2010 (just satisfaction)), it had found that between 2003 and 2004 the authorities had interfered with that Church’s internal organisation in breach of Article 9 of the Convention, and that this breach had affected every active member of the religious community in question. At the same time, the Court had not awarded damages to the individual applicants, but only to the applicant organisation, noting that its claims had been made on behalf of its religious community.", "The Court had also held that no individual measures were required to execute its judgment (merits judgment, §§ 102 and 114, and just satisfaction judgment, §§ 23-46, both cited above). In the follow-up case, Pantusheva and Others v. Bulgaria ((dec.), nos. 40047/04 and 33 others, 5 July 2011), in which several hundred Christian Orthodox believers who regularly attended church services and took part in the life of the religious community had raised identical complaints in relation to the same events, the Court struck out the applications under Article 37 § 1 (c), chiefly on the basis that in the leading case it had already discharged its duty under Article 19 of the Convention to ensure the observance of the engagements undertaken by Bulgaria, and that nothing was to be gained if it were to repeat its findings in a series of comparable or even identical cases (ibid., §§ 56-57). The Court also took into account the nature of the breach and its effects on the individual applicants (ibid., § 59). 31.", "The situation at hand is similar to that in Pantusheva and Others (cited above). In United Macedonian Organisation Ilinden and Ivanov (no. 2) (cited above, §§ 126-27), the Court found that the mayor’s decision to ban the rally on 12 September 2007 had amounted to a restriction of the right of freedom of assembly of Ilinden and its chairman under Article 11 of the Convention because it had had a “chilling effect on the individuals concerned and on the other participants in the rall[y]”. The Court therefore found a violation of Article 11. Its findings thus covered the effect which the ban had had on the applicant, who had been acting on Ilinden’s behalf in its dealings with the authorities in relation to that rally (see paragraph 16 above).", "The finding of violation and the joint award which the Court made to Ilinden and its chairman in respect of non-pecuniary damage (ibid., § 141) must also be regarded as encompassing any damage suffered by the applicant, who had been acting on the organisation’s behalf. 32. It follows that in United Macedonian Organisation Ilinden and Ivanov (no. 2) (cited above) the Court already discharged its duty under Article 19 of the Convention to ensure the observance of the engagements undertaken by Bulgaria under Article 11 of the Convention with respect to the rally on 12 September 2007, and that nothing is to be gained if it were to repeat those findings here. Since the applicant’s related complaint under Article 14 of the Convention does not require separate examination (see paragraphs 68-71 below), the fact that no such complaint was raised or determined in that earlier case does not alter that conclusion.", "Nor can the applicant claim to have suffered additional damage in connection with that rally that calls for a separate award of just satisfaction. It is therefore no longer justified to continue examining these two complaints. There is no need to determine whether this also applies to the complaint under Article 13 of the Convention relating to the rally planned for 12 September 2007, as it is in any event inadmissible (see paragraphs 4 above and 50-52 below). 33. No reason relating to respect for human rights as defined in the Convention requires the Court to continue examining this part of the application under Article 37 § 1 in fine.", "34. Accordingly, the complaints under Article 11 and 14 of the Convention which relate to the rally on 12 September 2007 are to be struck out of the Court’s list of cases under Article 37 § 1 (c) of the Convention. II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 35. The applicant complained that the rally planned for 30 September 2006 had been banned.", "He relied on Article 11 of the Convention, which provides, in so far as relevant: “1. Everyone has the right to freedom of peaceful assembly ... 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. Admissibility 1. The parties’ submissions 36.", "The Government submitted that since the notice which the applicant had given to the mayor had concerned a rally sought to be organised by a non-governmental organisation rather than by him personally, he could not complain in his personal capacity in relation to that rally. His complaint was hence incompatible ratione personae with the provisions of the Convention. 37. The applicant submitted that the Court regularly examined under Article 11 complaints lodged by individuals on behalf of groups. It was clear that the organisers of rallies were personally affected by restrictions on their conduct.", "2. The Court’s assessment 38. The Court already found that the complaint relating to the rally planned for 30 September 2006 is not “substantially the same” as the matter examined in United Macedonian Organisation Ilinden and Ivanov (no. 2) (cited above, §§ 58-63 and 126-37) (see paragraph 23 above). It is therefore not inadmissible under Article 35 § 2 (b) of the Convention.", "39. As for the complaint’s compatibility ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a), it should be noted that, under the Court’s case-law, the right to freedom of assembly under Article 11 of the Convention can be exercised not only by the participants in a gathering but also by those who organise it, whether they be individuals or legal persons (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 91, ECHR 2015, with further references). Although when notifying the mayor about the rally planned for 30 September 2006 and when seeking judicial review of his decision to ban it the applicant purported to act on behalf of the unregistered Macedonian Initiative Committee, he was one of the rally’s organisers (see paragraphs 9 and 11 above). He can therefore claim to be a victim with respect to the decision to ban the rally, and his complaint is compatible ratione personae with the provisions of the Convention (see Stankov and the United Macedonian Organisation Ilinden, nos.", "29221/95 and 29225/95, Commission decision of 29 June 1998, unreported, and Patyi and Others v. Hungary, no. 5529/05, § 25, 7 October 2008). 40. The complaint is furthermore not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on other grounds. It must therefore be declared admissible.", "B. Merits 1. The parties’ submissions 41. The Government reiterated that the decision to ban the rally had not affected the applicant. In his dealings with the authorities, he had acted on behalf of an organisation rather than in his personal capacity.", "Nor had he been subjected to any sanctions in connection with the rally. Moreover, the right to freedom of assembly presupposed the existence of a group of people whose wish to hold a gathering had been restricted. 42. The Government went on to say that in upholding the mayor’s decision to ban the rally, the Blagoevgrad District Court had not relied on the fact that the organisation staging the rally had not been registered – grounds previously found deficient by this Court – and therefore no issue arose under Article 11 of the Convention in relation to that aspect of its reasoning. That court had relied on public-order considerations and had had regard to the discretion enjoyed by the mayor in such matters.", "The rally planned for 30 September 2006 had coincided with an event planned by the municipality, and the mayor had been entitled to take measures to ensure that that event unfolded smoothly. 43. The applicant submitted that the decision to ban the rally had not corresponded to any pressing social need and had been disproportionate. Neither the mayor nor the court which had reviewed his decision had assessed the measure’s necessity. That court had simply endorsed the mayor’s reasoning.", "It had not sought to ascertain whether the planned rally and the municipal event would have taken place at the same time on 30 September 2006. For his part, the mayor had not proposed to the applicant to reschedule the rally for a different time. 2. The Court’s assessment 44. The Court has already found that the applicant, who was one of the rally’s organisers, was personally affected by the mayor’s decision to ban it (see paragraph 39 above).", "For the same reasons, the Court considers that the ban amounted to a “restriction” of the applicant’s right to peaceful assembly under Article 11 of the Convention. The fact that it was only the applicant who complained to the Court in that respect does not mean that that right is not in issue. The applicant was not proposing to hold a “solo demonstration” but to take part in a gathering with others (contrast Novikova and Others v. Russia, nos. 25501/07 and 4 others, § 91, 26 April 2016). 45.", "There is no need to examine whether the restriction was “prescribed by law” or pursued one or more of the aims set out in Article 11 § 2 because, even assuming that it was and did, it was in any event not “necessary in a democratic society” for the following reasons (see United Macedonian Organisation Ilinden and Ivanov (no. 2), § 131, and Singartiyski and Others, § 45 in fine, both cited above). 46. The mayor and the court which upheld his decision justified the ban by reference to the holding of a municipal event at the same time and place and by the need to protect the participants in that event from being exposed to controversial statements on historical issues seen as sensitive (see paragraphs 10 and 12 above). In four materially identical cases such grounds have been found to be insufficient for the purposes of Article 11 § 2 (see Stankov and the United Macedonian Organisation Ilinden, §§ 106-07; United Macedonian Organisation Ilinden and Ivanov, §§ 113-14; United Macedonian Organisation Ilinden and Ivanov (no.", "2), § 133; and Singartiyski and Others, § 46, all cited above). 47. The domestic authorities provided no details regarding the logistical or security difficulties which two parallel events might have posed and, more importantly, the Government have not explained why justifications considered insufficient in previous cases should suffice in the instant one. In addition, it is noteworthy that on a previous occasion when the authorities did not ban a rally organised by Ilinden, they allowed a counter-demonstration to proceed on the same day (see United Macedonian Organisation Ilinden and Ivanov, cited above, § 115). 48.", "The Court finds therefore that there has been a breach of Article 11 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 49. The applicant complained that he had not had an effective domestic remedy in respect of the alleged breaches of Article 11 of the Convention. He 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. Admissibility 50.", "In his original application, the applicant complained under Article 13 of the Convention in relation to the rally planned for 30 September 2006. In his follow-up submissions, which concerned the rally on 12 September 2007, he only raised complaints under Articles 11 and 14 of the Convention (see paragraph 3 above). He complained under Article 13 that he had not had an effective remedy in relation to that rally for the first time in his observations in reply to those of the Government, filed with the Court on 21 June 2013 (see paragraph 4 above). 51. According to the Court’s case-law, the running of the six-month time-limit under Article 35 § 1 of the Convention with respect to complaints not featuring in the initial application is only interrupted when they are first submitted to the Court, and allegations made after the expiry of that time-limit can only be examined alongside the initial complaints if they constitute legal submissions relating to, or particular aspects of, those complaints (see Fábián v. Hungary [GC], no.", "78117/13, § 94, 5 September 2017). The Court must verify these points even if they are not raised by the respondent Government (ibid., § 90), since it must monitor compliance with the six‑month time-limit of its own motion (see, among other authorities, Blokhin v. Russia [GC], no. 47152/06, § 102, ECHR 2016). 52. In this case, the applicant’s allegations under Article 13 of the Convention concerned two separate decisions of the Blagoevgrad District Court: one relating to the rally planned for 30 September 2006 and another relating to the rally planned for 12 September 2007 (see paragraphs 12 and 15 above).", "Insofar as they concerned the latter, the allegations could not therefore be seen as an aspect of the initial complaint or legal submissions relating to it; they were rather a separate complaint under Article 13. That complaint was, however, first raised on 21 June 2013, many years after the rally planned for 12 September 2007 and the Blagoevgrad District Court’s decision relating to it. It has therefore been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 53. The complaint under Article 13 of the Convention relating to the rally planned for 30 September 2006 is, for its part, 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. The parties’ submissions 54. The Government submitted that the applicant had had at his disposal two effective remedies.", "55. First, the mayor’s decision had been amenable to judicial review. In support of their assertion that that remedy was effective, the Government submitted a 2012 decision of the Stara Zagora Administrative Court and a 2013 decision of the Montana Administrative Court which had annulled bans of rallies by reference to, inter alia, Article 11 of the Convention and on the basis that the mere fact that the rallies would have been an inconvenience to the participants in concurrent events or bystanders could not have justified banning them, as well as a 2011 decision of the Blagoevgrad Administrative Court which had annulled a ban of a post-election rally on the basis that the mayor had failed to provide any evidence in support of his conclusion that there had been a risk of violence. 56. Secondly, it had been open to the applicant to bring a claim for damages under section 1(1) of the State and Municipalities Liability for Damage Act 1988.", "57. The applicant submitted that although it had been possible to seek judicial review of the mayor’s decision, the Blagoevgrad District Court had not reviewed the way in which the mayor had assessed the facts, had not engaged with the applicant’s arguments and had not examined the ban’s necessity and proportionality, thus effectively rubber-stamping the mayor’s decision. He observed that, as already noted by the Court, when examining claims for judicial review of decisions to ban Ilinden’s rallies the courts in Pirin Macedonia had consistently ruled against Ilinden. A claim for judicial review of the mayor’s decision had thus lacked any prospect of success, and could not therefore be seen as an effective remedy. A claim for damages under section 1(1) of the 1988 Act did not constitute an effective remedy either, because it would have likewise not stood a reasonable prospect of success and because it could only have resulted in an award of compensation.", "2. The Court’s assessment 58. The Court already found that the applicant’s rights under Article 11 had been infringed (see paragraph 48 above). His grievance under that provision was therefore arguable and he was entitled to an effective remedy in respect of it (see Ivanov and Others, cited above, § 71). 59.", "The effective remedy required by Article 13 of the Convention is one where the national authority dealing with the case has to consider the substance of the Convention complaint, in line with the principles laid down in the Court’s case-law. Thus, if it faces a complaint under Article 11 relating to the right of freedom of assembly, that authority must examine, inter alia, whether it is “necessary in a democratic society” to restrict that right with a view to attaining a legitimate aim under the second paragraph of that Article, and carry out a balancing exercise between that right and the interests on account of which it is being restricted, without automatically giving preference to those other interests (see Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§ 343 and 356-58, 7 February 2017). 60. In this case, such balancing did not happen.", "The Blagoevgrad District Court did not explain why it considered that it was necessary in a democratic society to shield the participants in the parallel municipal event from the statements likely to be made in the course of the rally which the applicant sought to organise on the same day, or why it was impossible to reconcile the holding of the two events (see paragraph 12 above). Given that at the time when that court dealt with the case an almost identical point had already been determined by this Court in two judgments against Bulgaria relating to materially indistinguishable facts (see Stankov and the United Macedonian Organisation Ilinden, §§ 106-07, and United Macedonian Organisation Ilinden and Ivanov, §§ 113-14, both cited above), that omission was striking. It sits in stark contrast with the reasoning given by the courts in the three cases cited by the Government (see paragraph 55 above). The Blagoevgrad District Court’s approach in this case thus fell short of the requirements of Article 13 of the Convention. 61.", "As for the possibility for the applicant to seek damages under section 1(1) of the 1988 Act, the Court notes that in United Macedonian Organisation Ilinden and Ivanov (no. 2) (cited above, § 121) and Singartiyski and Others (cited above, § 36), it found, with reference to Article 35 § 1 of the Convention, that such a claim could not be regarded as an effective remedy in respect of a complaint under Article 11 of the Convention relating to a ban on the holding of a rally because the Government had not shown that it would have stood a reasonable prospect of success and because, more importantly, it could not in itself provide adequate redress since it could only result in an award of compensation. In view of the close link between Article 35 § 1 and Article 13 of the Convention (see, as a recent authority, Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 220, ECHR 2014 (extracts)), those findings are equally valid under Article 13 of the Convention. 62.", "There has therefore been a breach of that provision. IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 63. The applicant complained that the restriction of his right to freedom of assembly had been due to his being a member of an ethnic minority. He relied on Article 14 of the Convention, which provides as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A.", "The parties’ submissions 64. The Government submitted that when notifying the municipal authorities of the two planned rallies, the applicant had not acted in his personal capacity but on behalf of non-governmental organisations. Since both rallies had obviously been intended as group events, the applicant was not, individually, a victim of a violation. 65. The applicant submitted that although the decisions of the mayor and the Blagoevgrad District Court in this case did not overtly suggest a discriminatory intent vis-à-vis people asserting a Macedonian ethnic identity, the broader context, and in particular two elements, clearly showed such intent.", "66. The first element was the Bulgarian State’s policy of denying the existence of a Macedonian ethnic identity in Bulgaria. That policy had also manifested itself in many judicial decisions by the ordinary courts and by the Constitutional Court. Bulgaria’s refusal to recognise the existence of a Macedonian minority had prompted repeated expressions of concern by international bodies, such as the Advisory Committee on the Framework Convention for the Protection of National Minorities, the European Commission against Racism and Intolerance, and the Council of Europe’s Commissioner for Human Rights. 67.", "The second element was the systematic restriction of the applicant’s rights, as well as the rights of other ethnic Macedonians, under Article 11 of the Convention over the past two and a half decades. Many of those restrictions, whose discriminatory intent the authorities had sought to disguise using ostensibly legitimate reasons, had given rise to findings of violations by this Court. B. The Court’s assessment 68. The complaint relates to the same facts as the ones based on Articles 11 and 13 of the Convention: the ban of the rally planned for 30 September 2006 and the lack of an effective domestic remedy in that connection.", "Although the applicant insisted that his grievance under Article 14 required separate consideration, especially when seen against the overall background to which he referred, the Court, having carefully reviewed his arguments, does not find this to be the case. 69. In general, the Court examines complaints under Article 14 in addition to those under the substantive Article in conjunction with which it is being relied on only if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case and a separate examination is necessary (see, among other authorities, Airey v. Ireland, 9 October 1979, § 30, Series A no. 32; Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45; X and Y v. the Netherlands, 26 March 1985, § 32, Series A no.", "91; Chassagnou and Others v. France [GC], nos. 25088/94 and 2 others, § 89, ECHR 1999-III; Aziz v. Cyprus, no. 69949/01, § 35, ECHR 2004-V; Timishev v. Russia, nos. 55762/00 and 55974/00, § 53, ECHR 2005-XII; Moscow Branch of the Salvation Army v. Russia, no. 72881/01, § 100, ECHR 2006-XI; and Oršuš and Others v. Croatia [GC], no.", "15766/03, § 144, ECHR 2010). 70. Furthermore, in several cases not materially different from the present one – some of which concerned interferences with the rights of persons asserting an ethnic minority consciousness – the Court, having found a violation of the substantive Convention right at issue, saw no need additionally to deal with the complaint under Article 14 (see, among other authorities, Sidiropoulos and Others v. Greece, 10 July 1998, § 52, Reports of Judgments and Decisions 1998-IV; Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, § 49, ECHR 1999-VIII; Emek Partisi and Şenol v. Turkey, no. 39434/98, § 31, 31 May 2005; Ivanov and Others, cited above, § 78; United Macedonian Organisation Ilinden and Others, cited above, § 84; Bekir-Ousta and Others v. Greece, no.", "35151/05, § 51, 11 October 2007; Emin and Others v. Greece, no. 34144/05, § 37, 27 March 2008; Tourkiki Enosi Xanthis and Others v. Greece, no. 26698/05, § 63, 27 March 2008; United Macedonian Organisation Ilinden and Others (no. 2), cited above, § 49; and National Turkish Union and Kungyun v. Bulgaria, no. 4776/08, § 52, 8 June 2017).", "71. The Court sees no reason to depart from that approach in this instance. Having regard to its findings in paragraphs 44-48 above, it finds no need to examine separately the admissibility or merits of the complaint under Article 14 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 72. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 73. The applicant claimed 9,000 euros (EUR) in respect of non‑pecuniary damage. He pointed out that the restriction of his right to freedom of assembly had been part of a series of such restrictions, and had thus caused him a heightened sense of distress and frustration. 74. The Government submitted that there were no grounds to make an award in respect of the rally planned for 12 September 2007, as the Court had already dealt with that rally in United Macedonian Organisation Ilinden and Ivanov (no.", "2) (cited above). The effect of that judgment extended also to persons who, though not party to the proceedings in that case, had associated themselves with Ilinden and had raised identical complaints. In any event, the claim was exorbitant; a finding of a violation would in the circumstances constitute sufficient just satisfaction. 75. The Court notes that in this case, the award of just satisfaction can only be based on the breaches of Articles 11 and 13 of the Convention in relation to the rally planned for 30 September 2006.", "That said, the applicant must have suffered frustration from the unjustified restriction in September 2006 of his right to freedom of assembly on account of his historical and political views, which came after two previous restrictions, likewise found by the Court to be in breach of Article 11 (see Ivanov and Others, cited above, §§ 58-65) and from the lack of an effective remedy in that respect. In those circumstances, the Court awards him EUR 6,000, plus any tax that may be chargeable. B. Costs and expenses 76. The applicant sought reimbursement of EUR 2,940 in respect of the fees charged by his two representatives for forty-two hours of work on the case, at EUR 70 per hour.", "He requested that any award under this head be made directly payable to the Bulgarian Helsinki Committee. In support of his claim, he submitted a time-sheet for the work of his representatives. 77. The Government submitted that there was no proof that the applicant had in fact incurred the fees claimed by him. They were far higher than the rates under Bulgarian law and out of tune with the economic realities in the country.", "Also, the number of hours claimed on the case was unreasonable in view of its limited complexity. 78. As regards the costs referable to the complaints relating to the rally planned for 30 September 2006, in respect of which the Court found breaches of Articles 11 and 13, the Court notes that according to its settled case-law, costs and expenses are recoverable under Article 41 if it is established that they were actually and necessarily incurred and are reasonable as to quantum. 79. As for the costs referable to the part of the application which was struck out, under Rule 43 § 4 of the Rules of Court they are at the Court’s discretion (see Sisojeva and Others, cited above, §§ 130-31).", "The applicable principles are however essentially the same as those under Article 41 (ibid., § 133). 80. A representative’s fees are actually incurred if the applicant has paid them or is liable to pay them (see Luedicke, Belkacem and Koç v. Germany (Article 50), 10 March 1980, § 15, Series A no. 36; Artico v. Italy, 13 May 1980, § 40, Series A no. 37; and Airey v. Ireland (Article 50), 6 February 1981, § 13, Series A no.", "41), even if that liability is under a conditional-fee agreement, so long as that agreement is enforceable in the respective jurisdiction (see Ivanova and Cherkezov v. Bulgaria, no. 46577/15, § 89, 21 April 2016). 81. The applicant did not submit any documents showing that he had paid or was under a legal obligation to pay the fees whose reimbursement he sought, and there is therefore no proof that the costs claimed by him were actually incurred. His claim must therefore be rejected.", "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. Decides to strike the complaints under Article 11 and 14 of the Convention relating to the rally planned for 12 September 2007 out of its list of cases; 2. Declares the complaints relating to the exercise of the applicant’s right to freedom of peaceful assembly in relation to the rally planned for 30 September 2006, and the alleged lack of an effective remedy in that respect admissible, and the complaint concerning the alleged lack of an effective remedy in relation to the rally on 12 September 2007 inadmissible; 3.", "Holds that there has been a violation of Article 11 of the Convention; 4. Holds that there has been a violation of Article 13 of the Convention; 5. Holds that there is no need to examine the admissibility or merits of the complaint under Article 14 of the Convention; 6. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 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; 7. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 11 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekAngelika NußbergerRegistrarPresident" ]

[ "FIFTH SECTION CASE OF BRENNAN v. IRELAND (Application no. 44360/15) JUDGMENT STRASBOURG 2 November 2017 This judgment is final but it may be subject to editorial revision. In the case of Brennan v. Ireland, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Nona Tsotsoria, President,Síofra O’Leary,Lәtif Hüseynov, judges, and Anne-Marie Dougin, Acting Deputy Section Registrar, Having deliberated in private on 10 October 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 44360/15) against Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ms Margaret Brennan (“the applicant”), who holds both Irish and British nationality, on 15 January 2016.", "2. The Irish Government (“the Government”) were represented by their Agent, Mr P. White of the Department of Foreign Affairs and Trade. 3. On 29 September 2016 the complaint concerning the length of the proceedings was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1947 and lives in Co. Roscommon. 5. In November 1999 the applicant purchased a newly-built house, which has been her dwelling place since then. The sale took the form of two agreements. The first was an agreement to purchase the land from the owners, Mr and Mrs F, for the sum of 5,000 Irish pounds (IEP) (approximately 6,350 euros).", "The second was a building agreement under which she paid IEP 80,000 (approximately 101,600 euros) to a building company called T and C Developments Ltd. The company was owned by Mr and Mrs F, who were the only shareholders. The house was covered by a guarantee provided by a company known as Homebond. 6. From the time she moved into the house in March 2000, the applicant noted major structural defects in the property.", "She reported this to Homebond in September 2001. The company carried out an inspection of the house and, in September 2002, offered to make certain repairs to it in accordance with the terms of the guarantee. According to the applicant, Homebond refused to issue an Engineer’s certificate/guarantee upon the completion of the works, which would have been required if the applicant were to sell the house afterwards. 7. In February 2003 the applicant instituted proceedings in the High Court against the parties mentioned above, i.e.", "Mr and Mrs F (first and second defendants), T and C Developments (third defendant), and Homebond (fourth defendant). A fifth defendant was included in the action, a Mr Q, who, as an engineer, had certified that the house was in compliance with the relevant building regulations. In March 2003, Mr Q’s company was named as the sixth defendant. The applicant filed her statement of claim in May 2003. 8.", "Over the following months, she wrote several times to the solicitors for the first three defendants requesting that they deliver their defence, on each occasion offering some additional time for this purpose. By December 2003 these defendants had not yet delivered their defence, at which point the applicant applied to the High Court for a judgment in default of defence against them. 9. The statement of claim was not served on the fourth defendant until December 2003, an oversight that the applicant attributed to her solicitors. The fourth defendant entered its defence to the plaintiff’s claims in May 2004.", "10. In January 2004 the High Court ordered the first three defendants to deliver their defence within three weeks. In March 2004, the applicant agreed to allow an additional 21 days for them to file their defence. 11. In July 2004 the applicant again applied to the High Court for a default judgment against the first three defendants, in light of their failure to enter their defence to the action.", "The defence was filed in September 2004. While it was presented as the defence of the first and second defendants, it was clarified at a later stage in the proceedings (in mid-2009), that it also concerned the third defendant. 12. On 20 December 2004, at the request of the applicant, the High Court gave a default judgment against the fifth and sixth defendants (Mr Q and his company), holding them liable to the applicant in damages and for costs. According to the judgment, these sums were to be assessed at a future date.", "The judgment was never enforced. The applicant explained that she received legal advice to the effect that the practice was to hold over such judgments until the case had been heard and damages assessed. She added that at a later stage in the proceedings (2009/2010) she received legal advice that the default judgment had by then expired. 13. According to the applicant, in the years 2005-2008 her solicitors considered it more effective to engage principally with the fourth defendant, Homebond, in light of the guarantee on the house.", "Homebond made a proposal to the applicant in June 2006 to carry out remedial work on the house. Her solicitor sought clarification of the proposal, writing several times between December 2006 and February 2008 when Homebond replied. The applicant indicated her readiness to accept the proposal. However, when subsequently requested to assign her rights to Homebond she sought clarification of the matter from the company, writing in April 2008 and again in April 2009. 14.", "On 20 April 2009 the High court granted a motion brought by the applicant’s solicitor to cease to represent her. From that point onwards, she acted as a lay litigant. 15. On 22 April 2009 the applicant gave notice of intention to proceed with her case to all of the defendants, a necessary step under domestic law where proceedings have been dormant for more than one year (Order 122 r. 11 of the Rules of the Superior Courts). 16.", "On 20 July 2009 the High Court struck out the applicant’s motion for a judgment in default of defence. The applicant sought to appeal this ruling to the Supreme Court, requesting additional time for this purpose in September 2009, which the Supreme Court refused to allow on 16 October 2009. 17. On 13 October 2010 the applicant again gave notice of her intention to proceed. The following month, she was informed by solicitors for Homebond that the offer made in 2002 was still valid.", "18. On 12 September 2011 the applicant once more issued notice of her intention to proceed. In November 2011 she sought a trial date and was informed that a hearing would take place in March 2012, later moved to April 2012. At that point it was suggested by a High Court judge that the parties could attempt to resolve the dispute by mediation. The applicant explored this option but did not pursue it when it became clear, by June 2012, that some of the defendants were not interested.", "By this stage she had been informed that the sixth defendant had gone into voluntary liquidation. In July 2012 the applicant was informed that the case would be heard in early 2013. A. Decisions of the High Court 19. The case was not heard as a single action.", "Only the fourth and fifth defendants appeared (the latter only briefly) at the hearing that commenced on 29 January 2013. The first three defendants, although given notice of the hearing, were not represented at it. The High Court’s ruling, given on 20 March 2013, therefore only considered the claims against Homebond and Mr Q. The judge ruled that Homebond was liable to the applicant under the terms of the guarantee. Although the guarantee set an upper limit of IEP 30,000 (approximately 38,100 euros), the judge considered that in the circumstances of the case it was justified to award the full amount of the estimate for repairs, approximately 51,000 euros.", "The judge dismissed the case against Mr Q, and observed that the real fault lay with the builder. 20. On 10 April 2013 the High Court issued an order against the fourth defendant for the amount awarded to the applicant. 21. On 15 May 2013 the same judge dealt with the case against the first three defendants.", "She held them jointly and severally liable to the applicant in damages for 94,082 euros. B. The Homebond appeal 22. Homebond sought to appeal the judgment and order against it. For this it was required to serve the notice of appeal personally on the applicant within twenty-one days.", "According to the elements in the case-file, the company’s solicitors tried unsuccessfully to arrange service on the applicant. They subsequently applied to the Supreme Court for additional time to appeal, which was granted on 14 June 2013. 23. The applicant brought a cross appeal, claiming that the High Court had wrongly failed to award her legal costs. 24.", "In October 2014 the applicant sought to have the appeal struck out for lack of prosecution by Homebond. This was not granted. Instead, ruling on 10 October 2014 the Supreme Court granted her two weeks to make her submissions on the question of costs. The applicant filed her submissions the following week. 25.", "On 28 October 2014 many pending appeals were transferred from the Supreme Court to the new Court of Appeal, including the Homebond appeal. 26. In November 2014, the Court of Appeal directed the parties to file their respective submissions within two weeks, granting a short extension of this deadline the following month. On 19 December 2014 it set a hearing date of 23 February 2015. On the latter date it allowed Homebond’s appeal and dismissed the applicant’s cross appeal.", "C. The appeal brought by the first and second defendants 27. On 10 June 2013 the first and second defendants filed a notice of appeal against the judgment of the High Court. 28. On 8 July 2013 the High Court made a garnishee order attaching monies owed by a commercial bank to the first and second defendants in the amount of the damages awarded to the applicant. 29.", "On 26 July 2013 the Supreme Court granted to the defendants a stay on the award of damages, on condition that they pay into court the sum of 45,000 euros within a period of three months, failing which the stay would lapse. The payment was not made. An application by the defendants to put forward property deeds in lieu of money was refused by the Supreme Court on 22 November 2013. 30. The applicant obtained a judgment mortgage against the defendants on 29 October 2013.", "31. On 24 January 2014 the Supreme Court again refused an application from the defendants to stay the judgment of the High Court. It also refused to lift the garnishee order and to vacate the judgment mortgage obtained by the applicant. 32. On 11 July 2014 the Supreme Court refused an application from the applicant to strike the appeal out for lack of prosecution.", "It directed the defendants to file their books of appeal within ten weeks, failing which the appeal would be dismissed. 33. The appeal was transferred to the Court of Appeal, which indicated on 19 November 2014 that it would first consider the issue of the liability of the first and second defendants, and set a short deadline for the parties’ submissions on this. 34. The hearing took place on 9 March 2015.", "The Court of Appeal set aside the judgment of the High Court, holding that as a matter of law Mr and Mrs F were not liable to the applicant for the defects in the house since they had simply sold her the land and were not themselves party to the building agreement. There could only be a remedy against the third defendant, T and C Developments Ltd., with whom the applicant had concluded the agreement in 1999. 35. The applicant sought leave to appeal to the Supreme Court against this judgment. On 29 July 2015 the Supreme Court refused to grant leave.", "THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 36. 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 ...” 37. The Government contested that argument. A. Admissibility 38. The Government accepted that the complaint was admissible.", "39. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The parties’ submissions 40. The applicant maintained that the duration of the proceedings had been excessive, and was critical of the conduct of the other parties as well as of the manner in which the case was dealt with by the courts, notably at the appellate stage. 41. The Government denied that there had been a breach of Article 6.", "They argued that the length of the proceedings could not be attributed to the respondent State, as it had not been caused by any backlog before the courts, or an insufficient number of judges or any other failure on the part of the authorities. Instead, the duration of the proceedings was due to the exceptional procedural complexity of the case. The applicant had named six defendants and during the litigation had made numerous applications to the courts for various interim reliefs. The applicant’s legal strategy had also contributed to the overall duration. The fourth defendant had made an initial proposal to the applicant in 2002, and the matter was still subject to correspondence between them in 2009.", "For most of that time, the applicant did not pursue the other defendants. While the applicant blamed her solicitor for various errors, the State should not be liable for this, or for any similar shortcomings by any other parties to the proceedings. 42. The Government defended the High Court’s suggestion in 2012 that the parties seek to resolve the case through mediation. This was a legitimate course of action to propose in the circumstances, and the delay it caused should not be held against the respondent State, they argued.", "43. The Government denied that there had been any excessive delay in hearing the appeals, and noted that the applicant had had procedures available to her to deal with any delays on the part of the other parties. She had herself contributed to the duration of the appellate proceedings by avoiding service of the fourth defendant’s notice of appeal against the judgment and order of the High Court. 44. Once the cases had been transferred to the Court of Appeal, there had been no delay.", "Thanks to active case management by that court, the appeals had been decided within a few months. The final stage, before the Supreme Court, had been free of any delay. 2. The Court’s assessment 45. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case, which call for an overall assessment, with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no.", "30979/96, § 43, ECHR 2000-VII, and Superwood Holdings Plc and Others v. Ireland, no. 7812/04, § 34, 8 September 2011). 46. The Court notes that the proceedings commenced on 10 February 2003 and ended on 29 July 2015. The overall duration was thus twelve years and five months involving three instances.", "47. Regarding the complexity of the case, the Court does not consider that the proceedings presented any particularly difficult questions of law for the domestic courts to resolve. It agrees with the Government, however, that the case proved to be very complex procedurally by virtue of the number of defendants, and also the manner in which the applicant chose to conduct it. 48. In this respect, the Court notes that the applicant commenced proceedings against six different defendants in the period February-March 2003, although the statement of claim was not served on the fourth defendant until December of that year.", "During this initial stage of the litigation, she made use of certain procedural means to advance the proceedings, quickly obtaining a default judgment against two of the defendants in December 2004. At that stage, as she explained in her submissions, she followed legal advice to engage with the fourth defendant with a view to obtaining the redress she sought for the poor construction quality of her house. In consequence, the proceedings were effectively in abeyance from 2005 until April 2009 when she took over the case from the solicitor and acted as a lay litigant. Between that point in time and September 2011 she issued three notices of intention to proceed, these documents being necessary when a case has been left dormant for a considerable period of time. 49.", "The Court has repeatedly held that an applicant cannot be blamed for making full use of the multiple remedies available to them under domestic law. An applicant’s conduct, however, constitutes an objective fact which cannot be attributed to the respondent State and which must be taken into account in determining whether or not the length of the proceedings exceeds what is reasonable (McMullen v. Ireland, no. 42297/98, § 35, 29 July 2004). This includes any errors that may have been committed by an applicant’s legal representative. The Court considers that the lengthy delay described above should be attributed to the applicant.", "50. In her submissions, the applicant stated that, acting as a lay litigant, it took her two years to ready the case for trial and then to seek and obtain a hearing date. Based on the materials before the Court, it can be said that from August/September 2011 the proceedings were being actively prosecuted once more. Although the applicant acted thereafter with relative diligence, it is clear from the material before the Court that her conduct throughout the overall period in which the case was before the High Court had a critical impact on the progress of the case. 51.", "As for the conduct of the relevant authorities, the Court will focus its analysis on the period running from November 2011, when the applicant requested the High Court to set her case down for trial. The Court notes that a trial date was initially set for the following March (subsequently moved to April), which does not disclose any excessive delay. 52. At that point, it was suggested to the applicant by a judge of the High Court that the case might be resolved through mediation. She pursued this course, but two months later concluded that it would not be viable and again sought a hearing date, which was set for the following January, i.e.", "six months later. While the attempt at mediation had the effect of delaying trial by nine months, the Court agrees with the Government that, given the nature of the case, the proposal to seek mediation was reasonable and legitimate, with the potential to resolve the dispute between the parties within a shorter timeframe than through litigation. 53. The case duly came before the High Court in January 2013. The non-attendance of the first three defendants did not impede the hearing of the action in relation to the fourth and fifth defendants, and the judgment was given within two months.", "The remainder of the action was decided two months after that, i.e. eighteen months after the case was ready for hearing. Making allowance for the attempt to settle the dispute through mediation, the Court does not consider that there was excessive delay in the proceedings before the High Court. 54. The applicant was critical of the duration of the appellate stage of the proceedings, which ran from June 2013 to July 2015, involving two levels of jurisdiction.", "The Government argued that, in relation to the Homebond appeal, she had contributed to the duration by failing to accept service of the notice of appeal. The Court notes that this added somewhat to the delay but did not have a significant impact on the case, as the Supreme Court granted Homebond an additional fourteen days to serve notice of its appeal, i.e. by the end of June 2013. There is no indication of any other activity in relation to that appeal until October 2014 when the applicant sought to have it struck out for want of prosecution. In that same month, however, the case was transferred to the new Court of Appeal.", "There it was rapidly subject to case management, leading to a hearing within four months of the transfer. The decision, delivered that same day, came twenty-three months after the decision of the High Court and marked the end of the case against Homebond. 55. Regarding the other appeal, which was initially dealt with the by the Supreme Court, there appear to have been no developments between June 2013 and July 2014 when the applicant applied to have the proceedings struck out. The Supreme Court responded by setting a ten-week deadline for the appellants to file their submissions.", "The appeal was transferred to the Court of Appeal where, as with the Homebond appeal, the parties quickly received directions from that court regarding the lodging of submissions, and the hearing took place within five months of the transfer. The decision on appeal came twenty-two months after that of the High Court. It is clear from the manner in which the appeals were dealt with by the Court of Appeal after they were transferred that it was alive to the issue of delay and prepared to take steps in order to dispose rapidly of the proceedings to the extent possible (see Beggs v. the United Kingdom, no. 25133/06, § 272, 6 November 2012). The final stage, regarding this aspect of the litigation – the Supreme Court’s refusal of leave to appeal – was concluded without delay.", "56. As to what was at stake for the applicant, the Court accepts that the subject-matter of the proceedings – structural faults in her home – was of importance for her, and affected her quality of life throughout the duration of the case. 57. However, the Court is of the view that the present litigation took on a scale and duration incommensurate with the relatively simple nature of the underlying legal claim and that the applicant’s own actions generated much of the delay (see, in a similar vein, McNamara v. the United Kingdom, [Committee], no. 22510/13, § 60, 12 January 2017).", "Assessing the reasonableness of the length of proceedings in the light of all the circumstances of the case, the Court concludes that there has been no violation of Article 6 § 1 of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint concerning length of proceedings admissible; 2. Holds that there has been no violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 2 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Anne-Marie DouginNona TsotsoriaActing Deputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF ASLAKHANOVA AND OTHERS v. RUSSIA (Applications nos. 2944/06 and 8300/07, 50184/07, 332/08, 42509/10) JUDGMENT STRASBOURG 18 December 2012 FINAL 29/04/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Aslakhanova and Others v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Anatoly Kovler,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Julia Laffranque,Linos-Alexandre Sicilianos,Erik Møse, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 4 December 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in five applications against the Russian Federation (see Annex I) lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by sixteen Russian nationals (“the applicants”), on the dates indicated in Annex I.", "2. The applicants were represented by lawyers of the NGO Stichting Russian Justice Initiative (SRJI) (in partnership with the NGO Astreya) and Mr D. Itslayev, a lawyer practising in Ingushetia. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicants alleged that their eight relatives had been detained by servicemen in Grozny or the Grozny District in Chechnya on various dates between 2002 and 2004 and that no effective investigations had taken place.", "4. The applications were communicated to the Government between April 2008 and January 2011. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1). 5. On 15 June 2011 the Court decided to communicate to the Government additional questions under Article 46 of the Convention about the possibly structural nature of the failure to investigate disappearances.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applications have been lodged by five families who complain about the disappearance of their eight male relatives in Grozny or the Grozny District between March 2002 and July 2004. The abductions occurred in quite similar circumstances: the applicants’ relatives were arrested by groups of armed and masked men at their homes or in the streets in a manner resembling a security operation. In each case a criminal investigation file was opened by the local prosecutor’s office.", "At the end of 2011, when the latest round of observations was submitted, the investigations remained pending without having produced any tangible results as to the whereabouts of the applicants’ relatives or the identity of the perpetrators. 7. In their observations the Government did not dispute the principal facts of each case as presented by the applicants, but noted that as the domestic investigations were pending, any conclusions about the exact circumstances of the crimes would be premature. They argued that it had not been established with sufficient certitude that the applicants’ relatives had been detained by State agents or that they were dead. 8.", "Below are summaries of the facts relevant to each individual complaint. The personal data of the applicants and their disappeared relatives and some other key facts are summarised in the attached table (Annex I). A. Application no. 2944/06, Satsita Aslakhanova v. Russia 1.", "Abduction of Apti Avtayev 9. The applicant was living in Urus-Martan, Chechnya, with her husband Apti Avtayev. They had two daughters, born in 1997 and 1999. According to the applicant, at 10 a.m. on 10 March 2002 a large group of servicemen (about fifty) wearing camouflage uniforms and armed with automatic weapons had conducted a sweeping operation in Dzerzhinskogo Street in Grozny, where the applicant’s husband had been working at the time. They had used several APCs and military Ural trucks without number plates.", "They had entered the houses, searched them and led Apti Avtayev away. 10. The applicant had not been a witness to her husband’s abduction as at the relevant time she had been staying in Urus-Martan. The description of the events of 10 March 2002 was based on the accounts provided to the applicant’s representatives by her on 1 August and by the witnesses to Apti Avtayev’s abduction: by Mr M. D. on 14 July 2005; by Mr R. P. on 14 July 2005; and by Mrs A. B. on 15 July 2005.", "2. Official investigation 11. The applicant arrived in Grozny on 11 March 2002 and started to search for her husband. She personally visited the local police station, the military commander’s office and the prosecutor’s office. In the subsequent months she wrote to numerous official and public bodies, as testified by her and attested by some responses to her queries received in June 2002.", "12. On 19 August 2002 the Leninskiy District Department of the Interior (“the Leninskiy ROVD”) of Grozny opened criminal investigation file no. 48139 under Article 126 § 2 of the Criminal Code (aggravated kidnapping). On the same day the applicant was questioned and granted the status of victim. 13.", "The investigation was suspended on several occasions. It was also transferred from one prosecutor’s office to another. The Government refused to disclose any documents from the file. Instead, they referred to some documents which, in their opinion, called into question the applicant’s presentation of the facts. The applicant therefore submitted a copy of a report of an unspecified date, in which the head of the Leninskiy ROVD had informed the Grozny Prosecutor’s Office that Apti Avtayev had been detained by contract servicemen of the Leninskiy district military commander’s office, who had told [local residents] that his body could be found in the Sunzha River.", "The same servicemen had later returned and terrorised the witnesses to the abduction, forcing them to flee. In their observations the Government questioned the validity of that document. Furthermore, they alleged that Mrs A.B., the owner of the house in Grozny where Apti Avdayev had been apprehended, had been away on the day in question. In turn, the applicant disputed that allegation and submitted an additional testimony by Mrs A.B. dated 15 September 2009, confirming her previous statements as an eyewitness to the abduction and attesting that she had not been questioned about the crime.", "14. On 19 September 2005, following a complaint by the applicant, the Leninskiy District Court of Grozny found that the investigation had been ineffective, ordered its resumption and instructed that the applicant be issued with copies of certain procedural documents. At the same time, the court observed that the applicant could access and make copies of documents in the criminal investigation file only after the completion of those proceedings. On 9 November 2005 the Supreme Court of Chechnya confirmed that decision on appeal. 15.", "On 11 March 2003, following a request by the applicant, the Leninskiy District Court declared Mr Avtayev a missing person as of 10 March 2002. B. Applications no. 8300/07, Barshova and Others v. Russia and no. 42509/10, Akhmed Shidayev and Belkis Shidayeva v. Russia 1.", "Abduction of Anzor and Sulumbek Barshov 16. At 2 a.m. on 23 October 2002 a group of about thirty armed men in camouflage uniforms, wearing masks, armed with sub-machine guns equipped with silencers and speaking Russian entered the applicants’ house in Grozny, searched it and beat up the two Barshov brothers. They put black plastic bags over the heads of the two men, fixed them with adhesive tape and took them away in their underwear and barefoot. The intruders tied up the applicants’ hands and covered their mouths with adhesive tape. Once the applicants had managed to release themselves, they followed the footprints of military boots and bare feet, which were clearly visible in the wet mud.", "They arrived at a military checkpoint located by a bridge over the Sunzha River, about 700 metres from their house. The servicemen stationed there allegedly told them that their relatives had been taken away by “federal servicemen” in UAZ cars. 17. The first applicant submitted her own statement of November 2006, as well as written testimonies by four of her relatives and neighbours made between August and November 2006, which were fully consistent with her statements. 2.", "Abduction of Abuyazid Shidayev 18. Akhmed (the applicant) and Abuyazid Shidayev (his father) were detained at 2.30 a.m. on 25 October 2002 at their home, presumably by the same group as the Barshov brothers (no. 8300/07). Akhmed Shidayev was released on 30 October 2002 in a forest near Grozny and gave detailed submissions to the Court and the investigation about being taken, blindfolded, to the checkpoint, placed in a UAZ vehicle and subsequently detained at a military installation. On the night of his abduction, while being transported in a UAZ vehicle, and later at the installation, he was detained together with his father and the Barshov brothers.", "19. According to the applicants, when the first applicant was released he had had numerous bruises on his body and head, scars on the inner side of his legs and a swollen testicle. He had been afraid to seek medical assistance in Chechnya and had undergone inpatient medical treatment for three months outside the region, under a false name. He had been recommended surgery on the injured testicle. The applicants furnished no medical documents in support of the allegations of injuries sustained by the first applicant.", "20. In addition to the detailed statements to the domestic investigating authorities (see below), the applicants made three testimonies to the Court dated June 2010, describing in detail the events in question. 3. Official investigation 21. The investigation into the abduction of the Barshov brothers [in many documents in the file also spelled “Borshov”] and two members of the Shidayev family was opened on 31 October 2002 by the Leninskiy ROVD of Grozny.", "It was suspended and resumed on several occasions but produced no tangible results. In May 2011 the Government submitted 592 pages - the entire contents of the criminal investigation file no. 48188. In November 2010 (the date of the latest documents), the case remained pending; no progress had been made in respect of finding the missing men or identifying the perpetrators. Several eyewitnesses testified that the detained men had been taken by their abductors to UAZ vehicles parked near a roadblock at the Zhukovskiy bridge; however, it does not appear that the servicemen manning the roadblock were identified or questioned.", "22. On 18 November 2002 Mrs Barshova was granted the status of victim. She was questioned on several occasions after that date. Belkis Shidayeva was questioned and granted the status of victim on 28 July 2003. 23.", "Akhmed Shidayev was questioned on 30 May 2003 and 23 May 2005. He testified that he had been detained together with the three missing men. He gave detailed submissions about his detention, beatings, questioning and release at an installation that he presumed to be military. He referred to the black camouflage uniforms of the abductors, the UAZ vehicles and the sounds of helicopters landing and taking off above the “pit” where he had been detained. On 30 July 2003 he was accorded the status of victim in the criminal investigation.", "When questioned in September 2009 he explained that at the time of release he had been afraid to seek medical help, but that for some time after the beatings he had suffered acute pain in the chest and had had difficulty breathing. It does not appear that any further steps were taken to back up his allegations of ill-treatment, such as the carrying out of a forensic expert report or medical examination. 24. The investigators received mostly negative replies to their requests for information about the detained men. Various state bodies, including the Ministry of the Interior and the Federal Security Service (“the FSB”), denied having any knowledge of the events or of the fate of the disappeared men, or any information that could implicate them in any criminal activities.", "The case file contains a handwritten note dated June 2005 entitled “Report”, drawn up by a serviceman of the Leninskiy ROVD, Senior Lieutenant Kh. The note alleged, without further references, that the Barshov brothers had been members of an illegal armed group under the command of “emir Murad Yu.”, active in the Leninskiy District. It listed ten other men as members of the same group, some of whom had been killed and others who were being searched for. According to the note, in the autumn of 2004 the Barshov brothers had taken part in the secret burial of emir Yu., following which they had been abducted by unidentified servicemen. 25.", "Another handwritten document, which was undated and entitled “Explanation” (объяснение), was signed by M.Ch, one of the men listed in the “Report”. According to the text, at some time in 2002 M.Ch. and “Sulumbek” [Barshov], following the orders of Murad Yu., had placed an improvised explosive device near a roadblock in Grozny, as a result of which three servicemen had been wounded. Further documents indicated that the crimes committed by that group had become the subject of a separate investigation; in 2009 some pieces of evidence had been declared inadmissible for serious procedural breaches and the investigation had been suspended. Sulumbek Barshov has never been formally charged or suspected of any criminal acts.", "26. The transcripts also state that the witnesses and Akhmed Shidayev were questioned about their possible relationship with Murad Yu. According to a statement made by Akhmed Shidayev’s sister to the Court in June 2010, their other brother, Magomed Shidayev, had been among the terrorists who had seized the Nord-Ost theatre in Moscow in October 2002, and had been killed there. 27. In June 2006 the applicant Larisa Barshova submitted to the investigators a handwritten note, allegedly given to her by a man who had been released from prison and who had identified her son, Anzor Barshov, from a photograph.", "The investigation had not located the man. The note said that Anzor Barshov had been charged with the illegal handling of explosives and had been transferred to different prisons in the Southern Federal Circuit between December 2002 and December 2003. The note also indicated the names and positions of two FSB officers who had allegedly been in charge of the investigation. It does not appear that any of those leads were successful: the two officers were not identified, and the detention centres denied having Anzor Barshov or the other disappeared men on their records. 28.", "Further to a complaint lodged by Mrs Barshova under Article 125 of the Code of Criminal Procedure, on 7 November 2006 the Leninskiy District Court of Grozny ordered the investigator to resume the suspended proceedings; it also criticised the investigating authorities’ inactivity in the preceding period. It also upheld the refusal of the prosecutor’s office to grant the applicant full access to the case file since the investigation was pending. On 7 February 2007 the Supreme Court of Chechnya confirmed that decision; it also ordered the prosecutor to issue the applicant with copies of the procedural documents sought by her. 29. On 16 October 2008 the Leninskiy district prosecutor criticised the investigation as ineffective and ordered it to be resumed.", "30. On 7 May 2010, further to a complaint lodged by Belkis Shidayeva, the Leninskiy District Court of Grozny quashed a decision of 20 November 2008 to adjourn the investigation. The court found that the investigator had failed to carry out a thorough investigation. C. Application no. 50184/07, Malika Amkhadova and Others v. Russia 1.", "Abduction of Ayub Temersultanov 31. Between 7 a.m. and 8 a.m. on 1 July 2004, fifteen to twenty persons armed with sub-machine guns, wearing camouflage uniforms and masks, entered the applicants’ flat in Grozny. Some of them were equipped with metal shields to protect their bodies and metal spherical helmets, typical of the police special forces. They spoke Russian and communicated by radio with someone in command. They searched the flat and adjacent flats, checked the residents’ identity documents and beat up the applicants.", "They covered the heads of Ayub Temersultanov and two other men with plastic bags or their own clothes and led them away to a convoy of six vehicles, consisting of a white Volga, a Niva, a Gazel and three grey UAZ vehicles, all without registration plates. The convoy passed in front of at least two permanent police checkpoints. Later that day, two of the applicants’ relatives who had been detained together with Ayub Temersultanov were released in the Grozny District, in the vicinity of the Khankala military base. They gave detailed submissions about their journey, blindfolded, to an unknown place about one hour away, where both were questioned about their relations. 32.", "The applicants submitted six witness statements made in 2006 and 2007 by them, their neighbours and relatives who had witnessed the abduction. 2. Official investigation 33. The investigation into the abduction was opened by the Leninskiy District Prosecutor’s Office of Grozny on 9 August 2004, even though a number of investigative measures had already been taken in July 2004. It was suspended and resumed on several occasions, without any apparent outcome.", "The Government have provided seventy-five pages of documents from the file. The second applicant was granted the status of victim on 10 August 2004. The witnesses alleged that some of the vehicles (including the Gazel and the UAZ) had been armoured and that the abduction had occurred in full view of a permanent police checkpoint. Two men who had been taken away and then released were questioned in August and October 2004. One of them testified that he had been questioned about the terrorist act of 9 May 2004 in Grozny.", "The latest documents submitted by the Government relate to October 2007, at which time the investigation was pending. The applicants petitioned the prosecutor’s offices, but not the court. D. Application no. 332/08, Sagaipova and others v. Russia 1. Abduction of Ayub Nalbiyev, Badrudin Abazov and Ramzan Tepsayev 34.", "Between midnight and 3 a.m. on 22 February 2003 a group of about ten men, wearing camouflage uniforms, masks and armed with automatic rifles consecutively broke into three houses in Dachu-Borzoy, in the Grozny District. The men spoke Russian and communicated with their superiors by radio. They used several (up to five) APCs and UAZ vehicles. They beat up Ayub Nalbiyev, Badrudin Abazov, Ramzan Tepsayev and some of the applicants; covered the detainees’ heads with their clothes and led them away. All detainees were taken away in their underwear and barefoot.", "The applicants claimed to have seen the APCs’ tyre tracks in the snow the following day, leading over a bridge to the village of Duba-Yurt, and passing by the side of a military base and a permanent military roadblock located on the bridge over the Argun River between the villages of Dachu-Borzoy and Duba-Yurt. 35. In 2007 three of the applicants provided the Court with witness statements describing the abductions and their efforts to locate their relatives. 2. Official investigation 36.", "On 12 March 2003 the Grozny district prosecutor’s office opened a criminal investigation into the abduction of the three men. The Government have submitted 422 pages from that file. The documents contain numerous references to military vehicles and the servicemen’s participation in the abduction; however, the investigation was not transferred to the military prosecutor’s office. 37. In February 2003 the head of the Dachu-Borzoy administration corroborated the applicants’ statements about the circumstances of the abductions.", "In his statement he also alleged that later that year an FSB officer had shown him a list of wanted persons, including the names of the three detainees. It does not appear that that officer has ever been identified or questioned. The only other testimonies contained in the file had been given by the applicants and their relatives. 38. The site was examined on 26 February 2003.", "In March 2003 the family members of the disappeared men were accorded the status of victims in the proceedings. On 17 May 2007 the applicants’ representative was allowed to study the file. By that time, the investigation had been suspended and resumed on several occasions. 39. Judging by the responses received from the Ministry of the Interior and the military prosecutor’s office, their cooperation was minimal: most of the letters contained standard phrases that no information relevant to the case had been available.", "40. On at least two occasions in 2003 the progress of the case was discussed at working meetings held by the deputy prosecutor of the Grozny District, together with the police and military commanders. The minutes of the meetings contain references to the lack of cooperation of the military and the Ministry of the Interior with the investigation, and in particular to the absence of information about the possible provenance of five APCs and a UAZ vehicle. 41. On 23 March 2007 the central archive office of the Ministry of the Interior informed the investigators as follows: “...[P]ursuant to the State Secrets Act (Federal Law No.", "5485-1) of 21 July 1993, Presidential Decree No. 1203 of 30 November 1995 setting up the list of information constituting state secrets, and Order of the Ministry of the Interior No. 200 of 2 March 2002 [confidential], all documents contained in the central archive of the Ministry of the Interior, deposited by the military units that took part in restoring constitutional order and fighting the [illegal armed groups] in the Chechen Republic, have been classified as confidential and containing state secrets. Pursuant to section 30 of the Troops of the Ministry of the Interior Act (Federal Law No. 27-FZ) of 6 February 1997 it is prohibited to disseminate information about the location or movements of the military units of the Interior Troops, or about the carrying out by those units of tasks in the context of fighting the illegal armed groups.", "Information about the service missions of those units may be disclosed only by an appropriate commander, upon the permission of the Ministry of the Interior. Pursuant to section 16 of the State Secrets Act (Federal Law No. 5485-1) of 21 July 1993, such information cannot be made available to you without the authorisation of the Ministry in charge of the archive. It would therefore appear necessary for you to seek permission from the Ministry of the Interior to peruse documents containing state secrets. Once such an authorisation has been obtained, the necessary documents will be provided to you by the [central archive].” 42.", "The investigation was adjourned in 2007. The Government submitted that it was still pending. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Criminal Code of the Russian Federation of 1996 43.", "Article 105 of the Russian Criminal Code of 1996 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. 44. Under Article 126, kidnapping is punishable by up to eight years’ imprisonment. Aggravated kidnapping, for example, committed with the use of arms or by an organised group, is punishable by up to fifteen years’ imprisonment.", "45. Article 78 sets time-limits for criminal liability. A person cannot be held liable for a crime after ten years in the case of a serious crime (punishable by up to ten years’ imprisonment) and after fifteen years in the case of a grave crime (punishable by prison terms exceeding ten years’ imprisonment). Time starts to run from the date of the crime and stops running on the judgment of the trial court. If the person escapes justice, the time does not start to run until the person is found.", "The applicability of time-limits in cases of crimes punishable by a life sentence or the death penalty is decided individually by the trial court. No time-limits are applicable to crimes against peace and humanity. B. Code of Criminal Procedure 46. The 1960 Code of Criminal Procedure of the Russian Soviet Federative Socialist Republic, which was in force until 1 July 2002, required a competent authority to institute criminal proceedings if there was a suspicion that a crime had been committed.", "That authority was under an obligation to establish the facts and to identify those responsible and secure their conviction. The decision whether or not to institute criminal proceedings had to be taken within three days of the first factual report (see Articles 3 and 108-09). 47. On 1 July 2002 the 1960 Code was replaced by the Code of Criminal Procedure of the Russian Federation. 48.", "The new Code establishes that a criminal investigation may be initiated by an investigator or a prosecutor on a complaint by an individual or on the investigating authorities’ own initiative, where there are reasons to believe that a crime has been committed (see Articles 146 and 147). The decision to open a criminal investigation is to be taken within three days from the receipt of information about the crime, which period can be extended to ten and thirty days in certain circumstances (see Article 144). 49. Article 42 of the Code defines the procedural status of a victim in criminal proceedings and lists the rights and obligations vested in that person. It provides that the victim has the right to acquaint him or herself with the entire case file after the closing of the investigation.", "Article 42 also stipulates that the victims are to be informed of procedural decisions to open or close criminal proceedings, grant or refuse victim status, and to adjourn proceedings. Copies of those decisions must be sent to the victims. The victims also have access to any decisions to order expert reports and to the outcomes of such reports (see Article 198). 50. A prosecutor is responsible for the overall supervision of the investigation (see Article 37).", "He or she may order specific investigative measures, transfer the case from one investigator to another or order an additional investigation. If there are no grounds for initiating a criminal investigation, the investigator issues a reasoned decision to that effect, which has to be served on the interested party. Under Article 124, a prosecutor can examine a complaint concerning the actions or omissions of various officials in charge of a criminal investigation. Once a complaint has been examined, the complainant must be informed of the outcome and the avenues of further appeal. 51.", "Article 125 of the Code sets out the judicial procedure for the consideration of complaints. The orders of an investigator or a prosecutor refusing to institute criminal proceedings or terminating a case, other orders and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede a citizen’s access to justice, may be appealed against to a district court, which is empowered to check the lawfulness and grounds of the impugned decisions. 52. Article 151 provides that the investigators of the Investigative Committee (as of 2007) are responsible for the investigation of serious crimes, including murder and abduction. 53.", "Article 161 § 1 prohibits the disclosure of details of the preliminary investigation. Such information can be disclosed only with the permission of a prosecutor or investigator and within the limits determined by them, and only in so far as it does not infringe the rights and lawful interests of the parties to the criminal proceedings and does not prejudice the investigation (see Article 161 § 3). C. Civil Code of the Russian Federation 54. Article 1069 of the Civil Code of the Russian Federation (relevant part adopted in 1995) provides that a State agency or State official will be liable for damage caused to a citizen by their unlawful actions or failure to act. Damages are awarded at the expense of the federal or regional treasury.", "55. Article 1070 sets out the rules for the payment of damages to private persons for the unlawful actions of law-enforcement officers. Other than unlawful criminal prosecution (confirmed by the criminal conviction of the perpetrators), the general rules of Article 1069 apply. 56. Articles 151 and 1099 to 1101 provide for payment of non-pecuniary damages.", "Article 1099 states, in particular, that non-pecuniary damages will be payable, irrespective of any award for pecuniary damage. D. Legislation concerning confidentiality of anti-terrorist measures 57. The Suppression of Terrorism Act of 25 July 1998 (Law no. 130-FZ) (hereinafter also called “the Anti-Terrorism Act”), which was replaced on 1 January 2007 by the Counter-Terrorist Act (Law no. 35-FZ), established basic principles in the area of the fight against terrorism.", "Section 2 of the Anti-Terrorism Act established, inter alia, that the State should keep secret, to the maximum extent possible, the technical methods of anti-terrorist operations and not disclose the identity of those involved in them. Section 2(10) of the new Counter-Terrorist Act contains similar provisions. 58. On 1 August 2011 the Investigative Committee issued Order no. 113 detailing the procedure for obtaining information about persons who had taken part in counter-terrorist operations.", "Any such requests should contain reasons for the requested disclosure and be authorised by the Deputy Head of the Investigative Committee. The criminal investigation files containing such information should be treated as classified. 59. The Federal Security Service Act (Law no. 40-FZ) of 3 April 1995, with subsequent amendments, provided that the personal data of the agency’s staff and persons cooperating with it should be stored at the central archive.", "As of 2008, such information could be divulged only pursuant to a federal law, or a special decision by the head of the relevant regional department of the Service. III. INTERNATIONAL AND COMPARATIVE LEGAL INSTRUMENTS IN THE AREA OF ENFORCED DISAPPEARANCES A. Relevant international law and practice 60. The Parliamentary Assembly of the Council of Europe (PACE) Resolution 1463 (2005) on Enforced Disappearances considered the following points essential for an international instrument in this field: “[T]he definition of enforced disappearance ... should not include a subjective element, which would be too difficult to prove in practice.", "The inherent difficulties in proving an enforced disappearance should be met by the creation of a rebuttable presumption against the responsible state officials involved; 10.2. family members of the disappeared persons should be recognised as independent victims of the enforced disappearance and be granted a ‘right to the truth’, that is, a right to be informed of the fate of their disappeared relatives; 10.3. the instrument should include the following safeguards against impunity: 10.3.1. obligation for states to include the crime of enforced disappearance with an appropriate punishment in their domestic criminal codes; 10.3.2. extension of the principle of universal jurisdiction to all acts of enforced disappearance; 10.3.3. recognition of enforced disappearance as a continuing crime, as long as the perpetrators continue to conceal the fate of the disappeared person and the facts remain unclarified; consequently, non-application of statutory limitation periods to enforced disappearances; 10.3.4. clarification that no superior order or instruction of any public authority may be invoked to justify an act of enforced disappearance; 10.3.5. exclusion of perpetrators of enforced disappearances from any amnesty or similar measures, and from any privileges, immunities or special exemptions from prosecution; 10.3.6. perpetrators of enforced disappearances to be tried only in courts of general jurisdiction, and not in military courts; ... 10.3.8. failure to effectively investigate any alleged enforced disappearance should constitute an independent crime with an appropriate punishment. The minister and/or the head of department responsible for the investigations should be held accountable under criminal law for the said failure”. 61. The UN International Convention for the Protection of All Persons from Enforced Disappearance of 20 December 2006 (ICED) entered into force in December 2010. Article 2 of the Convention defined “enforced disappearance” as: “... arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorisation, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” The ICED placed signatory States under an obligation to investigate such acts and to bring those responsible to justice, whether they themselves had committed the acts in question or were the superiors of the perpetrators (see Article 6), as well as to criminalise disappearance under the national law (see Articles 4 and 7).", "The statute of limitations for such crimes should be of long duration and, in view of the continuous nature of the offence, should commence from the time when the offence ceases (see Article 8). The Convention also established the right of victims’ relatives to know the truth and to obtain reparation (see Article 24). 62. Article 5 of the ICED and Article 7 of the Rome Statute of the International Criminal Court of 17 July 1998 both describe the widespread or systematic practice of enforced disappearance as a crime against humanity. 63.", "The Russian Federation signed the Rome Statute but not the ICED, and has not ratified either document. 64. International human right bodies, such as the UN Human Rights Committee and the Inter-American Court of Human Rights, consider enforced disappearances as a combination of several violations of protected rights. They often entail a violation of both the substantive and procedural aspects of the right to life, a breach of the relatives’ right to be free from degrading treatment on account of the prolonged suffering caused by the absence of news about the fate of their loved ones, and a breach of the abducted persons’ right to freedom and security. A summary of those approaches, stressing the lasting nature of some of the violations in question, can be found in the judgment 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, §§ 93-107, ECHR 2009-).", "B. Comparative legal framework as described in the Court’s previous judgments 65. The Court has already dealt with allegations of enforced disappearances and the failure of investigations in other member States. Its judgments summarised domestic legal and practical arrangements designed to address those problems. 66.", "Thus, the Court has dealt with a “pattern of enforced disappearances” occurring principally between 1992 and 1996 in South-Eastern Turkey (see, among others, Osmanoğlu v. Turkey, no. 48804/99, 24 January 2008; Akdeniz v. Turkey, no. 25165/94, 31 May 2005; İpek v. Turkey, no. 25760/94, ECHR 2004‑II (extracts); Akdeniz and Others v. Turkey, no. 23954/94, 31 May 2001; Taş v. Turkey, no.", "24396/94, 14 November 2000; Timurtaş v. Turkey, no. 23531/94, ECHR 2000‑VI; Ertak v. Turkey, no. 20764/92, ECHR 2000‑V; and Çakıcı v. Turkey [GC], no. 23657/94, ECHR 1999‑IV). The İpek judgment, in particular, outlined the relevant national legislative framework, including provisions on criminal investigations and civil liability of State officials for the pecuniary and non-pecuniary damage caused by their actions, as well as specific anti-terrorist legislation and the distribution of responsibility in respect of the offences allegedly committed by the security forces (see §§ 92-106).", "67. The Cypriot conflict has resulted in a large number of missing persons in the 1960s and 1974. This matter has to be seen in the context of rather lengthy historical developments. Relevant summaries can be found in the judgments of Cyprus v. Turkey ([GC] no. 25781/94, ECHR 2001‑IV) and Varnava and Others v. Turkey (cited above).", "As can be seen from those judgments, efforts were made from the start to set up a mechanism to deal with the problem of disappearances. In 1981 the Commission on Missing Persons (CMP) was created under the United Nations’ auspices. The actual work on cases started in 1984, and some investigative steps were taken in the following years. Since 2004 the CMP has organised exhumations and begun to locate and identify remains (see Varnava, cited above, § 168). More than 230 bodies of missing persons have now been exhumed, identified and returned to their relatives.", "The criminal investigations triggered by those findings are still pending (see Charalambous and Others v. Turkey (dec.), nos. 46744/07 et al., 3 April 2012, and Emin v. Cyprus (dec.), no. 59623/08 et al., 3 April 2012). 68. A list of legislative and practical measures aimed at solving the disappearance and war crimes issues in Bosnia and Herzegovina can be found in Palić v. Bosnia and Herzegovina (no.", "4704/04, §§ 7, 8, 36-40, 15 February 2011). The Court found, in particular: “While it is true that the domestic authorities made slow progress in the years immediately after the war, they have since made significant efforts to locate and identify persons missing as a consequence of the war and combat the impunity. To start with, Bosnia and Herzegovina has carried out comprehensive vetting of the appointment of police and judiciary ... Secondly, the domestic Missing Persons Institute was set up pursuant to the Missing Persons Act 2004 (see paragraph 40 above). It has so far carried out many exhumations and identifications; for example, in seven months of 2009 the Missing Persons Institute identified 883 persons. Thirdly, the creation of the Court of Bosnia and Herzegovina in 2002 and its War Crimes Sections in 2005 gave new impetus to domestic prosecutions of war crimes.", "That court has so far sentenced more than 40 people. Moreover, the number of convictions by the Entity and District courts, which retain jurisdiction over less sensitive cases, has considerably increased. Fourthly, in December 2008 the domestic authorities adopted the National War Crimes Strategy which provides a systematic approach to solving the problem of the large number of war crimes cases. It defines the time-frames, capacities, criteria and mechanisms for managing those cases, standardisation of court practices, issues of regional cooperation, protection and support to victims and witnesses, as well as financial aspects, and supervision over the implementation of the Strategy. ... Lastly, domestic authorities contribute to the successful work of the international bodies set up to deal with disappearances and other serious violations of international humanitarian law committed in Bosnia and Herzegovina ...” IV.", "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 69. 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 Investigative 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 out of 136 cases discussed (concerning the so-called “Khashiyev group” involving findings of violations of core rights in the Northern Caucasus), only two criminal cases had been concluded (one of which had been terminated as a result of the suspect’s death).", "The remainder were pending; most of them had been suspended as a result of a failure to identify the suspects. 70. 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, in so far as relevant: “2. Search for disappeared persons Considering that, in all judgments concerning disappearances, the Court also found a violation of Article 3 of the Convention on account of the applicants’ suffering as a result of the disappearance of their relatives and of their inability to find out what had happened to them; Taking note of measures aimed at improving the regulatory framework governing the search for disappeared persons in general and at enhancing the search for such persons in the Chechen Republic in particular, through the developments in use of DNA tests of relatives of disappeared persons; Noting however with particular concern that little progress has been made so far in this respect and that fresh applications concerning disappearances are being lodged with the Court; Considering that the numerous disappearances which took place in the Chechen Republic constitute a specific situation which calls for additional tools and means; Stressing in this respect the need to intensify further the search for disappeared persons, in particular through better co-ordination between the different agencies involved, collection, centralisation and sharing of all information and data relevant to the disappearances among different authorities concerned, strengthening local forensic institutions, enhanced cooperation with the relatives of disappeared persons, identification of possible burial sites and other relevant practical measures; Emphasising that the need for such measures is all the more pressing in cases where the continued failure to account for the whereabouts and fate of the missing persons gives rise to a continuing violation of the Convention; ... Emphasising the need for continuous efforts aimed at ensuring close co-operation with victims’ families and for further improvement of the legal and regulatory framework governing the participation of victims in domestic investigations; ... 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; ENCOURAGES the Russian authorities to take all necessary measures to ensure that the statutes of limitation do not negatively impact on the full implementation of the Court’s judgments.” 2. Reports by other Council of Europe bodies 71.", "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”. 72. 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; ... 13.1.6. implement the proposals of the International Committee of the Red Cross to resolve as far as possible the serious problem of missing persons, and to create favourable conditions to renewed ICRC visits to detainees arrested and held in relation with the situation in the Northern Caucasus; ... 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; ...” 73.", "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”. 74. 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, combating impunity and the situation of human rights defenders. The report included the Commissioner’s observations and recommendations in relation to those topics.", "75. 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 persons who had gone missing during the entire period of counter-terrorism operations in the Northern Caucasus. The Commissioner further emphasised the importance of the 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.", "76. 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, the 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. International Committee of the Red Cross (ICRC) Report 77. In August 2009 the International Committee of the Red Cross (ICRC) issued report “Families of Missing Persons: Responding to their Needs”. One hundred families were interviewed in the Northern Caucasus. In the majority of cases the abductions occurred between 2000 and 2004. The report found: “In general, the families are unable to carry out normal activities without the shadow of the missing relative being a constant reminder.", "Many withdraw from society, ignoring their needs and those of their family (for example, some children’s birthday parties are not allowed to be celebrated) as they focus on the search for their loved ones and they become socially and physically isolated – they often feel guilty doing something just for themselves”. The report also found that 90% of the families had opened a criminal case with the local prosecutor’s office, but that most of the cases had been suspended. The inability to get answers had “left them with a sense of hopelessness”. The report stressed the importance of finding the bodies and the performance of burial rites, since for most families the acceptance of the death was inconceivable as long as the body had not been returned. It concluded by finding that the families of the missing persons were “very much alone in managing their difficult situation”.", "It made a number of recommendations to the Russian authorities, in particular to set up a high-level body on missing persons, which should be transparent, credible, have a clear humanitarian mandate and be independent from the judiciary. The families of the missing persons should be associated with the search and be kept informed of all the important aspects of any progress made, as well as the chances of success. The ICRC further proposed changes to the legislation which would more clearly reflect Russia’s international obligations, in order to prevent enforced disappearances in the future, as well as to protect the families of the disappeared. It contained a number of other detailed recommendations to improve psychological, socio-economic and legal support to such families. 4.", "NGO Reports 78. 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. 79. 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 investigative authorities to deal with the 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 Investigative Committee to fulfil its direct mandate to investigate crimes”. B. Relevant reports and statements by the national authorities 80. The Ombudsman of Chechnya, Mr Nukhazhiyev, has issued, over the years, a number of documents on disappearances. His special report of 16 April 2009 contained the following passages: “The problem of finding the abducted and missing persons ... becomes the topic of my third special report.", "The first special report entitled ‘The problems of disappearances in Chechnya and search of mechanisms to find the forcibly detained persons’ was presented on 20 April 2006 to both chambers of the Chechen Parliament. That report analysed the reasons and conditions leading to the disappearances. At that time, the local prosecutor’s office had opened 1,949 criminal cases into abductions; of those 1,679 have been adjourned in view of absence of information about the culprits. Many of these cases contained dates, exact timing of the abductions, registration numbers of the military vehicles, the servicemen’ names and radio call-names, the names and numbers of the military units involved, etc. Despite obvious competence of the military prosecutor’s office over these crimes, they are dealt with by the local prosecutors’ offices, who are unable to obtain the relevant information about the perpetrators or to question them.", "... According to the Chechnya Prosecutor’s Office, since the beginning of the counter-terrorist operation [in October 1999] they had opened 2,027 criminal investigations into the abduction of 2,826 persons. 1,873 of those cases remain adjourned, 74 have been transferred to the military prosecutor’s office. ... The problem of identification of the bodies is closely linked to the problem of finding the missing persons.", "Various sources indicate up to 60 mass burials in Chechnya, containing up to 3,000 bodies of those who had lost their lives during the two consecutive military campaigns. Another mass burial site is located in Mozdok in North Ossetia. ... In view of the need to exhume mass burial sites, there remains the problem of absence of a laboratory in Chechnya which could carry out the identification of the exhumed bodies. ...” The Ombudsman recommended, principally, that a single inter-agency body in charge of disappearances be created in Chechnya; that a parliamentary inquiry be set up and that they rely on the experience of independent lawyers and the staff of the Ombudsman’s office, which had maintained a database of disappeared persons; that a specialist laboratory be created in Chechnya for the identification of exhumed remains; and that a database of DNA samples of the disappeared persons’ relatives be created in order to carry out systematic matching with the exhumed remains.", "In his statement of 30 August 2011 devoted to the International Day of the Disappeared, Mr Nukhazhiyev said that about 5,000 persons had disappeared in Chechnya during the counter-terrorist operation. He repeated his recommendation to set up a single inter-agency body to deal with the problem. 81. Mr Pashayev, Deputy Head of the Chechnya Investigative Committee, published an article entitled “Problems of investigating cases which have become the subject of review by the European Court” in the specialist review Vestnik Sledstvennogo Komiteta RF (Bulletin of the Investigative Committee), No. 2 (8) 2010.", "He noted that the majority of the resolved abductions had been committed by members of illegal armed groups. Mr Pashayev named some recurrent problems in the investigation of the unresolved crimes allegedly committed by servicemen: the need to fill in information gaps many years after the events; the difficulties in gaining access to the archives of various security and military units; the absence of a single database of disappeared persons; the weakness of the local forensic laboratories, which had been unable to carry out genetic research; the unclear legal framework for differentiating between the competence of military and civil investigators; the poor results of the military investigators in collecting evidence concerning potential perpetrators among servicemen; and the fact that there were no mechanisms for compensating the relatives in the absence of conclusions from the criminal investigations. 82. On 24 May 2010 the press service of the President and Government of Chechnya reported a speech by Mr Savchin, the Chechnya Prosecutor, at a high-level meeting devoted to the search for missing persons. The Prosecutor referred to the absence of political will to investigate crimes allegedly committed by servicemen.", "He recommended setting up a single federal inter-agency body to deal with the search for missing persons and the investigation of crimes. The body would have unrestricted access to the relevant archives and decide on the confidentiality of the data contained therein. Regarding the conflict of powers between the military and civilian investigators, he suggested that the relevant legislation be amended so as to put the military prosecutors in charge of identifying suspects among servicemen. 83. In a letter to the Chechnya Minister of the Interior (no.", "396-201/2-191-10) of August 2010, the Head of the Investigative Committee of Chechnya complained that the “operative assistance rendered by police in the criminal proceedings [instituted on abductions] was inappropriate, the investigators’ requests about the carrying out of search measures and other requests had been carried out with undue delays or not thoroughly, and the replies were mostly of a formal nature and did not contain the data requested”. He asked the Ministry of the Interior to alert its staff to the importance of the cases in question and to ensure their proper cooperation. 84. In March 2011 the Deputy Prosecutor of the Chechen Republic sent a letter to the head of the NGO Committee Against Torture, Mr Kalyapin. The Deputy Prosecutor strongly criticised the Investigative Committee’s work on abduction cases in Chechnya: \"The investigative authorities fail to carry out urgent investigative actions and organise proper cooperation with the operational services in order to solve crimes.", "In fact, top-ranking officials of the Investigative Committee have no departmental control over criminal investigations. No concrete steps are taken to eliminate the violations identified by the agencies of the prosecutor’s office. The perpetrators are not held accountable. There are instances where crimes of abductions have actually been concealed by the investigators of the [Investigative Committee] ... As a result of delayed initiation of criminal proceedings and the inactive and passive nature of investigations, the perpetrators flee and the whereabouts of the affected [abducted] persons are not established.” THE LAW I. JOINDER OF THE APPLICATIONS 85. In accordance with Rule 42 § 1 of the Rules of Court, the Court has decided to join the applications, given their similar factual and legal background.", "II. THE GOVERNMENT’S PRELIMINARY OBJECTION A. Arguments of the parties 86. The Government contended that the complaints should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigations into the disappearances had not yet been completed.", "They further argued that it had been open to the applicants to challenge in court any actions or omissions of the investigating or other law-enforcement authorities, but that the applicants had not availed themselves of any such remedy. They also argued that it had been open to the applicants to pursue civil complaints, which they had failed to do. 87. The applicants contested that objection. With reference to the Court’s practice, they argued that they had not been obliged to apply to the civil courts, that the criminal investigations had proved to be ineffective and that their complaints had been futile.", "B. The Court’s assessment 88. The Court will examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (see Estamirov and Others v. Russia, no. 60272/00, §§ 73-74, 12 October 2006). 89.", "As regards a civil action to obtain redress for damage sustained as a result of the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-21, 24 February 2005, and Estamirov and Others, cited above, § 77). Accordingly, the Court confirms that the applicants were not obliged to pursue civil remedies. The preliminary objection in this regard is thus dismissed. 90.", "As regards criminal-law remedies, the Court observes that the criminal investigations are currently pending. The parties disagreed as to their effectiveness. 91. The Court considers that the Government’s objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the complaints. Thus, it decides to join this objection to the merits of the case and considers that the issue falls to be examined below.", "III. THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS A. Arguments of the parties 92. The applicants in all the cases maintained that it was beyond reasonable doubt that the men who had taken away their relatives had been State agents. In support of this assertion they referred to the ample evidence contained in their submissions and the criminal investigation files, in so far as they had been disclosed by the Government.", "They submitted that they had each made a prima facie case that their relatives had been abducted by State agents and that the essential facts underlying their complaints had not been challenged by the Government. In view of the absence of any news of their relatives for a long time and the life-threatening nature of unacknowledged detention in Chechnya at the relevant time, they asked the Court to consider their relatives dead. 93. The Government, in all the cases, argued that there was not enough evidence to conclude that any of the applicants’ relatives had been abducted by State agents or that the men were dead. They pointed to the inconclusive results of the domestic criminal investigations and the absence of official certification of the missing men’s deaths.", "The domestic investigations had obtained no evidence that the missing men had been arrested in the course of any special operations in the area or that such operations had been conducted at all. The Government submitted that the fact that the abductors had been wearing camouflage uniforms, had been armed and had spoken Russian did not prove that they were servicemen. Reference to the vehicles used during some of the abductions, such as UAZ, Gazel, Niva and even APCs did not, in their view, unequivocally point to the involvement of the military or law-enforcement structures, since such vehicles could have been obtained by criminal groups. None of the witnesses had referred to military insignia on the perpetrators’ uniforms or other details which would have associated them with particular military units or security structures. Lastly, no remains had been found, and the applicants’ allegations that their relatives were dead had remained speculative.", "94. The Court will reiterate the general principles applicable in cases where the factual circumstances are in dispute between the parties and then examine each of the cases in turn. B. General principles 1. Burden of proof 95.", "A number of principles have been developed in the Court’s case-law as regards applications in which it is faced with the task of establishing facts on which the parties disagree. As to facts in dispute, the Court reiterates its jurisprudence requiring a standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Taniş and Others v. Turkey, no.", "65899/01, § 160, ECHR 2005‑VIII). 96. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, among other authorities, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no.", "336, and Avşar, cited above, § 283), even if certain domestic proceedings and investigations have already taken place. 97. According to the Court’s settled case‑law, it is for the applicant to make a prima facie case and to adduce appropriate evidence. If, in response to such allegations made by the applicants, the Government then fail to disclose crucial documents to enable the Court to establish the facts or otherwise provide a satisfactory and convincing explanation, strong inferences may be drawn (see Varnava, cited above, § 184, with further references). The State bears the burden of providing a plausible explanation for injuries and deaths occurring to persons in custody (see Ribitsch, § 32, and Avşar, § 283, both cited above, with further references).", "The Court reiterates in this connection that the distribution of that burden is intrinsically linked to, among other things, the specificity of the facts of the case (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005‑VII). In cases concerning armed conflicts, the Court has extended that obligation to situations where individuals were found injured or dead, or disappeared, in areas under the exclusive control of the authorities and there was prima facie evidence that State agents could be involved (see Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005‑II (extracts); Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005; Makhauri v. Russia, no.", "58701/00, § 123, 4 October 2007; Gandaloyeva v. Russia, no. 14800/04, § 89, 4 December 2008; and Varnava, cited above, § 184). 2. Prima facie evidence of State control 98. The Court has addressed a whole series of cases concerning allegations of disappearances in the Russian Northern Caucasus, in particular Chechnya and Ingushetia.", "Applying the above principles, it has concluded that it would be sufficient for the applicants to make a prima facie case of abduction by servicemen, thus falling within the control of the authorities, and it would then be for the Government to discharge their burden of proof either by disclosing the documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, among many examples, Aziyevy v. Russia, no. 77626/01, § 74, 20 March 2008; Utsayeva and Others v. Russia, no. 29133/03, § 160, 29 May 2008; and Khutsayev and Others v. Russia, no. 16622/05, § 104, 27 May 2010). 99.", "In adjudicating those cases, the Court bore in mind the difficulties associated with obtaining the evidence and the fact that, often, little evidence could be submitted by the applicants in support of their applications. The prima facie threshold was reached primarily on the basis of witness statements, including the applicants’ submissions to the Court and to the domestic authorities, and other evidence attesting to the presence of military or security personnel in the area concerned at the relevant time. The Court relied on references to military vehicles and equipment; the unhindered passage of the abductors through military roadblocks, in particular during curfew hours; the conduct typical of security operations, such as the cordoning off of areas, checking of identity documents, searches of premises, questioning of residents and communication within a chain of command; and other relevant information about the special operations, such as media and NGO reports. Given the presence of those elements, it concluded that the areas in question had been within the exclusive control of the State authorities in view of the military or security operations being conducted there and the presence of servicemen (see, for example, Ibragimov and Others v. Russia, no. 34561/03, § 82, 29 May 2008; Abdulkadyrova and Others v. Russia, no.", "27180/03, § 120, 8 January 2009; and Kosumova and Others v. Russia, no. 27441/07, § 67, 7 June 2011). If the Government failed to rebut this presumption, this would entail a violation of Article 2 in its substantive part. Conversely, where the applicants failed to make a prima facie case, the burden of proof could not be reversed (see, for example, Tovsultanova v. Russia, no. 26974/06, §§ 77-81, 17 June 2010; Movsayevy v. Russia, no.", "20303/07, § 76, 14 June 2011; and Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012). 3. Whether the disappeared persons could be presumed dead 100. Even where the State’s responsibility for the unacknowledged arrest was established, the fate of the missing person often remained unknown.", "The Court has on numerous occasions made findings of fact to the effect that a missing person could be presumed dead. Generally, this finding has been reached in response to claims made by the respondent Government that the person was still alive or has not been shown to have died at the hands of State agents. 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 seen alive or heard from is a relevant element (see Varnava, cited above, § 143, and Timurtaş v. Turkey, no. 23531/94, §§ 82-83, ECHR 2000‑VI). 101.", "Having regard to the numerous previous cases concerning disappearances in Chechnya and Ingushetia which have come before it, the Court has found that in the particular context of the conflict, when a person was detained by unidentified State agents without any subsequent acknowledgment of the detention, this could be regarded as life‑threatening (see, among many others, Bazorkina v. Russia, no. 69481/01, 27 July 2006; Imakayeva v. Russia, no. 7615/02, ECHR 2006‑XIII (extracts); Luluyev and Others v. Russia, no. 69480/01, ECHR 2006‑VIII (extracts); Baysayeva v. Russia, no. 74237/01, 5 April 2007; Akhmadova and Sadulayeva v. Russia, no.", "40464/02, 10 May 2007; Alikhadzhiyeva v. Russia, no. 68007/01, 5 July 2007; and Dubayev and Bersnukayeva v. Russia, nos. 30613/05 and 30615/05, 11 February 2010, for the events in Chechnya; Khatuyeva v. Russia, no. 12463/05, 22 April 2010; Mutsolgova and Others v. Russia, no. 2952/06, 1 April 2010; and Velkhiyev and Others v. Russia, no.", "34085/06, 5 July 2011 for the events in Ingushetia). 102. The Court has made findings of presumptions of deaths in the absence of any reliable news about the disappeared persons for periods ranging from four and a half years (see Imakayeva, cited above, § 155) to over ten years. C. Application in the present case 1. Application no.", "2944/06, Satsita Aslakhanova v. Russia 103. Several witness statements and other documents collected by the applicant confirm that her husband, Mr Avtayev, was abducted in Grozny on 10 March 2002 by a group of armed men using military vehicles. By a decision of the district court, the applicant’s husband has been declared missing as of that date (see paragraphs 10, 13 and 15 above). In view of all the materials in its possession, the Court finds that the applicant has presented a prima facie case that her husband was abducted by State agents in the circumstances as set out by her. 104.", "The Government, while questioning the validity of some of the evidence presented by the applicant, failed to produce any documents from the criminal investigation file, or to otherwise discharge their burden of proof, for example by providing a satisfactory and convincing explanation for the events in question. 105. Bearing in mind the general principles enumerated above, the Court finds it established that Mr Apti Avtayev was taken into custody by State agents on 10 March 2002. In view of the absence of any news of him since that date and the life-threatening nature of such detention (see paragraphs 101 and 102 above), the Court also finds that Mr Avtayev should be presumed dead following his unacknowledged detention. 2.", "Applications no. 8300/07, Barshova and Others v. Russia and no. 42509/10, Akhmed Shidayev and Belkis Shidayeva v. Russia 106. The applicants have presented ample evidence, including Akhmed Shidayev’s own detailed statements, that in the early hours on 23 and 25 October 2002, a group of armed men drove a UAZ vehicle through a military checkpoint located at a bridge over the Sunzha River in Grozny. The group had searched several houses and arrested four men, three of whom subsequently disappeared.", "The fourth man, Akhmed Shidayev, was released by the abductors several days later and gave a detailed testimony about the abduction and detention, at what he presumed to be a military installation, together with the three missing men. The documents reviewed by the Court show that the criminal investigation corroborated those essential facts (see paragraphs 17, 20-23 above). The Court is satisfied that the applicants have made a prima facie case that their three relatives – the two Barshov brothers and Akhmed Shidayev’s father - were abducted by State agents. 107. The Government referred to the unfinished nature of the criminal investigation and to the lack of evidence of special operations and of the detention or death of the applicants’ relatives.", "However, the Court considers that the fact that the investigation has failed to progress beyond establishment of the basic facts should not be detrimental to the applicants’ arguments. The Government further alluded to the possibility that the abductors might not have been State servicemen. However, this suggestion is not supported by any credible evidence reviewed by the Court and stands in contradiction to the established facts of the case. The Court finds that the Government have failed to discharge their burden of proof by raising either of those arguments. 108.", "For the same reasons as above, the Court finds that Sulumbek Barshov, Anzor Barshov and Abuyazid Shidayev should be presumed dead following their unacknowledged detention. 3. Application no. 50184/07, Malika Amkhadova and Others v. Russia 109. The applicants have submitted witness statements made and collected by them to the effect that Ayub Temersultanov had been arrested at his house in Grozny on 1 July 2004.", "The abduction had been carried out by a group of up to twenty persons, heavily armed and wearing camouflage uniforms, communicating by radio. The group had searched the applicants’ flat and neighbouring flats and checked the residents’ documents. Their vehicles, some of which had been armoured, had had no number plates and had been driven in convoy through police roadblocks. Two other persons detained with Mr Temersultanov had been released the same day and had given statements about their detention and questioning (see paragraphs 32 and 33 above). The documents from the criminal investigation disclosed by the Government are consistent with this presentation.", "110. For the same reasons as above, the Court finds that the applicants have made a prima facie case about the detention of Mr Temersultanov in the course of an unacknowledged security operation. Equally, the Court finds that the Government’s references to the unfinished investigation or the mere possibility of the abductors being other than State agents cannot replace a satisfactory and convincing explanation as to what happened to him on 1 July 2004. The Court also finds that, in the circumstances of the case, Mr Temersultanov should by now be presumed dead. 4.", "Application no. 332/08, Sagaipova and Others v. Russia 111. The parties’ submissions and the documents of the criminal investigation contain plenty of evidence that, in the early hours of 22 February 2003, a group of up to ten men wearing camouflage uniforms and masks and armed with automatic weapons broke into several houses in Dachu-Borzoy in the Grozny District. The men, who spoke Russian and communicated with their superiors by radio, arrested three of the applicants’ relatives and took them, barefoot and in their underwear, to a bridge over the Argun River, where they put them in military vehicles, including UAZ and APCs. The convoy then passed through a permanent roadblock and a military base (see paragraphs 34-37).", "Thus, the Court is satisfied that a prima facie case of abduction by State agents has been made. 112. For the same reasons as above, the Court does not find that the Government have discharged their burden of proof to the contrary. Equally, in these circumstances, the Court finds that Ayub Nalbiyev, Badrudin Abazov and Ramzan Tepsayev should be presumed dead. D. Conclusions 113.", "The Court finds that, as in other cases that it has decided, the applicants’ relatives were abducted by groups of armed men in uniforms, displaying conduct characteristic of security operations. These groups were able to move freely through police and security roadblocks and used vehicles which, in all probability, could not be used by anyone other than State servicemen. The applicants’ allegations are supported by the witness statements collected by them and by the investigations. In their applications to the authorities the applicants consistently maintained that their relatives had been abducted by State agents. The domestic investigations accepted factual assumptions as presented by the applicants and took steps to check whether the law-enforcement agencies were involved in the abductions.", "As it appears from the documents, the investigations have regarded the possibility of abduction by servicemen as the only, or at least the main, plausible explanation of the events. 114. In sum, the facts of each case contain sufficient elements which enable the Court to make findings about the carrying out of security operations and, thus, about the State’s exclusive control over the detainees (see, among many others, Betayev and Betayeva v. Russia, no. 37315/03, §§ 69-70, 29 May 2008). The Government’s arguments are limited to the reference to the unfinished nature of the criminal investigations, which in itself raises issues under the Convention, or are of a speculative nature and stand in contradiction to the evidence reviewed by the Court.", "In any case, they are insufficient to discharge them of the burden of proof which has been shifted to them in such cases. 115. The detention in life-threatening circumstances of each of the eight men and the long periods of absence of any news of them lead the Court to conclude that they should be presumed dead. IV. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 116.", "The applicants complained that there had been a double violation of the right to life: not only had their relatives disappeared but also no efficient investigation had taken place. Article 2 of the Convention reads as follows: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.", "Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Admissibility 117. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. Alleged violation of the right to life 118. The Court has already found it established that the applicants’ family members must be presumed dead following their unacknowledged detention by State agents. The liability for their presumed deaths rests with the respondent State. Noting that the Government do not rely on any grounds for the justification of the deaths, the Court finds that there have been violations of the right to life in respect of Apti Avtayev, Sulumbek Barshov, Anzor Barshov, Abuyazid Shidayev, Ayub Temersultanov (also known as Ruslan Tupiyev), Ayub Nalbiyev, Badrudin Abazov and Ramzan Tepsayev.", "2. The alleged inadequacy of the investigations into the abductions (a) Arguments of the parties 119. The applicants argued that the investigations into the abductions of their relatives had been ineffective and inadequate, in breach of the requirements derived from Article 2 of the Convention. They pointed to the delays in taking the most basic steps, failures to identify and question important witnesses other than the applicants or their neighbours, repeated suspensions and reopening of the proceedings, and failure to keep the victims informed about any progress. 120.", "The Government considered that the investigations had been effective and that the applicants had been duly informed of all the important steps. In their view, the applicants had not made full use of their procedural status as victims and thus had failed to exhaust domestic remedies. (b) The Court’s assessment 121. The Court has stated on many occasions 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.", "According to the Court’s settled case-law, for an investigation into alleged killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for carrying out the investigation to be independent from those implicated in the events (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 325, ECHR 2007‑II, and Öğur v. Turkey, [GC] no. 21954/93, ECHR 1999-III, §§ 91-92). The investigation must also be effective in the sense of being capable of ascertaining the circumstances in which the incident took place and of leading to a determination of whether the force used was or was not justified in the circumstances, and to the identification and punishment of those responsible. This is not an obligation of result, but of means.", "The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. A requirement of promptness and reasonable expedition is implicit in this context. Any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required standard of effectiveness (see Leonidis v. Greece, no. 43326/05, § 68, 8 January 2009, and Anguelova v. Bulgaria, no. 38361/97, § 139, ECHR 2002-IV).", "In addition, the investigation must be accessible to the victim’s family to the extent necessary to safeguard their legitimate interests. There must also be a sufficient element of public scrutiny of the investigation, the degree of which may vary from case to case (see Varnava, cited above, § 191, and Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 303, ECHR 2011 (extracts)). 122. A disappearance is a distinct phenomenon, characterised by an ongoing situation of uncertainty and unaccountability in which there is a lack of information or even a deliberate concealment and obfuscation of what has occurred.", "This situation is very often drawn out over time, prolonging the torment of the victim’s relatives. Thus, the procedural obligation will, potentially, persist as long as the fate of the person is unaccounted for; the ongoing failure to provide the requisite investigation will be regarded as a continuing violation. This is so, even where death may, eventually, be presumed (see Varnava, cited above, § 148). 123. More specifically, in the context of disappearances that took place in Chechnya and Ingushetia between 1999 and 2006, the Court has previously identified the following common shortcomings of the criminal investigations: delays in the opening of the proceedings and in the taking of essential steps; lengthy periods of inactivity; failure to take vital investigative steps, especially those aimed at the identification and questioning of the military and security officers who could have witnessed or participated in the abduction; failure to involve the military prosecutors even where there was sufficient evidence of the servicemen’s involvement in the crimes; inability to trace the vehicles, their provenance and passage through military roadblocks; belated granting of victim status to the relatives; and failure to ensure public scrutiny by informing the next of kin of the important investigative steps and by granting them access to the results of the investigation.", "In numerous such cases, the Court has noted that the combination of these factors had rendered the criminal investigations ineffective, and thus had rendered the domestic remedies, potentially available to the victims, futile (see, among many examples, Vakhayeva and Others v. Russia, no. 1758/04, § 157, 29 October 2009; Shokkarov and Others v. Russia, no. 41009/04, § 107, 3 May 2011; and Umarova and Others v. Russia, no. 25654/08, § 94, 31 July 2012). 124.", "The Court will examine the general effectiveness of the criminal investigation measures in the disappearance cases below. In the cases at hand, the investigations have been pending for many years without bringing about any significant developments as to the identities of the perpetrators or the fate of the applicants’ missing relatives. While the obligation to investigate effectively is one of means and not of results, the Court notes that the criminal proceedings in each of the four files opened by the district prosecutor’s office have been plagued by a combination of the same defects as enumerated in the preceding paragraph. To give but a few examples, the delays in the opening of the criminal investigation files amounted to between seven days in the case of Abuyazid Shidayev (see paragraph 21 above) and more than five months in the case of Apti Avtayev (see paragraph 12 above). The eyewitnesses of the abductions were questioned with substantial delays, for example seven and nine months in the case of the abduction of the Barshov brothers (see paragraphs 22 and 23 above).", "Each of the cases at hand was the subject of several decisions to adjourn the investigation, followed by periods of inactivity, which further diminished the prospects of solving the crimes. No steps have been taken in any of the four criminal cases to identify and question the servicemen who could have witnessed, registered or participated in the operation. 125. Even where there was sufficient evidence of the involvement of the military or security officers in the operation, the case file was not transferred to the military prosecutors for investigation, as in the case of the abductions in Dachu-Borzoy (see paragraph 36 above). That case is particularly illustrative of the low level of cooperation of the security services, which refused to provide the law-enforcement agencies with the requisite information (see paragraphs 39-41).", "As in many previous cases, the supervising prosecutors and the courts were aware of the investigations’ faults (see paragraphs 14, 28-30), but their instructions did not bring about any positive developments. Lastly, even where the applicants tried to obtain access to the case file, their requests were rejected (see paragraphs 14 and 28). They were thus deprived of the possibility to acquaint themselves with the progress of the proceedings and to safeguard their procedural interests in an effective manner. 126. 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. 127. In the light of the foregoing, the Court finds that the authorities failed to carry out effective criminal investigations into the circumstances of the disappearance of Apti Avtayev, Sulumbek Barshov, Anzor Barshov, Abuyazid Shidayev, Ayub Temersultanov (also known as Ruslan Tupiyev), Ayub Nalbiyev, Badrudin Abazov and Ramzan Tepsayev. Accordingly, there has been a violation of Article 2 in its procedural aspect. V. ALLEGED VIOLATION OF ARTICLES 3 AND 5 OF THE CONVENTION ON ACCOUNT OF UNLAWFUL DETENTION AND DISAPPEARANCE OF THE APPLICANTS’ RELATIVES 128.", "The applicants complained of a violation of Articles 3 and 5 of the Convention, as a result of the mental suffering caused to them by the disappearance of their relatives 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.” 129. The Government contested that argument. 130. The Court notes that the complaint is linked to those examined above under Article 2 and must therefore likewise be declared admissible.", "131. 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). 132.", "Equally, the Court has found on many 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). 133. The Court reiterates its findings regarding the State’s responsibility for the abductions and the failure to carry out a meaningful investigation into the fates of the disappeared men. It finds that the applicants, who are close relatives of the disappeared men, must be considered victims of a violation of Article 3 of the Convention, on account of the distress and anguish which they suffered, and continue to suffer, as a result of their inability to ascertain the fate of their family members and of the manner in which their complaints have been dealt with.", "134. The Court furthermore confirms that since it has been established that the applicants’ relatives were 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. VI. ALLEGED VIOLATION OF ARTICLES 3 AND 5 OF THE CONVENTION IN RESPECT OF AKHMED SHIDAYEV (No. 42509/10).", "135. Akhmed Shidayev further complained that he himself had been a victim of a breach of Article 3 on account of his ill-treatment by the abductors and the failure to investigate his allegations, and of Article 5 in view of the unlawful manner of his detention between 25 and 30 October 2002. 136. The Government stressed that no separate criminal investigation had been carried out into the alleged detention and ill-treatment of Akhmed Shidayev. The Court considers that the Government raise the issue of non-exhaustion and, in view of its nature, finds it appropriate to join it to the merits of the complaint.", "137. The Court further notes that this complaint is linked to those examined above and must therefore likewise be declared admissible. 1. Whether Mr Shidayev was subjected to treatment in breach of Article 3 and to unacknowledged detention in breach of Article 5 138. The applicant asked the Court to qualify the ill-treatment to which he had been subjected as “torture”, in view of his young age (he was 18 years old in October 2002), the intensity of the ill-treatment, which included beatings with machine gun butts and batons, cigarette burns to his skin, deprivation of food and water, and detention in a pit for five days.", "The applicant had heard his relatives and neighbours being subjected to beatings, and crying for help. Throughout his detention he was aware that he could be killed. The applicant referred to witness statements made by him and his relatives in the course of the domestic investigation, which contained descriptions of the treatment to which he had been subjected and the effect it had had on his health. 139. The Government referred to the absence of any material evidence attesting to the applicant’s injuries or the traces of ill-treatment.", "They stressed that Mr Shidayev had never sought medical assistance in connection with his alleged injuries. 140. Turning to the Government’s preliminary objection, which has been joined to the merits of the complaint, the Court first observes that the applicants promptly informed the authorities of Mr Shidayev’s abduction by a group of armed men most likely belonging to State agencies. The investigation into the abduction of four persons, including Akhmed Shidayev, was opened on 31 October 2002 but has not been completed to date. In such circumstances the Court finds that the applicant has raised the complaint concerning his ill-treatment and unlawful detention at the national level.", "For the same reasons as those mentioned above in respect of Article 2 of the Convention, the Government’s preliminary objection is dismissed (see Nenkayev and Others v. Russia, no. 13737/03, § 177, 28 May 2009). 141. As to the merits of the complaint, the Court first reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. Furthermore, allegations of ill-treatment must be supported by appropriate evidence.", "To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt”, but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, 18 January 1978, § 61, in fine, Series A no. 25, ). 142. The Court has found it established that Akhmed Shidayev was arrested on 25 October 2002 at his house, together with his father Abuyazid Shidayev, who later disappeared and must be presumed dead. Akhmed Shidayev was released by his captors in the forest on 30 October 2002 and later complained that he had suffered ill-treatment while in detention.", "The Court notes that the mere fact of being held incommunicado in unacknowledged detention, witnessing the ill-treatment of his father and neighbours, would have caused Mr Shidayev considerable anguish and distress, and put him in acute and constant fear of being subjected to ill-treatment or even killed. In view of all the known circumstances of the present case, that treatment reached the threshold of inhuman and degrading treatment. 143. Accordingly, the Court considers that there has been a violation of Article 5 of the Convention in respect of Akhmed Shidayev on account of his unacknowledged detention, and a violation of Article 3, in so far as it prohibits inhuman and degrading treatment. In view of this finding, the Court does not consider it necessary to examine the applicant’s further allegations of ill-treatment.", "2. Alleged inadequacy of the investigations into ill-treatment 144. The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. An obligation to investigate is not an obligation of result, but of means: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant’s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (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).", "145. The investigation into serious allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions (see Mikheyev v. Russia, no. 77617/01, § 108, 26 January 2006, with further references). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimonies and forensic evidence.", "Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard. The investigation into the alleged ill-treatment must be prompt. Lastly, there must be a sufficient element of public scrutiny of the investigation or its results; in particular, in all cases the complainant must be afforded effective access to the investigatory procedure (see, among many other authorities, Mikheyev, cited above, §§ 108-10, and Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 137, ECHR 2004-IV (extracts)). 146.", "In the present case a certain amount of evidence has been put before the investigation as regards the allegations of ill-treatment of Akhmed Shidayev. Several witness statements produced by the applicant and his relatives mention the ill-treatment and the consequences it had on his health. However, the investigation did not take any steps to obtain additional information about this aspect of the crime. No forensic or medical reports have been requested by the investigation and no steps have been taken to pursue this complaint, apart from granting Mr Shidayev the status of victim in the proceedings. 147.", "Bearing in mind its above-mentioned conclusions about the inadequacy of the criminal investigation in the present case, the Court concludes that there has been a violation of Article 3 in its procedural aspect, too, in respect of the failure to investigate credible allegations of the ill-treatment of Akhmed Shidayev. VII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 148. The applicants argued that they had no available domestic remedies against the violations claimed, in particular those under Articles 2 and 3 of the Convention. Article 13 reads: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 149.", "The Government disagreed with that submission, pointing to a number of instruments available to the applicants in the criminal proceedings and in Russian civil law. A. Admissibility 150. 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 151. The Court observes that it has examined the effectiveness of various domestic remedies suggested by the Russian Government in a number of cases. 152. In respect of complaints to higher-ranking prosecutors provided for by Article 124 of the Code of Criminal Procedure (see paragraph 50 above), the Court reiterates that it has consistently refused to consider that extraordinary remedy as a remedy to be exhausted by applicants in order to comply with the requirements of Article 35 § 1 of the Convention (see, among many other authorities, Trubnikov v. Russia (dec.), no.", "9790/99, 14 October 2003; Isayeva and Others v. Russia, nos. 57947/00, 57948/00 and 57949/00, § 90, 24 February 2005; Belevitskiy v. Russia, no. 72967/01, § 59, 1 March 2007; and Umayevy v. Russia, no. 47354/07, § 94, 12 June 2012). 153.", "Secondly, Article 125 of the Code of Criminal Procedure provides for the possibility of judicial review of some of the investigators’ decisions (see paragraph 51 above). The Court reiterates that, in principle, an appeal against a decision to discontinue criminal proceedings may offer a substantial safeguard against the arbitrary exercise of power by the investigating authority, given a court’s power to annul such a decision and indicate the defects to be addressed (see, mutatis mutandis, Trubnikov (dec.), cited above). Therefore, in the ordinary course of events such an appeal might be regarded as a possible remedy where the prosecution has decided not to investigate the claims. The Court has strong doubts, however, that this remedy would have been effective in cases such as the present ones, where the investigations have already been adjourned and reopened on several occasions. In such circumstances, the Court is not convinced that an appeal to a court, which could only have had the same effect, would have offered the applicants any redress.", "It considers, therefore, that such an appeal in the particular circumstances of the present cases would be devoid of any purpose and could not be considered effective (see Esmukhambetov and Others v. Russia, no. 23445/03, § 128, 29 March 2011). 154. To illustrate the point, the Court notes that some of the applicants in the present cases have sought judicial review of the investigators’ decisions (see paragraphs 14, 28 and 30 above). However, this has not brought about any positive developments in the investigations, as confirmed by the above findings under Article 2 of the Convention in its procedural aspect.", "155. The Court also notes that the general effectiveness of the criminal investigations in cases such as those under examination is discussed below under Article 46 of the Convention. 156. Lastly, in the absence of the results of the criminal investigation, any remedy possible under the Civil Code (see paragraphs 54-56 above) becomes inaccessible in practice. The Government’s submission about the absence of civil claims being brought in Chechnya and Ingushetia (see below) is a further indication of the futility of such attempts.", "157. Accordingly, the Court finds that the applicants did not dispose of an effective domestic remedy for their grievances under Articles 2 and 3, in breach of Article 13 of the Convention. VIII. APPLICATION OF ARTICLE 46 OF THE CONVENTION 158. Having regard to the numerous previous findings about the lack of proper investigations into the allegations of disappearances, the Court considers it necessary to determine the consequences which may be drawn from Article 46 of the Convention for the respondent State.", "The relevant part of Article 46 of the Convention reads as follows: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. ...” A.", "The parties’ submissions 159. In view of the numerous previous findings about the lack of proper investigations into the allegations of disappearances that occurred in Chechnya and Ingushetia between 1999 and 2006, the Court put a number of specific questions to the parties. Their answers may be summarised as follows. 1. The applicants 160.", "The applicants insisted that the problem of non-investigation of disappearances in Chechnya and Ingushetia was systemic and resulted from the lack of political will to investigate crimes committed by security and military personnel. They submitted a number of relevant reports, letters, and transcripts of interviews by public officials in support of their argument. The pleadings submitted through both applicants’ representatives – the SRJI and Mr Itslayev – are summarised below. (a) Scope of the problem 161. As to the scope of the problem, the applicants referred to the Court’s relevant practice and argued that the non-investigation of the present group of cases should be qualified as systemic in view of the number and frequency of analogous breaches, for which no remedies exist, and the official tolerance of such breaches, resulting in a continuing situation that is incompatible with the Convention.", "They referred to the Court’s findings of a violation of the procedural aspect of Article 2 in more than 130 judgments delivered up to October 2011 in connection with abductions committed in Chechnya and Ingushetia between 1999 and 2006. The applicants also cited the statement by the Chechnya Ombudsman, estimating the total number of disappeared persons at 5,000 (see paragraph 80 above). (b) Ineffectiveness of the pending criminal investigations 162. The applicants submitted that the existing system of criminal investigation was inadequate to address the abuses committed during the so-called anti-terrorist operations in the Northern Caucasus. The majority of cases concerning abductions had been opened under Article 126 of the Criminal Code (kidnapping).", "After the opening of the criminal case, the subsequent conduct of the investigative authorities had displayed the common flaws which have been enumerated in the Court’s many judgments. The investigations into disappearances in Ingushetia and Chechnya were, as a rule, never completed, but were suspended indefinitely. The applicants pointed out that the investigations had been suspended under the pretext that they had been unable to identify the perpetrators (Article 208 § 1 of the Code of Criminal Procedure) or for absence of corpus delicti (Article 24 § 2), even in cases where there had existed strong evidence as to the identity of the perpetrators, and the names and numbers of the military units to which they had belonged. 163. By way of example, the applicants represented by the SRJI drew the Court’s attention to six previous judgments concerning disappearances: Bazorkina, cited above; Baysayeva, cited above; Isigova and Others v. Russia, no.", "6844/02, 26 June 2008; Akhmadova and Others v. Russia, no. 3026/03, 4 December 2008; Rasayev and Chankayeva v. Russia, no. 38003/03, 2 October 2008; and Elsiyev and Others v. Russia, no. 21816/03, 12 March 2009. In each of those cases there had existed particularly strong evidence as to the identity of the perpetrators and the military units to which they belonged.", "The applicants found that: “...the investigations in the above cases exemplify one of the most salient characteristics of the practice of non-investigation of disappearances: that no matter how strong the evidence in the case, the perpetrators are never prosecuted. Indeed, the availability of specific evidence as to the identity of likely suspects makes it no less likely that the investigation will be ineffective”. 164. The applicants accepted that a number of reforms had taken place, aiming to increase the effectiveness of the investigations in question. The setting up of a special division of the Investigative Committee to deal with the crimes which have become the subject of review by the European Court had been an appropriate and necessary measure.", "However, those reforms had failed to resolve the main problem, namely that of official tolerance of non-investigation, and the same problems that had plagued the investigations for many years had persisted. In view of the Court’s judgments in each of the six cases mentioned above, the applicants’ representatives had tried to obtain further investigations. Their attempts had been unsuccessful in making progress on any of the important aspects of the investigations criticised by the Court. 165. The applicants also referred to the institutional deficiencies of the proceedings conducted by the Investigative Committee, which was unable to investigate effectively the acts committed by the agents of the FSB, and depended in its work on the inadequate operational support provided by the police, who themselves could have been involved in the abductions.", "They referred to a letter of 11 March 2011 sent by the Deputy Prosecutor of Chechnya to the Head of the NGO, Committee Against Torture, in which the prosecutor had accused the officers of the Investigative Committee of outright “concealment” of the crimes related to the abductions (see paragraph 84 above). 166. The applicants suggested that the provisions of Article 126 of the Criminal Code were insufficient to reflect the complex nature of the phenomenon of the enforced disappearances, and advocated changes to the relevant legislation. (c) Ineffectiveness of the existing legal framework and practice to address the continuing violations arising from non-investigation into the abductions 167. The applicants argued that the investigations into the abductions committed in the Northern Caucasus during the counter-terrorist operations were still ineffective.", "This had resulted in a continuing violation of Article 2 of the Convention in its procedural limb. 168. As to the division of competence between military and civilian prosecutors and investigative bodies, the applicants pointed out that the legislation and practice regulated the military investigators’ powers restrictively. The military investigative authorities refused to take over cases unless the involvement of specific servicemen could be established; at the same time, they alone had unrestricted access to military and security archives and thus were in a position to identify the presumed perpetrators. Insufficient inter-agency cooperation had been mentioned in several official letters and documents.", "Furthermore, the independence of the military prosecutors and investigators could not be guaranteed, since under the relevant legislation both military investigators and military prosecutors had the status of military servicemen, were remunerated by the Ministry of Defence and were stationed at military installations. 169. Referring by way of example to the six cases mentioned in paragraph 163 above, the applicants argued that, despite particularly strong evidence in each case, the military prosecutors had refused to acknowledge the involvement of servicemen in the crimes or had closed proceedings on the grounds that no crime had been committed. They had also displayed a blatant lack of compliance with the decisions taken by the courts and the prosecutors concerning the steps to be taken in the investigation, and had persisted in suspending the investigations on the grounds that the identities of the perpetrators were unknown, whereas they had been perfectly capable of identifying them. 170.", "The applicants in the three cases represented by Mr Itslayev argued that the investigations should have resulted in answers to a number of general questions related to the carrying out of special operations, such as the procedure for their authorisation, recording and reporting; the establishment of commanding officers; the responsibility for the detainees; and the authorisation and recording of military and other vehicles passing through roadblocks, in particular during curfew hours. They stressed that none of the criminal investigation files for the cases at hand had contained testimonies of the officials, servicemen or law-enforcement agents, and that the transcripts of witness statements by the applicants and their neighbours and relatives had been superficial. The recurrent nature of those and other failings attested to a practice of inadequate investigations that was incompatible with the Convention. 171. The applicants conceded that the passage of time in the cases at hand had presented serious obstacles to the successful solving of the crimes; however they were of the opinion that this was not an insurmountable obstacle.", "They referred to crimes which had been resolved many years later by determined investigators, and quoted the encouraging statements to that effect by the Russian officials responsible. 172. The applicants also referred to the problem of the statute of limitations and the absence of a coherent official policy in that respect. They referred to the developments following two of the Court’s judgments: Khadisov and Tsechoyev v. Russia (no. 21519/02, 5 February 2009) and Akhmadov and Others v. Russia (no.", "21586/02, 14 November 2008). In the first case, the Court had qualified the ill-treatment of the applicants as torture and found a breach of both the substantive and the procedural aspects of Article 3. In May 2010 the domestic criminal investigation into abuse of authority had been closed because the prescribed period had expired. In the second case, the criminal investigation into the death of the applicants’ relatives, opened following charges of abduction and murder, had been terminated in October 2011 for the same reasons. The applicants stressed that since the crime of kidnapping under Article 126 of the Criminal Code could be qualified as either serious or particularly serious, depending on the circumstances, a more coherent approach was necessary to prevent the application of the period of limitations to the bulk of unresolved cases in the near future.", "The applicants referred, by way of example, to Article 44 of the Constitution of the Republic of Poland, which stipulated that for crimes which were not investigated for political reasons, the statute of limitations started to run once such reasons had ceased to exist. (d) The victims’ rights 173. The applicants complained of insufficient participation of victims in criminal proceedings. The restrictive interpretation of the relevant provisions of the Code of Criminal Procedure (namely, Articles 42 and 161) and the absence of definitive results in most investigations into abductions had resulted in widespread decisions not to allow victims full access to the investigation files. In some cases, their right to obtain such access had to be confirmed by judicial decisions; in other cases, they were denied access in the courts as well.", "In any event, even where such access had been granted – in most cases many years after the start of the investigation – this had not increased its effectiveness. 174. The applicants maintained that the remedies available to them – in theory under Articles 124 and 125 of the Criminal Procedure Code – had in practice been ineffective, even where the applicants had been successful in obtaining a positive response to their complaints. They referred to numerous examples cited in the Court’s case-law, as well as to the applicants’ experience in the present cases. 175.", "As to possible reform measures, the applicants argued that victims should be guaranteed the right to full access to the case file if an investigation was suspended, and free legal assistance in cases where it could be presumed that the crimes had been committed by State agents. They also argued that military investigators should be excluded from proceedings concerning crimes committed during special operations; civil investigators and prosecutors should be given unrestricted access to military and security archives; and that investigators should be held criminally liable for delays in proceedings that could lead to the permanent loss of evidence. (e) Search for the missing persons 176. The applicants submitted that it was “public knowledge” that no centralised database or information bank for disappearances existed in the region, and also that none of the laboratories or institutions located in Chechnya or Ingushetia was capable of handling the forensic tests required in any concerted effort to locate and identify the missing persons. They referred to the ICRC’s efforts to create such a database, as well as to their recommendation to set up a DNA databank to carry out systematic genetic matching.", "(f) Possibility to obtain compensation 177. The applicants argued that no domestic mechanisms were available to them for claiming compensation where sufficient information existed that the abduction had been carried out by unidentified military or security servicemen, but where no individual perpetrators had been identified or prosecuted and the criminal proceedings had remained suspended. 178. They suggested that the Code of Civil Procedure should be amended to expressly allow individuals who had suffered from the actions of unidentified representatives of the State to claim compensation prior to the completion of the criminal investigations. They further suggested that the Russian Government could envisage granting administrative compensation to the relatives of persons who had gone missing in the region since 1999.", "2. The Government 179. The Government disagreed that the inadequate investigation of the disappearances occurring in Chechnya and Ingushetia between 1999 and 2006 had disclosed a systemic problem. They described the difficulties associated with the investigations in question and the steps taken by the authorities to address the issue. (a) Scope of the problem 180.", "The Government submitted the following figures in support of their argument that the inadequacy of investigations was not systemic. In Chechnya between 1999 and 2006, 1,876 crimes under Article 126 of the Criminal Code (kidnapping) had been recorded; of those, 139 cases had been solved and 95 persons had been identified as implicated in those crimes. In 2002, a record number of abductions had occurred in Chechnya: – 565 cases. Since then, the numbers had dropped: in 2006, 61 cases of abduction had been recorded, and in 2010 only seven. In 2002, 3.5% of such crimes had been solved; in 2003 – 4.6%, in 2004 – 8.6%, in 2005 – 12.8% and in 2006 – 28%.", "The average rate over those five years was 7.5%, whereas in 2010 33.3% of abductions had already been successfully resolved. 181. The Government further submitted that in Ingushetia, between 1999 and 2006 148 abductions had been recorded. Of the thirty-three criminal investigations that had resulted in charges being brought in court, only one case had resulted in a non-guilty verdict. Twenty-four criminal cases had been terminated owing to the absence of corpus delicti or evidence of the crime, or to the suspect’s death.", "Seventy-one criminal investigations into abductions dating from that period were pending; most (fifty cases) had been adjourned for failure to identify the culprits. The fate of seventy-nine missing persons had been resolved between 1999 and 2006. (b) Problems associated with the criminal investigations 182. The Government accepted that a number of problems had been widespread in the investigations of the crimes in question. They emphasised the difficult general context of the events in Chechnya at the material time.", "The carrying out of urgent investigative steps had been impossible because of security threats, which had often compromised subsequent attempts to solve the crimes. The Government also referred to the difficulties in indentifying the culprits: “2. Most of [the] criminal cases [that are] the subject of examination by the European Court [were] opened [as a result of] abductions [that occurred] when servicemen conducted local special operations in the Chechen Republic to identify [the] whereabouts and arrest the members of illegal armed groups. ... 3. As a rule, abductions [in] the Chechen Republic took place at night.", "The perpetrators of the abductions were masked and had no distinctive signs on [their] uniforms. [The] difficulties in the investigation were caused by [the] simultaneous participation of a significant amount of forces and resources in anti-terrorist and special operations (the Ministry of Defence, the Ministry of the Interior, the Federal Security Service, [and] the Internal Troops of the Ministry of the Interior); [the] secrecy about special operations; [the] short-term presence of separate special units [in Chechnya]; [the] periodic rotation of personnel, with departure to [their] permanent deployment, and in some cases the lack of individual identification numbers on the armoured vehicles, aircrafts and transport vehicles.” 183. The Government confirmed that most of those files had been affected by undue delays in the opening of the proceedings and in the carrying out of essential steps. They again stressed the difficulties that had existed in Chechnya during the “active stage of the counter-terrorist operation” [the counter-terrorist operation in Chechnya ended on 16 April 2009], including security threats and the frequent rotation of personnel. (c) Work of the Investigative Committee 184.", "The Government further submitted that in September 2007 the Investigative Committee of the Prosecutor’s Office had been set up by the Russian Federation and that on 28 December 2010 it had been given autonomy under the Investigative Committee Act. The aim of the Committee was to provide unified, effective and independent criminal proceedings, without the previous problems of inter-agency conflict. On 15 January 2011 the Chechnya Investigative Committee had set up a special division (“the third division for particularly important crimes”), entrusted with the carrying out of investigations of the abductions and murders committed in the previous years, which had been considered by the European Court. The setting up of that division had ensured a single approach to the investigation of those crimes, optimised supervision of the investigations and allowed closer monitoring of progress. 185.", "The efforts of that division had led to a number of important developments: district military commanders, officers of the temporary district departments of the interior and other officials had been identified and questioned; and a number of relevant documents had been seized in the central archives of the security and law-enforcement agencies. The investigators had remedied the gaps in the proceedings: they had examined the crime sites, carried out additional questioning, and drawn up expert reports. The Government listed six cases that had been solved as a result of the work of that division, without giving any further details about the nature of the progress made. 186. The Government said that the Investigative Committee had issued detailed guidelines to ensure that crimes such as abductions were recorded immediately and that effective investigations were carried out even if the abductions had taken place a long time ago.", "All relevant information about the work of the Investigative Committee was on display in their offices and accessible on the internet. On 14 May 2009 the Investigative Committee had issued practice direction no. 59/211, containing a number of measures to bring the preliminary investigation stage in line with relevant international standards. 187. The Investigative Committee of the Southern Federal Circuit maintained an electronic database containing information about all serious violent crimes committed in the area, such as murders and terrorist acts, as well as about the identification and detention of persons suspected of abductions.", "The data were supplied by the relevant departments of the Investigative Committee, military investigators and the Ministry of the Interior. 188. In 2011 the Investigative Committee had started to request the carrying out of DNA tests of the missing persons’ close relatives, with the aim of setting up a database to match them with unidentified remains. By October 2011, seventy expert reports had been requested and forty-seven had been carried out. 189.", "The Government explained that those cases continued to pose serious challenges for the Investigative Committee in view of the passage of time (the loss of traces of the crimes, and the fading memories of victims and eyewitnesses). They also explained that there had been sufficient reasons to suspect that some of those crimes had been committed by members of illegal armed groups aiming to discredit the security forces; in each case the investigation had to take steps to check that possibility. Furthermore, many important official and military documents dating back to the periods in question had been destroyed. (d) Cooperation with the military and other bodies 190. The Government submitted that the military investigators, who comprised a branch of the Investigative Committee and were independent from the Ministry of Defence, checked information about the possible involvement of military personnel in the crimes concerned.", "Their participation was triggered by the suspicion that the perpetrators might have been military servicemen, even if the identities or the military unit had not been established. 191. Furthermore, the Investigative Committee may involve officials of other law-enforcement agencies, where necessary. It cooperated actively with other law-enforcement and security agencies, by obtaining answers to their requests for information and identification of those involved in the counter-terrorist operations. The local police were instructed to treat as a priority any request concerning abductions.", "192. The General Prosecutor’s Office of the Russian Federation retained the power of general supervision over criminal investigations. Military prosecutors supervised the work of the military investigators. Their access to the information of other State bodies in the course of their work was unrestricted and was based on the relevant provisions of the Prosecutors’ Office Act of 17 January 1992, with subsequent amendments (Federal Law no. 2202-01).", "193. The cooperation of the investigative authorities with the FSB is defined by the relevant legislation (see paragraph 59 above). The Government further referred to the provisions that obliged all State bodies to comply with requests for information made by the FSB and the practice of maintaining the FSB special representatives within the military and law-enforcement bodies, facilitating the exchange of information. (e) Confidentiality issues 194. The Government submitted: “34.", "Receiving full information on request is complicated by the remoteness of the events, as well as the fact that sometimes the information requested, in accordance with Russian legislation, constitutes [a] State secret, has various degrees of secrecy and [is] referred to [as] confidential.” The Government referred to the rule of confidentiality as one of the foundations of the anti-terrorist activity. They emphasised the importance of the relevant instruction of the Investigative Committee regulating access to potentially confidential documents (see paragraph 58 above). They explained that, even where requests for information could be justified from the procedural point of view, the risk that they might be used as a means of personal revenge against members of the security forces had to be considered. (f) Search for the disappeared persons 195. Apart from the prosecutors’ office and the Investigative Committee, the Government listed other competent authorities that were involved in the search for the disappeared persons.", "A number of permanent working groups, set up under the auspices of the Investigative Committee in the Southern Federal Circuit and in Chechnya, analysed the criminal investigation files in cases under consideration by the European Court, and cooperated with other relevant bodies. The working groups included officials of the Ministry of the Interior and the FSB. The Government did not supply any other details about the structure, terms of reference or results of the working groups. 196. The Government said that the Chechnya Parliament had created a committee for the search of persons who had gone missing during the counter-terrorist operation, which worked in close cooperation with the Investigative Committee and the Ministry of the Interior.", "Again, no other information about the work of that committee had been furnished. 197. The Russian Ministry of the Interior had set up, within the department dealing with organised crime, a division specialising in abduction and human trafficking. The experts working in the division regularly visited Chechnya, Ingushetia and other regions of the Northern Caucasus; between 2009 and 2011 they had gone to the region seven times. The Police Act of 7 February 2011 (Law no.", "3 FZ) provided that the local police must take urgent steps as soon as they receive information about an abduction, whether or not a criminal case has been opened. The Ministry of the Interior in both Chechnya and Ingushetia, as well as at the federal level, maintained special databases which brought together all information about missing persons and unidentified bodies. 198. The prosecutor’s offices in Chechnya and Ingushetia monitored the occurrence of such crimes and maintained electronic databases of murders and abductions, as well as an electronic system of recording all procedural steps taken in the pending criminal investigation files. The Ministry of the Interior, the FSB, the Investigative Committee and military investigators and prosecutors had access to those databases.", "199. The Government further described two documents, adopted consecutively in 2007 and 2011, which had established integrated programmes aimed at preventing abductions and at assisting in the search for the disappeared persons. The most recent document contained a programme of actions to be taken from 2011 to 2014, including the setting up of a unified database, as well as the holding of regular inter-agency working-group meetings. 200. The forensic expert bureau had been functioning in Chechnya since 2002, but until March 2008 it had been unable to carry out autopsies.", "At the time of the observations, the bureau had counted 26 forensic experts able to carry out a variety of biological, chemical and medical examinations, including autopsies. 201. The Government listed a number of other permanent working groups and meetings aimed at further enhancing the effectiveness of the investigations of abductions in the region and the prevention of such crimes. They comprised various law-enforcement bodies, and worked in cooperation with the ombudsmen’s offices, NGOs, international bodies such as the ICRC, and the media. (g) Work with the victims’ families 202.", "The Government submitted that providing relatives with complete and up-to-date information was considered top priority by the State. The Investigative Committee was implementing a combined programme of work with the victims. In all cases the victims had been informed of the important procedural steps, such as the adjournment and reopening of their case and had been given access to the case files in line with the relevant legislation. They had been provided with full information about any decisions that could serve as a basis for complaints to the supervising prosecutors or the court. 203.", "In accordance with international standards, the Investigative Committee had held regular meetings with the victims, developed a questionnaire to obtain an evaluation of its work and to take into account the victims’ wishes, and drawn up detailed reports about the progress and results of each criminal case (pursuant to the order of the head of the Chechnya Investigative Committee no. 44/216-r of 14 April 2010). 204. The Government stressed that the usual means of legal protection had been available to the victims in criminal proceedings, such as complaints to the prosecutors and courts in accordance with Articles 124 and 125 of the Code of Criminal Procedure. They referred to the relevant decisions of the Supreme Court and the Constitutional Court, aimed at safeguarding victims’ rights.", "At present, the scope of the victims’ access to the pending case files had to be determined by the investigators, who in each case struck a balance between the interests of justice and the right of the victims to be informed. In all cases, such decisions had to be reasoned and were open for review by supervising prosecutors or courts. In any event, the victims had a right of access to a number of important procedural documents. 205. The Government referred to the difficulties associated with the search for the relatives of the missing persons, many of whom had left Russia without providing any contact details.", "206. They also referred to their plans for legislative reforms to further strengthen the protection of victims in criminal proceedings. The draft legislation would introduce the right of a victim to be informed of the progress of a criminal investigation and the possibility of compensation by the State for damage caused by the crime. (h) Compensation 207. The Government referred to the provisions of the Civil Code, which provided for a possibility to obtain compensation arising out of torts committed by civil servants and State employees, as well as for unlawful actions of judges, prosecutors and law-enforcement officials.", "The Civil Code also provided for the award of non-pecuniary damages (see paragraphs 54-56 above). The victims of crimes in Chechnya and Ingushetia have so far failed to use those means of redress. 208. The Government also referred to the domestic legislation establishing assistance for the loss of a breadwinner, available in cases of death, or an official declaration by a court that a person was missing. 209.", "Lastly, the Government referred to their plans to create a new compensatory remedy for the victims of terrorist acts and counter-terrorist operations. Section 18 of the Counter-Terrorist Act could be amended so as to provide for compensation where the damage had resulted from the lawful actions of the State officials, or where the perpetrators had not been identified. In the case of a disappearance, compensation could be awarded if a court had declared the person missing or dead. The introduction of such a remedy would not deprive the victims of the possibility to claim pecuniary and non-pecuniary damages under the provisions of the Civil Code. B.", "General principles 210. The Court reiterates that Article 46 of the Convention, as interpreted in the light of Article 1, imposes on the respondent State a legal obligation to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to secure the right of the applicant which the Court found to be violated. The Contracting State’s duty in international law to comply with the requirements of the Convention may require action to be taken by any State authority, including the legislature. Such measures must also be taken in respect of other persons in the applicant’s position, notably by solving the problems that have led to the Court’s findings (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; Christine Goodwin v. the United Kingdom [GC], no.", "28957/95, § 120, ECHR 2002-VI; Lukenda v. Slovenia, no. 23032/02, § 94, ECHR 2005-X; S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 134, ECHR 2008 ...; and M. and Others v. Bulgaria, no. 41416/08, § 136, 26 July 2011). This obligation has consistently been emphasised by the Committee of Ministers in the supervision of the execution of the Court’s judgments (see, among many authorities, Interim Resolutions DH(97)336 in cases concerning the length of proceedings in Italy; DH(99)434 in cases concerning the action of the security forces in Turkey; ResDH(2001)65 in the case of Scozzari and Giunta cited above; and ResDH(2006)1 in the cases of Ryabykh v. Russia, no.", "52854/99, ECHR 2003‑IX and Volkova v. Russia, no. 48758/99, 5 April 2005). 211. In principle, it is not for the Court to determine what measures of redress may be appropriate for a respondent State to take in accordance with its obligations under Article 46 of the Convention. The Court’s concern is to facilitate the rapid and effective suppression of a shortcoming found in the national system of protection of human rights (see Driza v. Albania, no.", "33771/02, § 125, ECHR 2007‑XII (extracts)). 212. The Court may find that the growing mass of similar cases supports the conclusion that there is a “systemic practice incompatible with the Convention”: an accumulation of identical breaches which are sufficiently numerous and inter-connected to amount not merely to isolated incidents or exceptions but to a pattern or system. Such breaches reflect a continuing situation that has not yet been remedied and in respect of which litigants have no domestic remedy. This accumulation of breaches constitutes a practice that is incompatible with the Convention.", "It is inconceivable that the higher authorities of a State should be, or at least should be entitled to be, unaware of the existence of such a practice. Furthermore, under the Convention those authorities are strictly liable for the conduct of their subordinates; they are under a duty to impose their will on subordinates and cannot shelter behind their inability to ensure that it is respected (see Ireland v. the United Kingdom, cited above, § 159, and Bottazzi v. Italy [GC], no. 34884/97, § 22, ECHR 1999‑V). 213. The Court reiterates that, in cases concerning deprivations of life, Contracting States have an obligation under Article 2 of the Convention to conduct an effective investigation capable of leading to the identification and punishment of those responsible.", "The Court considers that that obligation would be rendered illusory if, in respect of complaints under Article 2 of the Convention, an applicant’s victim status were to be remedied by merely awarding damages (see, mutatis mutandis, Yaşa v. Turkey, 2 September 1998, § 74, Reports 1998‑VI, and Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 55, 20 December 2007 and the cases cited therein). 214. The procedural obligation in the case of a disappearance will, potentially, persist as long as the fate of the person is unaccounted for; the ongoing failure to provide the requisite investigation will be regarded as a continuing violation (see Varnava and Others, cited above, § 148). Investigation into a disappearance does not serve the sole purpose of establishing the circumstances of the killing, and finding and punishing the perpetrator.", "The crucial difference in investigations into disappearances is that, by conducting an investigation, the authorities also aim to find the missing person or find out what happened to him or her. When conducting investigations into disappearance cases the authorities often have to start with very little evidence and have to search for the evidence in order to trace the disappeared person or discover his or her fate. Crucial evidence may not come to light until later. Furthermore, the consensus in international law is that it should be possible to prosecute the perpetrators of such crimes even many years after the events (see Er and Others v. Turkey, no. 23016/04, §§ 55-57, 31 July 2012, with further references).", "215. Article 3 of the Convention requires the respondent State to exhibit a compassionate and respectful approach to the anxiety of the relatives of the deceased or disappeared person and to assist the relatives in obtaining information and uncovering relevant facts. The silence of the authorities of the respondent State in the face of the real concerns of the relatives can only be categorised as inhuman treatment (see Varnava and Others, cited above, § 201). C. Application in the present cases 1. Whether there exists a systemic problem 216.", "In the present case the Court finds, in particular, violations of Article 2 in respect of the applicants’ eight relatives who must be presumed dead and in respect of the ineffective criminal investigation into the circumstances of the disappearances; Article 3 in respect of the applicants who suffered, and continue to suffer, as a result of the unknown fate of their relatives and the inadequate response of the authorities to their plight; Article 5 on account of the unacknowledged detention of the eight men; and Article 13 on account of the absence of effective remedies. As mentioned above, the Court has regularly found violations of the same rights in similar cases (more than 120 judgments have been adopted up to September 2012). In addition, more than 100 similar cases have been communicated to the Government and yet others are currently pending before the Court. The reasons of the violations found are also similar and inter-connected and have been summarised above (see paragraphs 101, 123, 131-132 and 153 above). 217.", "Accordingly, the Court finds that the situation in the present case must be characterised as resulting from systemic problems at the national level, for which there is no effective domestic remedy. It affects core human rights and requires the prompt implementation of comprehensive and complex measures. 218. The widespread nature of the above-mentioned problems is attested by other relevant sources, including national and international bodies, and statements by various public officials (see paragraphs 69-82 above). Despite the Government’s assurances to the contrary, most of the recent documents and, in particular, the Council of Europe Committee of Ministers’ reports, show that these issues have remained largely unresolved (see paragraphs 69-70 above).", "219. Although a majority of cases concern disappearances that occurred between 1999 and 2006 in Chechnya and Ingushetia, the Court has concluded that the criminal investigations were ineffective also in cases of abductions that occurred either before or after that date, and outside of those two regions (see Tashukhadzhiyev v. Russia, no. 33251/04, 25 October 2011, for a disappearance in Chechnya in 1996; Umarovy v. Russia, no. 2546/08, 12 June 2012, for disappearances in 2007 in Chechnya and Dagestan; and Shafiyeva v. Russia, cited above, for a disappearance in Dagestan in 2009). The Court therefore finds that, even though the systemic nature of the violation is obvious in relation to the period between 1999 and 2006, the problems of the investigation of such events are more widespread and should be borne in mind when examining complaints arising out of similar cases occurring outside of that period and/or elsewhere in the region.", "220. Given the scope and nature of the problems involved, the Court is not in a position to order the exact general and individual measures to be implemented by Russia in order to comply with the judgment. Nor does it find it necessary to set a time-limit for the implementation of any such measures. It falls to the Committee of Ministers, acting under Article 46 of the Convention, to address the issue of what – in practical terms – may be required of the respondent State by way of compliance, and when (compare and contrast with Abuyeva and Others v. Russia, no. 27065/05, §§ 240-43, 2 December 2010).", "221. Nevertheless, the Court feels compelled to provide some guidance on certain measures that must be taken, as a matter of urgency, by the Russian authorities to address the issue of the systemic failure to investigate disappearances in the Northern Caucasus. Such steps should be taken with the aim of putting an end to the continued suffering of the relatives of the disappeared persons, conducting effective investigations into the cases of abduction, unlawful detention and disappearance allegedly committed by servicemen, and ensuring that the families of the victims are awarded adequate redress. In so doing, the Russian authorities should have due regard to the findings of the present judgment, the Court’s applicable case-law and the Committee of Ministers’ recommendations, resolutions and decisions (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 212-13, 10 January 2012, and Kaverzin v. Ukraine, no.", "23893/03, § 181, 15 May 2012). The Court’s findings below serve to identify what it considers to be an underlying systemic problem and the source of this problem, so as to assist the States in finding the appropriate solution and the Committee of Ministers in supervising the execution of judgments (see Resolution Res(2004)3 and Recommendation Rec(2004)6, adopted by the Committee of Ministers of the Council of Europe on 12 May 2004). 2. The measures to be taken 222. In the Court’s view, the measures to redress the systemic failure to investigate disappearances in the region would fall into two principal groups.", "(a) Situation of the victims’ families 223. The first and, in the Court’s opinion, most pressing group of measures to be considered concerns the suffering of the relatives of the victims of disappearances, who continue to remain in agonising uncertainty as to the fate and the circumstances of the presumed deaths of their family members. The Court has already found that a duty on the respondent State to account for the circumstances of the death and the location of the grave could be derived from Article 3 of the Convention (see Varnava and Others, cited above, § 201). 224. It is apparent from the cases at hand and from the bulk of the Court’s previous judgments on the subject that the criminal investigations are particularly ineffective in this regard, resulting in a sense of acute helplessness and confusion on the part of the victims.", "As a rule, investigations of abduction in circumstances suggesting the carrying out of clandestine security operations do not reveal the fate of the disappeared persons. Despite the magnitude and gravity of the problem, noted in many national and international reports, the response to this aspect of human suffering by means of the criminal investigations remains inadequate. Thus, as attested by the statistics submitted by the Russian Government, the average rate of success in solving such crimes in Chechnya was 7.5%, falling to 3.5% in 2002 – the year when the largest number of disappearances occurred (see paragraph 180 above). 225. A number of recommendations to the Russian authorities have been formulated by various expert bodies and officials in this respect (see paragraphs 72, 74, 77, 80-82 above).", "Without enumerating them all, the Court notes that one recurrent proposal is to create a single, sufficiently high-level body in charge of solving disappearances in the region, which would enjoy unrestricted access to all relevant information and would work on the basis of trust and partnership with the relatives of the disappeared. This body could compile and maintain a unified database of all disappearances, which still appears to be lacking. The Government, in their observations, point to a plethora of institutions that maintain such lists (see paragraphs 197-198), but those databases do not appear to be sufficiently interrelated and the very number of agencies responsible for the collection of such information may be an indication of the need for a more coherent approach. This view seems to be supported by the experts’ reports cited above and by the fact that, to date, the exact scope of the problem is subject to various, quite diverging, opinions. 226.", "Another pressing need is the allocation of specific and adequate resources required to carry out large-scale forensic and scientific work on the ground, including the location and exhumation of presumed burial sites; the collection, storage and identification of remains and, where necessary, systematic matching through up-to-date genetic databanks (see paragraphs 77, 80 and 81 above). Some work has already been done in that connection, as attested by the Government (see, for example, paragraph 200 above), and the Court welcomes those steps, in particular those occurring after 2010. Nevertheless, it would appear reasonable to concentrate the relevant resources within a specialised institution, based in the region where the disappearances have occurred and, possibly, working in close cooperation with, or under the auspices of, the specialist high-level body mentioned above. 227. Another aspect of the problem concerns the possibility of payment of financial compensation to the victims’ families, as suggested by the Government in their observations.", "The Court welcomes this forthcoming development and notes that, under certain circumstances, the payment of substantial financial compensation, coupled with a clear and unequivocal admission of State responsibility for the relatives’ “frustrating and painful situation”, could resolve the issues under Article 3 (see Skendžić and Krznarić v. Croatia, no. 16212/08, § 96, 20 January 2011). 228. In the same vein, the Court has not ruled out the possibility of unilateral remedial offers to the relatives in cases concerning persons who have disappeared or been killed by unknown perpetrators and where there is prima facie evidence supporting allegations that the domestic investigation fell short of what is necessary under the Convention. In addition to the question of compensation, such an offer should at the very least contain an admission to that effect, combined with an undertaking by the respondent Government to conduct, under the supervision of the Committee of Ministers in the context of the latter’s duties under Article 46 § 2 of the Convention, an investigation that is in full compliance with the requirements of the Convention as defined by the Court in previous similar cases (see Tahsin Acar v. Turkey (preliminary issue) [GC], no.", "26307/95, § 84, ECHR 2003‑VI). (b) Effectiveness of the investigation 229. The second group of measures that should be taken without delay to comply with this judgment relate to the ineffectiveness of the criminal investigation and the resulting impunity for the perpetrators of the most serious human rights abuses. The Court reiterates its position as formulated in the Varnava case, cited above: “191. The Court does not doubt that many years after the events there would be considerable difficulty in assembling eye-witness evidence or in identifying and mounting a case against any alleged perpetrators.", "However, the Court’s case-law on the ambit of the procedural obligation is unambiguous. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. Even where there may be obstacles 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 McKerr v. the United Kingdom, no. 28883/95, §§ 111 and 114, ECHR 2001‑III; and Brecknell v. the United Kingdom, no. 32457/04, § 65, 27 November 2007).", "Besides being independent, accessible to the victim’s family, carried out with reasonable promptness and expedition and affording a sufficient element of public scrutiny of the investigation or its results, the investigation must also be effective in the sense that it is capable of leading to a determination of whether the death was caused unlawfully and if so, to the identification and punishment of those responsible (see Oğur v. Turkey [GC], no. 21594/93, § 88, ECHR 1999‑III; Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 105-109, 4 May 2001; and Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002). 192.", "... It may be that investigations would prove inconclusive, or insufficient evidence would be available. However, that outcome is not inevitable even at this late stage and the respondent Government cannot be absolved from making the requisite efforts. By way of example, the Court recalls that in the context of Northern Ireland the authorities have provided for investigative bodies (variously, the Serious Crimes Review Team and Historical Enquiry Team) to review the files on past sectarian murders and unsolved killings and to assess the availability of any new evidence and the feasibility of further investigative measures; in cases before the Court, these measures were found, given the time that had elapsed, to have been adequate in the particular circumstances (see Brecknell, cited above, §§ 71, 75, 79-81). It cannot therefore be said that there is nothing further that could be done.", "193. It may be that both sides in this conflict prefer not to attempt to bring out to the light of day the reprisals, extra-judicial killings and massacres that took place or to identify those amongst their own forces and citizens who were implicated. It may be that they prefer a “politically-sensitive” approach to the missing persons problem and that the CMP [Commission on Missing Persons] with its limited remit was the only solution which could be agreed under the brokerage of the UN. That can have no bearing on the application of the provisions of the Convention.” 230. The continuing obligation to investigate the situations of known or presumed deaths of individuals, where there is at least prima facie evidence of State involvement, remains in force even if the humanitarian aspect of the case under Article 3 may be resolved.", "The Court acknowledges the difficulties cited by the Government, and welcomes the steps which aim to resolve at least some of the recurrent problems, such as ensuring closer inter-agency cooperation, establishing rules for access to confidential information or ensuring the victims’ rights in criminal proceedings (see, in particular, paragraphs 202-206 above). Nevertheless, it appears that a number of further general measures are required in this direction. 231. The Court is fully aware of the difficulties faced by the Russian Federation in combating illegal militant groups in the Northern Caucasus who make recourse to the most audacious terrorist methods. It therefore understands the need to mount an efficient system capable of counteracting them, and maintaining law and order in this much-suffering region.", "Nevertheless, the confines of a democratic society governed by the rule of law cannot allow this system to operate in conditions of guaranteed impunity for the abuses committed by its agents. Within the limits of the obligations imposed by the Convention, it should be possible to ensure accountability of the anti-terrorist and security services without compromising the legitimate need to combat terrorism and to maintain the necessary level of confidentiality. 232. Practically speaking, it is of utmost importance that the disappearances which have occurred in the region in the past become the subject of a comprehensive and concentrated effort on the part of the law-enforcement authorities. In view of the clear patterns and similarities in the occurrence of such events, it is vital to adopt a time-bound general strategy or action plan to elucidate a number of the questions that are common to all the cases where it is suspected that the abductions were carried out by State servicemen.", "The plan should also include an evaluation of the adequacy of the existing legal definitions of the criminal acts leading to the specific and widespread phenomenon of disappearances. 233. As the Government admit, and as can be seen from the case files reviewed by the Court in the cases at hand and in many previous similar cases, a number of military and security agencies could be suspected of involvement in the operations. However, any attempts to obtain more specific information have turned out to be extremely difficult for a variety of organisational and confidentiality reasons (see the Government’s observations, paragraphs 182-83, 185 and 194 above). Accordingly, in order for such investigations to be effective, the investigative authority would have to identify the leading agencies and commanding officers of special operations aimed at identifying and capturing suspected illegal insurgents in given areas and at given times, and the procedure for recording and reporting such operations.", "They would also need to clarify the responsibility for the detainees within those arrangements. One aspect of those general inquiries should be to resolve the problem of access to records of the passage of service vehicles through security roadblocks, including during curfew hours, which appears to be a recurrent feature of many such abductions. 234. Closely connected to the above is the unhindered access of the investigators to the relevant data of the military and security agencies. The problem of lack of cooperation with the investigators is brought up sufficiently often in the relevant documents, including those produced within the investigations of the cases at hand (see paragraphs 39-41 and 81-82 above).", "It is difficult to see how the investigative group, or groups, put in charge of those crimes could be effective without having unrestricted access to all relevant data, including information about commanding officers and staff taking part in those operations, and thus without having the possibility to identify and question those who had ordered or performed the deeds which are the subject matter of the investigation. It should be possible, in exceptional circumstances giving rise to fears for staff security, to at least identify the personnel in question by their rank and office. However, such exceptions should be strictly regulated and could not become the rule or remain impermeable in the event of sufficient information that a serious crime has been committed. 235. Beyond the issue of access to confidential information, the Court does not find it necessary to question the independence of military prosecutors or investigators in abstracto; however, it must be ensured that the investigation, or the supervision of the investigation, is not entrusted to persons or structures who could be suspected of being implicated in the events at issue (see Putintseva v. Russia, no.", "33498/04, § 52, 10 May 2012). 236. The next point to address is the access of the victims’ relatives to the case files when an investigation remains adjourned, sometimes for years. The Court has found on many occasions that the relevant provisions of the Russian legislation and practice give rise to situations which directly affect the victims’ legitimate interests in the proceedings. In the wider sense, this also has a bearing on maintaining a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory, maintain public confidence in the authorities’ adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts (see Anguelova v. Bulgaria, cited above, § 140).", "The current unsatisfactory situation should be amended, with due regard to the need to ensure the protection of confidential or secret information. This could be done, for example, by setting a rule that victims would have access to the case files where the investigation has been suspended for failure to identify the suspects, with the possibility of exception for specific documents classified confidential or secret. 237. Lastly, the application of the statute of limitations to the bulk of investigations of the abductions committed prior to 2007 has to be addressed. Bearing in mind the seriousness of the crimes, the large number of persons affected and the relevant legal standards applicable to such situations in modern-day democracies, the Court finds that the termination of pending investigations into abductions solely on the grounds that the time-limit has expired is contrary to the obligations under Article 2 of the Convention (see Association 21 December 1989 and Others v. Romania, nos.", "33810/07 and 18817/08, § 194, 24 May 2011). The Court also notes that there is little ground to be overly prescriptive as regards the possibility of an obligation to investigate unlawful killings arising many years after the events, since the public interest in obtaining the prosecution and conviction of perpetrators is firmly recognised, particularly in the context of war crimes and crimes against humanity (see Brecknell v. the United Kingdom, no. 32457/04, § 69, 27 November 2007). 3. Conclusions 238.", "A number of urgent and result-oriented measures appear inevitable in order to put an end, or at the very least to alleviate the continuing violation of Articles 2 and 3 resulting from the disappearances that have occurred in the Northern Caucasus since 1999. While it is for the Committee of Ministers to supervise the execution of final judgments, in line with Article 46 § 2 of the Convention, the Court considers that the systemic dysfunction of the investigation of such crimes requires a number of remedial measures, as outlined above. Given their wide-ranging scope, the nature of the violations concerned and the pressing need to remedy them, it would appear necessary that a comprehensive and time-bound strategy to address the problems enumerated above (see paragraphs 223-237 above) is prepared by the Respondent State without delay and submitted to the Committee of Ministers for the supervision of its implementation. 239. At present, the Court does not consider it possible to apply any adjournments in respect of other similar cases pending before it, in view of the serious and continuing nature of the violations alleged.", "VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 240. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. The parties’ submissions 1. Application no.", "2944/06, Satsita Aslakhanova v. Russia (a) Damage 241. The applicant claimed 3.038.928 Russian roubles (RUB) in respect of pecuniary damage. She argued that her husband had been a mason and the sole breadwinner of the family, and that she could have relied on 30% of his earnings, plus 10% per child until the age of majority. She submitted a calculation leading to that result, based on the Ogden Actuary Tables. In the absence of any evidence of her husband’s previous employment or salary, the applicant relied on an information note from a Chechen road construction company of September 2008, setting the monthly remuneration for masons at RUB 24.000.", "242. The applicant further claimed 70.000 euros (EUR) in respect of non-pecuniary damage . 243. The Government disputed the reasonableness and justification of those claims. (b) Costs and expenses 244.", "The applicant claimed EUR 6.154 for the costs and expenses incurred before the domestic authorities and the Court. She submitted a copy of the legal agreement with her representatives and a breakdown of the costs and expenses incurred, complete with postal receipts and translators’ invoices. She requested the transfer of that sum directly to her representative’s bank account in the Netherlands. 245. The Government disputed the reasonableness and justifications of the amount claimed.", "2. Application no. 8300/07, Barshova and Others v. Russia and no. 42509/10, Akhmed Shidayev and Belkis Shidayeva v. Russia (a) Damage 246. All the applicants asked the Court to determine the compensation in respect of non-pecuniary damage caused by the illegal detention and disappearance of their close relatives.", "In addition, Akhmed Shidayev sought compensation as the victim of ill-treatment and unlawful detention. (b) Costs and expenses 247. The applicants also claimed reimbursement of costs and expenses incurred before the domestic authorities and the Court. They submitted copies of legal agreements with their representatives and a breakdown of the costs and expenses incurred, complete with postal receipts and translators’ invoices. Thus, applicant Larisa Barshova sought EUR 8.726 under this head and Akhmed and Belkis Shidayevy sought EUR 6.777.", "248. The Government expressed doubts as to whether the expenses claimed had actually been incurred and were reasonable. 3. Application no. 50184/07, Malika Amkhadova and Others v. Russia (a) Damage 249.", "The applicants claimed RUB 1,112,321 in respect of pecuniary damage. They argued that Ayb Temersultanov had been unemployed at the time of his abduction, but had remained the sole breadwinner of the family. They argued that, based on the subsistence level provided for by federal and regional legislation, as mother and wife they could have relied on 20% of his earnings, plus 10% per child until the age of majority. They submitted a calculation based, principally, on the Ogden Actuary Tables. 250.", "The applicants further claimed EUR 500,000 in respect of non-pecuniary damage. (b) Costs and expenses 251. The applicants also claimed EUR 1,812 for costs and expenses incurred before the domestic courts and the Court. They submitted a copy of the legal agreement between the second applicant and the representatives, and a breakdown of the costs and expenses incurred, complete with postal receipts and translators’ invoices. They requested the transfer of that sum directly to their representative’s bank account in the Netherlands.", "252. The Government questioned whether the expenses claimed had actually been incurred and were reasonable as to quantum. 4. Application no. 332/08, Sagaipova and Others v. Russia (a) Damage 253.", "Satsita Sagaipova, Aminat Nalbiyeva and Abu Nalbiyev – the wife and minor children of Ayub Nalbiyev – claimed a total of RUB 2,297,750 in respect of pecuniary damages. They submitted that Ayub Nalbiyev had been in employment at the time of his abduction and had provided for his family, even though no records relevant to his employment or salary could be obtained. They argued that until the youngest child had reached the age of majority, his wife and each child could have relied on a monthly amount equal to the subsistence level provided for by federal and regional legislation. 254. All the applicants further claimed non-pecuniary damages in the amounts to be determined by the Court.", "(b) Costs and expenses 255. The applicants also claimed EUR 10,299 for costs and expenses incurred before the domestic courts and the Court. They submitted a copy of the legal agreement between Satsita Sagaipova, Tatyana Magomerzayeva and Seda Abazova and Mr Itslayev, a breakdown of the costs and expenses incurred, complete with postal receipts and translators’ invoices. They requested the transfer of that sum directly to their representative’s bank account in Chechnya. 256.", "The Government submitted that the applicants were entitled to the reimbursement of costs and expenses only in so far as it had been shown that such expenses had actually been incurred and were reasonable as to quantum. They disputed that the applicants had complied with this test in the case at hand. B. The Court’s assessment 1. General principles 257.", "The Court reiterates that there must be a clear causal connection between the damages claimed by the applicants and the violation of the Convention, and that this may, in an appropriate case, include compensation in respect of loss of earnings. The Court further finds that the loss of earnings applies to close relatives of the disappeared persons, including spouses, elderly parents and minor children (see, among other authorities, Imakayeva, cited above, § 213). 258. Wherever the Court finds a violation of the Convention, it may accept that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations and make a financial award. 259.", "As to the costs and expenses, 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). 2. Application in the present cases 260.", "Having regard to its above conclusions, the principles enumerated above and the parties’ submissions, the Court awards the amounts to the applicants as detailed in Annex II, plus any tax that may be chargeable to the applicants on these amounts. The awards in respect of the costs and expenses are to be paid into the representatives’ bank accounts in the Netherlands and in Russia, as identified by the applicants. C. Default interest 261. 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 substantive violation of Article 2 of the Convention in respect of the applicants’ eight relatives: Apti Avtayev, Sulumbek Barshov, Anzor Barshov, Abuyazid Shidayev, Ayub Temersultanov (also known as Ruslan Tupiyev), Ayub Nalbiyev, Badrudin Abazov and Ramzan Tepsayev; 4. Holds that there has been a procedural violation of Article 2 of the Convention in respect of the failure to investigate effectively the disappearance of the applicants’ eight relatives; 5. Holds that there has been a violation of Article 3 of the Convention in respect of the applicants, on account of their relatives’ disappearance and the authorities’ response to their suffering; 6.", "Holds that there has been a violation of Article 5 of the Convention in respect of the applicants’ disappeared relatives; 7. Holds that there has been a violation of Article 3 of the Convention in respect of Akhmed Shidayev, on account of inhuman and degrading treatment inflicted upon him between 25 and 30 October 2002 and the failure to effectively investigate this allegation; 8. Holds that there has been a violation of Article 5 of the Convention in respect of Akhmed Shidayev, on account of his illegal detention between 25 and 30 October 2002; 9. Holds that there has been a violation of Article 13 of the Convention in conjunction with Articles 2 and 3 of the Convention; 10. 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 amounts as indicated in Annex II, plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement, save in cases of the payment in respect of costs and expenses to the applicants represented by SRJI; (b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 11.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 18 December 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident ANNEX I Details of the applications Application number and name Case details Applicants Persons disappeared, date and place of abduction Investigation 1. 2944/06 Satsita Aslakhanova v. Russia Lodged on 13 January 2006; represented by SRJI; communicated on 30 April 2008. Satsita Aslakhanova, born in 1971, wife of Apti Avtayev and mother of their two children, born in 1997 and 1999.", "Lives in Urus-Martan, Chechnya. Apti Avtayev, born in 1967; 10 March 2002, Grozny. On 19 August 2002 the Leninskiy ROVD of Grozny opened criminal investigation no. 48139. No documents from the file were disclosed.", "The case is suspended. On 11 March 2003 the Leninskiy District Court in Grozny declared Mr Avtayev a missing person as of 10 March 2002. 2. 8300/07 Larisa Barshova v. Russia Lodged on 9 January 2007; represented by D. Itslayev; communicated on 20 May 2009. Larisa Barshova, born in 1952, mother of the disappeared men.", "Lives in Grozny, Chechnya. Sulumbek and Anzor Barshov, born in 1981 and 1983; 23 October 2002 at2 a.m., Grozny. The investigation file no. 48188 into the abduction of the Barshov brothers and two members of the Shidayev family was opened on 31 October 2002 by the Leninskiy ROVD of Grozny. In May 2011 the Government submitted the entire contents of the criminal investigation file, 592 pages.", "On 7 May 2010, upon Belkis Shidayeva’s complaint under Article 125 of the CCP, the Leninskiy district court of Grozny quashed the decision of 20 November 2008 to adjourn the investigation. The court found that the investigator had failed to carry out an entire and all-encompassing investigation. By November 2010 (latest documents) the file remained pending; no progress has been made in respect of finding the missing men or identifying the perpetrators. 3. 42509/10 Akhmed Shidayev and Belkis Shidayeva v. Russia Lodged on 28 July 2010; represented by D. Itslayev; communicated on 19 January 2011.", "1) Akhmed Shidayev, born in 1984, son of the disappeared man; 2) Belkis Shidayeva, born in 1949, wife of the disappeared man. Both live in Grozny, Chechnya. Abuyazid Shidayev, born in 1944; 25 October 2002 at 2:30 a.m., Grozny. 4. 50184/07 Malika Amkhadova and others v. Russia Lodged on 23 October 2007; represented by SRJI; communicated on 26 January 2010.", "1) Malika Amkhadova, born in 1947, mother of the disappeared man; 2) Malika Abubakirova, born in 1979, wife of the disappeared man; 3) Aminat Temersultanova, born in 2002; 4) Fatima Temersultanova, born in 2003; 5) Tanzila Temersultanova, born in 2004; daughters of Ayub Temersultanov and the second applicant. All applicants live in Mesker-Yurt, Shalinksyi District, Chechnya. Ayub Temersultanov (also known as Ruslan Tupiyev), born in 1972; 1 July 2004 Between 7 and 8 a.m., Grozny. The investigation into the abduction was opened by the Leninskiy district prosecutor’s office of Grozny on 9 August 2004. The Government provided 75 pages of documents from the file.", "The latest documents date October 2007; at that time the investigation was pending. The applicants petitioned the prosecutor’s offices, but not the court. 5. 332/08 Satsita Sagaipova and Others v. Russia Lodged on 16 November 2007; represented by D. Itslayev; communicated on 26 June 2009. 1) Satsita Sagaipova, born in 1971, wife of Ayub Nalbiyev; 2) Khadizhat Nalbiyeva, born in 1937, mother of Ayub Nalbiyev; 3) Aminat Nalbiyeva, born in 2000, daughter of Ayub Nalbiyev; 4) Abu Nalbiyev, born in 2003, son of Ayub Nalbiyev; 5) Seda Abazova, born in 1937, mother of Badrudin Abazov; 6) Tatyana Magomerzayeva, born in 1953, mother of Mr Ramzan Tepsayev; 7) Aminat Magomerzayeva, born in 1983, sister of Mr Ramzan Tepsayev.", "All applicants live in Dachu-Borzoy, Grozny District, Chechnya. 1) Ayub Nalbiyev, born in 1971; 2) Badrudin Abazov, born in 1976; 3) Ramzan Tepsayev, born in 1981. 22 February 2003, between midnight and 3 a.m., Dachu-Borzoy, Grozny District. The Grozny District prosecutor’s office opened criminal investigation into the abduction of three persons on 12 March 2003. The Government submitted 422 pages from the investigation file.", "The investigation was for the last time adjourned in 2007, it is still pending. ANNEX II Awards made by the Court under Article 41 Application number and name Applicants Pecuniary damage Non-pecuniary damage Costs and expenses 2944/06 Satsita Aslakhanova v. Russia Satsita Aslakhanova, born in 1971, wife of Apti Avtayev and mother of their two children, born in 1997 and 1999. EUR 14,000 EUR 60,000 Represented by SRJI EUR 3,000 8300/07 Larisa Barshova v. Russia Larisa Barshova, born in 1952, mother of the disappeared men. - EUR 120,000 Represented by D. Itslayev EUR 3,000 42509/10 Akhmed Shidayev and Belkis Shidayeva v. Russia 1) Akhmed Shidayev, born in 1984, son of the disappeared man; 2) Belkis Shidayeva, born in 1949, wife of the disappeared man. - EUR 60,000, jointly EUR 7,500 to the first applicant in respect of inhuman treatment suffered by him during unlawful detention.", "Represented by D. Itslayev EUR 3,000 50184/07 Malika Amkhadova and others v. Russia 1) Malika Amkhadova, born in 1947, mother of the disappeared man; 2) Malika Abubakirova, born in 1979, wife of the disappeared man; 3) Aminat Temersultanova, born in 2002; 4) Fatima Temersultanova, born in 2003; 5) Tanzila Temersultanova, born in 2004, daughters of Ayub Temersultanov and the second applicant. EUR 16,000, jointly EUR 60,000, jointly Represented by SRJI EUR 1,182 332/08 Satsita Sagaipova and Others v. Russia 1) Satsita Sagaipova, born in 1971, wife of Ayub Nalbiyev; 2) Khadizhat Nalbiyeva, born in 1937, mother of Ayub Nalbiyev 3) Aminat Nalbiyeva, born in 2000, daughter of Ayub Nalbiyev; 4) Abu Nalbiyev, born in 2003, son of Ayub Nalbiyev; 5) Seda Abazova, born in 1937, mother of Badrudin Abazov; 6) Tatyana Magomerzayeva, born in 1953, mother of Mr Ramzan Tepsayev; 7) Aminat Magomerzayeva, born in 1983, sister ofMr Ramzan Tepsayev. EUR 14,000 to the first, third and fourth applicants, jointly 1) EUR 60,000, jointly to the first four applicants; 2) EUR 60,000 to the fifth applicant; 3) EUR 60,000, jointly to the sixth and seventh applicants. Represented by D. Itslayev; EUR 9,000" ]

[ "FIFTH SECTION CASE OF KHADIJA ISMAYILOVA v. AZERBAIJAN (Applications nos. 65286/13 and 57270/14) 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 Khadija Ismayilova v. Azerbaijan, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President,André Potocki,Síofra O’Leary,Mārtiņš Mits,Gabriele Kucsko-Stadlmayer,Lәtif Hüseynov,Lado Chanturia, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 27 November 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos.", "65286/13 and 57270/14) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Ms Khadija Rovshan qizi Ismayilova (Xədicə Rövşən qızı İsmayılova – “the applicant”), on 26 September 2013 and 31 July 2014 respectively. 2. The applicant was represented by Ms A. Vermeer, Ms Y.-O. Jansen and Ms L. Talsma of the Media Legal Defence Initiative, lawyers based in London, Mr L. Crain of De Brauw Blackstone Westbroek, a lawyer practising in the Netherlands, Mr Y. Imanov, a lawyer practising in Azerbaijan, and Mr S. Finizio, a lawyer practising in London. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.", "3. The applicant alleged, in particular, that her rights under Articles 6, 8, 10 and 13 of the Convention had been breached, owing to the authorities’ failure to protect her from unjustified intrusions into her private life linked to her work as a journalist. 4. On 17 December 2015 the applications were communicated to the Government. The applicant and the Government each submitted written observations on the admissibility and merits of the applications.", "Observations were also received from PEN International, Privacy International, Article 19, Committee to Protect Journalists, Index on Censorship, International Media Support, the Institute for Reporters’ Freedom and Safety, International Partnership for Human Rights, PEN American Center, Front Line Defenders, Canadian Journalists for Free Expression, International Federation for Human Rights, World Organisation Against Torture, Norwegian Helsinki Committee, and Human Rights House Foundation, to whom the President had given leave to intervene as third parties in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1976 and lives in Baku. A.", "Background 6. The applicant worked as an investigative journalist since 2005. She worked as a staff reporter and director at the Azerbaijani service of Radio Free Europe/Radio Liberty (“Azadliq Radio”), whose broadcasts were often critical of the government, covering various topics, including corruption and violations of human rights. In addition, she worked as a regional coordinator for the Organised Crime and Corruption Reporting Project, where she trained journalists in investigation techniques and cross-border reporting. She has received a number of international awards for her journalistic activity.", "7. In August 2010 and June 2011, before the events giving rise to the present case, the applicant had published and contributed to articles concerning the alleged involvement of the President’s daughters in various commercial ventures. In early 2012 the applicant claimed that her research had uncovered that the presidential family controlled a mining consortium which had just been awarded a lucrative extraction licence by the Azerbaijani government. 8. During the events giving rise to the present case, the applicant continued to report on the above matters.", "In particular, on 3 May 2012 she published an article on the above-mentioned mining consortium. On 7 May 2012 she published an article entitled “President’s family benefits from Eurovision Hall”. On 11 October 2012 she wrote about the alleged investments of the presidential family in an article entitled “Azerbaijani enclave in the Czech Republic”. On 3 April 2013 she published an investigative report entitled “Offshore companies provide link between corporate mogul and Azerbaijan’s president”. 9.", "According to the applicant, since she began reporting critically on the government she has been threatened and intimidated in various ways. B. Threatening letter and publication of videos depicting the applicant’s intimate life 10. On 7 March 2012 the applicant received a letter enclosing six still images from a video taken in her bedroom with a hidden camera. Those images showed her engaged in sexual intercourse with a man who, according to the applicant, was her then boyfriend.", "The message accompanying the images stated: “Whore, refrain from what you are doing, otherwise you will be shamed! ” (“Qəhbə, özüvü yığışdır. Əks halda rüsvay olacaqsan! ”). The letter had been sent by post from an address in Moscow.", "The sender’s name as noted on the envelope was “Valeriy Mardanov”. 11. The same images were also sent to two opposition newspapers, Yeni Müsavat and Azadliq, which did not publish them. 12. On the same day the applicant made a statement, distributed through social media, that she would not cease her journalistic activity and would not be silenced.", "13. On 9 March 2012 the applicant reported the above-mentioned letter to the prosecution authorities and lodged a formal request for an investigation, arguing that the letter amounted to blackmail related to her recent journalistic activities. She also requested measures to protect her safety. The investigation was formally launched on 15 March 2012 (see section C below). 14.", "In the meantime, on 13 March 2012 the newspaper Yeni Azərbaycan (the official newspaper of the ruling New Azerbaijan Party) published an article titled “Khadija Ismayilova as she seems and as she is”. The article began with a reference to the applicant’s statement about receiving the threatening letter. It further criticised the applicant and those who had spoken in her support. In particular, it criticised both her and a colleague at Azadliq Radio for lack of professionalism and anti-government bias. Moreover, citing another former employee of Azadliq Radio, it also insinuated that the applicant was a person of immoral behaviour who spent a great deal of her time in bars and clubs and regularly held all-night parties and “orgies” with her friends in her office.", "The same article was published in the newspaper İki Sahil on 15 March 2012. 15. On 14 March 2012 a video was posted online on a website named “musavat.tv”, featuring scenes of a sexual nature involving the applicant and her then boyfriend, taken with the same camera hidden in her bedroom. Müsavat is a political opposition party, which indicated that it had nothing to do with the website and condemned the posting of the video. According to the applicant, the domain name “musavat.tv” was apparently chosen solely for the posting of the video, to create the suggestion of a link with the Müsavat party or its newspaper, Yeni Müsavat.", "16. On 16 March 2012 the newspaper Səs published an article titled “Not surprising”. The article spoke about a number of scandals in which various opposition politicians had been involved. At the end, the article briefly alluded to the incident involving the applicant, without going into much detail about it, but stating that it was not surprising that many opposition-oriented individuals were involved in “sex scandals”. 17.", "On 5 April 2012 Səs published another article titled “Who should Khadija sue?” attacking the applicant for “immoral behaviour” and suggesting that the video scandal had been created by herself and her friends at “musavat.tv”. 18. Several more articles attacking the applicant were published later in Səs. 19. In April 2013 another video purporting to show the applicant engaged in sexual activities was posted on a website named “ictimaipalatka.com” where, according to the applicant, similar videos of other activists and anti-government figures had been posted previously.", "This particular video did not in fact involve the applicant, but rather a woman meant to resemble her. 20. While the investigation in connection with the threatening letter and the posting of the first video was under way (see below), in July 2013 another video of the applicant and her then boyfriend filmed in the applicant’s bedroom was posted on “ictimaipalatka.com”. This video actually featured the applicant, and had been taken with the same hidden camera used for the first video. According to the applicant, the webpage of the video was contained in a frame marked “SesTV Player”.", "C. Criminal investigation 1. Opening of the criminal investigation and steps taken 21. As noted above, on 9 March 2012 the applicant reported the threatening letter received on 7 March 2012 to the Ministry of Internal Affairs and the Prosecutor General’s Office, complaining that it was blackmail in connection with her journalistic activity, and asking the prosecution authorities to ensure her safety, to investigate the matter, and to hold those responsible for the threat and the video accountable. 22. On 15 March 2012, one week after the applicant’s formal complaint and a day after the video was posted, the Prosecutor General’s Office launched criminal proceedings under Article 156 (breach of inviolability of private life) of the Criminal Code on the basis of the applicant’s request, and assigned the case to the Baku City Prosecutor’s Office.", "23. On 17 March 2012 the applicant was questioned by Mr N.A., an investigator of the Baku City Prosecutor’s Office. 24. On 17 March 2012 the applicant found out, with the help of friends, that as well as the camera in the bedroom there were multiple other hidden cameras installed in her flat. Moreover, they found a newly installed second telephone line and data wires which had evidently been used for transmitting the footage shot with the hidden cameras.", "25. According to the applicant, she and her friends returned to the flat the next day and discovered several signs indicating that someone had been in it overnight. 26. On 19 March 2012 the applicant went to the Baku City Prosecutor’s Office to request an inspection of her flat. According to the applicant, the investigators visited her flat, but refused to comment on the purpose or implications of the wires, indicating that they did not possess the technical expertise to do so.", "They also refused to arrange for an inspection by an expert, but agreed that the applicant would herself contact the Automatic Telephone Station No. 538 (ATS), operated by Baktelekom, a State-owned communications company, which was responsible for the telephone box outside the flat to which the wires were connected. 27. The applicant was told at the ATS that the designated service engineer for the applicant’s building was Mr N.J., an employee of the ATS. The applicant managed to track down Mr N.J. and arranged to meet him in her flat the same day.", "She also arranged for two investigators from the Baku City Prosecutor’s Office, Mr N.A. and his assistant, to be present during the meeting. 28. According to the applicant, during the meeting in her flat on 19 March 2012, Mr N.J. admitted, in the presence of the investigators, the applicant, her lawyer and three of her friends, that in July 2011, on a day off work, Saturday (either 2 or 9 July 2011), on the instructions of his supervisor, he had installed a second telephone line and connected the wires from the ATS to the telephone box outside the applicant’s flat. He had been asked by an unknown man he had met outside the flat to leave an extra fifteen metres of wire so that they could be connected inside the flat.", "He had also heard other people at work with the wires inside the flat. According to the applicant, during the conversation the investigator Mr N.A. appeared to be recording the engineer’s statements. However, he later tore up his handwritten investigation record and made a new document that did not contain the engineer’s account. He also asked the engineer to remove the second phone line, without documenting its removal.", "According to the applicant, despite her objections, he did not include Mr N.J.’s statements in the investigation case file and did not mention in the investigation record that there had been a meeting with Mr N.J. at the applicant’s flat. 29. On 21 March 2012 the applicant asked the Chief Prosecutor’s Office and the Baku City Prosecutor’s Office to question Mr N.J. Then, according to her, on 3 April and 12 April 2012 she visited the Baku City Prosecutor’s Office to get an update on the status of the investigation, but to no avail. 30. According to the documents submitted by the Government, on 30 March 2012 Mr N.A., the investigator of the Baku City Prosecutor’s Office, took a formal decision granting the applicant’s request to have Mr N.J. questioned and to take investigative steps to determine who had instructed him to install wires leading to the applicant’s flat.", "The Government did not submit any records of Mr N.J.’s questioning or any further decisions by the prosecuting authorities taken in this regard. 31. In the meantime, on 19 March 2012 the investigator ordered an expert examination of gloves, pieces of newspaper and a lock found in the applicant’s flat. 32. Between April 2012 and August 2013, the investigator issued a series of decisions ordering expert examinations of the following items: the still images sent to the applicant and the Yeni Müsavat newspaper; wires found in the applicant’s flat; a disc containing the video recording published on “mustavat.tv”; the postal packaging in which the threatening letter and the still images had been sent to the applicant and the Yeni Müsavat newspaper; and a disc containing the video recording published on “ictimaipalatka.com”.", "33. The Government did not submit any expert reports or other documents relating to the above-mentioned decisions. No further documents concerning the investigative steps taken have been made available to the Court by the parties. 2. The applicant’s complaints concerning the alleged ineffectiveness of the investigation 34.", "On 4 April 2012 the applicant published a press release in which she criticised the Baku City Prosecutor’s Office for failing to conduct an adequate investigation, and stated that her access to the investigation material was “extremely limited”. 35. On 13 April 2012 the applicant lodged a complaint with the Prosecutor General’s Office against the officials of the Baku City Prosecutor’s Office, complaining that the latter were refusing to take obvious and simple investigative steps. 36. The Prosecutor General’s Office did not act on the applicant’s complaint.", "Instead, on 26 April 2012 the Prosecutor General’s Office and the Baku City Prosecutor’s Office published a joint public statement on the status of the investigation (“the status report”). The content of the status report and the proceedings relating to it are described in section D below. 37. On 12 November 2012 the applicant requested from the Prosecutor General’s Office and the Baku City Prosecutor’s Office information on the status of the investigation, and copies of any decisions taken. According to the applicant, by letters of 14 and 21 November 2012 the Baku City Prosecutor’s Office replied that the investigation was being conducted and that decisions on the applicant’s various requests had been taken on 31 March and 3 April 2012 (no copies of those letters or decisions are available in the case file).", "According to the applicant, she wrote a letter dated 28 November 2012 asking for copies of those decisions, since she had not received them. 38. Having received no further replies, on 2 April 2013 the applicant again requested information from the prosecuting authorities on the status of the investigation. On 4 April 2013 the Baku City Prosecutor’s Office replied that decisions taken in respect of her requests had been sent to her on 30 March 2012 and 3 December 2012 (no copy of a decision taken on the latter date is available in the case file). The letter further stated that a number of investigative steps, including various expert examinations, had been taken, and that the investigation was under way.", "By a letter of 30 April 2013 the Prosecutor General’s Office gave the applicant a similar reply. 39. On 12 August 2013, after the publication of the second hidden video recording in July 2013 (see paragraph 20 above), the applicant lodged a complaint against the prosecuting authorities with the Sabail District Court under the judicial supervision procedure, noting that there had been no effective investigation for over a year, and that the prosecuting authorities had limited themselves to vague indications to the effect that the investigation was ongoing. She asked the court to find the prosecuting authorities’ inactivity unlawful, and sought monetary compensation. 40.", "By a decision of 13 August 2013 the Sabail District Court refused to examine the complaint, finding that it had no competence to examine it under the judicial supervision procedure, because the matter complained of was not among the exclusive list of types of decisions and steps by the prosecuting authorities, established by Articles 449.3.1 to 449.3.7 of the Code of Criminal Procedure (“the CCrP”), that could be challenged under the judicial supervision procedure. The court noted that a complaint concerning the alleged inactivity of the prosecuting authorities should be made under the rules of administrative procedure. 41. On 16 August 2013 the Baku City Prosecutor’s Office, ruling on a request by the applicant, refused to allow her access to the investigation case file until the investigation was complete, relying on Articles 87, 281.3 and 284-286 of the CCrP. On the same day, it refused her request for the criminal offence to be reclassified as falling under Article 163.1 (hindrance of a journalist’s lawful professional activity) of the Criminal Code.", "42. On 28 August 2013 the applicant lodged another complaint with the Sabail District Court under the judicial supervision procedure, with content similar to that of the previous complaint of 12 August 2013. On 30 August 2013 the Sabail District Court rejected the complaint, for the same reasons as in the decision of 13 August 2013. On 9 September 2013 the applicant appealed. On 18 September 2013 the Baku Court of Appeal upheld the Sabail District Court’s inadmissibility decision.", "43. On 18 September 2013 the applicant lodged a third complaint with the Sabail District Court under the judicial supervision procedure, which was again rejected by that court on 30 September 2013, and by the Baku Court of Appeal on 17 October 2013. 44. In the meantime, as recommended by the Sabail District Court, on 28 August 2013 the applicant lodged a complaint against the prosecuting authorities with the Baku Economic Administrative Court no. 1 under the rules of administrative procedure.", "45. On 19 September 2013 the Baku Economic Administrative Court no. 1 refused to hear the complaint, finding that under the Code of Administrative Procedure and the Law on Administrative Proceedings it had no competence to examine complaints concerning the activities of criminal prosecution authorities in criminal proceedings. 46. On 14 October 2013 the applicant appealed, stating that she had been instructed to pursue the administrative procedure by the Sabail District Court.", "47. On 4 December 2013 the Baku Court of Appeal rejected the applicant’s appeal and upheld the decision of the Baku Economic Administrative Court no. 1. 48. On 20 December 2013 the applicant lodged a further appeal with the Supreme Court, which was rejected on 6 February 2014.", "D. Publication of the status report and the civil proceedings against the prosecuting authorities 49. As mentioned above, in response to the applicant’s complaint of 13 April 2012, on 26 April 2012 the Prosecutor General’s Office and the Baku City Prosecutor’s Office published a status report on the investigation (see paragraph 36 above). The status report noted that the applicant and her lawyer had been spreading false information in the media about the alleged inadequacy of the investigation and, as such, had attempted to “create a negative opinion” among the public concerning the investigation. It further noted that the investigating authorities had taken a number of investigative steps, in particular: “At the request of [the applicant], on 15 March 2012 the Prosecutor General’s Office opened a criminal case under Article 156.1 of the Criminal Code and assigned the investigation to the Investigation Department of the Baku City Prosecutor’s Office. At the initial stages of the investigation [the applicant] was questioned in the presence of her representative A. Ismayilov; she was designated a victim of crime, and her rights and obligations were explained to her.", "Thereafter, in order to discover the traces of crime and material evidence and to determine other circumstances important for the case, [the investigating authorities] conducted, with the participation of an expert, a criminalist, [the applicant], her representative and attesting witnesses, an inspection of the place of the incident, namely the flat located at ..., and owned by ..., where the applicant lived as a tenant, took relevant material evidence from the place of the incident, ordered and obtained expert reports, and made relevant inquiries and issued instructions relating to the case.” 50. The status report then provided information about the period during which the applicant had rented the flat, as well as the identities of individuals to whom she had subsequently sublet the flat, and the financial arrangements between them. 51. The status report proceeded as follows: “In addition to this, the investigation also established that envelopes containing photographs of [the applicant] were mailed under the name of Valeriy Mardanov from Moscow to [the applicant’s] registered address at ... and to the editorial office of the Yeni Müsavat newspaper. The envelopes were seized by the investigation and added to the case material.", "[The applicant’s] request for additional persons to be questioned as witnesses, received by the investigation on 28 March 2012, was granted, and those persons were questioned.” 52. The status report then noted that in addition to the above steps being taken, a number of other persons were also questioned. The report disclosed the full names of those individuals, as well as their professional occupations or their relation to the applicant. They included reference to the man with whom, according to the report, the applicant was “in a liaison”, her sister, her brother, her friends and her colleagues who had visited her flat. In all, the report gave the full names of fifteen people, as well as the professional occupations of most of them.", "53. The status report concluded as follows: “On 13 and 17 April 2012 [the applicant] was invited to the investigation department in connection with the necessary investigative steps, but she did not appear; she only appeared for questioning on 26 April 2012. Since the beginning of the investigation, in addition to [the applicant] and her representative being summoned by the investigation, on 17 March, 3 April and 14 April 2012 the administration of the Baku City Prosecutor’s Office received visits from her and her representative during which they heard her requests and gave specific instructions to the investigation team for full, impartial and comprehensive conduct of the investigation.” 54. As to the information mentioned in paragraphs 50 and 52 above, according to the applicant she herself had reluctantly provided much of the above information to the investigators at the request of a prosecutor, in order to assist the investigation, expecting that the information would be kept confidential. She had been promised by officials of the Baku City Prosecutor’s Office that the information would remain confidential.", "55. On 27 April 2012 the spokesman of the Baku City Prosecutor’s Office indicated in an interview that the status report had been released in response to the applicant’s public complaints about the lack of an effective investigation. He also stated that there was nothing unlawful in the contents of the status report. 56. On 21 June 2012 the applicant lodged a civil claim with the Sabail District Court against the Prosecutor General’s Office, the Baku City Prosecutor’s Office, Mr N.A.", "(an investigator at the Baku City Prosecutor’s Office) and Mr A.A. (the Baku City Deputy Prosecutor). She argued that the publication of detailed information concerning her private life in the status report of 26 April 2012 constituted an unlawful and unjustified interference with her right to respect for private life and freedom of expression, arguing that the status report was an integral part of the “slander campaign” against her, which also included the release of the “sex video” and the newspaper articles. She argued that the publication of this information had been in breach of, inter alia, Article 32 of the Constitution, Article 199 of the Code of Criminal Procedure, and Article 8 of the Convention. She sought compensation for distress in the amount of 40,000 Azerbaijani manats (AZN) and a public apology by the defendants. 57.", "By a judgment of 27 July 2012 the Sabail District Court dismissed the applicant’s claims, finding that the purpose of the status report had been to counter the possibility of the public forming a negative opinion about the investigating authorities as a result of the applicant’s public complaints that the investigation was ineffective. The court found that the information in the status report was of a “general character”, and had not breached the requirements of the domestic law concerning individuals’ privacy. Specifically, it found as follows: “[The status report] contained information of a general character in order to prevent creation of a negative opinion among the public; when the information was written, the requirements of the domestic legislation concerning the protection of Khadija Ismayilova’s private and family confidentiality were not breached. Therefore, the information in [the status report] cannot be considered damaging to the plaintiff’s reputation or her private and family life.” 58. The court also held that the applicant had been unable to demonstrate that she had suffered any non-pecuniary damage under the provisions of the Civil Code and the Code of Civil Procedure as interpreted by the Plenum of the Supreme Court.", "59. On 24 September 2012 the applicant appealed, reiterating her arguments and complaining further that the first-instance court had ignored her legal and factual arguments and had failed to rely on any legal provisions in arriving at its decision. 60. On 20 November 2012 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the first-instance court’s judgment, agreeing with its reasoning. 61.", "On 29 March 2013 the Supreme Court dismissed the applicant’s appeal on points of law and upheld the lower courts’ judgments, finding that the publication of the status report had not interfered with the applicant’s private or family life and had not been in breach of the relevant domestic legal provisions. E. The applicant’s arrest and the criminal proceedings against her 62. In December 2014 the applicant was arrested and detained on the charge that she had incited a former colleague to commit suicide. In February 2015 she was additionally charged with the criminal offences of large-scale misappropriation, illegal entrepreneurship, large-scale tax evasion and abuse of power in connection with her activity as the director of Azadliq Radio during the period from 1 July 2008 to 1 October 2010. The events relating to her arrest and detention are the subject of a separate application (no.", "30778/15), in which the applicant raised complaints under Articles 5, 6 § 2, 10 and 18 of the Convention. 63. On 1 September 2015 the applicant was sentenced to seven and a half years’ imprisonment. After a series of appeals, on 25 May 2016 she was acquitted in part and her sentence was reduced to three and a half years’ imprisonment, conditionally suspended for five years. She was released from prison on the same day.", "II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS A. Constitution 64. Article 32 of the Constitution, as in force at the material time, provided as follows: Article 32. Right to personal inviolability “I.", "Everyone has the right to personal inviolability. II. Everyone has the right to keep secret private and family life. It is prohibited to interfere with private or family life, except in cases established by law. Everyone has the right to be protected from unlawful interference in his or her private and family life.", "III. No one may collect, keep, use and disseminate information about a person’s private life without his or her consent. Except in cases prescribed by law, no one may be subjected to being followed, videotaped or photographed, tape recorded or subjected to other similar actions without his or her knowledge and against his or her objection. IV. The State guarantees everyone the right to confidentiality of correspondence, telephone communications, post, telegraph messages and information sent by other communication means.", "This right may be restricted, in accordance with a procedure provided by law, in order to prevent crime or to discover the true facts when investigating a criminal case. V. Except in cases prescribed by law, everyone may become familiar with the information collected concerning him or her. Everyone has a right to demand correction or elimination of information concerning him or her which does not correspond to the truth, is incomplete or has been collected by means of violation of the requirements of the law.” B. Criminal Code 65. Article 156 of the Criminal Code, as in force at the material time, provided as follows: “Article 156.", "Breach of inviolability of private life 156.1. The illegal collecting of information constituting private and family secrets, and disseminating, selling and sharing with others of documents, video and photo materials and sound recordings of such information – is punishable by a fine in the amount of one thousand to two thousand manats, or community work for a period of two hundred and forty hours to four hundred and eighty hours, or corrective work for a period of up to one year. 156.2. The same acts, committed by a public official using his position – is punishable by restriction of liberty for a period of up to two years, with or without deprivation of the right to hold a certain position or engage in certain activities for a period of up to three years.” 66. Article 163 of the Criminal Code provided as follows: “Article 163.", "Hindrance of journalists’ lawful professional activities 163.1. Hindering journalists in their lawful professional activities, that is forcing them to disseminate or refuse to disseminate information by applying violence or by threatening to apply violence – is punishable by a fine in the amount of five hundred to one thousand manats or by corrective works for a period of up to one year. 163.2. The same act committed by a public official using his position – is punishable by corrective works for a period of up to two years or by imprisonment for a period of up to one year, with or without deprivation of the right to hold a certain position or to engage in certain activities for a period of up to three years.” C. Code of Criminal Procedure 67. Article 199 of the Code of Criminal Procedure (“the CCrP”) provided as follows: “Article 199.", "Protection of personal and family secrets 199.1. During criminal proceedings measures shall be taken under this Code and other laws of the Republic of Azerbaijan to protect information constituting personal and family secrets. 199.2. In the course of procedural activities, it shall be prohibited to unnecessarily collect, disseminate or use information relating to the private life of any person and other information of a personal nature which that person considers must be kept secret. At the request of the investigator, prosecutor or court, the participants in investigative and court procedures shall be under an obligation not to disseminate such information, and shall give a written undertaking to this effect.", "199.3. If the prosecuting authority asks any person for details of his private life on the basis of a relevant court decision, he shall have the right to ensure that there is a need to collect this information for the purposes of the ongoing criminal case; otherwise he shall have the right to refuse to divulge it. If the prosecuting authority asks the person for information concerning his own or another person’s private life on the grounds that it is necessary, the authority shall include observations confirming the need for this information in the record of the questioning or of other investigative activity. 199.4. Evidence which discloses personal or family secrets shall be examined by the court in camera.", "199.5. Damage caused to any person as a result of a breach of the inviolability of private life or the dissemination of personal or family secrets shall be compensated under the procedure provided by the legislation of the Republic of Azerbaijan.” 68. Article 449 of the CCrP, as in force at the material time, provided as follows: “Article 449. Complaints to the court concerning procedural acts or decisions of the prosecuting authority ... 449.2. The following persons shall have the right to lodge a complaint concerning procedural acts or decisions of the prosecuting authority: ... 449.2.2. the victim of the criminal offence and his legal representative; ... 449.3.", "The persons referred to in Article 449. 2 of this Code shall have the right to lodge a complaint with the court concerning the procedural acts or decisions of the prosecuting authority in connection with the following matters: 449.3.1. refusal to accept an application concerning a criminal offence; 449.3.2. being in police custody or detention in remand; 449.3.3. violations of the rights of an arrested person; 449.3.4. torture or other cruel treatment of a detained person; 449.3.5. opening of a criminal case and suspension or discontinuation of criminal proceedings; 449.3.6. the compulsory conduct of an investigative procedure, the application of a coercive procedural measure, or the conduct of a search operation without a court order; 449.3.7. the removal of defence counsel for the accused (or suspect) from the criminal proceedings.” D. Council of Europe documents 69. The following are extracts from Recommendation CM/Rec(2016)4 of the Committee of Ministers to member States on the protection of journalism and safety of journalists and other media actors (adopted by the Committee of Ministers on 13 April 2016 at the 1,253rd meeting of the Ministers’ Deputies): “1. It is alarming and unacceptable that journalists and other media actors in Europe are increasingly being threatened, harassed, subjected to surveillance, intimidated, arbitrarily deprived of their liberty, physically attacked, tortured and even killed because of their investigative work, opinions or reporting, particularly when their work focuses on the misuse of power, corruption, human rights violations, criminal activities, terrorism and fundamentalism. These abuses and crimes have been extensively documented in authoritative reports published by the media, non-governmental organisations and human rights defenders.", "2. Journalists and other media actors are often specifically targeted on account of their gender, gender identity, sexual orientation, ethnic identity, membership of a minority group, religion, or other particular characteristics which may expose them to discrimination and dangers in the course of their work. Female journalists and other female media actors face specific gender-related dangers, including sexist, misogynist and degrading abuse; threats; intimidation; harassment and sexual aggression and violence. These violations are increasingly taking place online. There is a need for urgent, resolute and systemic responses.", "3. The abuses and crimes described above, which in practice are committed by both State and non-State actors, have a grave chilling effect on freedom of expression, as safeguarded by Article 10 of the European Convention on Human Rights (ETS No. 5, ‘the Convention’), including on the ability to access information, on the public watchdog role of journalists and other media actors and on open and vigorous public debate, all of which are essential in a democratic society. They are often met with insufficient efforts by relevant State authorities to bring the perpetrators to justice, which leads to a culture of impunity and can fuel further threats and violence, and undermine public trust in the rule of law. ... 6.", "In order to create and secure a favourable environment for freedom of expression as guaranteed by Article 10 of the Convention, States must fulfil a range of positive obligations, as identified in the relevant judgments of the European Court of Human Rights and set out in the principles appended to this recommendation. Such obligations are to be fulfilled by the executive, legislative and judicial branches of governments, as well as all other State authorities, including agencies concerned with maintaining public order and national security, and at all levels – federal, national, regional and local. 7. Under the terms of Article 15.b of the Statute of the Council of Europe (ETS No. 1), the Committee of Ministers recommends that governments of member States: i. implement, as a matter of urgency and through all branches of State authorities, the guidelines set out in the appendix to this recommendation, taking full account of the principles included there; ii.", "review relevant domestic laws and practice and revise them, as necessary, to ensure their conformity with States’ obligations under the European Convention on Human Rights; iii. promote the goals of this recommendation at the national level and engage and co-operate with all interested parties to achieve those goals.” 70. In the Appendix to Recommendation CM/Rec(2016)4, the Committee of Ministers offers detailed guidelines to member States on how to fulfil their relevant obligations on the effective protection of journalism and safety of journalists and other media actors, combining legal, administrative and practical measures, which are organised into four “pillars”: prevention, protection, prosecution (including a specific focus on impunity) and promotion of information, education and awareness-raising. The guidelines are based on an extensive body of principles anchored in the European Convention on Human Rights and in the relevant judgments and decisions of the Court. 71.", "The following are extracts from the Report by the Commissioner for Human Rights of the Council of Europe (CommDH(2013)14, dated 6 August 2013), following his visit to Azerbaijan from 22 to 24 May 2013: “I. Freedom of expression 7. The situation of freedom of expression, including freedom of the media, in Azerbaijan has been a long-standing concern among national and international observers. The latter include Commissioner Muižnieks’ predecessor, Mr Thomas Hammarberg, who also highlighted important shortcomings in these areas in a report on Azerbaijan released in 2010, as well as in observations published in 2011. As detailed below, the Commissioner notes that most of these shortcomings remain unaddressed today and that in certain areas, a clear deterioration can also be observed.", "1. Judicial harassment, intimidation and violence against journalists 8. The Commissioner is seriously concerned at the apparent intensification of the practice, highlighted by his predecessor in 2010 and 2011, of unjustified or selective criminal prosecution of journalists and others who express critical opinions. In recent years, several media workers have been prosecuted and/or sentenced for incitement to national, racial or religious hatred and in some instances terrorism, as well as for hooliganism, tax evasion, drug possession and illegal possession of weapons, with the credibility of the relevant charges being widely challenged. As a result, a number of journalists have to serve long prison terms or carry out corrective labour and/or pay heavy fines.", "According to the prison census conducted by the Committee to Protect Journalists (CPJ) in December 2012, Azerbaijan ranked among the top countries jailing journalists with nine imprisoned journalists. ... 11. In addition to facing charges and imprisonment, journalists documenting and reporting human rights violations are reported to be sometimes subjected to physical attacks. According to the Azerbaijani Institute for Reporters’ Freedom and Safety (IRFS), there have been more than 200 violent attacks against journalists since 2005 and more than 50 domestic and foreign journalists were harassed or attacked in 2011 alone. Moreover, impunity prevails and those responsible are reportedly rarely, if ever, brought to justice.", "The murder of the editor of Monitor magazine, Elmar Huseynov, in 2005, and the fatal stabbing of the journalist and writer Rafiq Tagi in 2011 remain unsolved to date. The Commissioner also notes that no effective and independent investigation into the death in prison of Novruzali Mammadov has been conducted. 12. Another recent incident concerns the photo-journalist Mehman Huseynov, who faces up to five years’ imprisonment on hooliganism charges over an argument he reportedly had with law enforcement officers while covering a demonstration in Baku in May 2012. 13.", "Some Azerbaijani journalists documenting on-going demolitions of properties have been prevented from carrying out their professional activities, and have also been subjected to physical attacks. On 18 April 2012, Idrak Abbasov and other journalists were attacked by approximately 20 policemen and security guards of the State oil company as they attempted to film house demolitions in the outskirts of Baku. Idrak Abbasov, a journalist with the Zerkalo newspaper and the IRFS, was taken to hospital unconscious and suffered from broken ribs, damage to his internal organs and injuries to his eyes. ... 16. In addition to physical attacks, journalists and media workers in Azerbaijan have reported having been subject to various forms of intimidation.", "In March 2012, for instance, unknown persons attempted to blackmail Khadija Ismayilova, a journalist with Radio Free Europe/Radio Liberty (RFE/RL) who had notably investigated the business holdings of the family of President Aliyev. As she refused to be silenced, an intimate video of her, filmed by hidden camera, was posted on the Internet. 17. Across the aforementioned areas, the need for a fully independent and impartial review by the judiciary of cases involving journalists and others expressing critical voices appears urgent. The Commissioner notes that a lack of independence of the justice system in Azerbaijan was highlighted in the last monitoring report of the Parliamentary Assembly of the Council of Europe, which stressed that the executive branch continues to exert influence on the judiciary, thus contributing to the continuation of the problem ... ...", "Conclusions and recommendations 19. The Commissioner notes with concern that harassment of journalists and others expressing critical views has heightened in recent months, with charges being brought against them for increasingly serious crimes. The Commissioner reiterates that releasing all persons who are in detention because of the views they hold and express should be a priority for the Azerbaijani authorities in order to protect freedom of expression. 20. The Commissioner calls on the Azerbaijani authorities to respect in all cases their obligation to initiate prompt, thorough and transparent investigations when violence or threats of violence against journalists occur, and to bring the perpetrators to justice, where punishments should reflect the seriousness of this crime.", "He furthermore recalls that the Azerbaijani authorities must not hamper the work of journalists, especially those covering demonstrations or more generally documenting human rights violations. ...” III. THIRD-PARTY SUBMISSIONS 72. The third party interveners listed in paragraph 4 above made the following joint submissions. 73.", "The interveners’ submissions consist of two parts: firstly, they provide an overview of the general situation of independent journalists and media actors in Azerbaijan; secondly, they submit that Articles 8 and 10 of the Convention impose positive obligations on the respondent State to protect journalists by taking measures to prevent and to investigate conduct designed to restrict journalistic activity such as that in the present case. 74. The third-party interveners noted that Azerbaijan had one of the most restrictive environments for freedom of expression in the world and that State repression of journalists, media outlets, bloggers and human rights defenders was widespread and severe. In recent years, the authorities had engaged, and continued to engage, in systematic repression of freedom of expression in the country, including through intimidation, targeting and persecution of journalists and voices critical of the government. Independent journalists and activists faced arrest, conviction and extended jail periods on spurious, politically motivated charges.", "They also countenanced violence and reprisals from State and non-State actors alike, which were treated with impunity. 75. At the time of the submission of the third-party comments, eleven journalists, bloggers and other activists critical of the government were imprisoned. Moreover, journalists had been subjected to violent attacks, in respect of which the third-party interveners mentioned the following examples, which were illustrative but not exhaustive: (a) Uzeyir Jafarov, a newspaper journalist, was violently attacked in 2007 by unknown assailants after publishing an article accusing a senior military officer of corruption and illegal activities (see, in this connection, Uzeyir Jafarov v. Azerbaijan, no. 54204/08, 29 January 2015); (b) Agil Khalil, an investigative journalist, was attacked by agents of the Ministry of National Security for trying to take photographs as part of an investigative story.", "No effective investigation into the attack was carried out. In the related proceedings before the Court, the Government acknowledged, by way of a unilateral declaration, breaches of the rights that were the subject of the applicant’s complaints (see, in this connection, Khalil v. Azerbaijan (dec.), nos. 60659/08, 38175/09 and 53585/09, 6 October 2010); (c) Afghan Mukhtarly was allegedly attacked by uniformed police officers in January 2009 while covering a rally in Baku, despite identifying himself as a member of the press. An official investigation was subsequently abandoned for lack of evidence; (d) Elmin Badalov, a newspaper reporter, was beaten by seven unidentified men in July 2010 while taking photographs as part of an investigation into luxury property owned by the Minister of Transport. No investigation was carried out; (e) Idrak Abbasov, a correspondent of IRFS, was allegedly severely beaten by approximately twenty police and security guards of the State Oil Company of Azerbaijan (SOCAR) in April 2012 when he attempted to film the demolition of local houses by SOCAR.", "No effective investigation was carried out; (f) In October 2013 a group of journalists covering a campaign event were attacked and seriously injured by onlookers. It was alleged that police officers were present at the event but did not intervene. No investigation was carried out, despite a call to the authorities by the OSCE Representative on Freedom of the Media; (g) Emin Huseynov, director of IRFS, was ill-treated in detention (see Emin Huseynov v. Azerbaijan, no. 59135/09, 7 May 2015), forced to flee the country and stripped of his citizenship. 76.", "Furthermore, independent media organisations had likewise come under attack. As examples, the third-party interveners mentioned cases of harassment of reporters and raids on the offices of IRFS, Azadliq Radio and Meydan TV. 77. According to the third party interveners, the State’s failure to investigate or punish attacks on critical voices had created and entrenched a climate of impunity. Where punishment or sanction had ensued, it had largely targeted the attacked rather than their attacker.", "78. The third-party interveners also noted that various international and regional human rights organisations, including the Council of Europe, the OSCE and the UN, had repeatedly called upon the Azerbaijani authorities to improve respect for the right to freedom of expression, both through the release of imprisoned journalists and the end of reprisals against voices critical of the government. 79. In respect of the States’ specific obligations under the Convention, referring to Palomo Sánchez and Others v. Spain ([GC], nos. 28955/06 and 3 others, § 59, ECHR 2011); Özgür Gündem v. Turkey (no.", "23144/93, § 43, ECHR 2000‑III); Dink v. Turkey (nos. 2668/07 and 4 others, § 137, 14 September 2010); and a number of other judgments of the Court, the third-party interveners argued that there was a positive obligation under Article 10 on member States to take necessary measures to prevent and investigate conduct designed to restrict journalistic activity. Moreover, referring to Von Hannover v. Germany (no. 59320/00, ECHR 2004‑VI), Von Hannover v. Germany (no. 2) ([GC], nos.", "40660/08 and 60641/08, ECHR 2012); Sciacca v. Italy (no. 50774/99, ECHR 2005‑I); X and Y v. the Netherlands (26 March 1985, Series A no. 91), and a number of other judgments and decisions of the Court, they noted that there was a positive obligation under Article 8 to take measures within States’ margin of appreciation, including in certain cases an effective investigation into crimes, to secure protection of the right to private life even in the sphere of relations between individuals themselves. Lastly, as to protection of personal data, a State’s negative obligation under Article 8 of the Convention was engaged in the context of the police and prosecution authorities’ specific obligations relating to the protection of personal information that they obtained in the course of their investigation. 80.", "The third-party interveners argued that the combined effect of the above-mentioned case-law was that, where the privacy of journalists was interfered with as a result of their journalistic work, a member State’s obligations under both Articles 8 and 10 were engaged. 81. They therefore requested the Court to consider the present case in the context of the gravity of the situation of journalists in the country and the systemic failure by the State to investigate or prevent the infringements of their rights, resulting in a general culture of impunity for attacks on journalists. They argued that in the context of interference with journalists’ private lives, positive obligations under Article 10 must necessarily extend to actual or threatened breaches of Article 8 rights, and the positive obligations under Article 8 must be subjected to particularly close review by the Court where Article 10 rights were engaged. The ability of journalists to perform their role as “public watchdogs” depended on their freedom from intimidation, harassment, unlawful surveillance and deliberate intrusions into their private affairs.", "Failure to ensure respect for journalists’ private lives had a chilling effect upon their journalism, working to the detriment of society as a whole. THE LAW I. JOINDER OF THE APPLICATIONS 82. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION IN CONNECTION WITH THE THREATENING LETTER AND THE SECRET FILMING AND DISSEMINATION OF INTIMATE VIDEOS 83.", "In connection with the threatening letter, the secret installation of hidden cameras in her flat and the dissemination of secretly filmed videos depicting her private life, the applicant complained under Articles 8 and 13 of the Convention that: (a) the respondent State had breached its negative obligation by being directly responsible for the above-mentioned acts and by arranging a smear campaign against her in the press; or (b) alternatively, the respondent State had failed to meet its positive obligation to protect her right to respect for her home and private life, which included her physical and moral integrity, by failing to conduct an effective investigation in order to identify those responsible, and by not affording her a remedy against the investigating authorities’ inactivity. The Court considers that the complaint falls to be examined solely under Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 84.", "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 85. The applicant argued that the respondent State had breached its negative obligation under Article 8, because there had been an unjustified interference with her right to respect for her home and private life by a number of entities which qualified as “public authorities” owing to their institutional and operational dependence from the State. In the alternative, she argued that, in any event, the respondent State had failed to comply with its positive obligation to protect her right to respect for her home and private life. 86. In respect of the negative obligation, the applicant claimed that State agents had installed the hidden cameras in her bedroom, recorded the intimate videos and posted them online.", "In particular, she noted that the second phone line and additional wires, through which hidden videos were transmitted out of her flat, had been connected to her flat by an employee of ATS belonging to Baktelekom, a telephone services company fully owned and controlled by the State, forming part of the official structure of the Ministry of Communications and Information Technologies. Additionally, the Ministry of National Security also had full access to the ATS. It was clear that a company which was owned and controlled by the Government was responsible for the installation of the second telephone line to the applicant’s flat. 87. Moreover, the applicant argued that the Government had had a clear motive to instigate a smear campaign against her.", "The installation of the hidden cameras and wires had occurred just a few days after the applicant had published a report on the activities of the President’s daughters (see paragraphs 7 and 28 above). The timing of the threatening letter and the release of the first intimate video was also linked to the applicant’s reporting on the presidential family. Specifically, the threatening letter had been sent, and the video released, approximately one month after the applicant had started working on an article concerning the gold-mining consortium (see paragraphs 7, 10 and 15 above). 88. The applicant also noted that, following her publications on alleged corruption, the National Assembly had adopted legislative amendments allowing commercial enterprises to withhold information about their registration, ownership and structure, limiting the ability of investigative journalists “to identify private assets of public figures”.", "It had also passed a law granting all former presidents and first ladies lifelong legal immunity. 89. Furthermore, the Yeni Azərbaycan, İki Sahil and Səs newspapers had then run stories about the intimate videos, as part of a systematic smear campaign conducted by the authorities against the applicant in 2011 to 2013. The articles were offensive in nature, publicly discussing her sex life and insulting her morality, which was damaging to her personal and professional relationships in conservative Azerbaijani society. The applicant argued that all three newspapers were State-controlled, because they operated as media organs of the ruling party, YAP, and expressed clear allegiance to YAP and the ruling Government.", "In particular, Yeni Azərbaycan was owned by YAP, and a member of YAP’s political council was the chief editor of the newspaper. İki Sahil was owned by SOCAR, the State-owned oil company, and a member of YAP’s political council was the chief editor of the newspaper. Səs was owned by Alinja Charitable Society, which was one of the founders of YAP, and a senior YAP official was the newspaper’s chief editor. 90. According to the applicant, the second video, released in July 2013, was displayed in a browser frame containing the words “SesTV Player”, indicating that it was produced in the studio of Səs.", "91. The applicant argued that the above evidence indicated that the interference in question was attributable to the State, because public authorities included not only government institutions, but also separate legal entities that did not enjoy sufficient institutional and operational independence from the State. Moreover, the interference was unjustified within the meaning of Article 8 § 2. According to the applicant, such a pattern of harassment was nothing new and the tactic of filming and disseminating videos and photographs of sexual activity through the media to embarrass and intimidate journalists critical of the President had been used before, such as in the case of a fellow journalist, N. Adilov, who had also worked at Azadliq Radio. 92.", "The applicant further submitted that, in the alternative, should the Court find that there was no interference directly attributable to the State, the respondent State had in any event breached its positive obligation under Article 8 by failing to take adequate measures to secure respect for her private life. 93. In this case, the State should have acted to prevent or put an end to the breach of the applicant’s rights by applying the existing criminal law through effective investigation and prosecution. However, the investigation had been ineffective. 94.", "Firstly, the Baku City Prosecutor’s Office had not opened the criminal investigation in a timely manner. Following the applicant’s complaint concerning the threatening letter, it had taken a week to open the investigation, during which time the intimate video had been leaked on the internet and some articles about it had appeared in the newspapers. 95. Secondly, on several occasions the investigation authorities had failed to collect and secure evidence relevant to the complaint. In particular, the investigators had failed to collect threatening letters and accompanying images from the other recipients (see paragraph 11 above) in a timely manner and, as a consequence, the letter received by Azadlıq had disappeared.", "Moreover, despite the fact that the envelope bore the stamp of a Moscow post office, the investigators had not pursued this lead. They had also refused to inspect the second phone line and evidence of hidden cameras in her flat, claiming that they lacked the technical expertise to do so, while also refusing to arrange for an expert. 96. Furthermore, when, during a meeting organised by the applicant in her flat on 19 March 2012, the Baktelekom engineer had admitted to installing the second phone line to the applicant’s flat at his employer’s request (see paragraph 28 above), the investigator had not only refused to include the witness testimony in the case file, but had actively sought to destroy it. He had torn up his handwritten investigation record, on which he had recorded the engineer’s statement, and had made a new document that did not contain the engineer’s account.", "He had also asked the engineer to remove the second phone line, without documenting its removal. Together with her observations to the Court she had enclosed witness statements by her three friends who had been present at the meeting in her flat on 19 March 2012, all of whom had confirmed that the investigator had not mentioned the engineer’s presence at the meeting, nor had it been mentioned in the investigation record. When the applicant had asked for the engineer to be formally questioned, the investigation authorities had not responded. 97. Thirdly, the Baku City Prosecutor’s Office had repeatedly failed to inform the applicant about the status of the investigation.", "98. Moreover, the investigation authorities’ failure to promptly investigate leads and collect evidence had dragged the investigation out for several years, unjustifiably protracting the criminal proceedings. 99. Lastly, the applicant argued that she had been denied an effective remedy at domestic level with respect to her complaints regarding the inaction on the part of the investigating authorities and the ineffectiveness of the investigation, as the domestic courts refused to examine on the merits her complaints lodged both under the procedure of judicial supervision provided by the CCrP and the administrative procedure provided by the CAP. (b) The Government 100.", "The Government submitted that there was no interference by the State with the applicant’s rights under Article 8 § 1 of the Convention in respect of the threats against her, installation of hidden cameras and wires in her flat, publication of secretly filmed videos, related press articles, and other related incidents. The investigation of the above-mentioned incidents has not identified the person or persons responsible for those incidents. Nevertheless, it has not revealed any link between the incidents and the State or its agents either. 101. The Government submitted that no smear campaign was organised against the applicant in retaliation for her articles about the President, noting that there were large time gaps between the applicant’s articles and the posting of the video.", "They noted that the applicant’s articles were published in August 2010, June 2011, May 2012, October 2012 and April 2013, while the threatening letter was received and the video posted in March 2012, that is a year and seven months after the first article, nine months after the second article, and a month and a half before the applicant’s next articles appeared. 102. As to the adoption of the Constitutional Law on guarantees for ex-President and his or her family members and the amendment to the Law on commercial confidentiality, the Government noted that, contrary to the applicant’s argument (see paragraph 88 above), there was no connection between the passing of those legislative acts and the applicant’s case. The first vote by the National Assembly on the draft Constitutional Law had taken place in November 2011, almost six months before the applicant’s articles had been published in May 2012. Following its passing on 12 June 2012, this Constitutional Law had granted immunity to ex-President Mutalibov, allowing him to return to Azerbaijan after many years in exile.", "As regards the amendment to the Law on commercial confidentiality, passed on 12 June 2012, it was aimed at promoting and protecting entrepreneurial activity and work on that amendment had started before the publication of the applicant’s articles in May 2012. 103. As to the articles about the applicant published in a number of newspapers, the Government submitted that the applicant was a public figure and that it was not surprising that a number of domestic media should on various occasions comment on matters related to her. The articles had been triggered by the intimate video of the applicant posted on the internet. The Government disputed the applicant’s assertion that the media sources in question were “State-controlled” or “pro-Government”.", "They further noted that the website “ictimaipalatka.com” was no longer operational and it was not possible to identify the person or persons who had run it. 104. As concerns the positive obligation of the State under Article 8, the Government noted that, following the applicant’s complaint, the relevant authority had taken the necessary investigative steps, including an examination of her flat, collection of evidence from the flat, questioning of witnesses, forensic, computer and phonoscopic examinations, physical and chemical examinations, technical and graphological examination of documents and requests for mutual legal assistance to various authorities. The applicant had been properly informed about the course of the investigation. As to the applicant’s complaint against the investigation authorities concerning the ineffectiveness of the investigation, the domestic courts had no competence to examine the applicant’s complaint within the judicial supervision procedure.", "2. The Court’s assessment (a) Applicability of Article 8 105. The Court notes that the applicant, a well-known investigative journalist, received a threatening letter demanding that she cease her activities, had hidden cameras installed in her flat by unknown persons without her knowledge and consent, and had intimate videos of her taken secretly and disseminated on the internet, which fact was subsequently further publicised by the media. 106. There is thus no dispute as to the applicability of Article 8: the facts underlying the application, which included covert filming of the applicant in her own home and highly intimate aspects of her life, clearly concern a matter of “private life”.", "The latter concept covers the physical and moral integrity of the person, as well as his or her sexual life (compare K.U. v. Finland, no. 2872/02, § 41, ECHR 2008; see also Peck v. the United Kingdom, no. 44647/98, § 57, ECHR 2003‑I; E.B. v. France [GC], no.", "43546/02, § 43, 22 January 2008; A, B and C v. Ireland [GC], no. 25579/05, § 212, ECHR 2010; and Söderman v. Sweden [GC], no. 5786/08, § 86, ECHR 2013). 107. The applicant also complained in terms of a breach of her right to respect for her home and the Court recognises the extraordinary intensity of an intrusion into a person’s home of the type complained of.", "It considers, however, that the totality of the facts giving rise to the present complaint can be examined principally in the light of the requirements of protection of “private life”. (b) Positive or negative obligation 108. In her application form, the applicant complained expressly of a breach by the respondent State of its positive obligation under Article 8 to secure respect for her private life, by failing to conduct an effective investigation, although she also noted that the secret installation of wires and video cameras might have been carried out by “someone related to or at the orders of the authorities”, implying that the acts in question might have been committed by State agents in breach of the State’s negative obligation under Article 8. 109. In her further submissions, the applicant elaborated on her complaint, arguing that there had been a breach of either the negative obligation or, alternatively, and in any event, the positive obligation.", "110. In respect of the negative obligation, she argued that there had been an unjustified interference with her Article 8 rights by persons or entities that could be considered “State agents”, undermining respect for her private life and connected to her journalistic investigative work concerning alleged corruption by the President’s family. 111. However, having regard to the applicant’s arguments in support of the alleged breach of the negative obligation (see, in particular, paragraphs 86-91 above), the Court considers that they are based either on circumstantial evidence or on assertions requiring corroboration and further investigation. While the Court must remain sensitive to the potential evidentiary difficulties encountered by a party, it has not been possible, on the basis of the material available, to establish in the present case to the requisite standard of proof, “beyond reasonable doubt” (see Nuri Kurt v. Turkey, no.", "37038/97, § 101, 29 November 2005), that there was unjustified interference attributable to the State. 112. The Court reiterates that, although the object of Article 8 is essentially to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private and family life even in the sphere of the relations of individuals between themselves (see Söderman, cited above, § 78). Moreover, the boundaries between the State’s positive and negative obligations under Article 8 do not always lend themselves to precise definition.", "The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance which has to be struck between the competing interests (see Dickson v. the United Kingdom [GC], no. 44362/04, § 70, ECHR 2007‑V; Odièvre v. France [GC], no. 42326/98, § 40, ECHR 2003‑III; and Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, § 164-65, 15 November 2016).", "113. In the present case the identity of those who committed the various acts of which the applicant complains is unknown and the question whether they were linked to State agents abusing their official power remains an open one. Nevertheless, given the applicant’s credible allegations, the contextual information provided by the third party interveners and the careful planning and execution of the covert surveillance operation (see paragraph 121 below), the Court would emphasise that it has concerns as regards the answer to that question. 114. In the light of the above considerations, and having had regard to the parties’ arguments, the factual circumstances and the available material, the Court considers that the present complaint must be examined from the standpoint of the State’s positive obligations under Article 8 of the Convention.", "(c) Compliance with the positive obligation 115. The choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation. There are different ways of ensuring respect for private life, and the nature of the State’s obligation will depend on the particular aspect of private life that is in issue. Where a particularly important facet of an individual’s existence or identity is at stake, or where the activities at stake involve a most intimate aspect of private life, the margin allowed to the State is correspondingly narrowed (see Söderman, cited above, § 79, with further references). In particular, effective deterrence against grave acts, where fundamental values and essential aspects of private life are at stake, requires the States to ensure that efficient criminal-law provisions are in place (see X and Y v. the Netherlands, cited above, §§ 23‑24 and 27; M.C.", "v. Bulgaria, no. 39272/98, § 150, ECHR 2003‑XII; K.U. v. Finland, cited above, § 43; A, B and C v. Latvia, no. 30808/11, § 148, 31 March 2016; and M.S. v. Ukraine, no.", "2091/13, § 62, 11 July 2017). Concerning such serious acts, the State’s positive obligation under Article 8 to safeguard the individual’s physical or moral integrity may also extend to questions relating to the effectiveness of the criminal investigation (see, among other authorities, M.C. v. Bulgaria, cited above, § 152; C.A.S. and C.S. v. Romania, no.", "26692/05, § 72, 20 March 2012; and M.P. and Others v. Bulgaria, no. 22457/08, § 109-10, 15 November 2011). 116. The Court considers that the acts complained of were grave and an affront to human dignity: an intrusion into the applicant’s home in the form of unauthorised entry into her flat and installation of wires and hidden video cameras inside the flat; a serious, flagrant and extraordinarily intense invasion of her private life in the form of unauthorised filming of the most intimate aspects of her private life, which had taken place in the sanctity of her home, and subsequent public dissemination of those video images; and receipt of a letter threatening her with public humiliation.", "Furthermore, the applicant is a well-known journalist and there was a plausible link between her professional activity and the aforementioned intrusions, whose purpose was to silence her (see further paragraph 119 below). 117. This kind of invasion of private life was punishable under Article 156 of the Criminal Code, and the domestic authorities did, in fact, institute criminal proceedings in the present case. Having regard to the gravity of the above-mentioned acts (compare, for example, K.U. v. Finland, cited above , §§ 45 and 49), and the method of protection actually chosen by the domestic authorities (see Alković v. Montenegro, no.", "66895/10, § 67, 5 December 2017), the Court considers that practical and effective protection of the applicant required that effective steps be taken in the framework of the criminal investigation with a view to identifying and prosecuting the perpetrator or perpetrators of those acts. 118. For an investigation to be regarded as “effective”, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means (see Alković, cited above, § 65). In examining the effectiveness of criminal investigations in the context of the positive obligations under, inter alia, Article 8 of the Convention in cases analogous to the present case, the Court has previously used the “significant flaw” test.", "The Court’s task under that test is to determine whether the alleged shortcomings in the investigation had such significant flaws as to amount to a breach of the respondent State’s positive obligations under Article 8 of the Convention. The Court is not concerned with allegations of minor errors or isolated omissions in the investigation; it cannot replace the domestic authorities in the assessment of the facts of the case; nor can it decide on possible alleged perpetrators or their criminal responsibility (see M.C. v. Bulgaria, cited above, §§ 167-68, and M. and C. v. Romania, no. 29032/04, §§ 112-13, 27 September 2011). 119.", "The Court has had to deal with a number of cases concerning respondent States’ obligations to investigate criminal offences against journalists (see, for examples, Adalı v. Turkey, no. 38187/97, § 231, 31 March 2005; Gongadze v. Ukraine, no. 34056/02, §§ 8-15 and 179, ECHR 2005‑XI; Uzeyir Jafarov v. Azerbaijan, no. 54204/08, § 52, 29 January 2015; Huseynova v. Azerbaijan, no. 10653/10, § 115, 13 April 2017; and Mazepa and Others v. Russia, no.", "15086/07, § 73, 17 July 2018). Even though in the present case the criminal offence committed against the applicant was of a different nature, and the relevant complaints concern different Convention provisions giving rise to procedural obligations which are not entirely identical, the similarity with those cases is that the offence was committed against a well-known investigative journalist highly critical of the government. This distinctive feature is highlighted by the fact that the threatening letter received by the applicant demanded that she refrain from what she was doing, which can be understood in the overall context of the case as referring most likely to her professional activity. In a situation where the applicant was well known in society specifically for her journalistic activity and for that activity only, it is difficult to discern any motive for threats of public humiliation received by her other than a motive connected to that activity. The absence of such a motive could be demonstrated only if it was conclusively and convincingly ruled out as a result of an effective investigation.", "120. Accordingly, the above-mentioned aspect of the case made it of the utmost importance to investigate whether the threat was connected to the applicant’s professional activity and by whom it had been made (see, mutatis mutandis, Huseynova, cited above, § 115, and Mazepa and Others, cited above, §§ 73 and 75). 121. The Court notes that the acts committed against the applicant appeared at first sight to have been the result of a carefully planned and executed operation involving a coordinated effort by a number of individuals. A threatening letter with still pictures from the subsequently published video was allegedly sent to her from Moscow; wires and hidden video cameras had been installed in her flat in advance by more than one person (apparently, the wires were traced to her flat from outside by a Baktelekom engineer, while the wires and cameras inside the flat were installed by other, unknown individuals); a website with what appears to be a deliberately misleading name was created for the purpose of posting the video on the internet; and a number of newspaper articles were published about the subject at around the same time as the video was posted on that website.", "122. Furthermore, although the applicant’s allegations that State agents might have been behind the criminal offence committed against her are not supported by evidence meeting the standard of proof required for finding a breach of the negative obligation under Article 8 of the Convention (see paragraph 111 above), her arguments in this respect were nevertheless strong and could not be discarded as being prima facie untenable. Therefore, those arguments required the investigation to seek out corroborative evidence. 123. From the outset, based on the above facts and available evidence, the investigation authorities already had several different and obvious leads.", "However, for the reasons set out below, the Court considers that it has not been shown that the investigating authorities have taken sufficient steps in that regard. 124. The Court notes that the Government submitted only a few documents from the investigation file and that it therefore possesses little information regarding the impugned investigation. The only materials they submitted were copies of several decisions by the investigator ordering various procedural steps (see paragraphs 30-32 above), which included granting the applicant’s request to question the Baktelekom engineer and obtaining a number of expert examinations. In the status report published on 26 April 2012, the investigating authorities noted, in addition, that they had questioned a number of other witnesses who were mostly the applicant’s friends, social or professional contacts and family members (see paragraphs 49-53 above).", "Similar general statements about procedural steps taken were made in the investigating authorities’ letters addressed to the applicant (see paragraphs 37-38 above). However, the Government did not submit any documents showing that all of those investigative steps had been carried out, such as records of questioning, expert reports, and records of examination of physical evidence. The Government did not put forward any explanation as to their failure to provide full copies of the investigation file. In such circumstances, the Court’s capacity to assess the nature and extent of the investigation is greatly diminished. 125.", "As to the questioning of an important witness identified by the applicant herself, Mr N.J., an employee of Baktelekom, it has not been shown convincingly by the Government that the investigation obtained his statement in an adequate manner or that they pursued any leads arising from that statement. From the material available and from the applicant’s submissions, which have not been expressly disputed by the Government, it appears that, on their first encounter on 19 March 2012, the investigator failed to properly record and possibly even actively avoided recording Mr N.J.’s statements, which were highly relevant to the case. The Government submitted the investigator’s subsequent order of 30 March 2012 granting the applicant’s request to formally question Mr N.J. However, no further documents, such as a formal record of questioning, were submitted by the Government. As the case file stands, it has not been shown that Mr N.J. had been properly questioned.", "The information that he could provide in his statement was very likely to shed further light on the identity of the person who might have ordered him to trace wires to the applicant’s flat and that person’s link to the “intellectual author” of the crime. It might also have assisted in establishing whether Mr N.J. had been acting on official orders from his State-owned employer, or whether it was some form of “unofficial” request by his superiors. This could have clarified a number of questions as to the possible involvement of State agents in the operation carried out in the applicant’s flat. 126. Another lead to be investigated was the identity of the person who sent the threatening letter to the applicant from Moscow.", "The envelope addressed to the applicant bore his name and address. There is no material in the case file showing that steps were taken to investigate this lead and to identify that individual; for example, a formal request could have been made to the Russian authorities for legal assistance in this matter (compare Huseynova, cited above, §§ 100-11). 127. Furthermore, given that both the first and the second videos were posted online on two different websites (musavat.tv and ictimaipalatka.com), a further immediate investigative step would have been to identify the owners and/or operators of those websites and to determine the source of the videos and the identity of their uploaders. There is no information in the case file showing that anything had been done in this respect by the investigative authorities.", "128. While the Government argued that no obvious connection could be made between the impugned acts and the time of publication of the applicant’s articles, as well as new domestic legislation (see paragraphs 101-02 above), it has not been shown that the investigating authorities took steps to determine whether a link could be established between the impugned acts and any of the applicant’s publications (either those she specifically highlighted or others). In the context of a series of criminal acts possibly linked to the applicant’s journalistic activity, such a line of inquiry seems necessary. 129. The Court also takes note of the applicant’s submission that the frame of the second video, posted on “ictimaipalatka.com”, was marked with the words “SesTV Player”; this matter could have been investigated to see, inter alia, whether there was any connection to the Səs newspaper.", "130. Lastly, the Court notes that the investigation was handled with significant delays, and it has not been shown that any progress was made after August 2013, despite the applicant’s attempted complaints in this regard. Those complaints were not admitted by the courts. 131. Having regard to the significant flaws in the manner in which the authorities investigated the case, as well as the overall length of the proceedings, the Court finds that the authorities failed to comply with their positive obligation to ensure the adequate protection of the applicant’s private life by carrying out an effective criminal investigation into the very serious interferences with her private life.", "Having reached this finding, the Court does not consider it necessary to examine the applicant’s other arguments raised in this respect. 132. There has accordingly been a violation of Article 8 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION IN CONNECTION WITH THE PUBLICATION OF THE AUTHORITIES’ REPORT ON THE STATUS OF THE INVESTIGATION 133.", "The applicant complained under Article 8 of the Convention that the public disclosure of the personal information in the Status Report published by the authorities on 26 April 2012 constituted an unlawful and unjustified interference with her right to respect for her private and family life. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 134.", "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 135. The applicant submitted that, although the status report purported to give an update on the status of the investigation, it disclosed an excessive amount of sensitive personal information collected during the course of the investigation. That information included the address of her flat, the identity of her then boyfriend who also featured in the intimate videos, and the names and occupations of her friends and colleagues. The nature and sheer extent of the information disclosed provided a complete picture of her private life. 136.", "The applicant submitted that the disclosure of her home address had added to her feeling of being in personal danger. The disclosure of the identity and occupations of her business relations and friends had interfered with her free communications with them, amounting to a further hindrance of her journalistic work. Furthermore, revealing that she had had an intimate relationship outside marriage had caused harm to her reputation and dignity in the largely conservative Azerbaijani society. 137. The applicant argued that the disclosure of the above-mentioned information constituted interference by the State authorities, the Prosecutor General’s Office and the Baku City Prosecutor’s Office, with her right to private and family life.", "She argued that the interference had not been in accordance with the law: the domestic legislation actually prohibited disclosing information relating to a person’s private life (see paragraphs 64 and 67 above). Furthermore, in any event, the interference had not pursued any of the legitimate aims listed in paragraph 2 of Article 8 of the Convention, and had not been necessary. 138. The Government submitted that the status report of 26 April 2012 had been published in response to the applicant’s and her lawyer’s public statements and complaints that the investigation was ineffective. It had been intended to inform the public about the progress of the investigation, and also to counter the possibility of the public forming a negative opinion about the investigating authorities as a result of the applicant’s public complaints.", "The domestic courts, which had examined the applicant’s complaints related to the status report, had come to the same conclusion. They had also concluded that the information in the status report had not breached the requirements of the domestic law concerning individuals’ privacy, and that the applicant had failed to prove that she had suffered any non-pecuniary damage. 2. The Court’s assessment 139. The Court notes that the concept of “private life” is a broad term not susceptible to exhaustive definition.", "As indicated in paragraph 106 above, it is a concept which covers the physical and psychological integrity of a person, and can therefore embrace multiple aspects of the person’s physical and social identity. Article 8 is not limited to the protection of an “inner circle” in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. It also protects the right to establish and develop relationships with other human beings and the outside world (see Bărbulescu v. Romania [GC], no. 61496/08, § 70, 5 September 2017, with further references). Private life may even include activities of a professional or business nature (see Denisov v. Ukraine [GC], no.", "76639/11, §§ 100-01, 25 September 2018). The Court has also held that everyone has the right to live privately, away from unwanted attention (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 95, ECHR 2003‑IX (extracts), and Bărbulescu, cited above, § 70). 140. Furthermore, the Court notes that the home address of a person constitutes personal information that is a matter of private life and, as such, enjoys the protection afforded in that respect by Article 8 of the Convention (see Alkaya v. Turkey, no.", "42811/06, § 30, 9 October 2012). 141. The storing and the release of information relating to an individual’s private life come within the scope of Article 8 § 1. Public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities (see Rotaru v. Romania [GC], no. 28341/95, § 43, ECHR 2000‑V, and Association “21 December 1989” and Others v. Romania, nos.", "33810/07 and 18817/08, § 168, 24 May 2011). 142. In the present case, the status report published in the press by the prosecution authorities disclosed the applicant’s home address, the fact of her relationship with her then boyfriend and his full name and occupation, the full names of her landlord and her family members, and the full names and occupations of her friends and colleagues. It also disclosed information about individuals to whom the applicant had sublet the flat during various periods, and the details of the financial arrangements between them. The Court considers that all of the above information, taken as a whole, related to the applicant’s “private life”.", "The Government did not expressly dispute this. While in the applicant’s view the above information also related to her “family life”, the Court considers that, in the context of the present case, the entirety of the information disclosed should be examined in the light of the requirements of protection of “private life” only. 143. The Court notes that the above information was obtained in the course of the criminal investigation. The applicant did not complain about the collection of the information, and the Court sees no issue arising under Article 8 in connection with such routine investigative steps as, for example, identifying the people who had visited the applicant’s flat or questioning them as witnesses.", "144. However, the public disclosure of the above-mentioned information in a press release by the Prosecutor General’s Office and the Baku City Prosecutor’s Office clearly constituted an interference with the applicant’s right to respect for her private life. 145. In order to be justified under Article 8 § 2 of the Convention, any interference must be in accordance with the law, pursue one of the listed legitimate aims, and be necessary in a democratic society. 146.", "As to lawfulness, the applicant argued that the interference was in breach of Article 32 of the Constitution and the domestic legislation, in particular Article 199 of the CCrP, which prohibited disclosure by the investigating authorities of information constituting private secrets. The Government did not comment in detail on the issue of lawfulness, noting merely that the domestic courts had concluded that the publication of the status report had not breached the requirements of the domestic law concerning individuals’ privacy. In the circumstances of the present case, the Court does not consider it necessary to determine whether the interference was “in accordance with the law”, because in any event it lacked justification on other grounds. 147. In particular, the Government have not been able to demonstrate either a legitimate aim or the necessity for the interference in question.", "They argued that the purpose of the status report was “to inform the public about the progress of the investigation, and also to counter the possibility of the public forming a negative opinion about the investigating authorities as a result of the applicant’s public complaints”. However, in the present case, the applicant complained not about the fact that the investigating authorities had informed the public about the progress of the investigation (which, in itself, is not a matter of interference with Article 8 rights), but about the excessive and superfluous disclosure of sensitive private details in the status report. The Court considers that it would have been possible to inform the public about the nature of the investigative steps taken by the authorities (questioning of witnesses, examination of material evidence, and so on), while also at the same time respecting the applicant’s privacy. The Government did not explain what legitimate aim was pursued by the publication of the address and the identity of the partner of someone who had been secretly and unlawfully filmed in the privacy of their own home when engaged in intimate acts and who had subsequently been threatened and subjected to the public dissemination of those videos. 148.", "The protection of the applicant’s privacy was paramount in the overall context of the case, given that the criminal investigation itself, which the authorities purportedly aimed to inform the public about, had been launched in connection with the unjustified and flagrant invasion of her private life. The situation itself called for the authorities to exercise care in order not to compound further the already existing breach of the applicant’s privacy. 149. Having regard to the above considerations, the Court finds that the interference was not justified. 150.", "There has accordingly been a violation of Article 8 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 151. In connection with the incidents involving the threatening letter, the unauthorised installation of wires and hidden cameras in her flat, the dissemination of the covertly filmed videos and related newspaper articles in pro-government newspapers, the ineffectiveness of the investigation and lack of remedies against the inaction of prosecuting authorities, as well as the publication of the status report by the investigating authorities, the applicant further complained that the respondent State had breached its obligations under Articles 10 and 13 of the Convention. The Court considers that the complaint falls to be examined solely under Article 10 of the Convention, which reads as follows: “1.", "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. Admissibility 152.", "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 153. The applicant submitted that the harassment she had suffered was just one case in a pattern of politically-motivated smear campaigns conducted against journalists in Azerbaijan. The country was ranked by many international NGOs and observer organisations as having one of the worst freedom-of-speech records in the world. Journalists working in the country were often violently attacked, or prosecuted on baseless criminal charges. Another tactic used against journalists and activists was publication of intimate videos or photographs in order to harass them.", "She gave several examples of journalists who had been the victims of covert filming of intimate videos or of violence. 154. In connection with the facts relating to the incidents complained of in the present case (except the publication of the status report), the applicant argued that the respondent State had breached either its negative obligation not to interfere with her freedom of expression or, in the alternative, its positive obligation to take steps to prevent or redress the systematic smear campaign against her. Her submissions in this regard were similar to those in relation to her Article 8 complaint. 155.", "With respect to the publication of the status report, she argued that there had been a breach of the negative obligation. The fact that the investigating authorities had published information of a personal nature that went far beyond what would be required for its stated purpose demonstrated that their goal was something other than what they had stated it to be. In the applicant’s opinion, the disclosure of this information was intended both as retribution for her complaints about the investigating authorities and as a warning against further criticism. It therefore constituted an interference with her freedom of expression, which was not justified under Article 10 § 2 of the Convention. 156.", "The Government submitted that the wording of the threatening letter received by the applicant did not clearly indicate that she was being threatened specifically because of her journalistic activity. Nevertheless, the prosecuting authorities had taken the necessary steps to investigate the threats against the applicant. However, they had been unable to identify the person or persons responsible. 157. As to the status report of 26 April 2012, the Government reiterated that it had had the purpose of informing the public about the progress of the investigation and countering the possibility of the public forming a negative opinion about the investigating authorities as a result of the applicant’s public complaints.", "The report had not been published to punish the applicant for her criticism of the prosecuting authorities; neither had it been “a part of the active effort by the authorities to create an environment where the applicant could not freely work as an investigative journalist”. 2. The Court’s assessment 158. The Court has frequently stressed the fundamental role of freedom of expression in a democratic society, in particular where, through the press, it serves to impart information and ideas of general interest which the public is, moreover, entitled to receive (see, for example, Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, §§ 124‑26, 27 June 2017, and Magyar Helsinki Bizottság v. Hungary [GC], no.", "18030/11, § 165, 8 November 2016). The Court also reiterates that the key importance of freedom of expression as one of the preconditions for a functioning democracy is such that the genuine, effective exercise of this freedom is not dependent merely on the State’s duty not to interfere, but may call for positive measures of protection, even in the sphere of relations between individuals (see Fuentes Bobo, cited above, § 38; Özgür Gündem, cited above, §§ 42-43; and Palomo Sánchez and Others [GC], cited above, § 59). In particular, the positive obligations under Article 10 of the Convention require States to create, while establishing an effective system of protection of journalists, a favourable environment for participation in public debate by all the persons concerned, enabling them to express their opinions and ideas without fear, even if they run counter to those defended by the official authorities or by a significant part of public opinion, or even irritating or shocking to the latter (see Dink, cited above, § 137). 159. Moreover, the Court has repeatedly stressed that interference with freedom of expression may have a “chilling effect” on the exercise of that freedom (see, among other authorities, Baka v. Hungary [GC], no.", "20261/12, § 160, 23 June 2016), and this is more so in cases of serious crimes committed against journalists, making it of utmost importance for the authorities to check a possible connection between the crime and the journalist’s professional activity (see Huseynova, cited above, § 115, and Mazepa and Others, cited above, § 73). 160. Having had regard to the parties’ submissions and the circumstances of the case, the Court considers that the entirety of the applicant’s complaint falls to be examined from the standpoint of the positive obligations of the respondent State under Article 10 of the Convention. 161. The Court takes note of the reports on the general situation in Azerbaijan concerning the freedom of expression and safety of journalists, as described by the Commissioner for Human Rights of the Council of Europe (see paragraph 71 above), the third-party interveners (see paragraphs 74-78 above), and the applicant herself (see paragraph 153 above).", "In particular, it takes note of the reports of physical attacks and other types of alleged persecution of journalists, and the perceived climate of impunity for such acts, as those responsible were reportedly rarely, if ever, brought to justice. The Court considers that such an environment may produce a grave chilling effect on freedom of expression, including on the “public watchdog” role of journalists and other media actors and on open and vigorous public debate, all of which are essential in a democratic society (see also, in this regard, Recommendation CM/Rec(2016)4, cited in paragraphs 69-70 above). 162. The applicant in the present case is a well-known investigative journalist who has received a number of international awards. As noted above, the acts of a criminal nature committed against the applicant were apparently linked to her journalistic activity; no other plausible motive for the harassment she had to face has been advanced or can be discerned from the case file (see paragraph 119 above).", "163. The applicant herself had concerns and fears that she was the victim of a concerted campaign orchestrated in retaliation for her journalistic work, and those concerns and fears were repeatedly brought to the attention of the authorities (compare Özgür Gündem, cited above, § 41). 164. In such circumstances, having regard to the reports on the general situation concerning freedom of expression in the country and the particular circumstances of the present case, the Court considers that the threat of public humiliation and the acts resulting in the flagrant and unjustified invasion of the applicant’s privacy were either linked to her journalistic activity or should have been treated by the authorities when investigating as if they might have been so linked. In this situation Article 10 of the Convention required the respondent State to take positive measures to protect the applicant’s journalistic freedom of expression, in addition to its positive obligation under Article 8 of the Convention to protect her from intrusion into her private life.", "165. However, as the Court has found above, although the authorities launched a criminal investigation in connection with the acts committed against the applicant, there were significant flaws and delays in the manner in which they investigated the case (see paragraph 131 above). Moreover, the articles published in the newspapers, which the applicant claimed were pro-government, as well as the unjustified public disclosure by the authorities during the investigation of the additional information relating to the applicant’s private life, further compounded the situation (see paragraphs 148-49 above), contrary to the spirit of an environment protective of journalism. 166. It follows that the respondent State has failed to comply with its positive obligation to protect the applicant in the exercise of her freedom of expression.", "There has accordingly been a violation of Article 10 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 167. The applicant further complained that in the civil proceedings concerning the status report of 26 April 2013 the domestic courts had failed to address essential issues raised by her and had failed to provide sufficient reasons for their decisions. The relevant part of Article 6 provides: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 168. The Government contested the applicant’s arguments.", "169. The Court notes that this complaint is linked to the second complaint under Article 8 and the complaint under Article 10 examined above and must therefore likewise be declared admissible. 170. Having regard to its findings under Articles 8 and 10 (see paragraphs 149-50 and 165 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 6 of the Convention. VI.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 171. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 172. The applicant claimed 85,000 euros (EUR) in respect of non‑pecuniary damage. 173.", "The Government argued that the claim was excessive. 174. The Court refers to its findings of violations of Articles 8 and 10 of the Convention. The acts complained of were of particular gravity (see paragraph 116 above) and the authorities failed to comply with their positive obligations to take effective investigative and protective measures, instead disclosing further personal information in breach of the applicant’s privacy. The Court considers that she must have suffered significant distress and damage to her personal and professional life as a result.", "In such circumstances, ruling on an equitable basis, the Court awards the applicant EUR 15,000 in respect of non‑pecuniary damage. B. Costs and expenses 175. The applicant also claimed 3,000 Azerbaijani manats (AZN) in respect of legal fees for the services of Mr Y. Imanov incurred in the proceedings before the Court. In support of her claim, she submitted a copy of the contract concluded with Mr Y. Imanov on 14 December 2015.", "The contract specifies that the amount is to be paid after the conclusion of the proceedings. The applicant also noted that, on the date of conclusion of the contract AZN 3,000 was equivalent to approximately EUR 2,605. 176. The Government submitted that the amount awarded by the Court should be indicated in the currency specified in the contract concluded with the lawyer, namely Azerbaijani manats. 177.", "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. 178. The Court also notes that, in principle, according to its practice, it makes awards of just satisfaction under all heads, including in respect of costs and expenses, in euros. When a claim is expressed in a currency other than the euro, it is first converted into euros before the award is made (see Shukurov v. Azerbaijan, no. 37614/11, § 32, 27 October 2016).", "179. In the present case, the claim itself is expressed in Azerbaijani manats. The applicant also noted its equivalent in euros as of the date of conclusion of the contract for legal services with the lawyer, which was 14 December 2015. 180. However, in cases where just satisfaction claims (under various heads) are made in the national currency and in situations where a claim has lost considerable value when the Court reaches its decision owing to currency depreciation, the Court, as a general rule, converts such claims into euros as of the date of submission of the claims (ibid., §§ 32-33, with further references).", "181. In the present case, the applicant submitted the claim expressed in the national currency on 7 July 2016 and therefore, according to the general rule stated above, it should be converted into euros as of that date. As per the exchange rate on 7 July 2016, the applicant’s claim was equivalent to approximately EUR 1,750. 182. Regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,750 for the proceedings before the Court.", "C. Default interest 183. 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 8 of the Convention in connection with the domestic authorities’ failure to comply with their positive obligation to investigate effectively very serious intrusions into the applicant’s private life; 4. Holds that there has been a violation of Article 8 of the Convention in connection with the disclosure of the private information published in the authorities’ report on the status of the investigation; 5. Holds that there has been a violation of Article 10 of the Convention; 6. Holds that there is no need to examine the complaint under Article 6 of the Convention; 7. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Azerbaijani manats at the rate applicable at the date of settlement: (i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,750 (one thousand seven 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; 8.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekAngelika NußbergerRegistrarPresident" ]

[ "FOURTH SECTION CASE OF NA. v. THE UNITED KINGDOM (Application no. 25904/07) JUDGMENT STRASBOURG 17 July 2008 FINAL 06/08/2008 This judgment may be subject to editorial revision. In the case of NA. 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,Ján Šikuta,Päivi Hirvelä,Ledi Bianku, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 24 June 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 25904/07) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Sri-Lankan national, Mr NA. (“the applicant”). 2. The applicant was represented by Ms N. Mole, a lawyer practising in London with the AIRE Centre.", "The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office. 3. The applicant alleged that if returned to Sri Lanka, he was at real risk of ill-treatment contrary to Article 3 and/or a violation of Article 2 of the Convention. 4. On 21 June 2007, the President of the Chamber to which the case was allocated acceded to the applicant’s request not to have his name disclosed (Rule 47 § 3 of the Rules of Court).", "5. On 25 June 2007, the President of the Chamber decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled to Sri Lanka pending the Court’s decision. On the same day, the President decided to give notice of the application to the Government and granted it priority under Rule 41 of the Rules of Court. Under the provisions of Article 29 § 3 of the Convention, the President further decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE A. The applicant’s domestic proceedings 6. The applicant was born in 1975 in Sri Lanka. He currently lives in London. He is of Tamil ethnicity.", "7. The applicant entered the United Kingdom clandestinely on 17 August 1999 and claimed asylum the next day. He stated that he feared ill-treatment in Sri Lanka by the Sri Lankan army and the Liberation Tigers of Tamil Eelam (“the LTTE”). He explained that he had been arrested and detained by the army on six occasions between 1990 and 1997 on suspicion of involvement with the LTTE. Following his last detention he went into hiding until his family managed to fund his journey to the United Kingdom.", "He feared the LTTE on account of their adverse interest in his father who had done some work for the army. They had also tried to recruit the applicant on two occasions in 1997 and 1998. 8. His claim was refused by the Secretary of State on 30 October 2002. His appeal against that decision was heard and dismissed by an Adjudicator on 27 July 2003.", "It was found that the applicant’s account was credible: namely, he had been arrested by the army on some six occasions between 1990 and 1997 on suspicion of his involvement with the LTTE. He was detained for less than twenty-four hours on the first occasion and for two days on the last. There was no evidence as to how long the other periods of detention had lasted. On each occasion he was released without charge. During one or possibly more of these periods of detention he was ill-treated and his legs had scars from being beaten with batons.", "According to the Adjudicator, it may have been that the arrests took place in the course of round-ups. During the 1997 detention the applicant was photographed and his fingerprints were taken and his father signed certain papers in order to secure his release. He went into hiding in a temple and wanted to leave Sri Lanka at that stage but it took time for his mother to obtain money from his brother to pay the agent for his departure. 9. However, the Adjudicator found that the applicant’s fear of ill-treatment by the army upon his return was unjustified.", "It was noted that, since his departure from Sri Lanka, there had been a ceasefire between the army and the LTTE for a considerable time, checkpoints had been dismantled, and the LTTE had been able to open political offices and roads in the north. It was unlikely that he would attract any interest on the part of the authorities upon his return. Even if the record of his arrests was found it would be seen that he had been held for short periods and released without charge on each occasion. There was no record that he had ever been involved with the LTTE or that he had ever been wanted by the authorities. There was no reason why he should be strip-searched on return and, even if his scars were found, they would not cause the authorities to take an interest in him, certainly not to the extent of detaining and ill-treating him.", "10. As to his fear of the LTTE, the Adjudicator appeared to accept that the applicant’s brother had done non-combative work for the LTTE, though he was never a member. He, the brother, had been arrested by the army but never charged and had left Sri Lanka for Saudi Arabia in 1997. It was found unlikely that the LTTE would still have any interest in the applicant and if he was settled in Colombo it would be unlikely that they could track him down. In any event, he could apply to the authorities for protection.", "As to his argument that he was in need of psychiatric treatment as a result of post-traumatic stress disorder, it was found that adequate treatment would be available in Sri Lanka. 11. He was issued with removal directions for 1 April 2006 and made further representations attempting to lodge a fresh asylum application on 29 March 2006. On 3 April 2006 the Secretary of State refused to consider his further representations as amounting to a new asylum application. The general situation in Sri Lanka did not indicate any personal risk of ill-treatment and there was no evidence that he would be personally affected upon return.", "The fact that he had been away from Sri Lanka for the past seven and a half years suggested that he would hardly be of any interest to the Sri Lankan authorities. 12. His application for permission to apply for judicial review was refused on 23 May 2006 on the papers by Mr Justice Collins who stated: “There is no question but that the situation in Sri Lanka has deteriorated over the past few months and to such an extent that there is a real prospect [that the full scale war between the LTTE and the authorities will recommence. However, that does not of itself mean that no-one can be returned. The adjudicator accepted the claimant’s account but noted that he had only been detained for short periods, possibly in general round ups, and had not assisted the LTTE.", "All this was over 7 years ago. In the circumstances, it is not possible to say what has been happening creates a real risk of relevant ill-treatment for this claimant. Thus I do not think there is any arguable error of law in the defendant’s decision.” 13. The applicant’s renewed application was refused by Mr Justice Burnton at an oral hearing on 18 August 2006. 14.", "The applicant was then issued with removal directions for 10 January 2007. On 9 January 2007, he made further representations to the Secretary of State arguing, inter alia, that removal would be incompatible with his rights guaranteed by the Convention. When the Secretary of State did not respond, on 10 January 2007 the applicant sought to challenge this failure by judicial review. 15. It appears that the same day, the Secretary of State did in fact reject these representations as not amounting to a fresh claim.", "The Secretary of State relied on the findings of the Adjudicator and the observations of Mr Justice Collins of 23 May 2006. The Secretary of State also considered a paper submitted by the applicant which had been issued by the United Nations High Commissioner for Refugees (UNHCR) on 22 December 2006, entitled “the UNHCR Position on the International Protection Needs of Asylum Seekers from Sri Lanka” (“the UNHCR Position Paper” see paragraphs 65–68 below). He found, however, that the paper was general in nature and therefore little weight could be attached to it. Consideration was given to the applicant’s claim that the political and security situation in Sri Lanka had worsened and whilst it was acknowledged that there had been some problems with the peace process, the LTTE and the Sri Lankan authorities were committed to peace and working towards an agreement. Notwithstanding two bomb attacks in Colombo, there was a “distinct geographical limitation” to recent incidents and it was open to the applicant to avoid the northern and eastern areas affected by the continuing operations of the Sri Lankan armed forces and the LTTE.", "The majority of Tamils could live in Colombo and the south without harassment. Recent security operations in Colombo were also noted but it was not considered that Tamils in Colombo were at risk of persecution due to their ethnicity or political opinions. The majority of people detained had been quickly released following identity checks. In terms of internal relocation, it was not unduly harsh to return failed asylum-seekers there. While there had been increasing levels of disappearances in Sri Lanka, progress had been made by the creation of an independent body to observe government investigations.", "The Secretary of State concluded that the points made in the applicant’s submissions had not been previously considered, but taken with the materials considered in the original refusal of the applicant’s asylum claim and the determination of his appeal by the Adjudicator, the new materials would not have created a realistic prospect of success and the submissions did not therefore amount to a fresh asylum claim. 16. The applicant then made an out of hours application for an injunction to the High Court. This was granted by Mr Justice Underhill and the removal directions in place for the same evening were cancelled. In his subsequent order of 15 January 2007, Mr Justice Underhill stated: “I considered the Secretary of State’s careful letter [of 10 January 2007] and am mindful of the fact that [the applicant] has had a previous application for judicial review dismissed.", "But in my view it is sufficiently arguable that the recent further deterioration in the situation in Sri Lanka may justify a fresh claim to make it just for removal to be deferred until this issue can be properly considered. I note in particular para. 34 (a) of the recent UNHCR report [which contained the UNHCR’s recommendations in respect of Tamils from the north or east – see paragraphs 65 – 68 below]. I am aware that there are other pending applications for permission to apply for judicial review raising the same issue.” 17. On 14 February 2007 Mrs Justice Black refused the applicant’s application for permission to seek judicial review of the Secretary of State’s alleged failure to consider and determine the new representations made on 9 January 2007.", "She stated: “In fact [the Secretary of State] did consider the further representations and, in a letter of 10 January 2007, refused to treat them as a fresh claim. Strictly speaking that disposes of the proposed [judicial review] application. However, it is clear that the claimant seeks in fact to advance a more fundamental challenge to the removal directions on the basis that the situation in Sri Lanka has deteriorated since the matter was last considered and has reached a point where the claimant would be at risk on return. Reliance is placed on a UNHCR document dated 22 December 2006 setting out the dangerous situation in Sri Lanka...Underhill J granted an injunction prohibiting removal on 15 January 2007, apparently referring to the deterioration in the situation in Sri Lanka and particularly para 34(a) of the UNHCR report. It is understandable why he took this view.", "However, now that some detail of the claimant’s immigration history is available, it does not appear that he had advanced anything significantly different in the letter of 9 January 2007 from that which was considered when representations were made on his behalf in March 2006 and in particular during the JR proceedings that concluded with an oral permission hearing on 18 August 2006. There is material in the January 2007 letter in addition to the UNHCR report which is later but there is also material that in fact relates to the first half of 2006...Whilst I note with anxiety para 34(a) of the UNHCR report as Mr Justice Underhill did (and the contents of that report generally), in the light of the reasoning concerning this particular claimant who has been assessed by the adjudicator as not of interest to the authorities, the material does not amount to sufficient in my view to justify granted permission to commence a judicial review of the decision of 10 January 2007. The injunction granted by Underhill J will, however, be continued until either the time for renewal orally has expired without such an application being made or determination of the oral permission hearing if there is one.” 18. The applicant then sought to renew his application for permission to apply for judicial review, submitting detailed amended grounds for his application on 21 February 2007. The oral hearing of the renewed application was listed for 17 May 2007 but the applicant, appearing in person at the hearing, withdrew his application.", "19. In a subsequent letter of 5 November 2007 from the applicant’s solicitors at the time of the judicial review proceedings to his current representatives before this Court, the former stated that the reason the judicial review application was withdrawn was that they, the solicitors, were without instructions from the applicant. They were informed by counsel that this was a “pre-LP” case (see paragraphs 30–46 below) and counsel felt that there were insufficient merits in the case to proceed to the oral hearing. 20. The Secretary of State issued the applicant with removal directions to Sri Lanka for 25 June 2007.", "On that date the President of the Chamber decided to apply Rule 39 of the Rules of Court and indicated to the Government of the United Kingdom that the applicant should not be expelled until further notice (see paragraph 5 above). B. Subsequent cases brought by Tamils being returned to Sri Lanka 21. In 2007, the Court received an increasing number of requests for interim measures from Tamils who were being returned to Sri Lanka from the United Kingdom and other Contracting States. By October 2007, the President of the Chamber had applied Rule 39 in twenty-two cases where Tamils sought to prevent their removal to Sri Lanka from the United Kingdom.", "On 23 October 2007, the Section Registrar wrote to the Government Agent, noting the increasing number of such Rule 39 applications. Having regard to the security situation in Sri Lanka, he further noted that Rule 39 had been applied on each occasion an interim measure had been requested by an ethnic Tamil. The letter continued: “The Acting President has consulted the Judges of the Section about his concerns including as regards the strain which the processing of numerous Rule 39 applications places on judicial time and resources. The Court has concluded that, pending the adoption of a lead judgment in one or more of the applications already communicated, Rule 39 should continue to be applied in any case brought by a Tamil seeking to prevent his removal. The Section has also expressed the hope that, rather than the Acting President being required to apply Rule 39 in each individual case, your Government will assist the Court by refraining for the time being from issuing removal directions in respect of Tamils who claim that their return to Sri Lanka might expose them to the risk of treatment in violation of the Convention.” In his reply of 31 October 2007, the Agent set out the conclusions of the Home Office’s Operational Guidance Note of 9 March 2007 on Sri Lanka and the findings of the Asylum and Immigration Tribunal in LP.", "He concluded that in light of this information, the Government did not consider that the current situation in Sri Lanka warranted the suspension of removals of all Tamils who claimed that their return would expose them to a risk of ill-treatment. Each case had to be assessed on its merits against the available evidence. The Government was accordingly not in a position to assist the Court by refraining from issuing removal directions in all such cases on a voluntary basis. Finally, he stated that the Government would continue to make every effort to comply with any Rule 39 indications made by the Court in accordance with their obligations under the Convention and their long-standing practice. However, in the circumstances, the Government suggested that the difficulties posed by the increasing numbers of Rule 39 requests by Tamils could best be addressed through the adoption of a lead judgment by the Court.", "The Government stood ready to co-operate with the Court to bring such a case to an early conclusion. 22. The Court has since applied Rule 39 in respect of three hundred and forty-two Tamil applicants who claim that their return to Sri Lanka from the United Kingdom would expose them to ill-treatment in violation of Article 3 of the Convention. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "Immigration and asylum: primary and secondary legislation 23. Sections 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 353 of the Immigration Rules (HC 395, as amended by HC 1112) states that: “When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.” 24.", "At the material time, the Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) (Amendment) (No. 2) Order 2003, when taken with section 101 of the Nationality, Immigration and Asylum Act 2002 and Part IV Immigration and Asylum Act 1999, provided for a right of appeal from an Adjudicator’s determination to the Immigration Appeal Tribunal. An appeal had to be on a point of law and the permission of the Immigration Appeal Tribunal was required. 25.", "At present, by section 94(2) of the Nationality, Immigration and Asylum Act 2002, when a person has made either an asylum claim or a human rights claim, or both, an appeal may not be brought while the person is in the United Kingdom if the Secretary of State certifies that the claim or claims are clearly unfounded. Under section 94(3), if the Secretary of State is satisfied that a claimant is entitled to reside in any of the States listed in the section 94(4), he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded. Section 94(4) provides such a list of States and subsection (5) gives the Secretary of State the power to add a State, or part of a State, to the list in subsection (4) if satisfied that: there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part; and removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdom’s obligations under the Convention. Subsection (6) gives him the power to remove States from the list. 26.", "Sri Lanka was added to the list by the Asylum (Designated States) (No. 2) Order 2003 (Statutory Instrument 2003/1919) which entered into force on 22 July 2003. It was removed from the list by the Asylum (Designated States) (Amendment) (No. 2) Order 2006 which entered into force on 13 December 2006. Paragraph 7.4 of the Explanatory Memorandum to the order cites the latest available information about the situation in Sri Lanka and in particular the deterioration in conditions as one of the factors for the Secretary of State’s decision to remove it from the list.", "B. The Human Rights Act 1998 27. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. C. Judicial review 28.", "Judicial review in England and Wales is regulated by Part 54 of the Civil Procedure Rules. Rule 54.1(2) defines a claim for judicial review as a claim to review the lawfulness of an enactment or a decision, action or failure to act in relation to the exercise of a public function. An application for judicial review has two stages. The first is an application for permission to apply for judicial review; the second, if permission is granted, is a substantive application for judicial review. Where permission is refused without a hearing, under Rule 54.12(3) and (4) the claimant may not appeal but may within seven days request the decision to be reconsidered at a hearing.", "Rule 52.15 provides that where permission to apply for judicial review has been refused at a hearing in the High Court, the person seeking that permission may within seven days apply to the Court of Appeal for permission to appeal. D. Country guidance determinations of the Asylum and Immigration Tribunal and former Immigration Appeal Tribunal 29. Appeals from decisions of the Secretary of State in asylum, immigration and nationality matters are now heard by the Asylum and Immigration Tribunal (“the AIT”), which replaces the former system of Adjudicators and the Immigration Appeal Tribunal. Paragraph 18 of the Practice Directions governing the operation of the AIT defines country guidance determinations of the AIT as follows: “18.2 A reported determination of the [AIT] or of the IAT [the former Immigration Appeal Tribunal] bearing the letters “CG” shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the [AIT] or the IAT that determined the appeal. As a result, unless it has been expressly superseded or replaced by any later “CG” determination, or is inconsistent with other authority that is binding on the [AIT], such a country guidance case is authoritative in any subsequent appeal, so far as that appeal: (a) relates to the country guidance issue in question; and (b) depends upon the same or similar evidence.", "... 18.4 Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for review or appeal on a point of law.” 1. LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 30. In the above country guidance determination promulgated on 6 August 2007, the AIT considered the case of a Tamil, LP, from Jaffna in the north of Sri Lanka. He had experienced problems with the LTTE and the Sri Lankan authorities and fled Sri Lanka on 29 December 1999 but had been refused asylum in the United Kingdom by the Secretary of State.", "Since the case had been identified as a country guidance determination, the AIT heard evidence from a number of experts on the situation in Sri Lanka and the treatment of Tamils there. It also considered the UNCHR Position Paper (see paragraphs 65–68 below) and considered evidence on the Sri Lankan authorities’ treatment of returned failed asylum seekers at Colombo airport, including a series of letters from the British High Commission in Colombo and a report of the Canadian Immigration and Refugee Board (see paragraphs 60–63 and 74 below). In dismissing LP’s appeal on asylum grounds but allowing it on the basis of Article 3 of the Convention, the AIT gave the following guidance in the headnote to its determination: “(1) Tamils are not per se at risk of serious harm from the Sri Lankan authorities in Colombo. A number of factors may increase the risk, including but not limited to: a previous record as a suspected or actual LTTE member; a previous criminal record and/or outstanding arrest warrant; bail jumping and/or escaping from custody; having signed a confession or similar document; having been asked by the security forces to become an informer; the presence of scarring; return from London or other centre of LTTE fundraising; illegal departure from Sri Lanka; lack of an ID card or other documentation; having made an asylum claim abroad; having relatives in the LTTE. In every case, those factors and the weight to be ascribed to them, individually and cumulatively, must be considered in the light of the facts of each case but they are not intended to be a check list.", "(2) If a person is actively wanted by the police and/or named on a Watched or Wanted list held at Colombo airport, they may be at risk of detention at the airport. (3) Otherwise, the majority of returning failed asylum seekers are processed relatively quickly and with no difficulty beyond some possible harassment. (4) Tamils in Colombo are at increased risk of being stopped at checkpoints, in a cordon and search operation, or of being the subject of a raid on a Lodge where they are staying. In general, the risk again is no more than harassment and should not cause any lasting difficulty, but Tamils who have recently returned to Sri Lanka and have not yet renewed their Sri Lankan identity documents will be subject to more investigation and the factors listed above may then come into play. (5) Returning Tamils should be able to establish the fact of their recent return during the short period necessary for new identity documents to be procured.", "(6) A person who cannot establish that he is at real risk of persecution in his home area is not a refugee; but his appeal may succeed under article 3 of the ECHR, or he may be entitled to humanitarian protection if he can establish he would be at risk in the part of the country to which he will be returned. (7) The weight to be given to expert evidence (individual or country) and country background evidence is dependent upon the quality of the raw data from which it is drawn and the quality of the filtering process to which that data has been subjected. Sources should be given whenever possible. (8) The determinations about Sri Lanka listed in para 229 [of the determination – see below] are replaced as country guidance by this determination. They continue to be reported cases.” 31.", "In its consideration of the expert evidence before it, the AIT heard argument on the correct approach to the UNHCR Position Paper (see paragraphs 65 – 68 below). It stated that: “203. The UNHCR report was very topical and up to date. We agree with the general submission made by [counsel for the Secretary of State] that the protection agenda of the UNHCR is a wider one than the mere assessment of refugee or subsidiary protection status. However, these reports are prepared by persons with direct experience of the core issues involved and thus we accord them substantive weight in this case.” 32.", "The AIT then considered each of the twelve risk factors that had been identified by the appellant, LP, and which it had summarised in its headnote. In respect of Tamil ethnicity, the AIT recalled that Tamils comprised more than 10 percent of the population of Colombo, which called for caution when assessing risk in Sri Lanka, especially Colombo. There was a need for knowledge of where applicants came from in Sri Lanka and their involvement or lack of it with Tamil organisations, whether voluntary, involuntary or otherwise. It found that there were different risk profiles for sub-groups of those with Tamil ethnicity (Sri Lankan Tamils coming from the north or east compared with “Indian”, “Plantation” or “Hill” Tamils). Age and gender had to be taken into account and young male Tamils in Sri Lanka, particularly in Colombo, were at a relatively higher level of risk.", "There was a higher propensity on the part of the Sri Lanka authorities to target young men and women from the north and the east in a period of virtual civil war. 33. In respect of a previous record as a suspected or actual LTTE member or supporter, it was of vital importance to establish an applicant’s profile and the credibility of his background in some depth. If he or she was not credible as to his claim to come from the north or east, which left a situation where he could be a Tamil from Colombo with little or no involvement with the LTTE, there could be little risk. 34.", "A previous criminal record and/or arrest warrant was, in the AIT’s view, a significant factor that needed to be taken into account in the assessment of the totality of the risk but did not mean, of itself, that the applicant had a well-founded fear of persecution or other significant harm on return to Sri Lanka for that reason alone. The issue was to establish the credibility of the criminal record, or an arrest warrant, and decide whether it was reasonably likely to exist in respect of the applicant. 35. Those who had jumped bail or absconded from police custody, the AIT noted: “We agree with the logic that those who have been released after going to court and released from custody on formal bail are reasonably likely, on the evidence, to be not only recorded on the police records as bail jumpers but obviously on the court records as well. Thus we would identify those in the situation such as this appellant who have been found to have been to court in Colombo, and subsequently released on formal bail, as having a profile that could place them at a higher level of risk of being identified from police computers at the airport.", "Their treatment thereafter will of course depend upon the basis that they were detained in the first place. It is important to note that we did not have before us any information as to the treatment of bail jumpers from the ordinary criminal justice system, and there may be many of them, when they again come to the attention of the authorities, be they Tamil or Singhalese. We had no evidence that Tamil bail jumpers are treated differently from Singhalese ones. Clearly punishment for jumping bail will not make someone a refugee. As we have said, the risk of detention and maltreatment will depend on the profile of the individual applicant.” For those who had not been brought to court and had possibly been released from detention after payment of a bribe, much would depend on the evidence relating to the formality of the detention.", "If the detention was informal and there were no records of a bribe, the risk level would be likely to be below that of a real risk. On this risk factor, the AIT concluded: “While we would agree that there may well be situations where Tamils, with little or no profile related to the LTTE, or other ‘terrorist’ groups, could be briefly detained and harassed, as no doubt happens in round ups in Colombo and elsewhere, we consider it illogical to assume that an escapee, from Sri Lankan government detention, or a bail jumper from the Sri Lankan court system, would be merely ‘harassed’ given the climate of torture with impunity that is repeatedly confirmed as existent in the background material from all sources. We consider, (as we think it does in the appellant’s particular case), that the totality of the evidence may point to a real risk, in some cases, of persecution or really serious harm when a recorded escapee or bail jumper is discovered, on return to Sri Lanka.” 36. When an applicant had signed a confession, this could be a significant risk factor and the AIT noted expert evidence to the effect that many Tamils were released after signing statements made in Sinhala that they often did not understand. The factor had to be considered in the totality of the risk.", "Equally, when an applicant had refused requests by the security services to become an informer against the LTTE, there was a higher risk that they would be assumed to be a collaborator of the LTTE but such evidence had to be taken into account with the totality of the evidence and merely establishing that an applicant had refused to become an informer would not be in every case the basis for a valid asylum claim on its own. 37. On the risk arising from the presence of scarring on an applicant, the AIT stated: “217. The background evidence on the issue of scarring has fluctuated. Up until the time of the ceasefire it was generally accepted as something which the Sri Lankan authorities noted and took into account both at the airport and on detention and in strip searches of suspected Tamil LTTE supporters.", "Their perception that it may indicate training by the LTTE, or participation in active warfare, was self-evident, and simply was ‘good’ policing, as appeared to be suggested by the Inspector General of Police in his discussions with Dr Smith [one of the experts on Sri Lanka from whom the AIT heard evidence]. On the same logic it was also valid to conclude that the impact of scarring was of far less interest during the period 2002 – late 2005 while the ceasefire agreement was having some effective impact. The evidence that was provided in this case, including that from Dr Smith following his discussions with the Inspector General of Police (paragraph 80 of his report), the BHC [British High Commission] letter of 24 August 2006, and the COIR [United Kingdom Border and Immigration Agency Country of Origin Information Report on Sri Lanka] all indicate that scarring may again be relevant. We agree with the comments in Dr Smith’s report, that the issue of scarring was considered by the police to be a very serious indicator of whether a Tamil might have been involved in the LTTE. However, on the evidence now before us we consider that the scarring issue should be one that only has significance when there are other factors that would bring an applicant to the attention of the authorities, either at the airport or subsequently in Colombo, such as being wanted on an outstanding arrest warrant or a lack of identity.", "We therefore agree with the COIR remarks that it may be a relevant, but not an overriding, factor. Thus, whilst the presence of scarring may promote interest in a young Tamil under investigation by the Sri Lankan authorities, we do not consider that, merely because a young Tamil has scars, he will automatically be ill-treated in detention.” 38. In respect of the risk arising from return from London or another centre of LTTE activity or fund-raising, the AIT heard evidence from the Metropolitan Police on LTTE activities and fund-raising in London. It concluded that this factor was highly case-specific and any applicant would need to show the extent to which the Sri Lankan High Commission in the United Kingdom was aware of his activities and was thus likely to have passed the information on to Colombo when the applicant was being deported or removed. 39.", "Illegal departure from Sri Lanka did not of necessity establish a well founded fear of persecution or serious harm, although in the “heightened level of insecurity” in Sri Lanka it would add to the risk profile. Similarly, given the number of “cordon and search” operations by the Sri Lankan Government, the lack of a valid identity card could contribute towards an increased level of risk. In the AIT’s view, it had to be coupled with other risk factors for those of Tamil ethnicity but it was a contributing factor. An applicant would need to show why he would be at continuing risk and that he could not reasonably be expected to obtain a new identity card. 40.", "In respect of the risk factor of having made an asylum claim abroad, the AIT relied, inter alia, on a letter dated 24 August 2006 from the British High Commission in Colombo (see also paragraphs 60–63 below) which had stated that lists of failed asylum seekers could form part of search operations in Colombo (at paragraphs 65 and 221 of the determination). The AIT found that it was a reasonable inference that application forms for replacement passports and travel documents might alert the Sri Lankan High Commission in London and that information could be passed on. However, the AIT did not consider having made a failed asylum claim abroad to be an issue that alone would place a returnee at real risk on return. It would be a contributing factor that would need other, perhaps more compelling factors before a real risk could be established. 41.", "The AIT considered that the fact of having relatives in the LTTE was a logical factor but needed to be taking into account with the totality of other evidence and the profile of other family members. On its own, without established and credible evidence of the details of the other family members and their known role or involvement with the LTTE, it would be of limited weight. When assessing those who have relatives who were members of the LTTE, it was not only important to consider the relationship, and the involvement of the relative but whether, and to what extent, knowledge of the relative’s activities were likely to have been known to the security forces in Sri Lanka. This would vary depending on the relative’s profile and whether or not he or she had been previously detained. The question of how the authorities would know that an individual was so related might also be of concern.", "42. In its conclusion on the risk profile for Tamils, the AIT stated: “227. Our assessment of the various risk factors above has highlighted that each case must be determined on its own facts. It may be that in some credible cases one of these individual risk factors on its own will establish a real risk of persecution or serious harm on return by the Sri Lankan authorities for Sri Lankan Tamils who are failed asylum seekers from the United Kingdom. For those with a lower profile, assessed on one or a combination of the risk factors we have noted however, such as this appellant, their specific profiles must be assessed in each situation and set against the above non-exhaustive and non-conclusive, set of risk factors and the volatile country situation.", "As can be noted, several factors, such as being subject to an outstanding arrest warrant, or a proven bail jumper from a formal bail hearing may establish a much higher level of propensity to risk than various other factors. In this situation therefore, the assessment exercise is a much larger and more detailed one than may have been the situation up to 2002 and certainly during the period of the cease fire agreement (‘CFA’). The current worsening situation in Sri Lanka requires serious consideration of all of the above factors, a review of up to date country of origin information set against the very carefully assessed profile of the appellant.” 43. In addressing the general situation in Sri Lanka at the time and the possible of relocation of Tamils from the north or east to Colombo, the AIT stated: “232. It has been accepted during the course of this determination that the general security situation in Sri Lanka has deteriorated following the effective breakdown of the ceasefire and the increase in terrorist activity by the LTTE.", "That has resulted in increased vigilance on the part of the Sri Lankan authorities and with it a greater scope for human rights abuses and persecution. 233. When assessing the risk to an individual it should be borne in mind that much of the background material about Sri Lanka, and the increase in violent activity, relates to the north and east. There are particular problems in the east because of the defection of the Karuna faction from LTTE ranks. This determination does not suggest that it would in every case be unsafe to expect a returning Tamil to return to his or her home area in the north or the east.", "Rather it looks at the position in Colombo whether that be for a Tamil who was from Colombo in the first place, or a person who could relocate there. 234. Tamils make up over 10% of the population of Colombo. Despite evidence of some forms of discrimination, the evidence does not show they face serious hardships merely because they are Tamils. As a result, other considerations apart and subject to individual assessment of each applicant’s specific case, it cannot be argued that, even if he faces serious harm in his home area, as a general presumption it is unduly harsh to expect a Tamil to relocate to Colombo, or that it would be a breach of Article 3 to expect him or her to do so, or that doing so would put him or her at real risk of serious harm entitling them to humanitarian protection.” 44.", "Having reiterated that the list of factors was “not a checklist nor is it intended to be exhaustive” and that the factors should be considered individually and cumulatively (at paragraph 238 of the determination), the Tribunal again summarised the factors it had considered. It had heard evidence on procedures at Colombo airport, including the series of letters from the British High Commission in Colombo (see paragraphs 60–63 below), and the counsel for the Secretary of State had acknowledged there was no dispute that records were kept at the airport and that interviews were conducted there (at paragraph 159 of the determination). In its summary of its conclusions, the AIT therefore added: “239. When examining the risk factors it is of course necessary to also consider the likelihood of an appellant being either apprehended at the airport or subsequently within Colombo. We have referred earlier to the Wanted and Watched lists held at the airport and concluded that those who are actively wanted by the police or who are on a watch list for a significant offence may be at risk of being detained at the airport.", "Otherwise the strong preponderance of the evidence is that the majority of returning failed asylum seekers are processed relatively quickly and with no difficulty beyond some possible harassment.” 45. On the facts of LP’s case, the AIT noted that his credibility had been accepted, in particular that he was a “bail-jumper” from court-directed bail in Colombo and that on return to Colombo airport he would have been at real risk of being investigated. That investigation by the Sri Lankan authorities would lead, in LP’s particular circumstances, to the real risk of his being seriously maltreated while in detention and thus the AIT allowed his appeal on Article 3 grounds. 46. In its previous determination in PT (Risk –bribery – release) Sri Lanka CG [2002] UKIAT 03444, the AIT had held first that paying a bribe did not itself amount to an assisted escape from custody which would make the applicant of interest to the authorities.", "Second, it had held that scarring was a factor that should not be assessed in isolation but in light of the general security situation and the processing of returnees at Colombo airport. The AIT in LP confirmed both these rulings. 2. PS (LTTE – Internal Flight – Sufficiency of Protection) Sri Lanka CG [2004] UKIAT 0297 47. In PS the Immigration Appeal Tribunal, allowed an appeal by the Secretary of State against the decision of the Adjudicator who had found that the respondent, a Sri Lankan Tamil from western Sri Lanka, would be at risk from the LTTE if returned and that there would not be sufficient protection by the Sri Lankan authorities.", "He and his cousin had been coerced by the LTTE into transporting goods by sea for them and arrested and interrogated under torture by the Sri Lankan navy. He had told them where the goods were and was released after payment of a bribe. The LTTE sought the applicant and his cousin and killed his cousin. The respondent was again arrested on suspicion of LTTE involvement and again released after paying a bribe, at which point he fled to the United Kingdom. It was accepted on appeal that given the ceasefire in place at the material time, there was no risk to the respondent from the Sri Lankan authorities.", "As to the risk to him from the LTTE and the sufficiency of protection offered by the Sri Lankan authorities, IAT found that he could safely and reasonably relocate from his home area of Puttalam, western Sri Lanka to Colombo. The IAT stated: “71. As we have already observed, those whom the LTTE has on the objective evidence targeted in Colombo since the ceasefire have all been high profile opposition activists, or those whom they would see are renegades or traitors to the LTTE. Whether it could be successfully argued that even those of so high a profile would not be provided with a sufficiency of protection in Colombo in the Horvath sense [Horvath v. the Secretary of State for the Home Department – see paragraph 49 below], may be doubted, but what seems to us quite clear on the background evidence is that there is no arguable basis for saying that the Sri Lankan state does not provide a sufficiency of protection to the generality of Tamils having a localised fear of the LTTE in their home area who do not reach a similar high profile. ... 73.", "We cannot, of course, say that the safety of the respondent is guaranteed if he is now returned to Sri Lanka, but there is simply no objective evidence to support a claim that ethnic Tamils with his characteristics are in fact currently at risk from the LTTE in Colombo, or that, if they are, it is a risk in respect of which the Sri Lankan state does not provide a sufficiency of protection applying the ratio in Horvath.” 3. NM and others (Lone women – Ashraf) Somalia CG [2005] UKAIT 00076 48. In this country guidance determination, the AIT considered, inter alia, the correct approach to reports by the UNHCR. It observed: “108. The extensive reliance upon UNHCR material makes a few observations germane.", "The value of the UNHCR material is first that where it has observers on the ground, it is in a good position to provide first hand information as to what in fact is happening. The process then whereby its observations of what is happening become position papers or recommendations is likely to increase the objectivity and soundness of its observations in that respect. It has a special role in relation to the Geneva Convention. ... 109. But their comments have their limitations and these need equally to be understood.", "The UNHCR often speaks of inhibitions on the return, usually forced, of failed asylum seekers, who have been rejected after a proper consideration of their claims. It follows that the UNHCR is not then commenting on the return of refugees at all; it is acknowledging that they would not face persecution for a Convention reason and it is going beyond its special remit under the Geneva Convention. This is not a question of picking up on loose language. The UNHCR is perfectly capable of using language which shows that it is or is not dealing with the risk of persecution for a Convention reason, and sometimes does so. These are considered papers after all.", "... 112. But the assessment of whether someone can be returned in those circumstances is one which has to be treated with real care, if it is sought to apply it to non Refugee Convention international obligations, especially ECHR. The measure which the UNHCR uses is unclear; indeed, realistically, it may be using no particular measure. Instead, it is using its own language to convey its own sense of the severity of the problem, the degree of risk faced and the quality of the evidence which it has to underpin its assessment. It is often guarded and cautious rather than assertive because of the frailties of its knowledge and the variability of the circumstances.", "113. This is not to advocate an unduly nuanced reading of its material, let alone an unduly legalistic reading. It is to require that the material be read for what it actually conveys about the level of risk, of what treatment and of what severity and with what certainty as to the available evidence. But there may be times when a lack of information or evidence permits or requires inferences to be drawn as to its significance, which is for the decision-maker to draw. There is often other relevant material as well.", "114. UNHCR’s language is not framed by reference to the ECHR and to the high threshold of Article 3 as elaborated in the jurisprudence of the Strasbourg Court and of the United Kingdom. That is not a criticism – it is not an expert legal adviser to the United Kingdom courts and couches its papers in its own language. So its more general humanitarian assessments of international protection needs should be read with care, so as to avoid giving them an authority in relation to the United Kingdom’s obligations under the ECHR which they do not claim. They may give part of the picture, but the language and threshold of their assessments show that the UNHCR quite often adopts a standard which is not that of the United Kingdom’s ECHR obligations.", "115. UNHCR papers are often not the only ones which Adjudicators or the Tribunal has to consider. Other organisations may have first-hand sources and differ from UNHCR; experts may bring a further perspective. A considered UNHCR paper is therefore entitled to weight but may well not be decisive.” E. Horvath v. the Secretary of State for the Home Department [2001] AC 489 49. In this case, the House of Lords considered the asylum claim of a Roma citizen of Slovakia on the ground, among others, that he feared persecution in Slovakia by “skinheads”, against whom the Slovak police failed to provide adequate protection for Roma.", "In dismissing the applicant’s appeal, the House of Lords held that in determining whether there was sufficient protection against persecution in the person’s country of origin it was sufficient that there was in that country a system of criminal law which made violent attacks by the persecutors punishable and a reasonable willingness to enforce that law on the part of the law enforcement agencies. F. R. v. the Secretary of State for the Home Department, Ex parte five Sri Lankan Tamils [2007] EWHC 3288 (Admin) 50. Applications for permission to apply for judicial review were lodged by five Sri Lankan Tamils who sought to challenge the Secretary of State’s decision either to reject representations made by them as not amounting to a fresh asylum claim or, in one case, to certify that his claim was clearly unfounded (see paragraph 25 above). The applications were considered in the High Court by Mr Justice Collins on 12 November 2007 in the light of the exchange of letters between the Section Registrar and Agent of the Government set out at paragraph 21 above. He adjourned one application, granted permission in two cases and refused permission in the remaining two.", "Before considering the merits of the individual cases before him, Mr Justice Collins considered the risk factors set out by the AIT in LP. He stated: “10. Although those have been described as risk factors, they obviously vary in their significance. For example, Tamil ethnicity is obviously a highly relevant consideration, since the LTTE is a Tamil organisation and the battle is by the LTTE on behalf of the Tamils who seek specific objectives as Tamils. However, Tamil ethnicity by itself does not create a real risk of ill-treatment.", "Accordingly, some of these so-called risk factors are in reality, as it seems to me, background (as it has been described) factors; that is to say they do not in themselves indicate a real risk, but they are matters which, if there is a factor which does give rise to a real risk that the individual will be suspected of involvement in the LTTE, adds to the significance of that. Thus Tamil ethnicity, return from London, illegal departure from Sri Lanka, lack of ID card or other documentation (unless it is such a lack beyond the period that the individual would be expected to take to obtain an ID card after return) and having made an asylum claim abroad, all are no doubt factors which may be held against an individual, but none of them, as far as I can see in themselves, or even cumulatively, would create a real risk. However, it is obvious that a previous record as a suspected or actual member or supporter, provided that it was at a level which would mean that the authorities would retain an interest would be likely to create a risk. I say that because it was made clear in LP itself that an individual who had a past low-level involvement which might have led to some detention, would not necessarily be regarded as a real risk so far as ill-treatment was concerned, although clearly the circumstances of the previous record might point in a different direction. A previous criminal record and an outstanding arrest warrant clearly are highly material and clearly capable, I would have thought, of producing a real risk.", "11. Bail jumping and/or escaping from custody, again on the face of it are highly material. But it depends, as the Tribunal [the AIT] itself indicated, on what is covered by escaping from custody. Frequently custody was brought to an end by the payment of a bribe. That is commonplace (or was commonplace, perhaps still is) in the Sri Lankan situation.", "Generally release on the payment of a bribe without more would not indicate that there was an ongoing risk because the release would be likely to be recorded as a release because there was nothing further to be held against the individual. It is hardly likely that whoever took the bribe would stick his neck out by effectively admitting that there should not have been a release but for the bribe, although it might of course be different if there had been a release on formal bail. Police have the power to grant bail, but it can be done, it was said, either formally or informally. Frequently perhaps what is talked of as release on bail is no more than release by the police officer in question with some conditions apparently attached. Again one would have to look at the individual circumstances to see whether the nature of the release was such as to lead to a risk that he would still be regarded as someone under suspicion.", "12. A signed confession or similar document obviously would be an important consideration. 13. Having been asked by the security forces to become an informer can be of some importance. It might indicate that the individual was regarded as someone who was indeed involved in the LTTE but was prepared, to save his own skin or for whatever reason, to provide information to the authorities.", "What would happen on occasions – and indeed one of the cases, as I shall indicate, contained this element – was that the release was on the basis that he would be an informant but in fact he did not carry out his side of the bargain, if that is the right way of putting it. The suggestion is that that failure would mean that he was likely to be recorded as someone who would arouse suspicion. 14. The Tribunal indicated that the presence of scarring in itself would not necessarily produce a real risk, but is something that would be added to and confirmatory of another factor which did give rise to a risk. It was generally speaking to be regarded as a confirmatory rather than a free-standing risk element.", "15. Finally having relatives in the LTTE is something that one can well understand might produce suspicion. 16. The test therefore, as I see it, is whether there are factors in an individual case, one or more, which might indicate that authorities would regard the individual as someone who may well have been involved with the LTTE in a sufficiently significant fashion to warrant his detention or interrogation. If interrogation and detention are likely, then, in the context of the approach of the authorities in Sri Lanka, torture would be a real risk and thus a breach of Article 3 might occur.", "It is plain from LP and it is clear overall that a blanket ban on return to Sri Lanka simply because an individual is a Tamil cannot be supported. If the European Court is approaching it in that way, then in my view it should not be and it is not in accordance with what is required by the Convention. 17. The authorities in this country, the courts and the Tribunal, give very careful consideration to whether it is indeed appropriate to accept that a return of a Tamil to Sri Lanka can be made because there is no real risk that he will suffer any form of relevant ill-treatment. This country has not accepted the blanket approach which is advocated to an extent by the UNHCR, albeit there is no question but that its factual conclusions on matters where investigations have been carried out should be given weight.” III.", "RELEVANT EUROPEAN UNION LAW 51. Council Directive 2004/83/EC of 29 April 2004 (on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted) has the objective, inter alia, of ensuring EU Member States apply common criteria for the identification of persons genuinely in need of international protection (recital six of the preamble). In addition to regulating refugee status, it makes provision for granting subsidiary protection status. Article 2(e) defines a person eligible for subsidiary protection status as someone who would face a real risk of suffering serious harm if returned to his or her country of origin. Serious harm is defined in Article 15 as consisting of: (a) death penalty or execution; (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.", "52. On 17 October 2007, the Dutch Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State), when considering the case of M. and N. Elgafaji v. Staatssecretaris van Justitie (the Deputy Minister of Justice), lodged a reference for a preliminary ruling with the Court of Justice of the European Communities asking, inter alia, whether Article 15(c) of the Directive offered supplementary or other protection to Article 3 of the Convention. IV. RELEVANT INFORMATION ABOUT SRI LANKA 53. Sri Lanka secured independence from the United Kingdom in 1948.", "Demographical information varies but its population is approximately 19.9 million. The majority are Sinhalese (73.8–82 per cent). Significant minorities include Sri Lankan Moors (Muslims, 7.2–7.9 per cent); Indian Tamils (4.6–5.1 per cent); and Sri Lankan Tamils (3.9–4.3 per cent). The majority of Tamils live in the north and east of the country but a significant minority live outside those regions. Colombo has a population of approximately 2.25 million and approximately 248,000 Sri Lankan Tamils and 25,000 Indian Tamils live there (see United Kingdom Border and Immigration Agency Country of Origin Information Report on Sri Lanka, 3 March 2008 (“the March 2008 COI Report”), at paragraphs 1.03, 3.01, 20.11, and 20.14 with further references).", "54. The internal conflict in Sri Lanka began over twenty years ago and has continued intermittently ever since. The conflict is largely between the LTTE, who seek independence for Tamils, and Government forces. A ceasefire was signed between the Government and the LTTE in February 2002 and a peace process started. In 2004, after divisions appeared with the LTTE, the ceasefire came under increasing pressure.", "The most serious threat to the peace process was the assassination in August 2005 of Lakshman Kadirgamar, the Sri Lankan Minister of Foreign Affairs, after which violence in the country escalated and there were renewed clashes between Government forces and the LTTE (see the March 2008 COI Report at paragraphs 3.13–3.42 with further references). 55. Mr Kadirgamar’s assassination prompted the Sri Lankan Government to declare a state of emergency and introduce Emergency Regulations which gave the Government, the armed forces and law enforcement agencies broad counter-terrorism powers, including special powers of arrest and detention up to one year (see the March 2008 COI report at paragraphs 8.15–8.23 and 12.01–12.12 with further references). The regulations are reinforced by further such powers provided for in the Prevention of Terrorism Act, which was reinstated in December 2006 (see, inter alia, BBC News website story of 6 December 2006 and the 2006 United States of America Department of State Country Report on Human Rights Practices, quoted at paragraphs 3.26 and 8.15 of the COI Report respectively). Young Tamil men who are suspected of being LTTE members or supporters appear to be the primary target of arrests (see, inter alia, paragraph 3.7.18 of the United Kingdom Border and Immigration Agency Operational Guidance Note on Sri Lanka, set out at paragraph 58 below).", "The Emergency Regulations have been regularly extended, most recently on 6 February 2008 (see the same report at p. 10). 56. On 3 January 2008, the Government gave notice of their intention to withdraw from the ceasefire agreement. The withdrawal took effect on 16 January 2008 (the March 2008 COI Report at paragraphs 4.08 et seq.). A.", "United Kingdom Government reports 1. Operational Guidance Notes 57. Operational guidance notes (OGN) are prepared by the Border and Immigration Agency of the Home Office. They provide a brief summary of the general, political and human rights situation in the country and describe common types of claim. They aim to provide clear guidance on whether the main types of claim are likely to justify the grant of asylum, humanitarian protection or discretionary leave.", "58. The OGN on Sri Lanka of 5 November 2007 (which updated and replaced the previous note of 9 March 2007, the conclusions of which were virtually identical) contained the following conclusions on the main kinds of asylum, human rights and humanitarian protection claims made by those entitled to reside in Sri Lanka: “[At. 3.6.19 on claims made by those fearing reprisals from the LTTE] We do not accept UNHCR’s position that there is no internal flight alternative for individuals fleeing targeted violence and human rights abuses by the LTTE due to difficulties in travel because of the reinstatement of checkpoints and because of the inability of the authorities to provide ‘assured protection’ given the reach of the LTTE. UNHCR’s reliance on the concept of ‘assured protection’ is not a fundamental requirement of the Refugee Convention. In referring to ‘assured protection’, UNHCR are using a higher standard than the sufficiency of protection standard required by the Refugee Convention...Moreover, asylum and human rights claims are not decided on the basis of a general approach, they are based on the circumstances of the particular individual and the specific risk to that individual.", "It is important that case owners give individual consideration to whether the applicant has a well-founded fear of persecution for a convention reason or are otherwise vulnerable that they may engage our obligations under the ECHR. Applicants who fear persecution at the hands of the LTTE in LTTE dominated areas are able to relocate to Colombo, or other Government controlled areas and it would not normally be found to be unduly harsh for claimants to relocate in this way. Similarly, the Government is willing to offer to protection to [sic] those who have relocated from LTTE controlled areas and who still fear reprisals from the LTTE. ... [At 3.7.18 on claims made by those fearing persecution by the Sri Lankan authorities] Following the announcement of the cease-fire in February 2002, the Sri Lankan authorities de-proscribed the LTTE and suspended arrests made under the Prevention of Terrorism Act (PTA). The emergency regulations imposed in August 2005 which continue to be in place allow for the arrest of individuals by members of the armed forces and those detained may be held for up to one year.", "Young Tamil men who are suspected of being LTTE members or supporters appear to be the primary target of arrests. However, most are reportedly released quickly and it can therefore still be said that generally the authorities in Sri Lanka are not concerned with those individuals with past low-level support for the LTTE. Claims under this category are therefore likely to be clearly unfounded and fall to be certified as such. 3.7.19 Those individuals who may be of continuing interest to the authorities would be those wanted for serious offences. These cases will be exceptional, and will normally be high-profile members of the LTTE who are still active and influential, and wanted by the authorities.", "Such individuals may face prosecution on return, although there is no evidence to suggest that they would not be treated fairly and properly under Sri Lankan law. Claims made under this category are therefore not likely to lead to a grant of asylum or Humanitarian Protection but taking into account the continuing interest of the authorities in those of high profile, and the introduction of the emergency regulations such claims cannot be considered to be clearly unfounded. ... 3.7.20 There cannot be said to be a general sufficiency of protection available to those applicants who express fear of state officials after having made complaints to the Sri Lankan authorities with regard to, for example, the use of torture. However, internal relocation to LTTE areas may be an option where, in the particular circumstances of the applicant’s case, it is not considered unduly harsh for the victim to exercise this. The grant of asylum or Humanitarian Protection is unlikely therefore to be appropriate where there is an option of internal relocation.", "Such claims should only be certified as clearly unfounded if internal relocation is clearly an option.” 59. The OGN also found that with the introduction of the Emergency Regulations in August 2005, round ups and arrests of Tamils in “cordon and search operations” had taken place. Citing a report of the International Committee of the Red Cross (ICRC), it stated that most of those detained, generally young Tamil males, were taken into custody because they were unable to produce identification or explain the reason for being in a particular area. It also quoted the website “TamilNet” which had reported a number of large scale arrests between May and July 2007 of Tamil civilians in Wellawatte and Colombo city who were taken into custody on account of failure to prove identity or provide reasons for their stay in the location. Finally, the OGN stated that according to a letter dated 11 September 2007 from the British High Commission in Colombo, the operations did appear to target those in casual employment or with temporary accommodation, but whilst a proportion of those detained did end up in longer term detention, most were released quickly (at a paragraph 3.6.11 of the OGN).", "2. Letters from the British High Commission in Colombo 60. The March 2008 COI Report (at paragraphs 32.09 – 32.22), set out a number of extracts from a series of letters from the British High Commission in Colombo, which addressed the treatment of failed asylum seekers. At paragraph 32.09, the COI Report included an excerpt from a High Commission letter of 25 January 2008, which noted: “The BHC Risk Assessment Officer has recently visited the headquarters of CID [Criminal Investigations Department] in Colombo, and the ALO [Airline Liaison Officer] works closely with CID at Bandaranaike Airport. Both RAO and ALO recall that they have never seen any CID officers use a computer, and comment that neither their HQ nor airport offices has computers installed. The ALO added that CID officers at the airport record details in a notebook, whilst the RAO stated that officers in Colombo had typewriters on their desks.” The same paragraph of the COI Report noted that in a letter of 24 August 2006, the High Commission had previously reported: “The Sri Lankan authorities have a good IT system to track arrivals and departures at the main airport and are able to track, in most cases, whether an individual is in the country or not.” 61.", "According to the COI Report (at paragraphs 32.12 and 32.13), in a letter dated 26 September 2005 the High Commission stated: “We have spoken to the International Organisation of Migration locally about returns. They say that to their knowledge most returns are detained briefly and then released to their families. Our Airline Liaison Officer has contacted the Canadian, Australian and German Missions here, to ask about their experiences with returns. All of their experiences are similar. In August [2005] a charter plane returned approximately 40 failed asylum seekers from Germany.", "The Sri Lankan Police (CID) have told us that these were processed by them ‘in a few hours’. In general, the Sri Lankan Immigration Services and CID are informed in advance of the passenger’s arrival. The passenger is handed over to Immigration who briefly interview them and then hand them to CID. In most cases a record is kept by both of the returnees arrival and they are then allowed to proceed. Usually family are at the airport to meet them.", "In a few cases CID have detained people where there was an existing warrant for their arrest when they left Sri Lanka. DII (Directorate of Internal Intelligence) may also have an interest in these individuals and keep records on them. There is no reason to think that they have any information regarding asylum claims in the UK or elsewhere. There does not appear to be any involvement in the process by the Sri Lankan Army. ...", "The role of scarring is extremely difficult to assess, I have not found any detailed reports, but anecdotal evidence is that it can play a part in rousing suspicion. The key issue is not what triggers suspicion, but how suspects are treated. Membership of the LTTE and fundraising for the organisation are no longer criminal offences in Sri Lanka (although they are in the UK) so even if the authorities acted on their suspicion Sri Lankan law gives them limited powers to act. Unarmed members of the LTTE are permitted to operate in government areas under the 2002 ceasefire agreement.” 62. Paragraphs 32.14 and 32.15 of the COI report then quote the High Commission as stating in its letter of 24 August 2006 that: “There is strong anecdotal evidence that scarring has been used in the past to identify suspects.", "In my own conversations with the police and in the media the authorities have openly referred to physical examinations being used to identify whether suspects have undergone military style training. A UK based member of staff who was present during the processing of two recent returns at Colombo airport on 04/08 and 23/08 [2006] reported however that no such examinations took place, and that the returnees, both ethnic Tamils from the north of Sri Lanka, were able to make onward journeys with little delay. His observations support more recent claims from contacts in government ministries that this practice has either ceased or is used less frequently. At the very least it appears to only take place when there is another reason to suspect the individual rather than a routine measure for immigration returnees. ... Our own experience of the return of failed asylum seekers and the shared information of other missions, particularly the Canadians, and the International Organisation of Migration is quite clear.", "As we have reported earlier [26 September 2005] the vast majority are questioned for a short period of time to establish identity and possibly on security issues and then released. Normally only when there is an outstanding arrest warrant are individuals detained for longer periods.” 63. Finally, at paragraphs 32.20–32.22 the COI Report contained excerpts from the letter of 25 January 2008 which read as follows: “The Government of Sri Lanka’s decision to abrogate the ceasefire agreement will reduce further the provision [of] information regarding the treatment of returnees. Ceasefire monitors from Norway and the Sri Lankan Monitoring Mission (SLMM) will have no further role and will be unable to provide any information regarding returnees. ...", "The International Organisation for Migration (IOM) have advised the High Commission that whilst they monitor the persons who return from the UK under the Voluntary Assisted Return Programme (VARP) for up to 2 years, they do not monitor those who are forcibly returned. I was advised that even amongst the VARP returnees there were 2 cases in the last year where individuals have been arrested and detained. The first was a young Tamil male from Jaffna who was going through a reintegration programme in Colombo. Some 6 months after his return, he was stopped at a police checkpoint and detained, as he could provide no evidence of family in the capital. He was held at Boossa prison for one month before release, but is now back in the reintegration programme.", "The 2nd case also involved a Tamil male who was in the reintegration programme in Colombo. The circumstances of his arrest were somewhat different in that he had travelled to India on forged documentation and was apprehended by CID on his return to Colombo and detained. It could therefore be argued that there might have indeed been justification for this. ... IOM have also become involved with returnees who have forcibly been removed from the UK, providing post-arrival assistance. Ostensibly, this is to provide travel assistance to a chosen address.", "At time of writing IOM had been notified of 32 potential removals under this arrangement, of which they received only 8 returnees. Whilst a majority of the ones that did not arrive undoubtedly earned last minute reprieves in the UK by one means or another, IOM could not be 100% certain that some were not detained on arrival at Colombo Airport. IOM are under instructions not to approach these returnees until they have gone through all of the arrival procedures. FCO Migration Directorate has recently installed a Migration Delivery Officer at the High Commission in Colombo. His role will include liaison between the UK Border & Immigration Agency, the Sri Lankan Department of Immigration & Emigration and IOM, and will assist in the monitoring of such persons following their removal from the UK.” 64.", "According to information provided to the Court by the Government, of above thirty-two returns, twenty-two were cancelled for a number of reasons such as judicial review proceedings being lodged, injunctions being granted by the High Court and this Court making indications under Rule 39 of the Rules of Court. Eight of the returnees were successfully met outside the airport by IOM. In the remaining two cases, removals were made but the individuals concerned did not make themselves known to the IOM officer on arrival in Colombo. The Government had established that one of the two was in the Netherlands and they continued to make enquiries into the whereabouts of the other individual concerned. B.", "United Nations reports 1. UNHCR Position on the International Protection Needs of Asylum Seekers from Sri Lanka (“the UNHCR Position Paper”) 65. On 22 December 2006, the United Nations High Commissioner for Refugees published the above paper, observing that there had been several major developments in the country which fundamentally affected the international protection needs of individuals from Sri Lanka who sought, or who had sought, asylum abroad. After surveying the escalation in fighting between Government forces and the LTTE and its impact on the civilian population, the paper turned to the human rights situation. Tamils from the north and east were at risk of targeted violations of their human rights from all parties to the armed conflict, including harassment, intimidation, arrest, detention, torture, abduction and killing at the hands of government forces, the LTTE and paramilitary or armed groups.", "Where an individual sought to escape from the LTTE, even if they reached government-controlled areas, this did not necessarily mean that he or she would be able to secure the protection of the authorities given the LTTE’s capacity to track down and target its opponents throughout the country. The position paper also considered the human rights situation for Tamils in Colombo and stated: “23. Tamils in Colombo and its outskirts, where there are large Tamil communities, are at heightened risk of security checks, arbitrary personal and house to house searches, harassment, restrictions on freedom of movement, and other forms of abuse since the imposition of new security regulations in April and December 2006. 24. Under emergency regulations, the police are empowered to register all persons within the jurisdiction of each police station.", "These regulations, which were enacted during the height of the conflict in the 1990s, remain in place and require all residents to register with their local police station. Such registration, which is taking place in Colombo, enables the police to have accurate information on the ethnicity and location of all inhabitants of Colombo. 25. Tamils in Colombo are especially vulnerable to abductions, disappearances and killings. Such actions are allegedly conducted by the paramilitary ‘white vans’ suspected to be associated with the security forces, as well as by the Karuna faction and the LTTE.", "According to press reports, some 25 Tamils were abducted in Colombo and its suburbs between 20 August and 2 September 2006, with only two of these people confirmed released. The whereabouts and fate of the rest remain unknown. Young Tamil professionals including several women, businessmen, as well as Tamil political figures and activists with a pro-Tamil stance can be specifically targeted (footnotes omitted).” 66. The paper also noted that Muslims from the east were also particularly vulnerable to human rights abuses from the parties to the conflict and that Sinhalese from the north and east were vulnerable to the generalised violence there. For the latter, there was protection from generalised violence in government-controlled areas but no protection from the LTTE, if they were targeted by it.", "67. UNHCR recommended that all asylum claims of Tamils from the north or east should be favourably considered. Where individual acts of harassment did not in and of themselves constitute persecution, taken together they could cumulatively amount to a serious violation of human rights and therefore be persecutory. Where an individual did not fulfil the refugee criteria under the United Nations Convention Relating to the Status of Refugees of 1951, a complementary form of protection was to be granted. Tamils from Colombo were to be recognised as refugees if subjected to targeted violations of human rights by the LTTE, the authorities or paramilitary groups.", "Again, where individual acts of harassment did not in and of themselves constitute persecution, taken together they could cumulatively amount to a serious violation of human rights and therefore be persecutory. A similar recommendation was made for Muslims. For Sinhalese, those who were targets of persecution from the LTTE or other non-state agents should be accorded recognition as refugees. 68. For those asylum seekers from Sri Lanka whose claims had previously been examined and had been found not to be in need of international protection, the Position Paper recommended a review of their claims in light of the new circumstances it had described.", "2. The United Nations High Commissioner for Human Rights 69. After her visit to Sri Lanka in October 2007, the United Nations High Commissioner for Human Rights, Louise Arbour, issued a press statement on 13 October 2007 in which she noted: “Sri Lanka has many of the elements needed for a strong national protection system. It has ratified most of the international human rights treaties. It has justiciable human rights guarantees in the Constitution.", "It has longstanding democratic and legal traditions. It has had a national human rights commission for more than a decade. Sri Lanka has an active media and benefits from a committed civil society. However, in the context of the armed conflict and of the emergency measures taken against terrorism, the weakness of the rule of law and prevalence of impunity is alarming. There is a large number of reported killings, abductions and disappearances which remain unresolved.", "This is particularly worrying in a country that has had a long, traumatic experience of unresolved disappearances and no shortage of recommendations from past Commissions of Inquiry on how to safeguard against such violations. While the Government pointed to several initiatives it has taken to address these issues, there has yet to be an adequate and credible public accounting for the vast majority of these incidents. In the absence of more vigorous investigations, prosecutions and convictions, it is hard to see how this will come to an end. ... Throughout my discussions, government representatives have insisted that national mechanisms are adequate for the protection of human rights, but require capacity building and further support from the international community.", "In contrast, people from across a broad political spectrum and from various communities have expressed to me a lack of confidence and trust in the ability of existing relevant institutions to adequately safeguard against the most serious human rights abuses. In my view the current human rights protection gap in Sri Lanka is not solely a question of capacity. While training and international expertise are needed in specific areas, and I understand would be welcomed by the Government, I am convinced that one of the major human rights shortcomings in Sri Lanka is rooted in the absence of reliable and authoritative information on the credible allegations of human rights abuses.” 3. The United Nations Special Rapporteur on Torture 70. After his visit to Sri Lanka on 1–8 October 2007, the United Nations Special Rapporteur on Torture issued a press release (dated 29 October 2007) in which he concluded: “Though the Government has disagreed, in my opinion the high number of indictments for torture filed by the Attorney General’s Office, the number of successful fundamental rights cases decided by the Supreme Court of Sri Lanka, as well as the high number of complaints that the National Human Rights Commission continues to receive on an almost daily basis indicates that torture is widely practiced in Sri Lanka.", "Moreover, I observe that this practice is prone to become routine in the context of counter-terrorism operations, in particular by the TID [Terrorism Investigation Department]. Over the course of my visits to police stations and prisons, I received numerous consistent and credible allegations from detainees who reported that they were ill-treated by the police during inquiries in order to extract confessions, or to obtain information in relation to other criminal offences. Similar allegations were received with respect to the army. Methods reported included beating with various weapons, beating on the soles of the feet (falaqa), blows to the ears (‘telephono’), positional abuse when handcuffed or bound, suspension in various positions, including strappado, ‘butchery’, ‘reversed butchery’, and ‘parrot’s perch’ (or dharma chakara), burning with metal objects and cigarettes, asphyxiation with plastic bags with chilli pepper or gasoline, and various forms of genital torture. This array of torture finds its fullest manifestation at the TID detention facility in Boossa.", "Intimidation of victims by police officers to refrain from making complaints against them was commonly reported, as were allegations of threats of further violence, or threatening to fabricate criminal cases of possession of narcotics or dangerous weapons. Detainees regularly reported that habeas corpus hearings before a magistrate either involved no real opportunity to complain about police torture given that they were often escorted to courts by the very same perpetrators, or that the magistrate did not inquire into whether the suspect was mistreated in custody. Medical examinations were frequently alleged to take place in the presence of the perpetrators, or directed to junior doctors with little experience in documentation of injuries.” C. United States of America Department of State Report 71. In its 2007 Country Report on Human Rights Practices – Sri Lanka, dated 11 March 2008, the State Department observed: “The government’s respect for human rights continued to decline due in part to the escalation of the armed conflict. While ethnic Tamils composed approximately 16 percent of the overall population, the overwhelming majority of victims of human rights violations, such as killings and disappearances, were young male Tamils.", "Credible reports cited unlawful killings by government agents, assassinations by unknown perpetrators, politically motivated killings and child soldier recruitment by paramilitary forces associated with the government, disappearances, arbitrary arrests and detention, poor prison conditions, denial of fair public trial, government corruption and lack of transparency, infringement of religious freedom, infringement of freedom of movement, and discrimination against minorities. There were numerous reports that the army, police, and pro-government paramilitary groups participated in armed attacks against civilians and practiced torture, kidnapping, hostage-taking, and extortion with impunity. The situation deteriorated particularly in the government-controlled Jaffna peninsula. By year’s end extrajudicial killings occurred in Jaffna nearly on a daily basis and allegedly perpetrated by military intelligence units or associated paramilitaries. There were few arrests and no prosecutions as a result of these abuses, although a number of older cases continued to make slow progress through the judicial system.", "Government security forces used the broad 2005 emergency regulations to detain civilians arbitrarily, including journalists and members of civil society. The LTTE, which maintained control of large sections of the north, continued to attack civilians and engage in torture and arbitrary arrest and detention; denied fair, public trials; arbitrarily interfered with privacy; denied freedoms of speech, press, and assembly and association; and forced recruitment, including of children. The LTTE was also active in areas it did not control and during the year carried out at least one politically motivated killing in Trincomalee, a politically motivated suicide attack in Colombo, a suicide attack against a government army base near Batticaloa, a bombing of civilian shoppers in a suburb of Colombo, and bombings of civilian buses in the south.” 72. In the section of the report entitled “Arrest and Detention”, the State Department noted, inter alia: “Between November 30 and December 3, in response to two LTTE bomb attacks in and around Colombo, the police conducted random cordon and search operations and arrested nearly 2,500 Tamils in the capital and an estimated 3,500 countrywide. The detained, mostly male Tamil civilians were reportedly arrested based solely on their Tamil surnames.", "The vast majority of the detainees were soon released. The Supreme Court ordered the government to release the detainees on bail if they were no longer required for questioning. By year’s end only 12 of the 372 arrestees held in the Boossa detention camp were still in custody.” 73. The report also documented the arrest of forty-eight Tamils in a lodge in a Colombo suburb on 6 October 2007 after the Supreme Court had intervened to prevent the police carrying out such forcible removals in June (see paragraph 79 below). D. The Immigration and Refugee Board of Canada 74.", "On 22 December 2006, the Immigration and Refugee Board of Canada published the following “response to information request” on the treatment of failed asylum seekers returning to Sri Lanka, which provides: “In 19 December 2006 correspondence to the Research Directorate, an official at the Canadian High Commission in Colombo provided corroborating information [in reference to the letter from the British High Commission in Colombo dated 26 September 2005: see paragraphs 60–63 above] on the return of failed asylum seekers to Sri Lanka, stating that [r]eturnees, if identified to the airlines as such by immigration authorities who are removing them to Sri Lanka, have an established process awaiting them upon arrival. First, the Chief Immigration Officer (arrivals) documents the arrival of the person, takes a statement, and determines whether the returnee should be granted entry as a Sri Lankan national. Next an officer of the State Intelligence Service (SIS) documents the arrival and takes a statement. Finally, an officer of the Criminal Investigation Department (CID) of the Sri Lanka Police documents the arrival, checks for outstanding warrants and takes a statement. If there is an outstanding warrant for arrest, the returnee may be arrested.", "Otherwise, the returnee is free to go. Persons with previous problems with the authorities An October 2006 report published by Hotham Mission’s Asylum Seeker Project (ASP), an Australian non-governmental organization (NGO) that ‘works with asylum seekers in the community’ (Hotham Mission n.d.), similarly notes that persons returning to Sri Lanka who have had previous problems with the government of Sri Lanka may be detained by the police upon their arrival (47). According to the report, persons who have been detained or questioned in the past are more likely to be arrested and, because of the state of emergency and ongoing conflict in the country, ‘may face further human rights violations, such as torture’ (Hotham Mission Oct. 2006, 47). The report also notes that Sri Lanka’s National Intelligence Bureau keeps records on people dating back more than ten years and, since 2004, has been using a national computerized database (ibid.). Persons travelling without valid identity documents Persons who leave Sri Lanka using false documents or who enter the country under irregular or suspicious circumstances are reportedly more likely to be singled out and questioned under the country’s current state of emergency (ibid.", "; see also Daily News 15 Sept. 2006). The state of emergency reportedly permits the Sri Lankan authorities to make arrests without warrant and to detain persons for up to 12 months without trial (US 8 Mar. 2006). Under Section 45 of the country’s Immigrants and Emigrants Act, amended in 1998, persons found guilty of travelling with forged documents may be subject to a fine of between 50,000 and 200,000 Sri Lankan Rupees (LKR) [approximately CAD 533 (XE.com 12 Dec. 2006a) to CAD 2,133 (ibid. 12 Dec. 2006b)] and a jail term ranging from one to five years (Sri Lanka 1998).", "Tamil asylum seekers with scars Cited in an October 2006 UK Home Office report, a 1 January 2005 position paper by the Office of the United Nations High Commissioner for Refugees (UNHCR) indicates that Tamil asylum seekers with scars may be more likely to be questioned and experience ‘ill-treatment’ by the Sri Lankan security forces upon their return to Sri Lanka (31 Oct. 2006, 126). The paper states that [the] UNHCR maintains its position ... that ‘Tamil asylum seekers with scars, should they be returned to Sri Lanka, may be more prone to adverse identification by the security forces and taken for rigorous questioning and potential ill-treatment’ ... Please note that the UNHCR’s comments are strictly limited to the risk of adverse identification, rigorous questioning, and potential ill-treatment of returned persons with scars upon their arrival at the airport, not the potential risk of arrest subsequent to the initial interrogation at the airport. (UK 31 Oct. 2006, 126) A 24 August 2006 letter from the British High Commission in Colombo, cited in the October 2006 UK report suggests, however, that physical examinations of returnees conducted by the authorities are less common or have ceased altogether. The letter states that [t]here is strong anecdotal evidence that scarring has been used in the past to identify suspects.", "In ... conversations with the police and in the media, the authorities have openly referred to physical examinations being used to identify whether suspects have undergone military style training. ... [R]ecent claims from contacts in government ministries [indicate] that this practice has either ceased or is used less frequently. At the very least, it appears to only take place when there is another reason to suspect the individual rather than [as part of] a routine measure for immigration returnees. (UK 31 Oct. 2006, 127) Further information from 2005 and 2006 on whether Tamils asylum seekers with scars would be targeted by Sri Lankan security forces upon their return could not be found among the sources consulted by the Research Directorate. Persons with an affiliation to the LTTE or other political groups The October 2006 Hotham Mission report cites information obtained during consultations with the Sri Lanka Monitoring Mission (SLMM), a body of international observers that monitors the ceasefire agreement between the Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE) (SLMM n.d.), concerning the return of failed asylum seekers (47).", "The SLMM indicates that if a person returning to Sri Lanka has any previous affiliation with the LTTE, they may be targeted by the police (ibid.). The organization also notes that if a person has previous affiliations to certain individuals or political groups, they may be targeted by the LTTE (ibid.). The SLMM provides the example of persons who have been members of the People’s Liberation Organisation of Tamil Eelam (PLOTE), an inactive Tamil militant organization (SATP n.d.), who were still being targeted by the LTTE in Sri Lanka at the time the Hotham Mission report was published (Hotham Mission Oct. 2006, 47). Persons returning from abroad Persons returning from abroad may also be subject to extortion (Sri Lanka 27 Nov. 2006; Hotham Mission Oct. 2006, 49). According to the Hotham Mission report, in some instances, returnees have been pressured into paying immigration officials to be able to pass through the airport without incident (ibid.).", "The report also indicates that, across Sri Lanka, wealthy businessmen are being kidnapped for ransom and that ‘people returning from overseas may be a target, as it will be assumed that they have money’ (ibid.). A 27 November 2006 article by the Media Centre for National Security, a division of Sri Lanka’s Ministry of Defence, Public Security, Law and Order, provides a listing of ‘extortion rates of the LTTE.’ According to the article, the LTTE charges 500 LKR [approximately CAD 5.30] per journey to persons returning from abroad (Sri Lanka 27 Nov. 2006). Returnees from Canada In 19 December 2006 correspondence, an official at the Canadian High Commission in Sri Lanka indicated that ‘[s]ince 2004 ... no returnees from Canada have been arrested or experienced negative repercussions at the airport or after exiting the airport grounds in Sri Lanka. Sri Lankan authorities who have dealt with the returnees have carried out their duties in a professional manner in compliance with international norms.’” E. Non-governmental Organisations’ reports 1. The Independent International Group of Eminent Persons 75.", "In November 2006, the President of Sri Lanka appointed a Commission of Inquiry to investigate and inquire into sixteen incidents of alleged serious violations of human rights, including abductions, disappearances and extra-judicial killings. The President subsequently invited eleven eminent persons to form the Independent International Group of Eminent Persons (“the IIGEP”) to observe the Commission’s work and to comment on the transparency of its investigations and inquiries and their conformity with international norms and standards. By a public statement released on 6 March 2008, the IIGEP announced its decision to terminate its operation in Sri Lanka, concluding that the proceedings had fallen far short of the transparency and compliance with basic international norms and standards pertaining to investigations and inquiries. 2. Amnesty International 76.", "In its 2007 Annual Report (“The State of the World’s Human Rights”), Amnesty International noted that in 2006 the human rights situation in Sri Lanka had deteriorated dramatically. Unlawful killings, recruitment of child soldiers, abductions, enforced disappearances and other human rights violations and war crimes had increased. Civilians had been attacked by both sides as fighting escalated between the Sri Lankan Government and the LTTE. Hundreds of civilians had been killed and injured and more than 215,000 people displaced by the end of 2006. Homes, schools and places of worship had been destroyed.", "Although both sides maintained they were adhering to the ceasefire agreement, by mid-2006 it had in effect been abandoned. A pattern of enforced disappearances in the north and east re-emerged. There were reports of torture in police custody; perpetrators continued to benefit from impunity. 77. In its 2008 Annual Report of the same title, Amnesty International further noted that “2007 was characterized by impunity for violations of international human rights and humanitarian law”.", "It stated that “soaring human rights abuses” included hundreds of enforced disappearances, unlawful killings of humanitarian workers, arbitrary arrests and torture. The report also stated that the Sri Lankan police had conducted mass arrests of more than 1,000 Tamils, allegedly in response to the suicide bombings carried out in Colombo on 28 November 2007. The arrests said to have been made on arbitrary and discriminatory grounds using sweeping powers granted by the Emergency Regulations. The report also quoted unnamed reports as stating that “Tamils were bundled in bus loads and taken for interrogation”. The report further alleged that more than four hundred of those arrested, including fifty women, were taken to the Boosa Camp near Galle and held in poor conditions of detention.", "3. Human Rights Watch a. Return to War: Human Rights Under Siege 78. In the above report of August 2007, Human Rights Watch characterised Sri Lanka as being in the midst of a human rights crisis and found responsibility lay with both the Government and the LTTE. The report catalogued instances of human rights abuses during the armed conflict, including abductions, disappearances and arbitrary arrests and detentions.", "It also found there to have been a crackdown on dissent, a culture of impunity for human rights violations and an abuse of the Emergency Regulations introduced by the Government (see paragraph 55 above). It found that ethic Tamils had suffered the brunt of abuses but members of the Muslim and Sinhalese ethnic groups had also been the victims of Government human rights violations. The report also noted that the Government had detained an undetermined number of people (reaching into the hundreds) under the Emergency Regulations, with young Tamil males being the primary targets. The report also noted that on the Government’s own figures, Tamils constituted the overwhelming majority of those detained. Large-scale arrests were said to be particularly common after attacks attributed to the LTTE.", "79. The report also recorded attempts in early June 2007 by the Sri Lankan police to evict Tamils staying at lodges in and around Colombo and to transport them to LTTE controlled areas. On 8 June 2007, the Supreme Court issued an order preventing the police and others from continuing the expulsions or restricting the free movement of Tamils in and out of Colombo. b. Recurring Nightmare: State Responsibility for Disappearances and Abductions in Sri Lanka 80. In a further report published in March 2008, Human Rights Watch documented ninety-nine instances of disappearances, which it alleged were, for the most part, attributable to Government security forces.", "The report stated that the vast majority of the victims were ethnic Tamils, although Muslims and Sinhalese had also been targeted, with individual being targeted primarily because of their alleged membership in or affiliation to the LTTE. Young Tamil men were among the most frequent targets, though civil society activists were also among those who had disappeared. The report characterised the Government’s investigation and response to the disappearances as “grossly inadequate”. 4. The International Crisis Group 81.", "In a report of 20 February 2008, entitled “Sri Lanka’s Return to War: Limiting the Damage, Asia Report No. 146”, the International Crisis Group commented on the rising ethnic tensions in Sri Lanka since the collapse of the ceasefire and in particular observed: “With the collapse of the ceasefire, the LTTE’s return to terror attacks and the government’s counter-terrorism measures, fear and inter-ethnic tension have grown significantly. Tamils increasingly see themselves, not the Tigers, as the government’s target. The decision in June 2007 to evict some 375 Tamils from hotels and boarding houses in Colombo and bus them ‘home’ to the north and east and to the central hill country was a major blow to confidence. This was followed by mass round-ups of more than 2,500 in Colombo in early December after a series of bomb attacks blamed on the Tigers.", "[the accompanying footnote refers to a Government press release of 5 December 2007] The arrests were disorganised and indiscriminate, affecting many long-established residents of the capital with proper identification. More than 400 were sent to detention centres in the south. Most were released within a week, but the experience was a shock. Many felt such ‘security measures’ were meant to send a message that all Tamils pose a security threat and are unwelcome in Colombo or Sinhalese areas. Tamils from the north and east are particularly vulnerable (footnotes omitted).” 82.", "The report also observed that violations of civil and political rights were widespread, with the majority and worst in the north and east of the country. There were daily occurrences of political killings and disappearances. Both sides were responsible but additionally on the government side there appeared to be no prosecutions for human rights violations and an unwillingness on the part of the police to investigate killings, disappearances and abductions. Other government institutions were “equally ineffective”. 5.", "Medical Foundation for the Care of Victims of Torture 83. The Medical Foundation for the Care of Victims of Torture is a United Kingdom registered charity which provides medical and other rehabilitative support for victims of torture. In a 2007 report, submitted by the Government as part of their observations in the present case, and entitled “Torture once again rampant in the Sri Lanka conflict”, the Foundation summarised the work it had done with Sri Lankan clients. The report stated that the overwhelming majority of Sri Lankans seen by the Foundation were Tamil and the majority of them were young males. The report stated that its findings “challenged the UK Government’s readiness to return unsuccessful asylum applications to Sri Lanka where they might face further abuse”.", "F. Other relevant sources 1. The British Broadcasting Corporation 84. On 19 August 2007, the British Broadcasting Corporation’s Sinhala website quoted Amnesty International as stating that three Tamil men had been held incommunicado in Colombo after having been returned there from Thailand. A Sri Lankan police spokesman was also quoted as stating that the men had been detained on immigration charges but refuted the allegation that they were being held incommunicado. Amnesty International also stated that the applications for political asylum in Thailand by the three men were refused by UNHCR.", "The story was recorded in the March 2008 COI Report at paragraph 8.16 and at paragraph 8.15 of the previous, November 2007 version of the same report. 2. The Sri Lankan Government 85. From a press release available on the official website of the Government of Sri Lanka, the Chief Government Whip, Jeyaraj Fernandopulle, gave the following information at a press briefing on 4 December 2007. The Government had released 2,352 persons out of a total of 2,554 persons taken into custody during search operations conducted the previous weekend.", "1,959 had been released on the day of arrest and another 393 were released following identification. The remaining 202 persons had been remanded or kept under detention orders. THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTION AND ADMISSIBILITY A. The parties’ observations 86.", "The Government submitted that the application should be rejected for non-exhaustion of domestic remedies, as the applicant had failed to maintain his judicial review application, listed for 17 May 2007, especially since any refusal at that oral hearing carried the right of appeal to the Court of Appeal. The applicant had similarly failed to appeal against the original decision of the Adjudicator. They further referred to the fact that the applicant had given apparently contradictory explanations for his decision to withdraw his application for judicial review. Doubt had to be cast on the accuracy of the applicant’s explanation (see paragraph 87 below) that his solicitors were informed by counsel that this was a “pre-LP” case since LP was not promulgated until 6 August 2007 and thus counsel could not have known before the applicant’s judicial review hearing on 17 May 2007 what the outcome of LP would be. There was no direct evidence that the applicant’s counsel had advised him that there was no prospect of success.", "87. In response, the applicant submitted the letter from his previous representatives to his representatives before this Court and summarised at paragraph 19 above. He further relied on H. v. the United Kingdom, no. 10000/82, Commission decision of 4 July 1983, Decisions and Reports (DR) 33, p. 247 and argued that where counsel had advised a remedy had no prospect of success, it was not to be considered an effective remedy for the purposes of Article 35 § 1 of the Convention. Any possible appeal from the Adjudicator’s determination had been overtaken by the lodging of a fresh asylum claim on 29 March 2006.", "The domestic authorities had every opportunity to provide redress and had ample opportunity to consider the merits of his case. B. The Court’s assessment 88. The Court recalls that the rule of exhaustion of domestic remedies in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time, namely, that the remedy was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see T. v. the United Kingdom [GC], no.", "24724/94, 16 December 1999, § 55). Article 35 must also be applied to reflect the practical realities of the applicant’s position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (Hilal v. the United Kingdom (dec.), no. 45276/99, 8 February 2000). 89. The Court has consistently held that mere doubts as to the prospects of success of national remedies do not absolve an applicant from the obligation to exhaust those remedies (see, inter alia, Pellegrini v. Italy (dec.), no.", "77363/01, 26 May 2005; MPP Golub v. Ukraine (dec.), no. 6778/05, 18 October 2005; and Milosevic v. the Netherlands (dec.), no. 77631/01, 19 March 2002). However, it has also on occasion found that where an applicant is advised by counsel that an appeal offers no prospects of success, that appeal does not constitute an effective remedy (see Selvanayagam v. the United Kingdom (dec.), no. 57981/00, 12 December 2002; see also H. v. the United Kingdom, cited above; and McFeeley and others v. the United Kingdom, no.", "8317/78, Commission decision of 15 May 1980, Decisions and Reports (DR) 20, p. 44). Equally, an applicant cannot be regarded as having failed to exhaust domestic remedies if he or she can show, by providing relevant domestic case-law or any other suitable evidence, that an available remedy which he or she has not used was bound to fail (Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 156, ECHR 2003‑VI; Salah Sheekh v. the Netherlands, no. 1948/04, §§ 121 et seq., ECHR 2007‑... (extracts)). 90.", "In determining whether the applicant in the present case has exhausted domestic remedies for the purposes of Article 35 § 1 of the Convention, the Court first observes that where the applicant seeks to prevent his removal from a Contracting State, a remedy will only be effective if it has suspensive effect (Jabari v. Turkey (dec.), no. 40035/98, 28 October, 1999). Conversely, where a remedy does have suspensive effect, the applicant will normally be required to exhaust that remedy (Bahaddar v. the Netherlands, judgment of 19 February 1998, Reports of Judgments and Decisions 1998‑I, §§ 47 and 48). Judicial review, where it is available and where the lodging of an application for judicial review will operate as a bar to removal, must be regarded as an effective remedy which in principle applicants will be required to exhaust before lodging an application with the Court or indeed requesting interim measures under Rule 39 of the Rules of Court to delay a removal. This is particularly so when a claim for judicial review is defined in the domestic law of the respondent State, inter alia, as a claim to review the lawfulness of a decision (see paragraph 28 above) and section 6(1) of the Human Rights Act provides that it is unlawful for a public authority, which would include the Secretary of State, to act in a way which is incompatible with a Convention right (see paragraph 27 above).", "91. In the present case, while the Court notes the Government’s concern as to the veracity of the account furnished by the applicant in respect of counsel’s advice, it nonetheless considers that for the following reasons it is unnecessary to rule on this aspect of the Government’s preliminary objection. It is clear that the basis for the applicant’s fresh asylum claim and successive applications for permission to apply for judicial review was the deterioration in the security situation in Sri Lanka. By the time the applicant’s case was listed for an oral hearing, three of the four High Court judges who had considered the applicant’s claim had formed the view that the situation in Sri Lanka had deteriorated but that in itself was not sufficient to alter either the Adjudicator or the Secretary of State’s decisions (see paragraphs 12, 13, 16 and 17 above). As the Court has observed, Article 35 must be applied to reflect the practical realities of the applicant’s position.", "Notwithstanding its view expressed above, that an application for judicial review is in principle an effective remedy in such cases, the Court also considers that applicants cannot reasonably be expected continually to make applications for permission to apply for judicial review where previous such applications have failed. In the circumstances of the applicant’s case, the Court finds that, having regard to the practical realities of his position, he could not reasonably be expected to have renewed his application for permission to apply for judicial review at the oral hearing since by that stage it could not be said that the application had any reasonable prospects of success. 92. The Court therefore rejects the Government’s preliminary objection on non-exhaustion. It further notes that the application is not inadmissible on any other grounds.", "It must therefore be declared admissible. II. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION 93. The applicant complained that it would expose him to a real risk of being subjected to treatment in breach of Article 3 of the Convention and/or a violation of Article 2 if he were to be returned to Sri Lanka. Articles 2 and 3 provide, so far as relevant, as follows: “Article 2 1.", "Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ... Article 3 No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 94. The Government contested that argument and also argued that the applicant’s complaint under Article 2 was indissociable from his complaint under Article 3.", "95. The Court agrees with the Government that it is more appropriate to deal with the complaint under Article 2 in the context of its examination of the related complaint under Article 3 and will proceed on this basis (Said v. the Netherlands, no. 2345/02, § 37, ECHR 2005‑VI; D. v. the United Kingdom, judgment of 2 May 1997, Reports 1997‑III, § 59). A. The parties’ submissions 1.", "The applicant 96. The applicant relied on the AIT determination in LP, the UNHCR Position Paper and the reports by Amnesty International and Human Rights Watch (see paragraphs 30–46, 65–68, 76 and 78–79 above), as evidence of a general decline in the human rights situation in Sri Lanka. This demonstrated that the Court would need to reassess its findings in Venkadajalasarma v. the Netherlands, no. 58510/00 and Thampibillai v. the Netherlands, no. 61350/00, judgments of 17 February 2004, where it had found that, at the time, the considerable improvement in the security situation in Sri Lanka meant the return of two Tamils who had provided low-level support to the LTTE would not give rise to a violation of Article 3.", "In particular, the UNHCR Position Paper, in contrast to the Home Office Operational Guidance Note of 9 March 2007, suggested a much broader risk to Tamils than simply a risk to high profile Tamils. It was also not possible for the Government to rely on the AIT’s determination in PS on the sufficiency of protection from the LTTE in Colombo since the risk to the applicant also came from the Sri Lankan authorities. 97. The applicant relied on the AIT’s determination in LP and identified nine of the twelve risk factors set out in that determination which applied to him and which, he argued, increased the risk of harm to him at the hands of the Sri Lankan authorities. First, he was a young male Tamil from the north-east of the country and thus clearly at a higher risk of both persecution from the Sri Lankan authorities and forced recruitment by the LTTE than many ethnic Tamils.", "The LTTE had already tried twice to recruit him. Second, he had a previous record as a suspected LTTE member and had been arrested and ill-treated on six occasions because of this suspicion. The fact that he had been photographed and his fingerprints taken meant there was a record of his detention. Third, and on the same grounds, the risk factor of a previous criminal record or arrest warrant also applied to him. Fourth, after each detention the applicant was released without charge but during his last detention his father secured his release by signing a suspicious document indicating that his release was abnormal and akin to those who were at greater risk because they had jumped bail or escaped from custody.", "Fifth, while he was not aware of the content of the document his father had signed, when considered with the taking of his photograph and fingerprints, this placed him in the same category as someone who had signed a confession or similar document. Against the background of the current situation in Sri Lanka, it was reasonable to assume that the document, whatever its content, could be used against him on his return. Sixth, the scars he bore from his ill-treatment were clearly relevant, though he observed that the LP determination indicated that this was not determinative. Seventh, in respect of his return from London, he did not claim to have been fund-raising for the LTTE or that the Sri Lankan High Commission was aware of his involvement with the LTTE so his return from London would not be sufficient. However, since suspicion fell on those previously known to the authorities and returned from London, this factor contributed cumulatively to the risk he would face if returned.", "The same considerations applied to the eighth factor he identified, having made an asylum claim abroad. The ninth and final factor, having relatives in the LTTE, was of particular significance to the applicant given his brother’s associations with the LTTE and the LTTE’s suspicion that his father had informed on them to the army. 98. Relying further on the UNHCR Position Paper, the applicant considered that in respect of the risk to him from the LTTE, there was no internal flight alternative available to him since he was also at risk from the Sri Lankan authorities in Government-controlled areas. In Salah Sheekh, cited above (§ 148), the Court had accepted the general statements made by the UNHCR on the situation in the “relatively unsafe” areas of Somalia in so far as members of the Ashraf minority were concerned and the absence of any internal flight alternative.", "He argued that in Sultani v. France, no. 45223/05, ECHR 2007‑... (extracts) the Court had again accepted that it may only be necessary for an applicant to prove that he belongs to a minority group that is particularly at risk. As demonstrated by the UNHCR Position Paper, the present applicant belonged to an ethnic group for whom no safe area existed. Even if the Court did not accept such a generalised approach, in light of the applicant’s particular circumstances, the real risk to him was sufficient to make internal flight unavailable. 99.", "It was also not open to the Government to rely on their own country information in contradiction to the recommendations of the UNHCR Position paper since it would allow Contracting States to avoid their Convention obligations by invoking their own information instead of objective information collected by independent bodies. 100. Finally, the applicant relied on Council Directive 2004/83/EC and submitted that under Article 53 of the Convention the level of protection offered by the Convention had to be equal or higher to that in the Directive. 2. The Government 101.", "While the Government did not accept that there was a real risk to the applicant in any area of Sri Lanka, the latest objective country information made it clear that an individual in the applicant’s position would not be at risk in Colombo, where they sought to return him. They relied on the Court’s rulings in Venkadajalasarma and Thampibillai, cited above. The Court’s findings in those cases were reflected in the AIT’s country guidance determination in PS (see paragraph 47 above). In the light of the domestic authorities’ decisions in the present applicant’s case, a fortiori, there would be no violation if he were to be returned. 102.", "It was necessary to consider whether the situation in Sri Lanka had changed sufficiently to mean that removal there would be a violation of Article 3, but the Government relied on the findings of the domestic authorities that, in the circumstances of the applicant’s case, the situation had not changed sufficiently to warrant such a conclusion. The Government relied on the Home Office Operational Guidance Notes of 9 March 2007 and 5 November 2007 and the AIT’s determination in LP (see paragraphs 58–59 and 30–46 above). The UNHCR Position Paper of December 2006 had been carefully considered by the Government when it prepared the Operational Guidance Notes. Such UNHCR Position Papers had to be understood in their true context and in this connection the Government relied on the Immigration Appeal Tribunal’s determination in NM and Others (see paragraphs 48 et seq. above) and the finding there that such papers were to be treated with care since language used by the UNHCR was not framed by reference to the Convention and the high threshold of Article 3 as understood in this Court’s case-law.", "This was accepted by the AIT in LP and indeed the particular position paper of December 2006 had been duly considered by it. According to the BBC’s report of 19 August 2007, the UNHCR in Thailand had itself refused the asylum claims of three Tamils (see paragraph 84 above). 103. In respect of the nine risk factors relied on by the applicant, the Government adopted the approach to assessing these risk factors which had been set out in LP and argued that the applicant had provided no evidence either to the domestic authorities or this Court to substantiate the assertion that these risk factors were engaged in his particular case and even less so that they would lead to a real risk of treatment contrary to Article 3. The risk to him as a young male Tamil was only relative to the risk to other Tamils.", "There was an express finding by the Adjudicator that there was no record of his even having been involved with the LTTE and there was no evidence that he had a criminal record. The applicant had not jumped bail or escaped from custody. The Government thus relied on the fact that in LP the AIT had made it clear that while someone who had escaped from custody or jumped bail would be at a higher risk of being identified at Colombo airport, it would be very different if a person had merely been informally detained and released after payment of a bribe. There was no evidence that the document signed by the applicant’s father amounted to a confession and no evidence that it would ever be used against him in Sri Lanka. In respect of the applicant’s scars, the Government again relied on the fact that in LP the AIT had found that scarring was significant only when there were other factors that would bring someone to the attention of the authorities.", "Without further evidence from the applicant, the same reasoning applied to the fact that he would be returning from London and had made an asylum claim abroad. Finally, according to the applicant, his brother had assisted the LTTE only through non-combatant work before he fled to Saudi Arabia. 104. The domestic authorities had taken adequate account of the most recent security situation in Sri Lanka. In particular the Secretary of State’s letter to the applicant of 10 January 2007 (see paragraph 15 above) was fully reasoned and considered all available objective evidence and its approach was subsequently confirmed in the LP case.", "None of the available objective country information undermined the conclusions of the AIT in LP and the need for a detailed and careful risk assessment in relation to the personal circumstances of each applicant. While the general human rights situation in Sri Lanka had deteriorated, there was no generalised risk applicable to Tamils being returned there. This approach had been confirmed by the High Court when considering the applications of five Tamils in light of the exchange of letters between the Section Registrar and the Agent of the Government (see paragraph 21 above). 105. As to the applicant’s reliance on Directive 2004/83/EC (see paragraphs 51 and 100 above), the Government observed that Article 53 of the Convention did not prevent Contracting Parties from providing a higher level of protection than that provided for by the Convention.", "The interpretation of the Directive was primarily for the European Court of Justice and ultimately could be subject to supervision by the Court (Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, ECHR 2005‑VI). B. The Court’s assessment 106. In its assessment in the present case, the Court will consider the general principles applicable to expulsion cases.", "It will then set out its approach to the objective information which has been placed before it. On that basis, it will assess the risk to Tamils returning to Sri Lanka and the individual circumstances of the applicant’s case in order to determine whether there would be a violation if he were to be returned to Sri Lanka. 107. In doing so, the Court also recalls that its sole task under Article 19 of the Convention is to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto. It is not the Court’s task to apply directly the level of protection offered in other international instruments and therefore considers that the applicant’s submissions on the basis of Directive 2004/83/EC are outside the scope of its examination of the present application.", "1. General principles 108. In assessing whether there would be a violation of Article 3 if a Contracting State were to expel an individual to another State, the Court will consider the following principles, as they appear in its settled case-law. 109. In the first instance, Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention to control the entry, residence and expulsion of aliens (Üner v. the Netherlands [GC], no.", "46410/99, § 54, ECHR 2006‑....; Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 34, § 67, Boujlifa v. France, judgment of 21 October 1997, Reports 1997‑VI, p. 2264, § 42). The right to political asylum is also not contained in either the Convention or its Protocols (Salah Sheekh, cited above, § 135, with further authorities). However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country (Saadi v. Italy [GC], no.", "37201/06, § 125, 28 February 2008). 110. The assessment whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires that the Court assess the conditions in the receiving country against the standards of Article 3 of the Convention (Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005‑I). These standards imply that the ill-treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3.", "The assessment of this is relative, depending on all the circumstances of the case (Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001‑II). Owing to the absolute character of the right guaranteed, Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection (H.L.R. v. France, judgment of 29 April 1997, Reports 1997‑III, § 40).", "111. The assessment of the existence of a real risk must necessarily be a rigorous one (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, § 96; and Saadi v. Italy, cited above, § 128). It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005). Where such evidence is adduced, it is for the Government to dispel any doubts about it.", "112. If the applicant has not yet been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Saadi v. Italy, cited above, § 133). A full and ex nunc assessment is called for as the situation in a country of destination may change in the course of time. Even though the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive and it is therefore necessary to take into account information that has come to light after the final decision taken by the domestic authorities (see Salah Sheekh, cited above, § 136). 113.", "The foregoing principles, and in particular the need to examine all the facts of the case, require that this assessment must focus on the foreseeable consequences of the removal of the applicant to the country of destination. This in turn must be considered in the light of the general situation there as well as the applicant’s personal circumstances (Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, § 108). In this connection, and where it is relevant to do so, the Court will have regard to whether there is a general situation of violence existing in the country of destination. 114.", "However, a general situation of violence will not normally in itself entail a violation of Article 3 in the event of an expulsion (see H.L.R., cited above, § 41). Indeed, the Court has rarely found a violation of Article 3 on that ground alone. For example, in Müslim v. Turkey, no. 53566/99, 26 April 2005, where the Court considered the expulsion of an Iraqi national of Turkmen origin to Iraq, it found the mere possibility of ill-treatment because of the unstable situation in that country at the material time would not in itself amount to a breach of Article 3 (paragraph 70 of the judgment). Equally, in Sultani, cited above, § 67, the Court took notice of the general situation of violence at that time in Afghanistan but found that this, without more, was not sufficient to find a violation of Article 3.", "Moreover, in the Thampibillai and Venkadajalasarma judgments relied on by the parties in their observations in the present case, the Court considered the considerable improvement in the security situation in Sri Lanka and the “very real progress” in the peace process at the material time as relevant factors in its finding that there were no substantial grounds for believing that the applicants would be exposed to a real risk of ill-treatment contrary to Article 3 (Thampibillai at paragraphs 64 and 65; Venkadajalasarma at paragraphs 66 and 67). In the earlier case of Vilvarajah and Others, cited above, the Court recognised the possibility of detention and ill-treatment in respect of young Tamil males returning to Sri Lanka. However, it insisted that the applicants show that special distinguishing features existed in their cases that could or ought to have enabled the United Kingdom authorities to foresee that they would be treated in a manner incompatible with Article 3 (paragraphs 111-112 of the judgment). Finally, while in Ahmed v. Austria, judgment of 17 December 1996, Reports 1996‑VI, the Court did find a violation of Article 3 partly on account of conditions in Somalia in the early 1990s, it also noted that the Austrian Government had not contested the applicant’s submission that there was no observable improvement in the general situation and had also accepted that at the material time the applicant could not be returned there without being exposed to the risk of treatment contrary to Article 3 (see paragraph 5 of the judgment). 115.", "From the foregoing survey of its case-law, it follows that the Court has never excluded the possibility that a general situation of violence in a country of destination will be of a sufficient level of intensity as to entail that any removal to it would necessarily breach Article 3 of the Convention. Nevertheless, the Court would adopt such an approach only in the most extreme cases of general violence, where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return. 116. Exceptionally, however, in cases where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the Court has considered that the protection of Article 3 of the Convention enters into play when the applicant establishes that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned (see Saadi v. Italy, cited above, § 132). In those circumstances, the Court will not then insist that the applicant show the existence of further special distinguishing features if to do so would render illusory the protection offered by Article 3.", "This will be determined in light of the applicant’s account and the information on the situation in the country of destination in respect of the group in question (see Salah Sheekh, cited above, § 148). The Court’s findings in that case as to the treatment of the Ashraf clan in certain parts of Somalia, and the fact that the applicant’s membership of the Ashraf clan was not disputed, were sufficient for the Court to conclude that his expulsion would be in violation of Article 3. 117. In determining whether it should or should not insist on further special distinguishing features, it follows that the Court may take account of the general situation of violence in a country. It considers that it is appropriate for it to do so if that general situation makes it more likely that the authorities (or any persons or group of persons where the danger emanates from them) will systematically ill-treat the group in question (see Salah Sheekh, § 148; Saadi v. Italy, §§ 132 and 143; and, by converse implication, Thampibillai, §§ 64 and 65; Venkadajalasarma, §§ 66 and 67, all cited above).", "2. The assessment of objective information 118. In the light of the large amount of objective information placed before it by the parties, the Court also considers it necessary to restate the approach it takes to the assessment of such information before considering what conclusions may be drawn from it the present case. This is particularly important given that there is a dispute between the parties as to the weight to be attached to the UNHCR’s assessment of the general situation in Sri Lanka (see paragraphs 96 and 102). 119.", "In this connection, the Court recalls the principles recently set out in Saadi v. Italy, cited above, §§ 128-133, that in assessing conditions in the proposed receiving country, the Court will take as its basis all the material placed before it or, if necessary material obtained proprio motu. It will do so, particularly when the applicant – or a third party within the meaning of the Article 36 of the Convention – provides reasoned grounds which cast doubt on the accuracy of the information relied on by the respondent Government. The Court must be satisfied that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources such as, for instance, other Contracting or non-Contracting States, agencies of the United Nations and reputable non-governmental organisations (see Salah Sheekh, cited above, § 136; Garabayev v. Russia, no. 38411/02, § 74, 7 June 2007, ECHR 2007‑... (extracts)). As regards the general situation in a particular country, the Court has often attached importance to the information contained in recent reports from independent international human-rights-protection organisations such as Amnesty International, or governmental sources, including the US State Department (see Saadi v. Italy, cited above, § 131).", "120. In assessing such material, consideration must be given to its source, in particular its independence, reliability and objectivity. In respect of reports, the authority and reputation of the author, the seriousness of the investigations by means of which they were compiled, the consistency of their conclusions and their corroboration by other sources are all relevant considerations (see Saadi v. Italy, cited above, § 143). 121. The Court also recognises that consideration must be given to the presence and reporting capacities of the author of the material in the country in question.", "In this respect, the Court observes that States (whether the respondent State in a particular case or any other Contracting or non-Contracting State), through their diplomatic missions and their ability to gather information, will often be able to provide material which may be highly relevant to the Court’s assessment of the case before it. It finds that same consideration must apply, a fortiori, in respect of agencies of the United Nations, particularly given their direct access to the authorities of the country of destination as well as their ability to carry out on-site inspections and assessments in a manner which States and non-governmental organisations may not be able to do. 122. While the Court accepts that many reports are, by their very nature, general assessments, greater importance must necessarily be attached to reports which consider the human rights situation in the country of destination and directly address the grounds for the alleged real risk of ill-treatment in the case before the Court. Ultimately, the Court’s own assessment of the human rights situation in a country of destination is carried out only to determine whether there would be a violation of Article 3 if the applicant in the case before it were to be returned to that country.", "Thus the weight to be attached to independent assessments must inevitably depend on the extent to which those assessments are couched in terms similar to Article 3. Thus in respect of the UNHCR, due weight has been given by the Court to the UNHCR’s own assessment of an applicant’s claims when the Court determined the merits of her complaint under Article 3 (see Jabari v. Turkey, no. 40035/98, § 41, ECHR 2000‑VIII). Conversely, where the UNHCR’s concerns are focussed on general socio-economic and humanitarian considerations, the Court has been inclined to accord less weight to them, since such considerations do not necessarily have a bearing on the question of a real risk to an individual applicant of ill-treatment within the meaning of Article 3 (see Salah Sheekh, cited above, § 141). 3.", "Assessing the risk to Tamils returning to Sri Lanka 123. In considering whether the applicant has established that he would be at real risk of ill-treatment in Sri Lanka, the Court observes as a preliminary matter that the Government propose to remove him to Colombo. In the light of this, the Court does not consider it necessary to examine the risk to Tamils in LTTE controlled areas or any other part of the country outside Colombo and will proceed to examine the risk to Tamils returning to Sri Lanka on this basis. 124. The Court first observes that it is accepted by the parties to the case that there has been a deterioration in the security situation in Sri Lanka.", "The Court finds no reason to disagree with the parties’ assessment and notes that all the objective evidence before it supports this conclusion. This deterioration took place before the present application was lodged with the Court and has continued while the case has been pending, particularly since the formal end of the ceasefire in January 2008. It is also clear to the Court that the evidence before it supports the conclusion that the deterioration in the security situation in Sri Lanka has been accompanied by an increase in human rights violations, on the part both of the LTTE and the Sri Lankan Government. Killings, abductions and disappearances have increased (see the UNHCR Position Paper at paragraph 65 above; the United Nations High Commissioner for Human Rights at paragraph 69 above; the 2007 Amnesty International report at paragraph 76 above; and the Human Rights Watch report at paragraph 78 above). Investigations into such serious human rights violations are inadequate (see the IIGEP at paragraph 75 above and the Human Rights Watch report “Recurring Nightmare” at paragraph 80 above).", "Torture and ill-treatment are common place (see the conclusions of the United Nations Special Rapporteur on Torture at paragraph 70 above) and there is also clear evidence of what the AIT described as “a culture of torture with impunity” (see paragraph 35 above and the 2008 Amnesty International report at paragraph 77 above). 125. However, the Court also notes that the domestic authorities, while recognising this deterioration and the corresponding increase in human rights violations, did not conclude that this created a general risk to all Tamils returning to Sri Lanka (see in particular the findings of the AIT in LP in paragraphs 232 –234 of the determination; set out at paragraph 43 above), nor has the applicant in the present case sought to challenge that conclusion in his submissions. The Court has examined closely the developments in Sri Lanka since the AIT’s determination in LP, particularly the information that has become available since that determination (see paragraphs 53–85 and 124 above). It considers that there is nothing in that objective information which would require the Court to reach a different conclusion of its own motion.", "126. The Court also finds that in reaching the conclusions they did, the United Kingdom authorities, including the Secretary of State, the AIT and the High Court, gave serious and anxious consideration to the risk to Tamils returning to Sri Lanka (see paragraphs 58–59, 30–46, and 50 above). They considered all the relevant objective evidence and, just as importantly, considered the appropriate weight to be given to it. 127. In respect of the UNHCR Position Paper (see paragraphs 65–68 above) and in light of its own observations at paragraphs 118–122 above, the Court shares the view of the AIT in LP that “substantive weight” should be accorded to it.", "However, the Court also accepts the domestic authorities’ view that the UNHCR Position Paper, by its nature, speaks in necessarily broad terms. In contrast to the findings made by the UNHCR and relied on by the Court in the Jabari judgment, cited above, §§ 18 and 41, the UNHCR’s Position Paper is a general survey of the varying risks to each of Sri Lanka’s different ethnic groups. As such, the views expressed in that paper could not themselves be decisive in the domestic authorities’ assessment of the risk to Tamils returning to Sri Lanka and cannot be decisive in the Court’s own assessment of the same. Indeed, the Position Paper said that Tamils “with certain profiles” were liable to suffer serious human rights transgressions and that where individual acts of harassment did not in and of themselves constitute persecution, taken together, they might cumulatively amount to a serious violation of human rights and therefore be persecutory. 128.", "It follows that both the assessment of the risk to Tamils of “certain profiles” and the assessment of whether individual acts of harassment cumulatively amount to a serious violation of human rights can only be done on an individual basis. Thus, while account must be taken of the general situation of violence in Sri Lanka at the present time, the Court is satisfied that it would not render illusory the protection offered by Article 3 to require Tamils challenging their removal to Sri Lanka to demonstrate the existence of further special distinguishing features which would place them at real risk of ill-treatment contrary to that Article (see Salah Sheekh, cited above, § 148 and paragraphs 116–117 above). 129. The Court therefore considers that it is in principle legitimate, when assessing the individual risk to returnees, to carry out that assessment on the basis of the list of “risk factors”, which the domestic authorities, with the benefit of direct access to objective information and expert evidence, have drawn up. The Court also notes that the AIT in LP considered all the relevant risk factors identified and put before it by the appellant in that case and that the AIT itself was careful to avoid the impression that these risk factors were a “check list” or exhaustive.", "It further notes that in the present case, the parties’ observations as to the individual risk to the applicant are made with reference to the same risk factors considered in LP. Furthermore, the applicant has not identified any further risk factors which were not considered in LP but which would assist the Court in its assessment. As it has recalled, the Court’s own assessment must be full and ex nunc (paragraph 112 above) but on the basis of the objective evidence before it, the Court itself does not consider it necessary to identify any additional risk factors which have not been duly considered by the domestic authorities or raised by the parties in their observations. 130. Despite this conclusion, the Court emphasises that the assessment of whether there is a real risk must be made on the basis of all relevant factors which may increase the risk of ill-treatment.", "In its view, due regard should also be given to the possibility that a number of individual factors may not, when considered separately, constitute a real risk; but when taken cumulatively and when considered in a situation of general violence and heightened security, the same factors may give rise to a real risk. Both the need to consider all relevant factors cumulatively and the need to give appropriate weight to the general situation in the country of destination derive from the obligation to consider all the relevant circumstances of the case (see the Hilal judgment, cited above, § 60). 131. Moreover, the Court finds that the information before it points to the systematic torture and ill-treatment by the Sri Lankan authorities of Tamils who will be of interest to them in their efforts to combat the LTTE. This was the underlying conclusion which formed the basis of the elaboration of the risk factors in LP (see paragraphs 227 and 232 of the determination, set out at paragraphs 42–43 above).", "Indeed, as Mr Justice Collins later put it (see paragraph 50 above): “The test therefore, as I see it, is whether there are factors in an individual case, one or more, which might indicate that authorities would regard the individual as someone who may well have been involved with the LTTE in a sufficiently significant fashion to warrant his detention or interrogation. If interrogation and detention are likely, then, in the context of the approach of the authorities in Sri Lanka, torture would be a real risk and thus a breach of Article 3 might occur.” 132. The Court observes that the evidence which has become available since the domestic authorities considered the return of Tamils to Sri Lanka provides further support for this conclusion. The United Nations Special Rapporteur on Torture found that torture is widely practiced in Sri Lanka and observed it was “prone to become routine” in the context of counter-terrorism operations (see paragraph 70 above). This is corroborated by the annual reports of the US State Department and Amnesty International (see paragraphs 76, 77 and 71 above) and the report of the Medical Foundation for the Care of Victims of Torture (see paragraph 83 above).", "The culture of impunity identified by the AIT in LP was also noted by the United Nations High Commissioner for Human Rights in her visit to Sri Lanka: her press release described the prevalence of impunity as “alarming” (see paragraph 69 above). 133. On the basis of this evidence, the Court therefore finds that, in the context of Tamils being returned to Sri Lanka, the protection of Article 3 of the Convention enters into play when an applicant can establish that there are serious reasons to believe that he or she would be of sufficient interest to the authorities in their efforts to combat the LTTE as to warrant his or her detention and interrogation (see Saadi v. Italy, cited above, § 132). 134. In respect of returns to Sri Lanka through Colombo, the Court also finds that there is a greater risk of detention and interrogation at the airport than in Colombo city since the authorities will have a greater control over the passage of persons through any airport than they will over the population at large.", "In addition, the majority of the risk factors identified by AIT in LP will be more likely to bring a returnee to the attention of the authorities at the airport than in Colombo city. It is also at the airport that the cumulative risk to an applicant arising from two or more factors will crystallise. Hence the Court’s assessment of whether a returnee is at real risk of ill-treatment may turn on whether that person would be likely to be detained and interrogated at Colombo airport as someone of interest to the authorities. While this assessment is an individual one, it too must be carried out with appropriate regard to all relevant factors taken cumulatively including any heightened security measures that may be in place as a result of an increase in the general situation of violence in Sri Lanka. 135.", "In this connection, the Court notes that the objective evidence before it contains different accounts of the precise nature of the procedures followed at Colombo airport and the nature of the information technology there (see the British High Commission letters and the Immigration and Refugee Board of Canada report at paragraphs 60–63 and 74 above). Indeed, the evidence suggests that the procedures followed by the Sri Lankan authorities may change over time. However, the Court also notes that, with the exception of the extracts of the British High Commission’s letter of 25 January 2008 that appeared in the March 2008 COI Report (see paragraph 60 above), all the above evidence was considered by the AIT in LP where it was undisputed that records were kept and interviews conducted at the airport and where the AIT found that computerised records were available to the police at the airport, from which they could identify possible “bail jumpers” (see paragraph 35 above). In the light of the extensive evidence before the AIT on this subject and its findings, the Court cannot come to a different conclusion on the basis of the uncorroborated British High Commission’s letter of 25 January 2008 and the observations therein that the Sri Lankan CID do not use computers, particularly when, as the COI Report noted, in its letter of 24 August 2006, the British High Commission had previously reported that “the Sri Lankan authorities have a good IT system to track arrivals and departures at the main airport and are able to track, in most cases, whether an individual is in the country or not” (see paragraph 60 above). The Court also considers it to be of some significance that both the British High Commission letters and the assessment of the Immigration and Refugee Board of Canada indicate that there are established and routine procedures for briefly detaining and questioning returnees at the airport.", "136. This evidence on procedures and facilities at the airport must also be placed alongside the AIT’s finding on the availability of lists of failed asylum seekers to the Sri Lankan authorities, which was based on the British High Commission’s letter of 24 August 2006 (see paragraph 40 above) and the evidence that scarring has been used in the past by the authorities as a means of identifying Tamils who will be of interest to them (see the finding of the AIT set out at paragraph 37 above). The Court notes the AIT’s finding, in light of that evidence, that “failed asylum seekers are processed relatively quickly and with no difficulty beyond some possible harassment” (see paragraph 44 above) but it considers that at the very least the Sri Lankan authorities have the technological means and procedures in place to identify at the airport failed asylum seekers and those who are wanted by the authorities. The Court further finds that it is a logical inference from these findings that the rigour of the checks at the airport is capable of varying from time to time, depending on the security concerns of the authorities. These considerations must inform the Court’s assessment of the risk to the applicant.", "137. Finally, in the Court’s view, it cannot be said that there is a generalised risk to Tamils from the LTTE in a government controlled area such as Colombo. The Court accepts the findings of the domestic authorities that individual Tamils may be able to demonstrate a real and personal risk to them from the LTTE in Colombo. However, it also accepts their assessment that this will only be to Tamils with a high profile as opposition activists, or as those seen by the LTTE as renegades or traitors (see in particular the PS determination of the IAT at paragraph 47 above). The Court therefore considers that it must also examine any complaint as to the risk from the LTTE in the context of the individual circumstances of the applicant’s case.", "4. The applicant’s case 138. On the basis of the foregoing observations, the Court will examine the applicant’s particular circumstances in order to determine whether there would be a violation of Article 3 if he were to be expelled to Sri Lanka. As the Court has observed, the applicant complained that he was at real risk from both the LTTE and the Sri Lankan authorities. Consequently, it will examine each of these aspects of his complaint in turn.", "139. Before doing so, it observes that the Government do not appear to have disputed the Adjudicator’s findings as to the credibility of the applicant’s account. These were that the applicant bears scars from ill-treatment during detention; that he was arrested by the army six times between 1990 and 1997 on suspicion of his involvement with the LTTE and that on the last occasion he was photographed, fingerprinted and released after his father signed a document (see paragraph 8 above). The Court also notes the Adjudicator’s finding that, following the ceasefire agreement, the applicant would be of no interest to the Sri Lankan authorities because he had been held for short periods and released without charge on each occasion (see paragraph 9 above). Finally, the Court notes the Adjudicator’s findings that it was unlikely that the LTTE would have any interest in the applicant and unlikely that they could track him down in Colombo (see paragraph 10 above).", "140. However, the Court also observes that the Adjudicator’s decision of 27 July 2003 was the last full factual assessment by the domestic authorities of the applicant’s case. As it has noted at paragraph 91 above, the basis for the applicant’s subsequent fresh asylum claim and successive applications for permission to apply for judicial review was the deterioration in the security situation in Sri Lanka. As the Court has found, by the time the applicant’s case was listed for an oral hearing, three of the four High Court judges who had considered the applicant’s claim had formed the view that the situation in Sri Lanka had deteriorated but that in itself was not sufficient to alter the decisions of either the Adjudicator or the Secretary of State and the applicant did not, therefore, renew his application for permission to apply for judicial review at the oral hearing. In these circumstances, the Court is called upon to assess the risk to the applicant without the benefit of a recent and full factual assessment by the domestic authorities in his case.", "141. In respect of the alleged risk to the applicant from the LTTE, the Court reiterates that it accepts the domestic authorities’ assessment that while there may be a risk to Tamils in Colombo from the LTTE, this will be only to Tamils with a high profile as opposition activists, or those seen by the LTTE as renegades or traitors. Like the domestic authorities, it can discern no such factors in the applicant’s case and is persuaded that, since his encounter with the LTTE took place ten years ago, if returned to Colombo he would be of little interest to them. He would therefore not be at real risk of ill-treatment contrary to Article 3 by the LTTE if returned to Colombo. 142.", "In assessing the risk to the applicant from the Sri Lankan authorities, the Court will examine the strength of the applicant’s claim to be at real risk as a result of an accumulation of the risk factors identified in LP (see paragraphs 30–46 above). However, it will do so in light of its own observations set out in paragraphs 130–136 above. In particular, the Court underlines first, the need to have due regard for the deterioration of the security situation in Sri Lanka and the corresponding increase in general violence and heightened security; and second, the need to take a cumulative approach to all possible risk factors identified by the applicant as applicable to his case. 143. In LP, the AIT considered a previous criminal record and/or arrest warrant to be a significant factor, albeit with the qualification that it did not mean, of itself, that the applicant had a well-founded fear of persecution or other significant harm on return to Sri Lanka.", "The Court recalls that the AIT also found that the issue was to establish the credibility of the criminal record, or an arrest warrant, and to decide whether it was reasonably likely to exist in respect of the applicant in the particular case (see paragraph 34 above). In the Court’s view, the present applicant, who was arrested and detained by the Sri Lankan authorities six times, photographed and fingerprinted, can rely on this risk factor, particularly since his claim was found credible on this point. The applicant did not jump bail or abscond from police custody so as to engage this separate risk factor identified by the AIT in LP (see paragraph 35 above) and the Court accepts the AIT’s view that persons who jump bail or abscond are at a higher level of risk of being identified from police computers at the airport. However, the applicant’s father signed a document to secure his son’s release. Understandably, this document was not available to the parties and so was not put before the Court.", "Its precise nature is not known but the logical inference is that it would have been retained by the Sri Lanka authorities at the time of the applicant’s release. The Court notes that the Government did not suggest that there was never such a document, rather they sought to question the weight to be accorded to it and argued that there was no evidence that this amounted to a confession and no evidence that it would be used against the applicant in Sri Lanka. The Court accepts that no firm conclusions can be drawn as to whether the document amounted to a confession or, as the AIT also considered in LP, a statement made in Sinhala which the applicant or his father did not understand. However, in the Court’s view it is not necessary to consider whether such a document additionally engages the particular risk factor identified by the AIT as relating to confessions or statements (see paragraph 36 above) since whatever the nature of that document, at the very least it amounts to a record of the applicant’s detention. 144.", "The Court also accepts the assessment of the AIT that scarring will have significance only when there are other factors that will bring the applicant to the attention of the authorities such as being wanted on an outstanding arrest warrant or a lack of means of identification (see paragraph 37 above). However, where there is a sufficient risk that an applicant will be detained, interrogated and searched, the presence of scarring, with all the significance that the Sri Lankan authorities are then likely to attach to it, must be taken as greatly increasing the cumulative risk of ill-treatment to that applicant. 145. The Court recognises that it has been over ten years since the applicant was last detained by the Sri Lankan army. However, the Court considers that the greatest possible caution should be taken when, as in the applicant’s case, it is accepted that a returnee has previously been detained and a record made of that detention.", "As the AIT found in LP (see paragraph 44 above), such a record may be readily accessible to airport authorities, meaning the person in question may become of interest to the authorities during his or her passage through the airport. Where there is a likelihood that this will result in delay in entering the country, there is clearly a greater risk of detention and interrogation and with it a greater risk of ill-treatment contrary to Article 3 (see paragraphs 131–133 above). Equally, in light of its observations at paragraphs 130–136 and 142 above, the Court finds the passage of time cannot be determinative of the risk to the present applicant without a corresponding assessment of the current general policies of the Sri Lankan authorities (see, mutatis mutandis, Saadi v. Italy, cited above, § 43; the Jabari judgment¸ cited above, § 41, in fine). Their interest in particular categories of returnees is likely to change over time in response to domestic developments and may increase as well as decrease. In the Court’s view, it cannot be excluded that on any given date if there is an increase in the general situation of violence then the security situation in Sri Lanka will be such as to require additional security at the airport.", "The Court also recalls its finding at paragraphs 134–136 above, notably that computerised records are available to the airport authorities. Given that it is undisputed that the applicant was arrested six times between 1990 and 1997, that he was ill-treated in detention and that it appears a record was made of his detention on at least one occasion, the Court considers that there is a real risk that the applicant’s record will be available to the authorities at the airport. Furthermore, it cannot be excluded that on any given date the security situation in Sri Lanka would be such as to require additional security at the airport and that, due to his risk profile, the applicant would be at even greater risk of detention and interrogation. 146. Insofar as they have been relied on in this case, the Court has also examined the additional factors in LP: the age, gender and origin of a returnee, a previous record as a suspected or actual LTTE member, return from London, having made an asylum claim abroad and having relatives in the LTTE.", "It has also noted the relative weight which the AIT attached to each risk factor (see paragraphs 32, 33, 38, 40 and 41 above). It considers that, where present, these additional factors contribute to the risk of identification, questioning, search and detention at the airport and, to a lesser extent, in Colombo. In respect of having relatives in the LTTE, the Court accepts the Government’s submission that this is of little weight in this case; few details of the involvement of the applicant’s brother in the LTTE or his present whereabouts have been provided. However, the Court accepts that the remaining factors are all capable of being relied upon by the applicant and, on the facts of his case, their cumulative effect is to increase further the risk to him, which is already present due to the probable existence of a record of his last arrest and detention. He is a male Tamil who is thirty-two years of age and the AIT found there was a higher propensity on the part of the Sri Lanka authorities to target young men and women from the north and east in a period of “virtual civil war” (see paragraph 32 above).", "This must apply a fortiori since the formal end of the ceasefire (see paragraph 54 above). On the applicant’s account, which was found to be credible by the Adjudicator, his six arrests were on the basis of suspicion of LTTE involvement, even if he was ultimately found to have no such involvement. While the Court agrees with the AIT in LP that in respect of this risk factor it is of “vital importance” to establish an applicant’s profile and the credibility of his background in some depth (see paragraph 33 above), it also finds that this was so established in the present applicant’s case and thus significant weight must be given to the Adjudicator’s finding as to his credibility (see paragraph 8 above). Finally, any return of the applicant to Sri Lanka would be from London or another United Kingdom airport and clearly he has made an asylum claim abroad. In respect of the latter risk factor, the Court accepts the AIT’s finding in LP that this would be a “contributing factor” which would need other, perhaps more compelling factors before a real risk could be established but it also notes with concern the AIT’s findings that lists of failed asylum seekers could form part of search operations in Tamil areas of Colombo and that application forms for replacement passports and travel documents might alert the Sri Lankan High Commission in London and that information could be passed on (see paragraph 40 above).", "147. The Court has taken note of the current climate of general violence in Sri Lanka and has considered cumulatively the factors present in the applicant’s case. It also notes its finding at paragraphs 131–133 above that those considered by the authorities to be of interest in their efforts to combat the LTTE are systematically exposed to torture and ill-treatment. There is a real risk that the authorities at Colombo airport would be able to access the records relating to the applicant’s detention and if they did so, when taken cumulatively with the other risk factors he has relied upon, it is likely the applicant would be detained and strip-searched. This in turn would lead to the discovery of his scars.", "On this basis, the Court finds that these are substantial grounds for finding that the applicant would be of interest to the Sri Lankan authorities in their efforts to combat the LTTE. In those circumstances, the Court finds that at the present time there would be a violation of Article 3 if the applicant were to be returned. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 148. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 149. The applicant expressly made no claim in respect of pecuniary and non-pecuniary damage and the Government similarly made no observations under this head. B. Costs and expenses 150. The applicant claimed a total of GBP 3,510 in legal costs and expenses incurred before the Court, which is approximately EUR 4,451.", "This claim comprised the costs and expenses of two solicitors in the amount of GBP 770 and GBP 2740 for eleven and sixty-eight and a half hours’ work respectively. 151. The Government made no submissions under this head. 152. The Court considers that the amount claimed is not excessive in light of the nature of the dispute, particularly given the complexity of the case.", "It therefore considers that the applicant’s costs and expenses should be met in full and thus awards him EUR 4,451, inclusive of VAT, less EUR 850 already received in legal aid from the Council of Europe. C. Default interest 153. 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 the applicant’s expulsion to Sri Lanka would be in violation of Article 3 of the Convention; 3. Holds that no separate issue arises under Article 2 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,451 (four thousand four hundred and fifty-one euros), plus any tax that may be chargeable, in respect of costs and expenses, to be converted into pounds sterling at the rate applicable at the date of settlement, less EUR 850 (eight hundred and fifty euros); (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 17 July 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyLech GarlickiRegistrarPresident" ]

[ "FIRST SECTION CASE OF PRIMOV AND OTHERS v. RUSSIA (Application no. 17391/06) JUDGMENT STRASBOURG 12 June 2014 FINAL 13/10/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Primov and Others v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Khanlar Hajiyev,Paulo Pinto de Albuquerque,Linos-Alexandre Sicilianos,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 20 May 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "17391/06) 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 Mr Niyaz Dzhanlatovich Primov, Mr Nasir Dzhanlatovich Dzhavadov and Mr Bunyam Askerovich Askerov, who are Russian nationals born in 1957, 1962 and 1953 respectively (“the applicants”). The application was lodged on 3 May 2006. 2. The applicants were represented by Ms Kostromina and Ms Mikhaylova, 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 applicants alleged, in particular, that the ban on the demonstration of 25 April 2006, its violent dispersal and the arrest of the three applicants had violated their rights under Articles 10 and 11 of the Convention. They also invoked Article 5 in respect of their arrests. 4. On 5 May 2010 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. The refusal by the district administration of 17 April 2006 to allow the demonstration in Usukhchay planned for 25 April 2006 5. On 10 April 2006 a group of seven people living in the Dokuzparinskiy District of Dagestan, a mountainous region close to the border with Azerbaijan, posted a written notice informing the district authorities that on 25 April 2006 they would hold a public demonstration in the village of Usukhchay. The applicants’ names were not mentioned in the list of organisers of the demonstration.", "The principal aims of the demonstration were to criticise the work of the head of the local administration, Mr A., to denounce corruption and the misuse of public funds by the local administration, and to draw attention to the inactivity of the law-enforcement agencies vis-à-vis abuses committed by Mr A. and his colleagues. The demonstration was supposed to be held in a recreational park in the village of Usukhchay from 11 a.m. to 5 p.m.; the estimated number of participants was 5,000. The organisers asked the police to dispatch officers for the protection of those participating in the demonstration. Although the applicants’ names were not in the notice, they claimed that they had played an active part in the organisation of the meeting in their respective communities. 6.", "The notice (уведомление) was sent to the district administration with copies to the Dokuzparinskiy district prosecutor and the head of the district police department. The applicants produced a copy of a payment slip from a post office in Makhachkala indicating that the notice had been posted by registered mail on 10 April 2006. It appears from the documents submitted by the Government that the notice was received by the district administration on 17 April 2006. 7. On 17 April 2006 the head of the district administration, Mr A.", "– the same person who was the principle target of the criticism by the demonstrators – informed the organisers that the district administration was opposed to the demonstration. In his letter of 17 April 2006 Mr A. said that, first, the notice had been lodged (подано) outside the time-limit fixed in the Public Gatherings Act. Secondly, the park in Usukhchay was not supposed to admit more than 500 people, so it was impossible to hold a demonstration there. Thirdly, the purpose of the demonstration was to condemn the embezzlement of public funds and the deliberate destruction of financial records by the district administration. However, according to Mr A., the competent law-enforcement authorities, in particular the prosecutor’s office, and financial authorities such as the Ministry of Finance of Dagestan, had already inquired into those allegations and concluded that there had been no case to answer.", "The letter also contained a warning addressed to the organisers that if they proceeded with the demonstration as planned, they would be held liable in accordance with the law. B. Events of 19 April 2006 in Kamsumkent and Khiv and the arrest of the second applicant 8. At about 4 p.m. on 19 April 2006, a group of men armed with iron rods and sticks attacked another group of individuals near the village of Khiv. Two persons were injured.", "Having received information about the clash, the Derbent police dispatched a group of officers to the scene. The police set up an improvised roadblock near the “Gereykhanov Sovkhoz” (Kasumkent village) to check the passing cars and prevent further clashes. A few hours later a group of about 300 people armed with wooden sticks, iron rods and similar objects arrived at the roadblock in several cars without licence plates. The police stopped those cars. According to the authorities, the second applicant then climbed onto the roof of his car and started to incite his fellow villagers to resist the police and to run them over.", "His followers started to abuse the police verbally, pushed them out of their way and tried to overturn a police vehicle and a truck which the police had used to block the road. One of the police officers was injured, and his uniform was ripped. As a result, the police gave up and let the cars pass. 9. The second applicant denied having participated in the scuffle.", "He maintained that on that day he had been taking part in a gathering in the Kurakhskiy District. As to the episode near the police roadblock, he claimed that he had argued with the police officers, asking them to let him and his car through, and the windscreen of his car had been broken by them. However, he had not committed any unlawful acts. 10. On an unspecified date the prosecutor’s office opened a criminal investigation into the events of 19 April 2006 (case no.", "6424). 11. On 21 April 2006 the second applicant was arrested with reference to case no. 6424, which concerned the riot on 19 April 2006 in the village of Khiv. On 22 April 2006 the Khiv District Court granted the police’s request to detain the second applicant on remand.", "The second applicant was suspected of having committed a crime under Article 212 § 3 (“Mass riots”), and Article 318 § 1 (“Use of violence against a public official”) of the Criminal Code of the Russian Federation. The court ruled that the second applicant should be detained because otherwise he might obstruct the establishment of the truth, destroy evidence or abscond. The second applicant appealed, claiming that the court’s decision was unsubstantiated, but on 28 April 2006 the Supreme Court of Dagestan dismissed the appeal in a summary fashion. 12. On 20 June 2006 the Sovetskiy District Court of Makhachkala ordered the second applicant’s release, indicating that he had a permanent place of residence, three children to take care of and an elderly father who was ill, and that the charges against him were not serious.", "The second applicant was released. 13. Subsequently, the criminal case against the second applicant was closed by the trial court for “active repentance”. C. Demonstration of 25 April 2006 in Usukhchay and Miskindzha and its dispersal 14. Despite the decision of the local administration of 17 April 2006 whereby the demonstration of 25 April 2006 had not been allowed, the organisers decided to hold it as planned.", "The first and the third applicants took part in that “unauthorised” demonstration; the second applicant was not amongst the protesters since at that time he had been detained on remand in connection with the episode of on 19 April 2006 in the village of Khiv (see paragraphs 8 to 13 above). 1. The first and the third applicants’ account 15. At about 10 a.m. on 25 April 2006, a group of approximately 1,000 people gathered on the outskirts of Usukhchay. Other demonstrators were unable to reach the assembly point because the roads had been blocked by the police.", "16. The organisers tried to meet representatives of the village administration in order to discuss the situation, but to no avail. When the demonstrators started moving towards the centre of the village, the police blocked their way. At the same time another group of demonstrators from the neighbouring village of Miskindzha were stopped by the police on the way to Usukhchay; they were ordered to return to Miskindzha and hold their demonstration there separately, if they so wished. 17.", "In the afternoon the demonstrators from Usukhchay started moving towards Miskindzha. As the police had blocked the road, the demonstrators had to leave their cars and walk. Because of the bad weather and the long distance to walk, some of them decided to give up. As a result, when the demonstration arrived at Miskindzha, there were no more than 200 to 300 participants. 18.", "The meeting was peaceful; however, at about 3 p.m. the demonstrators were encircled by police officers from the Special Police Force Unit (the “OMON”). The police opened fire with automatic rifles above the demonstrators’ heads. They also used tear gas, smoke bombs and stun grenades to disperse the demonstration. The demonstrators started to run in the direction of the village; the police officers followed them. The police beat the demonstrators with rubber truncheons and rifle butts.", "As a result, one person was shot dead, five people were severely injured and several dozen people were beaten up or were injured by the shells of the tear-gas bombs which had exploded in the midst of the crowd. Sixty-seven people were arrested, and the organisers of the meeting were charged in connection with their participation in the organisation of an unauthorised demonstration. From the first and the third applicants’ submissions it appears that they were present at the scene of the confrontation in Miskindzha up to a certain moment but left when the clash started at about 3 p.m. None of them was hurt during the clash. 19. As to the gunshot injury received by a police officer, one of the participants in the demonstration, referring to the words of another witness, Mr S.F., claimed that the wound had been self-inflicted: the officer concerned had shot himself in the leg by accident, because his gun had not been locked.", "2. The Government’s account 20. On 24 April 2006 the Ministry of Internal Affairs of Dagestan issued Order No. 7 “On measures to stabilise the situation in the Dokuzparinskiy District of Dagestan”. The order described the unauthorised demonstration of 25 April 2006, which supposedly would involve about two thousand people “with an aggressive predisposition”.", "The order mentioned the risks of blocking the roads and disturbing the normal work of State institutions. A “mixed squad” was formed comprising of thirty-five police officers from the Special Forces Unit of the Ministry (OMON) and 147 officers from eight local police stations. Colonel Iz. was appointed as commander of the “mixed squad”. The order provided for undercover observation of the leaders of the demonstrators, video-recording of the events, strengthening of identity checks at the roadblocks and other security measures.", "21. The squad moved to Usukhchay and took position at several roadblocks controlling roads leading to the village and near certain buildings occupied by State bodies. The aim of the operation was to secure public order, guarantee the constitutional rights and freedoms of the population and prevent clashes between the supporters of Mr A. and his opponents. 22. In their observations, the Government claimed that on the eve of the demonstration someone had taken alcohol, foodstuff and illegal drugs to Usukhchay.", "It had all been distributed amongst the residents of the village. In addition, there was information about individuals from other villages who had arrived in Usukchay with the aim of inciting the local population to participate in the unlawful demonstration and to insubordination to the law‑enforcement authorities. 23. At about 11 a.m. on 25 April 2006, three groups of people gathered near the premises of the village administration. One group of about 150 people were supporters of Mr A., the head of the district administration.", "The two other groups – which counted about one thousand people in aggregate – were the opponents of Mr A. Official documents contained in the case file also refer to another group of about 450 to 500 people, who arrived in Usukhchay to take part in the demonstration; it is unclear whether that group was able to join the gathering in the centre or was stopped by the police on the outskirts of the village. 24. In view of the risk of clashes between the opposing groups, representatives of the protesters were invited to take part in negotiations in the local prosecutor’s office. The negotiations involved Colonel Iz., the Deputy Minister of Internal Affairs of Dagestan, the prosecutor, Ms Lg., and the head of the local police, Mr Akb.", "The authorities proposed to the organisers that they could hold the demonstration in a municipal garage. 25. However, that offer was declined. The demonstrators started to move from Usukhchay to Miskindzha, where they arrived at about 1 or 2 p.m. In the meantime, however, someone had blocked the road with objects including paving stones, timber beams and water pipes.", "This was a federal‑level road connecting several villages and its blockage caused a considerable traffic jam. 26. The authorities warned the organisers that if the road remained blocked, the organisers would be held liable, and that the law-enforcement authorities present on the spot would use force and “special equipment”. 27. The organisers refused to follow the instructions and told other demonstrators to disobey the police orders.", "When the police, following the orders of Deputy Minister Colonel Iz., started to remove the barricade from the road, unidentified men in the crowd started to throw stones at them. In addition, several shots were fired from a garden situated uphill on the left side of the road. Some of the protesters were armed with cold weapons such as iron rods, which they used as bats while attacking the police, whereas others tried to grab the service guns from the police officers. 28. As a result, the police had to use firearms and special equipment.", "In particular, they used two stun grenades, twenty-three tear-gas grenades, thirty‑six rubber bullets, and fired 747 shots from automatic rifles above the heads of the crowd. Fifty-two of the most active protesters were arrested and taken to the Dokuzparinskiy police station. 29. In addition, unidentified police officers used pump-action shotguns loaded with 22 mm grenades filled with tear gas. Those shots were fired in the direction of the crowd.", "30. Following the clash between the police and the demonstrators, several police officers were injured. Eleven had bruises on their arms and legs, scratches and concussion; one had a ruptured spleen; and one, Mr Il., had a gunshot wound in the form of a perforated bullet hole in the right thigh. 31. Four civilians were seriously injured and one died.", "Mr Akh. had a blunt gunshot wound to the right side of the thorax with fractured ribs; Mr Nsr. had a gunshot wound to the left side of the thorax with broken shoulder bones; Mr Al. was wounded by a shell fragment in the right shin and thigh; Mr Gnd. had a gunshot wound to the right forearm with a fractured bone; and Mr Ng.", "received a mortal wound by a gas grenade to the thorax and died on the way to hospital. 3. Documents submitted by the Government 32. In support of their account, the Government produced some documents apparently obtained in the course of the investigation (case no. 67610).", "It is unclear, however, whether all those documents related to case No. 67610 and whether they constituted the entirety of the materials collected within that case. The content of those documents, insofar as relevant, is described below. 33. The Government produced medical certificates describing the injuries of several police officers, but not Mr Il.", "They also produced several medical certificates describing the injuries sustained by the protesters, all of whom had bruises and scratches. According to the certificates, the protesters claimed that the police had kicked, beaten and battered them with rubber truncheons and gun butts. Some of the protesters had been injured by the rubber bullets used by the police. Others claimed that they had been beaten up after having been arrested and taken to the police station. 34.", "In his testimony Mr Akb., the head of the Dokuzparinskiy police, gave an account of the events which was generally consonant with that of the Government. He said that he had been warned about the demonstration in a telegram sent by the organisers. On 17 April 2006 he had met one of them and discussed the event. He further explained that at some time after 10 a.m. on 25 April 2006, his men had stopped a large group of protesters who had been trying to enter Usukhchay. Mr Akb.", "had spoken with the leaders of the protesters and explained to them that “the demonstration had not been authorised, and that the actions [of the demonstrators] were unlawful”. Subsequently, he had been involved in the negotiations with the demonstrators. The deputy head of the district administration had proposed to the protesters that they hold the demonstration in a municipal garage, explaining that if they stayed in the square near the district administration premises, they risked blocking the main road. The leaders of the protesters visited the garage, but were not satisfied with that offer. They informed the authorities that they would send the protesters to Miskindzha and hold their demonstration there, in the village community centre.", "When the negotiations were over, a small group of protesters started to move towards the village centre, whereas others marched to Miskindzha, accompanied by the police. At about 1 p.m. Mr Akb. was informed that the federal road had been blocked by two large heaps of stones. He arrived at the scene and started to negotiate with the leaders of the protesters. He tried to persuade them to unblock the road, but they refused and insisted on meeting the leadership of the Dagestan Republic.", "New people arrived at the scene, armed with stones and sticks. Since the negotiations had failed, Mr Akb. ordered the police to start clearing the road. The men who had gathered on the sides of the road started to throw stones at the police officers, several of whom were hit, so Mr Akb. authorised the use of shields and rubber truncheons.", "Once the first heap of stones had been removed and the traffic had started to move, the police discovered that 300 metres further down the road it had again been obstructed with pipes. Throughout that time the police officers had stones thrown at them. Mr Akb. authorised them to use firearms but only above the heads of the protesters. By 6 p.m. the road had been unblocked.", "35. Mr Yakh., one of the protesters, testified that when they had arrived in Miskindzha, the road had not yet been blocked. People had started to block the road spontaneously with stones in order to draw the authorities’ attention to their claims. The leaders of the demonstration, who spoke before the crowd, called everybody to order and asked them not to break the law. Then a police colonel appeared.", "He asked the leaders of the protesters to unblock the road, but they refused. The police then attacked the protesters from two sides and started to shoot and throw gas grenades into the crowd. People started to run in the direction of Miskindzha. Mr Yakh. testified that he had not seen protesters throwing stones at the police: by contrast, the police had thrown stones at the crowd in order to unblock the road.", "36. Witness Mr Ag., a district administration official, testified that all the protesters, including women and elderly people, had been drunk, because earlier a mini-lorry had brought a cargo of vodka which had been distributed to the protesters. Mr Ag. joined the crowd and went with the protesters to Miskindzha, where he listened to the speeches of the leaders of the demonstration before a crowd of approximately 300 people. After the failure of the negotiations between the protesters and the authorities, the leaders started to incite the protesters to throw stones; he also heard the sound of shots coming from the side where the protesters had gathered.", "A police officer was wounded. The police started to move towards the protesters and fired two or three warning shots above their heads. When the police started to remove the stones from the road and arrest the protesters, Mr Ag. left. On the way back he overheard two women complaining that the organisers had not paid them and that they had been used as a human shield against the police.", "37. According to an undated report by the head of the Special Forces Unit, Major Kr., the police had started using gas grenades only when a large group of about 1,000 men armed with iron rods, wooden sticks and knives had attacked them. Major Kr. also specified that when his officers were moving from the first barricade to the second, someone had started to shoot at them from under the nearby trees with an automatic gun and a hunter’s gun. 38.", "Witness Mr Agb. testified that on 25 April 2006 he had been going on his business but had been stopped by the crowd. He had heard the first applicant calling the protesters not to block the road but to gather in the community centre of Miskindzha. However, some of the demonstrators disobeyed; two lorries arrived and dumped stones on the road. Some of the protesters were throwing stones at the police.", "39. One of the witnesses, Mr Chub., was the driver of the lorry that had brought stones for the first barricade. He explained that he had loaded the stones near the river in order to build a shed in his garden. Near the entry to Miskindzha he was stopped by a group of youngsters who ordered him, under the threat of violence, to dump the stones directly on the road. 40.", "The written testimonies of several other eyewitnesses were inconclusive. Some of them testified that a group of adolescents had been throwing stones at the police; others said that the police had used firearms by shooting in the air, whereas the demonstrators had no firearms. Some witnesses heard shots from the side of the protesters. D. Arrest of the participants and organisers of the demonstration 1. The first applicant (Mr Primov) (a) Arrest and detention 41.", "On 29 April 2006 the first applicant was arrested for participating in the organisation of an unauthorised demonstration on 25 April 2006 (criminal case no. 67610). He was suspected of having committed a crime under Article 213 § 2 (“Hooliganism”), and Article 318 § 2 (“Use of violence against a public official”) of the Criminal Code of the Russian Federation (for all further references to the Criminal Code see “Relevant domestic law” below). 42. In particular, the police suspected that the first applicant had incited the demonstrators to block the road and to “disobey the lawful orders of the police with the use of firearms”.", "The police applied to the Sovetskiy District Court for a detention order against the first applicant. 43. According to the Government, the decision of the Prosecutor of the Dagestan Republic (hereinafter “the RPO”, the Regional Prosecutor’s Office) to seek the first applicant’s detention was based on the witness statements of Mr Als., Mr Agsh., Mr Shk. and an anonymous witness. Those witnesses identified the first applicant as one of the leaders of the demonstration who had incited the crowd to attack the police.", "44. On 30 April 2006 the Sovetskiy District Court of Makhachkala placed the first applicant in pre-trial detention. In its ruling the court noted that he was suspected of having committed a serious crime and that he might continue his criminal activity, abscond or obstruct the course of justice. The court also referred to his “personality”. 45.", "The first applicant’s lawyer appealed. He indicated that the first applicant worked as head of a municipal social-security office, had a permanent place of residence and four children, and had good references from his colleagues and neighbours. The lawyer also stated that the first applicant had not been contacted by the investigators before his arrest. The lawyer noted that a suspect could be held in pre-trial detention before being formally charged only in exceptional circumstances. The court’s ruling did not refer to any specific facts showing that the first applicant indeed intended to continue his criminal activities, abscond or obstruct the course of justice.", "Furthermore, the lawyer pointed to various irregularities in the application by the police and in the court’s ruling imposing the detention order. 46. On 6 May 2006 the Supreme Court of Dagestan dismissed the appeal in a summary fashion. The Supreme Court’s reasoning was identical to that of the lower court. 47.", "On 8 May 2006 the first applicant was charged under Article 213 § 3 and Article 318 § 2 of the Criminal Code. In the indictment the first applicant was referred to as “the organiser of the demonstration”. The indictment also mentioned that, as one of the organisers of the demonstration, the first applicant had ordered the protesters to block the road, throw stones in the direction of the police and use firearms. 48. It appears that in the meantime the first applicant had a confrontation with the witnesses who had earlier identified him as one of the instigators of the riot.", "According to the Government, they had all denied their previous allegations concerning his role in the riot. 49. On 27 June 2006 the Sovetskiy District Court of Makhachkala refused to extend the first applicant’s pre-trial detention. The court ruled that the police had not produced any evidence that he might abscond or obstruct the course of justice, and that another preventive measure could not be applied. The court also stated that the need to question other demonstrators who had used violence against the police was not a good reason for extending his detention.", "The court lastly stated that the first applicant had no previous convictions, was married, was in employment, had good references, had been awarded State decorations and had a permanent place of residence. The first applicant was released. (b) Findings of the domestic investigation 50. On 25 December 2006 the criminal case against the first applicant was discontinued for lack of evidence. The investigator established that the road going to Miskindzha had been blocked by the protesters; when the police had tried to clear the road, the protesters had started to throw stones and sticks at them.", "Several police officers had been injured; police officer Il. had been wounded by a bullet fired from a hunter’s gun. 51. The investigator’s decision to discontinue the case referred to the protocol of examining the site of the clash during which he had discovered the following objects: 139 5.45 mm cartridges (the type used in the police’s automatic guns), one 7.45 mm cartridge (standard army Kalashnikov rifle), two cardboard cartridges (hunter’s gun) and one cartridge from a tear‑gas grenade. 52.", "The investigator further referred to the testimony of several demonstrators who had stated that when the police had approached the demonstrators, most of the people had remained calm. However, some time later, a group of young men whom the witnesses had identified as “the people of Mr Kanberov”, had arrived and started to throw stones and shout insults at the police. 53. Two police officers questioned by the investigator were granted anonymity. They testified that the leaders of the demonstration, including the first and third applicants, had ordered the protesters to disobey the police and throw stones at them.", "The testimony of the two anonymous witnesses was confirmed by several other police officers who testified under their real names, including Mr Sch. However, during a face-to-face confrontation with the first applicant, officer Sch. retracted his statement. 54. Police officer Mr Msl.", "testified that the first applicant had left the scene of the confrontation between 12 noon and 1 p.m., namely before the start of the clash, because of an emergency in his family. That fact was confirmed by witness Mr Dzhv. Witness Mr Um. testified that the first applicant had tried to persuade the protesters to follow the orders of the police and had designated thirty people to keep order during the demonstration. 55.", "The first and third applicants were also questioned. They denied their guilt and claimed that they had been collaborating with the police and had tried to call the protesters to order. 56. The investigator lastly referred to a video recording of the demonstration which showed that the first and third applicants had asked the protesters not to react to provocations and to remain calm. 57.", "On 25 December 2006 the first applicant was informed of his right to claim damages in connection with the criminal prosecution against him. 2. The third applicant (Mr Askerov) 58. The third applicant was arrested on 29 April 2006. Whereas it is undisputed that the third applicant was present during the demonstration of 25 April 2006, his arrest was connected not to that demonstration but to his role in the events of 19 April 2006 in the village of Khiv and was ordered within criminal case no.", "6424 (see paragraphs 8 to 13 above). 59. On 1 May 2006 the Sovetskiy District Court of Makhachkala ordered the third applicant’s pre-trial detention. The court reasoned that as he might be given a prison sentence, he might abscond. The court noted that although the arrest warrant had been issued by the police on 20 April 2006, the third applicant had not been arrested until 29 April 2006.", "60. The third applicant appealed. He stated, in particular, that before 29 April 2006 the police had not taken any steps to enforce the arrest warrant of 20 April 2006. He had been arrested on the premises of the Ministry of the Interior of Dagestan, where he had gone of his own motion. 61.", "On 6 May 2006 the Supreme Court of Dagestan upheld the findings of the first-instance court in a summary fashion. On the same day the third applicant was charged under Articles 212 and 318 of the Criminal Code for participating in the events of 19 April 2006 in the village of Khiv. The charges against him were similar to those against the second applicant. 62. On 26 June 2006 the Sovetskiy District Court of Makhachkala refused to extend the third applicant’s pre-trial detention.", "The court ruled that the police had not produced any evidence that he might abscond or obstruct the course of justice. The court also indicated that the need to conduct further investigative steps was not a legitimate reason for extending his detention. The court concluded that it was possible to apply a milder preventive measure. The third applicant was released. 63.", "As follows from the Government’s submissions, the accusations against the third applicant were based on the testimony of one witness. The prosecution authorities decided to drop the charges against him. E. Criminal investigation into the events of 25 April 2006 and other inquiries 64. On 25 April 2006 the RPO ordered a criminal investigation into the events in Usukhchay and Miskindzha (case no. 67611).", "The facts were categorised under Article 105 § 2 (e) (“Murder”) and Article 222 (“Unlawful possession of or trafficking in firearms”) of the Criminal Code (“the CC”). 65. On 7 May 2006 Colonel Mk., acting head of the Special Forces Unit (OMON) of the Ministry of Internal Affairs of Dagestan, drew up a report on the events of 25 April 2006. He explained that the tear-gas grenades had been used when the protesters attacked the police with iron rods and tried to grab the service guns. 66.", "On 10 May 2006 an internal inquiry carried out by the federal Ministry of the Interior concluded that the police’s actions on 25 April 2006 had been appropriate. In particular, according to the final report of the inquiry, at 4.45 p.m. Colonel Iz. had ordered his officers to unblock the road, but the officers were attacked by a group of men armed with iron rods, stones and knives. Some of those men tried to grab the officers’ service guns.", "When the police entered Miskindzha, they discovered a lorry loaded with alcohol, cigarettes and foodstuff. Lieutenant-Colonel Mr Og. testified that his men had been fired at from the nearby gardens located on the left side of the road. Officer Il. (who had sustained a bullet wound to his thigh) testified that a hooded man had shot at him with a hunter’s gun.", "An appendix to the internal inquiry described restrictions on the use of gas grenades; in particular, it was prohibited to “shot gas grenades directly at humans”. 67. On an unspecified date in May 2006 the first applicant drafted and submitted to the investigator his account of the events of 25 April 2006 (a copy was submitted by the Government). He claimed that the demonstration had started peacefully, despite information that a group of Mr A.’s supporters had occupied the park in Usukhchay. During the negotiations with the authorities in the morning of 25 April 2006 the authorities’ representatives warned the protesters that if they insisted on holding the demonstration in Usukhchay, there would be bloodshed.", "In the afternoon, when the demonstrators refused to leave the road near Miskindzha, the police started to shoot and beat them with rubber truncheons. The first applicant submitted to the prosecutor a video recording of the start of the clash, and requested the questioning of several participants of the events. 68. On 19 October 2006 the RPO opened a criminal investigation under Article 286 § 3 (b) and (c) of the CC (“Abuse of office”) concerning the killing of Mr Ng. (case no.", "668459). 69. On 4 December 2006 cases nos. 668459 and 67611 were joined. 70.", "According to the Government, within those two cases the investigators questioned more than seventy witnesses and conducted ballistic and medical forensic examinations. The relatives of the victims or the victims themselves were granted the status of victims in those proceedings. 71. However, the prosecution was unable to establish the persons responsible for the facts at the heart of the investigation. As a result, on 20 February 2007 the investigation was suspended.", "The investigator held that “in breach of the instruction on the use of special equipment ... No. 865dsp, officers of the Special Forces Unit ... fired twenty-three 23mm gas grenades ...” However, it was impossible to identify the police officers who had fired the fatal shot. 72. It appears that on an unidentified date the investigation was reopened and on 16 January 2010 it was suspended again. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 73. Article 30 of the Constitution of the Russian Federation provides that everyone has the right to freedom of association. Article 55 § 3 provides that rights and freedoms may be restricted by federal laws for the protection of constitutional principles, public morals, health and the rights and lawful interests of others, and to ensure the defence and security of the State. A. The Public Gatherings Act 74.", "The Federal Law on Assemblies, Meetings, Demonstrations, Marches and Picketing (no. 54-FZ of 18 August 2004 – “the Public Gatherings Act”), as in force at the relevant time, provided for the rights and duties of the organisers of public events. The relevant provisions of the Public Gatherings Act were summarised in detail in the case of Alekseyev v. Russia (nos. 4916/07, 25924/08 and 14599/09, § 50, 21 October 2010). The relevant parts of the most important provisions are summarised below.", "75. Section 5 of the Public Gatherings Act provided that the organiser of a public event had to submit to the municipal authority a written notice in accordance with section 7. The organiser had the right to hold a demonstration at the venue and time specified in the notice or as altered by agreement with the municipal authority; or to hold assemblies at a venue that had been specially allocated or adapted to ensure the safety of citizens while such assemblies were held. The organiser had to require the participants in the public event to observe public order and comply with the lawful requirements of the authorities. 76.", "Under section 5(5) of the Public Gatherings Act, the organiser of the public event had no right to hold it if the notice on holding the public event had not been submitted in due time or no agreement had been reached with the municipal authorities on their reasoned proposal as to the alteration of the venue and/or time of the public event. 77. Section 7 of the Public Gatherings Act provided that a written notice about a public event had to be lodged (подается) by the organiser with the municipal authority concerned not earlier than fifteen days and not later than ten days before the date of the event. Under Part 2 of the Public Gatherings Act the procedure for lodging such notices had to be defined in the regional legislation. 78.", "Under section 8, a public event could be held at any suitable venue provided that it did not threaten the safety of the participants. Under section 12, the municipal authorities, upon receiving notice of the public event, had to propose an alternative venue and/or time for the public event, if the original conditions set out in the notice did not correspond to the requirements of the law. The municipal authorities also had to ensure, within their competence and jointly with the organisers and the authorised representative of the Ministry of the Interior, that public order and the safety of citizens while holding the event were respected. 79. Under section 19 of the Act, decisions, acts or omissions of municipal authorities could be contested in court in accordance with the law.", "B. Judicial review of the actions of the municipal authorities 80. Under the Code of Civil Procedure of 2002 (“the new CCP”), a person affected by an unlawful administrative act or omission by a State or municipal authority disposes of two types of remedy: a “complaint” or a “claim” (иск) against the State. Complaints are governed by Chapter 25 of the Code (“Challenging decisions, acts or omissions of State and municipal authorities and officials”). 81.", "The new CCP provides for judicial review of decisions and other acts of State or municipal officials if those acts breached the rights and freedoms of the interested person. Article 258 § 3 provides that a complaint must not be granted if the action challenged in court “is in compliance with the law, has been taken within the jurisdiction of the State body or official and the rights and freedoms of the citizen have not been violated”. 82. As follows from Article 258 of the new CCP, a successful plaintiff under Chapter 25 may obtain an injunction against the State body or official concerned. By that injunction the court must require “full elimination of the breach of the rights and freedoms”.", "The Code is silent on whether Chapter 25 allows the plaintiff to seek other reliefs provided for by the law, in particular, damages. 83. Article 257 of the CCP provides that complaints lodged under Chapter 25 of the Code must be examined within ten days from the date of their lodging. Under Article 338 the parties then have ten days to lodge an appeal. Under Article 348 the Court of Appeal has one month from the date of its receipt to consider it.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION 84. The applicants complained that their arrests and detention had been unjustified. This complaint falls to be examined under Article 5 §§ 1 and 3 of the Convention, which reads, insofar as relevant, as follows: “1. Everyone has the right to liberty and security of person.", "No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (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. ...” 85. The Government maintained that there had been sufficient evidence that the applicants had actively participated in the violent clashes with the police on 19 and 25 April 2006.", "The applicants’ detention was justified by relevant and sufficient reasons, and lasted no more than necessary. After a certain lapse of time all the applicants were released and the charges against them were dropped. 86. The applicants maintained their complaint under Article 5. They denied having participated in any violent acts and claimed that the authorities had acted in bad faith in arresting them.", "87. The Court is satisfied that the facts of the case gave rise to a “reasonable suspicion” against all three applicants. Although subsequently the charges against two of them were dropped for want of sufficiently strong incriminating evidence, this fact alone does not mean that the original suspicion was not “reasonable” within the meaning of Article 5 § 1 (c). There is no proof that the authorities had arrested the applicants on the basis of wittingly false accusations and evidence. Furthermore, there is no doubt that the detention orders in respect of all three of them were “lawful” in domestic terms and issued “in accordance with a procedure prescribed by law”, as required by Article 5 § 1.", "88. As to whether the applicants’ detention was justified by “relevant and sufficient reasons”, as required by Article 5 § 3, the Court observes as follows. The applicants spent less than two months in pre-trial detention (one month and twenty-eight days for the first applicant, one month and twenty-nine days for the second, and one month and twenty-seven days for the third). Although the reasonableness of the length of the detention cannot be defined in abstracto, and whereas even short periods of detention are susceptible to review by the Court (see Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I (extracts), and Ţurcan v. Moldova, no.", "39835/05, §§ 45 et seq., 23 October 2007), the Court observes that in casu the applicants’ detention was mainly justified by the gravity of the charges against them; the three detention orders were equally laconic and did not rely on other facts specific to the situation of each applicant (except for a very general reference to the “personality” of the first applicant). The Court has frequently found a violation of Article 5 § 3 of the Convention in Russian cases where the domestic courts extended an applicant’s detention relying essentially on the gravity of the charges and using stereotyped formulae without addressing specific facts or considering alternative preventive measures (see Pelevin v. Russia, no. 38726/05, § 55, 10 February 2011, with further references). However, most of the previous cases concerned extensions of the pre-trial detention, whereas the present case concerns the initial detention orders imposed immediately after the start of the criminal investigation. The Court reiterates that it has assumed in many cases that during the initial period of detention a “reasonable suspicion” alone could be a sufficient reason for remanding the suspect in custody (see Kusyk v. Poland, no.", "7347/02, § 37, 24 October 2006). The Court considers that in the present case the seriousness and, more importantly, the character of the alleged crimes (involvement in riots and organising violent resistance to law-enforcement bodies), in the light of the available information about the applicants’ role in the clashes could reasonably constitute sufficient factual grounds justifying the initial detention of the applicants. Since all of the applicants were released after less than two months’ detention, and in view of the overall context of the case the Court is prepared to conclude that their complaint under Article 5 §§ 1 (c) and 3 is manifestly ill-founded. It follows that this complaint must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 89. The applicants further complained that the authorities’ refusal to allow the demonstration of 25 April 2006, the violent dispersal of the demonstration and the arrest of the three applicants breached their right to freedom of expression and to peaceful assembly, guaranteed by Articles 10 and 11 of the Convention respectively. 90. Those provisions 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.” 91. At the outset, the Court notes that in relation to the same facts the applicants invoke two separate Convention provisions: Article 10 and Article 11 of the Convention. In the Court’s opinion, in these circumstances, 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). The applicants were seeking not only to express their opinion about corruption in the local administration, but to do so together with other demonstrators (see Schwabe and M.G. v. Germany, nos. 8080/08 and 8577/08, § 101, ECHR 2011 (extracts)). The Court reiterates that in Galstyan v. Armenia (no.", "26986/03, §§ 95-96, 15 November 2007), in which the applicant was arrested and convicted because of his behaviour during a demonstration, the Court found it unnecessary to consider the complaint under Article 10 separately from that under Article 11 of the Convention. There are no reasons to depart from that approach in the present case. Consequently the Court concludes that the applicants’ complaint does not require a separate examination under Article 10. 92. That being said, the Court notes that notwithstanding its particular sphere of application, in the sphere of political debate the guarantees of Articles 10 and 11 are often complementary, so Article 11, where appropriate, must be considered in the light of the Court’s case-law on freedom of expression.", "The Court reiterates that the link between Article 10 and Article 11 is particularly relevant where the authorities have interfered with the right to freedom of peaceful assembly in reaction to the views held or statements made by participants in a demonstration or members of an association (see, for example, Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 85, ECHR 2001‑IX). A. Admissibility 93. The Court reiterates that the term “restrictions” in paragraph 2 of Article 11 must be interpreted as including measures taken before or during the public assembly – such as banning the event, dispersal of the gathering or the arrest of participants – and those, such as punitive measures, taken after the meeting (see Ezelin, cited above, § 39; Bączkowski and Others v. Poland, no. 1543/06, §§ 66-68, 3 May 2007; Oya Ataman v. Turkey, no.", "74552/01, §§ 7 and 30, ECHR 2006‑XIII; Hyde Park and Others v. Moldova, no. 33482/06, §§ 9, 13, 16, 41, 44 and 48, 31 March 2009; Osmani and Others v. “the former Yugoslav Republic of Macedonia” (dec.), no. 50841/99, ECHR 2001‑X; and Sergey Kuznetsov v. Russia, no. 10877/04, § 36, 23 October 2008). 94.", "The applicants’ complaint in the present case is focused essentially on the events of 25 April 2006 in the villages of Usukhchay and Miskindzha. However, the applicants also complained about other episodes, which represent, in their words, separate instances of “interference” with their Article 11 rights. In particular, they complained about the decision of the local administration of 17 April 2006 not to allow the demonstration, and about their arrests and detention. The Court will address each of those episodes separately. 1.", "Decision of 17 April 2006 not to allow the demonstration 95. The applicants complained that their rights under Article 11 had been affected by the decision by the local administration of 17 April 2006 not to allow the demonstration. The Government, in response, claimed that under Article 19 of the Public Gatherings Act it was open for the organisers of the demonstration to complain in court about the decision of the district administration of 17 April 2006 to ban the demonstration. However, the organisers did not lodge such a complaint. Therefore, they failed to exhaust domestic remedies under Article 35 of the Convention.", "96. The Court considers that the Government’s objection is misconceived. None of the applicants was mentioned in the list of organisers of the demonstration submitted to the district administration. Therefore, since they were not amongst the organisers, it is difficult to see how it would be possible for them to challenge the decision of 17 April 2006 in court, even assuming that such remedy was effective (see a finding to the contrary in Alekseyev, cited above, §§ 97 et seq.). In any event, lacking any proof that the applicants were amongst the organisers of the demonstration, the Court concludes that they have not, as such, been personally affected by the refusal of the district administration to allow it.", "In this part their complaint is incompatible with the Convention ratione personae and must be rejected pursuant to Article 35 §§ 3 (a) and 4 thereof. 2. Demonstration of 25 April 2006 in Usukhchay and Miskindzha and its dispersal 97. Next, all three applicants complained about the events of 25 April 2006, namely about the blocking of the village of Usukhchay by the police and subsequent violent dispersal of the demonstration near the village of Miskindzha. 98.", "The Court notes that the second applicant was arrested on 21 April 2006, and was therefore unable to take part in the demonstration of 25 April. His allegation that he had been arrested in order to prevent him from participating in the demonstration of 25 April 2006 has no support in the materials of the case. In the Court’s opinion, the mere wish of a person to take part in a demonstration does not suffice to conclude that this person was affected by banning or dispersal of a public gathering. It follows that the second applicant’s complaint under Article 11 about his arrest and about the events of 25 April 2011 is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected pursuant to Article 35 § 4. 99.", "By contrast, the Government did not dispute that the first and third applicants were amongst the protesters on 25 April 2006. As to the applicant themselves, although they denied having taken part in the acts of violence against the police on that date, they acknowledged having been at the scene at the time of the clash. Thus, insofar as the events of 25 April 2006 are concerned, the Court is prepared to consider that the blocking of the village of Usukhchay and the subsequent dispersal of the demonstration in Miskindzha, affected their rights under Article 11 of the Convention. The first and the third applicants’ complaint, so construed, is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. 3. Arrest and detention of the first applicant 100. The Court recalls that on 29 April 2006 the first applicant was arrested for having participated in the organisation of an unauthorised demonstration on 25 April 2006. It is clear that the arrest of the first applicant was related to the events of 25 April 2006 and to his role in those events.", "Leaving aside the question whether or not the applicant participated in any violent action, the Court considers that his arrest can be regarded, on the arguable basis, as an instance of “interference” with his Article 11 rights. This part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 4.", "Arrests and detention of the second and the third applicants 101. Finally, the second and the third applicants complained about their arrests. The second applicant claimed that the police arrested him on 21 April 2006 in order to prevent him from participating in the demonstration of 25 April 2006. The third applicant alleged that his arrest had been de facto a punishment for his participation in that demonstration. 102.", "The Court does not have any proof supporting the second and the third applicants’ allegations that their arrests on 21 and 29 April 2006 respectively were connected to their participation in the demonstration of 25 April. All materials in the case-file show that the second and the third applicant were arrested in connection with the events of 19 April 2006 in the villages of Kamsumkent and Khiv, which are not at issue in the present case. The Court concludes that the applicants’ arrests and detention cannot be considered as an instance of “interference” with their rights guaranteed by Article 11 of the Convention, insofar as the demonstration of 25 April 2006 is concerned. In such circumstances the Court concludes that the second and the third applicants’ complaint under Article 11, to the extent that it concerns their arrests, is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected pursuant to Article 35 § 4. 5.", "Conclusion as to the admissibility of the complaint 103. In sum, the Court declares admissible the first and third applicants’ complaint under Article 11 about the events of 25 April 2006 as well as the first applicant’s complaint about his arrest and subsequent detention. The remainder of the applicants’ complaints under Article 11 is to be rejected as inadmissible. B. Merits 1.", "The Government’s submissions 104. The Government indicated that the organisers of the demonstration had failed to meet the requirement of section 7(1) of the Public Gatherings Act, which required that notice about an upcoming public event must be lodged not earlier than fifteen and not later than ten days before the date of the event. The notice was received by the district administration on 17 April 2006, namely after the deadline. Furthermore, the admission capacity of the park was 500 people, not 5,000. The Government argued that section 7 of the Public Gatherings Act had been properly published, and established clear and foreseeable rules governing public gatherings.", "105. The Government also argued that, in view of the violation of the relevant provisions of the domestic law on prior notice, the limitation on the demonstrators’ rights had pursued the aims of preventing public disorder and protecting the rights and freedoms of others. 106. As to the proportionality of the interference, the Government argued that the decision not to authorise the demonstration had been taken “in order to prevent the violation of the legislation on public gatherings”. The requirement to notify the authorities in the requisite form was part of the normal duties of demonstration organisers.", "The local authorities took measures to prevent mass public disorder and possible destabilisation of the political situation in the district. 107. The organisers were warned about repercussions for the participants of the unauthorised demonstration. They were also repeatedly warned against the use of firearms and cold weapons during the demonstration. The authorities tried to negotiate with the demonstrators and proposed an alternative place for them to hold the demonstration, but that offer was declined and the protesters continued their unlawful actions.", "Thus, they blocked the road between two villages; many participants of the unauthorised demonstration had firearms, iron rods and other weapons, and they used them against the police officers. The use of force by the police squad was compatible with the requirements of the Police Act of 18 April 1991. The Government explained that the Police Act provided for the use of physical force and special equipment (such as rubber truncheons and tear gas) to discontinue criminal activities and administrative offences, and supress acts of violence or riots which perturb the normal functioning of the transport system, communications, and so on. 108. The Government further described the clash between the police and the protesters near the village of Miskindzha.", "They claimed that the police had the right, under section 15(2) of the Police Act, to use firearms in self-defence. They stressed that the use of firearms was limited to shots above the heads of the crowd. 109. The Government explained that the use by some unidentified police officers of pump-action shotguns loaded with 22 mm tear-gas grenades was contrary to Instruction No. 865dsp of the Ministry of Internal Affairs of Russia of 5 November 1996, which prohibited firing such grenades directly at people.", "2. The applicants’ submissions 110. The first and the third applicants (hereinafter – “the applicants”) argued that the domestic authorities and the Government had misconstrued the Public Gatherings Act. Section 17 of the Act spoke of “lodging” the notice, not its “receipt”. The notice was posted on 10 April 2006; it followed that the organisers of the demonstration had complied with the time-limits for “lodging” the notice.", "111. The applicants further argued that the Public Gatherings Act provided for a notice requirement only. It followed that the district administration did not have the power to authorise the meeting or refuse the authorisation; they could only take note of the notice. 112. The applicants claimed that the interference with the rights of the protesters had been two-fold: it had consisted of, first, the dispersal of the meeting, and, secondly, the arbitrary criminal prosecution of some of the protesters.", "The Government did not deny that there had been an interference with Article 11 rights, at least in so far as the dispersal was concerned. 113. The applicants’ claimed that the dispersal of the demonstration with the use of firearms had been disproportionate. The gathering was originally peaceful; its purpose was to criticise the local authorities, which was a perfectly legitimate form of civil protest. The use of firearms and special equipment by the law-enforcement agencies was disproportionate and was aimed at the suppression of criticism.", "114. In addition, the use of firearms was contrary to the domestic law, in particular, to section 15(3) of the Police Act, which prohibits the use of firearms in crowded places where there is a risk that third persons may be injured. 115. The Government’s assertion that prior to the demonstration someone had distributed alcohol, foodstuff and drugs amongst the residents of the village was not supported by any evidence. Similarly, there was no evidence that the protesters had started the violence and had blocked the road.", "3. The Court’s assessment (a) General principles 116. The Court reiterates that the freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of its foundations. Thus, it should not be interpreted restrictively (see Schwabe and M.G., cited above, § 110). 117.", "The Court has previously considered that notification, and even authorisation, procedures for a public event do not normally encroach upon the essence of the right under Article 11 of the Convention as long as the purpose of the procedure is to allow the authorities to take reasonable and appropriate measures in order to guarantee the smooth conduct of any assembly, meeting or other gathering (see Sergey Kuznetsov, cited above, § 42, and Rai and Evans v. the United Kingdom (dec.), nos. 26258/07 and 26255/07, 17 November 2009). Organisers of public gatherings should respect the rules governing that process by complying with the regulations in force. 118. The Court reiterates its finding in Ziliberberg v. Moldova (dec., no.", "61821/00, 4 May 2004) that “since States have the right to require authorisation, they must be able to apply sanctions to those who participate in demonstrations that do not comply with the requirement.” The question is how far such “sanctions” may go and whether the dispersal can be reasonable explained by the original “unlawfulness” of the public action. In Ziliberberg the Court decided that a short detention of the applicant and a small fine were not an excessive response to participation in an unauthorised demonstration in a public thoroughfare. However, as the Court stated in Samüt Karabulut v. Turkey (no. 16999/04, § 35, 27 January 2009, with further references), “an unlawful situation does not justify an infringement of freedom of assembly”. While rules governing public assemblies, such as the system of prior notification, are essential for the smooth conduct of public events since they allow the authorities to minimise the disruption to traffic and take other safety measures, the Court emphasises that their enforcement cannot become an end in itself.", "In particular, where irregular demonstrators do not engage in acts of violence the Court has required that the public authorities show a certain degree of tolerance towards peaceful gatherings (see Berladir and Others v. Russia, no. 34202/06, § 38, 10 July 2012; Galstyan, cited above, §§ 116-117; Bukta and Others v. Hungary, no. 25691/04, § 37, ECHR 2007-III; Oya Ataman, cited above, §§ 38-42; and Akgöl and Göl v. Turkey, nos. 28495/06 and 28516/06, § 43, 17 May 2011). 119.", "Consequently, the absence of prior authorisation and the ensuing “unlawfulness” of the action do not give carte blanche to the authorities; they are still restricted by the proportionality requirement of Article 11. Thus, it should be established why the demonstration was not authorised in the first place, what was the public interest at stake, and what were the risks represented by the demonstration. The methods used by the police for discouraging the protesters, containing them in a particular place and dispersing the demonstration are also an important factor in assessing the proportionality of the interference. Thus, the use by the police of pepper spray to disperse an authorised demonstration was found to be disproportionate even where the Court acknowledged that the demonstration could have disrupted the flow of traffic (see Oya Ataman, cited above). (b) Application to the present case 120.", "The Court reiterates its finding above that the first and the third applicants had not been amongst the organisers of the demonstration and hence had no standing to complain about the decision of 17 April 2006 as such. That being said, in assessing the events of 25 April 2006 and the actions of the police on that day the Court cannot disregard the reasons adduced by the district administration in the decision of 17 April 2006. After all, when on 25 April 2006 the police blocked the village of Usukhchay, it did so in order to implement the decision of 17 April 2006 and prevent the unauthorised gathering. Therefore, the Court will start its analysis of the events of 25 April 2006 with the examination of the reasons adduced by Mr A.’s, the head of the district administration, in his decision of 17 April 2006. (i) Alleged belated lodging of the notice 121.", "The Court recalls that Article 11 establishes a three-tier test: an interference will constitute a breach of Article 11 unless it is “prescribed by law”, pursues one or more legitimate aims under paragraph 2 and is “necessary in a democratic society” for the achievement of those aims. A particular feature of the present case is that the authorities forwarded three separate objections against the demonstration. The Court has to analyse each of them, by applying the three-tier test, in order to see whether any of those objections could have justified the banning of the demonstration. 122. First, Mr A. argued that the notice was lodged outside of the time‑limit set by the Public Gatherings Act.", "On this point the Court agrees that the duty to notify the authorities about a public event is not, as such, contrary to Article 11 of the Convention and that such a requirement pursues the legitimate aims of securing public order and protecting the rights and freedoms of other. However, the “duty of notification” is not an aim in itself. It exists in order to allow the authorities to evaluate the risks associated with the planned public event and take measures in order to mitigate them, for example, by suggesting an alternative place or timing of the event. 123. The present case raises two questions related to the “duty of notification”.", "First, the parties disagreed as to whether the organisers had submitted the notice within the time-limits provided for in the Public Gatherings Act. Secondly, even if they did not comply with the time-limits, the question is whether their failure to do so was by itself sufficient to make the upcoming event “unlawful” and what legal consequences it should have entailed. 124. On the first question, the Court notes that the Russian law required the organisers to “lodge” the notice not earlier than fifteen and not later than ten days before the planned event. The word “lodging” used in the Public Gatherings Act is ambiguous.", "The organisers believed that in order to comply with the law they had to send the notice during that period, whereas the district administration considered that the notice had to be received before the deadline. 125. The Court is not called upon to give a definitive interpretation of the Public Gatherings Act. It simply observes that a norm cannot be regarded as a “law” if it is not formulated with sufficient precision. Some laws are inevitably couched in terms which, to a greater or lesser extent, are vague (see, among other authorities, Rekvényi v. Hungary [GC], no.", "25390/94, § 34, ECHR 1999-III). However, in the present case it was relatively easy for the legislator to clarify what was meant by “lodging” of a notice: its sending or receipt. The Government did not refer to any secondary legislation or regional Act which would elucidate that point. The Court does not exclude the possibility that the authorities’ reading of the law might have been correct. However, even on this assumption, the organisers must have been excused for misinterpreting the law since the law itself was ambiguous.", "126. Next, the Court notes that the law provided for a very short time‑slot when the notification could have been “lodged”. Had the organisers sent their notice at some point before 10 April 2006, they would have risked having it rejected as premature. They posted the notice on the first day of the prescribed period in Makhachkala, the capital of Dagestan, which is about 230 km from the village of Usukhchay. However, for reasons which remain unknown, the letter took seven days to reach the district administration.", "In a region where the postal service is not very swift, the five-day period prescribed by law appears to be clearly insufficient if the notice is to be delivered by mail. Thus, the Court concludes that the organisers made a reasonable effort to comply with the very tough requirement of the law and thus met their “duty of notification”. 127. The Court also notes that the delay in “lodging” the notice, if any, was insignificant. Mr A. decided not to allow the demonstration on the same day the notice was received.", "From the text of his reply of 17 April 2006 it is clear that he considered the notice on the merits and assessed, in particular, the capacity of the park and the subject matter of the protest. The present case must therefore be distinguished from a situation where organisers submit a notice, for example, on the eve of an event, leaving the authorities no chance to prepare for that event or negotiate alternative options. 128. In the Court’s opinion, in the circumstances Mr A.’s refusal to allow the demonstration with reference to the allegedly belated “lodging” of the notice did not have a firm basis in the domestic law and was, in addition, not sufficient to justify the interference complained of. (ii) Insufficient admission capacity of the park 129.", "The second reason for the refusal to allow the demonstration was the allegedly insufficient capacity of the park. The first and the third applicants did not argue that Mr A. was wrong in his assessment of the capacity, and there is nothing in the case materials to refute his assessment. In such circumstances, the Court is prepared to accept that the park was, indeed, too small to host all the demonstrators. 130. In the Court’s opinion, even though a park is, a priori, a “public space” suitable for mass gatherings, its size is a relevant consideration, since overcrowding during a public event is fraught with danger.", "It is not uncommon for State authorities in various countries to impose restrictions on the location, date, time, form or manner of conduct of a planned public gathering (see Berladir and Others, cited above, § 54). The Court is therefore prepared to accept that such restrictions, in principle, pursue a legitimate aim. Furthermore, it is not disputed that the domestic law permitted the authorities to regulate the manner, timing and location of public events, depending on the characteristics of the specific area at issue. 131. That being said, the Court does not consider that the size of the park was sufficient reason for a total ban on the demonstration.", "The situation in the present case is comparable to that in the case of Barankevich v. Russia (no. 10519/03, § 33, 26 July 2007), where the Court found that “instead of considering measures which could have allowed the ... assembly to proceed peacefully, the authorities imposed a ban on it. They resorted to the most radical measure denying the applicant the possibility of exercising his rights to freedom of ... assembly”. The Court considers that in the present case it was the authorities’ duty to reflect on the possible alternative solutions and propose another venue to the organisers. However, the head of the district administration decided to take the “most radical measure”.", "Thus, a fair balance between the legitimate aim and the means for attaining it was not attained. (iii) The authorities’ substantive criticism of the message of the demonstration 132. The third reason for banning the demonstration related to the ideas which its organisers wished to express in public, in other words, the “message” of the demonstration. Thus, in his reply to the organisers’ written notice, Mr A. stated that all allegations of corruption, embezzlement and tampering with official records were false and had been refuted by numerous official investigations and audits. 133.", "The Court is not aware of the details of the local political debate and does not need to assess the veracity of the accusations; it is sufficient to note that the demonstrators’ “message” undeniably concerned a serious matter of public concern and related to the sphere of political debate. Furthermore, it is clear that the accusations against the district administration officials related to some factual circumstances which had already given rise to a number of domestic inquiries. 134. The Court reiterates that it has been its constant approach, under Article 10, to require very strong reasons for justifying restrictions on political speech or serious matters of public interest (see, with necessary changes made, Karman v. Russia, no. 29372/02, § 36, 14 December 2006; Feldek v. Slovakia, no.", "29032/95, § 83, ECHR 2001-VIII; and Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV). 135. The approach under Article 11 must be the same: public events related to political life in the country or at the local level must enjoy strong protection under that provision, and rare are the situations where a gathering may be legitimately banned in relation to the substance of the message which its participants wish to convey.", "The Government should not have the power to ban a demonstration because they consider that the demonstrators’ “message” is wrong. It is especially so where the main target of criticism is the very same authority which has the power to authorise or deny the public gathering, as in the case at hand. Content-based restrictions on the freedom of assembly should be subjected to the most serious scrutiny by this Court, and in the present case the Government did not forward any convincing argument which would justify such a restriction. 136. Having regard to the above the Court concludes that the decision of Mr A. not to allow the demonstration, in the light of the reasons adducted in his letter of 17 April 2006, was unjustified.", "(iv) The events of 25 April 2006: the blockade of Usukhchay and the dispersal of the demonstration near Miskindzha 137. The above finding, however important it may be, does not suffice to conclude that all subsequent actions of the police on 25 April 2006 were automatically contrary to the Convention. In many cases the dispersal of a demonstration can be regarded as a direct consequence of the authorities’ decision not to allow it, but in the present case the Court considers that the dispersal must be examined in its own right. Even a lawfully authorised demonstration may be dispersed, for example when it turns into a riot. Similarly, even where the original ban on a demonstration is unjustified, as in the case at hand, its dispersal may be necessary in view of the subsequent developments.", "The situation in the present case evolved very quickly, and the actions of the police must be assessed not only in the light of the decision of 17 April 2006 but also taking into account the situation as it stood on 25 April 2006. 138. The Court observes that the events of 25 April 2006 had two distinct phases. The dividing line between them lies at around 1 p.m., when the demonstrators, including the first and third applicants, approached the village of Miskindzha and blocked the federal road with stones and other objects. The first phase, which took place in or near Usukhchay village, was relatively peaceful, whereas the second phase, which took place on the federal road near Miskindzha, culminated in a clash between the forces of order and the protesters.", "The Court will first assess the first phase of the demonstration, namely the events of the morning of 25 April 2006. The central question is whether any new circumstances, not mentioned in the decision of 17 April 2006, could have justified the actions of the authorities, and, in particular, the blockade of the village by the police. (α) Establishment of the facts 139. Before turning to the legal analysis of the events of 25 April 2006, the Court observes that the parties’ accounts differed on certain points. The Court’s approach to the establishment of the facts depends on a number of factors.", "One is the character of the complaint made under the Convention. The Court observes that, as a result of the dispersal of the demonstration, some of the protesters were seriously wounded and one, Mr Ng., died. As follows from the intermediate conclusions of the criminal investigation (case no. 668459), the casualties were in part explained by the fact that unidentified police officers did not respect the instructions and fired tear‑gas grenades directly at the crowd. 140.", "The Court reiterates that in certain cases under Articles 2 and 3, where the underlying events remain within the exclusive knowledge of the authorities, it has applied a reversed burden of proof and required the Government to produce a convincing explanation as to what happened to the applicant. However, in the present case the Court has not received complaints from those who were wounded during the dispersal of the demonstration or from the relatives of the late Mr Il. The case before the Court is not about endangering the first and third applicants’ life and limb, but only about interfering with their right under Article 11. 141. The Court observes that the events of 25 April 2006 were the object of numerous inquiries and examinations at the domestic level (compare with Disk and Kesk v. Turkey, no.", "38676/08, § 30, 27 November 2012, where the Court stressed that there had been no domestic investigation, and where it decided “on the basis of the material submitted by the parties”). The applicants did not challenge the findings of the investigations and inquiries before the domestic courts. Nor did they criticise the manner in which those investigations and inquiries had been conducted. In such circumstances, it is safe to use the factual findings of the official investigations and inquiries as the basis for further examination of the case. 142.", "The Court must nonetheless distinguish the facts of the case, as established by the official inquiries and investigations, and the possible inferences from those facts and their legal interpretation. The Court has to verify whether the domestic authorities “based their decisions on an acceptable assessment of the relevant facts” (see Hyde Park and Others v. Moldova (no. 4), no. 18491/07, § 52, 7 April 2009). (β) Blockade of Usukhchay on 25 April 2006 by the police 143.", "The Court observes that on 25 April 2006 Usukhchay village was blockaded by the police and that the protesters were not allowed to gather in the centre of the village near the premises of the district administration, as they wished. The first and third applicants did not argue that the decision of the police commander to block access to the village was contrary to the domestic law. Furthermore, it is clear that the actions of the police on that day pursued the legitimate aim of preventing disorder and crime. The question remains as to whether those actions were proportionate to the legitimate aim pursued. 144.", "The Court notes that the reasons for blockading the village were not set out in writing; however, such reasons can be deduced from the overall circumstances, the decisions taken and the statements made by various State authorities involved in the events. The first reason was invoked by the district authorities during the negotiations with the leaders of the demonstration in the morning of 25 April 2006: they claimed that if a considerable number of people were to gather near the premises of the district administration, the crowd would risk blocking the main road adjacent to the square. 145. The Court reiterates in this respect that any large-scale gathering in a public place inevitably creates inconvenience for the population. Although a demonstration in a public place may cause some disruption to ordinary life, including disruption of traffic, it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of its substance (see Galstyan, cited above, §§ 116-117, and Bukta and Others, cited above, § 37).", "The appropriate “degree of tolerance” cannot be defined in abstracto: the Court must look at the particular circumstances of the case and particularly to the extent of the “disruption of ordinary life”. 146. The Court accepts that the risk of temporarily blocking the main road existed. However, in contrast with the barricades which were mounted on the federal road near Miskindzha several hours later (see below), the blocking of the road in Usukhchay by the crowd was expected to be relatively brief. Further, since the gathering took place in the centre of the village, the Court is not persuaded that there were no alternative thoroughfares where the traffic could have been diverted by the police.", "147. The Court notes that the authorities tried to propose to the leaders of the demonstration an alternative venue in the village, namely the municipal garage. That offer was made at the last moment, when it was virtually impossible for the organisers to modify the form, scale and timing of the event. Thus, the alternative proposal made by the administration was, in the Court’s opinion, inappropriate (contrast with Berladir and Others, cited above, § 56). It follows that the first reason invoked by the authorities was insufficient to justify the complete blockade of the village by the police.", "148. Secondly, it is clear that the blockade of the village was explained by security considerations. Thus, Order No. 7 (see paragraph 20 above) demonstrated that the police feared that the demonstration would result in attacks against State institutions and infrastructure. 149.", "That being said, the Court notes that, in contrast to the incident near Miskindzha, examined below, in the morning of 25 April 2006, when the crowd gathered on the outskirts of Usukhchay, the authorities had not yet been confronted with actual violence. 150. In a previous case where there existed a risk of clashes between the demonstrators and their opponents, the Court held that “the mere existence of a risk [of clashes with a counter-demonstration] is insufficient for banning the event: in making their assessment the authorities must produce concrete estimates of the potential scale of disturbance in order to evaluate the resources necessary for neutralising the threat of violent clashes” (see Fáber v. Hungary, no. 40721/08, § 40, 24 July 2012, with further references). In the same case the Court analysed the existence of a “demonstrated risk of insecurity or disturbance” (§ 47).", "Thus, the Court has to examine first whether any such risk was “demonstrated”, that is, supported with ascertainable facts, and, secondly, whether its “scale” was such as to justify the authorities’ actions. 151. Turning to the present case, the Court notes that the authorities’ fear of possible clashes was not imaginary: on 19 April 2006 more than three hundred men armed with iron rods and sticks battered several individuals in the villages of Kamsumkent and Khiv and then attacked a roadblock mounted by the police (see paragraph 8 above). Although the link between the two incidents – of 19 April and of 25 April 2006 – is not entirely clear, the relation between those incidents cannot be ruled out. It follows that the authorities’ forecast as to the possible scenario for the demonstration of 25 April 2006 was not groundless, and was based on a very recent episode.", "Furthermore, the intensity of violence on 19 April 2006 was not insignificant. Therefore, in the light of the specific facts of the present case, the Court is prepared to conclude that the presence of heavily armed police forces on the ground was not unjustified, and certain additional security measures were arguably required. 152. That being said, the Court is not persuaded that the complete blockage of the village was necessary. The Court stresses that it would be wrong to disperse a demonstration simply because some of its participants have a history of violent behaviour.", "The demonstration was originally intended to be peaceful. At least, it was so stated by the organisers in the notice sent to the district administration on 10 April 2006. The district administration’s refusal to authorise the demonstration did not refer to the violent character of the gathering; it was prohibited for other reasons. The behaviour of the demonstrators in the morning of 25 April 2006 was non‑violent as well. The authorities deployed a large number of well‑equipped and trained police officers in the village and, as the matter transpires, police forces had the situation in Usukhchay under control.", "Everything suggests that the police forces prevented protesters from entering Usukhchay and demonstrating there essentially because the police considered that the gathering was “unauthorised”; however, the reasons adduced by the district administration for not authorising the demonstration were either unconvincing or had no clear legal basis. In the light of the above, the total blockade of the village was an excessive measure. 153. The Court concludes that, to the extent that the first and third applicants complained about the impossibility to demonstrate on the morning of 25 April 2006 in the village of Usukhchay, the response of the authorities was disproportionate. There was, therefore, a violation of Article 11 of the Convention on this account.", "(γ) Clash between the protesters and the police near Miskindzha 154. The Court will now turn to the second phase of the events, which ended with the clash between the protesters and the police near Miskindzha, as a result of which several people were wounded and even killed. The Court observes that, as transpires from the materials of the case, the first and the third applicants followed the crowd to Miskindzha and were present at the scene when the confrontation has started; however, at some point later they left. The findings of the domestic investigation in this respect were not conclusive; the Court is prepared to assume that the two applicants were a part of the demonstration for the most part of its second phase. 155.", "The Court recalls that Article 11 does not cover demonstrations where the organisers and participants have violent intentions (see Stankov and the United Macedonian Organisation Ilinden, cited above, § 77). However, an individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration if the individual in question remains peaceful in his or her own intentions or behaviour (see Ziliberberg, and Schwabe and M.G., § 92, both cited above). The Court endorses the opinion of the Commission in the case of Christians against racism and fascism v. the United Kindgom (Commission decision of 16 July 1998, no. 8440/78, Decisions and Reports 21, p. 48), where the Commission held as follows: “... [T]he possibility of extremists with violent intentions, not members of the organising association, joining the demonstration cannot as such take away [the right under Article 11]. Even if there is a real risk of a public procession resulting in disorder by developments outside the control of those organising it, such procession does not for this reason alone fall outside the scope of Article 11 § 1 of the Convention.” 156.", "In the present case the parties disagreed as to who had been responsible for the escalation of violence – the protesters or the police. It remains to be established whether the intensity of the violence was such as justify the actions of the police which led to the loss of life and limb. However, as a preliminary conclusion the Court is prepared to assume that during the second phase of the events of 25 April 2006 the protesters still enjoyed protection of Article 11 of the Convention. It must be ascertained whether, in the light of the escalation of violence in the afternoon of 25 April 2006, the authorities’ response was proportionate to the aim pursued, namely the prevention of disorder. 157.", "The Court notes that where both sides – demonstrators and police – were involved in violent acts, it is sometimes necessary to examine who started the violence. The situation was examined from that angle in the case of Nurettin Aldemir and Others v. Turkey (nos. 32124/02, 32126/02, 32129/02, 32132/02, 32133/02, 32137/02 and 32138/02, § 45, 18 December 2007), where the Court found as follows: “The Court observes that there is no evidence to suggest that the group in question initially presented a serious danger to public order. Nevertheless, it is likely that they would have caused some disruption in a particularly busy square in central Ankara. It transpires that the demonstrators, including the applicants, wished to draw attention to a sensitive bill proposed in the Parliament and that their rally was initially peaceful.", "However, the authorities’ intervened swiftly with considerable force in order to disperse them, thereby causing tensions to rise, followed by clashes.” The Court concluded in that case that the forceful intervention of the police officers had been disproportionate. It must be stressed that, in domestic terms, the public gathering in that case was “unlawful” since it was held in a place where demonstrations were not permitted (see § 7). 158. Turning to the present case, the Court notes that at around 1 p.m. the protesters blocked the road with two barricades, and when the police, after long negotiations, tried to clear the road in order to let the traffic through, some of the protesters started to throw stones at the officers and attacked them with iron rods, wooden sticks and knives. The fact that the protesters attacked the police first, and that the police officers used firearms in reaction thereto and in order to protect themselves was established in the report of the internal inquiry dated 10 May 2006 (see paragraph 66 above) and in the investigation report dated 25 December 2006 within criminal case no.", "67610 (see paragraph 50 above). The Court reiterates that the applicants did not challenge those findings before the domestic courts and did not criticise the process of the investigation and the inquiry (see paragraph 141 above). 159. Furthermore, those findings were not arbitrary as such. Thus, several witnesses testified that protesters had been throwing stones at policemen (see paragraph 52 above).", "Gun cartridges which did not belong to weaponries of the police had been found on the scene of the clash (see paragraph 51 above). Several policemen had been wounded and one received a gunshot wound from a hunter’s gun (see paragraph 50 above). The exact chronology of the events is difficult to establish since witness testimony collected by the investigating authorities contained conflicting accounts (compare, for example, paragraphs 35 and 36 above). However, the essential finding of the investigation, namely that the protesters had attacked the police first, had support in the materials of the case (see, in particular, paragraphs 34, 36, 37, 38 and 40). Furthermore, it was not disputed that despite the dispatch of over 180 policemen to the area the police were seriously outnumbered.", "160. The Court cannot exclude that the authorities may have been partly responsible for what happened on the road near Miskindzha. Thus, the crowd marched to Miskindzha because the demonstration could not take place in Usukhchay as originally planned. However, even if the decision of 17 April 2006 to ban the demonstration was erroneous, and even if the blockage of Usukhchay was a disproportionate measure, it did not give the protesters the right to block the road and attack the police. The Court stresses that the protesters did not limit themselves to holding their meeting in another place; they blocked a federal road and demanded the presence of the leadership of the Dagestan Republic for further negotiations.", "As transpires from the materials in the Court’s possession, the road blocked by the protesters was the main thoroughfare linking several mountain villages. Therefore, its blockage went beyond the inevitable disruption of traffic and circulation of pedestrians which often accompanies demonstrations in big cities. In such circumstances, the intervention of the police does not seem to overstep the margin of appreciation of the national authorities. 161. The Court observes that not all of the protesters were involved in the acts of violence.", "Moreover, there is no strong evidence that the first and third applicants were personally involved in any violent act: thus, although the first applicant was originally suspected of having incited the protesters to block the road and oppose the police “with the use of firearms”, the accusations against him were finally dropped. As to the third applicant, he has never been suspected of any violent behaviour during the events of 25 April 2006; his arrest and subsequent prosecution were related to his role in the incident of 19 April 2006 near Kamsumkent and Khiv. 162. That being said, what happened on the road near Miskindzha cannot be described as marginal or “sporadic” violence (see Ziliberberg, cited above). A considerable number of demonstrators overstepped the boundary of peaceful protest, attacked policemen with stones, sticks, rods and knives and seriously injured some of them (see paragraph 66 above).", "Against this background, the use of the special equipment and even firearms by the police does not seem to be unjustified. Even if some of the police officers acted unprofessionally and in defiance of the rules on the use of gas grenade launchers (ibid. ), there is no evidence that the firearms had been used deliberately to kill or to wound the protesters. 163. The Court emphasises that it has no complaint from the persons who had been injured by the police during the clash or whose relative has been killed by a gas grenade.", "In the context of Article 11 the Court is prepared to conclude that the authorities’ overall response to the blocking of the road and the aggressive behaviour of a big group of protesters was not disproportionate. It follows that there was no violation of Article 11 of the Convention on this account. (δ) Arrest of the first applicant (from the standpoint of Article 11) 164. Finally, the Court turns to the first applicant’s complaint about his arrest on 29 April 2006. This element of the case has already been examined by the Court under Article 5; in particular, the Court found that the authorities had had reasons to suspect the applicant of having incited the crowd to attack the policemen, that the arrest and further detention had been ordered with a view of further investigation into his role in the events of 25 April 2006.", "The Court also found that the term of his detention was not excessive for the purposes of Article 5 § 3 of the Convention. Now the same facts are to be examined through the prism of the right to peaceful assembly. The question is whether detaining the applicant for two months pending investigation into his role in the events of 25 April 2006 was compatible with Article 11 of the Convention. 165. The Court answers this question in the positive.", "The Court recalls that the authorities had certain prima facie evidence supporting the initial suspicion against the first applicant (see paragraphs 40 and 41 above), and that the extremely violent character of the clash in the afternoon of 25 April 2006 makes the authorities’ account even more credible. There is no proof that the authorities had at their disposal any important piece of evidence or vital information which would refute the initial suspicion against the applicant and which they knowingly ignored. It is thus safe to conclude the authorities genuinely suspected the applicant of having incited attacks against the policemen. Therefore, the applicant’s arrest and detention had a lawful basis (see the Court’s findings under Article 5 § 1 (c) above) and pursued a legitimate aim of “prevention disorder or crime”. As to the proportionality of the measure, the Court observes that Article 11 does not give immunity against prosecution for violent actions during public gatherings, especially where the intensity of violence is considerable, as in the present case.", "There is no evidence that the authorities acted in bad faith, the duration of his detention pending the investigation (two months) appears reasonable, given the complexity of the case. Finally, the fact that the applicant was finally released and the charges against him were dropped for lack of sufficient evidence of his involvement in violent acts is indicative of the will of the authorities to establish the truth and not just put the blame for the tragic events of 25 April 2006 on the leaders of the protesters. In such circumstances the Court is prepared to conclude that the two months’ detention of the first applicant following the events of 25 April 2006 was not contrary to Article 11 of the Convention. Therefore, there was no violation of this Convention provision on that account. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 166. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 167. The applicants claimed 30,000 euros (EUR) each in respect of non‑pecuniary damage. 168.", "The Government believed that the finding of a violation would constitute a sufficient just compensation. The amounts claimed by the applicants were, in the Government’s opinion, excessive. 169. The Court recalls that all complaints of the second applicant were declared inadmissible. As to the first and the third applicants, the Court found a violation of Article 11 only in connection with the events of the morning of 25 April 2006, finding no violation in all other respects.", "170. In the light of all materials in its possessions, and in view of its findings under Article 11 of the Convention, the Court awards the first and the third applicants on an equitable basis EUR 7,500 each in respect of non‑pecuniary damage. B. Costs and expenses 171. The applicants also claimed EUR 2,770 for the legal costs and expenses incurred before the Court.", "172. The Government claimed that the above amount had not been paid to the lawyers, and had thus not been actually incurred. 173. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Government did not contest the reasonableness of the lawyers’ rates or the fact that legal services had been rendered to the applicants by the lawyers concerned.", "As to whether or not the amounts were “actually incurred”, the Court reiterates that even where legal fees have not been paid, they remain “recoverable” under the domestic law (see Fadeyeva v. Russia, no. 55723/00, § 147, ECHR 2005-IV). The Court is thus prepared to consider such costs as “actually incurred”. At the same time, the Court is prepared to reduce the amount of legal costs given that not all of the first and third applicants’ complaints were declared admissible. 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 of the proceedings before the Court in respect of the first and third applicants.", "C. Default interest 174. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Declares unanimously the first and the third applicants’ complaints under Article 11 of the Convention about the events of 25 April 2006 and the first applicant’s complaint about his arrest and detention admissible, and the remainder of the applicants’ complaints inadmissible; 2. Holds unanimously that there has been a violation of Article 11 of the Convention in respect of the impossibility for the first and the third applicants to demonstrate on the morning of 25 April 2006 in Usukhchay; 3.", "Holds by five votes to two that there has been no violation of Article 11 of the Convention in respect of the authorities’ actions in the afternoon of 25 April 2006 on the road near Miskindzha; 4. Holds unanimously that there has been no violation of Article 11 of the Convention in respect of the first applicant’s arrest and detention; 5. Holds unanimously (a) that the respondent State is to pay the first and the third 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 Russian Roubles at the rate applicable at the date of settlement: (i) EUR 7,500 (seven thousand five hundred euros) to the first and the third applicant each, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,000 (two thousand euros) to the first and the third applicants jointly, plus any tax that may be chargeable to the first and the third applicants, in respect of their costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses unanimously the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 12 June 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenIsabelle Berro-LefèvreRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Judge Dedov; (b) joint partly concurring, partly dissenting opinion of Judges Pinto de Albuquerque and Turković. I.B.L.S.N. CONCURRING OPINION OF JUDGE DEDOV 1. My opinion refers to the Court’s interpretation in the present case of Article 11 of the Convention. The Court has found a violation of this Article in respect of the fact that it was impossible to demonstrate.", "The Court has stated, in particular, that “content-based restrictions on the freedom of assembly” should be justified by convincing arguments, and that the Government failed to provide such arguments. But there were indeed arguments, and the demonstration was prohibited on account of the allegedly inaccurate message being expressed by its organisers, since, according to the authorities, all of the allegations of corruption were false and had been refuted by official investigations and audits (see paragraphs 132-136 of the judgment). The Court has not explained why these arguments were unconvincing. The Court has also found no violation of Article 11 in respect of the forced dispersal of the demonstration. In my view, there is a link between the content-based refusal to allow the demonstration and the subsequent blockade and clash between protesters and the police.", "The authorities’ preliminary reaction in the letter of 17 April 2006 (see paragraph 7) was formalistic and contrary to the fundamental principles of governance in a democratic society, and consequently led to the dissatisfaction which turned into outrage, intolerance and, ultimately, violence. If corruption and embezzlement were the subject-matter of criticism, as in the present case, a dialogue between the authorities and the organisers and the latter’s involvement in the investigation and audit process were vital in order to maintain the legitimacy of the authorities’ power. Therefore, the authorities are partly to blame for the violence committed by the demonstrators and police. 2. What fundamental principles are applicable in the present case?", "Outside the context of elections, citizens’ involvement, including through protest, is the only method by which grievances can be brought to the attention of government. In order for citizens’ participation to be meaningful, the government must be responsive to the concerns raised by the citizenry, as the individual’s power to influence is necessarily limited by the government’s responsiveness. To the extent that freedom of association and assembly are considered essential to democratic self-governance, the force of these freedoms is curtailed when government officials are not responsive to the concerns raised. Admittedly, government officials cannot enact every change or proposal advocated by dissident citizens. But a problem arises when officials offer no response, or a perfunctory and/or dismissive response, to claims of wrongdoing by government officials (and in the facts of this case, the fact that the official dismissing the grievances is the very same official against whom they are made is even more problematic).", "The right to assemble in order to petition the government for redress of grievances is a hollow right when officials offer inadequate responses to potentially valid concerns of corruption. This is especially so in the case of local governments, which are closer and more accessible to the population. 3. The facts of this case present a troubling picture with regard to the local authorities’ response to the applicants’ complaints. Upon receiving notice that the applicants intended to hold a demonstration to denounce alleged corruption and misuse of funds by Mr. A and the attendant failure of law‑enforcement agencies to counter these abuses, the local authorities responded by stating that those allegations were baseless.", "In effect, this response seems to suggest the applicants were prohibited from holding their demonstration because the government considered their views to be incorrect. Yet a fundamental purpose of the freedoms of association and assembly is to enable citizens to gather in order to express their own views on the workings of the government and to demand accountability for perceived shortcomings – governments may not block protests on account of officials’ beliefs that protesters’ positions are inaccurate. This type of inadequate response to citizens’ grievances undermines one of the core functions of the freedom of assembly, namely citizens’ right to self‑governance and to communicate their views to their government authorities. If denied the ability to hold a demonstration on the issue of alleged corruption by the local authorities, protesters are effectively denied any opportunity of making their views heard by the public and by local authorities. Moreover, the demonstrators were equally entitled to express their dissatisfaction with the authorities’ response to the effect that their concerns were baseless.", "4. It is widely accepted that the freedoms of speech, assembly and association provide the basis for an active citizenry to foster a functioning democratic government. It has been stressed on many occasions that public debate is a political duty and the very foundation of constitutional government (see Whitney v. California, 274 U.S. 357 (1927); De Jonge v. Oregon, 299 U.S. 353 (1937); and New York Times Co. v. Sullivan, 376 U.S. 254 (1964)), and that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment (see Stoll v. Switzerland [GC] (no. 69698/01, § 101, ECHR 2007‑V), and Mouvement raëlien suisse v. Switzerland ([GC], no. 16354/06, § 48, 13 July 2012).", "5. The Council of Europe has also expressed concerns about democratic self-governance through the Congress of Local and Regional Authorities Resolution no. 326 on Citizen Participation at the Local and Regional Levels in Europe, issued in 2011, which calls on member States to take measures to increase citizen participation, through methods such as panels, initiatives and referendums, as “recent demonstrations and events in Europe and on its borders indicate a growing need for citizens to be listened to by their elected politicians and to be able to influence politics at all levels, including between elections”. More generally, the Resolution stated in paragraph 2 that: “For good governance at the local and regional level it is essential that citizens are able to have direct contact with elected officials and have some influence on the exercise of the authorities’ powers and responsibilities. This is the level where their immediate concerns are taken into account.", "Working directly with people at neighbourhood level is central to how locally and regionally elected representatives should operate”. The Parliamentary Assembly of the Council of Europe has expressed similar concerns. Jean-Claude Mignon, PACE President, stated at a round table during the 2012 World Forum for Democracy that “citizens should have their say in the way public affairs are run, not only once every four or five years, but every day[1]”. 6. I believe that the authorities failed to properly respect public discussion because they did not understand its importance and role in a democratic society and in relation to the national constitutional order.", "JOINT partly concurring,PARTLY Dissenting opinion ofJudges Pinto de Albuquerque and Turković 1. In the present case, the applicants contested four different, but interrelated, administrative and police actions: (1) the district administration’s prohibition of the demonstration of 25 April 2006; (2) the blocking by the police of the demonstrators’ access to their chosen place of assembly on that day; (3) the police dispersal of the demonstration; and (4) the arrest and detention of the first and third applicants on 29 April 2006, following the demonstration, and of the second applicant on 21 April 2006, prior to the demonstration. We agree with the majority’s conclusions on points (1), (2) and (4), albeit for different reasons. But we disagree entirely with the majority on point (3), which constitutes the core of this complex case. Unlike the majority, we think that the police acted unlawfully and disproportionately when they fired 747 live bullet shots from automatic rifles and twenty-three 23 mm gas grenades at the demonstrators, causing the death of one of them from a gas grenade injury to his thorax, and several gunshot injuries to four other demonstrators.", "Indeed, it is a miracle that such a brutal reaction did not cause more casualties[2]. The facts 2. We do not agree with the majority’s assessment of the evidence in the file. We are of the view that the majority’s reasoning in this regard says both too much and too little. On the one hand, the majority stopped short of the clear conclusion reached by the domestic criminal investigation that the police had breached the law and in particular that gas grenades had been fired in a prohibited manner, that is to say, against the instructions on the use of gas grenades not to “[shoot] gas grenades directly at humans” (see paragraphs 66 and 71 of the judgment).", "But it did not go so far as to absolve the police of any wrongdoing during the dispersal of the demonstrators, since it concluded that the police had acted “unprofessionally and in defiance of the rules on the use of gas grenade[s]” (see paragraph 162). Regrettably this conclusion was not upheld in the subsequent reasoning of the judgment. 3. On the other hand, the majority did not refrain from making inadmissible factual assumptions where the domestic criminal investigator had not reached any final conclusion, such as on the issues of the number of violent demonstrators and the origin of the violence. While the witnesses talked of a “group of youngsters” (paragraph 39), a “group of adolescents” (paragraph 40) and a “group of young men” (paragraph 52) displaying aggressive behaviour, the majority referred to a “considerable number of demonstrators” (paragraph 162) or a “big group of protesters” (paragraph 163) displaying such behaviour.", "Where the domestic criminal investigator concluded that a group of young men had just “started to throw stones and shout insults at the police” (paragraph 52), the majority concluded that the demonstrators had “attacked policemen with stones, sticks, rods and knives” (paragraph 162, referring to a Ministry of Interior report cited in paragraph 66). 4. What is more, the majority simply ignored crucial evidence. The applicants’ statements made during the domestic criminal investigation were disregarded in spite of the existence of irrefutable video and testimonial evidence that the first and third applicants had conducted themselves peacefully during the demonstration and that the first applicant had left the scene of the demonstration before the confrontation with the police started (see paragraphs 54-56). In fact, the very fact that the criminal cases against the applicants were dismissed for lack of evidence was not considered.", "Neither the criminal investigation’s evidence nor its conclusions were taken seriously. Basically, the majority accepted as the uncontested truth the conclusions of the internal inquiry carried out by the federal Ministry of the Interior, which was based on the statements of police officers who had been involved in the dispersal of the demonstration, including the commander of the “mixed squad”, Mr Iz. (see paragraph 66), without even taking note of the fact that none of the police officers had ever referred to the use of knives or guns by the demonstrators against the police in their testimonies before the domestic criminal investigator, or the fact that a police officer had even retracted his previous statement claiming that the demonstrators had acted violently towards the police (see paragraph 53). Although there were reasons to suspect that the wound caused to the sole police officer allegedly injured by a gunshot (Mr Il.) had been accidental and self-inflicted, the fact that Mr Il.’s medical certificate was not presented by the Government to the Court was likewise considered of no importance by the majority (see paragraph 33, contrasted with paragraph 19).", "Finally, the crucial fact that gas grenades were fired by the police “in the direction of the crowd”, as the Government themselves acknowledged (see paragraph 29), and that one of these gas grenades hit the thorax of a demonstrator and killed him (see paragraph 31), was entirely disregarded by the majority. Thus, the statement that “the essential finding of the investigation, namely that the protesters had attacked the police first, had support in the materials of the case (see, in particular, paragraphs 34, 36, 37, 38 and 40)” reflects a one-sided reading of the evidence. It did not convince us. 5. The assessment of the evidence was made especially difficult owing to the shortcomings in the domestic investigation carried out immediately after the events, which were aggravated by the lack of information provided by the Government (see paragraph 32).", "The domestic criminal investigation was fruitless, in spite of the seventy witnesses heard and the ballistic and medical forensic examinations carried out. It did not reach any conclusion as to the identity of the people responsible for the death and injuries which occurred during the demonstration of 25 April 2006. In other words, the domestic prosecuting authorities did not, and to this day do not, know exactly who did what and when on 25 April 2006 on the road going to Miskindzha, and therefore closed the investigation in February 2007 and, after reopening it, closed it again in January 2010. If in 2007 the domestic prosecuting authorities knew little about the order of events, the Court knows even less seven years later. Any factual assumption made in 2014 on the basis of an inconclusive criminal investigation and, worse still, of an internal inquiry of the Ministry of the Interior based on evidence produced by the very police officers under investigation, is nothing but pure illusion.", "Hence, the Court should have refrained from imputing to the applicants responsibility for the grave incident that occurred on 25 April 2006, and instead should have stuck to the bare fact that on that day the police used dangerous weapons unlawfully against the demonstrators and killed one of them. 6. As the OSCE, the Venice Commission and the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association have repeatedly stressed, there is a presumption in favour of holding peaceful assemblies, which means that an assembly should be presumed lawful and deemed as not constituting a threat to public order, until the Government put forward compelling evidence that rebuts that presumption[3]. In the instant case, the Government did not prove to the required level of satisfaction that the violence had been initiated by the demonstrators, still less that the applicants had been in any way involved in violent action against the police. In fact, the available evidence speaks against that thesis.", "The majority did not take in account the said presumption, acknowledged by current international human rights standards. 7. In conclusion, the essential finding of the investigation is not that the demonstrators attacked the police first, but that the police breached the law and in particular that gas grenades were fired at demonstrators in a prohibited manner, “in the direction of the crowd”, and that this police conduct caused a fatal casualty. This irrefutable fact was not considered by the majority, on the grounds that there was no Article 2 complaint in the file. Such an argument is utterly unfounded since the lack of an Article 2 complaint clearly does not excuse the majority from considering the full array of “special equipment” deployed by the police against the demonstrators, and the way in which it was used.", "On the contrary, it is necessary to consider these issues in order to make a fair assessment of the proportionality of the “overall response” of the police during the demonstration of 25 April 2006 and to be able ultimately to come to a conclusion as to whether the police conduct was in accordance with Article 11 of the European Convention on Human Rights (“the Convention”). To pretend otherwise equates to not seeing the wood for the trees[4]. The legality and proportionality of the prohibition of the demonstration 8. The district administration’s prohibition of the demonstration of 25 April 2006, on the basis of the allegedly belated notification of the assembly to the authorities, the insufficient capacity of the place of assembly chosen by the organisers and the purportedly critical political message of the demonstrators, was clearly at odds with the international obligations of the respondent State, namely with Article 11 of the Convention[5]. In the case at hand, the political nature of the assembly and the nature of the administrative and police authorities’ conduct in breach of the State’s negative obligation not to interfere unduly with freedom of assembly, as well as the public place where the police conduct took place, point in the direction of a narrow margin of appreciation for the district administration.", "In the light of this standard, the reasons invoked for the State interference lack any foundation. 9. Indeed, the first reason given is clearly unfounded. Russian law required organisers to “lodge” the notice no earlier than fifteen and no later than ten days before the planned event, failing which the demonstration would be prohibited[6]. In addition to the lack of clarity of this law, already stressed by the majority’s judgment, the way it was applied is subject to justified criticism.", "The district administration’s interpretation, according to which the notice had to be received before the deadline, is manifestly arbitrary, since it imputes to the organisers any delay caused by the public postal service. This interpretation places an untenable burden on the organisers of the demonstration, in view of the obvious fact that they cannot prevent delays in the public postal service, for which they have no responsibility. Since the organisers of the demonstration sent notice of the demonstration in due time, any delay in the delivery of this notice to its addressees must be imputed to the public postal service and cannot in any way be held against the organisers[7]. Furthermore, as the Government admitted, the notice of the meeting was received by the local administration eight days prior to the holding of the meeting[8], which allowed a sufficient period of time for the administration to take the necessary measures to guarantee observance of the law[9]. In sum, any requirement regarding the giving of notice to the public authorities may not be excessively stringent in terms of the deadline imposed, and only the belated lodging of the notice can be imputed to the organisers, not its belated receipt.", "In any case, failure to comply with such a requirement may not be considered as sufficient grounds for prohibiting a demonstration[10]. 10. The second reason given for the prohibition of the demonstration is also unfounded. The place chosen by the organisers, a public recreational park, is a traditional public forum, where the State may not restrict speech based on its content unless it can show that such regulation is necessary to secure a compelling State interest and is precisely tailored to achieve that interest. In addition, while regulations as to time, place and manner may be imposed, they must not be of such a nature as to encroach upon the substance of the freedom of assembly, and therefore must take into account the purpose of the demonstrators.", "In the case at hand, the district administration opposed the demonstration in the recreational park because the latter allegedly had a maximum capacity of 500 people, well below the estimated number of 5,000 demonstrators. According to the Government, the “authorities” proposed to the organisers that the demonstration be held in a “municipal garage”, a proposal which was declined (see paragraphs 24 and 34). Even if the initial concern of the public authorities to ensure the security of the event might have justified a change of venue, the proposed alternative location was evidently unacceptable for two reasons. First, the proposed change from an outdoor to an indoor venue, where its impact would be muted, would have substantially diminished the practical impact of the event on the targeted administrative official and the administrative body he headed, and would have deprived the demonstration of its purpose of raising the political awareness of the general population[11]. Second, even more importantly, the proposed alternative venue would necessarily have implied a reduction in the number of demonstrators, limiting the number of people admitted to express their views and participate in the public debate.", "Both restrictions would unequivocally have affected the essence of the demonstrators’ freedom of assembly. To formulate it in a principled manner, public authorities may not impose, directly or indirectly, a reduction in the number of participants in a demonstration or a venue where the limited space available would result in such a reduction, or one where the social and political purposes of the demonstrators would be frustrated. Furthermore, they may not “refuse to allow” (that is, prohibit) the holding of such a demonstration if the organisers reject the proposed alternative venue and, in the event that the latter stage the demonstration in the initial venue, may not punish them except where the grounds set forth in Article 11 § 2 of the Convention apply[12]. 11. Finally, the third reason given for refusing to authorise the demonstration constitutes blatant interference with the principle of content‑neutrality of State regulation of expression in the public arena[13].", "According to this principle, the State is not assumed to support all the messages that are communicated in public facilities and spaces. It seems that this was not the case in Dagestan. The political purpose and public interest of the demonstration, which was aimed at criticising the work of the head of the district administration and condemning the embezzlement of public funds and the deliberate destruction of financial records by the district administration, were protected by the Russian Constitution (Article 31). Even assuming that, as the head of the district administration claimed, the competent law-enforcement authorities, in particular the prosecutor’s office, and financial authorities such as the Ministry of Finance of Dagestan, had already inquired into those allegations and concluded that there was no case to answer, these conclusions were irrelevant for the purpose of assessing the legality of the demonstration. The fact that the head of the district administration, who was himself the target of the demonstrators’ criticism, took the decision to prohibit the demonstration, with the tacit acceptance of the public prosecutor (see paragraph 24), is telling as regards the deficiency of the rule of law in Dagestan.", "According to one of the major tenets of a State under the rule of law, namely the principle of impartiality, a public official should not take decisions on issues where he or she has a personal interest. In the light of this principle, a responsible public official would have withdrawn from the case where he or she was the subject of the criticisms of those wishing to demonstrate. In other words, the rule to be extracted from the principle of impartiality is that a public official targeted by a demonstration is not in a position to take any substantive or procedural decision on it, and should therefore withdraw from the case. The legality of the police dispersal of the demonstration 12. Since the district administration’s prohibition of the demonstration was unlawful, the blocking of the demonstrators’ access to their chosen place of assembly was a fortiori unlawful.", "The unlawfulness of the prohibition to assemble, which violated the demonstrators’ right to assemble, tainted the subsequent order blocking the demonstrators’ access to the place of demonstration and, consequently, also the police dispersal action. Moreover, there was no clear and imminent danger of public disorder, crime or other infringement of the rights of others to justify such interference with the demonstrators’ right to assemble from 10 a.m. until 3 p.m., according to the applicants (see paragraph 18), or until 2 p.m., according to the Government (see paragraph 25)[14]. 13. Even assuming that such a danger arose at some stage during the afternoon when the clashes between the police officers and the demonstrators started, the police reaction should have been selective and gradual. When confronted with an aggressive demonstration, the police action must be targeted to those specific demonstrators who act violently[15].", "In addition, the police must only use more dangerous means of response when less dangerous ones have proved ineffective, following a scale of continuum of force that must be set out in the law and include verbal commands, use of hands and bodily force, water cannon, tear gas and other chemical agents, batons or other impact weapons, dogs, plastic or rubber bullets and other non-lethal projectiles, and finally deadly force[16]. Furthermore, especially dangerous means, such as gas grenades, must be used in strict accordance with the applicable technical instructions to avoid unnecessary harm, and in particular must not be fired “directly at humans”. The police officers in Dagestan did the opposite. The gas grenades were fired “in the direction of the crowd”, which means that they were fired in a prohibited manner (see paragraphs 66 and 71). Moreover, they were fired indiscriminately, without regard for the life and well-being of those demonstrators who were not aggressive and without following any order of precedence with regard to other less dangerous means[17].", "This conduct breached not only Russian law (see paragraph 71), but also the European standard established by the Court in the Abdullah Yaşa and Others case[18]. The proportionality of the police dispersal of the demonstration 14. To justify the conduct of the police, the Government portrayed this case as an extreme example of uncontrolled violence by a mob of dangerous people who attacked the police officers first with stones, knives and even gunfire. The evidence in the file does not support this claim. But even assuming this scenario were true, the police dispersal of the demonstration, and the force used during it, would have been disproportionate[19].", "15. As a matter of principle, the dispersal of assemblies should be a measure of last resort, and a mere failure to comply with formal requirements for the exercise of freedom of assembly does not justify such a drastic measure[20]. If dispersal is deemed absolutely necessary in view of a clear and imminent danger of public disorder, crime or other infringement of the rights of others, the assembly organisers and participants should be clearly informed prior to any police intervention and be given reasonable time to disperse[21]. In the dispersal of violent assemblies, law‑enforcement officials may use firearms only in self-defence or in defence of others against the imminent threat of death or serious injury and when less dangerous means have not been effective[22]. In these circumstances, law‑enforcement officials must identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would create a risk of death or serious injury to law-enforcement officials or other persons[23].", "The Government have not provided the Court with any evidence that these preventive measures were taken by the police before they opened fire against the demonstrators. Furthermore, the considerable amount of ammunition used by the police, in contrast to the rudimentary means of attack allegedly used by the demonstrators, clearly shows the disproportionate character of the police action. Even in the scenario described by the Government, the police action would have exceeded the permissible limits of self-defence. 16. Finally, sufficient administrative controls to ensure police accountability for the use of force and firepower during public assemblies, such as an ammunition registration and control system and a communications records system to monitor operational orders, those responsible for them and those carrying them out, must be put in place[24].", "The Government did not even attempt to argue that such measures exist in Dagestan. Conclusion 17. Demonstrators in Dagestan have a hard time making their critical view of the administration publicly known. They even face the risk of being killed when they do so. It is the task of this Court to protect the freedom of assembly and expression of these courageous women and men, and not to condone the police lack of professionalism and defiance of the law.", "That is why we have concluded that there has been a violation of Article 11 of the Convention also with regard to the way in which the demonstration of 25 April 2006 was dispersed. The evidence speaks for itself: the police dispersal action was tantamount to brutal repression of the demonstrators. In fact, that was the most serious grievance caused to the demonstrators by the public authorities of the respondent State, exceeding even the previous arbitrary conduct of the district administration. We could not turn a blind eye to the most serious grievance in the case, because behaviour that gets rewarded gets repeated. [1].", "Mignon J.-C. Towards a Democracy More Representative of Citizens, 10 October 2012. [2]. As will be shown in this opinion, the sheer gravity of the facts imputed to the respondent State, the great complexity of the legal issues involved and above all the need for clarification of the “clear and imminent danger” test applicable in assessing the proportionality of the dispersal of aggressive demonstrations would justify the intervention of the Grand Chamber. Moreover, the conclusion reached by the Chamber on the use of gas grenades during the demonstration directly contradicts the recent case-law of the European Court of Human Rights (”the Court”) established in Abdullah Yaşa and Others v. Turkey (no.", "44827/08, 16 July 2013). [3]. See the Venice Commission and OSCE/ODIHR Guidelines on freedom of peaceful assembly, 2010, second edition, guideline 2.1, and the Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, 24 April 2013, A/HRC/23/39, paragraph 50. [4]. The majority did not even consider it important to investigate whether the deceased Mr Nkh.", "had been armed or had acted violently towards the police. In Solomou and Others v. Turkey (no. 36832/97, 24 June 2008), the Court found a violation of Article 2 in relation to the shooting of an unarmed demonstrator, despite the fact that some other demonstrators had been armed with iron bars. Thus, the principle established in Solomou and Others, according to which there can be no use of deadly force against peaceful, unarmed demonstrators, has been called into question by the majority in the present case. [5].", "This opinion will not deal with the problematic order for undercover observation of the leaders of the demonstrators and the video recording of the demonstration (see paragraph 20). These delicate issues (see the Venice Commission and OSCE/ODIHR Guidelines, 2010, cited above, paragraph 169 of the explanatory notes) were not raised by the applicants in their complaints. [6]. Sections 5.5 and 7.1 of the Federal Law on assemblies, meetings, demonstrations, marches and picketing of 18 August 2004 (“the Public Gatherings Act”). The legal expression “refusal to allow” is a euphemism for prohibition.", "[7]. See the Joint Opinion on the Law on Peaceful Assemblies of Ukraine by the Venice Commission and OSCE/ODIHR, CDL-AD(2010)033, § 30: “It is recommended to focus on the day of submission of the notification and/or the day of sending the notification instead of focusing on the arrival of the notification, because unintentional delays might occur due to post services.” [8]. See page 3 of the Government’s observations. [9]. See the Venice Commission and OSCE/ODIHR Guidelines, 2010, cited above, guideline 4.1 and paragraph 116 of the explanatory notes, and the Venice Commission Joint Opinion on the Law on Mass Events of the Republic of Belarus, CDL-AD (2012)006 OSCE/ODIHR, § 78; see also the Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, 2013, cited above, paragraphs 52 and 55.", "[10]. In view of this conclusion, section 5.5 of the Russian Public Gatherings Act, viewed in conjunction with the time-limits laid down in section 7.1, is incompatible with Article 11 of the Convention. The exact same conclusion was reached by the Venice Commission Opinion on the Federal Law on assemblies, meetings, demonstrations, marches and picketing of the Russian Federation, CDL-AD(2012)007, §§ 33 and 37. [11]. As a general rule, assemblies should be facilitated within “sight and sound” of their target audience, and any alternative proposed by the authorities must be such that the message that the protest seeks to convey is still capable of being effectively communicated to those to whom it is directed.", "See the Venice Commission and OSCE/ODIHR Guidelines, 2010, cited above, guideline 3.5 and paragraphs 33, 45, 101 and 123 of the explanatory notes; the Joint Opinion on the Public Assembly Act of the Republic of Serbia by the Venice Commission and OSCE/ODIHR, CDL-AD(2010)031, § 32; the Joint Opinion on the Law on Peaceful Assemblies of Ukraine by the Venice Commission and OSCE/ODIHR, cited above, § 35; and the Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, 2013, cited above, paragraphs 56 and 60. Thus, the blanket prohibition contained in section 8.2 and 8.3 of the Russian Public Gatherings Act is not compatible with Article 11 of the Convention. It should be noted that the Venice Commission Opinion on the Federal Law on assemblies, meetings, demonstrations, marches and picketing of the Russian Federation, cited above, § 34, had already stated as follows: “Rather than listing premises on which public events are always prohibited or are dependent on a procedure determined by the President of the Russian Republic (see Article 8.4 Assembly Act), general criteria in the Assembly Act should set out in what circumstances and to what extent an assembly might pose a threat to the listed buildings or to the function carried out in them. Such criteria could then be applied to specific cases when an assembly is proposed.” [12]. In view of this conclusion, section 5.5 of the Public Gatherings Act is not compatible with Article 11 of the Convention.", "In its judgment of 2 April 2009, the Russian Constitutional Court examined that section and concluded that it did not confer on the authorities the power to prohibit assemblies and that the alternative time and place should correspond to the social and political objectives of the event. Both Judge Kononov, in his dissenting opinion joined to the above-mentioned judgment of the Constitutional Court, and the Commissioner for Human Rights in the Russian Federation in his Special Report on the constitutional right to peaceful assembly in the Russian federation, 2007, have criticised the way the Public Gatherings Act was couched and applied, arguing that the notification procedure has degenerated into a “de facto authorisation procedure”. The Venice Commission Opinion on the Federal Law on assemblies, meetings, demonstrations, marches and picketing of the Russian Federation, cited above, §§ 21-23 and 30, has also expressed the criticism that the lack of clarity of section 5.5 and the resulting broad discretion left to the authorities are not compatible with Article 11 of the Convention. A remarkable step in the right direction was taken by the recent judgment of the Russian Constitutional Court of 14 February 2013, which found point 4 of section 2 of the Federal Law of 8 June 2012 No. 65-ФЗ, in the part vesting executive bodies of a subject of the Russian Federation with authority to determine unified places specially assigned or adapted for the holding of public events, not to conform to the Constitution of the Russian Federation to the extent that, contrary to the requirements of certainty, clarity and unambiguousness of legal regulations, it did not specify criteria for ensuring the equality of the legal conditions governing the exercise of the right to freedom of peaceful assembly in the determination of places specially assigned or adapted for the holding of public events by executive bodies of subjects of the Russian Federation, thereby engendering the possibility of differing interpretations and, consequently, of arbitrary application.", "[13]. See on this principle the separate opinion of Judge Pinto de Albuquerque in Mouvement Raëlien Suisse v. Switzerland [GC], no. 16354/06, ECHR 2012. [14]. Paragraph 150 of the judgment is not a good example of clarity, in so far as the “demonstrated risk of insecurity” standard is not sufficiently determinate, leaving the Court in the dark when assessing the “scale” of the risk.", "Instead, this opinion refers to the “clear and imminent danger” test which is applicable to freedom of assembly cases (see the Venice Commission and OSCE/ODIHR Guidelines, 2010, cited above, guideline 3.3, and paragraphs 72, 95, 98, 154 (test for the stopping, searching or detention of demonstrators en route to an assembly) and 166 (test for dispersal) of the explanatory notes; the Venice Commission and OSCE/ODIHR Guidelines on freedom of peaceful assembly, 2008, paragraphs 63 and 86-90 of the interpretative notes; the Venice Commission Opinion on the Federal Law on assemblies, meetings, demonstrations, marches and picketing of the Russian Federation, cited above, § 44; the OSCE Guidebook on Democratic Policing, second edition, 2008, paragraph 66; the Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, 23 May 2011, A/HRC//17/28, paragraph 60; the Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, 21 May 2012, A/HRC/20/27, paragraph 35; the Opinion on the Draft Law on Meetings, Rallies and Manifestations of Bulgaria, CDL-AD(2009)035, § 58; the Joint Opinion on the Public Assembly Act of the Republic of Serbia by the Venice Commission and OSCE/ODIHR, cited above, § 13(G); the Joint Opinion on the Act on Public Assembly of the Sarajevo Canton (Bosnia and Herzegovina) by the Venice Commission and OSCE/ODIHR, CDL-AD(2010)016, § 5; the Joint Opinion on the Order of Organising and Conducting Peaceful Events of Ukraine by the Venice Commission and OSCE/ODIHR, CDL-AD(2009)052, § 5(u); and the Inter-American Commission of Human Rights, Second Report on the situation of human rights defenders in the Americas, 31 December 2011, OEA/Ser.L/V/II, Doc. 66, paragraph 139, Report on the Situation of Human Rights Defenders in the Americas, 7 March 2006, OEA/Ser.L/V/II.124, Doc. 5 rev. 1, para. 58, and Chapter IV, Annual Report 2002, Vol.", "III “Report of the Office of the Special Rapporteur for Freedom of Expression,” OEA/Ser. L/V/II. 117, Doc. 5 rev. 1, paragraph 34; see also, finally, the opinion of Judge Pinto de Albuquerque in Fáber v. Hungary, no.", "40721/08, 24 July 2012, reiterated in the opinion of Judges Raimondi, Jočienė and Pinto de Albuquerque in Kudrevičius and Others v. Lithuania, no. 37553/05, 26 November 2013, and the opinion of Judges Pinto de Albuquerque, Turković and Dedov in Taranenko v. Russia, no. 19554/05, 15 May 2014). [15]. See Zilberberg v. Moldova (dec.), no.", "61821/00, 4 May 2004, and Ezelin v. France, 26 April 1991, Series A no. 202; see also the Venice Commission and OSCE/ODIHR Guidelines, 2010, cited above, paragraphs 25, 71, 111, 159, 164 and 167 of the explanatory notes; the Joint Opinion on the Public Assembly Act of the Republic of Serbia by the Venice Commission and OSCE/ODIHR, cited above, § 48; the Joint Opinion on the Amendments to the Law on the Right of Citizens to Assemble Peaceably, Without Weapons, to Freely Hold Rallies and Demonstrations of the Kyrgyz Republic by the Venice Commission and OSCE/ODIHR, CDL-AD(2008)025, § 48; the Opinion on the Draft Law on Meetings, Rallies and Manifestations of Bulgaria, cited above, § 60; the Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, 2012, cited above, paragraph 25; the Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, 2013, cited above, paragraph 27; and the Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, 2011, cited above, paragraphs 42 and 61. [16]. See the Venice Commission and OSCE/ODIHR Guidelines, 2010, cited above, guideline 5.5 and paragraphs 171-172 of the explanatory notes, and the OSCE Guidebook on Democratic Policing, cited above, paragraphs 65-74. [17].", "As the former Council of Europe Human Rights Commissioner stressed in a letter to the Russian Government of November 2011, this seems to be part of a general pattern of conduct on the part of the police in the Russian Federation, who often exceed their authority when dealing with protest rallies. The words used by the Commissioner were the following: “Force has often been used – at times excessively – and participants in assemblies have been apprehended and brutally treated, even during peaceful events.” [18]. Abdullah Yaşa and Others, cited above, §§ 45 and 47. [19]. The subsequent arrest and detention of the first and third applicants may be considered justified in view of the preliminary factual elements provided to the Sovetskiy District Court of Makhachkala and the Supreme Court of Dagestan, which could be sufficient to comply with the standard of “reasonable suspicion” (see paragraphs 49 and 88).", "While noting the sparse nature of the reasons given by the domestic courts, we are still able to follow the majority on this point. [20]. See Bukta and Others v. Hungary, no. 25691/04, § 36, 17 July 2007; Balçik and Others v. Turkey, 25/02 §§ 49-53, 29 November 2007; and Biçici v. Turkey, no. 30357/05, §§ 55‑56, 27 May 2010; see also the Venice Commission and OSCE/ODIHR Guidelines, 2010, cited above, paragraph 165 of the explanatory notes, and the Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, 2012, cited above, paragraph 29.", "[21]. See the Venice Commission and OSCE/ODIHR Guidelines, 2010, cited above, paragraph 168 of the explanatory notes. [22]. The overreaching principle in respect of the use of deadly weapons by law-enforcement officials during public assemblies is self-defence. Reference to riot control in this context is misleading and should be avoided (also pointing to this interpretation, see the Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, cited above, paragraphs 138 and 139, and the OSCE Guidebook on Democratic Policing, cited above, paragraph 66).", "[23]. Principles 9, 13 and 14 of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, 1990, and the Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, cited above, paragraph 62. Recommendation No. R (2000) 10 of the Committee of Ministers of the Council of Europe, which adopted the European Code of Police Ethics, does not contain specific guidelines on the use of force before, during and after assemblies. [24].", "See the Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, 2012, cited above, paragraph 36, and the Report on the situation of human rights defenders in the Americas, 2006, cited above, paragraph 68." ]

[ "SECOND SECTION CASE OF SILICKIENĖ v. LITHUANIA (Application no. 20496/02) JUDGMENT STRASBOURG 10 April 2012 FINAL 10/07/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Silickienė v. Lithuania, The European Court of Human Rights (Chamber), sitting as a Chamber composed of: Françoise Tulkens, President,Danutė Jočienė,Dragoljub Popović,Isabelle Berro-Lefèvre,András Sajó,Işıl Karakaş,Guido Raimondi, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 20 March 2012, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no.", "20496/02) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Lithuanian nationals, Mr Mindaugas Silickis and Mrs Jurgita Silickienė (“the applicants”), on 15 May 2002 and 10 September 2003 respectively. On 24 April 2003 Mr M. Silickis died. 2. The applicants were represented before the Court by Mr Ričardas Girdziušas, a lawyer practising in Kaunas. The Government were represented by their Agent, Ms Elvyra Baltutytė.", "3. Under Article 6 of the Convention Mrs J. Silickienė alleged that the criminal proceedings that resulted in confiscation of her property were not fair. Invoking Article 1 of Protocol No. 1 to the Convention, she also complained that the deprivation of her property had been unlawful. 4.", "By a decision of 10 November 2009, the Court declared the application, as concerns the complaints by Mrs J. Silickienė, admissible. The Court declared inadmissible the application as far as it concerned Mr M. Silickis (hereinafter – M.S.). The name of the case has consequently been changed from Silickis and Silickienė v. Lithuania to Silickienė v. Lithuania and hereinafter the term “the applicant” refers to the second applicant, Mrs J. Silickienė. 5. The applicant and the Government each filed further written observations (Rule 59 § 1).", "The parties replied in writing to each other’s observations. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1971 and lives in Vilnius. A.", "The criminal proceedings against the applicant’s husband 7. On 16 August 2000 M.S., the applicant’s husband, a high ranking tax police officer, was arrested on suspicion of having committed various offences of fraud. He was remanded in custody. 8. Later that month he was charged with forgery, fraud and inappropriate commercial activities.", "9. In May 2001 M.S. was charged with more serious offences, including that of smuggling large quantities of alcohol. 10. In February 2002 M.S.", "was accused of further serious crimes, including forming and leading a criminal association in order to smuggle alcohol and cigarettes in large quantities. 11. In 2000 a criminal investigator froze certain property belonging to M.S., his mother and the applicant. The mother appealed against that decision, pursuant to Article 2441 of the Code of Criminal Procedure (see the Relevant domestic law and practice part below). As a result, on 23 July 2002 the District Court of Kaunas City released some of her assets – an apartment, a garage and a plot of land – the seizure of which was deemed to have been unreasonable.", "The court noted, however, that the café and shares in a telecommunications company which had been in the possession of the mother of M.S. was property acquired as a result of his criminal activities. The seizure of those items was upheld. The applicant did not appeal against the seizure of her property. 12.", "In August 2002 a prosecutor approved a bill of indictment against M.S. and three of his accomplices, K.K., J.M. and V.V. The case was transmitted to the Kaunas Regional Court. 13.", "On 24 April 2003 M.S. committed suicide in the Lukiškės Remand Prison. 14. On 25 and 28 April 2003 the applicant and the mother of M.S. requested the court to continue the case to enable his rehabilitation.", "That same day the Kaunas Regional Court decided to continue the proceedings in so far as they concerned the activities of the criminal association organised by the applicant’s late husband. The court appointed a lawyer to defend the interests of the deceased. 15. On 28 May 2003 the Kaunas Regional Court received a request from the applicant and M.S.’s mother to discontinue the criminal proceedings. By a ruling of 2 June 2003 the court dismissed that request, noting that it had already started examining the evidence in the case.", "It observed that, without having examined the evidence, the court could not establish whether grounds existed to rehabilitate M.S. 16. On 22 January 2004 the Kaunas Regional Court adopted its judgment. It noted that there were no grounds on which M.S. could be exculpated.", "On the contrary, the court found sufficient evidence to prove that the applicant’s husband, being a State official, had indeed organised and led a criminal association for smuggling purposes between spring 1999 and March 2000. The offenders had succeeded in passing contraband on twenty-two occasions. However, in view of M.S.’s death, the court decided to discontinue the proceedings against him. Three of his co-accused, K.K., J.M. and V.V., were convicted and sentenced to prison sentences ranging from three years six months to six years.", "Two other co-accused were released from criminal liability because they had cooperated with the authorities and contributed to discovering the crimes. 17. The Kaunas Regional Court ordered the confiscation of certain items of property on the ground that they had been acquired as a result of M.S.’s criminal activities (Article 72 § 3 (2) of the Criminal Code). In particular, the court ordered confiscation of the applicant’s apartment in Vilnius. The court established that the applicant had bought the apartment in August 1999, having obtained a sham loan of 80,000 Lithuanian litai (LTL, approximately 23,000 euros (EUR)) from the mother of V.V.", "The applicant’s shares in a telecommunications company, to the value of LTL 29,997 (approximately EUR 8,700), were also to be confiscated on the ground that they had been obtained through an off-shore company which the criminal organisation used to hide the proceeds of its crimes. The trial court also ordered confiscation of a café belonging to M.S.’s mother as well as certain other items. Nonetheless, it lifted the seizure of a plot of land, a garden house, and some money and furniture that belonged to the applicant, given that there was no evidence of the illicit origin of that property. For the same reason, the seizure of flats and plots of land belonging to M.S.’s parents was also lifted. Lastly, the trial court ordered confiscation of V.V.’s car on the ground that it had been used as a means to smuggle goods (Article 72 § 2 (2) of the Criminal Code).", "The reasons why each item of seized property should or should not be confiscated were set out in eight pages of the judgment. 18. Considering that the trial court’s judgment was erroneous, M.S.’s family hired another lawyer, E.J., to prepare an appeal. As the applicant wrote in her application to the Court, from that moment the lawyer E.J. “de facto represented all persons [who were affected by the confiscation measure]”.", "Appeals were also lodged by the prosecutor and three convicted persons. 19. In the appeal the lawyer E.J. contended that the criminal proceedings should have been discontinued after M.S.’s death. He also argued, mentioning each item of confiscated property, that those assets had been obtained from legitimate sources and thus the confiscation was unlawful.", "As concerns the applicant, E.J. averred that there was no proof to find that the apartment and shares in the telecommunications company, both registered in her name, had been obtained from the proceeds of the crimes. For the lawyer, the trial court’s conclusions about the circumstances in which the applicant had acquired the apartment and the shares were factually and legally erroneous. 20. On 25 October 2004 the Court of Appeal upheld the trial court’s judgment.", "The appellate court emphasised that the persons convicted had acted as an organised group (nusikalstamas susivienijimas) which was the most dangerous form of conspiracy (bendrininkavimas). The group’s criminal activity had lasted many years, was conducted systematically and did great harm to the State. The value of smuggled goods was millions of Lithuanian litai. Taking into account the scale, its systematic nature and the organisational level of the criminal activity, the case could be viewed as exceptional. 21.", "On the issue of confiscated property the Court of Appeal noted that of all persons whose property had been confiscated, only M.S.’s parents-in-law had testified before the trial court. Even so, they could not explain how they had obtained that property. Furthermore, M.S.’s conspirator V.V. had confirmed that his parents’ financial situation was not good and he could not explain financial transactions by his mother. 22.", "As regards the applicant, the Court of Appeal also noted that she was well aware of the criminal activities of her husband’s criminal association: “Even though M.S.’s wife J. Silickienė herself has not been charged [in this case], the examined evidence leaves no doubt that she was well aware of her spouse’s and the other co-accuseds’ criminal activities. ... J. Silickienė was informed each time smuggled goods were loaded or unloaded as well as about the sale of those goods. ... There is evidence that J. Silickienė herself received money which had been paid for smuggled goods. ... Consequently, J. Silickienė without any doubt knew that property which the [trial] court confiscated and which had been registered in her name previously had been obtained as a result of criminal activities.” 23.", "The appellate court also dismissed the argument by the lawyer E.J. that confiscation was not possible because criminal proceedings against M.S. had been discontinued. Article 72 of the Criminal Code obliged the court to confiscate property which was the proceeds of crime, if third persons to whom the property had been transferred knew about the unlawful origin of that property. Confiscation was in no way linked to whether those third persons had been charged with a crime or convicted.", "On the contrary, pursuant to the aforementioned provision, confiscation of the proceeds of the crime had to be ordered both when imposing a punishment and when a person has been released from criminal liability and even in the event that he or she had not even been charged with a crime. 24. The Court of Appeal also held: “...M.S.’s lawyer has unreasonably linked the confiscation of all the property listed in the judgment with the fact that the proceedings had been discontinued against M.S. However, it has been forgotten that not only M.S. but also other persons had been charged in the criminal proceedings in question.", "Those other persons had smuggled goods together with M.S., and the illicit gains had been obtained together. Some of those co-accused had been released from criminal liability, but three of the co-accused, J.M., K.K. and V.V., were convicted. For Article 72 § 3 of the Criminal Code to be applied, it was not important that the third persons to whom the property had been transferred should be family members or relatives of the person who committed the crime. Moreover, even presuming that it was M.S.", "who had transferred the property to his wife, his parents and his parents-in-law, it did not mean that that property had been obtained from the criminal activity of him alone. In the present case that property had been obtained as a result of the criminal activities of all co-accused, including those who had been convicted. Furthermore, V.V., who was M.S.’s cousin, had played a very important role in the activities of the criminal organisation. Accordingly, the persons to whom the confiscated property had been transferred were connected by family links not only to M.S., who died, but also to V.V., who was convicted. These circumstances totally rebut the appellant’s contention that the property had been confiscated after the proceedings had been discontinued, because in reality confiscation had been ordered after [the trial court] adopted an accusatory judgment”.", "25. Lastly, the appellate court pointed out that the trial court had exceptionally thoroughly set out the reasons why particular items had to be confiscated. In setting out its conclusions the trial court had relied on extensive analysis of the evidence examined in court, devoting a whole chapter of the judgment, eight pages in length, to that. In the appellate court’s view, the trial court’s findings had been reasonable. Even so, the appellate court again went through the evidence and upheld the trial court’s findings, dismissing E.J.’s arguments to the effect that the two confiscated items in the applicant’s ownership had a lawful provenance (see paragraph 19 above).", "26. The lawyer E.J. submitted an appeal on points of law. He contended, first, that the criminal proceedings against M.S. should have been discontinued after his death and that confiscation of property was possible only if an accusatory judgment had been adopted.", "Secondly, he alleged that the property, the confiscation of which had been ordered by the trial court, including that of the applicant, did not meet the requirements of Article 72 § 3 of the Criminal Code. In his submission, no fault of third person whose property was confiscated had been established. 27. On 17 May 2005 the Supreme Court dismissed the appeal on points of law. As regards the confiscation of property, the Supreme Court ruled that confiscation as a penal measure (baudžiamojo poveikio priemonė) could be applied independently of whether the procedure had been concluded by acquittal or conviction, and even in cases where a person had not been charged with a crime (kai asmuo netraukiamas baudžiamojon atsakomybėn).", "The Supreme Court emphasised that it was a court’s duty to confiscate property which fell under Article 72 §§ 2 and 3 of the Criminal Code. It was noted that, in its judgment, the trial court had thoroughly reasoned its choice as to which items of property should be confiscated as being the proceeds of illegal activities. The Supreme Court acknowledged that most of that property had been found in the possession of third persons. However, given the trial court’s conclusion that those persons knew or should have known about the illicit funding of the items concerned, it was lawful to confiscate them even though those persons had not been charged in the criminal proceedings against M.S. and the criminal organisation.", "B. Related criminal proceedings against the applicant and the mother of M.S. 28. By a judgment of 30 June 2005 of the Kaunas Regional Court the applicant was convicted of misappropriating property and falsifying documents. The court established that she was actively involved in organising unlawful money transfers to off-shore companies used by the criminal organisation led by her late husband, so that the money was hidden.", "She fully confessed that she had committed the crimes with the aim of helping her husband avoid criminal liability while he was in detention. The applicant was sentenced to four years’ imprisonment. 29. The mother of the applicant’s late husband was convicted of falsifying documents and sentenced to six month’s imprisonment. The court noted that she was merely executing the orders of the applicant, but that they had the common goal of helping M.S.", "30. Both the applicant and her late husband’s mother were pardoned under an Amnesty Act. II. RELEVANT DOMESTIC LAW 31. The Code of Criminal Procedure at the relevant time provided that a pre-trial investigator could freeze the assets of an accused, or assets which were acquired in a criminal manner but later were in a third party’s possession, so as to protect a potential civil claim or confiscation order (Article 195 § 1).", "Appeals lay against such orders of investigators to two court instances (Article 2441). 32. As concerns confiscation of property, at the material time the Criminal Code provided: Article 72. Confiscation of Property 1. Confiscation of property shall be the compulsory uncompensated taking into the ownership of a State of any form of property subject to confiscation and held by the offender, his accomplice or other persons.", "2. Confiscation of property shall be applicable only in respect of the property used as an instrument or a means to commit a crime or as the result of a criminal act. A court must confiscate: 1) the money or other items of material value delivered to the offender or his accomplice for the purpose of commission of the criminal act; 2) the money and other items of material value used in the commission of the criminal act; 3) the money and other items of material value obtained as a result of the commission of the criminal act. 3. The property transferred to other natural or legal persons shall be confiscated regardless of whether or not those persons are subject to criminal liability, where: 1) the property has been transferred to them for the purpose of commission of a criminal act; 2) when acquiring the property, they were aware, or ought to have been aware and could have been aware that this property, money or the valuables newly acquired by means thereof have been gained from of a criminal act.", "4. The property transferred to other natural or legal persons may be confiscated regardless of whether or not a person who has transferred the property is subject to criminal liability, where this person ought to and could have been aware that that property may be used for the commission of a serious or grave crime. <...> 7. When ordering confiscation of property, a court must specify the items subject to confiscation or the monetary value of the property subject to confiscation.” III. LAW AND PRACTICE REGARDING CONFISCATION OF PROPERTY IN THE MEMBER STATES OF THE COUNCIL OF EUROPE 33.", "In the legal systems of the Council of Europe Member States the concept of “confiscation” generally refers to a measure the effect of which is permanent deprivation of property by way of transfer of that property to the State. Seven countries (Albania, Germany, Georgia, Moldova, Romania, Sweden and Switzerland) provide for confiscation orders regardless of conviction. This type of confiscation order generally covers property that has been acquired though unlawful activities. As long as the origin cannot be justified, confiscation of such property may be imposed. Criminal liability of the offender is not relevant for the purposes of the confiscation order.", "For example, in Germany a court may order the confiscation of the proceeds of the crime despite the fact that the proceedings have been discontinued, as long as it can be established that a wrongful act has indeed been committed. 34. Five States (Bulgaria, Estonia, Luxembourg, the Netherlands and the Russian Federation) in principle require conviction as a prerequisite for confiscation whilst allowing for some exceptions to the general rule. In Bulgaria, if it is established or there are reasonable grounds to believe that the suspect committed the offence, confiscation of property acquired through that offence is permitted, even if the suspect is not ultimately convicted because of his or her death. Estonia and the Russian Federation allow confiscation of property which constitutes material evidence in limited circumstances.", "In the Netherlands, as a rule, a confiscation order will not be available upon the death of the accused. However, confiscation of the property that has already been seized can be imposed if it is plausible that the deceased had indeed committed an economic crime. Three States (Belgium, France and the United Kingdom) strictly rule out the possibility of confiscation without conviction. 35. Confiscation of property which is the proceeds of a crime may be imposed without conviction in certain circumstances either against third parties in general, or against family members in particular (Bulgaria, Estonia, Germany, Georgia, Moldova, the Netherlands, the Russian Federation, Switzerland and the United Kingdom).", "Knowledge of the illicit origin of the property, failure to justify its origin, the type of crime at issue and whether or not the third party is a fictitious owner are four most common circumstances in which a confiscation order may be made against property belonging to family members of an accused regardless of their conviction. IV. RELEVANT INTERNATIONAL INSTRUMENTS 36. On 22 December 1994 the Republic of Lithuania ratified the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (1990). The Convention aimed to facilitate international co-operation and mutual assistance in investigating crime and tracking down, seizing and confiscating the proceeds thereof.", "Parties undertake in particular to criminalise the laundering of the proceeds of crime and to confiscate instrumentalities and proceeds (or property the value of which corresponds to such proceeds). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 2 OF THE CONVENTION 37. The applicant alleged that the finding by the trial court of her late husband’s “criminal acts”, and the ensuing confiscation of her property on the basis of that finding, amounted to a fundamental abuse of process. She alleged a breach of Article 6 of the Convention, the relevant parts of which read as follows: “1.", "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” A. The parties’ submissions 1. The applicant 38. The applicant argued that Article 6 of the Convention in its criminal limb was applicable in the present case.", "By the judgment of 22 January 2004 the Kaunas District Court had clearly found her late husband responsible for the organisation and execution of criminal acts, short of pronouncing the word “guilt” or imposing a sentence. 39. The applicant further alleged that the finding by the trial court of her late husband’s “criminal acts”, and the confiscation of their family property on the basis of that finding was in breach of her procedural rights under Article 6 § 1 of the Convention. She pointed to the fact that she was not a party to the criminal proceedings against her late husband. Although she was questioned as a witness, the procedural rights of witnesses could not be equated to the procedural rights of the accused.", "Thus, she could not question witnesses and submit evidence to prove that the confiscated property had nothing in common with the crimes attributed to her late husband. Whilst admitting that she could have objected to temporary seizure of her property, the applicant submitted that that measure was not determinative for the final confiscation order. 40. Lastly, relying on Article 6 § 2 of the Convention the applicant noted that the confiscation of her property was related to the findings of her late husband’s criminal behaviour. It was not consonant with the presumption of innocence to direct that a person shall bear the loss of property in respect of crimes where the case has been discontinued.", "2. The Government 41. The Government submitted at the outset that Article 6 of the Convention under its “criminal head” was not applicable to the confiscation procedure at issue. In the criminal proceedings against the criminal organisation led by M.S., in which the confiscation of the applicant’s property had been imposed, the applicant was not accused of any criminal offence and the domestic courts did not determine any charges in her respect. Neither was Article 6 applicable under its “civil head”, given that no question concerning the applicant’s property rights in the sense of civil law had been determined.", "In the Government’s view, the confiscation of certain property imposed on the applicant was merely a preventive measure, aiming at deterrence of serious crimes based on property reasons. In that connection the Government also noted that in her application the applicant had made no express reference to Article 6 in so far as it related to “her civil rights and obligations”. 42. The Government further argued that the applicant’s interests related to the confiscated property were duly represented and defended before the domestic courts. In particular, at the pre-trial stage she had had the right to appeal to a court against the decision to seize her property.", "M.S.’s mother had lodged such an appeal, as a result of which part of the seized property had been released. However, the applicant had not made use of that right. For the Government, the applicant also could have testified as a witness during the court proceedings in order to explain the sources from which the property registered in her name was obtained, as did her parents, but, as the Court of Appeal rightly noted, she chose not to testify of her own will. 43. The Government’s main argument lay in the fact that M.S.’s defence counsel had submitted an appeal against the Kaunas Regional Court’s judgment of 22 January 2004, whereby the confiscation of the applicant’s property had been imposed.", "In his appeal, the lawyer had challenged the confiscation of the applicant’s property, and claimed that the confiscation of the said property should be lifted. Accordingly, and if the applicant had any relevant evidence to provide to the domestic courts in defence of her property rights, she could have submitted such evidence through the defence counsel of M.S. Lastly, the Government pointed out that M.S.’s defence counsel had also submitted an appeal on points of law, in which he had reiterated the arguments as to unlawfulness of the confiscation of the property of the applicant. Taking into account that M.S. had been represented by defence counsels during the proceedings at all three levels of jurisdiction, and that the confiscation of the applicant’s and her late husband’s property had been disputed before the courts of three instances, the applicant could not claim that her interests had not been defended before the domestic courts.", "44. In the light of the foregoing the Government considered that the applicant’s procedural rights under Article 6 of the Convention had not been breached in the present case. B. The Court’s assessment 1. Applicability of Article 6 of the Convention with regard to the confiscation 45.", "The Court reiterates that it is master of the characterisation to be given in law to the facts of the case. It is not bound by the characterisation given by the applicant or the Government. By virtue of the iura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by the parties and even under a provision in respect of which the European Commission of Human Rights had declared the complaint to be inadmissible while declaring it admissible under a different one. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see, most recently, G.R. v. the Netherlands, no.", "22251/07, § 36, 10 January 2012). On the basis of the materials submitted to it the Court notes that the applicant has undoubtedly complained about the loss of her property. It considers that the confiscation measure consequential upon the acts for which the applicant’s late husband was prosecuted affected in an adverse manner the property rights of the applicant and thus undoubtedly constituted an interference with her right to peaceful enjoyment of her possessions (see AGOSI v. the United Kingdom, 24 October 1986, § 65, Series A no. 108; Arcuri and Others v. Italy (dec.), no. 52024/99, 5 July 2001).", "46. Property rights being civil rights within the meaning of Article 6 § 1 of the Convention, that provision was applicable under its civil head and the applicant was consequently entitled to have the dispute over her civil right determined by a tribunal. The Government’s objection therefore must be dismissed. Accordingly, the question arises whether Article 6 was complied with. 2.", "Compliance with Article 6 § 1 of the Convention 47. The applicant argued that she could not defend her rights in the framework of the criminal proceedings against her husband, which resulted in the confiscation of her property. The Court considers that it is not called upon to examine in abstracto the compatibility with the Convention of the provisions of the Lithuanian criminal law, which oblige the court to confiscate money and property which have been acquired in a criminal manner, including property transferred to third persons. Instead, the Court must determine whether the way in which the confiscation was applied in respect of the applicant offended the basic principles of a fair procedure inherent in Article 6 § 1 (see, mutatis mutandis, Salabiaku v. France, 7 October 1988, § 30, Series A no. 141-A).", "It must be ascertained whether the procedure in the domestic legal system afforded the applicant, in the light of the severity of the measure to which she was liable, an adequate opportunity to put her case to the courts, pleading, as the case might be, illegality or arbitrariness of that measure and that the courts had acted unreasonably (see AGOSI, cited above, § 55; also see, mutatis mutandis, Arcuri and Others, cited above, and Riela and Others v. Italy (dec.), no. 52439/99, 4 September 2001). It is not, however, within the province of the Court to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them (see Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no. 247-B). 48.", "The applicant’s main argument lay in the fact that she had no benefit of fair proceedings, given that she was not a party to the criminal proceedings. Whilst noting that the applicant indeed was not a party to the criminal proceedings against the criminal organisation, the Court considers that the system in question was not without safeguards. It notes, first, that the confiscation of the applicant’s property had its origins in a measure taken by the investigating authorities, namely seizure of her assets in 2000. The Court considers that it was open to the applicant to institute judicial review proceedings to challenge the reasons for that seizure and present evidence that those items of property had been acquired lawfully. Whilst acknowledging that the seizure was only a temporary measure, having no conclusive influence over the subsequent confiscation, the Court is of the view that at that time the applicant could reasonably foresee that the seizure could result in confiscation of the property at a later stage of the proceedings.", "Accordingly, this was an occasion for the applicant to present her arguments and thus to obtain the lifting of the seizure. On this last point the Court also notes that, as it appears from the facts of the case, M.S.’s mother was successful in her plea that some of the seized property had been acquired lawfully, given that seizure of some of the assets was lifted (see paragraph 11 above). Lastly and even though having certain reservations as to the Government’s suggestion that the applicant could have explained the origin of her property had she chosen to testify in the criminal proceedings against the criminal organisation, the Court nonetheless finds that that was one more occasion for her to put forward any evidence in support of her claims. However, according to the Court of Appeal, she did not avail herself of that opportunity (see paragraph 21 above). 49.", "The Court also recalls that after the death of the applicant’s husband, the Kaunas Regional Court appointed counsel to represent his interests. Furthermore, as the applicant admitted in her application to the Court, after the trial court adopted its judgment, M.S.’s family hired another lawyer, E.J., who de facto defended her interests as well. The Court has particular regard to the fact that in his appeal and cassation appeal E.J. explicitly raised the matter of confiscation, arguing that the property belonged to third persons whose fault had not been established. In particular, E.J.", "challenged the confiscation in respect of each item of property, including those belonging to the applicant (see paragraphs 19 and 26 above). In these circumstances, the Court shares the Government’s view that if the applicant had any evidence to adduce to prove that her property came from legitimate sources, she could have passed that information on to E.J., the lawyer of her choice (see Bongiorno and Others v. Italy, no. 4514/07, § 49, 5 January 2010). 50. In the light of the above, while the Court considers that, as a general principle, persons whose property is confiscated should be formally granted the status of parties to the proceedings in which the confiscation is ordered, it accepts that in the particular circumstances of the present case the Lithuanian authorities de facto afforded the applicant a reasonable and sufficient opportunity to protect her interests adequately.", "Accordingly, it finds that there was no violation of the applicant’s rights under Article 6 § 1 of the Convention. 3. Compliance with Article 6 § 2 of the Convention 51. The applicant appears to argue that she was compelled to assume liability for crimes allegedly committed by her late husband who had not been convicted. In this context, the Court recalls that it is a fundamental rule of criminal law that criminal liability does not survive the person who has committed the criminal act.", "Imposing criminal sanctions on the living in respect of acts apparently committed by the deceased person calls for its careful scrutiny (see A.P., M.P. and T.P. v. Switzerland, 29 August 1997, §§ 46 and 48, Reports of Judgments and Decisions 1997-V). The Court further reiterates that the scope of Article 6 § 2 of the Convention is not limited to pending criminal proceedings but extends to judicial decisions taken after a prosecution has been discontinued (see, most recently, Vulakh and Others v. Russia, no. 33468/03, § 33, 10 January 2012).", "With regard to the application of the presumption of innocence, the Court’s case-law also shows that the autonomous meaning of the expression “charge” in Article 6 of the Convention means that a person can be considered to have been “charged” for the purposes of that Article when that individual’s situation has been “substantially affected” (see Serves v. France, 20 October 1997, § 42, Reports of Judgments and Decisions 1997‑VI). 52. On the facts of the present case the Court recalls that because of M.S.’s death, the criminal proceedings against M.S. were indeed terminated without his conviction. It notes, however, that contrary to what has been implied by the applicant, the criminal proceedings did not end with that procedural step alone.", "The Kaunas Regional Court convicted three other persons whom it had found to have formed a criminal organisation with her late husband. That conviction was upheld by the appellate and cassation courts. 53. Turning to the matter of confiscation, the Court recalls that, as it was explained by the Court of Appeal, the property confiscated from the applicant had not been acquired only through the criminal acts committed by M.S. alone.", "It had been obtained from illicit proceeds of criminal activities of the entire criminal organisation (see paragraph 24 above). To decide this point the trial court had regard to the fact that when purchasing the confiscated apartment the applicant had taken a loan from the mother of the convicted V.V., who, in turn, could not explain the provenance of his mother’s possessions. As to the shares in the telecommunications company, they had been purchased through the off-shore company that the criminal organisation used to launder the money gained through passing contraband. The Court sees no reason to depart from the appellate court’s findings, which were based on its direct knowledge of the facts of the case and the domestic law. Accordingly, the Court holds that the order to confiscate some of the applicant’s property was not related to any finding of guilt on the part of the applicant in respect of the crimes allegedly committed by her late husband.", "Lastly, the Court cannot fail to observe that the present case is distinguishable from the facts in A.P., M.P. and T.P., where new proceedings had been opened against the applicants, whereas in the instant case the criminal proceedings against M.S. and his co-accused merely continued after his death. 54. Bearing in mind the above, the Court finds that the applicant was not punished for criminal acts committed by her late husband and thus did not inherit his guilt.", "For the same reasons, even assuming that the applicant herself could be regarded as being “charged” with a criminal offence, the Court also considers that the confiscation order did not constitute a finding of the applicant’s personal guilt for any offence. There has accordingly been no violation of Article 6 § 2 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 55.", "The applicant argued that the confiscation of her property was in breach of Article 1 to 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.” A. The parties’ submissions 56.", "The applicant complained about the confiscation of her property in the wake of the criminal proceedings against her late husband and his accomplices. She contended that she had not been aware of the unlawful origins of the confiscated property. The applicant admitted that, as the spouse of M.S., she could have known about the movement of merchandise; however, the domestic courts had not established that she was aware that crimes were being committed. Contrary to what has been suggested by the Government, in the other criminal proceedings (paragraphs 28-30 above), the applicant was convicted for crimes not linked to those of M.S. Whilst acknowledging that she had knowledge of the enterprises that her late husband and the co-accused used in their operations, the applicant maintained that those enterprises “had been engaged in lawful activities [in addition to unlawful ones]”.", "For the applicant, there was no public interest to deprive her of her property. Lastly, she contended that the domestic courts’ decisions had been erroneous in that they had incorrectly established the evidence proving that the confiscated property was the proceeds of crime. 57. The Government admitted that confiscation of the property belonging to the applicant could be considered as an interference under Article 1 of Protocol No. 1 to the Convention.", "In any event, the confiscation of part of the family’s property had been in accordance with domestic law (Article 72 § 3 of the Criminal Code) and amounted to a justified control of the use of property in the general interest. Referring to the Court’s case-law (Raimondo v. Italy, 22 February 1994, Series A no. 281-A), the Government contended that, in the interests of crime prevention, the State had a wide margin of appreciation in controlling property obtained by unlawful means or used for unlawful purposes. Referring to the decision of the Court of Appeal of 25 October 2004 and the applicant’s conviction on 30 June 2005, the Government considered that a fair balance between the public and individual interests had been achieved in the present case, particularly as the applicant, with her knowledge of her husband’s criminal activities, must have known full well that the property in question had been obtained from money gained unlawfully. 58.", "The Government stressed that both the trial and appellate courts had scrutinised the evidence relating to the circumstances in which the confiscated property had been acquired. The unlawfulness of the origin of the property at issue and the fact that the applicant ought to have been aware and could have been aware that the disputed property had been acquired from criminal acts had been proven during the criminal proceedings, following strict standards of substantiation. The Government reiterated that when deciding upon confiscation of the seized items, the Kaunas Regional Court had lifted seizure of many items – plot of land, house and its contents – that had been registered in the names of the applicant and her late husband. The seizure of those items had been lifted because the trial court had not established that that property had been acquired as a result of criminal activity. Only two items in the applicant’s ownership – the apartment and shares in a telecommunications company – had been confiscated.", "59. Lastly, the Government submitted that confiscation of property belonging to third persons regardless of whether or not criminal proceedings are instituted against them was also established in the law of other European countries. As concerns property that was the proceeds of a criminal act, such practice was in compliance with the guidelines by the Council of Europe. B. The Court’s assessment 60.", "The Court reiterates that Article 1 of Protocol No. 1 to the Convention, which guarantees in substance the right to property, comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, among other things, to control the use of property in accordance with the general interest.", "The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, must be construed in the light of the general principle laid down in the first rule (see, among many authorities, Immobiliare Saffi v. Italy [GC], no. 22774/93, § 44, ECHR 1999-V). 61. On the facts of the case the Court recalls that the “possessions” at issue were the shares in a telecommunication company and an apartment which were confiscated from the applicant by a judicial decision. It is not in dispute between the parties that the confiscation order amounted to an interference with the applicant’s right to peaceful enjoyment of her possessions and that Article 1 of Protocol No.", "1 is therefore applicable. It remains to be determined whether the measure was covered by the first or second paragraph of that Convention provision. 62. The Court reiterates its constant approach that a confiscation measure, even though it does involve a deprivation of possessions, constitutes nevertheless control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1 (see Sun v. Russia, no.", "31004/02, § 25, 5 February 2009 and case-law cited therein). Accordingly, it considers that the same approach must be followed in the present case. 63. As the Court has held on many occasions, an interference with property rights must be prescribed by law and pursue one or more legitimate aims. In addition, there must be a reasonable relationship of proportionality between the means employed and the aims sought to be realised.", "In other words, the Court must determine whether a balance was struck between the demands of the general interest and the interest of the individuals concerned. In doing so it leaves the State 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 Yildirim v. Italy (dec.), no. 38602/02, ECHR 2003-IV). 64. In that connection, the Court notes that the confiscation of the applicant’s property was ordered pursuant to Article 72 § 3 (2) of the Criminal Code.", "It was therefore an interference prescribed by law. 65. The Court also recalls that the confiscation affected assets which had been deemed by the courts to have been unlawfully acquired by the criminal organisation led by M.S. The measure was effected with a view to preventing the illicit acquisition of property through criminal activities. In such circumstances the Court finds that the confiscation pursued a legitimate aim in the general interest, namely it sought to ensure that the use of the property in question did not procure for the applicant pecuniary advantage to the detriment of the community (see Raimondo, cited above, § 30).", "66. As regards the balance between that aim and the applicant’s fundamental rights, the Court reiterates that, where possessions are confiscated, the fair balance depends on many factors, including the owner’s behaviour. It must therefore determine whether the Lithuanian courts had regard to the applicant’s degree of fault or care or, at least, the relationship between her conduct and the offences which had been committed (see AGOSI, cited above, § 54; also see Arcuri and Riela, both cited above). 67. On the facts of the case the Court recalls the finding by the Court of Appeal that the applicant had directly participated in payments for the smuggled goods and that she must have known that the confiscated property could only have been purchased with the proceeds of the criminal organisation’s unlawful enterprises (see paragraph 22 above).", "The Court is also particularly struck by the judgment of 30 June 2005 delivered by the Kaunas Regional Court which found the applicant guilty of the misappropriation of property and the falsification of documents. In so finding, it noted that the applicant had fully confessed to having committed the crimes with a view to helping her husband escape criminal liability, while he was detained. 68. As to the way the proceedings which resulted in confiscation of the assets registered in the applicant’s name were held, the Court notes that the judicial review was conducted by three successive courts – the Kaunas Regional Court, the Court of Appeal and the Supreme Court, and concerned both the legality of and the justification for the confiscation. It also observes that the Lithuanian courts were debarred from basing their decisions on mere suspicions.", "Looking in detail at the steps taken by the courts to reach the final conclusion as to which pieces of property to confiscate, the Court notes that in respect of each item to be confiscated the courts were satisfied, on the basis either of the submissions by the applicants’ counsel or the evidence adduced by the prosecution, that the confiscated assets had been purchased by virtue of reinvestment of the criminal organisation’s unlawful profits (see, by contrast, Vulakh, cited above, § 46). In this context the Court also notes that only two items of the applicant’s property were confiscated, when many more were seized. 69. Lastly, the Court cannot overlook the particular circumstances which prompted the Lithuanian courts to take measures against the applicant. In particular, as the domestic courts noted, the illicit pursuits of the criminal organisation involved twenty-two episodes of smuggling, the value of the goods smuggled amounted to millions of Lithuanian litai and, in view of the scale, systematic nature and organisational level of the criminal activity, they regarded the case as exceptional.", "In such circumstances the confiscation measure complained of may appear essential in the fight against organised crime (see, mutatis mutandis, Raimondo, cited above, § 30; M. v. Italy, no. 12386/86, Commission decision of 15 April 1991, Decisions and Reports 70, p. 101; also see the Relevant international instruments part, paragraph 36 above). 70. Bearing in mind the above and having regard to the margin of appreciation enjoyed by States in pursuit of a crime policy designed to combat the most serious crimes, the Court concludes that the interference with the applicant’s right to the peaceful enjoyment of her possessions was not disproportionate to the legitimate aim pursued (see Raimondo and M. v. Italy, both cited above, paragraph § 30 and p. 102, respectively). Consequently, there has been no violation of Article 1 of Protocol No.", "1 to the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Dismisses the Government’s objection concerning the applicability of Article 6 of the Convention; 2. Holds that there has been no violation of Article 6 §§ 1 and 2 of the Convention; 3. 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 10 April 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithFrançoise TulkensRegistrarPresident" ]

[ "FOURTH SECTION CASE OF SILIQI AND OTHERS v. ALBANIA (Applications nos. 37295/05 and 42228/05) JUDGMENT STRASBOURG 10 March 2015 This judgment is final but it may be subject to editorial revision. In the case of Siliqi and Others v. Albania, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: George Nicolaou, President,Ledi Bianku,Krzysztof Wojtyczek, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 17 February 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos. 37295/05 and 42228/05) 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 four Albanian nationals.", "Application no. 37295/05 was lodged by Ms Drita Siliqi née Shundi, Ms Mariana Shundi and Mr Andrea Shundi, on 3 October 2005 and application no. 42228/05 was lodged by Ms Gjenovefa Mihali née Shundi and Ms. Drita Siliqi née Shundi, on 14 October 2005. 2. The applicants were represented by Mr A. Tartari, a lawyer practising in Tirana.", "The Albanian Government (“the Government”) were represented by their then Agent, Ms S. Mëneri of the Ministry of Foreign Affairs. 3. On 6 December 2007 the applications were communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicants were born in 1937, 1933, 1941 and 1934, respectively, and live in Albania and the United States of America. 5. On 30 December 1994 the Tirana Restitution and Compensation of Properties Commission (“the Commission”) recognised, amongst others, the applicants’ inherited property rights over a plot of land measuring 2,461.97 sq. m and decided to restore the property. Since buildings had been constructed on the land by a third party, the Commission ruled that the third party should pay rent for the land or re-purchase the land pursuant to an agreement to be entered into between the parties.", "It also recognised the applicants’ right to first refusal of the buildings. 6. On 18 February 1997 the applicants lodged a civil claim with the Tirana District Court seeking the annulment of a 1996 sale contract entered between the State and the third party over two plots of lands measuring 197 sq. m and 195 sq. m, which they claimed to own.", "The applicants also sought the payment of rent by the third party pursuant to the 1993 Property Act. In the same set of proceedings, the third party lodged a counter action requesting the partial annulment of the Commission decision. 7. On 24 April 2002 the Supreme Court gave a final decision dismissing the applicants’ claims. It also dismissed their right to first refusal as regards the buildings on the plots of land which had been granted by the Commission.", "It decided that the applicants are entitled to compensation in respect of the plot of land measuring 2,461.97 sq. m to be determined in accordance with the 1993 Property Act. 8. On 22 October 2004 the Constitutional Court, sitting as a full bench, found no violation of the applicants’ right to a fair trial. 9.", "To date, no compensation has been paid. II. RELEVANT DOMESTIC LAW AND PRACTICE 10. The relevant domestic law and practice has been described in detail in, inter alia, the judgment of Manushaqe Puto and Others v. Albania (nos. 604/07, 43628/07, 46684/07 and 34770/09, §§ 23-53, 31 July 2012) and Ramadhi v. Albania (no.", "38222/02, 13 November 2007). 11. On 6 March 2013 and 30 July 2014 the Government approved and issued new property valuation maps, which included the reference price per square metre throughout the country (Council of Ministers’ decisions nos. 187 of 6 March 2013 and 514 of 30 July 2014). III.", "COUNCIL OF EUROPE MATERIAL 12. Subsequent to the events described in the judgment Karagjozi and Others v. Albania [Committee], nos. 25408/06, 37419/06, 49121/06, 1504/07, 19772/07, 46685/07, 49411/07, 27242/08, 61912/08 and 15075/09, §§ 36-38, 8 April 2014, the Committee of Ministers gave a decision on 6 March 2014 on the execution of judgments concerning the Albanian authorities’ failure to enforce final domestic judicial and administrative decisions awarding compensation in one of the ways provided for by law to the applicants in lieu of the physical restoration of their plots of land, which was adopted at its 1193th meeting, stated, in so far as relevant, the following: “The Deputies (...) 2. considered the actions taken since September 2013 and the measures foreseen for the coming weeks and months as encouraging; regretting, however, that the deadline fixed by the pilot judgment will not be met, underlined that in order to fulfill the obligations imposed by the European Court and to introduce the required compensation mechanism without further delay and within the time frame proposed by the action plan, the political commitment expressed in the action plan must be followed by concrete and substantial actions at the domestic level, in particular in the fields identified by the Committee in its Interim Resolution CM/ResDH(2013)115; (...).” 13. The Committee of Ministers’ decision of 5 June 2014 on the execution of judgments concerning the Albanian authorities’ failure to enforce final domestic judicial and administrative decisions awarding compensation in one of the ways provided for by law to the applicants in lieu of the physical restoration of their plots of land, which was adopted at its 1201st meeting, stated, in so far as relevant, the following: “The Deputies 1. welcomed the formal adoption by the Albanian Council of Ministers of the action plan for the establishment of an effective compensation mechanism, thereby rendering the action plan binding, and noted with satisfaction that the measures foreseen are being adopted in conformity with the previsions in that plan; 2. in view of the overall deadline foreseen for the implementation of this mechanism, strongly encouraged the authorities to intensify their efforts with a view to reducing this time-frame as much as possible; (...).” THE LAW I. JOINDER OF THE APPLICATIONS 14. Given that the two applications concern the same facts and complaints, the Court decides that they should be joined pursuant to Rule 42 § 1 of the Rules of Court.", "II. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION AS WELL AS OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 15. The Court raised of its own motion the question whether there had been a breach of Articles 6 § 1 and 13 of the Convention as well as of Article 1 of Protocol No. 1 to the Convention on account of the authorities’ failure to pay compensation to the applicants pursuant to the Supreme Court’s decision of 24 April 2002.", "Article 6 § 1 of the Convention, insofar as relevant, reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Article 1 of Protocol No. 1 to the Convention reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 16. The Court notes that this part of the applications 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 Government submitted that the applicants never sought compensation as awarded by the Supreme Court’s decision of 24 April 2002.", "They insisted on having the property physically restored. The authorities could not be held responsible for the non-enforcement of the decision, no steps for its enforcement having been taken by the applicants. 18. The Court has already examined and, subsequently, rejected the Government’s argument in the case of Beshiri and Others v. Albania, no. 7352/03, §§ 62-66, 22 August 2006.", "The Court sees no reason to reach a different conclusion in this case. 19. The Court finds that the domestic authorities’ failure over so many years to enforce the final court decision and, notably, to pay the compensation awarded, breached the applicants’ rights under Article 6 § 1 and under Article 1 of Protocol No. 1 to the Convention (see Driza v. Albania, no. 33771/02, ECHR 2007‑V (extracts), Vrioni and Others v. Albania and Italy, nos.", "35720/04 and 42832/06, 29 September 2009, Manushaqe Puto and Others v. Albania, cited above and, Ramadhi and Others v. Albania, cited above). 20. The Court also concludes that there was no effective domestic remedy that allowed for adequate and sufficient redress on account of the prolonged non-enforcement of the final court decision awarding compensation. There is accordingly a violation of Article 13 of the Convention (see Manushaqe Puto and Others v. Albania, cited above). III.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 21. The applicants also complained under Article 6 § 1 about the unfairness of the domestic proceedings as regards the interpretation of domestic law and the outcome of those proceedings. 22. In the light of all the material in its possession and, in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 23. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 24. The applicants relied on an expert’s valuation report claiming 1,639,000 euros (“EUR”) in respect of pecuniary damage, which was made up of EUR 1,480,000 as regards the property value of the plot of land measuring 2,467.97 sq.", "m and EUR 159,000 concerning the loss of profits. They also claimed EUR 200,000 in respect of non-pecuniary damage. 25. The Government did not submit an expert’s report owing to the complexity of the applicants’ claims and the lack of time. However, they reserved the right to do so at a later stage.", "To date, no such report has been submitted to the Court. 26. In view of the ineffective nature of the current system of compensation and having regard, in particular, to the fact that it is now over 13 years since the applicants were initially awarded compensation, the Court, without prejudging possible future developments with regard to the establishment of an effective compensation mechanism, considers it reasonable to award the applicants a sum which would represent a final and exhaustive settlement of the cases. 27. The Court recalls its findings in the case of Vrioni and Others v. Albania (just satisfaction), nos.", "35720/04 and 42832/06, §§ 33-39, 7 December 2010 as regards the method of calculation of pecuniary damage. Therefore, the Court will base its calculation of pecuniary damage on the property valuation maps adopted by the Government in 2008 (see, also, Manushaqe Puto and Others, cited above, § 125), no reliance having been placed by the Government on the recent property valuation maps. 28. Having regard to the parties’ submissions and the material in its possession, the Court considers it reasonable to award the applicants EUR 1,498,400 in respect of pecuniary and non-pecuniary damage. B.", "Costs and expenses 29. The applicants claimed EUR 10,000 for costs and expenses incurred before the Court. They did not provide a detailed breakdown to substantiate their claim for costs and expenses. 30. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Gjyli v. Albania, no.", "32907/07, § 72, 29 September 2009). To this end, Rule 60 §§ 2 and 3 of the Rules of Court provides that applicants must enclose with their claims for just satisfaction “any relevant supporting documents”, failing which the Court “may reject the claims in whole or in part”. 31. The Court observes that the applicants failed to submit any supporting documents to support their claims. Therefore, the Court will not make an award in respect of costs and expenses.", "C. Default interest 32. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join applications nos. 37295/05 and 42228/05; 2.", "Declares the complaints concerning Articles 6 § 1 and 13 of the Convention as well as Article 1 of Protocol No. 1 as regards the non-enforcement of the Supreme Court’s decision of 24 April 2002 admissible and the remainder of the application inadmissible; 3. Holds that there has been a breach of Articles 6 § 1 and 13 as well as of Article 1 of Protocol No. 1 to the Convention; 4. Holds (a) that the respondent State is to pay the applicants, jointly, within three months, EUR 1,498,400 (one million, four hundred and ninety-eight thousand, four hundred euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage to all applicants as regards both applications, 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 10 March 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıGeorge NicolaouDeputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF A.A. v. SWITZERLAND (Application no. 58802/12) JUDGMENT STRASBOURG 7 January 2014 FINAL 07/04/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of A.A. v. Switzerland, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Peer Lorenzen,Dragoljub Popović,Nebojša Vučinić,Paulo Pinto de Albuquerque,Helen Keller,Egidijus Kūris, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 3 December 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "58802/12) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Sudanese national, Mr A.A. (“the applicant”), on 11 September 2012. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 3 of the Rules of Court). 2. The applicant was represented by Mrs S. Motz and Mr T. Hassan, lawyers practising in Zurich. The Swiss Government (“the Government”) were represented by their Agent, Mr F. Schürmann, and their Deputy Agent, Mr A. Scheidegger, of the Federal Office of Justice.", "3. The applicant alleged that his expulsion to Sudan would be in breach of Article 3 of the Convention and, furthermore, that there had been a violation of Article 13 in combination with Article 3 of the Convention because he had had no effective remedy at his disposal regarding the establishment of his origins, the Swiss authorities having failed in their obligations in this regard. 4. Pending the proceedings before the Court the applicant requested that Rule 39 of the Rules of Court be applied. On 14 September 2012 the Vice-President of the Second Section, to which the case was allocated, decided to apply Rule 39 of the Rules of Court, and to grant priority to the application under Rule 41.", "5. On 14 September 2012 the application was communicated to the Government under Article 3 of the Convention. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 6. On 11 June 2013 the President of the Section further required the parties to submit observations to the Court under Article 13 in combination with Article 3 of the Convention (Rule 54 § 2 (c) of the Rules of Court).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicant claimed that he was born in 1985 in Zalingei, a village near the town of Kutum in the region of North Darfur, Sudan. He currently lives in the Canton of Zurich. 8.", "He also claimed to belong to the Fur ethnic group through his paternal line, and the Bergo ethnic group through his maternal line. He further alleged to have lived in Zalingei until 25 July 2004, when he had had to flee his village. He stated that shortly before he fled, his father had been killed and he had been mistreated by the Janjaweed, a militia that operates in Darfur and is in conflict with Darfur rebel groups, the Sudan Liberation Movement (hereinafter “the SLM”) and the Justice and Equality Movement (hereinafter “the JEM”). His village had been burnt down by them, many of its inhabitants had been killed, and had had their cattle stolen. On 25 July 2004 he travelled from his home region to Port Sudan, from where he left by boat on 1 August 2004.", "Twenty days later he arrived in Calais, France, from where he went by train to Paris and then Geneva. 9. The applicant entered Switzerland on 23 August 2004 and applied for asylum the same day to the (former) Federal Office for Refugees (Bundesamt für Flüchtlinge – hereinafter “the FOR”). Since he was unable to produce any identity papers, on 13 September 2004 the FOR carried out a so-called “Lingua analysis”, during which his cultural knowledge and Arab dialect were assessed by an expert in order to ascertain whether he originated from North Darfur. The FOR also held a hearing as per Article 29 of the Asylum Act.", "By a decision of 25 October 2004 it dismissed the applicant’s asylum request, ruling that the Lingua analyst had demonstrated that the applicant definitely originated from Sudan but, owing to his Arab dialect, had concluded that he had most probably been socialised in Central or East Sudan, not in Darfur. The FOR further held that the applicant’s statements regarding the region he allegedly originated from, the itinerary he had taken while fleeing, and the whereabouts of his relatives had been contradictory, incomplete or partly wrong. He had shown difficulties in pinpointing neighbouring towns and refugee camps near to the village where he had grown up, as well as in describing street conditions and the climatic particularities of that region. His knowledge of the Janjaweed had also been incomplete. Those inconsistencies led the FOR to conclude that the applicant’s declarations regarding his origins in North Darfur and the expulsion from his village at the hands of the Janjaweed were implausible.", "He could therefore safely be returned to Sudan without being put at risk of treatment contrary to Article 3 of the Convention. 10. The applicant appealed against this decision to the (former) Swiss Appeal Board for Asylum (Schweizerische Asylrekurskommission – hereinafter “the Appeal Board”). Specifically asked in those proceedings for personal documents, he stated that he had never possessed identity papers, and that all his other personal documents had been burnt during the Janjaweed’s assault on his house. He had only known his date of birth because his parents had told him.", "On 15 February 2005 the Appeal Board endorsed the FOR’s decision. In this decision it was also established that the FOR had breached the applicant’s right to be heard because it had not given him an opportunity to contest the results of the Lingua analysis. The applicant had however been able to submit comments on the Lingua Analysis to the Appeal Board. The FOR’s procedural failure had therefore been remedied. 11.", "After January 2008 the domestic authorities assumed that the applicant had left Switzerland unchecked. On 2 January 2009 he was however arrested and imprisoned in St Gallen for illegal residence in Switzerland. 12. On 7 January and 2 February 2009 respectively, the applicant lodged a second asylum request with the Federal Office for Migration (hereinafter “the FOM”), indicating that he had in the meantime become a political activist in Switzerland in such a way that he would face a real risk of persecution if expelled to Sudan. He explained that he had become an active member of the Sudan Liberation Movement-Unity (hereinafter “the SLM‑Unity”) in Switzerland, had been appointed its human rights officer, and had participated in several of its public activities since 2006.", "In addition, he also had become a member of the newly-founded Darfur Peace and Development Centre (hereinafter “the DFEZ”) in Switzerland. He stated that because of an interview broadcast on a local TV channel in Eastern Switzerland, as well as several press releases in which his name had appeared, the Sudanese authorities had certainly identified him as an SLM‑Unity member. It followed that if expelled, he would in all probability be arrested at the airport in Sudan and be exposed to a risk of treatment contrary to Article 3 of the Convention, not least because he originated from Darfur, had applied for asylum abroad and had spent many years outside his home country. With regard to his origins, he submitted an official extract from the birth register in Sudan issued on 26 July 1987 stating that he was born in Kutum, North Darfur, and a petition signed by twenty Darfuris living in Switzerland who confirmed that he originated from that region. 13.", "On 15 May 2009 the FOM dismissed the applicant’s second asylum request; however, that decision was quashed on appeal by the Federal Administrative Court (hereinafter “the FAC”) on 28 May 2009. It ruled that, in accordance with domestic law, the FOM was under an obligation to consider the applicant’s allegation regarding his political activities and possible grounds for asylum on the merits, and to conduct an oral hearing with him. 14. In the ensuing proceedings, the FOM formally granted the applicant the right to be heard regarding his political activities and possible grounds for asylum. The applicant thereby submitted his member pass for the SLM‑Unity Switzerland, a membership confirmation letter from the president of that organisation, several pictures of himself at its demonstrations and meetings, and his entry passes to sessions of the United Nations Human Rights Council in 2009 and 2010.", "15. By a decision of 8 June 2012 the FOM rejected the applicant’s asylum request. It ruled that he had only joined the SLM-Unity after he had left his home country and after his first asylum request had been dismissed in 2005. He had not proven that he had in-depth knowledge of the structure and agenda of the SLM-Unity, nor had he been able to precisely describe his responsibilities as human rights officer of that organisation. According to the FOM, it was therefore evident that his political activities only served to create subjective post-flight grounds (subjektive Nachfluchtgründe).", "Furthermore, his statements regarding the interview given to the local TV channel had been very vague, and it was not established that the interview had been broadcast at national or international level. While the FOM did not dispute that the Sudanese government was monitoring political activities of opposition leaders abroad, it held that the authorities were only focusing on people with a high political profile. They did not have the resources to monitor people like the applicant, whose activities were carried out at low level. It was therefore unlikely that his political involvement had attracted their attention. In addition, the FOM ruled that the applicant, who had failed to submit identity papers and had made contradictory statements regarding his ethnicity, could a fortiori be returned to Sudan because the Lingua analysis had shown that he did not originate from Darfur, but from Central or East Sudan.", "Even assuming that he did originate from Darfur, this would not prevent him from relocating to another part of Sudan, for example Khartoum. It was also established that he had family ties in Sudan, and that his professional experience would facilitate his return. 16. The applicant appealed against this decision to the FAC. Regarding his origins in Darfur, he claimed that the FOM had ignored his birth certificate and had insisted on using the results of the Lingua analysis without explaining the discrepancies between the two documents.", "With respect to the assessment of his Arab accent in the Lingua analysis, he stated that he had learnt its correct pronunciation at the madrasa (Koran school) and not from his parents. Furthermore, if he did not originate from Darfur and had not personally experienced the people’s suffering there or lost almost all his relatives in the conflict, he would never have become so actively involved in the political cause of that region. Regarding his political activities, the applicant further stated that he had been the human rights officer of the SLM-Unity in Switzerland since 2009 and as such had participated in many political activities and international meetings. On one occasion, he had even met the current Sudanese president’s brother in the United Nations building in Geneva, and had had an argument with him. He claimed to have appeared in the national and international news, on CNN, and to have featured with his picture in the St Galler Tagblatt, a Swiss newspaper.", "Therefore, he had certainly attracted the attention of the Sudanese authorities. Owing to his political involvement and to the general situation in Darfur, he alleged that he would be subjected to treatment contrary to Article 3 of the Convention if expelled there. 17. On 6 August 2012 the FAC dismissed the applicant’s appeal. It held that the applicant’s statements regarding the itinerary he had taken while fleeing already lacked credibility.", "Owing to rigid border controls, it was according to them almost impossible to get to Calais without any travel documents, even if they were only forged. The applicant should therefore have been able to submit some form of travel document. The FAC further considered that the birth certificate submitted had no value as evidence. It ruled that it could have been forged, since in Sudan such certificates were obtainable in exchange for bribes. However, even assuming that it was authentic, it was only evidence that the applicant had been born in Darfur, but not where he had grown up and been socialised.", "By contrast, the Lingua analysis of 21 September 2004 gave clear answers to those questions and had shown that the applicant originated from Central Sudan. Regarding the applicant’s political involvement, the FAC endorsed the FOM’s findings that his profile was not so high that it would have attracted the Sudanese government’s attention or created a risk of persecution if returned to Sudan. The applicant’s expulsion would therefore not be in breach of Article 3 of the Convention. 18. On 27 August 2012 the applicant’s representative asked the FOM for access to the transcript of the Lingua analysis.", "By letter of 3 September 2012 it informed the representative that the applicant could listen to the interview conducted by the expert at its offices, but that the transcript contained some confidential information so could not be provided in full. The following details could be disclosed. The expert who had carried out the analysis originated from Central Sudan, where he had lived for thirty years; he had a university degree in linguistics, and had worked for the FOM since August 2003. He had interviewed the applicant on the following subjects regarding Sudan: (i) government and administration; (ii) agriculture; (iii) geography and (public) transport; (iv) traditions and customs; and (v) daily life. The applicant had answered all the questions correctly.", "His knowledge of his mother tongue Bargu had also been tested, but he had been unable to count from one to ten in Bargu and his Arab dialect had resembled more that of someone from Central or East Sudan. The applicant had also lacked knowledge of a plant commonly grown in Darfur. The expert had therefore concluded that the applicant certainly originated from (Central) Sudan, but not from Darfur. II. RELEVANT DOMESTIC LAW AND INTERNATIONAL INFORMATION ON SUDAN A.", "Domestic Law 19. Articles 3, 7, 29 and 54 of the Asylum Act of 26 June 1998, as in force at the relevant time, read as follows: Art. 3: Definition of the term refugee “1. Refugees are persons who in their native country or in their country of last residence are subject to serious disadvantages or have a well-founded fear of being exposed to such disadvantages for reasons of race, religion, nationality, membership of a particular social group or on account of their political opinions. 2.", "Serious disadvantages include a threat to life, physical integrity or freedom as well as measures that exert intolerable psychological pressure. Motives for seeking asylum specific to women must be taken into account. 3. Persons who are subject to serious disadvantages or have a well-founded fear of being exposed to such disadvantages because they have refused to perform military service or have deserted are not refugees. The provisions of the Convention of 28 July 19511 relating to the Status of Refugees are reserved.” Art.", "7: Proof of refugee status “1. Any person who applies for asylum must prove or at least credibly demonstrate their refugee status. 2. Refugee status is credibly demonstrated if the authority regards it as proven on the balance of probabilities. 3.", "Cases are not credible in particular if they are unfounded in essential points or are inherently contradictory, do not correspond to the facts or are substantially based on forged or falsified evidence.” Art. 29: Hearing on the grounds for asylum “1. The Federal Office shall interview asylum seekers on their grounds for asylum: a. in reception centres; or b. in the canton, within 20 days of the decision on allocation 1bis. If necessary, an interpreter shall be summoned. 2.", "Asylum seekers may be accompanied by a representative and interpreter of their choice who are not themselves asylum seekers. 3. Minutes shall be taken of the hearing. They shall be signed by those in the hearing, with the exception of the representative of the charitable organisations. 4.", "The Federal Office may entrust the cantonal authorities with the conduct of the hearing if this leads to a considerable acceleration of the procedure. The hearing shall be conducted in accordance with paragraphs 1-3.” Art. 54 Subjective post-flight grounds “Refugees shall not be granted asylum if they only became refugees in accordance with Article 3 by leaving their native country or country of origin or on account of their conduct after their departure.” B. Relevant international information on Sudan 1. U.S. Department of State’s 2011 Country report on human rights practices, Sudan 20.", "In the Executive Summary of its report, the U.S. Department of State observed that Sudan had been a republic transitioning, after the secession of South Sudan, toward a new constitution from a power-sharing arrangement established by the 2005 Comprehensive Peace Agreement. The National Congress Party had controlled the government. The Republic of South Sudan had formally gained its independence in July 2011. Conflict had however continued in Darfur and in the three border areas of Abyei, Southern Kordofan and Blue Nile. 21.", "The main human rights abuses documented had included government forces and government-aligned groups committing extrajudicial and other unlawful killings, security forces committing torture, beatings, rape and other cruel and inhuman treatment or punishment, and prison and detention conditions being harsh and life-threatening. Other major abuses had concerned arbitrary arrests and arbitrary, incommunicado, and prolonged pre-trial detention, executive interference with the judiciary and denial of due process and obstruction of humanitarian assistance. Except in rare cases, the government had not taken any steps to prosecute or punish officials in the security services and others in the government who had committed abuses. It was also reported that the government had harassed, arrested, beaten, and prosecuted human rights activists for their activities. Government security forces had beaten and tortured people in detention, including members of the political opposition, civil society activists, and journalists.", "These people had often been subsequently released without charge. 2. UK Foreign and Commonwealth Office’s 2012 Human Rights and Democracy Report and 2013 Country update on Sudan 22. The Foreign and Commonwealth Office wrote that the human rights situation in Sudan had deteriorated in 2012, including new restrictions on civil and political rights. The ongoing conflict in Darfur and the border areas with South Sudan had led to a worsening humanitarian situation, with continued reports of indiscriminate military tactics employed by the Sudanese Armed Forces leading to the displacement of hundreds of thousands of people within Sudan and into South Sudan.", "There had been widespread reports that security forces routinely carried out torture, beatings, rape and other cruel and inhumane treatment or punishment. Prison and detention centre conditions had sometimes been harsh and life threatening. With regard to NGO staff and political activists the Foreign and Commonwealth Office had received credible reports that they had been detained and interrogated by security services in 2012, particularly if they had been suspected of opposing the regime or of having links to the Sudan People’s Liberation Movement North (hereinafter “the SPLM-North”) or to South Sudan. 23. In its Country update of 30 June 2013 on Sudan, the Foreign and Commonwealth Office also observed that the human rights situation there had deteriorated significantly between April and June 2013, largely due to escalating conflict and insecurity.", "Fighting between the Sudanese government and the Sudan Revolutionary Front (hereinafter “the SRF”, an alliance between the SPLM-North and the Justice and Equality Movement) had intensified. According to the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) figures, 63,000 people had been displaced in this fighting. Human rights groups also reported that the Sudanese government continued to detain without charge civilians suspected of being members of the SPLM-North in government-held areas in the Southern Kordofan and Blue Nile states. In Darfur, worsening insecurity had led to massive displacements, with the OCHA estimating that there had been over 300,000 new internally displaced people since the beginning of the year. Access to people affected by conflict in Darfur remained constrained owing to the Sudanese government’s new Directives for Humanitarian Work issued in March, under which access by international humanitarian organisations and their staff to conflict areas became fully restricted.", "3. Tenth periodic report of the United Nations High Commissioner for Human Rights on the situation of human rights in the Sudan, 2008 24. In its report dated 28 November 2008, the United Nations High Commissioner for Human Rights observed that Darfuris in the Khartoum area had been at a heightened risk of being subjected to arbitrary arrests, in particular if they had been suspected of maintaining links with Darfuri rebel groups or political movements. Darfuris might have raised the suspicion of the security forces by the mere fact of travelling from other parts of Sudan to Darfur, by having travelled abroad, or by having been in contact with individuals and organisations abroad. United Nations human rights officers had conducted numerous interviews with Darfuris who had been arbitrarily arrested and detained.", "Many reported that they had been ill-treated and tortured. Reports on the questioning they had undergone in detention indicated that most of the detentions had been carried out to obtain information about Darfuri political groups and rebel movements. 4. Non-Governmental Organisations’ reports 25. The Amnesty International Annual Report 2013 on Sudan established that post-independence agreements on the sharing of oil, citizenship and border demarcation had continued to be negotiated with South Sudan.", "Conflict had however continued in Darfur and in the Southern Kordofan and Blue Nile states. The National Security Service (NSS) and other government agents had continued to commit human rights violations against perceived critics of the government for exercising their rights to freedom of expression, association and assembly. In reaction to demonstrations that started on 16 June 2012, the NSS had carried out a wave of arrests across civil society, detaining hundreds of individuals, including not only protesters, but also lawyers, NGO staff, doctors, and members of youth organisations and political parties – regardless of their involvement in the protests. Many had been detained without charge, or had been tried summarily for rioting or disrupting public order and sentenced to fines or lashes. Many of them had been tortured or otherwise ill-treated by the NSS.", "26. The Sudanese government had also continued its harassment of members of opposition groups. In October and November 2012, over 100 people suspected of being affiliated to the SPLM-North had been arrested in or around Kadugli and Dilling in Southern Kordofan. Grave human rights abuses had continued throughout Darfur amid continued fighting between the government and armed opposition groups, and a breakdown of government control over government-affiliated militias. Attacks on civilians by pro-government militias, aerial bombings, and looting and destruction of property had been widespread.", "27. The Human Rights Watch World Report 2013 on Sudan stated in its Executive Summary that Sudan’s relations with South Sudan had deteriorated in early 2012, leading to clashes along the shared border in April 2012. Although the two governments had signed an agreement in September to allow for the resumption of oil production, fighting between Sudanese government forces and rebel movements had continued in Darfur, as well as in the Southern Kordofan and Blue Nile states, where Sudan’s indiscriminate bombardment and obstruction of humanitarian assistance had forced more than 170,000 people to flee to refugee camps in South Sudan. 28. The Sudanese authorities had harassed and arbitrarily arrested and detained other perceived opponents of the government, including suspected members of the SPLM-North, members of other opposition parties, civil society leaders and journalists.", "Many people had been detained because of their real or perceived links to the SPLM-North, which had been banned in September 2011 when war broke out in the Blue Nile state, or as a result of their human rights activism. C. Relevant case-law 29. The United Kingdom Asylum and Immigration Tribunal held in the case of AA (Non-Arab Darfuris - relocation) Sudan CG [2009] UKAIT 00056 (18 December 2009) that all non-Arab Darfuris, regardless of their political or other affiliations, were at risk of persecution in Darfur and could not reasonably be expected to relocate elsewhere in Sudan. Therefore, claimants who did not fall within the exclusion clauses were likely to qualify for asylum. 30.", "In a relatively recent judgment of 31 May 2013 (E-1979/2008), the Swiss Federal Administrative Court held that subjective post-flight grounds – so-called sur place activities – constituted a risk for a Sudanese national of being exposed to treatment contrary to Article 3 of the Convention if expelled to Sudan. The FAC thereby undertook a thorough assessment of the current political and human rights situation in Sudan and Darfur. On the one hand, it found that although the security situation in Darfur remained generally unstable, it had improved in so far as the attacks targeted against particular ethnic groups (the non-Arab Darfuris) had diminished. Therefore, applicants had to show additional distinguishing features, such as political or other affiliations, to make their claim regarding persecution in Darfur credible. On the other hand, the FAC observed that the current human rights situation in Sudan was such that people who had publicly criticised the Sudanese government and had expressed their views about the current situation in Sudan and Darfur, or members of a Sudanese rebel group, were registered and often detained by the Sudanese government and the National Intelligence and Security Services.", "It cited country reports which established that Sudanese nationals who were returning to their home country after having stayed abroad for some time were likely to be interrogated by the Sudanese authorities, who would specifically question them about their contacts with opposition movements abroad. Therefore, people who had been in contact with the SLM, or who had even been publicly involved in their cause at the human rights meetings in Geneva, had certainly been registered by the Sudanese government and were at risk of being detained upon arrival. In the specific case the FAC concluded that the claimant could not be returned to Sudan because he had, on account of his publicly exposed political activities as high-ranking SLM member in Switzerland, certainly been registered by the Sudanese government and would therefore be at risk of persecution in his country of origin. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 31.", "The applicant complained that his expulsion to Sudan would expose him to a risk of treatment contrary to Article 3 of the Convention on account of his political activities in Switzerland. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 32. The Government contested this complaint. A. Admissibility 33. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 34.", "The applicant alleged that his political activities as a member of the SLM-Unity and the DFEZ in Switzerland would put him at a real risk of persecution contrary to Article 3 of the Convention if returned to Sudan. Relying on the case of S.F. and Others v. Sweden (no. 52077/10, § 68, 15 May 2012) he pointed out that the Court had recognised that political and human rights activities in the state of residence – the so-called sur place activities – were of relevance for the determination of the risk on return to the country of origin. Depending on the situation of the country of origin, even people with a rather low political profile in their home country could be at risk of persecution if their activities abroad had been publicly exposed and visible.", "The applicant reiterated that he had participated in many public activities and demonstrations with the SLM-Unity in Switzerland and that his appointment as human rights officer for that organisation had been published online in 2009. He submitted that he had taken part in, amongst other meetings, the 11th and 13th session of the United Nations Human Rights Council in Geneva, and in the Geneva Summit for Human Rights and Democracy in March 2010, at which he had met the current Sudanese President’s brother, who had reproached him by saying that people like him had brought Sudan before the International Criminal Court. He had also attended a seminar with judges of the International Criminal Court in Zurich in August 2010, at which representatives of the Sudanese embassy had been present. He claimed that his political activities had even had repercussions in the media at international level, which certainly had not gone unnoticed by the Sudanese authorities, who were monitoring the political activities of their citizens abroad. Relying on a report of the Swiss Refugee Council entitled Sudan: Persecution of returning nationals on the ground of their political activities in exile of 28 September 2005, he pointed out that the Sudanese government had infiltrated the JEM and the SLM domestically as well as abroad.", "Therefore, if people had stayed in contact with those organisations in Switzerland, they had certainly attracted the attention of the Sudanese authorities and were at risk of being detained. He concluded that if returned to Sudan, he would be detained, interrogated and tortured as soon as he got to the airport in Khartoum. Because of this, even relocation within Sudan was not possible. 35. In response to the Government’s assumption that he had only become a political activist in order to create post-flight grounds, the applicant maintained that his political involvement was indeed genuine.", "He explained that after the dismissal of his first asylum request he had gone into hiding out of fear of being removed to Sudan. Despite his illegal residence status in Switzerland he had nevertheless decided to join the SLM-Unity in 2006, which demonstrated his commitment to the cause. Furthermore, in the interviews carried out by the FOM he had proved himself to possess in-depth knowledge of the structure and agenda of the SLM-Unity. Lastly, he stated that the organisation was very concerned about being infiltrated by people secretly reporting to the Sudanese government. If he was not from Darfur and had not been genuinely interested in the SLM-Unity’s political agenda, its president would never have written him a confirmation letter and the organisation would have excluded him a long time ago.", "36. According to the Government, the applicant’s political activities within the SLM-Unity were low level and had not attracted national and international media coverage. The applicant had not participated particularly actively in the international human rights meetings he mentioned, and most of those meetings had taken place in 2010. He had not been particularly active thereafter. Regarding the interview given to the TV channel in Eastern Switzerland, the Government maintained that it had not disclosed his political activities.", "His rather vague descriptions of his responsibilities as human rights officer of the SLM-Unity in the course of the second asylum proceedings had not pointed to the fact that he occupied an important position, nor had the pictures he submitted showed him to be a particularly prominent figure within that organisation. His political involvement would therefore not put him at a risk of treatment contrary to Article 3 of the Convention if returned to Sudan, even more so considering that he did not originate from Darfur. Lastly, the Government observed that even if the applicant did originate from Darfur, he could also relocate to another part of Sudan, for example Khartoum. 37. The Government further argued that the applicant’s political involvement in the SLM-Unity and the DFEZ was not genuine and that he had only become a political activist in order to create subjective post-flight grounds not to be expelled to Sudan.", "Relying on the Court’s case-law, they submitted that this factor had to be taken into account when assessing the applicant’s risk of persecution (N. v. Finland, no. 38885/02, § 165, 26 July 2005, and Kolesnik v. Russia, no. 26876/08, § 70, 17 June 2010). 2. The Court’s assessment 38.", "As established in the Court’s case-law, 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 Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006‑XII). Expulsion by a Contracting State may however give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country (see Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008).", "39. As established in the case of Mohammed v. Austria (no. 2283/12, § 109, 6 June 2013) the security and human rights situation in Sudan is alarming. Country reports further indicate that the situation has even deteriorated in the last few months (see paragraphs 20-28 above). However, while the Court has never ruled out the possibility of a situation of general violence in a country of origin triggering the application, and subsequently a breach of Article 3 upon the deportation of an applicant to the said country, it has also held that such an approach would only be adopted in the most extreme cases.", "It has generally insisted that an applicant shows that special distinguishing features existed in his case that could or ought to have enabled the Contracting State’s authorities to foresee that he or she would be treated in a manner incompatible with Article 3 (see, mutatis mutandis, NA. v. the United Kingdom, no. 25904/07, §§ 114-115, 17 July 2008). 40. With regard to the situation of political opponents of the Sudanese government, the Court nevertheless holds that the situation is very precarious.", "From the Country reports and the relevant case law above (see paragraphs 20-30), it is evident that suspected members of the SPLM-North, members of other opposition parties, civil society leaders and journalists are frequently harassed, arrested, beaten, tortured and prosecuted by the Sudanese authorities. Because of the ongoing war in different states, the SPLM-North has been banned by the Sudanese government and accordingly many people were detained because of their real or perceived links with that organisation. Furthermore, not only leaders of political organisations or other high-profile people are at risk of being detained, ill-treated and tortured in Sudan, but anyone who opposes or is only suspected of opposing the current regime. Moreover, it has been acknowledged that the Sudanese government monitors activities of political opponents abroad. 41.", "In the applicant’s case, the Court notes that he has been a member of the SLM-Unity in Switzerland for several years. The Government however disputed the genuineness of his activities. In this regard, the Court acknowledges that it is generally very difficult to assess in cases regarding sur place activities whether a person is genuinely interested in the political cause or has only become involved in it in order to create post-flight grounds. In similar cases, the Court has therefore taken into account factors such as whether the applicant was a political activist prior to fleeing his home country, and whether he played an active role in making his asylum case known to the public in the respondent State (see S.F. and Others v. Sweden, no.", "52077/10, §§ 66-67, 15 May 2012, and N. v. Finland, no. 38885/02, § 165, 26 July 2005). In the present case, the Court however also has regard to the fact that the applicant joined the SLM-Unity in Switzerland several years before he launched his second asylum request, at a time when it still might not have been foreseeable for him to apply for asylum in Switzerland a second time. In view of the importance which the Court attaches to Article 3 of the Convention as set out above (see paragraph 38), and the irreversible nature of the damage which results if the risk of torture or ill-treatment materialises, the Court therefore prefers to assess the applicant’s claim on the grounds of the political activities he effectively carried out. 42.", "In this regard, the Court considers that the applicant’s political activities have increased in importance over time, as illustrated by his appointment as human rights officer of the SLM-Unity in Switzerland and his participation in international meetings on the human rights situation in Sudan. The Court however agrees with the Government insofar as the applicant’s political profile had not been very exposed. He had not, for example, delivered any talks in those conferences, and in the interview broadcast on the TV channel in Eastern Switzerland, he had not mentioned his political activities. The Court therefore considers that if the applicant were to be expelled to a country where the human rights situation of political opponents was less worrying than in Sudan, he would, on account of his political activities, not be exposed to a risk of treatment contrary to Article 3 of the Convention. 43.", "However, as set out above (see paragraph 40), not only leaders and high-profile people, but also those merely suspected of supporting opposition movements are at risk of treatment contrary to Article 3 of the Convention in Sudan. In the case of politically involved Sudanese nationals abroad, in particular those who had been seen to be affiliated with the SLM at the international meetings in Geneva, it has furthermore been established that they had been registered by the Sudanese authorities (see paragraph 30 above). In view of the applicant’s participation in the international human right meetings, where representatives of the Sudanese government were present and where usually only a few citizens of one country participate so that they are relatively easily identifiable, as well the applicant’s argument with the current Sudanese president’s brother, the Court cannot therefore rule out that he, as an individual, attracted the Sudanese government’s attention. Having also participated in some of those meetings on behalf of the SLM-Unity Switzerland, the Court believes that the applicant might, at least, be suspected of being affiliated with an opposition movement by the Sudanese government. It therefore finds that there are substantial grounds for believing that he might be known to the Sudanese government and would be at risk of being detained, interrogated and tortured as soon as he arrived at the airport in Sudan.", "Moreover, he would not have the opportunity to relocate. Accordingly, the Court finds that the implementation of the deportation order against the applicant would give rise to a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 IN COMBINATION WITH ARTICLE 3 OF THE CONVENTION 44. Under Article 13 in combination with Article 3 of the Convention, the applicant complained that he had had no effective domestic remedy to assert his claims that he originated from Darfur and would be exposed to a risk of treatment contrary to Article 3 of the Convention if expelled there.", "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.” 45. The Government contested this complaint. A. Admissibility 46. The Government observed that the applicant had not submitted any new evidence in the second asylum proceedings which would have put into question the earlier Appeal Board’s decision of 15 February 2005, which had held that he did not originate from Darfur. The domestic authorities in the second asylum proceedings had therefore lawfully relied on that decision, and the applicant’s complaints regarding the assessment of his origins by the domestic authorities were belated for the purposes of Article 35 § 1 of the Convention.", "The Government also argued that he had not contested the results of the Lingua analysis in either the first or second asylum proceedings. According to the Government, he had therefore failed to exhaust domestic remedies as required by Article 35 § 1. 47. The applicant alleged that the new evidence submitted regarding his origins in Darfur in the second asylum proceedings indeed raised doubts about the Appeal Board’s decision of 15 February 2005. He further maintained that he had not expected the Lingua analysis and the establishment of his origins to become a main issue in the second asylum proceedings, which had mainly focused on his sur place activities.", "Accordingly, he had not contested the Lingua analysis in the domestic proceedings regarding his second asylum request. 48. The Court notes that the Lingua analysis had been carried out in the first asylum proceedings which had ended by final decision of 15 February 2005. In the second asylum proceedings the domestic authorities only took into account the question of the applicant’s origin to the extent of ascertaining whether the new evidence submitted by him was capable of raising doubts about the findings of the first asylum proceedings. The Court therefore considers that the applicant should have contested the execution of the Lingua analysis and the expert’s background there and then, even more so as he had been granted access to the main content of the Lingua analysis in the first appeal proceedings, as established by the Government.", "The Court therefore accepts the Government’s preliminary objection on this point. However, regarding the question whether the applicant’s new evidence was able to raise doubts about the findings of the first asylum proceedings and whether the domestic authorities in the second asylum proceedings rightly relied on the results of the Lingua analysis as the sole evidence the Court finds that it is an issue that relates to the assessment of merits of the complaint rather than to its admissibility. The Court moreover finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.", "B. Merits 1. The parties’ submissions 49. Relying on the Court’s case-law, the applicant alleged that the Swiss authorities had failed in their duty to apply “close and rigorous scrutiny to ascertain all relevant facts” when assessing his provenance from Darfur and the possibility of him being exposed to a risk of treatment contrary to Article 3 of the Convention if expelled there (R.C. v. Sweden, no.", "41827/07, § 53, 9 March 2010, and Singh and Others v. Belgium, no. 33210/11, §§ 103-104, 2 October 2012). 50. He argued that his statements regarding his origins and the itinerary he had taken while fleeing had always been clear, detailed and consistent throughout all the domestic proceedings. He claimed that the Government’s argument – that entry into the Schengen area was impossible without a valid visa owing to rigid border controls – was inconsistent with the well-known fact that thousands of asylum seekers illegally cross those borders daily.", "To raise general doubts about his credibility based on that argument was therefore questionable to say the least. 51. He further submitted that his birth certificate was capable of proving his Darfuri origins. If the Government doubted its authenticity it was, according to the Court’s case-law, their duty to take positive steps to verify it and hence to “dispel any doubts” about him being exposed to treatment contrary to Article 3 (N. v. Sweden, no. 23505/09, § 53, 20 July 2010; N. v. Finland, no.", "38885/02, § 167, 26 July 2005; and Singh and Others v. Belgium, no. 33210/11, §§ 103-104, 2 October 2012). The FOM and FAC should therefore have had his birth certificate examined by the Forensic Institute in Zurich. By rejecting it summarily, they had failed to satisfy the requirements of Article 13 in combination with Article 3 of the Convention. 52.", "The applicant observed that he had not disputed in principle that the Lingua analysis could be used as one part of the evidence pertinent to determining his origin and hence his asylum claim. However, according to domestic law, it was an expert opinion which did not bind the deciding authority. He claimed that “close and rigorous scrutiny” was required by the domestic authorities to analyse the entirety of the evidence submitted to them. It was therefore incompatible with the requirements of Article 13 in combination with Article 3 of the Convention for the domestic authorities to have relied on the Lingua analysis as the sole or main piece of evidence, despite the fact he had adduced various pieces of evidence, which viewed as a whole, were clearly capable of proving that he originated from Darfur. His birth certificate, the confirmation letter from the president of the SLM-Unity Switzerland, the petition signed by twenty Darfuris and his political involvement for the Darfur cause were evidence enough to prove that he originated from that region.", "53. He further claimed, citing the Court’s case-law, that it would have been highly relevant for him, having had no legal representation in the first asylum proceedings, to have been automatically provided with a transcript of the Lingua analysis and background information on the expert in order to effectively challenge the analysis, especially since the Lingua analyst had never been socialised in Darfur. In not providing him with this transcript, the Swiss authorities had unjustifiably hindered the exercise of an effective remedy contrary to Article 13 in combination with Article 3 of the Convention (M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 290, ECHR 2011).", "54. The Government submitted that they had indeed applied close and rigorous scrutiny to ascertain all relevant facts to establish that the applicant would not be at risk of treatment contrary to Article 3 of the Convention if expelled to Sudan. Regarding the overall credibility of the applicant’s submissions, the Government submitted that his statements regarding the itinerary he had taken while fleeing were only one piece of evidence, among others which raised doubts about the alleged persecution the applicant would face if returned to Sudan. As established in the first asylum proceedings, the applicant had also made inconsistent and contradictory statements about the name of the village where he claimed to have grown up and had further lacked basic knowledge of the region he claimed to originate from. 55.", "Regarding the authenticity of the applicant’s birth certificate, the Government submitted that they had not summarily rejected it. Serious doubts about the document’s authenticity had not only arisen because it was common knowledge that such certificates were obtainable in Sudan in exchange for bribes, but also because of the applicant’s statements in the first asylum proceedings, according to which he had no identity papers because they had all been burnt during the Janjaweed’s attack on his house, and had only known his date of birth because his parents had told him. Furthermore, since the applicant’s identity had not been clarified conclusively, the birth certificate could have also potentially belonged to someone else. It did not contain any identifying elements such as, for example, a picture, on the basis of which it could, with absolute certainty, be attributed to the applicant. Lastly, even if it were authentic, it only proved that the applicant was born in Darfur, not where he had grown up.", "The Lingua analysis by contrast had proven beyond doubt that he did not originate from Darfur, but from Central Sudan. 56. Lastly, with regard to the Lingua analysis, the Government submitted that the applicant, contrary to his contentions and as established in the Appeal Board’s decision of 15 February 2005, had been granted access to its main content during the appeal proceedings of his first asylum request, but had not challenged it. Accordingly, the authorities in the second asylum proceedings could not be reproached for having relied on the findings of the Lingua analysis, which had been scientifically put together by a duly qualified person. 57.", "The Government concluded by submitting that the domestic authorities had not failed in their obligations under Article 13 in combination with Article 3 of the Convention. 2. The Court’s assessment 58. The Court holds that in view of the importance which the Court attaches to Article 3 of the Convention and the irreversible nature of the damage which results if the risk of torture or ill-treatment materialises (see paragraph 38 above), the effectiveness of a remedy within the meaning of Article 13 imperatively requires close scrutiny of any claim by a national authority (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 448, ECHR 2005-III).", "59. In cases such as the present one, the Court acknowledges that it is often difficult to establish, precisely, the pertinent facts and that, as a general principle, the national authorities are best placed to assess not just the facts, but also the general credibility of the applicant’s story (see S.F. and Others v. Sweden, no. 52077/10, § 66, 15 May 2012). The Court also reiterates that it is for the applicant to cite evidence capable of proving that there are substantial grounds for believing that, if removed from a member State, he or she would be exposed to a real risk of being subjected to treatment prohibited by Article 3 of the Convention.", "Where such evidence is cited, it is for the government to dispel any doubts about it (see Saadi v. Italy [GC], no. 37201/06, § 129, ECHR 2008). The Court has recognised that asylum seekers are often in a special situation which frequently necessitates giving them the benefit of the doubt when assessing the credibility of their statements and the supporting documents they have submitted (see R.C. v. Sweden, no. 41827/07, § 50, 9 March 2010).", "However, when information is lacking, or when there is a strong reason to question the veracity of an asylum seeker’s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see Matsiukhina and Matsiukhin v. Sweden (dec.), no. 31260/04, 21 June 2005; Collins and Akaziebie (dec.), no. 23944/05, 8 March 2007). 60. The Court observes that, in the present case, there is a dispute between the parties as to the applicant’s origins in Darfur and his being exposed to a risk of treatment contrary to Article 3 of the Convention if expelled to Sudan.", "The Court thereby considers that the applicant, an allegedly non-Arab Darfuri who has become involved in the political cause of Darfur, certainly has an arguable claim under Article 3 of the Convention which needs to be assessed with close and rigorous scrutiny for the purposes of Article 13. 61. As previously held by the Court, the best way for an asylum seeker to prove his identity is by submitting an original passport. If this is not possible on account of the circumstances in which he finds himself, other documents might be used to prove his identity. A birth certificate could have value as evidence if other identity papers are missing (see F.N.", "and Others v. Sweden, no. 28774/09, § 72, 18 December 2012). In the present case, the applicant submitted a birth certificate in the second asylum proceedings to prove that he originated from Darfur. The domestic authorities however questioned its authenticity. The Court observes in this regard that the certificate was issued on 26 July 1987.", "In the first asylum proceedings however, he had alleged that he had lost all his personal documents in the fire started at his home in Darfur and claimed never to have possessed a document showing his date of birth. Furthermore, the applicant has not provided an explanation as to where or how he obtained his birth certificate for the second asylum proceedings. The Court therefore agrees with the Government’s findings that those circumstances raise serious doubts about the authenticity of the applicant’s birth certificate and, more generally, about his being able to provide identity papers to the national authorities. In addition, the Court agrees with the Government that as long as the applicant’s identity had not been fully verified, the birth certificate could also belong to someone else since it contains no distinctly identifying elements. In those circumstances, the Court is of the view that the domestic authorities rightly assumed that the birth certificate was not capable of proving the applicant’s origins.", "Hence, they have not failed in their duty to dispel any doubts about its authenticity for the purposes of Article 13 in combination with Article 3 of the Convention. 62. With regard to the further evidence submitted in the second asylum proceedings, the Court agrees with the applicant that it is not reflected in the domestic decisions if and to what extent it had been taken into account by the national authorities in ascertaining whether it was capable of raising doubts about the findings of the first asylum proceedings. The Court however notes that those documents – the confirmation letter of the SLM president in Switzerland and the petition signed by the Darfuris – have no value as evidence with regard to the applicant’s origins when taken alone. Since the Court is furthermore not convinced, as set out above, that the applicant has undertaken all possible steps to clarify his identity in the domestic proceedings, it holds that those documents are in themselves unable to raise sufficiently strong doubts about the findings of the first negative asylum decision.", "63. In view of the foregoing, the Court considers that the domestic authorities cannot be reproached for not having undertaken a further investigation into the applicant’s origins or for having relied on the results of the first asylum proceedings. The Court therefore concludes that Article 13 in combination with Article 3 of the Convention has not been violated. III. RULE 39 OF THE RULES OF COURT 64.", "The Court reiterates that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention. 65. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see above § 4) must continue in force until the present judgment becomes final or until the Court takes a further decision in this connection (see operative part). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 66.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 67. The Court notes that the applicant has not claimed compensation for pecuniary or non-pecuniary damage. B. Costs and expenses 68.", "The applicant claimed 5,069.10 Swiss francs (CHF) (approximately 4,114 euros (EUR)), inclusive of VAT, for legal fees and expenses incurred before the domestic authorities in the second asylum proceedings, less CHF 800 (approximately EUR 654) which he had been granted by way of legal aid by the Federal Administrative Court in the decision of 28 May 2009. He additionally claimed CHF 6,230.95 (approximately EUR 5,094), inclusive of VAT, for legal fees and expenses incurred before this Court. 69. The Government did not contest the applicant’s claim regarding the legal fees and expenses incurred at the domestic level in the amount of total CHF 4,269.10 (approximately EUR 3,490), inclusive of VAT. However, they considered that the amount claimed by the applicant for the legal fees and expenses before this Court was too high if compared to similar cases such as S.F.", "(cited above). According to them, CHF 2,000 (approximately EUR 1,635) would cover all costs for legal fees and expenses before this Court and a total of CHF 6,300 (approximately EUR 5,150) would be sufficient to cover the total of the applicant’s costs. 70. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 8,500 covering costs under all heads.", "The Court thereby takes into account that the applicant’s fees note for the proceedings before this Court dated 3 December 2012 and has therefore not included the costs and expenses incurred for the additional observations required by the Court on 11 June 2013. C. Default interest 71. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2.", "Holds that in the event of the enforcement of the Federal Administrative Court’s decision of 6 August 2012, there would be a violation of Article 3 of the Convention; 3. Holds that there has been no violation of Article 13 in combination with Article 3 of the Convention; 4. Decides to continue to indicate to the Government under Rule 39 of the Rules of Court that it is desirable in the interests of the proper conduct of the proceedings not to expel the applicant until such time as the present judgment becomes final or until further order; 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 8,500 (eight thousand five hundred euros) plus any tax that may be chargeable to the applicant, in respect of costs and expenses (to be converted into Swiss Francs at the rate applicable at the date of settlement); (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Done in English, and notified in writing on 7 January 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithGuido RaimondiRegistrarPresident" ]

[ "THIRD SECTION CASE OF SAYEROV v. RUSSIA (Application no. 33071/12) JUDGMENT STRASBOURG 7 February 2017 This judgment is final but it may be subject to editorial revision. In the case of Sayerov v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Branko Lubarda, President,Pere Pastor Vilanova,Georgios A. Serghides, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 17 January 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 33071/12) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Nikolay Gennadyevich Sayerov (“the applicant”), on 12 May 2012.", "2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative to the Russian Federation to the European Court of Human Rights. 3. On 28 March 2013 the application was communicated to the Government. THE FACTS 4.", "The applicant was born in 1963 and is currently serving his term of imprisonment in Nizhniy Tagil. 5. Since 12 June 2011 the applicant waited trial in remand prison IZ‑21/2 in the Republic of Chuvashiya. According to him, between 15 June 2011 and 15 April 2012 he was transported by prison van on approximately one hundred occasions between the remand prison and temporary detention facility of Cheboksary (IVS) which was the closest secure facility to the court building. Although on some rare occasions the applicant was alone in the van, during other trips he was either placed in a single occupancy cell measuring 0.25 sq.", "m or remained on his feet because there were no free seats. There were no toilets in the vans, prisoners used plastic bottles. On the days of transport, the applicant did not receive food rations. Lengthy check-in and check-out procedures resulted in two-hour wait at either facility with inmates staying inside vans. The applicant submitted a certificate issued by the remand prison governor showing the dates of his transport.", "6. The Government provided a description of the applicant’s conditions of transport, relying on transport logs concerning fifty-five trips, photographs of the vans, and two certificates issued by the Ministry of Interior of the Republic. One of the certificates lacked references to any original documentation and mentioned fifty-five trips and the one referred to “extracts from the prisoner transport logs” and listed sixty-six trips on different dates. The Government stated that they could not provide the full information about the conditions of the applicant’s transport. They added that the applicant was transported on fifty-five occasions in total, on thirteen of which he was in the van alone.", "The number of prisoners did not exceed the maximum capacity of vans, an average trip lasted 35-40 minutes, some of the vans were equipped with toilets, and the applicant was provided with dry food rations. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 7. The applicant complained that the conditions of his transport had been in breach of Article 3 of the Convention which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 8. The Government submitted that the conditions of transport were in compliance with the standards required under Article 3 of the Convention.", "9. The applicant maintained that the data provided by the Government were incomplete and that he had effected twice as many trips by prison van as the number given by the Government. A. Admissibility 10. 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 11. The Court reiterates that it has examined the issue of inhuman and degrading conditions of detention in many cases against Russia (see Khudoyorov v. Russia, no. 6847/02, §§ 117-119, ECHR 2005‑X (extracts); Guliyev v. Russia, no.", "24650/02, §§ 61-69, 19 June 2008; Starokadomskiy v. Russia, no. 42239/02, §§ 55-60, 31 July 2008; and Idalov v. Russia ([GC], no. 5826/03, §§ 103-108, 22 May 2012). It established in particular that transporting detainees in crammed prison vans was impermissible, irrespective of the duration and that a lack of appropriate food on the days of transport was an aggravating factor (see Khudoyorov, cited above, § 118, and Starokadomskiy, cited above, §§ 55 and 58). 12.", "Similar elements are obtaining in the instant case. The parties disagreed on the number of trips to which the applicant had been subjected, and official documents contained inconsistent and mutually exclusive information on the number and dates of such trips: the certificate from the prison governor submitted by the applicant contradicted the certificate from the Ministry of the Interior produced by the Government. It can however be established with certainty that the applicant was transported by prison van on at least fifty occasions. On those days he was confined to a solitary cell which appears to have afforded even less personal space than that what was available to the applicants in the above-mentioned cases where a violation of Article 3 was found. Even assuming that the Government’s submission on the duration of the actual travel time was correct, the aggravating impact of the lengthy check-in and check-out procedures cannot be gainsaid.", "The negative effects of the crammed conditions of transport must have increased in proportion to the time the applicant stayed inside the vehicle. 13. The above considerations are sufficient for the Court to conclude that the applicant was subjected to inhuman and degrading treatment in breach of Article 3 of the Convention during his transfer between the remand prison and the IVS. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 14.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 15. The applicant asked the Court to determine the amount of compensation in respect of non-pecuniary damage. The Government also left the determination of the amount of just satisfaction at the Court’s discretion. 16. The Court awards the applicant 5,000 euros (EUR) in respect of non‑pecuniary damage, plus any tax that may be chargeable.", "17. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 3 of the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months, EUR 5,000 (five thousand euros) in respect of non‑pecuniary damage, plus any tax that may be chargeable, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 7 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıBranko LubardaDeputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF MAJSKI v. CROATIA (No. 2) (Application no. 16924/08) JUDGMENT STRASBOURG 19 July 2011 FINAL 19/10/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Majski v. Croatia (no.", "2), The European Court of Human Rights (First Section), sitting as a Chamber composed of: Anatoly Kovler, President,Nina Vajić,Peer Lorenzen,Elisabeth Steiner,Khanlar Hajiyev,Julia Laffranque,Linos-Alexandre Sicilianos, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 28 June 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 16924/08) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Radovan Majski (“the applicant”), on 17 March 2008. 2. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.", "3. The applicant alleged, in particular, that there had been a violation of his right of access to court. 4. On 10 November 2010 the President of the First Section decided to communicate the complaint concerning access to court 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, who is of Serbian origin, was born in 1949 and lives in Vukovar. 6. On 28 October 2004 the applicant submitted an application for the post of deputy county state attorney in the Vukovar County State Attorney’s Office.", "He relied on section 22(2) of the Constitutional Act on the Rights of National Minorities and section 63(2) of the State Attorneys Act (see paragraphs 17 and 19 below). 7. On 11 January 2005 the State Attorneys Council (Državnoodvjetničko vijeće), after a secret ballot, unanimously adopted a decision appointing D.K.I. deputy county state attorney in the Vukovar County State Attorney’s Office. It found that both candidates satisfied the statutory requirements to be appointed deputy state attorney but gave priority to D.K.I., having regard to her extensive experience of working on civil and administrative law cases.", "The decision contained an information notice (pouka o pravnom lijeku) to the effect that administrative dispute proceedings could be instituted against it by bringing an action in the Administrative Court (Upravni sud Republike Hrvatske) within thirty days of its service. The information notice reads as follows: “Against this decision an administrative dispute may be instituted by bringing an action in the Administrative Court within thirty days of the service of the decision.” 8. On 4 February 2005 the applicant instituted administrative dispute proceedings in the Administrative Court by bringing an action under section 23 of the Administrative Disputes Act (see paragraph 26 below) against the State Attorneys Council’s decision of 11 January 2005. He again relied on section 22(2) of the Constitutional Act on the Rights of National Minorities. 9.", "On 16 March 2005 the Administrative Court declared the applicant’s action inadmissible, finding that the contested decision did not constitute an “administrative act” within the meaning of section 6(2) of the Administrative Disputes Act (see paragraph 24 below). Therefore, instead of instituting administrative dispute proceedings by bringing an action (against an administrative act), the applicant should have lodged “a request for the protection of a constitutionally guaranteed right” (zahtjev za zaštitu ustavom zajamčenog prava), a remedy provided in section 66 of the Administrative Disputes Act (see paragraph 34 below). The Administrative Court also held that the applicant’s action could not have been, even in substance, regarded as such a request, because he had not relied on any provision of the Constitution, but only on the Constitutional Act on the Rights of National Minorities. 10. On 18 July 2005 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the Administrative Court’s decision.", "In so doing the applicant, alleging a violation of his right of access to court, relied on Article 6 § 1 of the Convention. 11. On 13 February 2008 the Constitutional Court dismissed the applicant’s constitutional complaint. The relevant part of that decision reads as follows: “The Constitutional Court finds that the complainant’s rights under Article 6 § 1 of the European Convention on Human Rights and Fundamental Freedoms were not breached in the proceedings before the Administrative Court because the Administrative Court did not proceed contrary to the legal views established by the European Court of Human Rights in the application of that provision to individual cases. ...", "The Constitutional Court notes that in its practice it has established the rule that there is a remedy before the Administrative Court (a request under section 66 of the Administrative Disputes Act) against a decision on appointment of a deputy state attorney, and that this remedy has to be used before a constitutional complaint is lodged with the Constitutional Court (decision no. U-III-4364/2005 of 19 December 2005).” II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution 1. Relevant provisions 12.", "The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette of the Republic of Croatia nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum) and 76/2010) read as follows: Article 18 “The right to appeal against decisions adopted in the first-instance proceedings before a court or other authorised body shall be guaranteed. The right of appeal may exceptionally be excluded in cases provided by law if other legal protection is ensured.” Article 29(1) “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” Article 44 “Every national of the Republic of Croatia shall have the right, under equal conditions, to take part in the conduct of public affairs, and to be admitted to public service.” 2. The Constitutional Court’s jurisprudence 13. In its decisions no.", "U-III-1733/2000 of 24 November 2004 (published in the Official Gazette no. 179/2004 of 17 December 2004), no. U-III-2808/2007 of 13 February 2008 (published in the Official Gazette no. 26/2008 of 29 February 2008) and no. U-III-3071/2006 (published in the Official Gazette no.", "42/2009 of 6 April 2009) the Constitutional Court held that in cases where the first-instance courts had wrongly informed parties on legal remedies by indicating longer time-limits for lodging appeals against their decisions than those provided in the relevant legislation, and the parties lodged their appeals outside of the statutory time-limits but within the time-limits indicated by the first-instance courts, those appeals could not be declared inadmissible as lodged out of time. To do so would run contrary to the constitutional right to appeal guaranteed by Article 18(1) of the Constitution, and the constitutional right to a fair hearing, in its part concerning access to court, guaranteed by Article 29(1) of the Constitution (see preceding paragraph). 3. The case-law of the Administrative Court 14. In its judgment no.", "Zpa-5/2004-5 of 2 December 2004, following a request for the protection of a constitutionally guaranteed right (see paragraph 34 below) the Administrative Court quashed the decision of the National Judicial Council on appointment of a municipal court judge. It held that every candidate satisfying the statutory requirements had the right to equal participation in a competition for public office. Therefore, by appointing a candidate who did not satisfy the statutory requirements for appointment as a judge of a municipal court, the National Judicial Council violated the other candidate’s constitutional right to “equal access to public service” guaranteed by Article 44 of the Constitution (see paragraph 12 above). B. The Constitutional Court Act 1.", "Relevant provisions 15. The relevant provision of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette of the Republic of Croatia no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette of the Republic of Croatia no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows: Section 62 “(1) Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional government, or a legal person invested with public authority, on his or her rights or obligations, or as regards suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution (‘constitutional right’)... (2) If another legal remedy is available in respect of the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after this remedy has been used. (3) In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] is available, remedies shall be considered to have been exhausted only after a decision on these legal remedies has been given.” 2.", "The Constitutional Court’s jurisprudence 16. In its decision no. U-III-4364/2005 of 19 December 2005 (Official Gazette no. 6/2006 of 13 January 2006) the Constitutional Court held that a request for the protection of a constitutionally guaranteed right under section 66 of the Administrative Disputes Act (see paragraph 34 below) must be lodged against a decision of the State Attorneys Council on appointment of a deputy state attorney before a constitutional complaint under section 62 of the Constitutional Court Act. C. The Constitutional Act on the Rights of National Minorities 1.", "Relevant provisions 17. The relevant provisions of the Constitutional Act on the Rights of National Minorities (Zakon o pravima nacionalnih manjina, Official Gazette of the Republic of Croatia nos. 155/2002 and 80/2010), which entered into force on 23 December 2002, read as follows: Section 22(2) and (4) “(2) The representation of members of national minorities in the organs of State administration and judicial organs shall be secured in accordance with special legislation, and taking into account the proportion of members of national minorities in the total population at the level in respect of which the organ of state administration or judicial organ is established, and acquired rights. (4) In filling the posts referred to in paragraphs 2 and 3 of this section, priority shall be given under the same conditions to members of national minorities.” 2. The case-law of the Administrative Court 18.", "On 23 March 2006 the Administrative Court delivered its judgment in case no. Zpa-39/2005, where an aggrieved candidate, member of a national minority, lodged a request for the protection of a constitutionally guaranteed right under section 66 of the Administrative Disputes Act (see paragraph 34 below) against a decision of the National Judicial Council on appointment of a municipal court judge. He argued that the contested decision had breached his right guaranteed by Article 44 of the Constitution (see paragraph 12 above) in conjunction with section 22(4) of the Constitutional Act on the Rights of National Minorities (see paragraph 17 above). The Administrative Court dismissed his request (only) because in his application for the post of a municipal court judge he had not expressed the wish to be treated as a member of a national minority and had not relied on section 22(4) of the Constitutional Act on the Rights of National Minorities. D. The State Attorneys Act 1.", "Relevant provisions 19. The relevant provision of the State Attorneys Act (Zakon o državnom odvjetništvu, Official Gazette of the Republic of Croatia nos. 51/2001, 16/2007, 20/2007 (corrigendum), 146/2008), as in force at the material time, provided as follows: a) Appointment of deputy state attorneys Section 62 “(1) Deputy state attorneys shall be appointed in a manner, under the conditions and according to a procedure that guarantees they possess the expertise, independence and moral standing necessary to discharge the duty of a state attorney. (2) Any Croatian national who holds a law degree and has passed the bar exam may be appointed a deputy state attorney.” Section 63(2) “A person may be appointed a deputy state attorney in a county state attorney’s office if he or she has, as a holder of public office in the judiciary, exercised judicial duties, or has been an advocate, notary public or notary public’s assessor, or lecturer of law courses at a law faculty for at least ten years, or has worked in another legal profession for at least twenty years after passing the bar exam.” 20. The State Attorneys Act provided that decisions of the State Attorneys Council rendered in disciplinary proceedings (section 114) and decisions on removal from the office of a state attorney (section 118(5)) could be challenged by instituting administrative disputes proceedings before the Administrative Court in the form of an action under section 23 of the Administrative Disputes Act.", "However, the State Attorneys Act had no provisions on remedies available against decisions of the State Attorneys Council on appointment of state attorneys. 2. The case-law of the Administrative Court 21. In its decision no. Us-6683/2004 of 17 November 2004 the Administrative Court held for the first time that a decision of the State Attorneys Council on appointment of a deputy state attorney was not an administrative act within the meaning of section 6(2) of the Administrative Disputes Act.", "It also held that such a decision could only be contested before that court by lodging a request for the protection of a constitutionally guaranteed right under section 66 of the Administrative Disputes Act (see paragraph 34 below). E. The Administrative Disputes Act 1. Relevant provisions 22. The Administrative Disputes Act (Zakon o upravnim sporovima, the Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977, and the Official Gazette of the Republic of Croatia nos.", "53/1991, 9/1992 and 77/1992) in its relevant part provides as follows: 23. Section 6(1) provides that administrative dispute proceedings may be initiated only against an administrative act. 24. Section 6(2) provides that an administrative act, within the meaning of the Act, is an act whereby a State organ, in the exercise of public authority, decides on a right or obligation of an individual or an organisation in an administrative matter. 25.", "Section 10(1) provides that an administrative act may be challenged for: (a) misapplication of substantive law, (b) lack of jurisdiction, or (c) procedural errors or incorrect findings of fact. 26. Section 23 provides that administrative dispute proceedings are instituted by bringing an action. 27. Section 24(1) provides that the action has to be brought within thirty days from the service on the plaintiff of the administrative act (that is, a decision) being contested by the action.", "28. Section 27(1) provides that a statement of claim must contain: (a) the first and last name, or the name and the seat, of the plaintiff; (b) the administrative act being contested by the action; (c) a brief statement of the cause of action; as well as (d) to which direction and to what extent it is proposed to quash the administrative act, and (e) the signature of the plaintiff. The statement of claim must be accompanied by the original or a copy of the contested act. 29. Section 29(1) provides that if the action is incomplete or incomprehensible, the president of the panel shall invite the plaintiff to rectify the shortcomings within a certain time-limit.", "In doing so, the president should instruct the plaintiff as to what has to be done and how and warn him or her of the consequences of failing to comply with the court’s request. 30. Section 29(2) provides that if the plaintiff does not rectify the shortcomings in his action within the time-limit fixed, and they are of such a nature as to prevent the court proceeding with the case, the court shall declare the action inadmissible as deficient. 31. Section 30 provides that the Administrative Court must declare an action inadmissible if, inter alia, the contested decision does not constitute an administrative act within the meaning of section 6 of that Act.", "32. Sections 52-59 provide for the remedy of reopening of proceedings before the Administrative Court and regulate the procedure following a petition for reopening. 33. Section 60 provides that if the Administrative Disputes Act does not contain specific provisions on the procedure before the Administrative Court (that is, in administrative disputes), the provisions of the Civil Procedure Act should apply mutatis mutandis. 34.", "Section 66 reads as follows: “A request for the protection of a constitutionally guaranteed right or freedom ... if such a right or freedom has been violated by a final individual act [that is, a decision], and no other judicial protection is ensured, shall be decided by the [Administrative Court], by applying the provisions of this Act mutatis mutandis.” 2. The case-law of the Administrative Court 35. According to the conclusion reached at the plenary session of judges of the Administrative Court held on 26 October 1987, an action against an administrative act is to be considered a request for judicial protection within the meaning of section 66 of the Administrative Disputes Act if from the content of the action it transpires that it may concern a breach of rights or freedoms guaranteed by the Constitution. In such cases the Administrative Court could not review every breach of procedural or substantive law but only those that amount to breaches of constitutionally guaranteed rights or freedoms. 36.", "According to the Administrative Court’s case-law (judgment no. Zpa-5/2004-5 of 2 December 2004), the requirements for affording judicial protection under section 66 of the Administrative Disputes Act, which must be met in their totality, are: (a) the request has to concern rights or freedoms expressly guaranteed by the Constitution, (b) those rights or freedoms were allegedly breached by a final decision which does not have the characteristics of an administrative act, and (c) the legal system does not provide for another judicial avenue of redress. If the request lodged under section 66 of the Administrative Disputes Act does not concern a right or freedom guaranteed by the Constitution, it should be declared inadmissible (decision no. Zpa-4/2003 of 15 December 2004). The time-limit for lodging such a request is the same as the time-limit for bringing an action against an administrative act under section 23 of the Administrative Disputes Act (see paragraphs 26-27 above), that is, thirty days from the service of the contested decision (Zpa-9/05 of 13 April 2005).", "F. The Administrative Procedure Act 1. Relevant provisions 37. The relevant provisions of the Administrative Procedure Act (Zakon o općem upravnom postupku, the Official Gazette of the Socialist Federal Republic of Yugoslavia 47/1986 (consolidated text), and the Official Gazette of the Republic of Croatia no. 53/1991) provide as follows: Section 210(1), (3) and (4) “(1) By notice on legal remedies a party is informed whether he or she may lodge an appeal against the decision or institute administrative dispute proceedings or other judicial proceedings. (3) Where administrative dispute proceedings may be instituted against the decision, the notice shall indicate in which court and within what time-limit the action should be brought.", "Where other judicial proceedings may be instituted, it [the notice] shall indicate before which court and within what time-limit the proceedings should be instituted. (4) When incorrect information has been given, a party may follow the legislation in force or the notice. A party which followed the incorrect information shall not suffer any adverse consequences as a result.” 2. The case-law of the Administrative Court 38. In its decision no.", "Zpa-9/2005-4 of 13 April 2005 the Administrative Court held that an incorrect information as regards the remedies available against a decision of the State Attorneys Council did not give rise to the rights stipulated in section 210 of the Administrative Procedure Act (see preceding paragraph). G. The Civil Procedure Act 39. The relevant provision of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008) reads as follows: 5.a.", "Reopening of proceedings following a final judgment of the European Court of Human Rights in Strasbourg finding a violation of a fundamental human right or freedom Section 428a “(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional protocols thereto ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, file a petition with the court in the Republic of Croatia which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated. (2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings. (3) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LACK OF ACCESS TO COURT 40. The applicant complained that despite the fact that the State Attorneys Council had wrongly informed him on the legal remedies available against its decision of 11 January 2005, the Administrative Court had refused to review his action on its merits and thereby violated his right of access to court.", "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 ...” 41. The Government contested that argument. A. Admissibility 42. The Government disputed the admissibility of this complaint on two grounds. They argued that Article 6 was inapplicable and that, in any event, the applicant had failed to exhaust domestic remedies.", "1. Applicability (a) The arguments of the parties 43. The Government first referred to the Court’s case-law, according to which the right of access to court extended only to “contestations” (disputes) over (civil) “rights and obligations” which were, at least on arguable grounds, recognised under domestic law (see James and Others v. the United Kingdom, 21 February 1986, § 81, Series A no. 98). When it was clear that that right did not exist in the domestic legal system, Article 6 was not applicable, and the Court, when interpreting that Article, could not create a right which had no foundation in the domestic legal system.", "44. In that connection the Government first submitted that in Croatian law there was no substantive (civil) right to employment or appointment to the civil service. In particular, they explained that in order to acquire the right to be appointed to the position of deputy county state attorney it was not sufficient for a candidate to meet the formal statutory requirements set forth in sections 62(2) and 63(2) of the State Attorneys Act (see paragraph 19 above). It was also necessary that a candidate had the required expertise and independence, as provided in section 62(1) of the State Attorneys Act (see paragraph 19 above), and received a sufficient number of votes from the members of the State Attorneys Council. Therefore, even if all candidates met the formal statutory requirements, the post of deputy county state attorney could remain vacant if none of them received the required number of votes.", "In assessing the expertise and independence of the candidates in the present case, after holding a secret ballot the State Attorneys Council appointed Mrs D.K.I., and not the applicant, deputy county state attorney in the Vukovar County State Attorney’s Office. It followed that the applicant had not had the right to be appointed to that post. 45. The Government further argued that, even if the Administrative Court had quashed the impugned decision of the State Attorneys Council, the applicant would not have been appointed instead of Mrs D.K.I. ; rather, the position would have remained vacant.", "A new advertisement would have been published and a new selection procedure conducted. That fact was a strong indication that: (a) as already stated above, the applicant had not had the right to be appointed to the post of deputy county state attorney in the Vukovar County State Attorney’s Office (see, mutatis mutandis, Sultana v. Malta (dec.), no. 970/04, 11 December 2007), and (b) even if he had had that right, the proceedings in question had not been directly decisive for his “rights and obligations” (see, mutatis mutandis, Revel and Mora v. France (dec.), no. 171/03, 15 November 2005). 46.", "Lastly, the Government submitted that in Croatian law there was no right to challenge an appointment to the civil service either. In particular, decisions of the State Attorneys Council on appointments could only be reviewed, under section 66 of the Administrative Disputes Act, if they were not in accordance with constitutionally guaranteed rights or freedoms (see paragraph 21 above). However, in the Sultana case, the Court had already held that the right to lodge a similar remedy had no features of private law and thus had no elements which could make it akin to a “civil” right, which would be required to make Article 6 applicable (see Sultana, cited above). 47. Having regard to the above, the Government considered that Article 6 was not applicable in the present case.", "48. The applicant argued that the domestic courts failed to protect his right to access to public service. In his view, that right was a “civil right” within the meaning of Article 6 § 1 of the Convention. (b) The Court’s assessment 49. The Court reiterates that Article 6 § 1 of the Convention secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal.", "The right of access, namely the right to institute proceedings before a court in civil matters, constitutes one aspect of this “right to a court” (see, notably, Golder v. the United Kingdom, 21 February 1975, §§ 28-36, Series A no. 18). This right extends only to “civil rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law (see James and Others, loc. cit.). Therefore, in order to establish whether the civil head of Article 6 is applicable in the present case, and, consequently, whether the applicant could rely on the right of access to court, the Court should first examine whether he had a “right” which could arguably be said to be recognised under Croatian law, and secondly, whether that right was a “civil” one.", "(i) Existence of a right 50. The Court notes in this connection that according to the Administrative Court’s case-law, every candidate satisfying the statutory requirements has the right to equal participation in a competition for a public office, which right is a corollary of the right to equal access to public service guaranteed by Article 44 of the Constitution (see paragraphs 12 and 14 above). Having regard to the findings of the State Attorneys Council in the present case, according to which both the applicant and Mrs D.K.I. satisfied the statutory conditions for appointment to the post of deputy county state attorney in the Vukovar County State Attorney’s Office (see paragraph 7 above), the Court considers that the applicant had a “right” which could arguably be said to be recognised under Croatian law (see, for example, Kübler v. Germany, no. 32715/06, § 46, 13 January 2011; Lombardi Vallauri v. Italy, no.", "39128/05, § 62, ECHR 2009‑... (extracts); and Fiume v. Italy, no. 20774/05, § 35, 30 June 2009). (ii) Civil nature of the right 51. As regards the “civil” nature of the right, the Court held that the approach developed in the case of Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, ECHR 2007‑IV, see paragraph 53 below) also applied to the right of access to a public office (see, notably, Kübler, cited above, § 45; and, implicitly, Josephides v. Cyprus, no.", "33761/02, § 54, 6 December 2007; Lombardi Vallauri, cited above, loc. cit. ; and Penttinen v. Finland (dec.), no. 9125/07, 5 January 2010). 52.", "Before the judgment in the Vilho Eskelinen case, the Court held that employment disputes between the authorities and public servants whose duties typified the specific activities of public service, in so far as the latter was acting as the depositary of public authority responsible for protecting the general interests of the State, were not “civil” and were excluded from the scope of Article 6 § 1 of the Convention (see Pellegrin v. France [GC], no. 28541/95, § 66, ECHR 1999‑VIII). Likewise, employment disputes involving state attorneys (solicitors general) were also excluded from the scope of Article 6 § 1 (see Mickovski v. the former Yugoslav Republic of Macedonia (dec.), no. 68329/01, 10 November 2005). 53.", "In the Vilho Eskelinen case the Court revisited the applicability of Article 6 § 1 and held that it was for the Contracting States, in particular the competent national legislature, and not the Court, to identify expressly those areas of public service involving the exercise of the discretionary powers intrinsic to State sovereignty where the interests of the individual must give way. If a domestic system barred access to court, the Court would verify that the dispute was indeed such as to justify the application of the exception to the guarantees of Article 6. If it did not, then there was no issue and Article 6 § 1 would apply (see Vilho Eskelinen and Others, cited above, § 61). 54. Following the Vilho Eskelinen case, the Court found Article 6 to be inapplicable to proceedings concerning recruitment (see Apay v. Turkey, no.", "3964/05, 11 December 2007) and (disciplinary) proceedings concerning the termination of employment of public prosecutors (see Nazsiz v. Turkey, no. 22412/05 26 May 2009) but only because the domestic law expressly excluded access to court. However, turning to the circumstances of the present case, the Court first notes that section 66 of the Administrative Disputes Act provides for “a request for the protection of a constitutionally guaranteed right”, a judicial remedy open to anyone who considers that his or her rights or freedoms guaranteed by the Constitution have been violated by a decision of a public authority in a situation where no other judicial remedy is available (see paragraph 34 above). It further notes that in the present case the applicant was entitled to contest the impugned decision of the State Attorneys Council of 11 January 2005 before the Administrative Court by lodging such a request in so far as that decision was contrary to his constitutional right to equal access to the public service (see paragraphs 9, 14, 16 and 21 above). (iii) Conclusion 55.", "In the light of the foregoing, the Court finds that Article 6 of the Convention under its civil head is applicable to the present case (see, mutatis mutandis, Josephides, cited above, § 55; Penttinen, cited above; Kravchenko and Others (military housing) v. Russia, nos. 11609/05, 12516/05, 17393/05, 20214/05, 25724/05, 32953/05, 1953/06, 10908/06, 16101/06, 26696/06, 40417/06, 44437/06, 44977/06, 46544/06, 50835/06, 22635/07, 36662/07, 36951/07, 38501/07, 54307/07, 22723/08, 36406/08 and 55990/08, § 23, 16 September 2010; and Kübler, cited above, § 46) and, consequently, that the applicant should have had access to court in respect of his right to equal access to public service guaranteed by Article 44 of the Constitution. 56. It follows that the Government’s objection to the applicability of Article 6 of the Convention must be dismissed. 2.", "Non-exhaustion of domestic remedies (a) The arguments of the parties 57. The Government further argued that, after the Administrative Court declared his administrative action inadmissible on 16 March 2005, the applicant should have lodged a request for the protection of a constitutionally guaranteed right under section 66 of the Administrative Disputes Act. According to the Government, that followed from the Administrative Court’s decision of 16 March 2005. That would have enabled the Administrative Court to decide on the merits of the applicant’s request regardless of the fact that it would have been submitted outside of the statutory time-limit, and having regard to the Constitutional Court’s jurisprudence, according to which a party which followed an incorrect information on legal remedies should not suffer any adverse consequences as a result. Even if the Administrative Court had declared such a request inadmissible as lodged out of time, the applicant could have lodged a constitutional complaint against such a decision relying on the above-mentioned jurisprudence of the Constitutional Court.", "58. In addition, the Government submitted that in his administrative action of 4 February 2005 the applicant had not relied on any of the constitutionally guaranteed rights, in particular the right to equal access to public service guaranteed by Article 44 of the Constitution. Had he done so, the Administrative Court would not have declared his action inadmissible but it would have treated it as a request for the protection of a constitutionally guaranteed right and examined it on its merits. However, since he had not done so, his action could not, either in form or in substance, be viewed as a request for the protection of a constitutionally guaranteed right within the meaning of section 66 of the Administrative Disputes Act, and therefore had to be declared inadmissible. 59.", "The applicant did not comment on this issue. (b) The Court’s assessment 60. The Court first notes that there is nothing in the text of the Administrative Court’s decision of 16 March 2005 that would indicate, as suggested by the Government (see paragraph 57 above), that the applicant should have re-submitted his action brought under section 23 of the Administrative Disputes Act as a request for the protection of a constitutionally guaranteed right under section 66 of the same Act (see paragraph 9 above). Had he done so, his request would have been declared inadmissible for failure to comply with the statutory time-limit of thirty days. The Court further notes that the Constitutional Court dismissed the applicant’s subsequent constitutional complaint lodged against the Administrative Court’s decision (see paragraph 11 above).", "This suggests that the Constitutional Court considered the contested decision not to be contrary to its jurisprudence, according to which a party which followed an incorrect information on legal remedies should not suffer any adverse consequences as a result. Moreover, that jurisprudence was developed in respect of cases where the first-instance courts wrongly informed parties by indicating longer time-limits for lodging appeals against their decisions than those provided in the relevant legislation. In such cases the Constitutional Court held that their appeals could not be declared inadmissible as lodged out of time if they had been lodged within the time-limits indicated by the first-instance courts (see paragraph 13 above). However, the present case concerns a situation where the applicant was informed to use a different remedy from the one actually available under the relevant legislation, and the Court is unaware of any decision of the Constitutional Court that would sanction such erroneous information on legal remedies. 61.", "Furthermore, the Court is not convinced by the Government’s argument that in his administrative action the applicant should have relied on a constitutionally guaranteed right, such as, for example, the right to equal access to public service guaranteed by Article 44 of the Constitution, in which case the Administrative Court would have decided on the merits of his action, treating it, in substance, as a request under section 66 of the Administrative Disputes Act. In this connection the Court notes that while the case-law of the Administrative Court requires claimants to specify in their requests lodged under section 66 of the Administrative Disputes Act the constitutional right which has allegedly been violated by the contested decision (see paragraph 36 above), the same or similar requirement (see paragraph 28 above) does not exist in respect of administrative actions instituting administrative dispute proceedings brought under section 23 of the same Act, to which the applicant resorted to. Given that in the present case the State Attorneys Council had informed the applicant to bring such an action against its decision of 11 January 2005, instead of informing him to lodge a request for the protection of a constitutionally guaranteed right, the Court considers that he was not obliged to comply with the above-mentioned requirement. 62. It follows, in the light of the foregoing, that the Government’s objection of failure to exhaust domestic remedies must also be dismissed.", "63. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The arguments of the parties 64. The Government maintained that the applicant’s right of access to court had not been violated. In so doing they relied on the same arguments summarised in paragraph 58 above. 65.", "The applicant maintained his view that by declaring his action inadmissible, despite the fact that the State Attorneys Council had wrongly informed him to resort to that remedy, the Administrative Court had violated his right of access to court. 2. The Court’s assessment 66. The Court reiterates that the right of access to court is not absolute, but may be subject to limitations. These are permitted by implication since the right of access by its very nature calls for regulation by the State.", "In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. However, these limitations must not restrict or reduce the access left to an individual in such a way or to such an extent that the very essence of the right is impaired (see, for example, Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93). 67. Turning to the circumstances of the present case, the Court notes that the State Attorneys Council had wrongly informed the applicant on the legal remedies available against its decision of 11 January 2005.", "In particular, it informed him that administrative dispute proceedings could be instituted by bringing an action in the Administrative Court under section 23 of the Administrative Disputes Act (see paragraph 7 above), whereas the (only) available remedy was in fact a request for the protection of a constitutionally guaranteed right under section 66 of the same Act (see paragraphs 9 and 21 above). When the applicant eventually brought the action as informed, the Administrative Court declared it inadmissible and refused to review the contested decision on the merits. It did so because: (a) the contested decision did not constitute an administrative act within the meaning of section of 6(2) the Administrative Disputes Act, and (b) in his action the applicant had not relied on any right or freedom guaranteed by the Constitution and thereby prevented the Administrative Court from viewing his action, in substance, as a request for the protection of a constitutionally guaranteed right under section 66 of the Administrative Disputes Act (see paragraph 9 above). 68. The Court reiterates that it is in the first place for the national authorities, and notably the courts, to interpret and apply the domestic law.", "This applies in particular to the interpretation by courts of rules of a procedural nature. The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see, for example, Tejedor García v. Spain, 16 December 1997, § 31, Reports of Judgments and Decisions 1997‑VIII, and Pérez de Rada Cavanilles v. Spain, 28 October 1998, § 43, Reports 1998‑VIII). 69. In order to satisfy itself that the very essence of the applicant’s right of access to court was not impaired, the Court must examine whether the Administrative Court’s decision to declare his action inadmissible could be regarded as foreseeable having regard to the relevant legislation and the case-law and given the fact that the applicant was wrongly informed on legal remedies (see, mutatis mutandis, Levages Prestations Services v. France, 23 October 1996, § 42, Reports 1996‑V, and Osu v. Italy, no. 36534/97, § 35, 11 July 2002).", "70. In this connection the Court first notes that the State Attorneys Act had no provisions on remedies available against decisions of the State Attorneys Council on appointment of deputy state attorneys (see paragraph 20 above), and that therefore from its text it was not certain what the right remedy to be used was. This uncertainty was remedied by judicial interpretation on 17 November 2004 when the Administrative Court held for the first time that such decisions could only be challenged by a request for the protection of a constitutionally guaranteed right under section 66 of the Administrative Disputes Act (see paragraph 21 above). While it is true that the above-mentioned decision of the Administrative Court was rendered some two months before the applicant brought his action in the same court, the Court does not consider that the applicant should have been aware of it and disregarded the explicit information on legal remedies contained in the decision of the State Attorneys Council he was contesting. This is so because in cases like the present one, where the remedy in question was the result of interpretation by the courts, it normally takes six months for such a development of the case-law to acquire a sufficient degree of legal certainty before the public may be considered to be effectively aware of the domestic decision which had established the remedy and the persons concerned be enabled and obliged to use it (see, mutatis mutandis, Depauw v. Belgium (dec.), no.", "2115/04, ECHR 2007‑V (extracts), and Provide S.r.l. v. Italy, no. 62155/00, § 18, ECHR 2007‑VIII (extracts). 71. In these particular circumstances the applicant might have reasonably expected, having regard to section 29(1) and (2) in conjunction with section 66 of the Administrative Disputes Act (see paragraphs 29-30 and 34 above), from the Administrative Court to first inform him that his action could only be examined as a request for a protection of a constitutionally guaranteed right, and to invite him to specify which constitutional right he considered to have been violated.", "Instead, the Administrative Court declared his action inadmissible outright. As a result, the applicant found himself in a situation, where he was prevented, through no fault of his own, from having the impugned decision of the State Attorneys Council examined on its merits (see, mutatis mutandis, Société Anonyme Sotiris and Nikos Koutras Attee v. Greece, no. 39442/98, §§ 21-23, ECHR 2000‑XII; and Platakou v. Greece, no. 38460/97, §§ 39 and 49, ECHR 2001‑I). In the Court’s view, that situation impaired the very essence of the applicant’s right of access to court as secured by Article 6 § 1 of the Convention.", "72. There has accordingly been a violation of Article 6 § 1 of the Convention in the present case. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE EXCESSIVE LENGTH OF THE PROCEEDINGS 73. The applicant also complained that the length of the above proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.", "74. The Court notes that the proceedings complained of lasted some three years and three months, during which period the case was examined at three levels of jurisdiction. That being so, the Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that such a period cannot be considered excessive. Consequently, the length of the proceedings in the present case was not unreasonable. 75.", "It follows that this complaint is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 thereof. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 76. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 77.", "The applicant claimed 243,896.37 euros (EUR) in respect of pecuniary damage sustained on account of loss of earnings. He also claimed EUR 60,000 in respect of non-pecuniary damage. 78. The Government contested these claims. 79.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 80. On the other hand, the Court finds that the applicant must have sustained non-pecuniary damage. In this connection the Court first reiterates 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, as a rule, be to reopen the proceedings in due course and re‑examine the case in keeping with all the requirements of a fair hearing (see, for example, Lungoci v. Romania, no. 62710/00, § 56, 26 January 2006; Yanakiev v. Bulgaria, no.", "40476/98, § 90, 10 August 2006; and Lesjak v. Croatia, no. 25904/06, § 54, 18 February 2010). In this connection the Court notes that, having regard to section 60 of the Administrative Disputes Act (see paragraph 33 above), the applicant can now, relying on sections 25-59 of the same Act (see paragraph 32 above) in conjunction with section 428a of the Civil Procedure Act (see paragraph 39 above), file a petition for the reopening of the above proceedings in respect of which the Court has found a violation of Article 6 § 1 of the Convention. In these circumstances, ruling on an equitable basis, the Court awards the applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B.", "Costs and expenses 81. The applicant did not submit any claim for costs and expenses incurred in the proceedings before the domestic courts or before this Court. The Court therefore considers that there is no call to award him any sum on that account. C. Default interest 82. 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 access to 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 from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Croatian kunas 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 19 July 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenAnatoly KovlerRegistrarPresident" ]

[ "FOURTH SECTION CASE OF SILVA AND MONDIM CORREIA v. PORTUGAL (Applications nos. 72105/14 and 20415/15) JUDGMENT STRASBOURG 3 October 2017 FINAL 03/01/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Silva and Mondim Correia v. Portugal, 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,Iulia Motoc,Georges Ravarani,Marko Bošnjak,Péter Paczolay, judges,and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 12 September 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in two applications (nos. 72105/14 and 20415/15) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Portuguese nationals, Mr Tomás Silva (“the first applicant”) and Mr Mário Alberto Mondim Correia (“the second applicant”), on 30 October 2014 and on 17 April 2015, respectively. 2. The first applicant was represented by Mr J.J. Ferreira Alves, a lawyer practising in Matosinhos. The second applicant was represented by Ms L. do Fundo, a lawyer practising in Vila Nova de Famalicão.", "The Portuguese Government (“the Government”) were represented by their Agent, Ms M. F. da Graça Carvalho, Deputy Attorney General. 3. The applicants alleged that the dismissal of the paternity proceedings instituted by them constituted a breach of their rights under Article 8 of the Convention. 4. On 24 May 2016 that complaint was communicated to the Government and the remaining parts of the applications were declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The first applicant was born in 1944 and lives in Oliveira de Azeméis. The second applicant was born in 1970 and lives in Vila Real. A.", "Application no. 72105/14 (the first applicant) 6. The first applicant was born out of wedlock. His mother always considered T.S. to be his father and from an early age he has been in touch with T.S.’s family, who have always treated him as a relative.", "7. On 26 March 2012 the first applicant instituted an action for recognition of paternity before the Vale de Cambra Court. T.S. objected and argued that the applicant’s claim was time-barred under Article 1817 § 1 of the Civil Code. Mr Silva responded that this provision was unconstitutional because it violated Articles 18 §§ 2 and 3 and 26 § 1 of the Constitution.", "8. On 26 June 2012 the judge gave directions (despacho saneador) setting out those matters that had already been established and those that remained outstanding. In addition, the judge dismissed T.S.’s objection that the applicant’s claim was time-barred, holding that the time-limit set by Article 1817 § 1 was unconstitutional insofar as the limitation thus imposed on the possibility of investigating an individual’s paternity at all times constituted an unjustified and disproportionate restriction of the right of a son to know who his father was. It also found that the exercise of a person’s right to know his parentage could not be subject to temporal barriers and could only be restricted in cases where such exercise of the right would constitute an abuse. The fact that the plaintiff had only instituted the proceedings more than fifty years later could not, in itself, be considered to constitute an abuse.", "9. On an unknown date T.S. challenged the judge’s decision of 26 June 2012 ‒ in the part in which it considered Article 1817 § 1 to be incompatible with constitutional provisions ‒ before the Porto Court of Appeal. On an unknown date the applicant submitted his observations in reply (contra‑alegações), arguing that the decision should be upheld and the proceedings should not be deemed time-barred. 10.", "Meanwhile, on an unknown date, at the request of the first applicant, the Vale de Cambra Court ordered DNA tests which established that T.S. was the applicant’s father. In the light of that result the Vale de Cambra Court asked the parties about the usefulness of continuing the proceedings. T.S. did not acknowledge paternity and requested the Vale de Cambra Court to continue the proceedings.", "11. On 9 April 2013 the Porto Court of Appeal dismissed T.S.’s challenge. It held that Article 1817 § 1 was unconstitutional and that the right to seek judicial recognition of paternity should not be subject to a time-limit. 12. T.S.", "appealed to the Supreme Court of Justice. 13. On 14 January 2014 the Supreme Court dismissed T.S.’s appeal and upheld the decision of the Porto Court of Appeal in its entirety. 14. On an unknown date T.S.", "appealed to the Constitutional Court, to which he submitted the question of the constitutionality of Article 1817 § 1 of the Civil Code, pursuant to Article 70 § 1 (a) of the Law of the Constitutional Court. 15. On 10 March 2014 the Constitutional Court held, with reference to its previous ruling no. 401/2011, that Article 1817 § 1 complied with the relevant provisions of the Constitution. 16.", "The first applicant appealed to the Conference of the Constitutional Court (Conferência do Tribunal Constitucional), claiming that Article 1817 § 1 was unconstitutional. On 7 May 2014 the Conference of the Constitutional Court upheld the previous decision of the Constitutional Court and dismissed the applicant’s claim. 17. As a result of the Constitutional Court’s decisions, the Supreme Court of Justice dismissed the applicant’s action on 9 July 2014. B.", "Application no. 20415/15 (the second applicant) 18. The second applicant was born out of wedlock. His mother always considered A.M. to be his father. 19.", "On 31 March 2014 he brought paternity proceedings before the Vila Real Court and contended that he had always known that A.M. was his father. A.M. objected, arguing that the claim was time-barred. 20. On 15 June 2013 the Vila Real Court dismissed the second applicant’s action, holding that it was time-barred for being lodged outside the ten-year time-limit established under Article 1817 § 1 of the Civil Code. In addition, it noted that the second applicant had not argued that there were any factors justifying the addition of a further three years pursuant to Article 1817 §§ 2 and 3 of the Civil Code.", "21. On 5 September 2013 the second applicant appealed to the Porto Court of Appeal, challenging the judgment of the Vila Real Court. He argued that the time-limit established under Article 1817 § 1 of the Civil Code for the institution of paternity proceedings was not compatible with the Constitution and that the right to one’s identity should prevail over the rights of the alleged parent. 22. On 10 December 2013 the Porto Court of Appeal upheld the first‑instance judgment, finding that Article 1817 § 1 of the Civil Code was not incompatible with constitutional provisions, pursuant to Ruling no.", "401/2011 of the Constitutional Court. One of the judges dissented, expressing the view that the protection afforded by the Constitution to the fundamental right to personal identity required that the possibility of investigating one’s biological identity should not be subject to a time‑limit. 23. On 28 January 2014 the second applicant challenged the decision of the Porto Court of Appeal before the Supreme Court of Justice and asked it to rule that the referred time-limit was unconstitutional. 24.", "By a judgment of 27 May 2014 the Supreme Court of Justice quashed the judgment of the Porto Court of Appeal and held that the ten‑year time-limit established under Article 1817 § 1 of the Civil Code was unconstitutional. 25. On an unknown date A.M. lodged a constitutional appeal before the Constitutional Court, which by a summary decision of 25 September 2014 ruled that, with reference to its previous ruling no. 401/2011, the provision was constitutional and ordered that the judgment of the Supreme Court be modified accordingly. 26.", "The second applicant appealed to the Conference of the Constitutional Court. On 28 October 2014 the Conference upheld the previous decision. 27. Following the Constitutional Court decisions, the Supreme Court of Justice dismissed the second applicant’s action on 13 January 2015. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution of the Portuguese Republic 28. The relevant articles of the Constitution of the Portuguese Republic read as follows: Article 18 – Legal force “... 3. Laws that restrict rights, freedoms and guarantees must have a general and abstract nature and may not have a retroactive effect or reduce the extent or scope of the essential content of the constitutional precepts.” Article 26 – Other personality rights “1. Everyone is accorded the rights to personal identity, to the development of personality, to civil capacity, citizenship, to a good name and reputation, to their image, to speak out, to protect the privacy of their personal and family life, and to legal protection against any form of discrimination.", "2. The law shall lay down effective guarantees against the improper procurement and misuse of information concerning persons and families and its procurement or use contrary to human dignity. 3. The law shall guarantee the personal dignity and genetic identity of the human person, particularly in the creation, development and use of technologies and in scientific experimentation. 4.", "Deprivation of citizenship and restrictions on civil capacity may only occur in the cases and under the terms that are provided for by law, and may not be based on political motives.” Article 36 – Family, marriage and filiation “... 3. Spouses have equal rights and duties in relation to their civil and political capacity and to the maintenance and education of their children. 4. Children born outside wedlock may not be the object of any discrimination for that reason, and neither the law, nor official departments or services may employ discriminatory terms in relation to filiation.” B. The Portuguese Civil Code 29.", "Pursuant to Articles 1873 and 1817 § 1 of the Civil Code provide that a claim for establishing paternity can be brought at any time until the child reaches the age of majority. The right to seek paternity recognition by judicial decision lapses ten years after the person has attained the age of majority. 30. In addition, Article 1817 § 3 of the Civil Code provides for a supplementary three-year period within which paternity proceedings can be instituted. According to this provision, a person can seek paternity recognition by judicial decision within three years of one of the following events: a) paternity being successfully challenged by a third party; b) the applicant’s becoming aware, after the expiry of the ten-year time-limit, of a factor or circumstances which may justify the proceedings, in particular where they have ceased to be treated as a son or daughter; c) in the event that paternity has not been established, the investigating party’s becoming aware of facts and circumstances which warrant the investigation.", "The three-year period shall be counted in addition to the general ten-year time‑limit. 31. The current text of the above provision is the result of a legislative evolution brought about by virtue of the case-law of the Constitutional Court which, in its Ruling no. 23/2006, ruled that the previous text of Article 1817 § 1 of the Civil Code (adopted by the Decree Law 496/77 of 25 November 1977) – which had established a two-year time-limit from the date of reaching the age of majority or the date of emancipation of the minor for the exercise of his or her right to start paternity proceedings – was incompatible with Articles 26 § 1 and 36 § 1 of the Constitution. Moreover, the legislative amendment was not limited to extending the period during which paternity proceedings could be started: it also put an end to autonomous application of the time-limit, which continued regardless of whether there was any justification for the exercise of the right.", "Law no. 14/2009 of 1 April 2009, which amended the text of Article 1817 § 1 to its current version, also added the supplementary three‑year time-limit provided for by paragraph 3 of Article 1817. C. Case-law of the Supreme Court of Justice 32. The case-law of the Supreme Court of Justice does not present a consistent approach on the constitutionality of the ten-year time-limit established under Article 1817 § 1 of the Civil Code. 33.", "On the one hand, the Supreme Court has held on several occasions that the ten-year time-limit set by Article 1817 § 1 was unconstitutional (see, for example, judgments of 8 June 2010, 21 September 2010, 27 January 2011, 6 September 2011, and 31 January 2017). In these cases, the Supreme Court found that the imposition of a time-limit on the exercise of the right to seek judicial recognition of paternity was a disproportionate interference with an individual’s right to personal identity. In other cases, however, the Supreme Court has held that the time-limit in question was not incompatible with the Constitution since the right to institute paternity proceedings was not, by its nature, indefeasible (see, for example, its judgments of 17 November 2015 and 8 November 2016). D. Case-law of the Constitutional Court 34. In Ruling no.", "401/2011 of 22 September 2011 the Constitutional Court was called upon to rule on whether Article 1817 § 1 of the Civil Code was compatible with the Constitution. The Constitutional Court dismissed, by seven votes to six, the objection raised as to constitutionality and ruled that the provision in question was not disproportionate in that it did not violate the constitutional right to know one’s biological parents and to establish the commensurate legal bond, which itself fell within the scope of the fundamental rights to personal identity and to found a family. In the view of the Constitutional Court judges, such a limitation did not prevent the holder of the right from exercising it but merely imposed on him or her the onus of doing so by a given deadline. The Constitutional Court noted, inter alia, that the existence of a legislative deadline was intended to avoid the unjustified prolongation of an indeterminate situation as regards the legal establishment of the parental relationship. It noted that there was a public interest in having both biological and legal paternity established as soon as possible in order to have a legally sound parental relationship for as long as possible.", "In addition, there was an interest in ensuring legal certainty in respect of the putative father and his family due to the personal and patrimonial consequences of the recognition of paternity. In the Constitutional Court’s view the ten‑year time-limit established under Article 1817 § 1 of the Civil Code was therefore reasonable in terms of ensuring that there was no time limit imposed for instituting paternity proceedings during a phase of the son’s life in which he was not mature enough to make a firm decision. 35. The Ruling was accompanied by six dissenting opinions, including that of its original rapporteur. These essentially expressed the view that the requirement for protection of the assets pertaining to the investigating party was not compatible with any form of limitation, and that even if it were possible to limit the investigating party’s interests, in the case in question such limitation was not justified when the proportionality of the various conflicting interests was weighed up.", "THE LAW I. JOINDER OF THE APPLICATIONS 36. Given the similar subject matter of the applications, the Court finds it appropriate to join them, pursuant to Rule 42 § 1 of the Rules of the Court. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 37. The applicants complained that the dismissal of the paternity proceedings instituted by them on account of the statutory ten-year limitation period was in breach of Article 8 of the Convention, which reads as follows: “1.", "Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 38. The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds.", "They must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicants (i) Application no. 72105/14 39.", "The first applicant submitted that he had been born out of wedlock and had instituted proceedings in order to have his paternity legally established and that the DNA tests carried out in the course of the proceedings had scientifically proven that T.S. was his father. He argued that the statutory time-limit provided for in Portuguese legislation was no longer justifiable in the light of scientific advances which now permit DNA tests to establish genetic filiation at any time. 40. The first applicant further argued that an individual’s right to know his biological identity conferred an imprescriptible right as regards the establishment of his biological identity.", "He conceded that the Court has considered the establishment of a time-limit for the institution of proceedings for the recognition of paternity justified in order to ensure legal certainty and to protect family relationships, in particular with regard to inheritance matters. In the instant case, however, he had sought merely to have his biological relationship with his father established and there was no financial or legal claim attached to it. The absolute denial of his right therefore did not represent a fair balance between the rights and interests at stake, and the establishment of biological links should not be subject to any temporal limitation. Moreover, referring to the case of Phinikaridou v. Cyprus (no. 23890/02, 20 December 2007), the first applicant contended that there were no domestic remedies available permitting extension of the time-limit in the event that the proceedings were time-barred, nor was there any exception to the application of the established time-limit.", "41. The first applicant concluded that the dismissal of the paternity proceedings on account of the statutory limitation period constituted an interference with his right to respect for his private and family life and had not been necessary in a democratic society. (ii) Application no. 20415/15 42. The second applicant argued that the ten year time-limit provided for in the Portuguese Civil Code for the institution of proceedings for the recognition of paternity was an unacceptable interference with the right to private life.", "The applicant furthermore contended that existence of time‑limits for proceedings seeking the recognition of paternity constituted a disproportionate restriction on the right to personal identity as embodied in Article 8 of the Convention. An individual’s inactivity or passivity over a certain period of time prior to instituting an action could not interfere with the legitimacy of doing so as it pertained to his interest in obtaining knowledge about his full personal identity. In addition, he argued that it was not reasonable to impose a time-limit for the judicial recognition of paternity since DNA testing allowed the paternity of a person to be determined in a reliable way at any time. 43. With regard to the argument that the existence of a deadline for the institution of paternity proceedings was necessary in order to ensure legal certainty in inheritance-related relationships, the second applicant contended that this was an argument of a predominantly patrimonial nature which could not override the interest of a son in establishing his paternity.", "(b) The Government 44. The Government acknowledged that the time-limit at issue constituted an interference with an individual’s right to lodge paternity proceedings in so far as such action would have to be instituted within a certain period to prevent its becoming time-barred. It argued, however, that regulating the exercise of the right of action in respect of paternity proceedings ‒ in particular setting a fixed deadline for the institution of the action ‒ was not in itself contrary to the Convention, which would theoretically allow such a deadline. 45. The Government contended that under Portuguese legislation the exercise of the right to bring paternity proceedings was regulated by a law which established a general time-limit of ten years from the date of reaching the age of majority or of emancipation.", "In addition, the Civil Code, under paragraphs 2 and 3 of Article 1817 (by virtue of Article 1873) provided for an extension of the general time-limit in specific circumstances. The Government explained that the current law had been the result of a legislative evolution brought about by virtue of the case-law emanating from the Constitutional Court. Thus, Portuguese legislation was neither rigid nor inflexible. 46. With regard to the applicants’ cases, the Government pointed out that they had started paternity proceedings after the ten-year period had expired.", "In addition, neither of the applicants had sought to demonstrate before the domestic courts any of the circumstances enumerated in paragraph 3 of Article 1817 of the Civil Code which would have allowed an extension of the general ten-year time-limit. The Government also pointed out that the second applicant had alleged before the domestic courts that his mother had repeatedly told him who his father was. 47. The Government further contended that the decision to set time‑limits in respect of proceedings for the recognition of paternity or to define the criteria for bringing such an action fell within the margin of discretion of the legislator, and the Portuguese legislator had decided to impose limitation periods. 48.", "Referring to Konstantinidis v. Greece (no. 58809/09, 3 April 2014), the Government concluded that the Portuguese authorities had made a fair assessment of the conflicting interests. Given the lack of European consensus on the issue, the time-limit provided for in Portuguese legislation had not constituted an interference with the applicants’ right to private life. 2. The Court’s assessment (a) Applicability of Article 8 of the Convention 49.", "The Court notes that it is not disputed between the parties that Article 8 is applicable. 50. In this connection, the Court notes that the applicants, born out of wedlock, sought by means of judicial proceedings to determine ‒ through the establishment of the biological truth ‒ their legal relationship with the person they claimed was their father. 51. The Court has held on numerous occasions that paternity proceedings fall within the scope of Article 8 (see Backlund v. Finland, no.", "36498/05, § 37, 6 July 2010, and Mikulić v. Croatia, no. 53176/99, § 51, ECHR 2002‑I). It reiterates that birth and, in particular, the circumstances in which a child is born, form part of a child’s ‒ and subsequently the adult’s ‒ private life guaranteed by Article 8 of the Convention (see Odièvre v. France [GC], no. 42326/98, § 29, ECHR 2003‑III, and Phinikaridou v. Cyprus, no. 23890/02, § 45, 20 December 2007).", "Respect for private life requires that everyone should be able to establish details of their identity as individual human beings and that an individual’s entitlement to such information is of importance because of its formative implications for his or her personality. This includes obtaining the information needed to uncover the truth concerning important aspects of one’s personal identity, such as the identity of one’s parents (see, for example, Călin and Others v. Romania, nos. 25057/11 and 2 others, § 83, 19 July 2016, with further references). 52. Accordingly, the facts of the case fall within the ambit of Article 8 of the Convention.", "(b) Compliance with Article 8 (i) General principles 53. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by public authorities. There may additionally be positive obligations inherent in ensuring effective “respect” for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see Mikulić, cited above, § 57, and S.H. and Others v. Austria [GC], no.", "57813/00, § 87, ECHR 2011). However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both cases consideration must be given to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole. A balancing exercise is also required with regard to competing private interests.", "In this connection, it should be observed that the expression “everyone” in Article 8 of the Convention applies to both the child and the putative father. If, as stated earlier, on the one hand, people have a right to know their identity, on the other hand, a putative father’s interest in being protected from allegations concerning circumstances that date back many years cannot be denied. Finally, in addition to that conflict of interest, other interests may come into play, such as those of third parties ‒ principally those of the putative father’s family ‒ and the general interests of legal certainty (Backlund, cited above, § 46). 54. Whether in the context of positive or negative obligations the State enjoys a certain margin of appreciation (see Odièvre¸cited above, § 40, and Mikulić, cited above, § 58).", "The Court’s task is not to substitute itself for the competent domestic authorities in regulating paternity disputes at the national level, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see Călin and Others, cited above, § 86, and Konstantinidis v. Greece, no. 58809/09, § 43, 3 April 2014). The Court must therefore examine whether the respondent State, in handling the applicants’ actions for judicial recognition of paternity, has complied with its positive obligations under Article 8 of the Convention. 55. On the occasion of the examination of Phinikaridou, cited above, the Court made a comparative study of the Contracting States’ legislation on the institution of actions for judicial recognition of paternity.", "This study revealed that there was no uniform approach in this field. In contrast to situations where proceedings are instituted by fathers to establish or deny paternity, a significant number of States did not set a limitation period for children to bring an action aimed at having paternity established. Indeed, a tendency could be observed towards increasing protection of the right of the child to have its paternal parentage established (Phinikaridou, cited above, § 58). 56. In the States in which a limitation period for bringing such proceedings existed, the length of the applicable period differed significantly, varying between one and thirty years.", "Furthermore, although there was a difference in the start-date of the limitation period, in the majority of these States the relevant period was calculated from the date of the child’s birth or his or her reaching the age of majority or of a final judgment denying paternity irrespective of the child’s awareness of the facts surrounding its paternal parentage and without providing for any exceptions. Only a small number of legal systems seemed to have devised solutions to the problem which arises when the relevant circumstances become known only after expiry of the time-limit, for instance, by providing for the possibility of bringing an action after the time-limit has expired in cases where material or moral factors rendered it impossible to lodge it within that period, or if there was good reason for the delay (ibid., § 59). 57. The Court reiterates that it has previously accepted that the introduction of a time-limit for instituting paternity proceedings was justified by the desire to ensure legal certainty and finality in family relations (Konstantinidis, cited above, § 46, with further references). Accordingly, the existence of a limitation period per se is not incompatible with the Convention.", "What the Court needs to ascertain in a given case is whether the nature of the time-limit in question and/or the manner in which it is applied is compatible with the Convention (Backlund, cited above, § 45, and Phinikaridou, cited above, § 52). 58. The Court has taken a number of factors into consideration in performing the “balancing of interests test” while examining cases concerning limitations on the institution of paternity claims. For instance, the specific point in time when an applicant becomes aware of the biological reality is pertinent. The Court will therefore examine whether the factors substantiating a particular paternity claim were met before or after the expiry of the applicable time-limit.", "Furthermore, the Court will examine whether an alternative form of redress exists in the event that the proceedings in question are time-barred. This would include, for example, the availability of effective domestic remedies to obtain an extension of the time-limit or exceptions to the application of a time-limit in situations where a person becomes aware of the biological reality after the time-limit has expired (Phinikaridou, cited above, § 54). The yardstick against which the above factors are measured is whether a legal presumption has been allowed to prevail over the biological and social reality and if so whether, in the circumstances, this is compatible with the obligation to secure “effective” respect for private and family life, taking into account the margin of appreciation left to the State and the established facts and the wishes of those concerned (ibid. § 55). (ii) Application of those principles to the instant cases (α) Whether there was an interference with the applicants’ rights under Article 8 59.", "The Court observes that it is common ground between the parties that the applicants’ inability to bring an action for judicial recognition of paternity amounted to interference with their right to respect for their private and family life. It remains to be seen whether this interference was justified under the second paragraph of that provision. (β) Whether the impossibility to bring an action was “in accordance with the law” and pursued a legitimate aim 60. The Court notes that the applicants did not dispute that the impossibility of bringing an action for judicial recognition of paternity was “in accordance with the law”. What they complained of was that the impugned time-limit prevented them from having the possibility of obtaining judicial recognition of paternity before the domestic courts, in violation of Article 8 of the Convention.", "61. In this connection, the Court observes indeed that Article 1817 § 1 of the Civil Code provides for a ten-year time limit after the person concerned has attained the age of majority to institute paternity proceedings. It also observes that the Supreme Court of Justice dismissed the applicants’ actions following the rejection of their constitutional appeal by the Constitutional Court (see paragraphs 15-17 and 25-27 above) on the ground of its Ruling no. 401/2011 of 22 September 2011 which had held that the ten-year time-limit provided for by Article 1817 § 1 of the Civil Code was not incompatible with the constitutional provisions (see paragraph 34 above). 62.", "In view of the foregoing, the Court finds that the interference complained of was “in accordance with the law”. 63. Moreover, according to the above-mentioned Ruling of the Constitutional Court, the time-limit imposed by Article 1817 § 1 of the Civil Code for instituting paternity proceedings was intended to avoid the unjustified prolongation of an indeterminate situation as regards the legal establishment of the parental relationship. It also aimed at ensuring legal certainty in respect of the putative father and his family due to the personal and patrimonial consequences of the recognition of paternity (see paragraph 34 above). The Court is therefore satisfied that the interference in question pursued a legitimate aim.", "64. What the Court needs to ascertain next is whether the nature of the time-limit in question, and/or the manner in which it was applied, was compatible with the Convention. (γ) Whether a fair balance was struck between the interests at stake 65. The Court notes that the provisions of the Portuguese Civil Code regulate the question of the establishment of paternity by indicating the time-limit within which the action for the judicial recognition of paternity can be instituted. It further observes that the legislator set a general time‑limit of ten years from the date of an individual’s reaching the age of majority or of emancipation.", "The legislature then set a period of an additional three years following the occurrence of one of three different events, namely: paternity being successfully challenged by a third party, or an individual becoming aware ‒ after the expiry of the ten-year time-limit ‒ of a factor or circumstances which would justify the proceedings (in particular if the child has ceased to be treated as a son or a daughter), or ‒ in the event that paternity has not been established ‒ the investigating party’s becoming aware of facts and circumstances which warrant the investigation (see paragraphs 29-30 above). Moreover, the Court takes note of the fact that the time-limit currently in force is the result of a legislative evolution which became operational in 2009 and sought to eliminate a short time-limit that was automatically applied. It also notes that this evolution of the legislation was intended to address the argument raised in Ruling no. 23/2006 of the Constitutional Court that the two-year time-limit laid down in Article 1817 § 1 of the Civil Code in force at the time was incompatible with Articles 26 § 1 and 36 § 1 of the Constitution (see paragraph 31 above). In the light of the foregoing, the Court does not consider the time-limit provided for by Portuguese law to be a rigid one (see, mutatis mutandis, Konstantinidis, cited above, § 57).", "66. It is true that the Portuguese Supreme Court of Justice and the Constitutional Court do not have a harmonised approach to the compatibility of the ten-year time-limit with constitutional provisions. The Court notes, however, that since 2011 the Constitutional Court has taken the view that the aforementioned time-limit is not incompatible with the Constitution because it is reasonable to allow an individual a sufficient amount of time, having reached the age of majority, to decide whether or not to start paternity proceedings while at the same time safeguarding legal certainty in respect of the putative father and his family (see paragraph 34 above). 67. The Court further observes that the applicants started proceedings for the judicial recognition of paternity on 26 March 2012 and on 31 March 2014, when they were sixty-eight and forty-four years old, respectively, in other words many years after coming of age.", "The applicants therefore did not institute paternity proceedings within the time-frame provided for by Article 1817 § 1 of the Civil Code. Moreover, it notes that both applicants had always been aware of their respective father’s identity: in particular, the first applicant had contact with the putative father’s family (see paragraph 6 above) and the second applicant claimed before the domestic courts that he had always known that A.M. was his father (see paragraph 19 above). The instant cases are therefore distinguishable from Phinikaridou and Backlund, both cited above, in which the applicants had not been able to start paternity proceedings within the time period established by law since they were not aware of the identity of the biological father and in which the legislation had established a rigid time-limit for the institution of the proceedings. The Court also notes that the applicants, in their submissions before the domestic courts, did not have recourse to any argument that would result in application of the supplementary three-year period provided for in paragraph 3 of Article 1817 of the Civil Code, as pointed out by the Vila Real Court in its decision dismissing the action lodged by the second applicant for being time-barred (see paragraph 20 above). Similarly, they did not refer to any factor that had prevented them from acting sooner.", "68. In the Court’s view, therefore, the applicants have shown an unjustifiable lack of diligence in instituting paternity proceedings in that they have waited fifty and twenty-six years, respectively, since reaching the age of majority to seek to have their paternity legally established. The applicants’ vital interest in having their biological truth legally established did not exempt them from complying with the requirements laid down by domestic law (Konstantinidis, cited above, § 61). 69. In the light of the above, and given the margin of appreciation afforded to States in respect of paternity proceedings legislation, the non‑absolute nature of Article 1817 § 1 of the Portuguese Civil Court, and the case-law of the Portuguese Constitutional Court, the Court considers that application of the time-limit for instituting paternity proceedings in the applicants’ case did not affect the substance of their right to respect for their private and family life under Article 8 of the Convention.", "70. Accordingly, there has been no violation of Article 8 of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Joins the applications; 2. Declares the applications admissible; 3.", "Holds that there has been no violation of Article 8 of the Convention. Done in English, and notified in writing on 3 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea TamiettiGanna YudkivskaDeputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF SAHAKYAN v. ARMENIA (Application no. 66256/11) JUDGMENT STRASBOURG 10 November 2015 FINAL 10/02/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sahakyan v. Armenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Johannes Silvis,Valeriu Griţco,Branko Lubarda,Carlo Ranzoni,Mārtiņš Mits,Armen Harutyunyan, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 20 October 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "66256/11) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Mr Hayk Sahakyan (“the applicant”), on 14 October 2011. 2. The applicant was represented by Mr Y. Khachatryan, a lawyer practising in Yerevan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. 3.", "The applicant alleged, in particular, that he had been denied compensation for non-pecuniary damage suffered as a result of unlawful detention and that Armenian law did not provide for an enforceable right to compensation of a non-pecuniary nature. 4. On 11 September 2013 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1983 and lives in Yerevan. 6. On 30 August 2007 the applicant was arrested and later charged under Article 112 § 1 of the Criminal Code with intentional infliction of a grave injury. 7. On 1 September 2007 the Erebuni and Nubarashen District Court of Yerevan granted the investigator’s motion to place the applicant in pre-trial detention.", "8. On 28 September 2007 the same court decided, upon the applicant’s motion, to release him on bail. 9. On 4 October 2007 the investigator decided to cancel bail and to detain the applicant on the basis of the decision of 1 September 2007. It appears that on the same day the applicant was placed in pre-trial detention.", "10. On 22 October 2007 the Erebuni and Nubarashen District Court of Yerevan decided, upon the applicant’s appeal, to quash the investigator’s decision and to release the applicant. The District Court stated that, in accordance with Article 136 of the Code of Criminal Procedure, detention could be imposed only by a court and was the court’s prerogative. The investigator had therefore exceeded his authority and had incorrectly interpreted the law by imposing detention. The law required the investigator to apply to the court with a reasoned motion, if there were sufficient grounds to replace bail with detention.", "The District Court found that the applicant’s detention imposed on the basis of the decision of 4 October 2007 had violated his rights guaranteed under, inter alia, Article 5 §§ 3 and 4 of the Convention and Article 16 of the Constitution. 11. On 13 December 2007 the Erebuni and Nubarashen District Court of Yerevan acquitted the applicant. 12. On 28 March 2008 the Criminal Court of Appeal upheld this judgment.", "13. On 21 April 2009 the applicant instituted civil proceedings against the Ministry of Finance, seeking pecuniary and non-pecuniary damage in connection with the criminal proceedings against him, including his detention. The claim for pecuniary damage included alleged lost earnings, expenses related to food parcels received in detention and the transport costs of his relatives. The applicant estimated the non-pecuniary damage suffered by him at 15,400 euros (EUR). 14.", "On 25 September 2009 the Kentron and Nork-Marash District Court of Yerevan decided to grant partially the applicant’s claim for pecuniary damages and award him 215,100 Armenian drams (AMD) (approximately EUR 380 at the material time). As regards the claim for non-pecuniary damages, the District Court decided to dismiss it, with reference to Article 17 of the Civil Code, on the ground that the Armenian law did not provide for this type of compensation. 15. On 26 October 2009 the applicant lodged an appeal. 16.", "On an unspecified date the Ministry of Finance also lodged an appeal, contesting the judgment in its part concerning the award of pecuniary damages. 17. On 4 December 2009 the Civil Court of Appeal decided to dismiss the applicant’s appeal and to grant that of the Ministry of Finance, reducing the amount of compensation for pecuniary damage to AMD 96,800 (approximately EUR 165 at the material time). As regards the claim for non-pecuniary damages, the Court of Appeal decided to terminate the proceedings on the ground that Armenian law did not provide for this type of compensation and therefore that claim could not be examined by the court. 18.", "On 14 December 2009 the applicant lodged an appeal on points of law. 19. On 1 July 2011 the Court of Cassation decided to dismiss the appeal and to uphold the decision of the Civil Court of Appeal. II. RELEVANT DOMESTIC LAW A.", "The Constitution 20. Article 16 provides that everyone has the right to liberty and security of person. B. The Civil Code 21. Article 17 provides that a person whose rights have been violated may claim full compensation for the damage suffered, unless the law or a contract envisages a lower amount of compensation.", "Damages are the expenses borne or to be borne by the person, whose rights have been violated, in connection with restoring the violated rights, loss of his property or damage to it (material damage), including lost earnings which the person would have gained in normal conditions of civil life, had his rights not been violated (lost income). 22. Article 1064 provides that damage caused as a result of unlawful conviction, unlawful criminal prosecution, unlawful imposition of a preventive measure in the form of detention or a written undertaking not to leave, and unlawful imposition of an administrative penalty shall be compensated in full, in a procedure prescribed by law, by the Republic of Armenia, regardless of the fault of the officials of the body of inquiry, the investigating authority, the prosecutor’s office or the courts. C. The Code of Criminal Procedure 23. Article 66 provides that an acquitted person is entitled to claim full compensation as a result of unlawful arrest, detention, indictment and conviction, taking into account the possible lost profits.", "24. Article 136 provides that detention is imposed only by a court decision upon the investigator’s or the prosecutor’s motion or of the court’s own motion during the court examination of the case. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION 25. The applicant complained that he had been denied compensation for non-pecuniary damage suffered as a result of unlawful detention.", "He relied on Article 5 § 5 of the Convention, which reads as follows: “5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. 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 1. The parties’ submissions 27. The applicant submitted that the dismissal of his claim for non‑pecuniary damages had violated the guarantees of Article 5 § 5 of the Convention. 28.", "The Government submitted that the domestic courts, in dismissing the applicant’s claim for non-pecuniary damages, acted in accordance with the domestic law which did not envisage this type of compensation. There has therefore been no violation of Article 5 § 5 of the Convention. 2. The Court’s assessment 29. 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, 2, 3 or 4.", "The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the other paragraphs has been established, either by a domestic authority or by the Convention institutions (see, among other authorities, N.C. v. Italy [GC], no. 24952/94, § 49, ECHR 2002‑X). Furthermore, Article 5 § 5 should not be construed as affording a right to compensation of purely pecuniary nature, but should also afford such right for any distress, anxiety and frustration that a person may suffer as a result of a violation of other provisions of Article 5 (see Khachatryan and Others v. Armenia, no. 23978/06, § 157, 27 November 2012). 30.", "In the present case, the applicant’s detention from 4 to 22 October 2007 was found to be in breach of Article 5 §§ 3 and 4 of the Convention by a decision of the domestic court (see paragraph 10 above). Article 5 § 5 of the Convention is therefore applicable to his case. His civil claim for non‑pecuniary damages, however, was rejected by the domestic courts on the ground that Armenian law did not envisage “non-pecuniary damages” as a type of compensation. 31. The Court has already found the unavailability of compensation for damages of a non-pecuniary nature under the Armenian law to be in violation of the guarantees of Article 5 § 5 of the Convention (see Khachatryan and Others, cited above, §§ 158-159).", "There are no reasons to depart from that conclusion in the present case. It follows that the applicant did not enjoy, in law or in practice, an enforceable right to compensation within the meaning of that Article. 32. There has accordingly been a violation of Article 5 § 5 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 33. The applicant alleged on the same ground a violation of Article 13 of the Convention, which provides: “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.” 34. The Government contested that argument. 35. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.", "36. Having regard to the finding relating to Article 5 § 5 (see paragraph 32 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 13 of the Convention (see Smatana v. the Czech Republic, no. 18642/04, § 145, 27 September 2007). 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 1,221,500 AMD (approximately EUR 2,160 at the material time) and EUR 15,400 in respect of pecuniary and non-pecuniary damage respectively. 39. The Government submitted that there was no causal link between the pecuniary damages claimed and the violations alleged, while the amount of non-pecuniary damages claimed was inflated.", "40. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court considers that the applicant has suffered non‑pecuniary damage, which is not compensated by the finding of a violation. Making its assessment on an equitable basis, it awards the applicant EUR 3,000 in respect of non‑pecuniary damage. B.", "Costs and expenses 41. The applicant did not claim any costs and expenses. 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 application admissible; 2. Holds that there has been a violation of Article 5 § 5 of the Convention; 3. Holds that there is no need to examine the complaint under Article 13 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into 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 applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 10 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsLuis López GuerraRegistrarPresident" ]

[ "GRAND CHAMBER CASE OF KAKAMOUKAS AND OTHERS v. GREECE (Application no. 38311/02) JUDGMENT STRASBOURG 15 February 2008 This judgment is final but may be subject to editorial revision. In the case of Kakamoukas and Others v. Greece, The European Court of Human Rights, sitting as a Grand Chamber composed of: Jean-Paul Costa, President,Christos Rozakis,Nicolas Bratza,Boštjan M. Zupančič,Peer Lorenzen,Riza Türmen,Karel Jungwiert,Josep Casadevall,Margarita Tsatsa-Nikolovska,Rait Maruste,Snejana Botoucharova,Mindia Ugrekhelidze,Vladimiro Zagrebelsky,Lech Garlicki,David Thór Björgvinsson,Danutė Jočienė,Mark Villiger, judgesand Vincent Berger, Jurisconsult, Having deliberated in private on 7 March 2007 and 9 January 2008, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 38311/02) against the Greek Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by fifty-eight Greek nationals listed in the Appendix (“the applicants”), on 17 October 2002.", "2. The applicants were represented by Mr D. Nikopoulos and Mr K. Gyiokas, of the Salonika Bar. The Greek Government (“the Government”) were represented by their Agent's delegates, Ms G. Skiani and Mr K. Georgiadis, Advisers, State Legal Council. 3. The applicants complained, inter alia, under Article 6 § 1 of the Convention, about the length of two sets of proceedings before the Supreme Administrative Court.", "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 25 March 2004 the application was declared partly inadmissible by a Chamber of that Section, composed of the following judges: Peer Lorenzen, Christos Rozakis, Giovanni Bonello, Françoise Tulkens, Nina Vajić, Elisabeth Steiner and Khanlar Hajiyev, and also of Søren Nielsen, Section Registrar.", "6. On 24 March 2005 the remaining part of the application was declared partly admissible (see paragraph 3 above) by a Chamber of that Section, made up of the following judges: Françoise Tulkens, Christos Rozakis, Peer Lorenzen, Nina Vajić, Snejana Botoucharova, Anatoli Kovler and Elisabeth Steiner, and also of Søren Nielsen, Section Registrar. 7. On 22 June 2006 a Chamber of that Section, made up of the following judges – Loukis Loucaides, Christos Rozakis, Françoise Tulkens, Nina Vajić, Anatoli Kovler, Elisabeth Steiner and Khanlar Hajiyev - and also of Søren Nielsen, Section Registrar, concluded unanimously that there had been a violation of Article 6 § 1 on account of the excessive length of the impugned proceedings. The Chamber also decided, by five votes to two, to award each of the applicants various sums in respect of non-pecuniary damage.", "8. On 28 July 2006 the Government requested, in accordance with Article 43 of the Convention and Rule 73, that the case be referred to the Grand Chamber. A panel of the Grand Chamber accepted this request on 23 October 2006. 9. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.", "10. The Government filed written observations (Rule 59 § 1). 11. A hearing took place in public in the Human Rights Building, Strasbourg, on 7 March 2007 (Rule 59 § 3). There appeared before the Court: – for the GovernmentMs G. Skiani, Adviser, State Legal Council,MrK.", "Georgiadis, Adviser, State Legal Council,Agent's delegates,MrI. Bakopoulos, Legal Assistant, State Legal Council, Counsel; – for the applicantsMrD. Nikopoulos,Counsel. The Court heard addresses by Mr Nikopoulos, Ms Skiani and Mr Georgiadis. THE FACTS I.", "THE CIRCUMSTANCES BEHIND THE DISPUTE A. The background to the case 1. The period 1925-1936 12. On 7 April 1925 the Greek State expropriated an area of land measuring 534,892 m², located on the outskirts of the town of Salonika (Mikra district), for the purpose of building an airport. This area, which now falls within the jurisdiction of Kalamaria Town Council, included plots of land which belonged to the applicants' ascendants.", "13. The amount of expropriation allowance was set by judgments nos. 1321/1926 and 703/1929 of the Salonika Court of First Instance, no. 9/1930 of the Salonika Appeal Court and no. 116/1931 of the Court of Cassation.", "14. By judgment no. 293/1936 of the President of the Salonika Court of First Instance, the applicants' ascendants were recognised as being entitled to the compensation in question. However, the State refused to pay it. The airport was ultimately constructed elsewhere.", "2. The period 1967-1972 15. On 22 June 1967, by a joint decision of the Minister of Finance and the Minister of Public Works (no. E.17963/8019), the State went ahead with expropriation of the above-mentioned area, which included the disputed plots of land, with a view to building housing for workers. As the decision did not fulfil a public-interest aim, it was revoked on 6 July 1972.", "3. The period 1972-1988 16. On 29 June 1972 a royal decree designated the land for the construction of a sports centre. 17. On 14 May 1987 the Salonika prefect modified the development plan (ρυμοτομικό σχέδιο) for the area in which the applicants' plots of land were located, which he designated as a “green area” and “sports and leisure zone”.", "This decision was confirmed by a decision of the Minister of the Environment and Public Works dated 31 July 1987 and by a presidential decree of 22 August 1988. B. The proceedings to amend the 1987 development plan 18. On 28 June 1994 the applicants or their ascendants applied to the Salonika Prefecture requesting that the development plan in force be amended to have the encumbrance affecting their land removed. The prefecture did not reply.", "19. On 20 November 1994 the applicants or their ascendants applied to the Supreme Administrative Court, seeking to have set aside the authorities' implicit refusal to remove the encumbrance affecting their land. 20. On 11 January 1996 the Kalamaria Town Council filed its observations on the case. A hearing was held on 26 March 1997.", "21. On 20 October 1997 the Supreme Administrative Court granted the applicants' request. In particular, it found that, having failed for a long time to proceed with the expropriation of the land in question in furtherance of the project provided for in the development plan, the authorities were duty bound to lift the encumbrance on the disputed properties. The Supreme Administrative Court sent the case back to the authorities, asking them to take the necessary measures to make available the applicants' land (judgments nos. 4445/1997, 4447/1997 and 4448/1997).", "Those judgments were finalised and certified as authentic on 25 February 1998. 22. The applicants estimate that the current value of the land in issue is about 24,000,000 euros (EUR). II. THE CIRCUMSTANCES FORMING THE SUBJECT-MATTER OF THE DISPUTE A.", "The proceedings brought by Kalamaria Town Council against the Supreme Administrative Court's judgments nos. 4445/1997, 4447/1997 and 4448/1997 23. On 30 September 1998 Kalamaria Town Council lodged a third-party appeal (τριατανακοπή) against the above-mentioned judgments by the Supreme Administrative Court with regard to the applicants nos. 1‑9, 12-19, 23, 26-31, 33-40, 42-44, 46-49 and 58, who had applied to the Supreme Administrative Court in the proceedings which resulted in judgments nos. 4445, 4447 and 4448/1997.", "This form of appeal, open to persons who have been neither parties to nor represented in proceedings, enables them to contest a decision which adversely affects them. Where the third-party appeal – which does not have suspensive effect – is found to be valid, the impugned judgments are set aside retrospectively and the application to the administrative court is re-examined. In the instant case, as the third-party appeal did not have suspensive effect, judgments nos. 4445/1997, 4447/1997 and 4448/1997 thus remained valid. 24.", "On 28 November 2001 the Supreme Administrative Court declared the third-party appeal inadmissible (judgments nos. 4148/2001, 4149/2001 and 4150/2001). It held that Kalamaria Town Council could not rely on this form of appeal since it had already had an opportunity to submit its observations on the case. The above-mentioned judgments were finalised and certified as authentic on 17 April 2002. B.", "The new urban development plan and the proceedings to have it set aside 25. On 13 May 1999 the Minister for the Environment and Public Works modified the urban development plan of Kalamaria municipality in order to designate the land in question as the site for a sports and leisure centre (decision no. 12122/2761). 26. On 9 September 1999 the applicants or their ascendants applied to the Supreme Administrative Court seeking to have the above-mentioned decision set aside.", "The sole purpose of this application was to challenge the lawfulness of the impugned administrative decision. 27. On 11 September 2002 they submitted various documents in support of their application, including the title deeds to the properties. The hearing, initially scheduled for 8 November 2000, was postponed several times. It was finally held on 29 October 2003.", "It appears from the case file that the Supreme Administrative Court has not yet delivered its judgment. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 28. Applicants nos. 1-9, 12-19, 23, 26-31, 33-40, 42-44, 46-49 and 58 complained about the time taken to examine the third-party appeal lodged with the Supreme Administrative Court by Kalamaria Town Council.", "In addition, all of the applicants complained about the length of the proceedings to set aside the new urban development plan. They relied on 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...” A. The Chamber's judgment 29. In its judgment of 22 June 2006, the Chamber found that, in the light of the case-law on the matter, the length of the two sets of proceedings had been excessive and had failed to fulfil the “reasonable time” requirement. It therefore concluded that there had been a violation of Article 6 § 1.", "B. The parties' submissions 1. The applicants 30. The applicants filed no further observations on this question. 2.", "The Government 31. The Government argued that the Chamber's judgment ought not to have considered the proceedings concerning the third-party appeal lodged with the Supreme Administrative Court by Kalmaria Town Council. They argued that those proceedings, which had not been brought by any of the applicants, could have had no impact, even indirect, on the main proceedings brought by the applicants before the Supreme Administrative Court. C. The Court's assessment 32. The Court notes that the third-party appeal lodged by Kalamaria Town Council also concerned the judgments delivered by the Supreme Administrative Court with regard to applicants nos.", "1‑9, 12-19, 23, 26-31, 33-40, 42-44, 46-49 and 58. Had it been upheld, the impugned judgments would have been set aside retrospectively and the application to the administrative court re-examined. Accordingly, the third-party appeal could have had a direct impact on the applicants' right to freely enjoy their property. Article 6 is therefore applicable to the third-party appeal. Consequently, those proceedings are to be taken into consideration in calculating the total length of the disputed proceedings (see, mutatis mutandis, Voggenreiter v. Germany, no.", "47169/99, §§ 38-43, ECHR 2004‑I). 33. In this respect, the Grand Chamber considers, for the reasons set out by the Chamber, that the length of the two impugned sets of proceedings has been excessive and that there has therefore been a violation of Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 34.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. The Chamber's judgment 35. In its judgment of 22 June 2006, the Chamber held that the failure to fulfil the “reasonable time” requirement had undoubtedly caused the applicants non-pecuniary damage which would justify an award. Ruling on an equitable basis, it awarded EUR 8,000 to each of the applicants listed under nos.", "1-9, 12-19, 23, 26-31, 33-40, 42-44, 46-49 and 58 and EUR 5,000 to each of the applicants listed under nos. 10-11, 20-22, 24‑25, 32, 41, 45 and 50-57 in respect of non-pecuniary damage, plus any tax that might be chargeable. 2. The parties' submissions 36. The applicants considered that the awards in respect of just satisfaction made under Article 41 of the Convention must continue to be calculated on an individual basis.", "Awards made in respect of non-pecuniary damage should not depend on the number of applicants. In their opinion, the understanding of non-pecuniary damage put forward by the Government would amount to creating a new legal concept, namely “shared non-pecuniary damage”. Under this concept, the greater the number of people who sustain non-pecuniary damage as a result of the excessive length of proceedings, the less frustration and anxiety they will experience. 37. The Government submitted that the total amount awarded by the Chamber was exorbitant and inconsistent with the spirit of Article 41, which provided only for the award of just satisfaction for the damage sustained.", "They added that, when examining other cases concerning Greece in which it had found more serious violations than that of the right to a hearing within a reasonable time, the Court had awarded smaller sums. In their opinion, in cases concerning the length of proceedings, the Court should vary the application of Article 41 depending on the number of individuals involved. In particular, they considered that the costs of proceedings and the legitimate interests in issue were completely different according to whether the litigants had applied to the courts collectively or individually. The same was true in respect of the possible frustration experienced as a result of undue delay in judicial proceedings. Turning to the impugned proceedings, launched by an application to have a decision set aside, the number of applicants could have had no impact on the eventual outcome.", "The Government concluded that the Grand Chamber should reduce the total amount awarded by the Chamber in respect of non-pecuniary damage. 3. The Court's assessment 38. The Court notes at the outset that the parties have expressed no opinion as to the pecuniary damage that may have been sustained by the applicants. Accordingly, it will examine only the question of an appropriate award in respect of non-pecuniary damage in the instant case, that is, in a case concerning the length of joint proceedings before the domestic courts which were subsequently lodged collectively with the Court.", "(a) The Court's criteria 39. It should first of all be reiterated that, where it finds a violation of a Convention provision, the Court may award the applicant an amount for the non-pecuniary damage sustained. This amount is intended to make reparation for the state of distress, inconvenience and uncertainty resulting from the violation in question (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 29, ECHR 2000‑IV). Consequently, where proceedings have been excessively long, the amount awarded in respect of non-pecuniary damage must take account of the prejudice of this type which the applicant may have sustained.", "40. It is impossible, however, to account in detail for the relative importance of each of the factors taken into consideration in calculating the amount to be awarded for non-pecuniary damage, an amount which is determined on an equitable basis. Nonetheless, the case-law provides a number of guidelines on the subject (see, among other authorities, König v. Germany (Article 50), judgment of 10 March 1980, Series A no. 36, pp. 16-17, § 19, and Davies v. the United Kingdom, no.", "42007/98, § 38, 16 July 2002). It is necessary, however, to specify these guidelines with regard to the non-pecuniary damage caused by the excessive length of joint proceedings. 41. In particular, where common proceedings have been found to be excessively long, the Court must take account of the manner in which the number of participants in such proceedings may influence the level of distress, inconvenience and uncertainty affecting each of them. Thus, a high number of participants will very probably have an impact on the amount of just satisfaction to be awarded in respect of non-pecuniary damage.", "Such an approach is based on the fact that the number of individuals participating in common proceedings before the domestic courts is not neutral from the perspective of the non-pecuniary damage that may be sustained by each of them as a result of the length of those proceedings when compared with the non-pecuniary damage that would be sustained by an individual who had brought identical proceedings on an individual basis. Membership of a group of people who have resolved to apply to a court on the same factual or legal basis means that both the advantages and disadvantages of common proceedings will be shared. In addition, where common proceedings are handled and coordinated by the same representative, the costs and fees are usually lower for each applicant than they are in the case of proceedings brought by an individual, which simplifies the process of applying to the courts. Equally, the grouping together of applications usually enables a court to join related cases and may thus facilitate the proper administration of justice; it may also enable proceedings to be conducted more speedily. Thus, such proceedings offer advantages that need to be taken into consideration (see, mutatis mutandis, Scordino v. Italy (No.", "1) [GC], no. 36813/97, § 268, ECHR 2006-...). 42. On the other hand, these last characteristics of common proceedings may in turn give rise on the part of the persons concerned to an expectation that the State will act diligently in dealing with their case. Unjustified delay in this area is therefore likely to exacerbate any prejudice that is sustained.", "43. In addition, the Court considers that what is at stake in the impugned proceedings is a relevant factor in assessing any non-pecuniary damage that may have been sustained. The more each applicant's personal interests are at stake in the proceedings, the greater the inconvenience and uncertainty to which they are subjected (see paragraph 39 above). 44. Finally, the Court notes that it enjoys a certain discretion in the exercise of the power conferred by Article 41, as is borne out by the adjective “just” and the phrase “if necessary” (see Guzzardi v. Italy, judgment of 6 November 1980, Series A no.", "39, p. 42, § 114). That being the case, and unless it concludes that the finding of a violation provides sufficient just satisfaction for the non-pecuniary damage sustained, the Court must ensure that the amount awarded is reasonable in terms of the violation that is found. In particular, it must take account in its assessment of the amounts already awarded in similar cases and, in the event of common proceedings, of the number of applicants and the total sum awarded to them. (b) Application in the present case 45. The Court notes that, of all the elements that may be taken into consideration in assessing the non-pecuniary damage sustained in the instant case, some entail a reduction, others an increase, in the amount to be awarded.", "46. With regard to those that would entail a reduction in the amount to be awarded, the Court notes, firstly, that the fifty-eight applicants had acted together in bringing the proceedings in issue before the administrative courts in order to challenge the lawfulness of an administrative decision. Thus, they did not lodge separate requests before the competent courts, but were all pursuing the same objective, namely that of obtaining an examination by the Supreme Administrative Court of the lawfulness of the decision which was challenged on each occasion. In addition, in proceedings before the administrative courts to have a decision set aside, the number of claimants has no impact whatsoever on the outcome of the proceedings, which concern exclusively the lawfulness of the contested administrative decision. The Court therefore considers that, in comparison with civil proceedings in which claimants lodge individual claims for compensation simultaneously, the shared objective of the impugned proceedings was such as to alleviate the inconvenience and uncertainty experienced on account of their delay.", "47. With regard to those elements which would entail an increase in the amount to be awarded, the Court takes the following into account. Admittedly, the financial stakes for the applicants in the impugned proceedings were merely implicit, rather than direct. The sole purpose of those proceedings was to challenge the legality of the disputed administrative decisions. Nevertheless, according to the applicants' own evaluation, the value of their property which remained blocked amounted to about EUR 24,000,000.", "The Court therefore considers that what was at stake in the impugned proceedings, the outcome of which would directly determine the possibility for the applicants to pursue their own property interests, was such as to exacerbate the prejudice sustained by them on account of the protracted nature of the proceedings. 48. Having regard to the foregoing, the Court considers that the extension of the impugned proceedings beyond a “reasonable time” undoubtedly caused the applicants non-pecuniary damage which would justify an award. It also takes into consideration the number of applicants, the nature of the violation found and the need to determine the amount in such a way that the overall sum is compatible with the relevant case-law and is reasonable in the light of what was at stake in the proceedings in question. On the basis of the above considerations, and ruling on an equitable basis, the Court awards under this head EUR 4,000 to each of the applicants listed under nos.", "1-9, 12-19, 23, 26-31, 33-40, 42-44, 46-49 and 58, and EUR 2,500 to each of the applicants listed under nos. 10-11, 20-22, 24-25, 32, 41, 45 and 50-57, plus any tax that may be chargeable. B. Costs and expenses 1. The Chamber's judgment 49.", "The Chamber held that the applicants' claims under this head were neither detailed nor supported by the necessary documents. It therefore dismissed their claim for this item. 2. The parties' submissions and the Court's assessment 50. The parties did not make any observations on this point.", "Accordingly, the Court considers it unnecessary to make any award to the applicants under this head. 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 1. Holds, unanimously, that there has been a violation of Article 6 § 1 of the Convention; 2.", "Holds, by fifteen votes to two, (a) that the respondent State is to pay, within three months, EUR 4,000 (four thousand euros) to each of the applicants listed under nos. 1-9, 12-19, 23, 26-31, 33-40, 42-44, 46-49 and 58 and EUR 2,500 (two thousand five hundred euros) to each of the applicants listed under nos. 10-11, 20-22, 24-25, 32, 41, 45 and 50-57, 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; 3. Dismisses, unanimously, the remainder of the applicants' claims for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 15 February 2008.", "Vincent BergerJean-Paul CostaJurisconsultPresident 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: ‑ concurring opinion of Judge Bratza joined by Judge Rozakis; ‑ partly dissenting opinion of Judges Zupančič and Zagrebelsky. J.-P.C.V.B. CONCURRING OPINION OF JUDGE BRATZA JOINED BY JUDGE ROZAKIS While I agree with the result reached by the majority of the Grand Chamber in this case and in the related case of Arvanitaki-Roboti and Others v. Greece, I prefer to explain my reasons shortly in my own words. The starting point for consideration of the question raised in both cases is Article 41 itself. As is clear from the terms of the Article, not only is the grant by the Court of financial or other reparation to the applicant where a violation of the Convention is found a discretionary measure, but any satisfaction awarded to the injured party must be “just”.", "In the case of damage of a non-pecuniary nature, the term connotes that any sum awarded must reflect the nature of the Convention right violated, the gravity of the violation found and its impact on the individual applicant. Where a violation of Article 6 of the Convention has been found on the grounds of the excessive length of domestic proceedings, it has been the usual practice of the Court to award financial compensation to the successful applicant to reflect the frustration, anxiety and inconvenience caused to the applicant by the unacceptable delays in the conduct of the proceedings for which the national courts or tribunals are responsible. Where the applicant is an individual litigant or a member of a small group of litigants who are parties to the same domestic proceedings, the award of just satisfaction has not in general caused problems. The Court, acting “on an equitable basis”, will normally award a sum which takes account of the overall length of the proceedings, the number of levels of jurisdiction through which the proceedings have passed and the extent to which the applicant may have contributed to the overall length, as well as the awards made in comparable cases against the same or other respondent States, in order to ensure, so far as possible, consistency of approach. However, where, as in the present case, the complaint of undue length of proceedings is made by a large number of parties to the same set of civil proceedings, a further consideration comes into play, namely the proportionality of the overall award.", "Although it is the Convention right of each individual which is found to have been violated, the total amount of the award under Article 41 should not be out of all proportion to the nature and seriousness of the violation found in the case, including the fact that the violation found relates to the excessive length of a single set of proceedings. The importance of upholding this principle justifies the making of a substantial reduction in the amount which would have been awarded to each applicant, had he or she been the only party, or one of a small number of parties, to the proceedings. In the present case, the sum at stake in the domestic proceedings was admittedly very substantial. However, the issue before the Grand Chamber relates not to pecuniary damage suffered by the applicants but to non-pecuniary damage in respect of the length of the civil proceedings. In my view, an award such as that made by the Chamber, exceeding € 450,000 for the excessive length of a single set of proceedings offends against the totality principle and requires to be substantially reduced.", "The applicants argue that awards made in respect of non-pecuniary damage should not depend on the number of applicants and that there is no basis for the proposition that the greater the number of people who sustain damage as a result of the excessive length of proceedings, the less the frustration and anxiety experienced. I am unable to accept this argument. There are, in my view, as the judgment rightly points out, considerable advantages for the claimants themselves, as well as for the effective administration of justice in joining in a single set of proceedings rather than pursuing identical claims in separate proceedings. The sharing of the responsibility for the conduct of the proceedings, as well as the substantial saving of costs for the individual applicant which would normally follow from being a party to joint proceedings handled and coordinated by a single set of legal representatives, are significant benefits which must be taken into account by the Court when assessing the degree of frustration, anxiety and inconvenience caused to the individual applicants by delays in the proceedings. While views might legitimately differ as to whether the sums awarded by the Grand Chamber in the present case strike the requisite balance between compensating the individual applicants for a violation of their Convention rights and maintaining the proportionality of the overall award, I am willing to accept the sums awarded by the majority on an equitable basis.", "PARTLY DISSENTING OPINION OF JUDGES ZUPANČIČ AND ZAGREBELSKY (Translation) To our regret, we were unable to concur with the majority as regards the application of Article 41 of the Convention once it had been found that there had been a violation of the right to a reasonable length of proceedings in the case in issue. The question before the Grand Chamber was whether the fact that there were numerous applicants could be included in the criteria to be used in determining the amount of compensation to be awarded in respect of non-pecuniary damage. The majority found (in paragraph 41 of the judgment) that it could, observing that “a high number of participants will very probably have an impact on the amount of just satisfaction to be awarded in respect of non-pecuniary damage”, that “the number of individuals participating in common proceedings before the domestic courts is not neutral from the perspective of the non-pecuniary damage that may be sustained by each of them as a result of the length of those proceedings when compared with the non-pecuniary damage that would be sustained by an individual who had brought identical proceedings on an individual basis” and that “membership of a group of people who have resolved to apply to a court on the same factual or legal basis means that both the advantages and disadvantages of common proceedings will be shared”. Even though, in line with a practice which we find questionable, the judgment does not make explicit the reasoning which led to the indication of the amount to be awarded (still less does it touch on the issue of whether the level of compensation ought to be the same for each victim of the violation), the significance of the new criterion, which has resulted in a substantial reduction of the compensation in comparison to the Court's general practice, may be discerned. In our opinion, however, there is no psychological or other reason which can justify the statement of principle adopted by the Grand Chamber.", "Nor can we identify in this situation any link or similarity with the area of class actions and the criteria which are used in such cases to calculate the amounts to be awarded to each of the successful parties (in respect of pecuniary damage). We consider that, whatever the number of victims, each of them must be compensated, “if necessary”, for the consequences which he or she must have suffered as a result of the violation in question. Just satisfaction is rightly provided for in Article 41 to compensate the victim of a violation in so far as possible. What was at stake in the domestic proceedings and its effects on the person of the applicant are, we believe, the decisive factors to be taken into consideration. In this connection, we consider that there is no reason to take into consideration the total sum awarded to the applicants, with a view to reducing that sum in a way that affects each victim (see paragraph 44).", "That being said, we would add that it is understandable that the Court was concerned by the sheer scale of the amounts in question if they were not to be reduced. In our opinion, however, this is the inevitable consequence of several questionable aspects of the Court's practice with regard to the application of Article 41 in the event of a violation of the right to a reasonable length of proceedings. These range from an almost automatic assumption that non-pecuniary damage has been sustained, without the requirement of any evidence or argument, and the use of mathematical calculation criteria which take into account the entire length of the proceedings, even the period recognised as justified, to the use in this area of scales which are unrelated to the Court's practice concerning violations which cause considerably greater suffering to the victims (Articles 2, 3, 8, 10, etc.). In our opinion, rather than intervening after the event by introducing a new and highly questionable criterion, the Court ought to re-examine the underlying reasons for the consequences which it was seeking to avoid. APPENDIX List of applicants" ]

[ "SECOND SECTION CASE OF AFET SÜREYYA EREN v. TURKEY (Application no. 36617/07) JUDGMENT STRASBOURG 20 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 Afet Süreyya Eren v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Paul Lemmens, President,Işıl Karakaş,Nebojša Vučinić,Helen Keller,Ksenija Turković,Egidijus Kūris,Jon Fridrik Kjølbro, judges,and Stanley Naismith, 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.", "36617/07) 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, Ms Afet Süreyya Eren (“the applicant”), on 25 July 2007. 2. The applicant was represented by Mrs G. Tuncer, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3.", "The applicant alleged, in particular, that the ill-treatment inflicted on her by a number of police officers in police custody was in breach of her rights guaranteed by Articles 3, 6 and 13 of the Convention. 4. On 20 September 2010 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1974 and lives in Istanbul. 6. On 7 June 1999 the applicant and a number of other suspects were taken into police custody by officers from the Security Branch of the Istanbul Security Headquarters (Güvenlik Şube Müdürlüğü) on suspicion of membership of the DHKP-C (the abbreviation for the Revolutionary People’s Liberation Party/Front, an illegal organisation). The applicant alleges that she was subjected to torture by police officers for four days. 7.", "On 9 June 1999 the applicant was taken to a forensic doctor, who noted that the applicant had complained that she had been hung by her arms for approximately ten minutes and that her head had been banged against a wall. The medical report indicates that she had a scrape under her left armpit, a 7-8 cm-long large brown macule on her right forearm and a 3 cm‑long oedema on her forehead above the nose. 8. On 11 June 1999 the applicant was brought before the Istanbul public prosecutor and then before a judge at the Istanbul State Security Court. Before both authorities she denied all accusations against her and complained that she had been subjected to ill-treatment while in police custody.", "She was subsequently detained pending trial. 9. On 14 June 1999 the applicant was examined by the prison doctor, who reported a 4x5 cm mark on her right forearm and a swelling on her right clavicle. According to the medical report, the applicant had stated that her arms felt painful and she had a headache. 10.", "On 18 June 1999 the applicant filed a complaint with the public prosecutor’s office in Istanbul against the police officers of the Security Branch of the Istanbul Security Headquarters, accusing them of having tortured her. She stated in particular that she had been hung by her arms and had received blows to her head. 11. On 8 June 2001 the Fatih public prosecutor issued a decision not to prosecute. The public prosecutor considered that the applicant had not been questioned as a suspect and that there was no evidence showing that the accused police officers had committed the crime of torture.", "The applicant claims that she was not notified of this decision. 12. On an unspecified date the investigation was reopened. Accordingly, on 18 April 2003 the applicant’s statement was taken by a public prosecutor in the prison where she was detained on remand. The applicant stated that at some time in June 1999 she had been taken into custody at the Anti-Terror Branch of the Istanbul Security Headquarters, where she had been ill-treated for seven to eight days.", "She noted in particular that she had been undressed, threatened with rape, beaten and hung by her arms by the police officers. The applicant stated that she had been unable to use her arms for approximately one month subsequent to her detention in police custody. She further stated that she could identify the police officers in question. 13. On 6 August 2003 the Fatih public prosecutor filed an indictment with the Fatih Criminal Court, charging two police officers, A.T. and Z.T., under Article 245 of the former Criminal Code with inflicting ill‑treatment on the applicant while in police custody between 7 and 10 June 1999.", "14. On 8 September 2005 the Fatih Criminal Court considered that it lacked jurisdiction to hear the case. The court held that the accusations against A.T. and Z.T. could not be qualified as ill-treatment within the meaning of Article 245 of the former Criminal Code but should be qualified rather as torture under Article 243 of the same Code. The court therefore ordered the transfer of the case to the competent court.", "15. The case was referred to the Istanbul Assize Court, which on 22 November 2005 also held that it lacked jurisdiction. It held that in order for Article 243 of the former Criminal Code to apply, the acts of ill‑treatment or torture had to be inflicted with the intention to extract information. The court held that the applicant had complained about having been subjected to torture, but she had not alleged that the intent behind such acts had been to extract information from her. The complaint therefore fell under Article 245 of the former Criminal Code and accordingly within the jurisdiction of the Fatih Criminal Court.", "Consequently, the court referred the case to the Court of Cassation to resolve the jurisdictional dispute. 16. On 2 October 2006 the Court of Cassation held that the case fell within the jurisdiction of the Istanbul Assize Court. 17. On 6 March 2007 the Istanbul Assize Court held a hearing in the case during which the applicant joined the proceedings as a civil party.", "At the same hearing, the applicant made statements to the court. During her examination, she identified Z.T. in the courtroom as one of the police officers who had interrogated and tortured her. The applicant stated that she had been held at two different facilities while in custody. According to her statements to the court, at the first facility she had been beaten; at the second facility, she had been subjected to various forms of torture, including reverse hanging and sexual harassment by around ten police officers.", "She had been stripped naked and threatened with rape in front of her sister, and she had been sprayed with pepper gas. At the end of the hearing, the Istanbul Assize Court discontinued the proceedings against the accused police officers on the ground that the prosecution of the offences proscribed by Articles 243 and 245 of the former Criminal Code had become time‑barred (the period being seven years and six months at the relevant time). 18. On an unspecified date the applicant lodged an appeal against the judgment of 6 March 2007. 19.", "On 31 January 2008 the Court of Cassation rejected the applicant’s appeal and upheld the judgment of the Istanbul Assize Court. II. RELEVANT DOMESTIC LAW AND PRACTICE 20. A description of the 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).", "THE LAW I. ALLEGED VIOLATION OF ARTICLES 3, 6 AND 13 OF THE CONVENTION 21. The applicant alleged under Articles 3, 6 and 13 of the Convention that she had been subjected to ill-treatment while in police custody first at the Security Branch and subsequently at the Anti-Terrorism Branch of the Istanbul Security Headquarters, and that the authorities had failed to carry out an effective investigation into her allegations of ill-treatment. 22. The Court considers that these complaints should be examined from the standpoint of Article 3 alone (see Mesut Deniz v. Turkey, no.", "36716/07, § 36, 5 November 2013, and Uğur v. Turkey, no. 37308/05, §§ 77-78, 13 January 2015). Article 3 of the Convention reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 23. The Government argued that the application should be rejected for non-exhaustion of domestic remedies, on the ground that the applicant had failed to raise her complaints before the domestic courts. 24.", "The applicant stated that she had lodged a criminal complaint against the perpetrators, upon which criminal proceedings were instituted. She further maintained that she had lodged an appeal against the judgment of the Istanbul Assize Court with the Court of Cassation. 25. The Court observes that, contrary to the Government’s assertion, the applicant brought her complaints to the attention of the national authorities on many occasions (see paragraphs 8, 10, 12, 17 and 18 above). The Court therefore rejects the Government 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 responsibility of the respondent State in the light of the substantive aspect of Article 3 of the Convention 27. The applicant submitted that she had been subjected to various forms of ill-treatment amounting to torture while detained in police custody. She submitted, in particular, that she had been beaten, hung by her arms, threatened with rape and subjected to sexual harassment. 28.", "The Government submitted that the applicant’s allegations of ill‑treatment were unsubstantiated. They maintained that the injuries observed on the applicant’s body had originated in the legitimate use of force by the police as the applicant had resisted the police officers’ attempts to arrest her. They further argued that the applicant had herself inflicted certain injuries on her body during an uproar which broke out in the custody suite in which she had been placed following her arrest, when the detainees hit the walls with their hands and attempted to break the iron partitions. 29. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence (see, in particular, Tanrıkulu and Others v. Turkey (dec.), 45907/99, 22 October 2002).", "In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII (extracts)). Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, judgment of 18 January 1978, § 161, Series A no. 25). 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 detention.", "Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). 30. In that respect, where an individual is taken into custody in good health but is found to be injured by the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused and to produce evidence casting doubt on the victim’s allegations, particularly if those allegations were corroborated by medical reports, failing which a clear issue arises under Article 3 of the Convention (see Tomasi v. France, 27 August 1992, §§ 108-111, Series A no. 241-A; Ribitsch v. Austria, 4 December 1995, § 34, Series A no.", "336; Aksoy v. Turkey, 18 December 1996, § 62, Reports of Judgments and Decisions 1996-VI; and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V). 31. Turning to the circumstances of the present case, the Court observes that the applicant was not medically examined at the beginning of her detention. On 9 June 1999, two days after being taken into custody, the applicant was examined by a doctor who noted that she had a scrape under her left armpit, a 7-8 cm-long large brown macule on her right forearm and a 3 cm-long oedema on her forehead above the nose (see paragraph 7 above).", "Moreover, according to the medical report of 14 June 1999, which was drafted after the applicant’s transfer to prison, the applicant had a 4x5 cm mark on her right forearm and swelling on her right clavicle and complained about pain in her arms and a headache. 32. The Court notes that neither the Government nor the applicant disputed the authenticity or the findings of these medical reports. However, they put forward different explanations as to how the applicant had sustained those injuries. The applicant claimed that she had been beaten: in particular, she had received blows to her head and had been hung by her arms by police officers; the Government alleged that the injuries had occurred when she had attempted to resist the police officers in the course of her arrest and during a disturbance which had taken place in the detention facility where the applicant had been held in custody.", "33. In this connection, the Court notes that the Government did not adduce any document in support of their claims that the applicant’s injuries had occurred as a result of the use of force or on account of her own conduct while detained in police custody. Moreover, no arrest report describing the alleged use of force or incident report giving details of the alleged disturbance at the detention facility was prepared. The Court therefore does not find it convincingly proved that the applicant had sustained the injuries noted in the reports of 9 and 14 June 1999 as a result of a legitimate use of force (see Demirbaş and Others v. Turkey, nos. 50973/06, 8672/07 and 8722/07, § 59, 9 December 2008).", "Besides, considering the gravity and nature of the injuries, the Court does not find it likely that they were self-inflicted (compare Nevruz Koç v. Turkey, no. 18207/03, § 44, 12 June 2007). 34. The Court observes that the applicant did not bring her complaints of sexual harassment and rape threats until the investigation was re-opened in 2003. Nonetheless, the Court considers that the findings contained in the medical reports were consistent with at least the applicant’s allegations of having been hung by her arms and having received blows to her head.", "In the circumstances of the present case, and in view of the absence of a plausible explanation from the Government, the Court finds that these injuries were the result of ill-treatment for which the Government bore responsibility. 35. Having regard to the nature and degree of the ill-treatment and to the strong inferences that can be drawn from the evidence that it was inflicted in order to obtain information from the applicant about her suspected connection with the DHKP/C, the Court finds that the ill-treatment involved very serious and cruel suffering that can only be characterised as torture (see, among other authorities, Salman, cited above, § 115; Aksoy, § 64, cited above; Abdülsamet Yaman v. Turkey, no. 32446/96, § 47, 2 November 2004; Koçak v. Turkey, no. 32581/96, § 48, 3 May 2007; and Ateşoğlu v. Turkey, no.", "53645/10, § 20, 20 January 2015). 36. Accordingly, there has been a violation of Article 3 of the Convention under its substantive limb. 2. The responsibility of the respondent State in the light of the procedural aspect of Article 3 of the Convention 37.", "The applicant maintained that the criminal proceedings brought against the police officers had been ineffective as initially on 8 June 2001 the public prosecutor issued a decision not to prosecute the perpetrators due to lack of evidence and the case was closed without the decision being notified to her. The criminal proceedings were instituted almost two years later, on 6 August 2003, before the Fatih Criminal Court and were not conducted with due diligence. 38. The Government submitted that the applicant’s allegations of ill‑treatment had been the subject of an effective investigation. In this regard they maintained that a criminal investigation had been instituted into the applicant’s allegations and that the subsequent criminal proceedings had been conducted with due diligence.", "39. The Court reiterates that Article 3 of the Convention requires the authorities to investigate allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion” (see, in particular, Ay v. Turkey, no. 30951/96, §§ 59-60, 22 March 2005). The minimum standards of effectiveness defined by the Court’s case-law include the requirements that the investigation be independent, impartial and subject to public scrutiny. It is beyond doubt that a requirement of promptness and reasonable expedition is implicit in this context.", "A prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Batı and Others, cited above, § 136). When the official investigation has led to the institution of proceedings in the national courts, the proceedings as a whole, including the trial stage, must satisfy the requirement of the prohibition of ill-treatment. While there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow grave attacks on physical and moral integrity to go unpunished (see Okkalı v. Turkey, no. 52067/99, § 65, ECHR 2006-XII (extracts)). 40.", "The Court has found above that the respondent State was responsible, under Article 3 of the Convention, for the injuries sustained by the applicant. An effective investigation was therefore required. 41. In this connection, the Court observes that an investigation into the applicant’s allegations of ill-treatment was initiated upon the criminal complaint lodged by the applicant, albeit that it was concluded with a decision not to prosecute. Moreover, as it transpires from the documents in the case-file, in 2003 the domestic authorities reopened the investigation on their own motion.", "42. The Court observes, however, serious shortcomings in the investigation and in the ensuing criminal proceedings. The initial investigation resulted in a decision of 8 June 2001 not to bring any proceedings. Even though the investigation was reopened at a later date and criminal proceedings into the applicant’s allegations were finally instituted before the Fatih Assize Court on 6 August 2003, it took the domestic court almost two years to determine that it lacked jurisdiction. The Court further notes that the Istanbul Assize Court did not hold its first hearing until 6 March 2006, approximately five months after the Court of Cassation designated it as the competent court.", "Therefore, the Court cannot but find that there were substantial delays in the criminal proceedings in question: they lasted approximately seven years and eight months and were eventually discontinued on account of prescription. 43. In a number of its judgments in cases against Turkey, the Court has observed that the judicial authorities’ failure to show diligence in expediting criminal proceedings against police officers for ill-treatment-related offences has resulted in those proceedings becoming time-barred (see, inter alia, Mustafa Taştan v. Turkey, no. 41824/05, §§ 50-51, 26 June 2012; İzci v. Turkey, no. 42606/05, § 72, 23 July 2013; and Yerli v. Turkey, no.", "59177/10, § 63, 8 July 2014). As it has done in those judgments, the Court considers in the present application that on account of the inordinate delays the criminal law system has proved to be far from rigorous and to be lacking in the dissuasive effect capable of ensuring the effective prevention of unlawful acts such as those complained of by the applicant (see Yazıcı and Others v. Turkey (no. 2), no. 45046/05, § 27, 23 April 2013 and the cases cited therein). 44.", "The Court has also held that in cases concerning torture or ill‑treatment inflicted by State agents, criminal proceedings ought not to be discontinued on account of a limitation period, and also that amnesties and pardons should not be tolerated in such cases (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 326, ECHR 2014 (extracts); see also Abdülsamet Yaman, cited above, § 55). 45. Furthermore, there is nothing in the case-file to indicate that the accused police officers were suspended from duty while they were under investigation. On this point, the Court underlines the importance of the suspension from duty of the agent under investigation in order to prevent any appearance of collusion in or tolerance of unlawful acts (ibid.).", "46. Thus, in view of the aforementioned shortcomings, and in particular the substantial delay in the conduct of the proceedings, the Court finds that the perpetrators of acts of violence enjoyed virtual impunity, despite the evidence at hand (see Uğur, cited above, § 105). The Court therefore considers that the investigation and the ensuing criminal proceedings were inadequate and therefore in breach of the State’s procedural obligations under Article 3 of the Convention. 47. Accordingly, there has been a violation of Article 3 of the Convention under its procedural limb.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 48. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 49. The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage.", "50. The Government submitted that the amount claimed by the applicant was excessive. 51. In view of the violations found under Article 3 of the Convention, 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. It therefore awards the applicant EUR 45,000 in respect of non-pecuniary damage.", "B. Costs and expenses 52. The applicant also claimed EUR 5,190 for the costs and expenses incurred before the domestic courts and the Court. In support of her claims, the applicant submitted a legal fees agreement concluded with her lawyer demonstrating that she should pay 200 Turkish liras (TRY, approximately EUR 89 at the time of submission of the claims) to her representative per hour for the legal advice and representation provided before the Court. The applicant further submitted to the Court a breakdown of the hours spent by her lawyer in representing her both in Turkey and before the Court.", "According to that breakdown, the lawyer spent a total of twenty six hours during the proceedings at the national level and thirty hours in the course of the proceedings before the Court, charged at an hourly rate of 200 TRY. The applicant further claimed EUR 213 for translation, postal and photocopying costs. In this connection she submitted a table of costs. 53. The Government submitted that the amounts claimed by the applicant were excessive and unsubstantiated.", "54. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes at the outset that no invoice has been submitted to substantiate the costs. It therefore rejects those claims. As regards the lawyers’ fees, the Court considers that the applicant’s claim for her lawyers’ fees in respect of the fifty six hours of legal work carried out in the course of the proceedings before the domestic courts and the Court may be regarded as reasonable.", "Therefore, in view of the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 4,900 in respect of costs and expenses. C. Default interest 55. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Declares, unanimously, the application admissible; 2.", "Holds, unanimously, that there has been a violation of Article 3 of the Convention under its substantive limb; 3. Holds, unanimously, that there has been a violation of Article 3 of the Convention under its procedural limb; 4. Holds, (a) by six votes to one, that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 45,000 (forty five thousand euros) in respect of non‑pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) unanimously, that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,900 (four thousand nine hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (c) unanimously, 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 20 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.” Stanley NaismithPaul LemmensRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Kjølbro is annexed to this judgment.", "P.L.S.H.N. PARTLY DISSENTING OPINION OF JUDGE KJØLBRO 1 Like my colleagues, I find it proven that the applicant was ill-treated while she was in police custody and that there has been a violation of Article 3 of the Convention. However, in my view the ill-treatment should not be characterised as torture, but as inhuman and degrading treatment. Therefore, I voted against awarding the applicant EUR 45,000 euros (EUR) in respect of non-pecuniary damage (point 4(a) of the operative provisions). The applicant should, in my view, have been awarded EUR 20,000 as compensation for non-pecuniary damage.", "2. Torture is the most serious kind of ill-treatment prohibited by Article 3 of the Convention, and it has to be proven beyond reasonable doubt in order for the Court to find a violation of that limb of Article 3. 3. I agree with my colleagues that the Government have not been able to provide a plausible explanation for the injuries sustained by the applicant while she was in detention and consequently that there has been a violation of Article 3 of the Convention. However, the evidence is insufficient to find it proven beyond reasonable doubt that the ill-treatment amounts to torture.", "4. Two days after the arrest, when the applicant was examined by a doctor, the doctor noted that the applicant “had a scrape under her left armpit, a 7-8 cm-long large brown macule on her right forearm and a 3 cm-long oedema on her forehead above the nose” and that she had complained that she “had been hung by her arms for approximately ten minutes and that her head had been banged against a wall” (see paragraph 7 of the judgment). Furthermore, a week after the arrest, when the applicant was examined by a prison doctor, the doctor noted that the applicant had “a 4x5 cm mark on her right forearm and a swelling on her right clavicle” and that she had stated that “her arms felt painful and she had a headache” (see paragraph 9 of the judgment). 5. In my view, the applicant’s allegation that she had been “hung by her arms for approximately ten minutes” while she was being ill-treated is not sufficiently supported by the medical information in the file.", "There is no mention of signs consistent with the applicant having been hanging by the arms for ten minutes. Nor does the investigation at domestic level support her allegations in that regard. Therefore, I disagree with my colleagues that “the findings contained in the medical reports were consistent with at least the applicant’s allegations of having been hung by her arms” while she “received blows to her head” (see paragraph 34 of the judgment). 6. Furthermore, I find no basis in the file for saying that the ill-treatment “was inflicted in order to obtain information from the applicant about her suspected connection with” an illegal organisation (see paragraph 35 of the judgment).", "There is simply insufficient factual basis for that statement. As the facts have been presented to the Court, the Court does not even know for a fact that the applicant was questioned by the police in the period after the arrest on 7 June 1999 and before the medical examination on 9 June 1999. This may very well have been the case, but it is not apparent from the facts of the case (see paragraphs 6-7). Therefore, there is insufficient basis for saying that the ill-treatment was inflicted “in order to obtain information” from the applicant. 7.", "As I do not find it proven that the applicant was hung by her arms for ten minutes while she was being ill-treated, or that she was ill-treated in order to obtain information, I cannot find it proven beyond reasonable doubt that the applicant was the victim of torture. However, as already mentioned, I agree with my colleagues that there has been a violation of Article 3 of the Convention." ]

[ "GRAND CHAMBER CASE OF FERNANDES DE OLIVEIRA v. PORTUGAL (Application no. 78103/14) JUDGMENT STRASBOURG 31 January 2019 This judgment is final but it may be subject to editorial revision. In the case of Fernandes de Oliveira v. Portugal, The European Court of Human Rights, sitting as a Grand Chamber composed of: Guido Raimondi, President,Angelika Nußberger,Linos-Alexandre Sicilianos, Robert Spano,Luis López Guerra,Işıl Karakaş,Paulo Pinto de Albuquerque,Branko Lubarda,Yonko Grozev,Síofra O’Leary,Carlo Ranzoni,Mārtiņš Mits,Armen Harutyunyan,Alena Poláčková,Pauliine Koskelo,Jolien Schukking, Péter Paczolay, judges, and Françoise Elens-Passos, Deputy Registrar, Having deliberated in private on 7 March and on 14 November 2018, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 78103/14) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Portuguese national, Ms Maria da Glória Fernandes de Oliveira (“the applicant”), on 4 December 2014.", "2. The applicant was represented by Mr J. Pais do Amaral, Ms A. Pereira de Sousa and Ms C. Botelho, lawyers practicing in Coimbra. The Portuguese Government (“the Government”) were represented by their Agent, Ms M.F. da Graça Carvalho. 3.", "The applicant complained under Article 2 of the Convention that her son, A.J., had been able to commit suicide as a result of the negligence of the psychiatric hospital where he had been hospitalised on a voluntary basis. Under Article 6 she also complained about the length of the civil proceedings she had instigated against the hospital. 4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 28 March 2017 a Chamber of that Section, composed of the following judges: Ganna Yudkivska, President, Nona Tsotsoria, Paulo Pinto de Albuquerque, Krzysztof Wojtyczek, Egidijus Kūris, Iulia Antoanella Motoc, and Marko Bošnjak, and also of Andrea Tamietti, Deputy Section Registrar, declared the application admissible.", "In its judgment, delivered on the same date, the Chamber found unanimously that there had been a violation of the substantive and procedural aspects of Article 2. On 27 June 2017 the Government requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. On 18 September 2017 the panel of the Grand Chamber granted that request. 5. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court.", "Luis López Guerra, whose term of office expired in the course of the proceedings, continued to deal with the case (Article 23 § 3 of the Convention and Rule 24 § 4). Péter Paczolay, substitute judge, replaced Helena Jäderblom who was unable to take part in the further consideration of the case (Rule 24 § 3). 6. The applicant and the Government both filed further written observations (Rule 59 § 1 read in conjunction with Rule 71 § 1). 7.", "A hearing took place in public in the Human Rights Building, Strasbourg, on 7 March 2018 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMsM. de Fátima da Graça Carvalho, Agent,MsA. Garcia Marques,DrA. José Pires Preto, Advisers; (b) for the applicantMsA.", "Pereira de Sousa, Counsel,MsC. Botelho,DrC. Fernandes da Silva, Advisers. The Court heard addresses by Ms da Graça Carvalho, Ms Pereira de Sousa and Dr Pires Preto and their replies to the questions of the judges. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1937 and lives in Ceira (Portugal). 9. The facts of the case, as established by the domestic courts and submitted by the parties, may be summarised as follows. A.", "The background to the present case 10. The applicant’s son, A.J., was born on 29 May 1964. 11. A.J. suffered from several mental illnesses, with a number of possible diagnoses being considered over the years such as schizophrenia and major depression.", "He also had a pathological addiction to alcohol and prescription drugs (medicamentos) and was sometimes violent towards his mother and sister. According to the expert medical opinion obtained after his death and during the domestic proceedings (see paragraph 33 below), A.J. may also have suffered from borderline personality disorder. 12. A.J.", "was hospitalised in the Sobral Cid Psychiatric Hospital (Hospital Psiquiátrico Sobral Cid, hereinafter “the HSC”) in Coimbra on eight occasions on a voluntary basis from: 1. 5 to 8 August 1984; 2. 15 March to 3 April 1985, when he was prevented from leaving the pavilion building at least for part of his stay; 3. 15 to 28 November 1985; 4. 10 to 18 January 1993, after being accompanied to the HSC by the police who had been called to his home following a family dispute.", "He was released at his request, having filled out a release form; 5. 1 to 12 February 1993; 6. 1 to 3 September 1999, when he was urgently admitted to hospital on 1 September (diagnosed with chronic alcoholism), and signed his own release form on 3 September 1999 against medical advice; 7. 12 December 1999 to 14 January 2000, when he was hospitalised after a delirious episode, and referred to the HSC by the emergency department. At the beginning of his stay he was forbidden to leave the pavilion building where he was confined; 8.", "2 to 27 April 2000, during which period he left the pavilion twice – on 3 and 27 April 2000 – without permission. 13. The medical files show that his degree of dependence on medical assistance (grau de dependência) varied during these stays between being a patient in need of partial assistance and a patient requiring intensive or full assistance. At other times the degree of dependence was not noted, as was the case for his last stay in 2000. Between some of these stays he saw a doctor at the HSC as an outpatient but on an infrequent basis.", "14. According to the Government, these stays followed emergencies or bouts of alcoholic intoxication, and only the last stay followed a suicide attempt. 15. During some of the periods he spent in hospital, A.J. was authorised to spend weekends at home with his family – three weekends during the period from 12 December 1999 to 14 January 2000, and two weekends during the period from 2 to 27 April 2000.", "B. The events prior to A.J.’s death 16. In March 2000 A.J. went to Lisbon to try to renew his driving licence for heavy vehicles. However, he was unsuccessful.", "On 1 April 2000 he attempted to commit suicide by taking an overdose of prescription drugs. He was taken to the emergency department of Coimbra University Hospital. 17. On 2 April 2000 A.J. was voluntarily admitted to the HSC from the emergency department (this was the last of his stays at the HSC (see paragraph 12 above).", "He was treated by Dr A.A., who had been his psychiatric doctor since December 1999. According to the clinical records dated 2 April 2000 and the witness statement of Dr A.A., the suicide attempt may have been the result of his failure to renew his driving licence. According to her, he had become depressed and thought his life no longer had any value, he felt marginalised and also powerless to achieve any aim in life. 18. For the first week of his stay at the HSC, he was placed under a restrictive regime, even though he was a voluntary inpatient (see paragraph 54 below).", "He was confined - in his pyjamas - to pavilion 8, where the Male General Psychiatric Clinic (Hospitalisation of Acute Cases) was located, and was not allowed to leave the pavilion. However, the clinical records show that on 3 April 2000 he left the pavilion after lunch and went home. He was brought back to the HSC by his brother-in-law at around 1.30 p.m. In the second and third week of that stay at the HSC, given an improvement in A.J.’s condition, the restrictive regime was lifted and he was allowed to circulate outside the pavilion and within the HSC grounds. This regime remained unchanged up until his death on 27 April 2000 (see paragraph 28 below).", "During that period he was allowed to spend two weekends at home. 19. During the second weekend A.J. was allowed to go home to spend Easter with the applicant and other members of his family. He left the HSC at 10 a.m. on Friday 21 April 2000 after his breakfast, and was due to return on Wednesday 26 April 2000 after breakfast.", "Dr A.A. was on holiday over that period (she had left on 19 April 2000) and was replaced by Dr E.R. Dr E.R. saw A.J. twice before the latter spent the Easter weekend at home. 20.", "At around 10.30 p.m. on Tuesday 25 April 2000, the applicant took A.J. to the emergency department of the Coimbra University Hospital because he had drunk a large amount of alcohol. The observation record completed by the emergency department at around midnight on 25 April 2000 read as follows: “patient hospitalised in HSC, being seen by doctor A.A; he spent the weekend outside and must have behaved recklessly because he got drunk. History of mental weakness, depressive episodes and recurrent suicide attempts, those characteristics were not observed during the weekend. Sent back to the HSC where he is hospitalised.” He was prescribed medication in case of emergency, and it appears from his clinical records that he was given emergency medication at around 2 a.m. on 26 April 2000 at the HSC.", "21. The clinical record from 8 a.m. to 4 p.m. on 26 April 2000 shows that A.J. stayed in bed and only got up to eat. He received phone calls and a visit from his sister. There is no clinical record for the shift from 4 p.m. to midnight and for the shift from midnight to 8 a.m. the next day.", "The domestic courts accepted that the applicant’s son had been medicated for the whole day, whereas the applicant contested that fact on the basis of the lack of any clinical record. 22. The clinical record resumes at 8 a.m. on 27 April 2000. The nurse noted that between 8 a.m. and 4 p.m. A.J.’s behaviour had been calm and he had been walking around outside pavilion 8. According to the oral statement of one nurse and the clinical record, he had eaten well, including his afternoon snack at around 4.45 p.m. 23.", "The clinical records do not mention that A.J. was seen by the doctor on call on returning to the HSC. Dr E.R. stated in his oral evidence that he had assumed that A.J. was fine since the nurses had not requested any assessment (see paragraph 35 below).", "24. At around 4 p.m. the applicant called the hospital. She was told to call back later, during the afternoon snack, as her son was not inside the building at that time. She was assured that some minutes earlier he had been standing at the door and he looked fine. 25.", "At around 7 p.m. it was noticed that A.J. had not appeared for dinner. The coordinating nurse was informed of his absence. The hospital staff then started searching the areas where patients were allowed to walk about freely, such as the cafeteria and the park. 26.", "At some time between 7 p.m. and 8 p.m. the coordinating nurse reported the disappearance to Dr M.J.P., who was on call that day (but not at the HSC at that time), and contacted the National Republican Guard. 27. At around 8 p.m. the coordinating nurse spoke on the telephone to the applicant and told her that A.J. had not appeared for dinner. 28.", "It is not known at what precise time A.J. left the pavilion and the hospital grounds after he had taken his afternoon snack and thereafter followed a footpath towards the applicant’s house. At 5.37 p.m., dressed in his pyjamas, A.J. jumped in front of a train running between Lousã and Coimbra. C. Domestic proceedings against the hospital 29.", "On 17 March 2003 the applicant lodged a civil action with the Coimbra Administrative Court (Tribunal Administrativo do Círculo de Coimbra) against the HSC under the State Liability Act (Legislative Decree no. 48051 of 21 November 1967) seeking pecuniary and non-pecuniary damages of 100,403 euros (EUR). 30. The applicant claimed that her son had been treated at the HSC for mental disorders on several occasions. He had been admitted to the hospital as a voluntary inpatient on 2 April 2000 because he had attempted to commit suicide.", "She alleged that he had made another attempt over the Easter weekend when he was at home with her. The fact that her son had been able to leave the hospital grounds on 27 April 2000 had led the applicant to conclude that the hospital staff had acted negligently in the performance of their duties. Because of his suicide attempts and mental condition, her son should have been under medical supervision and the hospital staff should have prevented him from leaving the hospital grounds. She maintained that her son’s suicide had been caused by the poor organisation of the hospital services. The poor organisation was reflected in three aspects: a) the lack of fencing around the boundaries of the hospital, which allowed inpatients to leave the hospital easily without any supervision, b) the lack of a mechanism for checking the presence of inpatients which would allow the hospital staff to notice an absence immediately, and c) the lack of an emergency procedure capable of detecting an inpatient’s absence, which would allow the hospital staff to adopt the effective measures required to ensure that the inpatient was returned safely without endangering the lives of others or his own life.", "The applicant relied on the specific background leading to A.J.’s hospitalisation since the beginning of April as well as details from his clinical record, notably his repeated excessive consumption of alcohol, his mental illness, and his earlier suicide attempt. She maintained that on account of all those circumstances, the monitoring measures should have been enhanced in order to prevent him from leaving. 31. On 29 October 2003 the court gave a preliminary decision (despacho saneador) specifying the facts considered to be established and those which remained to be established. 32.", "On 5 July 2005 the court ordered that an expert report be drawn up on A.J.’s clinical condition and the supervision measures required as a result of that condition. 33. On 27 September 2006 a psychiatrist appointed by the Medical Association (Ordem dos Médicos) submitted his report, which was based on an analysis of photocopies from the clinical files of the HSC. The relevant parts of the report read as follows: “... Although alcohol dependence was the predominant diagnosis, several other diagnoses were considered.", "In particular, dependent personality (personalidade dependente); delirious outbreaks (surto delirante); schizophrenia; manic-depressive psychosis (psicose maníaco-depressiva)... A.J.’s clinical history enables us to consider him an ill person with recurring relapses into excessive alcohol consumption ... but also another kind of symptomatology... He was an individual who was “very violent and aggressive when he was drunk, and even in those moments when he had not been drinking he was a conflictual young man, easily irritable”... ... There is no detailed reference in his clinical records to his psychopathological condition on 26 April 2000 (after the alcohol intoxication episode which led him to the emergency services on 25 April 2000), 27 or 28? April 2000... ... The [plaintiff’s] son suffered from disturbances which caused depressive behaviour with a significant inclination to suicide.", "Taking into account the clinical documents, his clinical condition may have led to another attempt to commit suicide, which turned out to be fatal. In addition, the polymorphism of the patient’s psychiatric condition should be emphasised. A psychopathological condition such as the patient’s has a bad prognosis and suicide is frequently preceded by an attempt (or attempts) to commit suicide. ... Indeed, it must be clarified that ... he may have been suffering from a borderline personality disorder [perturbação de personalidade borderline]... ...", "There is reference to a multiplicity of diagnoses, all of them capable of enhancing the risk of the patient’s suicide (and also of suicidal behaviour). ... The clinical history and psychopathological framework [quadro psicopatológico], for the reasons already mentioned, would predict future suicidal behaviour; thus the occurrence of suicide is not surprising. With regard to prevention, containment and surveillance measures must without a doubt be adopted. But with a patient like this one, these measures are difficult to adopt (see for example his requests to be discharged despite the doctor’s opinion, which is substantiated) and never sufficient because of the high potential for suicide.", "... We can assume or assert the increased suicide potential of an individual when he is suffering from a psychopathological framework such as schizophrenia, major depression, chronic alcoholism; all these pathologies are mentioned in the patient’s clinical records. This potential is also increased if the patient is suffering from Borderline Personality Disorder, as we mentioned; an illness which cannot be excluded with regard to this patient. The prevalence of suicide is significant among patients suffering from these pathologies. Therefore, what happened is not unusual. The fact that the patient had been on antidepressant treatment for more than two weeks, had wandered around the hospital without ever endangering his life, and the fact that there is nothing in the medical records on suicidal thoughts, does not mean that the probability of that event (suicide) was negligible.", "However, it was hardly avoidable. [Fully effective] Prevention of suicide in these patients is an impossible task. In a patient who wanders around the hospital and whose symptomatology is not suggestive of imminent suicide, where that probability (of suicide) is higher but is not so increased at that moment (considering the background and the characteristics of the patient), prevention is much more difficult.” 34. The first hearing took place on 8 October 2008. The applicant and the psychiatrist who had issued the above medical opinion gave evidence at the hearing.", "35. At five hearings (namely on 8 and 9 October 2008, on 14 January 2009, and on 9 and 13 February 2009) the court heard evidence from different witnesses, including: the applicant’s daughter (A.J.’s sister); nurses, doctors and medical auxiliaries who had worked for or were still working for the HSC, some of whom had started their shift at 4 p.m. on 27 April 2000; a social worker employed by the HSC since 1995, who had had contact with A.J. ; and the train driver. Dr A.A., who had been A.J’s psychiatric doctor at the HSC, gave evidence that his treatment consisted of taking the prescribed medication, ensuring that he received the treatment voluntarily, and establishing a relationship of trust with him in order for him to receive therapy. She confirmed that voluntary inpatients could have their freedom of movement restricted if it was thought necessary.", "In these circumstances inpatients would be forbidden from leaving the pavilion and would remain in their pyjamas. Dr E.R. (who had been replacing Dr A.A. at the relevant time) confirmed that on 27 April 2000 there had been no mention on the information board in pavilion 8 of any restrictive measures in respect of A.J. In other words, he had been free to leave the pavilion, although to leave the grounds of the HSC he would have needed medical permission. Dr M.J.P., who had been the emergency doctor on call on 27 April 2000, explained that had the nurses in the pavilion seen a problem with A.J.’s behaviour on that day they would have called her, which they had not done.", "The court also analysed several documents attached to A.J.’s clinical file from the HSC. 36. On 9 March 2009 the court conducted an on-site inspection (see paragraph 48 below). 37. On 7 January 2010 the court held a hearing at which it adopted a decision concerning the facts.", "The court considered, inter alia, that it should not explicitly define A.J.’s pathology. Regarding the episode on 25 April 2000, the court decided to view it simply as an abuse of alcohol, taking into account his underlying chronic alcoholism and the fact that the drinking had taken place in the afternoon and mainly at a café. 38. On 25 April 2011 the Coimbra Administrative Court delivered a judgment in which it ruled against the applicant. With regard to the applicant’s argument that the hospital should have erected fences or other barriers around the hospital grounds, the court pointed out that the current approach in the treatment of mentally ill patients was to encourage social interaction.", "The existence of fencing would lead to the stigmatisation and isolation of mentally disabled inpatients. In this regard it held that the lack of security fences or walls was: “in line with modern theories of psychiatric science according to which the treatment of patients suffering from mental disorders must take place in an atmosphere of trust and mobility of movements, in physical conditions which promote the freedom and autonomy of movements, and which favours the interaction and the conviviality between patients and the staff in order to encourage [the patient’s] reintegration; monitoring of these patients must be conducted in a discreet way”. 39. As to the applicant’s complaint regarding the lack of a mechanism capable of checking the presence of inpatients, the court found that the HSC had a surveillance procedure in place which consisted of verifying the inpatients’ presence at meal and medication times; this was in compliance with recent psychiatric science and respected the inpatients’ right to privacy and dignity. Additionally, the court found that the inpatients in respect of whom a specific restrictive regime of hospitalisation was adopted were given more attention by the nursing team and the medical assistants, who verified their presence inside the building where they were hospitalised or in the areas surrounding the building’s entrance, as the case may be.", "With regard to the applicant’s argument that no emergency procedure existed, the Coimbra Administrative Court noted that it consisted of alerting the police and the inpatient’s family in the event of absence. It found this procedure to be appropriate. 40. As regards the applicant’s complaint that her son had committed suicide as a result of the absence of permanent monitoring, the court held that his suicide had not been foreseeable. It was true that her son had been suffering from a mental illness which had never been properly diagnosed, either because the symptoms were complex or because he had been addicted to alcohol and prescription drugs.", "In this regard, the court pointed out that over the years the applicant’s son had been diagnosed with schizophrenia and major depression. However, it was only after his death and as a consequence of an expert opinion requested from the Medical Association during the proceedings (see paragraph 33 above) that a probable diagnosis of borderline personality disorder had been made. The court established that A.J. had last been admitted as an inpatient after a suicide attempt. However, it considered that despite the possibility that inpatients diagnosed with mental diseases such as those of the applicant’s son might commit suicide, during the last days before his death he had not shown any behaviour or mood which could have led the hospital staff to suspect that 27 April 2000 would be different to the preceding days.", "According to the Coimbra Administrative Court, the fact that he had been admitted to the emergency department of the Coimbra University Hospital because he had consumed a large amount of alcohol had not been the result of a suicide attempt but of reckless behaviour. The Coimbra Administrative Court found that, having returned to the HSC, he had been kept under medical supervision the whole day, was medicated and accompanied by the medical staff, and that his health had improved. The court thus concluded that there were no circumstances that would have made it possible to predict the tragic outcome that had occurred. It was not possible to affirm that his suicide had been predictable, nor was there anything in the case file that could have justified the adoption of the involuntary treatment procedure in the days preceding the tragedy, since it was not foreseeable that he would commit suicide. According to the court, A.J.’s behaviour had been “absolutely unexpected and unforeseeable”, given the concrete circumstances of the case.", "41. On 12 May 2011 the applicant appealed to the Administrative Supreme Court, claiming that the first-instance court had wrongly assessed the evidence, that its findings of fact had been incorrect, and that it had wrongly interpreted the law. 42. On 26 September 2012 the Deputy Attorney-General attached to the Administrative Supreme Court was asked to provide an opinion on the appeal. He recommended that the first-instance judgment should be reversed.", "The opinion focused on the failure to put in place a surveillance framework specifically adapted to A.J.’s mental health problems and risk of suicide, as well as the alleged failure of the HSC to comply with its obligation to prevent suicide. It stated that: “.... with regard to patients with a tendency to commit suicide only the prescription and application of enhanced monitoring (vigilância acrescida) could be considered adequate. In A.J.’s medical report there are references to suicide attempts; the last one occurred on 1 April 2000, some days before 26 April 2000 when he went back to HSC after being treated at [Coimbra University Hospital] due to the consumption of a large amount of alcohol; the possibility of a suicide attempt was thus a “probable risk” or, among the possible risks, one which could be anticipated in so far as it could be expected by a prudent assessor (avaliador prudente). Therefore, in our opinion, the impugned judgment has erred in considering for the purpose of assessing the level of monitoring required from the defendant, that A.J.’s suicide was an absolutely unexpected and unforeseen fact and by holding that there were no grounds to increase the monitoring in the particular case. The [HSC] never prescribed or put in place a regime to reinforce the monitoring of A.J.", "– a regime which could be suited to preventing any possible exit from the hospital, ... This enhanced surveillance, which aims at protecting the patient, is part of the therapeutic obligation of the hospital and it does not conflict with the open-door regime as a treatment method applied to patients in the circumstances in which it is considered suitable.” 43. Regarding the facts which the applicant had relied on concerning several HSC inpatients who had left without permission and the resulting tragic consequences, the opinion noted that those elements should not be taken into consideration. According to the opinion: “the degree of surveillance that ought to be established must take into consideration “all the probable risks” and all those “which can fall within the expectations of a prudent assessor”. A.J.’s medical report, alone, already had references to suicide attempts, one of which had occurred twenty-five days earlier.", "Thus it was possible to predict a repetition of those. It is therefore possible to conclude that the defendant did not establish or put in place any monitoring measure which could be considered adequate to the status of a psychiatric hospital and to A.J.’s characteristics as a patient – it could and should have done so.” 44. On 29 May 2014 the Administrative Supreme Court dismissed the applicant’s appeal by two votes to one, upholding the legal and factual findings of the Coimbra Administrative Court. The Administrative Supreme Court found that the facts relied on by the applicant before the lower court concerning similar cases of inpatients who had left the HSC without permission were irrelevant to the decision in the instant case. The court rejected the applicant’s argument that A.J.", "had exhibited depressive behaviour with a “strong” tendency towards suicide, which he had attempted on different occasions. It upheld the finding of the lower court which had established only one suicide attempt on 1 April 2000. 45. The Administrative Supreme Court considered that the practice of counting of inpatients at meal and medication times was sufficient and had allowed the hospital staff to verify A.J.’s attendance during lunch and the afternoon snack on 27 April 2000. It rejected the applicant’s argument that counting the inpatients when they were given their meal trays with their meals was “deeply amateurish”.", "As to the foreseeability of the suicide, the Administrative Supreme Court held that the HSC had not breached any duty of care, as there had been no indication which could have led the hospital staff to suspect that the applicant’s son would try to commit suicide that day, namely by leaving the hospital grounds. The Administrative Supreme Court took into account that during previous periods of hospitalisation the applicant’s son had also left the hospital grounds, and that no link had been established between that behaviour and a particular risk of suicide in so far as they had only been able to establish the existence of a single suicide attempt, namely on 1 April 2000. 46. In a dissenting opinion, one of the judges stated that the hospital should have secured the grounds in some way in order to fulfil its duties of care and supervision. By not doing so, it had allowed inpatients to leave easily without being discharged, thus breaching those duties.", "That omission had been the cause of the “escape” and suicide of the applicant’s son. D. Background information concerning the HSC 47. The HSC is a psychiatric hospital located outside Coimbra on seventeen hectares of land. It is part of the Coimbra University Hospital and is State-run. 48.", "According to an on-site inspection made by the Coimbra Administrative Court on 9 March 2009 in the course of the proceedings against the hospital, the HSC had eighteen buildings (one for each hospital department). On the basis of information before the Court it appears that different types of patients were hospitalised in these different buildings depending on their gender and the type and extent of their illness. The grounds of the HSC were not bordered by security fences or walls of any other kind. The buildings were surrounded by green areas with trees and other vegetation, and the different buildings were accessed by means of roadways and paths, which were also surrounded by trees and other vegetation. The main entrance to the HSC had a barrier and a security guard.", "One of the possible exits from the hospital grounds led to a shortcut towards a railway station platform. This shortcut was accessed by taking the road behind building no. 9. The station platform was around a fifteen to twenty-minute walk from that part of the HSC’s grounds. 49.", "In accordance with the guidelines prepared by the HSC, meals were taken in the hospital cafeteria and inpatients had to remain there until the end of the meal. There was a User’s Guide intended for inpatients which set out the rules governing their hospitalisation. Inpatients were not allowed to leave the pavilion without informing the relevant nurse in advance. Inpatients were also forbidden to leave the hospital grounds without the authorisation of a specialist. If an inpatient wished to leave the hospital before authorisation had been given, a discharge form had to be signed.", "50. The following schedule was in place during A.J.’s stay in April 2000: i. Wake-up time: between 7 a.m. and 8 a.m.; ii. Bedtime: flexible, from 10 p.m. the inpatient must remain silent and with the lights out; iii. Meals: 1. Breakfast: from 8.35 a.m. to 9.30 a.m.; 2.", "Lunch: from 12 noon to 1 p.m.; 3. Afternoon snack: 4.45 p.m.; 4. Dinner: from 7 p.m. to 8 p.m.; 5. Evening snack: 10 p.m. 51. A mechanism was in place, as recognised by the domestic courts, for checking an inpatient’s presence, by counting the inpatients at each meal time (five times a day) and at medication time.", "In addition to this, an inpatient’s presence was checked at bedtime. Inpatients under a restrictive hospitalisation regime were monitored more closely by the nursing team. 52. An emergency procedure was triggered when the absence of a patient was noticed. This procedure consisted of alerting the police, the doctor on call and the inpatient’s closest relatives.", "53. During hospitalisation an inpatient was accompanied by a therapeutic team made up of a doctor, a nurse, a social worker, and a medical auxiliary. 54. A distinction was made between voluntary and involuntary hospitalisation (see paragraph 58 below). Under voluntary hospitalisation, an inpatient could abandon treatment at any moment.", "However, according to the doctors who testified in the domestic proceedings and the Government’s observations, there were two types of regime for voluntary inpatients: a restrictive regime, according to which inpatients were not allowed to leave the pavilion, and a general regime, allowing inpatients to leave the building after informing the duty nurse, although they were still not allowed to leave the grounds of the HSC without permission. Inpatients under the restrictive regime were generally dressed in pyjamas and a dressing gown, while inpatients under the general regime seem to have had a free choice as to what they wore. It appeared that inpatients were often kept on the restrictive regime at the beginning of a hospital stay, even if they were admitted on a voluntary basis. There was an isolation room for inpatients who were very agitated and aggressive and this room could also be used for voluntary inpatients. 55.", "The applicant submitted news articles to the Court referring to inpatients who had apparently managed to leave the HSC’s grounds. The first five articles below had already been submitted to the domestic authorities (see paragraph 44 above where the Administrative Supreme Court found the information contained therein to be irrelevant to the decision in the instant case): (i) on 9 March 2008 the body of an inpatient who had escaped two weeks earlier was found close to the hospital grounds (in Diário de Coimbra); (ii) on 29 October 2008 a man escaped from the HSC and was hit by a car after jumping in front of it (in Diário das Beiras); (iii) on 31 July 2008 the body of an inpatient who had escaped from the hospital the previous month was found in a river (in Diário de Coimbra); (iv) on 14 August 2008 a patient who had been involuntarily hospitalised in the HSC escaped (in Diário de Coimbra); (v) in early March 2010 three different inpatients escaped from the hospital; one of them was located by the police after stealing a car and another was found dead in a nearby river (in Bombeirospontopt); (vi) on 16 October 2011 an inpatient escaped from the HSC’s grounds and attacked two police officers with a hoe (in Correio da Manhã); (vii) on 1 March 2015 two inpatients escaped from the HSC and stole a car (in Tvi24). II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Health Act 56.", "The Health Act (Law no. 48/90 of 24 August 1990) provides that health care is dispensed by State services and establishments and by other public or private, profit-making or non-profit entities under State supervision. Under Basic Principle XIV of the Act, users of the health-care system have, among other rights, the right to freely choose their doctor and health-care establishment, the right to receive or refuse the treatment offered, the right to be treated in an appropriate and humane manner, promptly and with respect, the right to be informed about their condition, of possible alternative treatments and of the likely development of their condition, and the right to complain of the manner in which they have been treated and to receive compensation for any damage suffered. 57. The Health Act is regulated by Legislative Decree no.", "11/93 of 15 January 1993, which approved the National Health-Care System Regulations. Under Article 38, the State has the task of supervising health‑care establishments; the Ministry of Health is responsible for setting health‑care standards, without prejudice to the functions assigned to the Medical Association and the Pharmacists’ Association. B. The Mental Health Act 58. The Mental Health Act (Law no.", "36/98 of 24 July 1998) sets out the general principles of mental-health policy and regulates the voluntary and involuntary hospitalisation of inpatients with psychiatric disorders. The relevant provisions read as follows: Section 3 – General principles of mental health “... a) The provision of mental-health care is carried out in the community in order to avoid the removal of patients from their usual environment and to facilitate their rehabilitation and social integration; b) Mental-health care is provided in the least restrictive environment possible. ...” Section 7 - Definitions “... a) Involuntary hospitalisation (Internamento compulsivo): hospitalisation [ordered] by judicial decision regarding a patient with a severe mental disorder; b) Voluntary hospitalisation (Internamento voluntário): hospitalisation at the request of the patient with a mental disorder or at the request of the legal guardian of a minor under the age of fourteen years old. ...” Section 12 - Requirements “1 - A patient with a severe mental disorder who creates, due to that disorder, a situation of danger for legally protected interests (bens jurídicos) of significant value, belonging to him or herself or others, of a personal or patrimonial nature, and refuses to undergo the necessary medical treatment, may be interned in an appropriate establishment. 2 - A patient with a severe mental disorder who does not possess the necessary discernment to assess the meaning and scope of the consent may also be interned where the absence of treatment seriously damages his or her state.” Section 13 - Locus standi “1 - The legal representative of a patient with a severe mental disorder, any person with legal standing to lodge prohibition (interdição) proceedings, the public health authorities and the State Attorney’s Office (Ministério Público) has the legal standing to request compulsory hospitalisation.", "2 - Whenever a doctor in the exercise of his or her functions diagnoses a mental disorder with the effects set forth in section 12, he or she may communicate that diagnosis to the competent public health authority for the purposes of the previous paragraph. 3 - If the diagnosis is made during voluntary hospitalisation, the clinical director of the establishment also has the legal standing to request involuntary hospitalisation.” C. Legislative Decree no. 48051 of 21 November 1967 59. Legislative Decree no. 48051, in force at the time the proceedings were instituted by the applicant, governed the State’s non-contractual civil liability.", "It contained the following provisions of relevance to the instant case: Article 2 § 1 “The State and other public bodies shall be liable to compensate third parties in civil proceedings for breaches of their rights or of legal provisions designed to protect the interests of such parties caused by unlawful acts committed with negligence (culpa) by their agencies or officials in the performance of their duties or as a consequence thereof.” Article 4 “1. The negligence (culpa) of the members of the agency or of the officials concerned shall be assessed in accordance with Article 487 of the Civil Code. 2. If there are several persons responsible, the provisions of Article 497 of the Civil Code shall apply.” Article 6 “For the purposes of this Decree, legal transactions which infringe statutory provisions and regulations or generally applicable general principles, and physical acts which infringe such provisions and principles or the technical rules and rules of general prudence that must be observed, shall be deemed unlawful.” 60. According to domestic case-law concerning the State’s non-contractual liability, the State is required to pay compensation only if an unlawful act has been committed with negligence and there is a causal link between the act and the alleged damage.", "D. Legislative Decree no. 35/99 of 5 February 1999 61. Legislative decree no. 35/99 of 5 February 1999, in force at the time of A.J.’s last stay in hospital, contains provisions on the organisation of psychiatric and mental health care. The preamble reads as follows: “...", "Thus considering, in particular, the recommendations of the United Nations and of the World Health Organization regarding the priority of promoting the provision of care at the community level in the least restrictive way and, in the specific context of psychosocial rehabilitation, the provision of care in day-care centres and in accommodation structures appropriate to the patients’ specific degree of autonomy, the urgency to overhaul the mental health policy and to subsequently revise the model of services’ organisation, which Legislative Decree no. 127/92 did not succeed in doing, has become even more pressing since the mid-1990s.” The relevant provisions provide as follows: Article 1 - Object “This decree lays down the guiding principles for the organisation, management and assessment of the psychiatry and mental health services, hereinafter referred to as ‘mental health services”. Article 2 – General principles “... 6 – The provision of mental health care shall focus on the specific needs and circumstances of the persons according to their age and it shall be promoted primarily at the community level in the least restrictive way; the hospitalisation units shall preferably be located in general hospitals.” Article 16 – Tasks of psychiatric hospitals “1 – Psychiatric hospitals are responsible for: ... c) Ensuring the necessary care of long-term evolution patients (doentes de evolução prolongada) hospitalised therein, and promoting the humanisation and the improvement of their living conditions, developing rehabilitation programmes adapted to their specific needs and supporting their reinsertion into the community. ...” E. Protocol on the use of means of “mechanical restraint” in all Portuguese hospitals, including psychiatric hospitals (Circular Normative Nr 08/DSPSM/DSPCS) 62. In 2007 the Ministry of Health introduced a protocol on the use of means of mechanical restraint in all Portuguese hospitals, including psychiatric hospitals.", "This was repealed and replaced by broader Guidelines in 2011 (see below). F. Guidelines of the Directorate General of Health on restraint no. 21/2011 dated 6 June 2011 63. Pursuant to Article 2 § 2, c) of Regulatory Decree No. 66/2007, of 29 May 2007, as amended by Regulatory Decree No.", "21/2008, of 2 December 2008, the following guidelines were issued: “1. The use of means of restraint of patients shall take place after a clinical risk assessment. 2. Patients shall be eligible for restraint measures when they: 2.1. Manifest behaviours that put them or their environment at risk of suffering damage.", "2.2. Refuse compulsory treatment as provided by law. 2.3. Refuse vital, urgent treatment. ... 6.", "The head nurse of the service is responsible for ensuring that the following elements are registered in the patient’s file: 6.1. Assessment of the patient’s condition that determined the need for restraint. 6.2. Preventive measures initiated and their impact. 6.3.", "Description of the different restraint measures analysed with the patients or with someone who will decide in their place. 6.4. Professionals involved in the decision-making of restraint measures. 6.5. Subsequent assessments of the restraint measure.", "It includes the evolution of the patient’s condition and the screening of injuries associated with the use of restraint measures. 6.6. Review of the care plan as a consequence of the restraint measure. ... 9. Each health care institution should define, within the scope of these Guidelines, a standard of internal performance on the use of restraint measures in accordance with the specificities of the care it provides. ...", "CRITERIA ... k) The following is to be considered: i. Therapeutic restraint: a measure used to control physical activity or the behaviour of a person or a part of their body during the provision of health care, in order to improve health conditions and prevent complications. The goal of therapeutic restraint is to optimise the safety of the patients and of those around them, while maintaining, as far as possible, their comfort and dignity. ii. Environmental restraint: use of changes that control the mobility of the patient.", "It could be a confined room, a closed or limited space where the patient can wander safely with clinical supervision. iii. Physical restraint: situation in which one or more persons of the therapeutic team hold a patient, or move or block their movement to prevent exposure to a situation of risk. iv. Mechanical restraint: use of instruments or equipment that restrict the movements of the patient.", "v. Chemical or pharmacological restraint: psychoactive medication aimed at inhibiting a specific movement or behaviour. REASONING There is evidence that restraint is one of the most commonly used practices at an international level for the care of patients with behaviours involving a risk for themselves or for those around them. From the various studies carried out on this subject, the need to prevent incidents and adverse events associated with restraint measures stands out. ...” G. Portuguese Civil Code 64. The relevant provisions of the Code read as follows: Article 487 “1.", "It is for the injured party to prove liability for damage through negligence (culpa), unless there is a legal presumption of it. 2. In the absence of any other legal criteria, negligence is assessed with reference to the diligence of the bonus pater familias, given the circumstances of the case.” H. Case-law of the Supreme Court of Justice and the Administrative Supreme Court 65. In a judgment of 25 July 1985, the Supreme Court of Justice analysed the duty to supervise mentally ill patients who were hospitalised. It held that whenever a mentally ill inpatient was hospitalised and receiving treatment, the hospital had an obligation to comply with its medical and supervision duties.", "In the case at hand, the Supreme Court considered that the hospital had failed to fulfil that obligation by allowing a mentally disabled inpatient hospitalised under an open regime to leave the premises without a hospital discharge and by not making all due efforts to secure his immediate return. 66. In a judgment of 25 November 1998, the Supreme Court of Justice examined whether by failing to object to an inpatient leaving its psychiatric department, a hospital was in breach of its duty of supervision. It considered that a breach had not occurred because it had been established, inter alia, that (i) the psychiatry department of the hospital functioned on the basis of an “open-door” regime; (ii) there had been no express order of the health service preventing the inpatient from leaving the department; (iii) the doctors had considered it inadvisable to restrict the inpatient’s freedom of movement; (iv) on the day of her suicide attempt, the inpatient had appeared to be acting normally; and (v) the inpatient’s suicide attempt could not have been predicted from her behaviour. 67.", "In a judgment of 29 January 2009 the Administrative Supreme Court considered that the duty to supervise a mentally ill inpatient who had jumped from a window in his room had not been breached. The Administrative Supreme Court noted, inter alia, that the duty of supervision existed only in relation to risks which could be ascertained by a prudent assessor. In the case at issue, there had been no evidence that the inpatient might attempt to commit suicide. Thus, the level of supervision adopted had been in accordance with his condition and the foreseeable risks. The hospital had therefore not been responsible for the fact that the inpatient had jumped from the window.", "III. INTERNATIONAL LAW AND PRACTICE A. United Nations 1. The General Assembly of the United Nations 68. The United Nations General Assembly Resolution A/RES/46/119 of 17 December 1991 lays down several principles for the protection of persons with mental illness and for the improvement of their mental-health care.", "The relevant principles are the following: Principle 8 – Standards of care “1. Every patient shall have the right to receive such health and social care as is appropriate to his or her health needs, and is entitled to care and treatment in accordance with the same standards as other ill persons. 2. Every patient shall be protected from harm, including unjustified medication, abuse by other patients, staff or others or other acts causing mental distress or physical discomfort.” Principle 9 – Treatment “1. Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient’s health needs and the need to protect the physical safety of others.", "... 3. Mental health care shall always be provided in accordance with applicable standards of ethics for mental health practitioners... 4. The treatment of every patient shall be directed towards preserving and enhancing personal autonomy.” Principle 15 – Admission principles ... 2. Access to a mental health facility shall be administered in the same way as access to any other facility for any other illness. 3.", "Every patient not admitted involuntarily shall have the right to leave the mental health facility at any time unless the criteria for his or her retention as an involuntary patient, [as set forth in principle 16 below], apply and he or she shall be informed of that right.” 2. The Convention on the Rights of Persons with Disabilities 69. The United Nations Convention on the Rights of Persons with Disabilities (hereinafter the “CRPD”) (adopted by the United Nations General Assembly on 13 December 2006, Resolution A/RES/61/106) is designed to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities and to promote respect for their inherent dignity. The CRPD updated and revised the standards which had been established by the above-mentioned General Assembly resolution. It was ratified by Portugal on 23 September 2009.", "All Council of Europe member States are now parties to the CRPD except for Liechtenstein. The relevant parts of the Convention read as follows: Article 10 – Right to life “State parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others.” Article 12 - Equal recognition before the law “1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. 2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.", "3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. 4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body.", "The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests. ...” Article 14 – Liberty and security of a person “1. States Parties shall ensure that persons with disabilities, on an equal basis with others: a. Enjoy the right to liberty and security of person; b. Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.", "2. States parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation.” Article 25 - Health “States Parties recognize that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. States Parties shall take all appropriate measures to ensure access for persons with disabilities to health services that are gender-sensitive, including health-related rehabilitation. In particular, States Parties shall: (a) Provide persons with disabilities with the same range, quality and standard of free or affordable health care and programmes as provided to other persons, ...; (b) Provide those health services needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate, and services designed to minimize and prevent further disabilities, including among children and older persons; (c) Provide these health services as close as possible to people’s own communities, including in rural areas; (d) Require health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent by, inter alia, raising awareness of the human rights, dignity, autonomy and needs of persons with disabilities through training and the promulgation of ethical standards for public and private health care; ...” 3. The Committee on the Rights of Persons with Disabilities 70.", "In April 2014, the Committee on the Rights of Persons with Disabilities (hereinafter the “CRPD Committee”) adopted a General Comment on Article 12: Equal recognition before the law. The relevant parts, which deal with persons detained involuntarily, read as follows: Articles 14 and 25Liberty, security and consent “36. ... ...The denial of the legal capacity of persons with disabilities and their detention in institutions against their will, either without their consent or with the consent of a substitute decision-maker, is an ongoing problem. This practice constitutes arbitrary deprivation of liberty and violates articles 12 and 14 of the Convention.", "... 37. The right to enjoyment of the highest attainable standard of health (art. 25) includes the right to health care on the basis of free and informed consent. States parties have an obligation to require all health and medical professionals (including psychiatric professionals) to obtain the free and informed consent of persons with disabilities prior to any treatment. ...” 71.", "In September 2015, the CRPD Committee adopted Guidelines on Article 14 of the CRPD. The relevant parts, which concern persons detained involuntarily, read as follows: “B. The right to liberty and security of persons with disabilities 3. The Committee reaffirms that liberty and security of the person is one of the most precious rights to which everyone is entitled. In particular, all persons with disabilities, and especially persons with intellectual disabilities and psychosocial disabilities are entitled to liberty pursuant to article 14 of the Convention.", "4. Article 14 of the Convention is, in essence, a non-discrimination provision. It specifies the scope of the right to liberty and security of the person in relation to persons with disabilities, prohibiting all discrimination based on disability in its exercise. ... C. The absolute prohibition of detention on the basis of impairment 6. There are still practices in which States parties allow for the deprivation of liberty on the grounds of actual or perceived impairment.", "In this regard the Committee has established that article 14 does not permit any exceptions whereby persons may be detained on the grounds of their actual or perceived impairment. However, legislation of several States parties, including mental health laws, still provide instances in which persons may be detained on the grounds of their actual or perceived impairment, provided there are other reasons for their detention, including that they are deemed dangerous to themselves or others. This practice is incompatible with article 14; it is discriminatory in nature and amounts to arbitrary deprivation of liberty. ... D. Involuntary or non-consensual commitment in mental health institutions 10. Involuntary commitment of persons with disabilities on health care grounds contradicts the absolute ban on deprivation of liberty on the basis of impairments (article 14(1)(b)) and the principle of free and informed consent of the person concerned for health care (article 25).", "The Committee has repeatedly stated that States parties should repeal provisions which allow for involuntary commitment of persons with disabilities in mental health institutions based on actual or perceived impairments. Involuntary commitment in mental health facilities carries with it the denial of the person’s legal capacity to decide about care, treatment, and admission to a hospital or institution, and therefore violates article 12 in conjunction with article 14. ... G. Deprivation of liberty on the basis of perceived danger allegedly posed by persons with disabilities, alleged need for care or treatment, or any other reasons 13. Throughout all the reviews of State party reports, the Committee has established that it is contrary to article 14 to allow for the detention of persons with disabilities based on the perceived danger of persons to themselves or to others. The involuntary detention of persons with disabilities based on risk or dangerousness, alleged need of care or treatment or other reasons tied to impairment or health diagnosis is contrary to the right to liberty, and amounts to arbitrary deprivation of liberty.", "14. Persons with intellectual or psychosocial impairments are frequently considered dangerous to themselves and others when they do not consent to and/or resist medical or therapeutic treatment. All persons, including those with disabilities, have a duty to do no harm. Legal systems based on the rule of law have criminal and other laws in place to deal with the breach of this obligation. Persons with disabilities are frequently denied equal protection under these laws by being diverted to a separate track of law, including through mental health laws.", "These laws and procedures commonly have a lower standard when it comes to human rights protection, particularly the right to due process and fair trial, and are incompatible with article 13 in conjunction with article 14 of the Convention. 15. The freedom to make one’s own choices established as a principle in article 3(a) of the Convention includes the freedom to take risks and make mistakes on an equal basis with others. In its General Comment No. 1, the Committee stated that “decisions about medical and psychiatric treatment must be based on the free and informed consent of the person concerned and respect the person’s autonomy, will and preferences.", "Deprivation of liberty on the basis of actual or perceived impairment or health conditions in mental health institutions which deprives persons with disabilities of their legal capacity also amounts to a violation of article 12 of the Convention. ...” 4. Office of the High Commissioner for Human Rights 72. In September 2014, the Office of the High Commissioner for Human Rights issued a statement concerning Article 14 of the CRPD. It stated the following: “Liberty and security of the person is one of the most precious rights to which everyone is entitled.", "In particular, all persons with disabilities, and especially persons with mental disabilities or psychosocial disabilities are entitled to liberty pursuant to article 14 of the Convention. Ever since the CRPD committee began reviewing state party reports at its fifth session in April 2011, the Committee has systematically called to the attention of states party the need to correctly enforce this Convention right. The jurisprudence of the Committee on Article 14 can be more easily comprehended by unpacking its various elements as follows: 1. The absolute prohibition of detention on the basis of disability. There are still practices in which state parties allow for the deprivation of liberty on the grounds of actual or perceived disability.", "In this regard the Committee has established that article 14 does not permit any exceptions whereby persons may be detained on the grounds of their actual or perceived disability. However, legislation of several states party, including mental health laws, still provide instances in which persons may be detained on the grounds of their actual or perceived disability, provided there are other reasons for their detention, including that they are dangerous to themselves or to others. This practice is incompatible with article 14 as interpreted by the jurisprudence of the CRPD committee. 2. Mental health laws that authorize detention of persons with disabilities based on the alleged danger of persons for themselves of for others.", "Through all the reviews of state party reports the Committee has established that it is contrary to article 14 to allow for the detention of persons with disabilities based on the perceived danger of persons to themselves or to others. The involuntary detention of persons with disabilities based on presumptions of risk or dangerousness tied to disability labels is contrary to the right to liberty. For example, it is wrong to detain someone just because they are diagnosed with paranoid schizophrenia. ...” 5. The United Nations Human Rights Committee 73.", "On 16 December 2014 the Human Rights Committee issued General Comment No. 35 on Article 9: Liberty and security of person, of the International Covenant on Civil and Political Rights. In Section II of the General Comment the Human Rights Committee expanded on the issue of arbitrary and unlawful detention: “19. States parties should revise outdated laws and practices in the field of mental health in order to avoid arbitrary detention. The Committee emphasizes the harm inherent in any deprivation of liberty and also the particular harms that may result in situations of involuntary hospitalisation.", "States parties should make available adequate community-based or alternative social-care services for persons with psychosocial disabilities, in order to provide less restrictive alternatives to confinement. The existence of a disability shall not in itself justify a deprivation of liberty but rather any deprivation of liberty must be necessary and proportionate, for the purpose of protecting the individual in question from serious harm or preventing injury to others. It must be applied only as a measure of last resort and for the shortest appropriate period of time, and must be accompanied by adequate procedural and substantive safeguards established by law. The procedures should ensure respect for the views of the individual and ensure that any representative genuinely represents and defends the wishes and interests of the individual. States parties must offer to institutionalized persons programmes of treatment and rehabilitation that serve the purposes that are asserted to justify the detention.", "Deprivation of liberty must be re-evaluated at appropriate intervals with regard to its continuing necessity. The individuals must be assisted in obtaining access to effective remedies for the vindication of their rights, including initial and periodic judicial review of the lawfulness of the detention, and to prevent conditions of detention incompatible with the Covenant.” 6. United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health 74. The United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health issued a report concerning the right to health for all people with disabilities on 2 April 2015. In respect of the CRPD he found as follows: “96.", "The Convention is challenging traditional practices of psychiatry, both at the scientific and clinical-practice levels. In that regard, there is a serious need to discuss issues related to human rights in psychiatry and to develop mechanisms for the effective protection of the rights of persons with mental disabilities. 97. The history of psychiatry demonstrates that the good intentions of service providers can turn into violations of the human rights of service users. The traditional arguments that restrict the human rights of persons diagnosed with psychosocial and intellectual disabilities, which are based on the medical necessity to provide those persons with necessary treatment and/or to protect his/her or public safety, are now seriously being questioned as they are not in conformity with the Convention.", "... 99. A large number of persons with psychosocial disabilities are deprived of their liberty in closed institutions and are deprived of legal capacity on the grounds of their medical diagnosis. This is an illustration of the misuse of the science and practice of medicine, and it highlights the need to re-evaluate the role of the current biomedical model as dominating the mental-health scene. Alternative models, with a strong focus on human rights, experiences and relationships and which take social contexts into account, should be considered to advance current research and practice. ...” B.", "Council of Europe 1. The Committee of Ministers 75. On 22 September 2004 the Committee of Ministers adopted Recommendation Rec(2004)10 concerning the protection of human rights and the dignity of persons with mental disorders. The relevant Articles read as follows: Article 7 – Protection of vulnerable persons with mental disorders “1. Member States should ensure that there are mechanisms to protect vulnerable persons with mental disorders, in particular those who do not have the capacity to consent or who may not be able to resist infringements of their human rights.", "2. The law should provide measures to protect, where appropriate, the economic interests of persons with mental disorders.” Article 8 – Principle of least restriction “Persons with mental disorders should have the right to be cared for in the least restrictive environment available and with the least restrictive or intrusive treatment available, taking into account their health needs and the need to protect the safety of others.” Article 9 – Environment and living conditions “1. Facilities designed for the placement of persons with mental disorders should provide each such person, taking into account his or her state of health and the need to protect the safety of others, with an environment and living conditions as close as possible to those of persons of similar age, gender and culture in the community. Vocational rehabilitation measures to promote the integration of those persons in the community should also be provided.” 76. The Explanatory Memorandum to the recommendation states that the “principle of least restriction” is fundamental.", "It means that if a person’s illness improves, he or she should be moved to a less restrictive environment, when appropriate to his or her health needs. 77. Article 17 of the Recommendation sets out the criteria governing involuntary placement and states that a person may only be subject to such a measure if he or she has a mental disorder and represents a significant risk to himself or others because of it, and as long as the placement includes a therapeutic purpose, no less restrictive means are available, and the opinion of the person concerned has been taken into consideration. 2. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) 78.", "The CPT visited a number of psychiatric institutions in Portugal during the course of its periodic visits in 1999, 2003, 2008, 2012 and 2016. In the visit reports which followed, the CPT reiterated a recommendation that all psychiatric hospitals should have their own written policy on the use of means of restraint and that every instance of physical restraint of a patient should be recorded in a specific register established for that purpose. 79. The CPT visited the HSC specifically in 1999 and 2012. In 1999 the CPT’s delegation focused its attention on the hospital’s forensic department (for inpatients who had been declared to lack responsibility and ordered to undergo compulsory treatment by a criminal court) and also visited the general psychiatry department for men.", "In 2012 the Committee only visited the forensic department of the HSC (pavilion 16) and did not explicitly address the case of voluntary inpatients, such as the applicant’s son. In its report to the Portuguese Government on the visit to Portugal carried out from 7 to 16 February 2012 the CPT noted that the adoption of guidelines in June 2011 by the Ministry of Health was a step forward. However, they reiterated their recommendation that all forensic departments should establish a written policy on the use of means of restraint, in line with the Committee’s earlier recommendations on this subject. The Committee also recommended that the necessary steps be taken to put an end to the practice of newly arrived patients at the HSC having to wear pyjamas. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 80. The applicant complained that the authorities had failed to protect the right to life of her son in violation of Article 2 of the Convention. In particular, she argued that the hospital had been negligent in so far as it had not supervised him sufficiently, had not installed adequate security fencing to prevent him from leaving the grounds and had not provided for an adequate emergency procedure. Under Article 6 § 1 of the Convention she complained about the length of the civil proceedings she had brought against the hospital. 81.", "The Court considers that the applicant’s complaints should be examined solely from the standpoint of the substantive and procedural aspects of Article 2, bearing in mind that, since it is master of the characterisation to be given in law to the facts of the case, it is not bound by the characterisation given by an applicant or a government (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, ECHR 2018). 82. Article 2 of the Convention, in so far as relevant to the present case, 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.” A. The substantive aspect 1. The Chamber judgment 83. The Chamber held unanimously that there had been a violation of Article 2 of the Convention under its substantive limb. Having regard to A.J.’s clinical history and in particular the fact that he had attempted to commit suicide on 1 April 2000, the Chamber considered that the hospital staff had reasons to expect that he might try to commit suicide again.", "Another attempt to leave the hospital should therefore have been foreseen with the possibility of a fatal outcome in light of A.J.’s diagnosis. 84. While there was an emerging trend concerning persons with mental disorders to provide treatment in light of the principle of least restriction under an “open-door” regime, the Chamber considered that such “open‑door” treatment could not exempt a State from its obligation to protect mentally ill inpatients from the risk they posed to themselves, in particular where there were specific indications that such patients might commit suicide. The Chamber considered that a difference should not be made as to the nature of the patient’s hospitalisation. A voluntary inpatient was under the same care and supervision of the hospital and accordingly the State’s obligation in his or her regard was the same as its obligation towards an involuntary inpatient.", "To say otherwise would be tantamount to depriving voluntary inpatients of the protection of Article 2 of the Convention. 85. The Chamber found that the two procedures in place, namely the procedure to check whether inpatients were present during meal and medication times, and the emergency procedure to search for missing inpatients on the hospital grounds and contact the family and police, had been ineffective in preventing A.J. from leaving and ultimately in preventing his suicide. In addition, the risk had been exacerbated by the open and unrestricted access to the railway platform.", "The hospital staff might have been expected to adopt more safeguards to ensure that A.J. did not leave the grounds. In this regard, the Chamber found that the instant case was distinguishable from Hiller v. Austria, no. 1967/14, 22 November 2016. 2.", "The parties’ submissions (a) The applicant 86. In her submissions to the Grand Chamber, the applicant reiterated that the surveillance procedures at the HSC, which consisted of counting the patients when they collected their respective meal trays through a relatively small opening in the wall, were inadequate. In addition, the emergency procedure was amateurish. The time between the meals, which was at least two hours, was enough for a patient to leave the pavilion and the hospital grounds and to commit suicide. This was what had in fact happened to A.J., whose presence had been noted at the afternoon snack at 4.45 p.m. and whose absence had only been checked at dinner time, at around 7 p.m., by which time he had already died.", "87. As to the presence of doctors, patients were visited by a doctor only once a day, in the morning or in the afternoon and only when they did not have appointments or were not on emergency duty. The HSC did not have an emergency department. When a patient had a crisis, the HSC would contact the doctor on call, and he or she would decide if the patient should go to the emergency department of another hospital. In addition, according to the applicant, there was no psychologist on the HSC’s therapy team, which negatively affected A.J.’s treatment.", "The applicant also underlined the poor diagnosis made of A.J.’s mental illness by the HSC over the years. This fact had been recognised by the domestic courts and was clearly stated in the judgment of the Administrative Court of Coimbra. Moreover, there were no updated or thorough medical records of A.J.’s clinical situation, of his evolution or of the care provided. A.J. had not received adequate psychological treatment.", "This could be seen from the clinical records, where on a number of occasions the care plan or evaluation was blank. 88. The applicant did not advocate a form of strict surveillance. According to her, the hospitalisation of psychiatric patients should balance therapeutic freedom on the one hand and the need for restraint on the other. A.J.", "had needed specific care with personal surveillance and measures of restraint. He had had a proven suicidal history and had exhibited repeated irresponsible behaviour. 89. The risk of A.J. committing suicide had been predictable or, at least, likely.", "The HSC had or should have known that A.J.’s life was at real and immediate risk. Treatment in an open regime could not relieve the State of its obligations to protect mental health patients from the risks they represented to themselves. Special vigilance had been required in his case. 90. The State’s positive obligation under Article 2 to take preventive operational measures should be the same regardless of whether the inpatient was hospitalised on a voluntary or involuntary basis.", "Even where hospitalisation was voluntary, the patient was unequivocally under the State’s protection. The State had an obligation to put in place a regulatory framework compelling both public and private hospitals to adopt appropriate measures and procedures. 91. As for the procedure in place for the HSC to request involuntary hospitalisation, a request could have been made by any doctor in the exercise of his or her functions or by the director of the health establishment. 92.", "Lastly, the applicant underlined that the examples provided by her from the press of patients escaping from the HSC were pertinent as they showed that the surveillance and the emergency procedures were deficient. (b) The Government 93. The Government submitted that during A.J.’s last stay at the HSC from 2 April – 27 April 2000, he had been under the care of a psychiatrist and received daily medication. He had been seen by a doctor at least seven times during that period, and no references to suicidal thoughts had been noted in his clinical file. The care team, made up of doctors and nurses, had met every day to discuss each patient.", "Following his admission on 2 April 2000, and for approximately one week, A.J. had been confined to the pavilion, dressed in pyjamas and a dressing gown. Since an improvement in his condition had been noted, a less restrictive regime had been applied and during the second and third weeks of April 2000 he had been allowed to leave the pavilion after having informed the duty nurse. He had also been allowed to spend two weekends at home during that period. 94.", "The Government did not contest the fact that the HSC had had a duty to monitor and protect A.J., notably where there was likelihood of suicide, and in a way which was reasonable and proportionate. That duty also had to take into account the medical plan established for each patient and the patient’s right to liberty. According to domestic law (see paragraph 58 above), involuntary hospitalisation could be ordered by a judge following a specific judicial procedure, either in the case of a serious mental disorder likely to endanger either the patient or a third person and where the patient refused to be treated on a voluntary basis, or in the case of persons who posed a danger to society and did not fall within the system of criminal punishment applied to those individuals who had committed a serious crime. The Government submitted that A.J. had not fallen into either category.", "The applicant had never applied for involuntary hospitalisation even though she knew that the HSC was an open hospital without fences and that when her son was hospitalised he could leave the grounds, sometimes coming home to her. Further, the Government submitted that according to the legal framework in place at the relevant time, the general principles of mental health policy provided for care in the least restrictive environment possible (see section 3 (b) of the Mental Health Act, paragraph 58 above). 95. According to the Government, the applicant was advocating the installation of walls and gates which would prevent patients leaving the hospital grounds in cases where they had suicidal tendencies. Given that suicidal tendencies were present in the majority of patients with psychiatric illnesses this approach would constitute a move towards a system of compulsory confinement.", "This approach was neither in conformity with current thinking in psychiatry, nor did it reflect relevant international legal norms on the matter. The best approach, according to the Government, was to accompany each patient personally with the least restrictive approach to hospitalisation, if possible providing treatment in the community; if not, within an open regime where the patient retained the right to move about freely. Indeed, even in cases of involuntary hospitalisation, it was accepted and recommended that patients be given some freedom of movement. 96. The Government submitted that it had not been proved that there existed a real and immediate risk of A.J.’s suicide on 27 April 2000, nor in the days preceding his death.", "According to the medical expert who had given evidence to the domestic courts, the risk of A.J.’s suicide, while present, had not been imminent, and the suicide could have been the result of an impulse. The doctor who had treated A.J. (Dr A.A.) had considered that the therapeutic relationship of confidence was adequate treatment. On 27 April 2000 A.J. had not exhibited any abnormal behaviour; he had walked around the hospital grounds and had taken all his meals, including his afternoon snack.", "97. The Government highlighted the requirement set out in the Court’s case-law that the positive obligation incumbent on the authorities should be interpreted in a way that did not impose an impossible or disproportionate burden on the authorities and accordingly not every claimed risk to life could entail a Convention requirement (Osman v. the United Kingdom, 28 October 1998, § 116, Reports of Judgments and Decisions 1998‑VIII, and Renolde v. France, no. 5608/05, § 82, ECHR 2008 (extracts)). A permanent control of A.J.’s movements could have led to a violation of his other rights under the Convention (see Hiller, cited above, § 55). The system in place in the HSC, namely the monitoring of A.J.", "five times a day at meal times, in addition to the therapeutic regime, had been appropriate and proportionate. 98. The Government accepted that the positive obligation to protect patients from the danger they might represent to themselves or to third parties applied both in the case of patients who were hospitalised voluntarily and those hospitalised involuntarily. However, they submitted that in the case of patients who were hospitalised following a judicial order, and therefore involuntarily, such positive obligations assumed a special intensity and nature. 99.", "They submitted that the Court, in accordance with the principle of subsidiarity, should accept the findings of the national authorities, reached after a fair and adversarial national procedure, that A.J.’s suicide had not been foreseeable and that the care he had received from the HSC had been adequate. 100. Concerning whether or not A.J. had strong suicidal tendencies the domestic courts found that it had only been shown that A.J. had attempted suicide on one occasion, namely on 1 April 2000.", "The domestic courts also found that the internal rules for monitoring and triggering the emergency procedure were adequate and sufficient. 101. The Government confirmed that all patients (regardless of whether they were voluntarily or involuntarily hospitalised) could remain confined to their pavilion during a defined period depending on their symptoms. A patient could also be placed in an isolation room during periods of extreme agitation. 102.", "Lastly, the Government concluded that according to the current models for the treatment of psychiatric patients, which respected a patient’s dignity and liberty, not all deaths could be avoided nor could the State be responsible for those which did occur. 3. The Court’s assessment (a) Preliminary remarks and the scope of the Court’s assessment 103. The Court notes at the outset that the present case concerns an alleged act of medical negligence within the context of a suicide during a period of voluntary hospitalisation in a State psychiatric institution. Accordingly, two distinct albeit related positive obligations under Article 2, already developed in the jurisprudence of the Court, may be engaged.", "First, there exists a positive obligation on the State to put in place a regulatory framework compelling hospitals to adopt appropriate measures for the protection of patients’ lives (see paragraphs 104-7 below). Second, there is a positive obligation to take preventive operational measures to protect an individual from another individual or, in particular circumstances, from himself (see paragraphs 108-15 below). (b) General principles 104. The Court will set out the general principles guiding the above two obligations and subsequently assess the application of those principles in the instant case. The Court reiterates that the first sentence of Article 2, which ranks as one of the most fundamental provisions in the Convention and also enshrines one of the basic values of the democratic societies making up the Council of Europe, requires the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see Calvelli and Ciglio v. Italy [GC], no.", "32967/96, § 48, ECHR 2002‑I). (i) The positive obligation to put in place a regulatory framework 105. Firstly, in the particular context of health care, the Court has interpreted the substantive positive obligation of the State as requiring the latter to make regulations compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients’ lives. That positive obligation also requires an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see, among many other authorities, Calvelli and Ciglio [GC], cited above, and Dodov v. Bulgaria, no. 59548/00, § 80, 17 January 2008).", "106. In the case of Lopes de Sousa Fernandes v. Portugal ([GC], no. 56080/13, § 165, ECHR 2017), the Grand Chamber recently reaffirmed and clarified the scope of the positive obligation on States pursuant to Article 2 in the context of alleged medical negligence in a hospital. Even in cases where medical negligence has been established, the Court would normally find a substantive violation of Article 2 only if the relevant regulatory framework failed to ensure proper protection of a patient’s life. The Court reaffirmed that where a Contracting State had made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, matters such as an error of judgment on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient could not be considered 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 (§ 187, ibid).", "107. The question whether there has been a failure by the State to comply with its above-mentioned regulatory duties calls for a concrete rather than an abstract assessment of any alleged deficiency. The Court’s task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant or the deceased gave rise to a violation of the Convention (see Lopes de Sousa Fernandes, cited above, § 188). Therefore, the mere fact that the regulatory framework may be deficient in some respects is not sufficient in itself to raise an issue under Article 2 of the Convention. It must be shown to have operated to the patient’s detriment.", "(ii) The positive obligation to take preventive operational measures 108. Secondly, 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 another individual (see Osman, cited above, § 115) or, in particular circumstances, from himself (see Renolde, cited above, and Haas v. Switzerland, no. 31322/07, § 54, ECHR 2011). 109. In Osman, the Court found that 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 or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (ibid., § 116).", "110. In a series of cases where the risk derived not from the criminal acts of a third party, but from self-harm by a detained person, the Court found that a positive obligation arose where the authorities knew or ought to have known that the person posed a real and immediate risk of suicide. Where the Court found that the authorities knew or ought to have known of that risk it proceeded to analyse whether the authorities did all that could reasonably have been expected of them to prevent that risk from materialising (see Hiller, cited above, § 49, and Keenan v. the United Kingdom, no. 27229/95, § 93, ECHR 2001‑III). Thus, the Court assesses whether, looking at all the circumstances of a given case, the risk in question has been both real and immediate.", "111. The Court has already held in Osman that, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising (see Osman, cited above, § 116). 112. At the same time, the Court reiterates that the very essence of the Convention is respect for human dignity and human freedom.", "In this regard, the authorities must discharge their duties in a manner compatible with the rights and freedoms of the individual concerned and in such a way as to diminish the opportunities for self-harm, without infringing personal autonomy (see, mutatis mutandis, Mitić v. Serbia, no. 31963/08, § 47, 22 January 2013). The Court has acknowledged that excessively restrictive measures may give rise to issues under Articles 3, 5 and 8 of the Convention (see Hiller, cited above, § 55). 113. As regards mentally ill persons, the Court has considered them to be particularly vulnerable (see, Renolde, cited above, § 84).", "Where the authorities decide to place and keep in detention a person suffering from a mental illness, they should demonstrate special care in guaranteeing such conditions as correspond to the person’s special needs resulting from his or her disability. The same applies to persons who are placed involuntarily in psychiatric institutions (see Hiller, cited above, § 48, with further references). 114. The Court has also been confronted with complaints on behalf of relatives of voluntary psychiatric patients. In Reynolds v. the United Kingdom (no.", "2694/08, 13 March 2012), the applicant’s son had been admitted as a voluntary inpatient, and subsequently killed himself by jumping out of a sixth-floor window due to psychotic symptoms. In finding a violation of Article 13 in conjunction with Article 2, the Court concluded that the applicant had not had civil proceedings available to her to establish any liability and compensation as regards her own suffering and her son’s death (see § 67 of that judgment) and found that there was an arguable claim of a breach under Article 2 in the circumstances of a death following voluntary hospitalisation in a psychiatric institution. The Court in Reynolds did not explicitly find that the positive obligation to take preventive operational measures extended to voluntary psychiatric inpatients. However, it clearly did not exclude such a finding either. The Court is now called upon to decide that question in the present case.", "115. Concerning suicide risks in particular, the Court has previously had regard to a variety of factors where a person is detained by the authorities (mostly in police custody or detention), in order to establish whether the authorities knew or ought to have known that the life of a particular individual was subject to a real and immediate risk, triggering the duty to take appropriate preventive measures. These factors commonly include: i) a history of mental health problems (see Volk v. Slovenia, no. 62120/09, § 86, 13 December 2012; Mitić, cited above; and Younger v. the United Kingdom (dec.), no. 57420/00, ECHR 2003‑I; ii) the gravity of the mental condition (see De Donder and De Clippel v. Belgium no.", "8595/06, § 75, 6 December 2011, and Keenan, cited above); iii) previous attempts to commit suicide or self-harm (see Renolde, cited above, § 86; Ketreb v. France, no. 38447/09, § 78, 19 July 2012; and Çoşelav v. Turkey, no. 1413/07, § 57, 9 October 2012, and compare Hiller, cited above, § 52); iv) suicidal thoughts or threats (see, for example, Reynolds, cited above, § 10); v) signs of physical or mental distress (see De Donder and De Clippel, cited above, and compare Younger, cited above). (c) Application of those principles to the instant case (i) The positive obligation to put in place a regulatory framework 116. The Court firstly reiterates that its review of the domestic regulatory framework is not an abstract one, but rather one that assesses the manner in which it affected the applicant in the specific case (see paragraph 107 above).", "117. As regards the applicant’s complaint as to the lack of security fences and walls around the HSC, the Court, like the domestic courts, sees no reason to call into question the approach adopted by the HSC in this respect, which was in line with the Mental Health Act in place at the time (see paragraph 58 above). The latter indicated that mental-health care should be provided in the least restrictive environment possible. These general principles mirrored the therapeutic desire to create an open regime where the patient retained the right to move about freely. This approach is in line with the international standards which have been developed in recent years on treating psychiatric patients (see the International Law section above and see also Hiller, cited above, § 54).", "The Court further notes that the domestic legislation, the Mental Health Act of 24 July 1998 (see paragraph 58 above) provides for the possibility of involuntary hospitalisation where this may be justified by the specific needs of the patient. Irrespective of whether involuntary hospitalisation was required in order to avoid a real and immediate risk to A.J.’s life, the regulatory framework clearly provided the HSC with the necessary means of treatment to address A.J.’s possible medical and psychiatric needs. 118. While written guidelines in respect of restraint measures applicable to psychiatric patients were introduced only in 2011 (see paragraph 63 above), the Court does not see this as a deficiency which would in itself render the regulatory framework ineffective for the purpose of providing the necessary means for the protection of A.J.’s life. 119.", "In this respect, the Court draws a distinction between the quality of law requirements under Articles 3, 5 and 8 of the Convention where the negative aspect of the respective right is at stake and the duty to have a regulatory framework in place under Article 2 to protect a person from harm inflicted by third parties or by themselves. Quality of law under Article 5 § 1 implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness (see J.N. v. the United Kingdom, no. 37289/12, § 77, 19 May 2016 and the references therein). The purpose of the regulatory framework requirement under Article 2 being different, namely providing the necessary tools for the protection of a patient’s life, the lack of a written policy on the use of restraint measures is not determinative of its efficiency and does not in itself warrant a finding that Article 2 was breached.", "Moreover, it cannot be forgotten that A.J. was admitted as a voluntary inpatient and the applicant’s complaint does not relate to the particular period during which her son was under a restrictive regime. In consequence, the Court considers that there is no need to examine this issue further (see Radomilja and Others, cited above, § 126). 120. The Court is also unable to find any issue with the surveillance procedure in place for voluntary inpatients, which could justify a conclusion that alleged deficiencies resulted in A.J’s death.", "The procedure consisted of establishing a clear daytime schedule to be followed by each individual patient and verifying a patient’s presence at all meal and medication times, as well as general monitoring of patients by the staff on duty (see paragraphs 50‑51 above). A more restrictive surveillance procedure was also available, applied at the beginning of a patient’s stay and at other times when considered necessary by the treating doctor (see paragraph 54 above). When the more restrictive procedure was in place patients were not allowed to leave the pavilion and their movement was more strictly monitored by the nurses. Finally, in emergency situations, the HSC could have recourse to other forms of restraint, including the use of an isolation room. The existing surveillance procedure and the available restraint measures thus provided the HSC with the tools necessary for the treatment of A.J.", "121. The Court also accepts the domestic court’s finding that the surveillance procedure in place was intended to respect A.J.’s privacy and was in line with the principle of treating patients under the least restrictive regime possible. The Court itself has held that excessively restrictive measures with respect to psychiatric patients might give rise to issues under Articles 3, 5 and 8 of the Convention (see paragraph 112 above and Hiller cited above, § 55) and a more intrusive surveillance regime of A.J. could well have been challenged as being incompatible with those rights, particularly given his status as a voluntary inpatient. 122.", "As to the emergency procedure, it consisted of alerting the doctor on call, the police and the patient’s family (see paragraph 52 above). At some time between 7 p.m. and 8 p.m. the coordinating nurse reported the disappearance to the attending doctor, Dr. M.J.P., who was on call that day (but not at the HSC at that time) and contacted the National Republican Guard and the applicant. The Court accepts the domestic court’s finding that the emergency procedure in place was adequate and in any case finds no causal link between any alleged deficiencies in the emergency procedures and A.J.’s death. Accordingly, it finds that it was not deficient such as to raise an issue under Article 2.", "123. Finally, the Court notes that the applicant had recourse to a judicial system which was able to determine who was accountable for A.J.’s death. The applicant lodged a civil action with the Coimbra Administrative Court and appealed a decision against her to the Administrative Supreme Court (see paragraphs 29-46 above). While issues were raised regarding the length of those civil proceedings, which are considered by the Court under the procedural limb of Article 2 (see paragraphs 134-140 below), nothing in the case before the Court suggests a systemic deficiency in the functioning of the judicial system which denied the applicant an effective review of her civil claim. (ii) The positive obligation to take preventive operational measures 124.", "There is no doubt that as a person with severe mental health problems A.J. was in a vulnerable position. The Court considers that a psychiatric patient is particularly vulnerable even when treated on a voluntary basis. Due to the patient’s mental disorder, his or her capacity to take a rational decision to end his or her life may to some degree be impaired. Further, any hospitalisation of a psychiatric patient, whether involuntary or voluntary, inevitably involves a certain level of restraint as a result of the patient’s medical condition and the ensuing treatment by medical professionals.", "In the process of treatment, recourse to further kinds of restraint is often an option. Such restraint may take different forms, including limitation of personal liberty and privacy rights. Taking all of these factors into account, and given the nature and development of the case-law referred to in paragraphs 108-115 above, the Court considers that the authorities do have a general operational duty with respect to a voluntary psychiatric patient to take reasonable measures to protect him or her from a real and immediate risk of suicide. The specific measures required will depend on the particular circumstances of the case, and those specific circumstances will often differ depending on whether the patient is voluntarily or involuntarily hospitalised. Therefore, this duty, namely to take reasonable measures to prevent a person from self‑harm, exists with respect to both categories of patient.", "However, the Court considers that in the case of patients who are hospitalised following a judicial order, and therefore involuntarily, the Court, in its own assessment, may apply a stricter standard of scrutiny. 125. Accordingly, the Court must examine whether the authorities knew or ought to have known that A.J. posed a real and immediate risk of suicide and, if so, whether they did all that could reasonably have been expected of them to prevent that risk by putting into place the restrictive measures available (see Keenan, cited above, § 93). The Court will bear in mind the operational choices which must be made in terms of priorities and resources in providing public healthcare and certain other public services in the same way as it bears in mind the difficulties involved in policing modern societies (see paragraph 111 above).", "126. As outlined in paragraph 115 above, the Court has established a list of relevant criteria concerning the assessment of suicide risks. It will look at these factors in the specific circumstances of the present case in order to establish whether the authorities knew or ought to have known that the life of the applicant’s son was subject to both a real and an immediate risk, triggering the duty to take appropriate preventive measures. 127. Turning firstly to A.J.’s history of mental health problems, it is common ground that he had been hospitalised at the HSC, on a voluntary basis, on eight occasions between 1984 and 2000 (see paragraph 12 above).", "These stays generally followed crises or alcoholic intoxication, while only the last stay followed an attempted suicide. The domestic courts established that A.J. had suffered from several mental illnesses caused by a pathological addiction to alcohol and prescription drugs. It was also accepted that he sometimes suffered from depression. Following his death, the court‑appointed psychiatrist (see paragraph 33 above) considered it possible that A.J had also suffered from a borderline personality disorder.", "Secondly, as to the gravity of A.J’s mental health problems, it is clear, that A.J. had suffered from serious mental health problems over a long period (see Renolde, cited above, § 109). 128. As to suicidal thoughts or threats, the Court has no reason to reject the domestic court’s finding that during the last days of his life, A.J. had not demonstrated any behaviour or mood which could have led the hospital staff to suspect that on 27 April 2000 his behaviour would be any different from the preceding days (see paragraph 40 above).", "Five hearings were held during which the domestic court heard numerous witnesses and subjected the collected evidence to a comprehensive review. The Court accepts therefore that A.J. had not displayed signs of suicidal thoughts throughout his stay at the HSC from 2 April 2000 onwards (see Hiller, cited above, § 52). The applicant argued in the domestic proceedings that A.J. had attempted to commit suicide again on 25 April 2000 by an excessive consumption of alcohol.", "This assertion was rejected by the domestic courts, which found that his behaviour leading to his being taken to the emergency department of the Coimbra University Hospital on 26 April 2000 had been “reckless” but not suicidal (see paragraph 40 above). The domestic courts reached this conclusion on the basis of comprehensive, relevant and persuasive analysis of the evidence which it had considered carefully. The Court accepts the domestic court’s finding in respect of this episode, taking into account the fact that A.J. was a chronic alcoholic and that the drinking had occurred in the afternoon and mainly at a café. It accepts therefore the finding that A.J.", "attempted to commit suicide once - on 1 April 2000 - over three weeks before his death. 129. Lastly, turning to signs of physical or mental distress, the clinical records for 27 April 2000 note that A.J. was calm, had been walking around the building in which he was hospitalised, had eaten well during lunch and had been present for his afternoon snack (see paragraph 22 above). Again, the Court accepts the findings of the domestic courts that there were no worrying signs in A.J.’s behaviour in the days immediately preceding his suicide (see paragraph 40 above).", "130. The Court finds that the HSC were aware of A.J.’s long history of mental health problems and knew that, at times, he posed a risk to his own life. However, the Court also observes that while A.J. was vulnerable, he was in an environment which he had come to know well, interacting with staff whom he knew and who knew him. When the HSC considered that the risk he might pose to himself had diminished he was given the freedom to move around the HSC buildings and grounds and to return home for weekends to spend time with his family.", "There is no evidence to suggest that the family objected to A.J.’s weekends at home. When the risk was considered high, he was confined to the pavilion, in his pyjamas, and subject to a more restrictive regime. This had been the case after he was admitted to the HSC on 2 April 2000, when he spent the first week of his stay under the more restrictive regime (see paragraph 18 above) and on previous occasions in the past when he was hospitalised. However, the restrictive regime was always lifted when it was considered that A.J.’s symptoms were improving. This was in line with the HSC’s general philosophy of giving patients a considerable degree of freedom of movement in order to increase their responsibility and optimise their return to their family environment and society itself.", "The Court has no reason to question the assessment of his treating psychiatric doctor, Dr. A.A., accepted by the domestic courts, that A.J.’s treatment, which consisted of taking his prescribed medication, receiving the treatment voluntarily, and establishing a relationship of trust (see paragraph 35 above) was appropriate and proportionate in the circumstances. 131. The Court concludes, in line with the assessment of the psychiatrist appointed by the Medical Association (see paragraph 33 above) that while a risk of suicide could not be excluded in inpatients such as A.J., whose psychopathological conditions were based on a multiplicity of diagnoses, the immediacy of that risk may vary. In the present case, the HSC sought to adapt to the risk posed by A.J.’s changing mental state by increasing or decreasing the monitoring regime in place. This was a decision which was taken by the team responsible for him (see paragraph 35 above).", "The Court refers to the factors enumerated in paragraphs 127-129 above. In addition, it takes into account the fact that according to the expert evidence, complete prevention of suicide in patients such as A.J. was an impossible task (see paragraph 33 above) and that the Coimbra Administrative Court found that A.J.’s suicide was not foreseeable (see paragraph 40 above). Moreover, the Court approaches the question of risk with a view to assessing whether it is both real and immediate and notes that the positive obligation incumbent on the State must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. In the light of these elements, the Court concludes that it has not been established that the authorities knew or ought to have known that there was an immediate risk to A.J.’s life in the days preceding 27 April 2000.", "132. Accordingly, the Court does not need to assess the second part of the Osman/Keenan test, namely whether the authorities had taken measures which could reasonably have been expected of them. (d) Concluding remarks 133. As regards the positive obligation to put in place a regulatory framework, the Court concludes that the manner in which the regulatory framework was implemented did not give rise to a violation of Article 2 in the circumstances of the present case. Concerning the obligation to take preventive operational measures, the Court concludes that it has not been established that the authorities knew or ought to have known at the time of the existence of a risk which was both real and immediate to A.J.’s life.", "In conclusion, the Court finds that there has been no violation of the substantive aspect of Article 2 of the Convention in the circumstances of this case. B. The procedural aspect 1. The Chamber judgment 134. The Chamber held that there had been a violation of the procedural limb of Article 2 of the Convention.", "The Government acknowledged that the domestic proceedings had been lengthy but failed to provide any plausible reason justifying the length. The Chamber referred to several long periods of inactivity. In particular, according to the Chamber, it took two years for the Coimbra Administrative Court to request an expert opinion on A.J.’s clinical condition; the first hearing took place on 8 October 2008, two years after the submission of the expert report to the file; and it took almost three years after that for the court to deliver its judgment. 2. The parties’ submissions (a) The applicant 135.", "The applicant contended that the delay in the proceedings represented a clear violation of Article 2. The applicant brought her civil claim against the HSC on 17 March 2003. Between 12 December 2003 and 11 January 2005, the case was at a standstill awaiting a court decision on the applicant’s request to change certain parts of the preliminary decision (see paragraphs 31 and 32 above). Between 13 October 2005 and 16 June 2006 the case was delayed in order to obtain expert evidence (see paragraphs 32 and 33 above). The expert appointed had to wait over eight months for the court to send him the necessary elements for the establishment of his report.", "On 9 November 2007 the court set the hearing down for 8 October 2008. The procedural delay meant that the witnesses were questioned five years after the applicant brought the claim, and eight years after the facts took place. The applicant referred to further delays, namely, the time which elapsed between the proceedings being transferred to the Supreme Administrative Court on 11 October 2011 and the report of the Deputy Attorney General on 26 September 2012, as well as the delivery of the judgment by the Supreme Administrative Court on 29 May 2014. (b) The Government 136. The Government accepted that the length of the proceedings was excessive.", "However, it considered that this was indicative of a violation of Article 6 § 1 of the Convention and not of Article 2. 3. The Court’s assessment (a) General principles 137. The procedural obligation under Article 2 in the context of health care requires, inter alia, that the proceedings be completed within a reasonable time (see Lopes de Sousa Fernandes, cited above, § 218). Knowledge of the facts and of possible errors committed in the course of medical care are essential to enable the institutions concerned and medical staff to remedy the potential deficiencies and prevent similar errors.", "The prompt examination of such cases is therefore important for the safety of users of all health services (see Šilih v. Slovenia [GC], no. 71463/01, § 196, 9 April 2009). Particularly in those cases concerning proceedings instituted to elucidate the circumstances of an individual’s death in a hospital setting, length of proceedings is a strong indication that the proceedings were defective to the point of constituting a violation of the respondent State’s positive obligations under the Convention, unless the State has provided highly convincing and plausible reasons to justify the length (see, for example, Lopes de Sousa Fernandes, cited above, § 219 and Bilbija and Blažević v. Croatia, no. 62870/13, § 107, 12 January 2016). (b) Application of those principles to the instant case 138.", "The domestic proceedings lasted eleven years, two months and fifteen days for two levels of jurisdiction. The Court notes that the Government have conceded that the proceedings were excessively long and that a reasonable timeframe was not respected, even taking into account the alleged complexity of the proceedings and the rescheduling requested. 139. The Government have not provided any convincing and plausible reasons justifying the length of the domestic proceedings. In the present case witnesses were heard between eight and nine years after A.J.’s death and between six and seven years after the applicant had initiated the proceedings (see paragraph 35 above).", "The passage of time was capable of influencing the extent to which the witnesses could remember crucial facts relevant to the moments prior to A.J.’s death. Moreover, as the Court has recognised, promptness was important so that if deficiencies or errors were established they could be remedied for the future (see Lopes de Sousa Fernandes, cited above, § 218). 140. The Court concludes that there has been a violation of the procedural limb of Article 2 of the Convention. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 141. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 142. In the proceedings before the Chamber, the applicant claimed 703.80 euros (EUR) in respect of pecuniary damage, representing the expenses incurred for the funeral service. She also claimed EUR 40,000 corresponding to the loss of income sustained in respect of a monthly payment of EUR 200 that her son used to pay her.", "She further claimed EUR 40,000 in respect of non-pecuniary damage (EUR 30,000 in respect of the substantive violation of Article 2 and EUR 10,000 in respect of the procedural violation of Article 2). 143. The Chamber awarded the applicant in full the amount claimed in respect of the funeral service. However, as to the alleged loss of financial support, the Chamber did not discern any causal link between the violation found and the pecuniary damage alleged. As to the claim for non‑pecuniary damage, the Chamber found it reasonable to award the applicant EUR 25,000 in respect of the anguish and distress suffered as a result of the circumstances of her son’s death and her inability to obtain a domestic decision in a reasonable time.", "144. Before the Grand Chamber, the applicant repeated the requests made before the Chamber in respect of pecuniary and non‑pecuniary damage. 145. As regards pecuniary damage, the Court observes that the State was not found liable for the death of her son. Accordingly, as no causal link has been found between the actions of the HSC and A.J’s death, no award is made in for her claim in respect of pecuniary damage.", "146. Concerning non-pecuniary damage, it considers that the applicant must have experienced distress and frustration on account of the protracted nature of the domestic proceedings which she had brought to establish the cause of her son’s death. The Court awards her EUR 10,000 under this head. B. Costs and expenses 147.", "Before the Chamber, as before the Grand Chamber, the applicant claimed EUR 409 for the costs and expenses incurred before the domestic courts, representing the legal fees she had paid. She submitted the relevant invoice in support of her claim. The Chamber awarded in full the sum claimed under this head, plus any tax that may be chargeable to the applicant. 148. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Sargsyan v. Azerbaijan (just satisfaction) [GC], no.", "40167/06, § 61, 12 December 2017). In the present case, regard being had to the documents in its possession and the above criteria, the Court awards in full the sum claimed under this head, plus any tax that may be chargeable to the applicant. The applicant, who was granted legal aid for the proceedings before the Grand Chamber, submitted no claim for costs and expenses in relation to the proceedings before this Court. C. Default interest 149. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT 1. Holds, by 15 votes to 2, that there has been no violation of the substantive limb of Article 2 of the Convention; 2. Holds, unanimously, that there has been a violation of the procedural limb of Article 2 of the Convention; 3. Holds, unanimously, (a) that the respondent State is to pay the applicant, within three months, the following amounts: (i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 409 (four hundred and nine euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses, by fifteen votes to two, 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 31 January 2019. Françoise Elens-PassosGuido RaimondiDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Pinto de Albuquerque joined by Judge Harutyunyan is annexed to this judgment. G.R. F.E.P. PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE JOINED BY JUDGE HARUTYUNYAN 1.", "I voted for a violation of both the substantive and the procedural limbs of Article 2 of the European Convention on Human Rights (“the Convention”). Whilst I can generally follow the majority’s findings on the latter issue, I cannot share their views on the former issue, for factual and legal reasons. Regarding the facts, I will demonstrate that the majority’s opinion is built on the assumption of facts that simply did not occur and, even worse, of a legal framework with a “general philosophy”[1] on the protection of the right to life of psychiatric inpatients that was patently inexistent. To put it simply, the majority’s opinion was written for a country other than Portugal at the time of the events. The present judgment is the result of a creative exercise of judicial adjudication for an imagined country.", "2. Regarding the law, I will show that the majority’s opinion pursues the Lopes de Sousa Fernandes[2] ideologically charged minimalist approach to the State’s positive obligations in the sphere of health care to its limits, this time regarding the particularly vulnerable category of psychiatric inpatients under State control. The effect is that of downgrading the level of Convention protection to an inadmissible level of State inertia. The obligation to put in place a regulatory framework 3. The State’s positive obligation in the sphere of health care requires it to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients’ lives.", "[3] According to Lopes de Sousa Fernandes v. Portugal,[4] the State’s obligation under Article 2 of the Convention in the context of health care includes a duty to create a regulatory framework to protect the patient. The majority follow this line of case-law. [5] Even assuming the existence of such a Convention obligation in the narrow terms that it was formulated in the judgment,[6] I find that the respondent State did not comply with it, for the following reasons. 4. Article XVII of Law no.", "2006 of 11 April 1945 regulated the State obligation to protect the life of mentally ill patients in voluntary internment in public hospitals, providing for an open and a closed regime. This regulation was maintained by Article XXII of Law no. 2118 of 3 April 1963 and, after the revolution of 1974, Decree no. 127/92 of 3 July 1992 still referred to those regimes. The current Law – no.", "36/98 of 24 July 1998 – repealed them, but they have remained in practice, without any legal basis. 5. With regard to the regulatory framework in Portugal and in particular the Hospital Sobral Cid (“the HSC”) at the time of the facts, it is useful to cite the following passages from the report of the Committee for the Prevention of Torture (“the CPT”): “108. ... Patients could also be temporarily secluded (i.e.", "confined alone in a room). Seclusion, which never lasted for long periods, took place in the patient’s own room or, if he shared a dormitory, in one of the individual bedrooms. 109. ... the CPT considers that every instance of the physical restraint of a patient should be recorded in a specific register established for this purpose. The entry should include the times at which the measure began and ended, the circumstances of the case, the reasons for resorting to the measure, the name of the doctor who ordered or approved it, and an account of any injuries sustained by patients or staff.” (my italics)[7] 6.", "In 2003 and 2008 the CPT insisted, in general terms, on the need for a “detailed” and “written” policy on the isolation of psychiatric patients, for “all psychiatric hospitals”, including “private psychiatric hospitals”: “119. L’isolement des patients psychiatriques doit faire l’objet d’une politique détaillée ... Le CPT recommande aux autorités portugaises d’élaborer une telle politique.”[8] ... “130. The CPT recommends that the Portuguese authorities take the necessary steps to ensure that all psychiatric hospitals have their own written policy on the use of means of restraint or implement the above-mentioned Protocol. This recommendation applies equally to private psychiatric hospitals.” (my italics)[9] 7.", "Only in 2007 did the Ministry of Health introduce a protocol on the use of means of “mechanical restraint” in all Portuguese hospitals, including psychiatric hospitals (Circular No. 08/DSPSM/DSPCS), which was repealed and replaced in 2011 by new, broader guidelines of the Directorate General of Health no. 21/2011, of 6 June 2011, on the use of means of restraint of patients, which cover “seclusion and mechanical and chemical restraint” (Orientação da Direção-Geral da Saúde no. 21/2011, de 6/06/2011 Prevenção de comportamentos dos doentes que põem causa a sua segurança ou da sua envolvente - Contenção de Doentes). The guidelines refer to five types of restraint: therapeutic (control of the patient’s physical activity or behaviour or of part of his or her body), environmental (control of the patient’s freedom of movement, for instance in a restricted space, like an isolation room (sala de confinamento) where the patient can move around safely under clinical supervision), physical (seizing, removing or blocking a patient in order to avoid a situation of risk), mechanical (use of instruments that restrict movement) and chemical (medication that inhibits the patient’s movements).", "According to point 9 of the guidelines, each hospital should prepare internal guidelines implementing the national guidelines in accordance with the specific health care provided by each hospital. The reasons for the guidelines were expressed as follows: “There is evidence that restraint is one of the most commonly used practices at an international level for the care of patients with behaviours involving a risk for themselves or for those around them. From the various studies carried out on this subject, the need to prevent incidents and adverse events associated with restraint measures stands out. Simultaneously, the benefits for the promotion of safety that may result from training in a professional context and recourse to these measures are documented.” 8. In a 2012 visit to Portugal, the CPT reacted to the new framework as follows: “107.", "In its reports on the 2003 and 2008 visits, the CPT recommended that a policy for the use of means of restraint be adopted. The adoption of guidelines in June 2011 by the Ministry of Health on the use of means of restraint[10] is a step forward. They cover seclusion, mechanical and chemical restraint, and replace an earlier protocol of 2007 on mechanical restraint. [11] However, it is regrettable that the guidelines do not explicitly address many important aspects, such as: the types of cases in which means of restraint may be used; the requirement that any application of means of restraint must always be either expressly ordered by a doctor or immediately brought to the attention of a doctor with a view to seeking his approval; the duration of restraint and the need for frequent review, appropriate human contact and increased supervision by staff; the establishment of a specific register for the use of means of restraint (in addition to recording the measure in the patient’s file or nurses journal). The 2011 guidelines were yet to be implemented in the forensic psychiatric hospitals visited and they did not in any event apply to the Psychiatric Hospital of Santa Cruz do Bispo Prison, which was under the authority of the Ministry of Justice.", "The CPT recommends that the Portuguese authorities take the necessary steps to ensure that all forensic psychiatric hospitals - including those under the Ministry of Justice ‑ establish a written policy on the use of means of restraint, in line with the Committee’s earlier recommendations on this subject.”[12] 9. As a matter of fact, the guidelines adopted in June 2011 by the Ministry of Health on the use of means of restraint were not applied systematically in the country[13]. Worse still, even in the case of persons in voluntary internment, inpatients were not heard about the application of such regimes[14]. Medical staff did as they pleased when they pleased. On the use of means of restraint and the use of pyjamas, the CPT could not be clearer, insisting notably on the need for a centralised register for “all forms” of use of restraint “in every psychiatric establishment”: “111 ...", "The CPT reiterates its recommendation that every resort to restraint, including chemical restraint, must always be expressly ordered by a doctor or immediately brought to the attention of a doctor. The prescription of “SOS medication” can never justify such medication being used as a chemical restraint. 112. Another restriction of freedom of movement applied to patients in both forensic departments was a surveillance measure, known as the “pyjama” regime. Patients under that regime had to remain dressed in pyjamas during the entire day and were not allowed access to the courtyard.", "The “pyjama” regime was applied at Lisbon Central and Sobral Sid Hospitals during the first two weeks following the patient’s admission to the institution. It could also be applied at Sobral Sid Hospital to patients who had shown aggressive behaviour or violated certain house rules (i.e. smoking indoors) for periods of one or more days; in these cases, the decision of the application of the special surveillance regime was taken on an ad hoc basis by the staff on duty and was not surrounded by clear procedures and safeguards. In the CPT’s view, the systematic use of pyjamas as a means of surveillance of newly arrived patients is highly questionable. Other supervision methods for newly arrived patients should be applied without restricting their freedom of movement.", "The Committee recommends that the necessary steps be taken to put an end to the practice of newly arrived patients at Lisbon Central and Sobral Sid Hospitals having to wear pyjamas. 113. As regards registers, it is noteworthy that a centralised electronic register of the use of mechanical restraint had been introduced at Lisbon Central Psychiatric Hospital. However, it only included statistical information on the frequency of restraint measures in the different wards and no specific details on, for example, the duration or type of measure applied. At Sobral Sid Hospital, there was no specific register for recording cases of resort to means of restraint.", "In both hospitals visited, references to the use of mechanical restraint were made in the nurses’ journal and occasionally in the patient’s file; however, these references were often cursory and there was no mention of the time of beginning and ending the measure. The CPT has raised this matter on several occasions[15]; it is regrettable that the 2011 guidelines by the Ministry of Health on the use of means of restraint (see paragraph 107 above) do not provide for a centralised register for all forms of use of restraint - including seclusion, mechanical and chemical restraint - in every psychiatric establishment. The CPT calls upon the Portuguese authorities to take the necessary steps to ensure that every instance of restraint of a patient is recorded in a specific register in every psychiatric establishment. The entry in this register should include the times at which the measure began and ended, the circumstances of the case, the reasons for resorting to such a measure, the type of measure, the name of the doctor who ordered or approved it, and an account of any injuries sustained by patients or staff. [16] 123.", "... The CPT must recall once again its position that the admission of a person to a psychiatric establishment on an involuntary basis, whether the person concerned be a civil or a “forensic” patient, should not be construed as authorising treatment without his/her consent. Every competent patient, whether voluntary or involuntary, should be fully informed about the treatment which it is intended to prescribe and be given the opportunity to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances. The Committee calls upon the Portuguese authorities to take the necessary steps to review the relevant legislation in the light of these remarks.”[17] (my italics) 10.", "It is highly significant that the CPT set standards that should be used in “every” psychiatric establishment with “every competent patient, whether voluntary or involuntary”, such as “Every competent patient, whether voluntary or involuntary, should be fully informed about the treatment which it is intended to prescribe and be given the opportunity to refuse treatment or any other medical intervention” or calling upon the Portuguese authorities to ensure that “every instance of restraint of a patient is recorded in a specific register in every psychiatric establishment” or stating that “every resort to restraint, including chemical restraint, must always be expressly ordered by a doctor or immediately brought to the attention of a doctor”. Likewise, it reproaches shortcomings in the psychiatric internment of both voluntary and involuntary patients, such as the decision to apply a special surveillance regime “on an ad hoc basis by the staff on duty” and “not surrounded by clear procedures and safeguards”, the systematic use of pyjamas as a means of surveillance of newly arrived patients and the lack of a centralised register for all forms of use of restraint – including seclusion, mechanical and chemical restraint – in every psychiatric establishment. 11. Hence, it is certainly not correct to limit the scope of the CPT’s standards to patients in compulsory treatment ordered by a criminal court[18]. All of the above-mentioned information was ignored by the majority in their assessment of the substantive aspect of the present case, as was the fact that the first national mental health programme (2007-2016) was approved by the Council of Ministers resolution 48/2008 of 24 January 2008.", "In a 55‑page document, there are nine references to suicide and a very vague provision for the future creation of suicide prevention programmes. It provides for three psychiatric hospitals for the entire country: Magalhães de Lemos (Porto), Sobral Cid (Coimbra) and Júlio de Matos (Lisbon) and 39 psychiatric departments in general hospitals. Decree no. 1490/2017 provided for an evaluation of the implementation of the plan with a view to establishing its follow-up until 2020. That evaluation assessed the situation as follows: “Assessment of the national plan on mental health 2007-2016 (Avaliação do Plano Nacional de Saúde Mental 2007-2016): “absence of efficient coordination of elements of the mental health care system, with persistent asymmetries in the concentration of human resources in the central hospitals; ... reduced autonomy of local and regional decision making centres; ... weak implementation of the network of continued and integrated mental health care; inexistence of incentives to put in place community interventions.”[19] 12.", "The first national programme for the prevention of suicide (2013‑2017) follows the WHO Public Health Action for the Prevention of Suicide (2012)[20]. For the first time, a national strategy to counter suicide was designed with specific recommendations for groups and individuals at risk, including people with mental disabilities, monitoring instructions and implementation evaluation directives. 13. In other words, in 2000 Portugal was in the pre-historic stages of suicide prevention of psychiatric inpatients. There was no legislation or regulation on what types of regimes could be applied, under what circumstances, by whom and until when.", "The regulatory protocol on measures to protect patients applicable in all psychiatric facilities dates from 2011 and has not been regulated at the level of each hospital, as was supposed to happen. That protocol is manifestly insufficient with regard to the international standards set by the CPT. Thus, there was and still is no clear legal framework regarding the State obligation to protect the life of mentally ill patients in voluntary internment in public hospitals like the HSC. To put it simply, in 2000 the HSC was in a legal black hole. 14.", "Having ignored the facts on the ground, the majority excuse the respondent State with two arguments: they claim that the approach adopted by the HSC regarding the lack of fences and walls was in line with the Mental Health Act in place at the time, which allegedly mirrored international standards. This is simply not correct. As demonstrated above, the international standards set by the competent body, the CPT, were not duly complied with until 2011, and even then only partly. Thus, it is only possible to affirm that “the regulatory framework clearly provided the HSC with the necessary means of treatment to address A.J.’s possible medical and psychiatric needs”[21] if one seriously misreads the CPT’s reiterated message to Portugal. Furthermore, the argument that the Mental Health Act provided for the possibility of involuntary hospitalisation and therefore for A.J.’s possible medical and psychiatric needs misses the point made by the applicant.", "The applicant never argued that her son should have been locked up. Rather, she claimed that her son did not need a form of strict surveillance, but a specific personal care regime accompanied by measures of restraint that would provide a sufficient guarantee of his medical as well as his safety needs. [22] 15. On the crucial issue of the inexistent guidelines on the use of restraint measures applicable to voluntary psychiatric patients in 2000, which was discreetly downplayed by the Government until the specific question came to the fore at the Grand Chamber hearing, the response of the majority is astonishing: they do not see it as a “deficiency” that would lead to a violation of Article 2, because this shortcoming is, in their view, only relevant for the purposes of the assessment of the quality of the law under Article 5 of the Convention. According to this view, the lack of a written policy on the use of restraint measures could lead to a violation of Article 5, but did not warrant a conclusion of a violation of Article 2, even when the lack of precise and foreseeable regulation of the use of restraint measures puts at risk the life of psychiatric inpatients under State supervision.", "This argument leads to the illogical conclusion that the more important (Article 2) right merits less protection than the less important (Article 5) one. 16. But the most amazing part of the judgment is yet to come. In paragraph 120 the so-called “existing surveillance procedure” is in fact a creation ab ovo of the majority. There were no rules regulating such a “surveillance procedure”; indeed no such “surveillance procedure” existed, let alone a “more restrictive procedure” or a procedure for “emergency situations”, simply because every decision taken by the medical and nurse staff was on an ad hoc basis, as the CPT confirmed on the ground as recently as 2012.", "[23] Paragraph 120 of the judgment is, as much as its source in the facts part (paragraph 54), an inventive description of a virtual reality. Similarly, it is overstretched to claim, as the majority do in paragraph 49 of the judgment, that the user’s guide “set out the rules governing their hospitalisation”. In reality, the document only contains “useful information for you to feel good in this Hospital” (informações úteis para que se sinta bem neste Hospital), namely a collection of practical information for users, with no normative character. [24] The majority are of course entitled to their own opinion on the facts, but they are not entitled to their “own facts”. 17.", "It is true that, in the file, the medical staff and the Government referred to an “open regime” and a “closed regime”, but nowhere in the law or administrative regulations was the State obligation to apply one of these regimes set out. The best evidence of this chaotic state of affairs is the contradictory way the Government themselves refer to the “closed regime” (regime fechado). Initially, they argued that the closed regime could have been applied to A.J., but had not been applied because it was not “adequate”[25]. Later on, the Government argued that the closed regime could only be applied to patients in involuntary internment[26], but they also admitted that A.J., who was a voluntary inpatient, had been “confined to the respective pavilion, dressed with pyjamas and robe” (confinado ao respetivo pavilhao, permanecendo vestido com pajama e roupao) in April 2000 and that only in the second and third weeks of April had he been allowed to leave the pavilion[27]. 18.", "The a priori intention of the majority is clear, and was set in stone in paragraph 122 of the judgment: acting as a first-instance court, the majority find that there is no causal link between “any alleged deficiencies in the emergency procedures and A.J.’s death”, even before approaching the question of the in concreto assessment of the existence of a “real and immediate”[28] risk to the life of the applicant’s son and the need for adequate preventive operational measures to be taken. The judgment could have ended there. But the majority imposed on the applicant the pain of having to go through the second part of the substantive aspect of “The Law” part of the judgment (paragraphs 124-32) where she has to read that her son’s first frustrated suicide attempt and his severe alcoholic intoxication crisis on the eve of the second – and successful – suicide attempt were not serious enough to deserve the full attention of the Portuguese State and therefore the majority could wash their hands of this case. The obligation to take preventive operational measures 19. The majority propose to follow the Osman test[29] for the assessment of the positive obligation to take preventive operational measures.", "According to the Osman criteria, the extreme vulnerability of the victim must be taken into consideration. [30] The test was first applied in a suicide case in Keenan v. the United Kingdom. [31] In a later case the Court found a violation of Article 13 in conjunction with Article 2 in a case of lack of civil proceedings to establish liability and compensation when there was an arguable claim of a breach of that Article owing to the suicide of a voluntary inpatient in a psychiatric institution. [32] The present case is the first one where the Court has established the State’s positive obligation under Article 2 to take operational measures in respect of voluntary psychiatric inpatients at risk of committing suicide. 20.", "The majority not only affirm that positive obligation, but qualify it in the case of involuntary hospitalisation, in the sense that the Court “may apply a stricter standard of scrutiny” of the duty to take reasonable measures to prevent a person from committing suicide. [33] Conversely, this of course means that the Court will take a hands-off approach regarding the scrutiny of voluntary psychiatric inpatients at risk. I fail to see the reason for this differentiation of treatment and the majority do not even make the effort to provide one. This justification should have been provided by the Grand Chamber, if only because it contradicts the unanimous Chamber decision. The Chamber had proffered the opposite view, namely that voluntary and non-voluntary inpatients should be treated equally, because: “regardless of whether the hospitalisation was of a voluntary or an involuntary nature, and in so far as a voluntary in-patient is under the care and supervision of the hospital, the State’s obligations should be the same.", "To say otherwise would be tantamount to depriving voluntary in-patients of the protection of Article 2 of the Convention”. [34] 21. The argument that there is an emerging trend to treat persons with mental disorders under an “open door” regime is not decisive[35]. First, it only shows one side of the coin, because there is also a counter-trend to increase State obligations with regard to suicide prevention, which is totally neglected by the majority, as I will demonstrate below[36]. The core of the problem today lies precisely in the inter-relationship between these two different trends of international health law and practice, which the majority do not even seek to consider.", "Moreover, as put by Judge Iulia Antoanella Motoc, dissenting in Hiller, “the duty to protect the right to life should not be sacrificed in an attempt to comply with the above-mentioned recent trend in healthcare”[37]. The right to life prevails over the right to liberty, especially when the psychopathological condition of the individual limits his or her capacity for self-determination. It is nothing but pure hypocrisy to argue that the State should leave vulnerable suicidal inpatients in State-run psychiatric hospitals free to put an end to their lives merely in order to respect their right to freedom. At the end of the day, what really drives the majority is not the concern for more or less freedom of psychiatric inpatients interned in public hospitals, but the strict financial interest in safeguarding the hospital authorities from legal challenges to “excessively restrictive measures”[38], while “bearing in mind the operational choices which must be made in terms of priorities and resources in providing public healthcare and certain other public services”. [39] Ultimately, this reflects a hidden social-welfare disengagement policy, which aims at the maximum commodification of health-care services and above all at the protection of health professionals in an untouchable legal bubble, shirking State responsibility for health-system and hospital-related death or serious injury under the Convention and consequently limiting the Court’s jurisdiction in this area.", "In other words, the present judgment signs up to the exact same ideological agenda as Lopes de Sousa Fernandes. [40] 22. As acknowledged by the majority themselves, A.J. was an especially vulnerable person. [41] Several factors indicating his extreme vulnerability evidently aggravated the imminence and foreseeability of the suicide, such as, first and foremost, the fact that A.J.", "had attempted suicide recently. On 1 September 1999 there was already a note in his “medical file”[42] indicating “probability of attempt to his physical and psychological integrity due to deprivation of alcohol”. As the Deputy Attorney-General before the Supreme Court wrote in his opinion, “A.J.’s medical report, alone, already had references to suicide attempts, one of which had occurred twenty‑five days earlier. Thus it was possible to predict a repetition of those.”[43] On 1 April 2000 he attempted to commit suicide. [44] This is the note recorded in his medical file on that day after the attempted suicide: he “feels that life has no value, feels marginalized and powerless to realise a life project, hence prefers to die, which he attempted to concretise”.", "[45] He clearly “preferred to die”, because he felt “marginalized and powerless” (marginalisado e sem poder). As a matter of fact, A.J. had expressed several times a sense of profound hopelessness, especially after losing the possibility of getting a job as a heavy vehicle driver, which led to the attempted suicide. [46] In Renolde v. France the gap between the two suicide attempts – the failed and the successful one – was of eighteen days[47]. In the case of A.J.", "that gap was of twenty-six days, with an episode of serious self-harm in between, two days before the suicide. In view of the rationale in Renolde that the risk was real and that a positive obligation to take preventive operational measures should be imposed regardless of the fact that his “condition and the immediacy of the risk of a fresh suicide attempt varied”[48], I ask myself why this was not the case for A.J.’s risk. 23. Secondly, A.J. was a schizophrenic and suffered from “major depression”.", "[49] This was established by the domestic courts. The first time that such a diagnosis of schizophrenia was formulated was as early as 6 September 1999, well before the first suicide attempt. [50] In De Donder and De Clippel v. Belgium, [51] the Court considered paranoid schizophrenia as involving a high and foreseeable risk of suicide. In that case, the Court found a violation of Article 2 even without a previous attempt to commit suicide, because it considered that “Certes l’immediateté d’un tel risque était difficile à percevoir, mais ce critére ... ne saurait entrer peremptoirement en jeu en matiere de suicide”. [52] Again, I fail to understand the reason why immediacy of the risk was not the decisive criterion in the Belgian case, but was strictly observed in the present Portuguese case[53], in which the patient accumulated both high-risk factors of the Renolde and De Donder cases.", "The above would suffice to raise the legitimate question whether the Court discriminates between first and second-class patients, since there is no justification for this difference of treatment between A.J. and the Belgian and French patients. The question is evidently not rhetorical, and is even more pressing in view of the following arguments that show that a wrong was done to A.J. that was never righted. 24.", "Thirdly, the domestic courts concluded that the suicide was not foreseeable because A.J. had never been properly diagnosed. In other words, the lack of timely and adequate diagnosis by the State serves as an excuse for the State not to foresee the risk of suicide. This is a typical Catch‑22 situation, where the State uses its own faulty omission to excuse itself for the resulting harm. The startling justification given by his psychiatrist (Dr A.A.) was that he was not A.J.’s doctor long enough to make a more precise diagnosis of A.J.’s mental condition[54], in spite of the fact that he became his psychiatrist in December 1999, four months before the suicide.", "The most disheartening thing is that the State did perform such a diagnosis, but only after A.J. was dead. [55] A.J. was diagnosed with a borderline personality disorder only after he committed suicide! [56] This was, in the words of the court-appointed medical expert, “an individual prone to conflict and easily irritable ... aggressive towards his family (mother and sister), losing his temper for no reason and without being under the influence of alcohol ...", "This aggressiveness is sometimes turned against himself – his clinical file refers to recurring suicide attempts ...”. [57] 25. Fourthly, A.J. had a long history of drug and alcohol abuse. He committed suicide on 27 April 2000.", "On 25 April 2000, two days before his suicide, he had a typical “deliberate self-harm episode” of alcohol abuse. [58] Subsequently, no medical doctor assessed the consequences of that incident in terms of the need for increased monitoring of A.J. He was left to linger in his despair, abandoned to his “aggressiveness”, which was “sometimes turned against himself” to use the words of the court-appointed expert. 26. Fifthly, A.J.", "was a young man and, according to the WHO, “Suicide is the second most common cause of death among young people worldwide. ... Moreover, young people and the elderly are among the most susceptible age groups to suicidal ideation and self-harm.”[59] 27. Last, but certainly not least, A.J. was a patient already classified with a risk assessment of “GD 3” (Grau de Dependência 3), meaning “dependency degree three”, by the HSC itself[60].", "Dependency degree three “corresponds to the patient who needs intensive or total assistance in acute phase and/or in situation of urgency”. [61] Dependency degree 1 “corresponds to the self-sufficient patient”. Dependency degree 2 “corresponds to the patient who needs partial assistance”. The medical file from 25 April 2000 to the time of the suicide does not mention the dependency degree of the patient. This means that no risk assessment was made by the HSC for at least two days before his suicide[62].", "Measures put in place to prevent suicide of voluntary psychiatric inpatients 28. In view of the above, A.J. was at a foreseeable and imminent risk of suicide and the HSC and the other hospital authorities knew about that risk. But even if that were not the case, there are nevertheless certain basic precautions which it is expected will be taken. The majority do not go into this question, but the case-law does impose such a burden on the State in order to minimise any potential risk of self-harm and suicide attempts, even when it is not established that they knew or ought to have known about any such risk.", "[63] Although the majority do not find it necessary to pursue this line of reasoning,[64] I feel that I have the ethical obligation to do so, for the sake of both the consistency of the case-law and the exhaustiveness of the legal analysis of the case. The question to be answered now is whether the operational measures put in place were sufficient, and the response is unhesitatingly no, absolutely not, for the following seven reasons. 29. First, there was, and still is, no adequate regulatory framework regarding the State obligation of protecting the life of mentally ill patients in voluntary treatment in public hospitals in Portugal. There are no legal limits imposed on doctors regarding whether or not a psychiatric patient should be placed in an open or closed regime or in an isolation room.", "The added value of this case should have been precisely to induce the Government to close this gap and provide doctors with a lawful basis for their activity. 30. Second, there were, and still are, no adequate administrative means of enhanced surveillance of inpatients with a suicide risk. The modalities of this surveillance are to be decided according to the margin of appreciation of the State, but in doing so the State should take into consideration, among other matters, the international standards of the World Health Organization (WHO). According to WHO standards, enhanced vigilance is required for patients with a suicide risk, which can be performed for example by means of video surveillance or voluntary tagging of the person or any other IT means.", "[65] IT surveillance helps to detect and deter poor care and monitor care standards. It creates a welcoming environment where people can be confident they will receive decent care. IT surveillance can be applied only to the common parts of the facilities and, if necessary, to bedrooms and service users’ private premises. The latter approach requires consent from the service user. Hospitals use visible as well as covert surveillance equipment.", "Proper health patient monitoring allows for a snappy reaction to a crisis which will decide a patient’s odds of survival. [66] Hence, WHO standards do not require the building of walls and certainly not a prison-like regime for people in A.J.’s circumstances. [67] 31. In the particular case of Hospital Sobral Cid, internees enter and leave without any control. The same happens with outsiders, who can cross the perimeter of the hospital and even enter the pavilions whenever they please.", "In 2000 there was one guard alone for the entire building, posted at the entrance for cars. There was no permanent psychologist and no permanent emergency service in place. When an emergency situation occurred, the medical doctor on call was contacted and would decide on the telephone whether the patient should be transported to the central hospital of Coimbra. Over the years several serious, and even fatal, incidents have been caused by inpatients who managed to leave the HSC premises. [68] 32.", "A.J. was placed in pavilion 8, which had an isolation room. Pavilion 8 accommodated people in both voluntary and involuntary internment. [69] A.J. was placed in an open regime on 25 April 2000 after the incident of drinking abuse, as evidenced by the note that he “walked around the pavilion”.", "[70] 33. Third, no doctor assessed the seriousness of the incident of alcohol abuse on 25 April, in spite of the fact that A.J. was in a state of “unbalance, some reactivity to the internment, lack of functional coordination and restlessness”. [71] The justification given for this omission by Doctor E.R. was that he “assumed that A.J.", "was fine since the nurses did not request an assessment of the patient after the incident of 25/26 April”. [72] Amazingly, the doctor on call did not care to see a suicidal patient who had just had a serious drinking episode because he was not requested to do so by the nurses, as if the nurses were supposed to assume the responsibility that belonged to him. 34. No doctor assessed the need for a restrictive regime from 25 April to the time of the suicide, although A.J. had already been placed in the “closed regime” several times and even in the isolation room (for example, on 12 December 1999 he was “placed in the isolation room”, because he was “restless, with difficulty to calm down”; on 15 December 1999 he was ordered “not to the leave the pavilion”; on 16 December 1999 he was ordered “not to leave the service”; on 22 December 1999 he was still complaining that he wanted to leave the pavilion).", "[73] Only on 13 April was he seen by his doctor and “had a change of the therapy”, but there is no mention of what the new therapy was. [74] 35. Fourth, on the date of his suicide and the day before, there was a gap of sixteen hours without any supervision, since the medical file contains no notes from 4 p.m. on 26 April to 8 a.m. on 27 April. Moreover, the final notes in A.J.’s medical file, referring to him as being “calm and cooperative in the beginning of the shift” (27 April, 2-7 p.m. shift) were added by the same person at 8 p.m. when it was already known that he had committed suicide! [75] 36.", "Worse still, there was a gap of more than twenty-four hours in any medication before A.J.’s suicide, since the last medication taken by him was during the shift of 12-8 a.m. on 26 April (more precisely at 12.39 a.m., when he was seen at the General Hospital of Coimbra and at 2 a.m., when he was admitted to the HSC). This means that no medication was administered between 2 a.m. on 26 April and the time of his suicide on 27 April at 5.37 p.m. The post-mortem toxicological exams carried out on A.J.’s body showed that he had not been under medication at that time. The expert report itself noted the following: “there is no detailed reference, in the medical file, to the psychopathological state that the patient presented on 26 April 2000” and “we cannot answer in a more detailed way as we were not given access to documentation describing the circumstances of the suicide”. [76] It is also important to note that the attempted suicide on 1 April 2000 was committed with excessive consumption of pills and alcohol.", "The drinking abuse incident on 25 April followed the same pattern of alcohol abuse, but this time without pills. In spite of all this, A.J. was left alone and abandoned to his own serious mental illness. In this context, it is relevant to point out that, in Renolde v. France, the failure to ensure that Mr Renolde was taking his daily medication was one of the factors supporting a finding of a violation of Article 2. Why was the same criterion not applied to the Portuguese patient?", "37. Fifth, the Government referred to a “medical plan established for each patient”. [77] There is no evidence whatsoever in the Court’s file of such a “medical plan”. The majority do not go so far as to side with the Government on this point too. Nor do they share the respondent Government’s view that the applicant should have asked for the involuntary internment of her son if she were so convinced that he was in danger.", "To put the blame on the applicant is an inadmissible argument that adds infamy to injury. 38. Sixth, comparing this situation at the HSC with other psychiatric facilities, it is important to note that other similar facilities in Portugal have installed either fencing or IT surveillance systems. [78] It is also possible to find psychiatric facilities with proper individual medical plans. [79] 39.", "Seventh, and finally, the Government’s argument that the Chamber judgment has presented them with the legal dilemma of having contradictory international obligations deriving from Article 2 of the ECHR (to put fences around hospitals or restrict the freedom of the patients) and Article 14 of the UN Convention on the Rights of People with Disabilities (“the CRPD”) (neither to put up fences nor restrict the freedom of movement of patients), and especially its interpretation by the Committee on the Rights of Persons with Disabilities (“the CRPD Committee”), is thus wrong. 40. The legal international scenario is confusing, to say the least, signaling tough ongoing discussions on the matter. [80] The Human Rights Committee does not share the views of the CRPD Committee, since it acknowledges that involuntary hospitalisation may be justified[81]. Similarly, the Subcommittee on the Prevention of Torture[82] expressed the opinion that deprivation of liberty can be justified on grounds of risk of self-harm or harm to others.", "Despite being urged by the Centre for Human Rights of Users and Survivors of Psychiatry,[83] the CEDAW did not address the issue of forced psychiatric interventions and involuntary hospitalisation. [84] 41. The United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, 1991, provide for the circumstances in which persons can be admitted involuntarily to a mental health facility. Yet the High Commissioner for Human Rights considered that these Principles were in direct conflict with article 14 (1) (b) of the CRPD and supported an absolute ban on deprivation of liberty on grounds of disability. [85] He affirmed that: “article 14, paragraph 1 (b), of the Convention unambiguously states that ‘the existence of a disability shall in no case justify a deprivation of liberty’.", "Proposals made during the drafting of the Convention to limit the prohibition of detention to cases ‘solely’ determined by disability were rejected. As a result, unlawful detention encompasses situations where the deprivation of liberty is grounded in the combination between a mental or intellectual disability and other elements such as dangerousness, or care and treatment. Since such measures are partly justified by the person’s disability, they are to be considered discriminatory and in violation of the prohibition of deprivation of liberty on the grounds of disability, and the right to liberty on an equal basis with others prescribed by article 14’.”[86] 42. The UN Special Rapporteur on the right of everyone to enjoy the highest standard of physical and mental health criticised the 2005 WHO Resource Book on Mental Health, Human Rights and Legislation, because it allowed for certain exceptions of “normalized coercion”, but expressed his opinion with caution on an absolute ban on all forms of non-consensual measures in his reports to the UN Human Rights Council, acknowledging that “their radical reduction and eventual elimination is a challenging process that will take time”. [87] 43.", "Within the Council of Europe, the Committee of Ministers Recommendation Rec (2004)10 concerning the protection of human rights and the dignity of persons with mental disorders permits their involuntary placement based on the Court’s case-law on Article 5(1)(e) of the Convention. [88] Yet the PACE Recommendation: The case against a Council of Europe legal instrument on involuntary measures in psychiatry[89] aligned itself with the CRPD. The Reply of the Committee of Ministers[90], instead, chose to maintain its position of 2004. 44. One thing is certain: the practice of Portuguese psychiatric hospitals of placing voluntary psychiatric inpatients in a “restrictive regime” in a confined pavilion or even in an isolation room did not in 2000, and still does not today, have a specific lawful basis setting out which types of regimes could be applied, under what circumstances, by whom and until when and subjecting them to a proportionality and necessity test.", "Furthermore, according to the CRPD Committee, the current Law no. 36/98, of 24 July 1998 is incompatible with the CRPD, since it permits the involuntary placement of people with mental problems who have committed no crime and does so outside any criminal procedure. [91] 45. The problem of the compatibility, or lack thereof, between national law and the above-mentioned UN Convention as interpreted by the CRPD, namely the absolute prohibition on involuntary detention based on impairment[92], goes well beyond the limits of this case. The majority do not discuss this legal question, having assumed purely and simply that the approach of national law “is in line with the international standards ...”.", "[93] 46. To conclude on this point, the dilemma referred to by the Government is also a false argument because there were, and still are, means of monitoring psychiatric inpatients at risk other than putting fencing round the HSC. The Government assess the measures that could be used in an either/or, binary fashion: either total absence of monitoring or fencing round the HSC. In addition to disregarding the existence of less intrusive alternatives, this approach fails to strike a proper balance between the competing interests: respect for the freedom of the psychiatric inpatient with a suicide risk and the State obligation to protect his or her life. The quality of the domestic proceedings 47.", "The quality of the domestic proceedings was not up to the standards of this Court, for various reasons. First, none of the domestic courts referred to the Convention, which was totally ignored. Neither the first-instance court nor the Supreme Administrative Court ever considered the Convention or the Court’s case-law. None of the domestic courts undertook a proportionality or necessity test regarding the scope of the State obligation to protect psychiatric patients. 48.", "In her appeal before the Supreme Administrative Court, the applicant did refer to the use of IT surveillance techniques. [94] There was no reply to the appellant’s argument regarding the possible use of IT surveillance techniques. Yet both the dissenting judge of the Supreme Administrative Court and the Deputy Attorney-General argued that the HSC had not put in place a regime to reinforce A.J.’s monitoring[95] or any other sufficient measures to prevent or diminish the risk of suicide. [96] 49. Second, the domestic court considered it established that A.J.", "had left the building at 5 p.m. in spite of the fact that there were contradictory testimonies as to whether A.J. had already been absent at lunch time on 27 April. Witness S.P. said that he had not been present at lunch time while Witness A.D. said that he had been present. Finally, the first witness changed her testimony in a very reluctant way (“although I am convinced that A.J.", "was not present, I am not sure of that”). [97] The first-instance court accepted that change in testimony without further checking its credibility. 50. Third, the domestic court did not accept in its preliminary decision on the facts that there had been other suicide attempts, in spite of the fact that there were two witnesses (the mother and sister of the deceased) who referred to other suicide attempts. [98] The domestic court gave no explanation for the fact that there was a written note in the medical file referring to “multiple” suicide attempts; it did not question the person who wrote that note in the medical file in order to find out why and on what basis she had done so.", "51. Fourth, the applicant raised the issue of the completeness of the medical file before the domestic court, but the latter did not consider this question relevant because it had not been raised as a formal complaint of forgery of the file. [99] The domestic court had the power to check the completeness of the medical file and did not use that power, for a formalistic reason. In fact, the domestic court did not even analyse the medical file, since it entirely ignored the risk assessment notes in it. 52.", "Fifth, the first-instance court invoked modern psychiatric standards. But it did so only for the benefit of the State, and to the detriment of the applicant. This was a very uneven and unbalanced description of the state of the art in terms of modern psychiatric standards. The domestic court simply ignored the standards set by the World Health Organization for governments and practitioners in terms of suicide prevention especially in hospitals and medical facilities. This Court should not have made the same mistake, but it did.", "The Court cannot on the one hand take into consideration the WHO standards with regard to the deinstitutionalisation of people with mental disabilities and on the other hand ignore the same WHO standards on State responsibility for prevention of suicide especially in psychiatric facilities. 53. The first-instance court chose a radical, minimalist, hands-off approach to the State obligation to protect the life of patients in public psychiatric facilities and did not follow the balanced approach of the World Health Organization. As a matter of fact, the first-instance court followed the radical opinion expressed in the expert report of 27 September 2006 and presented before the first-instance court. [100] This expert report even praised the possibility of suicide!", "It closed with a eulogy of suicide, portraying it as an act of “freedom and liberation”. After stating that “prevention of suicide in these patients is an impossible task”, the expert added the following words: “For many suicidal individuals, that moment (of suicide) is a unique moment of freedom and liberation. How can one prevent it in absolute terms? In fact, who wants to give up on that potential? There are many people who are lucid and happy today and who would not want to give up on that possibility (of suicide).”[101] While also concluding that prevention of suicide in patients such as A.J.", "was an “impossible task”[102], the Grand Chamber copy-pasted the same expert report that made a eulogy of suicide. The same report that had noted that “we cannot answer in a more detailed way as we were not given access to documentation describing the circumstances of the suicide”. I regret that once again the conscience of Europe has sided with this culture of death, even suggesting that the right “to take a rational decision to end his or her life” comes within the scope of Article 2. [103] 54. The Supreme Administrative Court did not remedy the shortcomings of the first-instance court.", "In fact, it did not even discuss modern psychiatric standards. The part of the judgment that deals with the “analysis of the grounds of appeal” is rather brief – only three pages – and just rubberstamped the first-instance judgment, with long citations from that judgment without any added value. [104] There is not a single word on the proportionality or the necessity test in it, as required by domestic constitutional law, in the light of Articles 18 and 24 of the Constitution, and by Convention law, in the light of Article 2, paragraph 2, of the Convention. 55. To put it differently, the quality of the domestic procedure leaves much to be desired.", "The procedural violation of Article 2 goes well beyond the majority’s very limited criticism. [105] Conclusion 56. To sum up, this case is again a disappointing statement of this Court on the State obligations to provide health care to a category of vulnerable people, such as psychiatric inpatients. On the basis of a wrongful assessment of the legal and factual background to the case and a misreading of the Court’s own case-law, the majority treat the case of poor A.J. differently from those of Renolde and De Donder, leaving a strong impression of double standards.", "Worse still, the majority’s one‑sided approach to international health law and practice is patent, since they consider the trend that favours the liberty of freedom of psychiatric inpatients, but forget to ponder the counter-voices to that trend which warrant an increased State commitment to suicide prevention, especially regarding people under State supervision, and even more regarding institutionalised psychiatric patients. In the current political context in Europe, this judgment may not surprise anyone. My hope is that it will be reversed one day when the political mood changes. My concern is that meanwhile many psychiatric inpatients with a suicidal risk will die an avoidable death, like A.J. did.", "[1]. See paragraph 130 of the judgment. [2]. See Lopes de Sousa Fernandes v. Portugal (GC), no. 56080/13, ECHR 2017.", "[3]. See Calvelli and Ciglio v. Italy (GC), no. 32967/96, § 49, ECHR 2002-I. [4]. See Lopes de Sousa Fernandes, cited above.", "[5]. See paragraphs 106 and 107 of the judgment. [6]. Ibid. [7].", "Portugal: Visit 1999, CPT/Inf (2001) 12 | Section: 38/47 | Date: 20/12/1999, C. Sobral Cid Psychiatric Hospital / 5. Means of restraint. This visit included the “general psychiatric department for men”, where A.J. was placed several times (see paragraphs 17 and 79 of the judgment). [8].", "Portugal: Visit 2003, CPT/Inf (2007) 13 | Section: 37/47 | Date: 30/07/2004, C. Structures psychiatriques pénitentiaires / 6. Moyens de contention et recours à l'isolement. [9]. Portugal: Visit 2008, CPT/Inf (2009) 13 | Section: 36/44 | Date: 24/07/2008, C. Psychiatric institutions / 4. Means of restraint.", "[10]. Orientação da Direção-Geral da Saúde número 021/2011, data 06/06/2011 “Prevenção de comportamentos dos doentes que põem causa a sua segurança ou da sua envolvente - Contenção de Doentes”. [11]. May 2007 Ministry of Health protocol on the use of means of mechanical restraint (Circular No. 08/DSPSM/DSPCS), see footnote 59 of CPT/Inf (2009) 13.", "[12]. Portugal: Visit 2012, CPT/Inf (2013) 4 | Section: 38/45 | Date: 25/07/2012, C. Psychiatric institutions for forensic patients / 6. Seclusion and means of restraint / a. policy on the use of means of restraint. [13]. CPT report on the 2012 visit to the HSC, paragraph 107.", "[14]. CPT report on the 2012 visit to the HSC, paragraph 123. [15]. Similar observations on this matter have been made after the CPT’s visits in 1999, 2000 and 2008 to Portugal, see CPT/Inf (2009)13, paragraph 129. [16].", "Portugal: Visit 2012, CPT/Inf (2013) 4 | Section: 39/45 | Date: 25/07/2012, C. Psychiatric institutions for forensic patients / 6. Seclusion and means of restraint / b. forensic departments of Sobral Cid and Lisbon Central Psychiatric Hospitals. [17]. Portugal: Visit 2012, CPT/Inf (2013) 4 | Section: 39/45 | Date: 25/07/2012, C. Psychiatric institutions for forensic patients / 7. Safeguards / b) safeguards during placement.", "[18]. See paragraphs 78 and 79 of the judgment. [19]. See http://www.sns.gov.pt [20]. See www.dgs.pt [21].", "See paragraph 117 of the judgment. [22]. See paragraph 88 of the judgment. [23]. See above, paragraph 112 of the 2012 CPT report.", "[24]. I cite from the document itself, which is included in page 35 of the Government’s observations before the Grand Chamber. [25]. See paragraph 104 of the Government’s observations before the Chamber. [26].", "See paragraph 130 of the Government’s observations before the Grand Chamber. [27]. See paragraphs 21 and 85 of the Government’s observations before the Grand Chamber. [28]. See paragraph 131 of the judgment.", "[29]. See Osman v. the United Kingdom, 28 October 1998, Reports of Judgments and Decisions 1998‑VIII). I have been pleading for a reform of the Osman test (Valiulienė v. Lithuania, no. 33234/07, 26 March 2013, and Lopes de Sousa Fernandes, cited above, § 63). In the present case, for the sake of simplification, I will not enter into this discussion.", "[30]. See Van Colle v. the United Kingdom, no. 7678/09, § 91, 13 November 2012. [31]. See Keenan v. the United Kingdom, no.", "27229/95, ECHR 2001-III. [32]. See Reynolds v. the United Kingdom, no. 2694/08, 13 March 2012. [33].", "See paragraph 124 of the judgment. [34]. See Fernandes de Oliveira v. Portugal, no. 78103/14, §73, 28 March 2017. The degree of respect for such a decision is shown also in the fact that it is not even mentioned when the majority discuss the issue in paragraph 124 of the present judgment.", "[35]. See the academic literature on the new mental health paradigm, Davidson, “An international comparison of legal frameworks for supported and substitute decision-making in mental health services” (2016) 44 International Journal of Law and Psychiatry, 30-40; Richardson, “Mental Disabilities and the Law: From Substitute to Supported Decision Making?”(2012) Current Legal Problems, 1-22; Richardson “Mental Capacity at the Margin: The Interface between Two Acts” (2010) 18 Medical Law Review 56-77; Donnelly, Healthcare Decision-Making and the Law. Cambridge: Cambridge University Press, 2010; McSherry and Weller (eds), Rethinking Rights-Based Mental Health Laws, Oxford: Hart Publishing, 2010; Nuffield Council on Bioethics, Dementia: Ethical Issues, London: Nuffield Council on Bioethics, 2009; Maclean, Autonomy, Informed Consent and Medical Law: A Relational Challenge, Cambridge: Cambridge University Press, 2008; Fistein, et al, “A Comparison of Mental Health Legislation from Diverse Commonwealth Jurisdictions” (2000) 32 International Journal of Law and Psychiatry, 147-55; and Mackenzie and Stoljar (eds), Relational Autonomy: Feminist Perspectives on Autonomy, Agency and the Social Self, New York: Oxford University Press, 2000. [36]. The standards to which I refer were set out in the Practice manual for establishing and maintaining surveillance systems for suicide attempts and self-harm, Geneva: World Health Organization, 2016; Preventing suicide: a global imperative.", "Geneva: World Health Organization, 2014; Mental Health Action Plan 2013−2020. Geneva: World Health Organization, 2013; Preventing suicide, a resource for general physicians, World Health Organization, 2000 (with precise indications on management of patients); Preventing suicide, a resource for primary health care workers, World Health Organization, 2000 (with precise indications on how to manage suicidal patients); Primary prevention of mental, neurological and psychosocial disorders. Chapter 4: Suicide, World Health Organization, 1998; and Prevention of suicide: guidelines for the formulation and implementation of national strategies, New York (NY): United Nations, 1996. [37]. See the dissenting opinion of Judge Iulia Antoanella Motoc in Hiller v. Austria, no.", "1967/14, 22 November 2016. [38]. See paragraph 121 of the judgment. [39]. See paragraph 125 of the judgment.", "[40]. See my separate opinion in Lopes de Sousa Fernandes, cited above, §§ 64, 73 and 74. [41]. See paragraph 124 of the judgment; see also Renolde v. France, no. 5608/05, § 84, ECHR 2008 (extracts), considering mentally ill persons as particularly vulnerable.", "[42]. It is clearly overstretched to call the bunch of incomplete, confused, unorganised, sometimes almost unreadable copies that the Government put at the disposal of the Court as a “medical file”, but I will use this expression for ease of reference. The chaotic state of this “file” reflects well the quality of health care provided to A.J. [43]. See paragraph 43 of the judgment.", "[44]. According to the WHO, “It is estimated that, for each suicide, there are likely to have been more than 20 suicide attempts. Having engaged in one or more acts of attempted suicide or self-harm is the single most important predictor of death by suicide. …The extent to which cases become known is often compared to an iceberg, where only the tip is visible (suicide, suicide attempts and self-harm presenting to hospitals, and suicide attempts and self-harm presenting to primary care services) while the majority of suicide attempts remain “hidden” under the surface and remain unknown to health services” (Practice manual for establishing and maintaining surveillance systems for suicide attempts and self‑harm, Geneva: World Health Organization, 2016, page 6). [45].", "See note in the medical file of 1 April 2000. [46]. According to the WHO, the “individual key risk factors” are the following: “Previous suicide attempt, mental disorders, harmful use of alcohol, job or financial loss, hopelessness, chronic pain, family history of suicide, genetic and biological factors … Hopelessness, as a cognitive aspect of psychological functioning, has often been used as an indicator of suicidal risk when coupled with mental disorders or prior suicide attempts (113. The three major aspects of hopelessness relate to a person`s feelings about the future, loss of motivation and expectations. Hopelessness can often be understood by the presence of thoughts such as “things will never get better” and “I do not see things improving”, and in most cases is accompanied by depression (114).” (Preventing suicide: a global imperative,World Health Organization, Geneva, 2014, pages 31 and 40).", "[47]. See Renolde, cited above, § 86. [48]. See Renolde, cited above, § 89: “ … that risk was real and that Joselito Renolde required careful monitoring in case of any sudden deterioration.” See also Keenan, cited above, § 96: “The immediacy of the risk varied, however. Mark Keenan’s behaviour showed periods of apparent normalcy or at least of ability to cope with the stresses facing him.", "It cannot be concluded that he was at immediate risk throughout the period of detention. However, the variations in his condition required that he be monitored carefully in case of sudden deterioration.” [49]. Not only “depression”, as downplayed in paragraph 127 of the judgment, but “major depression” See the expert report in the domestic administrative court proceedings cited in paragraph 33 of the judgment. [50]. See the expert report in the domestic administrative court proceedings cited in paragraph 33 of the judgment.", "According to the WHO, “People with mental disorders experience disproportionately higher rates of disability and mortality. For example, persons with major depression and schizophrenia have a 40% to 60% greater chance of dying prematurely than the general population, owing to physical health problems that are often left unattended [such as cancers, cardio vascular diseases, diabetes and HIV infection] and suicide.” (Mental Health Action Plan 2013−2020. Geneva: World Health Organization, 2013, paragraph 11.) [51]. See De Donder and De Clippel v. Belgium, no.", "8595/06, 6 December 2011. [52]. Ibid., § 76. [53]. The majority do not even clarify the time frame being examined in relation to the risk assessment: is it the “last days of his life” (see paragraph 128), the “preceding days” (ibid.", "), or the “the days immediately preceding his suicide” (see paragraph 129)? What is the exact time frame relevant for this purpose? [54]. See testimony of Dr A.A. annexed to the file. [55].", "See paragraph 33 of the judgment. [56]. See paragraphs 11 and 40 of the judgment. [57]. See the report of the court-appointed medical expert of 27 September 2006 annexed to the file.", "[58]. According to the WHO, “On the basis of the definition, the inclusion criteria are as follows (i.e. the following are considered to be cases of intentional self-harm or suicide attempt): All methods of intentional self-harm (as per ICD-10 coding, Table 3.1) (e.g. alcohol overdose, illicit drug overdose, ingestion of pesticides, laceration, attempted drowning, attempted hanging, gunshot wound) where it is clear that the self-harm was intentionally inflicted.” (Practice manual for establishing and maintaining surveillance systems for suicide attempts and self-harm, Geneva: World Health Organization, 2016, page 33); and see also Mental Health Gap Action Programme, Scaling up care for mental, neurological, and substance use disorders, Geneva: World Health Organization, 2008, page 29: “Suicide is the third leading cause of death worldwide in people aged between 15 and 34 years, and it is the 13th leading cause of death for all ages combined. About 875 000 people die from suicide every year.", "High rates of suicide are associated with mental disorders such as depression and schizophrenia and with alcohol and drug dependence.” See also the National Confidential Inquiry into Suicide and Homicide by People with Mental Illness (NCISH), Safer Care for Patients with Personality Disorder, Manchester: University of Manchester, 2018: “The majority of patients who took their own life had a history of self-harm (146. 95%). The last episode of self-harm occurred within a week of death in 20 cases (16%), and 81 (70%) within 3 months. Repeated incidents of self-harm were common in the year before suicide (77. 66%).", "In most cases the triggers were known to services (106, 98%). These were: Alcohol intoxication, … . During the last episode of care a risk assessment for suicide, self-harm and/or violence was undertaken in 121 (88%), a risk formulation undertaken in 91 (71%) and risk management plan developed in 85 (69% cases).” [59]. Mental Health Action Plan 2013−2020 Geneva: World Health Organization, 2013, paragraphs 11 and 75. See also Preventing suicide: a global imperative, Geneva: World Health Organization, 2014, page 11: “Young people are among those most affected; suicide is now the second leading cause of death for those between the ages of 15 and 29 years globally.” According to the International Association for Suicide Prevention (IASP) Guidelines for Suicide Prevention, “There are also certain groups of persons who are particularly at risk for suicidal behaviour.", "These include those with a past history of attempted suicide, alcohol and other substance dependent persons, young males …. There have been many studies indicating that those who attempt suicide are far more likely to commit suicide in the future than other groups. … It has long been recognised that alcohol and other substance dependence is associated with an increased risk of suicide.” [60]. See paragraph 13 of the judgment. [61].", "See, for example, the medical file notes of 11 January 1993 and 2 February 1993. Although aware of this fact (see paragraph 13 of the judgment), the majority do not care to take into account this information when assessing A.J.’s “long history of mental health problems” (see paragraph 130 of the judgment). [62]. The majority admit that no risk assessment notes were taken for “his last stay in 2000”(see paragraph 13 of the judgment). [63].", "See Eremiasova and Pechova v. the Czech Republic, no. 23944/04, § 110, 16 February 2012, reiterated in Keller v. Russia, no. 26824/04, § 88, 17 October 2013. [64]. Paragraph 132 of the judgment avoids the second limb of the Osman test, but in reality, in the previous paragraphs, the majority already accepted the measures taken by the national authorities (see for example, paragraph 130 of the judgment).", "[65]. See Practice Manual for establishing and maintaining surveillance systems for suicide attempts and self-harm, Geneva: World Health Organization, 2016, page 6: “Improved surveillance and monitoring of suicide attempts and self-harm is a core element of the public health model of suicide prevention. … However, the intention to die can be more difficult to ascertain (and therefore to record) since in certain cases even the individual involved may not be certain about his or her intentions. This is why a hospital-focused surveillance system will inevitably represent cases of intentional self-harm with varying levels of suicidal intent and varying underlying motives, and not only suicide attempts characterized by high levels of suicidal intent.” According to the Mental Health GAP Intervention Guide Version 2.0 for mental, neurological and substance use disorders in non-specialized health settings, World Health Organization, 2016, page 136: For all cases of Medically Serious Act of Self-Harm or Imminent Risk of Self-Harm/Suicide: “Place the person in a secure and supportive environment at a health facility. DO NOT leave the person alone.” [66].", "In its Revised CPT Standards of March 2017, the CPT accepts the use of video surveillance as a means of restraint in psychiatric establishments for adults, but it further notes that “Clearly, video surveillance cannot replace continuous staff presence.” (CPT/Inf (2017)6). The Care Quality Commission is the independent health regulator in England: it regulates health care services in England and has produced guidance for health care providers and for the public on the use of surveillance in settings such as care homes and hospitals. See Using surveillance. Information for providers of health and social care on using surveillance to monitor services, December 2014 (updated with new regulations in June 2015): “In some circumstances, surveillance systems could be used for purposes that fall within the definition of ‘deprivation of liberty’ – for example, the use of CCTV or RFID tracking devices to monitor the location of an individual for the purpose of preventing them from leaving the premises. If the identified purpose or use of surveillance has the potential to act as a restriction on, or deprivation of liberty, special care must be taken to consult with individuals and to consider the relevant guidance.", "This is in addition to the usual considerations that must be made on the use of surveillance.” [67]. On suicide prevention and restraint measures, including seclusion and video surveillance of patients, see Dasic et al, “Improving patient safety in hospitals through usage of cloud supported video surveillance” (2017) 5 (2) Macedonian Journal of Medical Sciences 101: “Patient safety is a growing issue which can be improved with the usage of high-end centralized surveillance systems allowing the staff to focus more on treating health issues rather than keeping a watchful eye on potential incidents.”; Stolovy et al, “Video surveillance in mental health facilities: is it ethical?” (2015) 17 Israel Medical Association Journal 274-276: “Staff and patients perceive the surveillance positively, and there have been no complaints regarding the use of cameras since their installation. Moreover, the surveillance did not evoke paranoid symptoms, quite the contrary, patients perceive the surveillance as a safeguard …”; Carroll et al., “Hospital management of self-harm patients and risk of repetition: systematic review and meta-analysis” 2014 Journal of Affective Disorders 476-83; Richardson, “Mental capacity in the shadow of suicide: What can the law do?” (2013) 9 International Journal of Law in Context 87-105; Frank, “Videoüberwachung in der Psychiatrie - Pro, kontra, Video surveillance in psychiatric hospitals-pro & contra” (2013) 40 Psychiatrisches Praxis 117-119: “many arguments speak against a prohibition (of IT surveillance in psychiatric hospitals) and few arguments speak against the possibility of using this possibility”; Salzmann et al, “Panoptic power and mental health nursing-space and surveillance in relation to staff, patients, and neutral spaces” (2012) 33(8) Issues Mental Health Nursing 500-4: “the majority of spaces in mental health nursing serve as a field of visibility within which the patient is constantly watched.”; Mullender, “Involuntary Medical Treatment, Incapacity and Respect” (2011) 127 Law Quarterly Review 167–71; David et al., “Mentally Disordered or Lacking Capacity? Lessons for Management of Serious Deliberate Self Harm” (2010) British Medical Journal 341: c4489; Desai, “The new stars of CCTV: what is the purpose of monitoring patients in communal areas of psychiatric hospital wards, bedrooms and seclusion rooms?” (2009) 6 Diversity and Equality in Health Care 45-53: “The use of CCTV cameras not only enabled better detection of risk factors in managing patients on a ward, but also provided video footage for training purposes. For example, Chambers and Gillard (2005) found that maintaining recorded images of incidents allowed an opportunity for after-the-event evaluation that could be used for training purposes, especially in recognising the antecedents to violent episodes and in preventing suicide.", "Staff believed that the recorded images provided a more accurate and therefore objective account of incidents”; Appelbaum, “Commentary: the use of restraint and seclusion in correctional mental health” (2007) 35 (4) Journal of the American Academy of Psychiatry Law 431-5; Kennedy, Electronic surveillance in hospitals: A review, Edith Cowan University, Perth, 2006: “The benefits of electronic surveillance to patient health are manifold, but it is vital that the privacy implications for individuals are not overlooked by the motivation to achieve security for the whole community”; Smith et al, “Pennsylvania State Hospital system’s seclusion and restraint reduction program” (2005) 56 (9) Psychiatric Service 1115-22; Paris, 2004 (18) “Is hospitalization useful for suicidal patients with borderline personality disorder?” (2004) 18 (3) Journal of Personality Disorders, 240-47; and see also the National Institute for Care and Excellence Guidelines and literature on use of restraint on people with mental health problems in health and social care settings, available on https://www.nice.org.uk/ [68]. See paragraph 55 of the judgment. It is quite revealing that this information was not even considered by the majority when assessing the obligation to take preventive operational measures. [69]. See the inspection report produced by the first-instance court.", "[70]. See the record on 27 April in his medical file, 8 a.m-4 p.m. shift. [71]. See the record on 26 April in his medical file, midnight-8 a.m. shift. [72].", "See testimony of Dr E.R. annexed to the file, and paragraph 23 of the judgment. [73]. See the records in his medical file on these days. [74].", "See the record in the medical file on this day. [75]. In fact, the same person also noted that there was a suspicion that he had committed suicide and the family had come to pick up A.J.’s belongings. [76]. See the expert report dated 27 September 2006 ordered by the first-instance court (see paragraph 33 of the judgment), and the interview with A.J.’s sister given to the newspaper O Publico, 29 March 2017.", "[77]. See paragraph 94 of the judgment. [78]. See the references in the above-mentioned CPT reports on Portugal. [79].", "Ibid. [80]. On the UN Disabilities Convention and its interpretation by the CRPD Committee, see Loza and Omar, “The rights of persons with mental disabilities: is the UN Convention the answer? An Arab perspective” (2017) 14 (3) The British Journal of Psychiatry International, 53-55: “The General comment on Article 12 interprets important human rights provisions from a narrow perspective, distances medical knowledge and alienates families in many cultures”; Freeman et al, “Reversing hard won victories in the name of human rights: a critique of the General Comment on Article 12 of the UN Convention on the Rights of Persons with Disabilities” 2015 Lancet Psychiatry, 844-50: “In the event that a life could be saved from suicide, we submit that the Committee’s assertion that involuntary treatment should never be allowed is wrong. … When there is a conflict between different rights, the right to life should trump other rights.” “What if the person is hearing voices that tell him or her to hurt themselves or another person?", "… we cannot accept that doing away completely with involuntary admission and treatment will promote the rights of persons with mental illness”; Szumkler et al, “Mental health law and the UN Convention on the rights of persons with disabilities” (2014) 37 International Journal of Law and Psychiatry 245-52: “very few would support the idea that the state never, even as a last resort, has a duty to protect those who are clearly unable to make crucial treatment decisions for themselves”; Bartlett, “The United Nations on the Rights of Persons with Disabilities and Mental Health law” (2012) 75 (5) The Modern Law Review 752-78; Fennell and Khaliq, “Conflicting or Complementary Obligations? The UN Disability Rights Convention and the European Convention on Human Rights and English law” (2011) European Human Rights Law Review 662-74; Weller, “The Convention on the Rights of Persons with Disabilities and the Social Model of Health: New Perspectives” (2011) Journal of Mental Health Law 74-83; Lush, “Article 12 of the United Nations Convention on the Rights of Persons with Disability” (2011) Elder Law Journal 61–68; Minkowitz, “Abolishing Mental Health Laws to Comply with the Convention on the Rights of Persons with Disabilities”, in McSherry and Weller (eds), Rethinking Rights-Based Mental Health Laws, Oxford: Hart Publishing, 2010, 151-78; Bach and Kerzner (2010) A New Paradigm for Protecting Autonomy and the Right to Legal Capacity, Canada: Law Commission of Ontario; Hale, Mental Health Law, London: Sweet and Maxwell, 2010; Lewis, “The Expressive, Educational and Proactive Roles of Human Rights: An Analysis of the United Nations Convention on the Rights of Persons with Disabilities”, in McSherry and Weller (eds), Rethinking Rights-Based Mental Health Laws,. Oxford: Hart Publishing, 2010, pp. 97-128; Bartlett, “The United Nations Convention on the Rights of Persons with Disabilities and the Future of Mental Health Law” (2009) 18 Psychiatry, 496‑98; Bartlett et al, Mental Disability and the European Convention on Human Rights, Leiden: Martinus Nijhof, 2007; Lawson, “The United Nations Convention on the Rights of Persons with Disabilities: New Era or False Dawn?”, (2007) 34 (2) Syracuse Journal of International Law 563-619; Hale, “The Human Rights Act and Mental Health Law: Has it Helped?” (2007) Journal of Mental Health Law 7-18; Dhanda, “Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future?” (2006) 34 Syracuse Journal of International Law and Commerce 429-62; and Richardson, “The European Convention and Mental Health Law in England and Wales: Moving Beyond Process” (2005) 28 International Journal of Law and Psychiatry, 127-39. [81].", "General comment No. 35 on Article 9 of the ICCPR, CCPR/C/GC/35, 16 December 2014. [82]. Approach regarding the rights of persons institutionalized and treated medically without informed consent, CAT/OP/27/2, 26 January 2016. [83].", "Comments on the draft update of CEDAW General Recommendation no. 19: Forced psychiatric interventions as violence against women with disabilities, 26 September 2016. [84]. CEDAW General Recommendation no. 35 on gender-based violence against women, updating General Recommendation no.", "19, CEDAW/C/GC/35, 26 July 2017. [85]. High Commissioner for Human Rights, “Forgotten Europeans, forgotten rights, the human rights of persons placed in institutions”, 2011, 12-13; OHCHR Statement on article 14 of the CRPD, September 2014. [86]. Annual report of the High Commissioner for Human Rights to the General Assembly, A/HRC/10/49, 26 January 2009, paragraphs 48-9.", "[87]. A/HRC/29/33, 2 April 2015, and A/HRC/35/21, 28 March 2017. [88]. See paragraph 75 of the judgment. [89].", "PACE Recommendation 2091 (2016), 22 April 2016, which the majority do not consider. [90]. Commitee of Ministers Reply to Recommendation (2091 (2016)), adopted on 9 November 2016. [91]. See CRPD Concluding observations on the initial report of Portugal, 30 May 2016, paragraph 33 (b): the Committee requests that the State party “removes … the deprivation of liberty on the grounds of impairment provided for in its legislation on mental health”.", "[92]. A/HRC/34/32, paragraphs 29-33. [93]. See paragraph 117 of the judgment. [94].", "See page 8 of the Supreme Administrative Court judgment. [95]. See page 4 of the opinion of the Deputy Attorney-General. [96]. The Government themselves referred to the use of IT surveillance techniques in their observations before the Chamber and the Grand Chamber (see paragraph 125 of the Government’s observations before the Chamber and point 17 of their conclusions, and paragraph 94 of the Government’s observations before the Grand Chamber).", "The appellant also raised in her appeal to the Supreme Administrative Court the issue of lack of special restraint or vigilance after the drinking abuse incident and asked that this fact should be added to the proven facts. The Supreme Administrative Court considered that “there [were] no reasons to add it to the factual basis”, for a very formalistic reason, namely that it had not been properly raised (see judgment of Supreme Administrative Court, point 2.2 (iii), page 18). [97]. See page 7 of the first decision on the facts, of 7 January 2010. [98].", "See page 5 of the first decision on the facts, of 7 January 2010. [99]. See page 10 of the first decision on the facts, of 7 January 2010. [100]. See paragraph 33 of the judgment.", "[101]. The expert report is cited in paragraph 33 of the judgment, but the majority of the Grand Chamber do not deem it necessary to include these sentences in that paragraph. [102]. See paragraph 131 of the judgment. [103].", "See paragraph 124 of the judgment. The apotheosis of this culture is Gross v. Switzerland, no. 67810/10, § 60, 14 May 2013, which followed Haas v. Switzerland, no. 31322/07, § 51, ECHR 2011. As the Gross judgment did not become final and the Grand Chamber declared, on 30 September 2014, the application an abuse of the right of application, the Chamber findings became invalid.", "[104]. See bottom of page 22 to page 24 of the judgment as translated in the file. [105]. See paragraph 139 of the judgment." ]

[ "THIRD SECTION CASE OF KALINICHENKO AND OTHERS v. RUSSIA (Application no. 52256/07 and 5 others - see appended list) JUDGMENT STRASBOURG 22 June 2017 This judgment is final but it may be subject to editorial revision. In the case of Kalinichenko 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 Karen Reid, Section Registrar, Having deliberated in private on 1 June 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the non-enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law.", "In application no. 52256/07, the applicants also raised a complaint under Article 8 of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II.", "THE GOVERNMENT’S REQUEST TO STRIKE OUT SOME APPLICATIONS UNDER ARTICLE 37 § 1 OF THE CONVENTION 6. The Government submitted unilateral declaration in some applications which did not offer a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (Article 37 § 1 in fine). The Court rejects the Government’s request to strike the applications out and will accordingly pursue its examination of the cases (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR 2003‑VI). III.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 7. The applicants complained principally of the non-enforcement or delayed enforcement of domestic decisions given in their favour and of the lack of any effective remedy in domestic law. They relied, expressly or in substance, on Article 6 § 1 and Article 13 of the Convention and on Article 1 of Protocol No. 1, which read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Article 1 of Protocol No.", "1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 8. The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “hearing” for the purposes of Article 6. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v. Greece, no.", "18357/91, § 40, Reports of Judgments and Decisions 1997‑II). 9. In the leading case of Gerasimov and Others v. Russia, nos. 29920/05 and 10 others, 1 July 2014, the Court already found a violation in respect of issues similar to those in the present case. 10.", "Having regard to the nature of the judicial awards in the applicants’ favour (see the appended table for details of court orders), the Court considers that the applicants had, by virtue of these judgments, a “legitimate expectation” to acquire a pecuniary asset, which was sufficiently established to constitute a “possession” within the meaning of Article 1 of Protocol No. 1. 11. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the authorities did not deploy all necessary efforts to enforce fully and in due time the decisions in the applicants’ favour.", "12. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. 13. The applicants also complained under Article 13 of the Convention about the lack of an effective domestic remedy in respect of the non- enforcement.", "The Court has already noted the existence of a new domestic remedy against the non-enforcement of domestic judgments imposing obligations of a pecuniary and non-pecuniary nature on the Russian authorities, introduced in the wake of the pilot judgment, which enables those concerned to seek compensation for damage sustained as a result of excessive delays in the enforcement of court judgments (see Kamneva and Others v. Russia (dec.), no. 35555/05 and 6 others, 2 May 2017). Even though the remedy was – or still is – available to the applicants, the Court reiterates that it would be unfair to request the applicants whose cases have already been pending for many years in the domestic system and who have come to seek relief at the Court, to bring again their claims before domestic tribunals (see Gerasimov and Others, cited above, § 230). 14. However, in the light of the adoption of the new domestic remedy, the Court, as in its previous decisions, considers that it is not necessary to examine separately the admissibility and merits of the applicants’ complaint under Article 13 in the present cases (see, for a similar approach, Kamneva and Others, cited above, and, mutatis mutandis, Tkhyegepso and Others v. Russia, no.", "44387/04 and 11 others, §§ 21-24, 25 October 2011). This ruling is without prejudice to the Court’s future assessment of the new remedy. IV. REMAINING COMPLAINT 15. In application no.", "52256/07, the applicants also raised a complaint under Article 8 of the Convention. 16. The Court has examined the application and considers that, in the light of all the material in its possession and in so far as the matter complained of is within its competence, this complaint either does not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 17.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 18. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sums indicated in the appended table. 19. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Decides to join the applications; 2. Declares the complaints concerning the non-enforcement or delayed enforcement of domestic decisions admissible, and the remainder of the application no. 52256/07 inadmissible; 3. Holds that these complaints disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 of the Convention concerning the non-enforcement or delayed enforcement of domestic decisions; 4.", "Decides that it is not necessary to examine the admissibility and merits of the applicants’ complaint under Article 13 of the Convention; 5. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 22 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Karen ReidLuis López GuerraRegistrarPresident APPENDIX List of applications raising complaints under Article 6 § 1 and Article 13 of the Convention and Article 1 of the Protocol No. 1 to the Convention (non-enforcement or delayed enforcement of domestic decisions and lack of any effective remedy in domestic law) No.", "Application no.Date of introduction Applicant name Date of birth Representative name and location Relevant domestic decision Start date of non‑enforcement period End date of non-enforcement period Length of enforcement proceedings Domestic order Amount awarded for pecuniary and non‑pecuniary damage and costs and expenses per applicant (in euros)[1] 52256/07 09/11/2007 (3 applicants) Natalya Vladimirovna Kalinichenko 08/12/1975 Nataliya Nikolayevna Kuzhenko 04/04/1975 Viktor Sergeyevich Derkachev 04/04/1949 Leninsky District Court of Rostov-on-Don, 29/05/2007 09/07/2007 07/08/2009 2 year(s) and 30 day(s) entering into shared construction participation agreement 2,000 2848/08 28/11/2007 Ivan Vladimirovich Konovalov 15/06/1989 Yermilova Natalya Pavlovna Yekaterinburg Krasnogorskiy District Court of the Kamensk‑Uralskiy, 15/05/2009 23/07/2009 24/08/2010 1 year(s) and 1 month(s) and 2 day(s) monthly compensation for health harm 1,000 26660/08 23/04/2008 Leonid Petrovich Karittskiy 02/03/1937 Sovetsky District Court of Voronezh, 08/12/2003 19/12/2003 17/04/2008 4 year(s) and 3 month(s) and 30 day(s) recalculation of pension 4,000 58278/08 18/10/2008 Valentin Nikolayevich Dolgov 04/04/1932 Justice of the Peace of the Court Circuit no. 116 of St Petersburg, 02/02/2006 11/04/2006 16/06/2008 2 year(s) and 2 month(s) and 6 day(s) making correction to the employment document 2,000 56814/09 24/09/2009 Ilya Nikitovich Yermakov 20/03/1953 Birsk District Court of Bashkortostan Region, 30/05/2007 13/06/2007 23/05/2012 4 year(s) and 11 month(s) and 11 day(s) issuance of employment-related documents 3,500 73139/10 02/12/2010 Oleg Pavlovich Barkalov 23/11/1938 Zvenigorod City Court of the Moscow Region, 19/11/2008 18/12/2008 05/10/2010 1 year(s) and 9 month(s) and 18 day(s) sale of land plot 1,500 [1]. Plus any tax that may be chargeable to the applicants." ]

[ "GRAND CHAMBER CASE OF BÉLÁNÉ NAGY v. HUNGARY (Application no. 53080/13) JUDGMENT STRASBOURG 13 December 2016 This judgment is final but it may be subject to editorial revision. In the case of Béláné Nagy v. Hungary, The European Court of Human Rights, sitting as a Grand Chamber composed of: Guido Raimondi, President,András Sajó,Luis López Guerra,Mirjana Lazarova Trajkovska,Angelika Nußberger,Julia Laffranque,Päivi Hirvelä,George Nicolaou,Ledi Bianku,Nona Tsotsoria,Ganna Yudkivska,Erik Møse,André Potocki,Paul Lemmens,Krzysztof Wojtyczek,Branko Lubarda,Síofra O’Leary, judges,and Søren Prebensen, Deputy Grand Chamber Registrar, Having deliberated in private on 16 December 2015 and 10 October 2016, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 53080/13) 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 Béláné Nagy (“the applicant”), on 12 August 2013.", "2. The applicant, who had been granted legal aid, was represented by Mr A. Cech, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice. 3. The applicant alleged that she had lost her means of support, guaranteed only by a disability allowance, as a result of legislative changes applied by the authorities without equity, in spite of the fact that there had been no improvement in her health.", "4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). The Government were given notice of the application on 21 January 2014. On 10 February 2015 a Chamber composed of Işıl Karakaş, President, András Sajó, Nebojša Vučinić, Helen Keller, Egidijus Kūris, Robert Spano, Jon Fridrik Kjølbro, judges, and also of Stanley Naismith, Section Registrar, delivered its judgment. It declared the application admissible and held, by four votes to three, that there had been a violation of Article 1 of Protocol No.", "1 to the Convention. The joint dissenting opinion of Judges Keller, Spano and Kjølbro was annexed to the judgment. 5. On 24 April 2015 the Government requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention. The panel of the Grand Chamber accepted the request on 1 June 2015.", "6. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court. 7. The applicant and the Government each filed a memorial (Rule 59 § 1) on the merits. In addition, third-party comments were received from the European Trade Union Confederation, which had been granted leave by the President of the Grand Chamber to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3).", "8. A hearing took place in public in the Human Rights Building, Strasbourg, on 16 December 2015 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMrZ. Tallódi,Agent,MsM. Lévai,Adviser; (b) for the applicantMrA.", "Cech,Counsel,MrE. Látrányi,MrB. Várhalmy,Advisers. The Court heard addresses by Mr Cech and Mr Tallódi, and replies by them and by Ms Lévai to questions put by the judges. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1959 and lives in Baktalórántháza. 10. Between 1 May 1975 and 14 July 1997 the applicant was employed and made the statutory contributions to the social-security scheme. Subsequently, she was in receipt of unemployment benefit from 15 September 1997 until 9 September 1998.", "11. In response to a request lodged on 16 October 2001, the applicant was granted a disability pension (rokkantsági nyugdíj) later that same year on the basis of a retrospective finding that she had lost, as of 1 April 2001, 67% of her capacity to work on account of various ailments. This assessment was maintained in 2003, 2006 and 2007. 12. As of 2008 the legislation on the methodology used to assess health impairment in occupational contexts changed.", "In application of the new methodology, the applicant’s disability was assessed by an expert at 40% on 1 December 2009. Without envisaging any procedure for rehabilitation, the assessment panel scheduled the next check-up of her medical status for 2012. 13. The Government submitted that, under the new methodology, the applicant’s previous condition of 67% loss of working capacity would have corresponded to 54% overall health impairment. Since, however, she was found to have only 40% health impairment, her condition had to be deemed to have improved in the intervening period.", "The applicant submitted that the connection suggested by the Government between the scores of 67% in the old system and 54% in the new system was not based on any legal text. In her submission, her condition had not improved at all; the difference in scores was solely a consequence of changing the methodology used. 14. As a consequence of the applicant’s newly assessed 40% level of disability, on 1 February 2010 the relevant pension insurance directorate withdrew her entitlement to the disability pension. The applicant appealed against that decision.", "On an unspecified date, the decision was upheld by the second-instance pension insurance authority. At the relevant time the monthly amount of the applicant’s disability pension was 60,975 Hungarian forints (HUF), approximately 200 euros (EUR). On 25 March 2010 the applicant brought an action before the Nyíregyháza Labour Court, challenging the administrative decision. 15. The Nyíregyháza Labour Court heard the case, and appointed an expert with a view to obtaining an opinion as to the reasons for the difference in the scores.", "In an opinion of 16 February 2011, the expert submitted that the old score of 67%, as well as the new one of 40%, were correct under the respective methodologies; at any rate, the applicant’s condition had not significantly improved since 2007. 16. Observing that the applicant had accumulated 23 years and 71 days of service time, the court retained the disability score of 40% and dismissed her action on 1 April 2011. The applicant was ordered to reimburse the amounts received after 1 February 2010. The court noted that the applicant’s next medical assessment was due in 2012.", "It drew her attention to the possibility of making a renewed application for disability pension should her health deteriorate. 17. In 2011 the applicant requested another assessment of her disability. On 5 September 2011 the first-instance authority assessed it at 45%, scheduling the next assessment for September 2014. The second-instance authority changed this score to 50% on 13 December 2011, with a reassessment due in March 2015.", "Such a level would have entitled her to disability pension had rehabilitation not been possible. However, this time the assessment panel envisaged the applicant’s complex rehabilitation within a 36-month time-frame, and recommended that she be entitled to rehabilitation allowance (rehabilitációs járadék). Nevertheless, no such rehabilitation took place, and the applicant did not receive rehabilitation allowance. 18. As of 1 January 2012, a new law on disability and related benefits (Act no.", "CXCI of 2011) entered into force. It introduced additional eligibility criteria. In particular, instead of fulfilling a service period as required by the former legislation, the persons concerned had to have at least 1,095 days covered by social security in the five years preceding the submission of their requests. Individuals who did not meet this requirement could nevertheless qualify if they had no interruption of social cover exceeding 30 days throughout their careers, or if they were in receipt of a disability pension or rehabilitation allowance on 31 December 2011. 19.", "On 20 February 2012 the applicant submitted another request for disability allowance (rokkantsági ellátás). Her condition was assessed in April 2012, leading to the finding of 50% disability. On 5 June 2012 her request was dismissed because she did not have the requisite period of social cover. Rehabilitation was not envisaged. The next assessment was scheduled for April 2014.", "20. Between 1 July and 7 August 2012 the applicant was employed by the Mayor’s Office in Baktalórántháza. 21. On 15 August 2012 the applicant submitted a fresh request for disability pension under the new law. She underwent another assessment, during which her degree of disability was again established at 50%.", "Rehabilitation was not envisaged. 22. In principle, such a level of disability would have entitled the applicant to a disability allowance under the new system. However, since her disability pension had been terminated in February 2010 (that is, she was not in receipt of a disability pension or a rehabilitation allowance on 31 December 2011) and, moreover, she had not accumulated the requisite number of days of social-security cover or demonstrated uninterrupted social cover, she was not eligible, under any title, for a disability allowance under the new system. Instead of the requisite 1,095 days covered by social security in the five preceding years, the applicant had been covered for 947 days.", "According to the Government, had the law not been so amended, the applicant would again have become eligible for a disability pension, since her health impairment was again assessed as exceeding the relevant threshold in 2012. 23. The applicant’s request was refused by the relevant authority of Szabolcs-Szatmár-Bereg County on 23 November 2012 and, on appeal, by the National Rehabilitation and Social Welfare Authority on 27 February 2013. On 27 March 2013 the applicant filed an action with the Nyíregyháza Administrative and Labour Court, challenging these administrative decisions. On 20 June 2013 the court dismissed her case.", "This judgment was not subject to appeal. 24. From 1 January 2014 the impugned legislative criteria were amended with a view to extending eligibility to those who have accumulated either 2,555 days of social-security cover over ten years or 3,650 days over fifteen years. However, the applicant does not meet these criteria either. 25.", "In 2011 and 2012 the applicant received a monthly housing allowance from the local municipality, in the amount of HUF 4,100 (EUR 14) in 2011 and HUF 5,400 (EUR 18) in 2012. The applicant also applied for the basic welfare allowance (rendszeres szociális segély), but her request was denied because she did not meet the statutory requirements. II. RELEVANT DOMESTIC LAW AND PRACTICE 26. Act no.", "XX of 1949 on the Constitution, as in force at the relevant time and until 31 December 2011, contained the following provisions: Article 17 “The Republic of Hungary shall provide support for those in need through a wide range of social measures.” Article 54 (1) “In the Republic of Hungary everyone has the inherent right to life and to human dignity. No one shall be arbitrarily stripped of these rights.” Article 70/E “(1) Citizens of the Republic of Hungary have the right to social security; they are entitled to the support required to live in old age, and in cases of sickness, disability, or being widowed or orphaned, and in the case of unemployment through no fault of their own. (2) The Republic of Hungary shall implement the right to social support through the social-security system and the system of social institutions. (3)[1] The right to social support in respect of pension benefits applies to persons who have reached the statutory retirement age for old-age pension. Pension benefits may also be granted to persons below the aforementioned age by way of an act.", "Pension benefits provided before the statutory retirement age for an old-age pension may be reduced on the basis of statute, and may subsequently be provided in the form of social-welfare benefits, or may be terminated if the beneficiary is able to work.” 27. Article XIX of the Fundamental Law, as in force since 1 January 2012, provides: “(1) Hungary shall strive to provide social security to all of its citizens. Every Hungarian citizen shall be entitled to assistance in case of maternity, illness, disability, handicap, widowhood, orphanage and unemployment for reasons outside of his or her control, as provided for by statute. (2) Hungary shall implement social security for the persons referred to in paragraph (1) and for other persons in need through a system of social institutions and measures. (3) The nature and extent of social measures may as well be determined, in statute, in accordance with the usefulness to the community of the beneficiary’s activity.", "(4) Hungary shall facilitate the ensuring of the livelihood of the elderly by maintaining a general state pension system based on social solidarity and by allowing for the operation of voluntarily established social institutions. The conditions of entitlement to state pension may as well be laid down in statute with regard to the requirement of stronger protection for women.” 28. The relevant provisions of Act no. LXXXI of 1997 on Social-Security Pensions[2], as in force until 31 December 2011, stated: Section 4 (1) (c) “[Under the terms of this law], disability pension [means]: pension to be disbursed in the event of disability, on condition that the requisite length of service has been accumulated.” Section 6 “(1) The pensions that may be granted within the framework of the social-security pension system to the insured person in his or her own right are as follows: (a) the old-age pension, (b) the disability pension, ... (d) the rehabilitation allowance, to be granted under a separate statute[3].” Section 23 (1) “Disability pension shall be due to a person who: (a) has suffered 67% loss of capacity to work due to health problems, physical or mental impairments, without any perspective of improvement over the coming year...; [and] (b) has accumulated the necessary length of service [a function of age, as outlined in the law]; [and] (c) does not work regularly or earns considerably less than he or she did prior to become disabled.” Section 24 (1) “The length of service necessary for the disability pension is as follows: ... at the age of 35 to 44 years: 10 years ...” Section 26 “(1) The right to disability pension shall be effective as of the date on which the disability was found to be present, based on the opinion of the medical commission. If the medical commission did not take a stance about the point at which the disability began, the date to be taken in account shall be the date on which the disability pension was requested.", "(2) If the claimant had not accumulated the necessary service period by the time set out in paragraph (1) above, eligibility for a disability pension shall be effective as of the day following the accumulation of the necessary length of service.” Section 29 “(1) The amount of disability pension is dependent on the person’s age when he or she becomes disabled, the length of service accumulated prior to the granting of the disability pension and the degree of disability.” 29. Concerning disability pensions to be granted after 31 December 2007, the same Act, as in force between 12 March and 31 December 2011, provided as follows: Section 36/A “(1) Disability pension shall be due to a person who: (a) has suffered [at least 79% loss of capacity to work, or between 50 and 79% loss of capacity if rehabilitation is not feasible], and (b) accumulated the requisite length of service in respect of his or her age, and (c) [does not have an income or earns considerably less than before], and (d) does not receive sick pay or disability sick pay.” 30. Act no. LXXXIV of 2007 on the Rehabilitation Allowance, as in force until 31 December 2011, provided as follows: Section 3 “(1) The rehabilitation allowance shall be due to a ... person: (a) who has suffered an impairment of health at a rate of 50 to 79 per cent and, in the context of that impairment... cannot ... continue to be employed without rehabilitation, and (aa) who is not engaged in any gainful activity; or (ab) whose monthly income is at least 30 per cent lower than [before] the impairment of health; [and] moreover (b) whose condition is amenable to rehabilitation;, and (c) who has accumulated the requisite service time in function of his or her age.” 31. Act no.", "CXCI of 2011 on the Benefits Granted to Persons with Reduced Work Capacity, in so far as relevant and as in force between 26 July 2012 and 31 December 2013, provided as follows: Section 2 “A person whose health status has been found to be 60% or less following a complex assessment by the rehabilitation authority (henceforth: persons with reduced work capacity) and who: (a) has been covered by social security for a minimum of 1,095 days under section 5 of [the Social Security Act] in the five years preceding the submission of his or her request, and (b) is not engaged in any gainful activities and (c) is not receiving any regular financial allowance shall be eligible for benefits granted to persons with reduced work capacity. (2) By derogation from subsection (1) (a), persons ... (b) who were in receipt of a disability pension ... or a rehabilitation allowance ... on 31 December 2011 shall be eligible for the benefits granted to persons with reduced work capacity irrespective of the duration of the period covered by social security. (3) The 1,095-day insurance period shall include: ... (b) periods of disbursement of a disability pension ..., or rehabilitation allowance...; ....” Section 3 “(1) Subject to any rehabilitation proposal made by the rehabilitation authority in the framework of the complex reassessment, the allowance to be granted for a person with reduced work capacity shall be either: (a) rehabilitation benefit, or (b) disability benefit.” Section 4 “Persons with reduced work capacity who can be rehabilitated shall be entitled to rehabilitation benefit.” Section 5 “(1) Persons with reduced work capacity shall be entitled to disability benefit if rehabilitation is not recommended.” 32. The Constitutional Court’s decision no. 1228/B/2010.AB of 7 June 2011 contains a sentence stating that “section 36/D (1) b) of the Social Security Pension Act had not created a [legitimate] expectation for those entitled to disability pension under the previous regulations” (compare and contrast with the wording of point 34 of the Constitutional Court decision quoted in the next paragraph).", "33. The Constitutional Court examined Act no. CXCI of 2011 in decision no. 40/2012. (XII.6.)", "AB, of 4 December 2012. The decision contains, inter alia, the following passages: “27. ... From Articles 54 § 1 and 70/E of the Constitution, the Constitutional Court deduced only one individual social entitlement, specifically the right to a benefit that would ensure subsistence, that is, the provision by the State of basic subsistence to the extent that it is indispensable to secure the right to human dignity... [A subsequent decision of the Constitutional Court] amended the above principle with the proviso that ‘specific constitutional rights, such as a right to a dwelling, cannot be inferred from the obligation to provide basic subsistence’]... 30. ...The Constitutional Court has already examined the amendments to the rules governing disability pension in several decisions. Decision no.", "321/B/1996.AB characterised the disability pension partly as an allowance under protection of property and partly as a social service provision. As stated in the decision, the law ‘provides for a benefit under the constitutional principle of social security for individuals who, before reaching the old-age pension age, have lost their ability to work by reason of disability or as the result of an accident... Prior to the retirement age, the disability pension is an exceptional benefit granted to individuals on the ground of their disability. Upon reaching pensionable age, individuals who are ... incapable of work ... are no longer entitled to this exceptional benefit, because once their employment [period has] terminated they are eligible to receive old-age pension on the basis of their age.’... 31. Decision no.", "1129/B/2008.AB states that disability pension is one type of personal retirement benefit; however its ‘purchased right’ element is only represented inasmuch as ‘its sum is greater after a longer length of service, or is equal or close to the old-age pension. Otherwise, the principle of solidarity is predominant, since the disabled individual, who would not be eligible for an old-age pension on the basis of either his age or the length of service, receives a pension once his disability is determined.’ ... 32. In the Constitutional Court’s interpretation, the entitlement to disability pension is not guaranteed constitutionally in an as-of-right manner; rather, it is a mixed social-security and social-service benefit, available under certain conditions to individuals below retirement age suffering from ill health, who, due to their disability, have a reduced capacity to work and are in need of financial assistance because of the loss of income.” ... 34. ... [In decision no. 1228/B/2010.AB] ... the Constitutional Court held that the earlier rules on disability pension had not created a [legitimate] expectation, therefore the amendment to the conditions of entitlement had not violated any acquired right.", "35. Subsequent to the adoption of the above-mentioned decisions of the Constitutional Court, the text of the Constitution changed significantly. ... 37. ... The fact that Article XIX of the Fundamental Law on social security concerns essentially State obligations and State objectives, rather than conferring rights [on individuals], represents an important change... 38.", "The intention to change social policies became even more explicit by virtue of [an amendment to] Article 70/E ... of the Constitution, enacted on 6 June 2011, which expressly entitled the legislature to reduce, transform into a social allowance or terminate (where there is an ability to work) such pensions as disbursed [to persons in an age] under the age-limit for the old-age pension... 40. ... From 1 January 2012 onwards, [the law] provides those with altered working capacity with a health-insurance benefit, rather than with a pension...” III. RELEVANT INTERNATIONAL LAW AND OTHER MATERIAL 34. The European Social Charter provides, as relevant: Article 12 – The right to social security “With a view to ensuring the effective exercise of the right to social security, the Contracting Parties undertake: 1. to establish or maintain a system of social security; 2. to maintain the social- security system at a satisfactory level at least equal to that required for ratification of International Labour Convention No. 102 Concerning Minimum Standards of Social Security; 3. to endeavour to raise progressively the system of social security to a higher level; 4. to take steps, by the conclusion of appropriate bilateral and multilateral agreements, or by other means, and subject to the conditions laid down in such agreements, in order to ensure: a. equal treatment with their own nationals of the nationals of other Contracting Parties in respect of social security rights, including the retention of benefits arising out of social security legislation, whatever movements the persons protected may undertake between the territories of the Contracting Parties; b. the granting, maintenance and resumption of social security rights by such means as the accumulation of insurance or employment periods completed under the legislation of each of the Contracting Parties.” Article 15 – The right of physically or mentally disabled persons to vocational training, rehabilitation and social resettlement “With a view to ensuring the effective exercise of the right of the physically or mentally disabled to vocational training, rehabilitation and resettlement, the Contracting Parties undertake: 1. to take adequate measures for the provision of training facilities, including, where necessary, specialised institutions, public or private; 2. to take adequate measures for the placing of disabled persons in employment, such as specialised placing services, facilities for sheltered employment and measures to encourage employers to admit disabled persons to employment.” 35.", "The European Social Charter (revised) provides, as relevant: Article 12 – The right to social security “With a view to ensuring the effective exercise of the right to social security, the Parties undertake: 1. to establish or maintain a system of social security; 2. to maintain the social security system at a satisfactory level at least equal to that required for the ratification of the European Code of Social Security; 3. to endeavour to raise progressively the system of social security to a higher level; 4. to take steps, by the conclusion of appropriate bilateral and multilateral agreements or by other means, and subject to the conditions laid down in such agreements, in order to ensure: a. equal treatment with their own nationals of the nationals of other Parties in respect of social security rights, including the retention of benefits arising out of social security legislation, whatever movements the persons protected may undertake between the territories of the Parties; b. the granting, maintenance and resumption of social security rights by such means as the accumulation of insurance or employment periods completed under the legislation of each of the Parties.” Article 15 – The right of persons with disabilities to independence, social integration and participation in the life of the community “With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular: 1. to take the necessary measures to provide persons with disabilities with guidance, education and vocational training in the framework of general schemes wherever possible or, where this is not possible, through specialised bodies, public or private; 2. to promote their access to employment through all measures tending to encourage employers to hire and keep in employment persons with disabilities in the ordinary working environment and to adjust the working conditions to the needs of the disabled or, where this is not possible by reason of the disability, by arranging for or creating sheltered employment according to the level of disability. In certain cases, such measures may require recourse to specialised placement and support services; 3. to promote their full social integration and participation in the life of the community in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure.” 36. Hungary has ratified both the European Social Charter and the Revised European Social Charter, on 7 August 1999 and 20 April 2009 respectively. At the time of depositing the instrument of ratification, Hungary made a declaration enumerating the provisions of the European Social Charter by which it considered itself bound. That list contained neither Article 12 nor Article 15.", "Subsequently, in 2004, Hungary declared itself bound by paragraph 1 of Article 12 and by Article 15. According to the declaration deposited with the instrument of ratification of the Revised European Social Charter, Hungary continues to consider itself bound, among other provisions, by paragraph 1 of Article 12 and by Article 15. 37. The European Committee of Social Rights has “explicitly accepted alterations to social security systems in as far as such changes are necessary in order to ensure the maintenance of the social security system ... and where any restrictions do not deprive individuals of effective protection against social and [economic] risks without a tendency to gradually reduce the social security system to one of minimum assistance” (see Conclusions XIV-1, concerning Finland and Article 12 § 3 of the European Social Charter, p. 232, 30 March 1998). 38.", "The European Code of Social Security, which entered into force on 17 March 1968 and is referred to in paragraph 2 of Article 12 of the Revised European Social Charter, has been ratified by 21 Member States of the Council of Europe, not including Hungary. Sixteen of them accepted the obligations contained in Part IX thereof, which provides as follows: Part IX – Invalidity benefit Article 53 “Each Contracting Party for which this part of the Code is in force shall secure to the persons protected the provision of invalidity benefit in accordance with the following articles of this part.” Article 54 “The contingency covered shall include inability to engage in any gainful activity, to an extent prescribed, which inability is likely to be permanent or persists after the exhaustion of sickness benefit.” Article 55 “The persons protected shall comprise: a. prescribed classes of employees, constituting not less than 50 per cent of all employees; or b. prescribed classes of the economically active population, constituting not less than 20 per cent of all residents; or c. all residents whose means during the contingency do not exceed limits prescribed in such a way as to comply with the requirements of Article 67.” Article 56 “The benefit shall be a periodical payment calculated as follows: a. where classes of employees or classes of the economically active population are protected, in such a manner as to comply either with the requirements of Article 65 or with the requirements of Article 66; b. where all residents whose means during the contingency do not exceed prescribed limits are protected, in such a manner as to comply with the requirements of Article 67.” Article 57 “1. The benefit specified in Article 56 shall, in a contingency covered, be secured at least: a. to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period which may be 15 years of contribution or employment, or 10 years of residence; or b. where, in principle, all economically active persons are protected, to a person protected who has completed a qualifying period of three years of contribution and in respect of whom, while he was of working age, the prescribed yearly average number of contributions has been paid. 2. Where the benefit referred to in paragraph 1 of this article is conditional upon a minimum period of contribution or employment, a reduced benefit shall be secured at least: a. to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period of five years of contribution or employment; or b. where, in principle, all economically active persons are protected, to a person protected who has completed a qualifying period of three years of contribution and in respect of whom, while he was of working age, half the yearly average number of contributions prescribed in accordance with paragraph 1.b of this article has been paid.", "3. The requirements of paragraph 1 of this article shall be deemed to be satisfied where a benefit calculated in conformity with the requirements of Part XI but at a percentage of ten points lower than shown in the Schedule appended to that part for the standard beneficiary concerned is secured at least to a person protected who has completed, in accordance with prescribed rules, five years of contribution, employment or residence. 4. A proportional reduction of the percentage indicated in the Schedule appended to Part XI may be effected where the qualifying period for the pension corresponding to the reduced percentage exceeds five years of contribution or employment but is less than 15 years of contribution or employment; a reduced benefit shall be payable in conformity with paragraph 2 of this article.” Article 58 “The benefit specified in Articles 56 and 57 shall be granted throughout the contingency or until an old-age benefit becomes payable.” 39. The United Nations Convention on the Rights of Persons with Disabilities (promulgated in Hungary by Act no.", "XCII of 2007) contains the following provisions: Article 28Adequate standard of living and social protection “1. States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability. 2. States Parties recognize the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realization of this right, including measures: ... (c) To ensure access by persons with disabilities and their families living in situations of poverty to assistance from the State with disability-related expenses, including adequate training, counselling, financial assistance and respite care; ... (e) To ensure equal access by persons with disabilities to retirement benefits and programmes.” 40. Convention no.", "102 of the International Labour Organisation (ILO) on Social Security (Minimum Standards), referred to in paragraph 2 of Article 12 of the European Social Charter, entered into force on 27 April 1955 and has so far been ratified by fifty-four countries, not including Hungary. Fifteen member States of the Council of Europe have ratified Part IX of this instrument, which reads as follows: Part IX – Invalidity benefit Article 53 “Each Member for which this Part of this Convention is in force shall secure to the persons protected the provision of invalidity benefit in accordance with the following Articles of this Part.” Article 54 “The contingency covered shall include inability to engage in any gainful activity, to an extent prescribed, which inability is likely to be permanent or persists after the exhaustion of sickness benefit.” Article 55 “The persons protected shall comprise-- (a) prescribed classes of employees, constituting not less than 50 per cent of all employees; or (b) prescribed classes of the economically active population, constituting not less than 20 per cent of all residents; or (c) all residents whose means during the contingency do not exceed limits prescribed in such a manner as to comply with the requirements of Article 67; or (d) where a declaration made in virtue of Article 3 is in force, prescribed classes of employees, constituting not less than 50 per cent of all employees in industrial workplaces employing 20 persons or more.” Article 56 “The benefit shall be a periodical payment calculated as follows: (a) where classes of employees or classes of the economically active population are protected, in such a manner as to comply either with the requirements of Article 65 or with the requirements of Article 66; (b) where all residents whose means during the contingency do not exceed prescribed limits are protected, in such a manner as to comply with the requirements of Article 67.” Article 57 “1. The benefit specified in Article 56 shall, in a contingency covered, be secured at least-- (a) to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period which may be 15 years of contribution or employment, or 10 years of residence; or (b) where, in principle, all economically active persons are protected, to a person protected who has completed a qualifying period of three years of contribution and in respect of whom, while he was of working age, the prescribed yearly average number of contributions has been paid. 2. Where the benefit referred to in paragraph 1 is conditional upon a minimum period of contribution or employment, a reduced benefit shall be secured at least-- (a) to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period of five years of contribution or employment; or (b) where, in principle, all economically active persons are protected, to a person protected who has completed a qualifying period of three years of contribution and in respect of whom, while he was of working age, half the yearly average number of contributions prescribed in accordance with subparagraph (b) of paragraph 1 of this Article has been paid.", "3. The requirements of paragraph 1 of this Article shall be deemed to be satisfied where a benefit calculated in conformity with the requirements of Part XI but at a percentage of ten points lower than shown in the Schedule appended to that Part for the standard beneficiary concerned is secured at least to a person protected who has completed, in accordance with prescribed rules, five years of contribution, employment or residence. 4. A proportional reduction of the percentage indicated in the Schedule appended to Part XI may be effected where the qualifying period for the pension corresponding to the reduced percentage exceeds five years of contribution or employment but is less than 15 years of contribution or employment; a reduced pension shall be payable in conformity with paragraph 2 of this Article.” Article 58 “The benefit specified in Articles 56 and 57 shall be granted throughout the contingency or until an old-age benefit becomes payable.” 41. Convention no.", "128 of the ILO on Invalidity, Old-Age and Survivors’ Benefits entered into force on 1 November 1969 and has so far been ratified by sixteen countries, not including Hungary, of which ten are member States of the Council of Europe. Of the latter, six have accepted the obligations contained in Part II of the Convention, which provides as follows: Part II – Invalidity benefit Article 7 “Each Member for which this Part of this Convention is in force shall secure to the persons protected the provision of invalidity benefit in accordance with the following Articles of this Part.” Article 8 “The contingency covered shall include incapacity to engage in any gainful activity, to an extent prescribed, which incapacity is likely to be permanent or persists after the termination of a prescribed period of temporary or initial incapacity.” Article 9 “1. The persons protected shall comprise-- (a) all employees, including apprentices; or (b) prescribed classes of the economically active population, constituting not less than 75 per cent. of the whole economically active population; or (c) all residents, or residents whose means during the contingency do not exceed limits prescribed in such a manner as to comply with the requirements of Article 28. 2.", "Where a declaration made in virtue of Article 4 is in force, the persons protected shall comprise-- (a) prescribed classes of employees, constituting not less than 25 per cent. of all employees; (b) prescribed classes of employees in industrial undertakings, constituting not less than 50 per cent of all employees in industrial undertakings.” Article 10 “The invalidity benefit shall be a periodical payment calculated as follows: (a) where employees or classes of the economically active population are protected, in such a manner as to comply either with the requirements of Article 26 or with the requirements of Article 27; (b) where all residents or all residents whose means during the contingency do not exceed prescribed limits are protected, in such a manner as to comply with the requirements of Article 28.” Article 11 “1. The benefit specified in Article 10 shall, in a contingency covered, be secured at least-- (a) to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period which may be 15 years of contribution or employment, or ten years of residence; or (b) where, in principle, all economically active persons are protected, to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period of three years of contribution and in respect of whom, while he was of working age, the prescribed yearly average number or yearly number of contributions has been paid. 2. Where the invalidity benefit is conditional upon a minimum period of contribution, employment or residence, a reduced benefit shall be secured at least-- (a) to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period of five years of contribution, employment or residence; or (b) where, in principle, all economically active persons are protected, to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period of three years of contribution and in respect of whom, while he was of working age, half of the yearly average number or of the yearly number of contributions prescribed in accordance with subparagraph (b) of paragraph 1 of this Article has been paid.", "3. The requirements of paragraph 1 of this Article shall be deemed to be satisfied where a benefit calculated in conformity with the requirements of Part V but at a percentage of ten points lower than shown in the Schedule appended to that Part for the standard beneficiary concerned is secured at least to a person protected who has completed, in accordance with prescribed rules, five years of contribution, employment or residence. 4. A proportional reduction of the percentage indicated in the Schedule appended to Part V may be effected where the qualifying period for the benefit corresponding to the reduced percentage exceeds five years of contribution, employment or residence but is less than 15 years of contribution or employment or ten years of residence; a reduced benefit shall be payable in conformity with paragraph 2 of this Article. 5.", "The requirements of paragraphs 1 and 2 of this Article shall be deemed to be satisfied where a benefit calculated in conformity with the requirements of Part V is secured at least to a person protected who has completed, in accordance with prescribed rules, a qualifying period of contribution or employment which shall not be more than five years at a prescribed minimum age and may rise with advancing age to not more than a prescribed maximum number of years.” Article 12 “The benefit specified in Articles 10 and 11 shall be granted throughout the contingency or until an old-age benefit becomes payable.” Article 13 “1. Each Member for which this Part of this Convention is in force shall, under prescribed conditions-- (a) provide rehabilitation services which are designed to prepare a disabled person wherever possible for the resumption of his previous activity, or, if this is not possible, the most suitable alternative gainful activity, having regard to his aptitudes and capacity; and (b) take measures to further the placement of disabled persons in suitable employment. 2. Where a declaration made in virtue of Article 4 is in force, the Member may derogate from the provisions of paragraph 1 of this Article.” 42. The European Code of Social Security, ILO Convention no.", "102 and ILO Convention no. 128 contain virtually identical provisions whereby, in situations where eligibility for invalidity benefit is conditional upon a minimum period of contribution or employment, a reduced invalidity benefit should at least be secured to persons who have completed a period of five years of contributions prior to the contingency (see Article 57 § 2 (a) of the European Code of Social Security and ILO Convention no. 102, as well as Article 11 § 2 (a) of ILO Convention no. 128). Twenty member States of the Council of Europe have accepted that undertaking in one or more of these instruments, but Hungary has not.", "43. The World Health Organization’s International classification of functioning, disability and health (ICF), Annex 6 - Ethical guidelines for the use of ICF, states: “Social use of ICF information (8) ICF information should be used, to the greatest extent feasible, with the collaboration of individuals to enhance their choices and their control over their lives. (9) ICF information should be used towards the development of social policy and political change that seeks to enhance and support the participation of individuals. (10) ICF, and all information derived from its use, should not be employed to deny established rights or otherwise restrict legitimate entitlements to benefits for individuals or groups. (11) Individuals classed together under ICF may still differ in many ways.", "Laws and regulations that refer to ICF classifications should not assume more homogeneity than intended and should ensure that those whose levels of functioning are being classified are considered as individuals.” 44. The European system of integrated social protection statistics (ESSPROS)[4] classifies pensions, as a first-level breakdown, according to four different functions: disability, old age, survivors and unemployment. In 2012, of these, pensions relating to old age were the largest category, accounting for 77.3% of total expenditure and received by the same proportion of pension beneficiaries. Survivors’ pensions were the second largest category, accounting for just less than 11.3% of expenditure and received by 20.3% of beneficiaries, followed by disability pensions, accounting for 8.4% of expenditure and received by 12.3% of beneficiaries. Unemployment pensions were the smallest category (accounting for less than 0.3% of expenditure and of beneficiaries).", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 45. The applicant complained that she had lost her source of income, previously secured by the disability pension, because under the new system, in place as of 2012, she was no longer entitled to that, or a similar, benefit, although her health had not improved; and she submitted that this was a consequence of the amended legislation, which contained conditions she could not possibly fulfil. She relied on Article 6 of the Convention.", "46. The Chamber found it appropriate to examine the applicant’s complaint under 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.” The Grand Chamber agrees with this approach.", "It will therefore proceed in the same manner. 47. The Government contested the applicant’s argument. A. The Chamber judgment 48.", "Interpreting the Constitutional Court’s approach to the question, the Chamber was satisfied that the disability benefit, in the form of a pension or an allowance, flowed from an assertable right under the domestic law, in the sense that once the individual concerned had made the requisite contributions to the scheme, she would become entitled to it whenever her health situation so required. The Chamber observed that, during her employment, the applicant had contributed to the social-security system as required by the law. For the Chamber, those contributions resulted in a legitimate expectation that she would receive disability benefit, which expectation was formally recognised and honoured by the authorities when the applicant was granted a disability pension in 2001. The Chamber thus found Article 1 of Protocol No. 1 applicable to the case.", "49. The Chamber further held that the recognised legitimate expectation, continuous in its legal nature, could not be considered extinguished by the fact that, under a new assessment methodology, the applicant’s disability was evaluated at a lower level in 2009. Her previously obtained possession of a disability pension had been replaced at that time with the recognised legitimate expectation of continued payment of a benefit, should the circumstances again so require. 50. In the Chamber’s view, the denial of the applicant’s eligibility for disability pension under the 2012 rules constituted an interference with her property rights as guaranteed by Article 1 of Protocol No.", "1. As to the proportionality of that interference, the Chamber held that the applicant had sustained a drastic change, namely the total removal of her possibility to access disability benefits, which represented an excessive individual burden, with no possibility of remedying her situation once the new rules were enacted. For these reasons, the Chamber found that there had been a violation of Article 1 of Protocol No. 1. B.", "The parties’ submissions to the Grand Chamber 1. The applicant 51. The applicant was of the opinion that Article 1 of Protocol No. 1 was applicable to her case. She contended that between 2001 and 1 February 2010 she had had a possession, in the form of an existing pecuniary asset, specifically the disability pension.", "She had subsequently retained an assertable right to disability benefit for as long as she satisfied the criteria that were applicable in 2001; in other words, she had a legitimate expectation stemming from various sources. 52. In her view, the former Constitution had conferred on disabled persons an entitlement to social-welfare benefits as of right. According to the Constitutional Court’s interpretation, she, as a disabled individual, had an assertable right to some form of welfare benefit. At the hearing, she referred to decisions no.", "37/2011 of the Hungarian Constitutional Court and no. 1 BvL 1/09 of the German Federal Constitutional Court, both confirming, in her view, the existence of a right to a social allowance for those in need, to the extent that this is required for basic subsistence. 53. Moreover, she relied on Article 12 § 2 of the European Social Charter, which contains a reference to ILO Convention no. 102, setting forth minimum standards in the field of social security, as well as on the United Nations Convention on the Rights of Persons with Disabilities.", "In her view, these texts, forming part of Hungary’s obligations under international law, also provided for an assertable right to disability benefit. 54. The applicant further argued that her right to disability pension was likewise assertable under the domestic law, in particular Act no. LXXXI of 1997 on Social-Security Pensions. Under the terms of that statute, she had obtained an assertable right to a disability benefit on the strength of having become disabled; in subsequently granting her the disability pension, the authorities had merely endorsed that right, already existing.", "55. At the hearing, the applicant noted that the Government had accepted, if only for the period until her actual pension entitlement was terminated, the existence of a legitimate expectation flowing from the domestic law as in force when her eligibility was first established in 2001. 56. The applicant stressed that her health condition had not improved, as was stated in the expert opinion of 16 February 2011. Accordingly, she had not ceased to satisfy the relevant conditions; instead, it was the legal conditions which had changed.", "She noted that the Government had not produced any medical report or expert opinion clearly pointing to any improvement in her health. 57. The interference with her rights under Article 1 of Protocol No. 1 consisted not only in the dismissal of her request in 2012 but in a “continuing situation” of interference since the withdrawal of her disability pension in 2010, enshrined in the persistent denial of disability benefits, notwithstanding the periodic reviews undergone by her. As this rendered the six-month rule inapplicable, the applicant invited the Grand Chamber to examine the lawfulness of the termination of her disability pension in 2010.", "58. Furthermore, the applicant argued that the disability pension had been withdrawn by way of quasi-retroactive legislation, without regard to acquired rights and on the ground of an assessment methodology of dubious legal value. The Government had failed to provide any truly legitimate aim pursued by the interference. Nor was it proportionate. Despite her continuous illness, her disability benefit had been unduly withdrawn and her subsequent requests had also been unduly denied.", "Rather than having to endure a reasonable and commensurate reduction in the level of benefits, she had been totally divested of her means of subsistence and had thus to bear an excessive individual burden. 59. Lastly, the applicant insisted, for the first time in her memorial to the Grand Chamber, on the need for a separate scrutiny of the facts of the case under Article 8 of the Convention should the Court be unable to find Article 1 of Protocol No. 1 applicable to her claim. 2.", "The Government 60. The Government argued that the application was inadmissible as being incompatible ratione materiae with the provisions of the Convention or its Protocols. The legitimate expectation to receive a disability benefit ‑ which admittedly had been generated by the domestic law in 2001 when the applicant’s eligibility had first been established – had been extinguished with the withdrawal of her entitlement in 2010. The Government added that, had the law not been amended, she would once again have become eligible when her health impairment was again assessed as exceeding the relevant threshold in 2012. The Constitution could not serve as a basis in national law for the legitimate expectation as argued by the applicant, since it merely laid down principles, whereas the actual eligibility rules for disability benefits were outlined in other legal provisions.", "61. In the Government’s opinion, the broadening of the notion of legitimate expectation – as suggested by the Chamber judgment – would be wholly inconsistent with the Court’s case-law, place an excessive financial burden on the Contracting States and exert a “chilling effect” on national legislatures intent on reforming their social-security systems. The Convention did not guarantee any property rights independently from the domestic law of sovereign States. At the hearing, they cautioned against the stealthy creation of an independent European social law on an undefined basis, without the checks and balances that only a State legislature could guarantee. 62.", "According to the Government, some improvement in the applicant’s health had been substantiated by the expert opinion and the national court’s judgment (see paragraphs 15 and 16 above). This was also indicated by the fact that her 67% loss of working capacity under the pre-2008 system would have been equivalent to 54% health impairment under the new methodology; however, it had been assessed at 40% in 2009, which thus indicated a certain improvement in her health. The regular statutory reviews foreseen by the expert opinions prior to the withdrawal of the disability pension suggested only that the applicant’s ailments were susceptible to evolution, whereas the periodic reviews subsequent to that withdrawal had been requested by the applicant, rather than ordered by the authorities, and could therefore not be interpreted as proof of any subsisting legitimate expectation. 63. The Government further asserted that ex post facto legislation was typical of any social-security system, because of the lengthy and continuing nature of the social-security relationship between an insured person and the State.", "Applications for such benefits were normally not adjudicated on the basis of the law as in force at the beginning of the insurance relationship but rather under the law as it stood when the request was decided upon. Amendments enacted in the meanwhile to social-security laws might thus inevitably impose an individual burden on the insured. Any ex post facto legislation could only be validly disputed if the new law concerned those already in receipt of a benefit at the time of the entry into force of the retroactive law; however, this was not the case here. 64. The Government also argued that the State could not be held liable for the applicant’s failure to acquire the requisite insurance cover.", "Had she contributed to the scheme without interruption through social-security contributions while she was capable of doing so, she could most probably have attained the requisite number of days. To dispense the applicant from making the necessary contributions would be unfair and discriminatory towards those in a comparable situation who had diligently contributed to the social-security scheme. With regard to the actual aggregate of contributions made by the applicant, the Government submitted that this was a necessary but not a sufficient precondition, which was not capable of substituting for a valid national legal basis. 65. Given that social-welfare cover was continuously secured for those who were entitled to it on the date that the social-security scheme in question was amended, the Government submitted that the cover did not cease to exist, nor was it reduced as a result of that change.", "It would be unreasonable to expect the scheme to cover everyone who had once been granted such an allowance, irrespective of the loss of such status. This would place a heavy and excessive burden on the social-security schemes of the member States, and was not required by the principle of proportionality. 66. The Government lastly challenged the relevance of ILO Convention no. 102 on Social Security (Minimum Standards) and the International Classification of Functioning, Disability and Health (ICF) endorsed by the Member States of the World Health Organisation.", "With respect to the ILO Convention, the Government referred to the lack of a minimum level of adherence by European States; with regard to the ICF, they pointed to the absence of an “international-law” character. C. The third-party intervener’s arguments 67. The European Trade Union Confederation (ETUC) set out the international standards and case-law, as well as the practice in European States, pertaining to the right to social security in general and the right to invalidity benefits in particular. 68. It provided the Court with an analysis of Articles 22 and 25 (1) of the Universal Declaration of Human Rights; Article 9 of the International Covenant on Economic, Social and Cultural Rights together with the relevant general comments adopted by the Committee of Economic, Social and Cultural Rights; Article 28 of the UN Convention on the Rights of Persons with Disabilities; Conventions nos.", "102 and 128 of the International Labour Organization; Article 12 of the European Social Charter; the European Code of Social Security; and Article 34 of the Charter of Fundamental Rights of the European Union. It also described the relevant practice of the European Union and Council of Europe Member States, based on the comparison of data available from the MISSOC and MISSCEO databases. 69. Against that background, it argued that it was demonstrated that the overwhelming majority, if not the totality, of Council of Europe Member States had agreed to provide protection against the risk of invalidity, by means either of international ratifications and/or national legislation within their social-security system; and that thus a European consensus had emerged in that field. This fact should warrant, as a consequence, an interpretation of Article 1 of Protocol No.", "1 to the effect that its material scope should include the right to social security in general and the right to invalidity benefits in particular. D. The Grand Chamber’s assessment 1. The Government’s plea of inadmissibility 70. The Court observes that the Government’s plea of inadmissibility, arguing the complaint’s incompatibility ratione materiae with the Convention and the Protocols thereto, was raised for the first time before the Grand Chamber. 71.", "The Court sees no need to examine whether the Government are estopped under Rule 55 of the Rules of Court from making the said objection, since it finds in any event that it concerns a matter which goes to the Court’s jurisdiction and which it is not prevented from examining of its own motion (see, for instance, R.P. and Others v. the United Kingdom, no. 38245/08, § 47, 9 October 2012). It considers that, in the particular circumstances of the present case, the objection is so closely linked to the substance of the applicant’s complaint that it should be joined to the merits. 2.", "Applicability of Article 1 of Protocol No. 1 (a) General principles regarding the scope of the provision 72. The Court reiterates that Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules. The first rule, which is set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of 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, by enforcing such laws as they deem necessary for the purpose. However, the rules are not “distinct” in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many other authorities, James and Others v. the United Kingdom, 21 February 1986, § 37, Series A no. 98; and Sargsyan v. Azerbaijan [GC], no.", "40167/06, § 217, ECHR 2015). 73. The concept of “possession” within the meaning of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to ownership of material goods and is independent from the formal classification in domestic law: certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision (see Iatridis v. Greece [GC], no. 31107/96, § 54, ECHR 1999-II; Beyeler v. Italy [GC], no.", "33202/96, § 100, ECHR 2000-I; and Parrillo v. Italy [GC], no. 46470/11, § 211, ECHR 2015). 74. Although Article 1 of Protocol No. 1 applies only to a person’s existing possessions and does not create a right to acquire property (see Stummer v. Austria [GC], no.", "37452/02, § 82, ECHR 2011), in certain circumstances a “legitimate expectation” of obtaining an asset may also enjoy the protection of Article 1 of Protocol No. 1 (see, among many authorities, Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65, ECHR 2007-I). 75. A legitimate expectation must be of a nature more concrete than a mere hope and be based on a legal provision or a legal act such as a judicial decision.", "The hope that a long-extinguished property right may be revived cannot be regarded as a “possession”; nor can a conditional claim which has lapsed as a result of a failure to fulfil the condition (see Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, §§ 69 and 73, ECHR 2002-VII). Further, no “legitimate expectation” can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (see Kopecký v. Slovakia [GC], no. 44912/98, § 50, ECHR 2004-IX). At the same time, a proprietary interest recognised under domestic law – even if revocable in certain circumstances – may constitute a “possession” for the purposes of Article 1 of Protocol No.", "1 (see Beyeler, cited above, § 105). 76. In cases concerning Article 1 of Protocol No. 1, the issue that needs to be examined is normally whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by that provision (see Iatridis, cited above, § 54; Beyeler, cited above, § 100; and Parrillo, cited above, § 211). In applications concerning claims other than those relating to existing possessions, the idea behind this requirement has also been formulated in various other ways throughout the Court’s case-law.", "By way of example, in a number of cases the Court examined, respectively, whether the applicants had “a claim which was sufficiently established to be enforceable” (see Gratzinger and Gratzingerova, cited above, § 74); whether they demonstrated the existence of “an assertable right under domestic law to a welfare benefit” (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2005-X); or whether the persons concerned satisfied the “legal conditions laid down in domestic law for the grant of any particular form of benefits” (see Richardson v. the United Kingdom (dec.), no. 26252/08, § 17, 10 April 2012). 77. In Kopecký, the Grand Chamber recapitulated the Court’s case-law on the notion of “legitimate expectation”.", "Following an analysis of different lines of cases concerning legitimate expectations, the Court concluded that its case-law did not contemplate the existence of a “genuine dispute” or an “arguable claim” as a criterion for determining whether there was a “legitimate expectation” protected by Article 1 of Protocol No. 1. It took the view that “where the proprietary interest is in the nature of a claim it may be regarded as an “asset” only where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it” (see Kopecký, cited above, § 52). 78. One of the lines of case-law on “legitimate expectation” referred to above involved situations where the persons concerned were entitled to rely on the fact that a legal act, on the basis of which they had incurred financial obligations, would not be retrospectively invalidated to their detriment (see Pine Valley Developments Ltd and Others v. Ireland, 29 November 1991, § 51, Series A no.", "222; and Stretch v. the United Kingdom, no. 44277/98, § 35, 24 June 2003). In this line of cases, the “legitimate expectation” was thus based on a reasonably justified reliance on a legal act which had a sound legal basis and which bore on property rights (see Kopecký, cited above, § 47). Respect for such reliance follows from one aspect of the rule of law, which is inherent in all the Articles of the Convention and which implies, inter alia, that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by the Convention (see, as a recent authority, Karácsony and Others v. Hungary [GC], no. 42461/13, § 156, 17 May 2016, with further references).", "79. Notwithstanding the diversity of the expressions in the case-law referring to the requirement of a domestic legal basis generating a proprietary interest, their general tenor can be summarised as follows: for the recognition of a possession consisting in a legitimate expectation, the applicant must have an assertable right which, applying the principle enounced in paragraph 52 of Kopecký (rendered in paragraph 77 above) may not fall short of a sufficiently established, substantive proprietary interest under the national law. (b) The scope of Article 1 of Protocol No. 1 in regard to social benefits, in particular disability/invalidity benefits 80. In the modern, democratic State, many individuals are, for all or part of their lives, completely dependent for survival on social-security and welfare benefits.", "Many national legal systems recognise that such individuals require a degree of certainty and security, and provide for benefits to be paid – subject to the fulfilment of the conditions of eligibility – as of right (see Stec and Others (dec.), cited above, § 51). The principles which apply generally in cases under Article 1 of Protocol No. 1 are equally relevant when it comes to social and welfare benefits (see Stec and Others (dec.), cited above, § 54). The Court has previously addressed the issue of legitimate expectation in the context of social benefits on a number of occasions (see, for example, Kjartan Ásmundsson v. Iceland, no. 60669/00, § 44, ECHR 2004‑IX, and Klein v. Austria, no.", "57028/00, § 45, 3 March 2011. 81. In those legal systems where the national legislation requires mandatory contributions of employees to the social-security system, the legislation normally provides that those who have made adequate contributions and satisfied the statutory requirements of disability will receive some form of long-term disability benefit, on grounds of the principles of social solidarity and equivalency, for the period of the disability persisting or until the age of retirement. Such insurance schemes, which are typically mandatory, provide such protection, that is, the availability of benefits, for the entire period of insurance and on every occasion when the conditions of the insurance are satisfied. The relevant legal conditions are however subject to evolution.", "In this connection, it may be reiterated that in Gaygusuz v. Austria (16 September 1996, § 41, Reports of Judgments and Decisions 1996‑IV) the Court found that the right to emergency assistance – a social benefit linked to the payment of contributions to the unemployment insurance fund – was, in so far as provided for in the applicable legislation, a pecuniary right for the purposes of Article 1 of Protocol No. 1. In Klein (cited above, § 43) it was noted that entitlement to a social benefit – in that instance, a pension payable from a lawyers’ pension scheme – was linked to the payment of contributions, and, when such contributions had been made, an award could not be denied to the person concerned. Contributions to a pension fund may thus, in certain circumstances and according to the domestic law, create a property right (see Kjartan Ásmundsson, cited above, § 39; Apostolakis v. Greece, no. 39574/07, §§ 28 and 35, 22 October 2009; Bellet, Huertas and Vialatte v. France (dec.), nos.", "40832/98, 40833/98 and 40906/98, 27 April 1999; Skórkiewicz v. Poland (dec.), no. 39860/98, 1 June 1999; and Moskal v. Poland, no. 10373/05, § 41, 15 September 2009). 82. The Court has also held that Article 1 of Protocol No.", "1 imposes no restriction on the Contracting States’ freedom to decide whether or not to have in place any form of social-security scheme, or to choose the type or amount of benefits to provide under any such scheme (see Sukhanov and Ilchenko v. Ukraine, nos. 68385/10 and 71378/10, §§ 35-39, 26 June 2014; Kolesnyk v. Ukraine (dec.), no. 57116/10, §§ 83, 89 and 91, 3 June 2014; and Fakas v. Ukraine (dec.), no. 4519/11, §§ 34, 37-43, 48, 3 June 2014). If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No.", "1 for persons satisfying its requirements (see Stec and Others (dec.), cited above, § 54). 83. In certain circumstances the making of compulsory contributions, for example to a pension fund or a social insurance scheme, may create a property right protected by Article 1 of Protocol No. 1 even before the contributor fulfils all the conditions to actually receive the pension or other benefit. This is the case when there is a direct link between the level of contributions and the benefits awarded (see Stec and Others (dec.), cited above, § 43).", "The payment of contributions to a pension fund may in certain circumstances create a property right in a portion of such a fund and a modification of the pension rights under such a system could therefore in principle raise an issue under Article 1 of Protocol No. 1; even if it is assumed that Article 1 of Protocol No. 1 guarantees to persons who have paid contributions to a special insurance system the right to derive benefit from the system, it cannot be interpreted as entitling that person to a pension of a particular amount (see Müller v. Austria, no. 5849/72, Commission’s report of 1 October 1975, DR 3, p. 25, § 30, quoted in T. v. Sweden, no. 10671/83, Commission decision of 4 March 1985, DR 42, p. 229, at p. 232).", "84. In this connection, it ought to be reiterated that Article 1 of Protocol No. 1 to the Convention does not guarantee, as such, any right to a pension of a particular amount (see Kjartan Ásmundsson, cited above, § 39), although where the amount of a benefit is reduced or discontinued, this may constitute interference with possessions which requires to be justified (see Valkov and Others v. Bulgaria, nos. 2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05 and 2041/05, § 84, 25 October 2011; and Grudić v. Serbia, no. 31925/08, § 72, 17 April 2012).", "85. In determining whether there has been an interference, the Court’s enquiry will focus on the domestic law in force at the time of the alleged interference (see, as an example from the law on compensation, Maurice v. France [GC], no. 11810/03, § 67, ECHR 2005‑IX). 86. Where the person concerned did not satisfy (see Bellet, Huertas and Vialatte, cited above), or ceases to satisfy, the legal conditions laid down in domestic law for the grant of any particular form of benefits or pension, there is no interference with the rights under Article 1 of Protocol No.", "1 (see Rasmussen v. Poland, no. 38886/05, § 71, 28 April 2009) where the conditions had changed before the applicant became eligible for a specific benefit (see Richardson, cited above, § 17). Where the suspension or diminution of a pension was not due to any changes in the applicant’s own circumstances, but to changes in the law or its implementation, this may result in an interference with the rights under Article 1 of Protocol No. 1 (see Grudić, cited above, § 77). 87.", "In a number of cases the Court has been prepared to accept that the grant of a pension benefit, of which the applicant was subsequently divested on the grounds that the legal conditions for such a grant had not been fulfilled to begin with, could give rise to a possession for the purposes of the Protocol (see Moskal, cited above, § 45; and Antoni Lewandowski v. Poland, no. 38459/03, §§ 78 and 82, 2 October 2012). In another case it considered that the failure to fulfil a condition (namely the requirement of affiliation to a professional association), which under national law was a sufficient reason for forfeiture of a pension claim, did not lead to the conclusion that the applicant had no possession within the meaning of Article 1 of Protocol No. 1 (see Klein, cited above, § 46). Nor was the Court prevented from finding that an applicant, whose application for disabled adults allowance had been rejected on the grounds of his non-fulfilment of a statutory nationality condition, had a pecuniary right for the purposes of Article 1 of Protocol No.", "1 (see Koua Poirrez v. France, no. 40892/98, §§ 37-42, ECHR 2003-X). By contrast, in yet a further case, the mere fact that the public authorities had tolerated the cumulating of two pensions and, where it was permitted, reimbursement of the contributions for one of them, did not give rise to a right protected by the Protocol (see Bellet, Huertas and Vialatte, cited above). 88. The fact that a person has entered into and forms part of a State social-security system (even if a compulsory one, as in the instant case) does not necessarily mean that that system cannot be changed, either as to the conditions of eligibility of payment or as to the quantum of the benefit or pension (see, mutatis mutandis, Carson and Others v. the United Kingdom [GC], no.", "42184/05, §§ 85-89, ECHR 2010; and Richardson, cited above, § 17). Indeed, the Court has accepted the possibility of amendments to social-security legislation which may be adopted in response to societal changes and evolving views on the categories of persons who need social assistance, and also to the evolution of individual situations (see Wieczorek v. Poland, no. 18176/05, § 67, 8 December 2009). 89. Thus, as can be seen from the above case-law, where the domestic legal conditions for the grant of any particular form of benefits or pension have changed and where the person concerned no longer fully satisfies them due to the change in these conditions, a careful consideration of the individual circumstances of the case – in particular, the nature of the change in the requirement – may be warranted in order to verify the existence of a sufficiently established, substantive proprietary interest under the national law.", "Such are the demands of legal certainty and the rule of law, which belong to the core values imbuing the Convention. (c) Application of these principles to the present case 90. At the outset, the Grand Chamber notes that in the proceedings before it the applicant reverted to her argument made before the Chamber concerning the allegedly “continuing situation” of the interference originating in the discontinuation of her disability pension in 2010 (see paragraph 57 above). However, the Grand Chamber also notes that the Chamber considered that the Nyíregyháza Labour Court’s judgment of 1 April 2011 dismissing the applicant’s appeal was final, and that the application to the Strasbourg Court had been filed more than six months later. For that reason, the Chamber considered that it was prevented, pursuant to Article 35 § 1 of the Convention, from examining the procedure having led to the judgment of 1 April 2011 (see § 31 of the Chamber judgment).", "The Grand Chamber therefore has no jurisdiction to examine the proceedings that ended with the judgment of 1 April 2011. 91. The Grand Chamber will accordingly limit its examination to the case as it was declared admissible by the Chamber (see K. and T. v. Finland [GC], no. 25702/94, § 141, ECHR 2001-VII), namely the applicant’s grievance resulting from the proceedings which began with the applicant’s request for a disability pension submitted on 20 February 2012 and which ended with the Nyíregyháza Administrative and Labour Court’s judgment of 20 June 2013, in which she was found ineligible for a disability pension under the 2012 rules on account of an insufficient period of social cover (see the description of the relevant proceedings in paragraphs 19 to 23 above). 92.", "However, in examining whether the outcome of the proceedings ending with the judgment of 20 June 2013 (see paragraph 23 above) was compatible with Article 1 of Protocol No. 1, the Court is not prevented from taking into account facts that occurred before and after the decision of 1 February 2010. 93. The Court notes that the system of disability allowances in question, both in its pre-2012 and its current form, essentially operated on the basis of two cumulative eligibility criteria: (i) a “health condition”, under which the benefit was due only to persons whose health and employment status so required, and (ii) a “contribution condition”, which required the fulfilment of a certain service period (as under the pre-2012 legislation) or, in essence, a period covered by social-security contributions (see paragraphs 28 and 29 above). 94.", "Thus, when the applicant completed the requisite service period (on a date not specified but by 2001 at the latest) she fulfilled the “contribution condition” as contained in the law in force at the time; and, when in 2001 her disability was established as exceeding the requisite level, the second criterion (the “health condition”) was also met. Accordingly, from 2001 until 2009/10, that is, for almost ten years, the applicant fulfilled all the conditions of eligibility for receiving a disability pension as of right (see Stec and Others (dec.), cited above, § 51, quoted in paragraph 80 above). The decision granting her a disability pension in accordance with the provisions of the 1997 Act and which formed the basis of her original entitlement could thus be regarded as representing an “existing possession” (see Kopecký, § 35(c)). Further, it seems undeniable that throughout the said period, she could, on the basis of the said “legal act”, entertain a “legitimate expectation” (ibid., § 47) of continuing to receive disability benefits should her disability persist to the requisite degree, there being no dispute as to the correct interpretation and application of domestic law (ibid., § 50). 95.", "However, the question arises whether the applicant’s legitimate expectation still existed on 1 January 2012, when the legislature changed the contribution criteria for the disability benefit, effectively invalidating the legal effect of the fact that she had already once fulfilled the “contribution condition”. Due to that legislative change, she was denied disability allowance on the ground that she was not eligible under the newly introduced contribution rules. This state of affairs was then reaffirmed in the applicant’s individual case, with authoritative force, by the final judgment of the Nyíregyháza Administrative and Labour Court, adopted on 20 June 2013 (see paragraph 23 above). It is only if her legitimate expectation continued to exist until 1 January 2012 that this legislative amendment could be considered to constitute an interference with the applicant’s possessions within the meaning of Article 1 of Protocol No. 1.", "96. The parties’ positions diverged as to whether the applicant’s legitimate expectation to receive disability benefits whenever eligible (see paragraphs 51, 55 and 60 above) was extinguished after the discontinuation of her entitlement to the pension in 2010. Thus, the question to be determined by the Court is whether in 2012, when the applicant applied for disability allowance on the basis of the new finding that her health was sufficiently impaired, she still had a legitimate expectation, satisfying the criteria in its case-law, of receiving disability benefits. 97. In examining this question, the Court does not find it necessary to resolve the disagreement between the parties as to whether or not the applicant’s health had actually improved in the period at issue.", "It notes that, according to the expert opinion of 16 February 2011 submitted to the Labour Court (see paragraph 15 above), her condition had not significantly improved since 2007. Moreover, it was not in dispute between the parties that her medical situation would have made her eligible for the disability benefit in 2012 had the new law not entered into force earlier that year. Indeed the Government even confirmed that this would have been the case (see paragraphs 22 and 60 above). 98. The question whether the applicant still had a legitimate expectation, satisfying the criteria in the Court’s case-law, at the time of the entry into force of the new legislation in 2012 cannot be answered solely on the basis of that legislation.", "The underlying reason for such an assertion is that the principles which exclude the finding of an interference where the person concerned ceases to satisfy the legal conditions laid down in domestic law cannot be mechanically applied to situations where the complaint specifically concerns the very change in the legal conditions that is at issue. 99. Therefore, to limit the Court’s scrutiny to the question as to whether Article 1 of Protocol No. 1 is inapplicable on the sole ground of the absence of a domestic legal basis in 2012 would be tantamount to deliberately circumventing the crux of the applicant’s grievance, that crux being precisely the change in the law (see Lakićević and Others, cited above, § 70) annihilating the previously existing legal basis for her disability allowance. The change in the law effectively imposed on a certain category of insured persons, including the applicant, a condition whose advent had not been foreseeable during the relevant potential contributory period and which they could not possibly satisfy once the new legislation entered into force – a combination of elements which is ultimately difficult to reconcile with the rule of law.", "The Court points out at this juncture that the Convention is intended to guarantee rights that are “practical and effective” rather than theoretical and illusory (see Perdigão v. Portugal [GC], no. 24768/06, § 68, 16 November 2010). To hold that although a person has contributed to an insurance scheme and has satisfied its contributory requirement, he or she could be totally deprived of the legitimate expectation of eventual benefits would sit uncomfortably with this principle. 100. As mentioned above, a proprietary interest recognised under domestic law – even if revocable in certain circumstances – may constitute a “possession” for the purposes of Article 1 of Protocol No.", "1 (see Beyeler, cited above, § 105). In following such an approach, the Court has declared Article 1 of Protocol No. 1 applicable in a number of cases where the applicants, by the time they lodged their application with the Court, no longer satisfied the conditions of entitlement laid down in national law for the benefit in question (see, for example, Kjartan Ásmundsson, cited above, § 40). 101. A closer examination is therefore warranted as to whether, at least until the alleged legislative interference in 2012, the applicant had a sufficiently established, substantive proprietary interest that qualified as a “possession” for the purposes of Article 1 of Protocol No.", "1 (see paragraph 79 above). 102. In this connection, the Court observes in particular that during the intervening period between the discontinuation of the applicant’s disability pension in 2010 and the legislature’s introduction of the new contribution requirement in 2012, the applicant not only continued to be part of the social-security system but also continued to fulfil the relevant length-of-service requirement for disability benefits. Co-operating with the authorities at all times, and actively and continuously pursuing her disability claim, she underwent several periodic reassessments of her condition in the years 2011 and 2012; further such assessments were scheduled for November 2012, April and September 2014 and March 2015. 103.", "In its ruling of 1 April 2011, the Nyíregyháza Labour Court noted that the applicant had accrued 23 years and 71 days of service time (see paragraph 16 above), which, the Court observes, far exceeds the five-year minimum period (prior to contingency) warranting at least a reduced invalidity benefit under the European Code of Social Security and ILO Conventions nos. 102 and 128 (see paragraph 42 above). Furthermore, whilst approving the withdrawal of the applicant’s disability pension as of 1 February 2010, the Labour Court expressly confirmed that a new medical assessment could take place in 2012 and drew her attention to the possibility of making a renewed application should her health deteriorate (see paragraph 16 above). 104. Moreover, although for a while her degree of disability was considered somewhat below the minimum level required (40% in December 2009 and April 2011, then 45% in September 2011, see paragraphs 12 to 17 above), in December 2011, that is, before the end of the said period, it reached 50%, as it did again in February 2012.", "It was undisputed that this disability level would have qualified the applicant for a disability benefit in February 2012 had it not been for the new retroactive contribution requirement, which was not met by her. In the meantime, on 13 December 2011, she had been recommended for rehabilitation and for the accompanying allowance – a type of benefit closely related to disability pension (see paragraph 17 above) and introduced to take the place of the disability pension for individuals capable of being rehabilitated. However, the authorities did not implement this recommendation. Had they done so, the applicant might have been in receipt of a benefit on 31 December 2011, which would have altered her situation under the new law. 105.", "The Court reiterates that the applicant contributed to the insurance scheme on a mandatory basis and satisfied the statutory requirements of eligibility for disability benefits. The Court has already noted that contributions to a pension fund may, in certain circumstances and according to the domestic law, create a property right for the purposes of Article 1 of Protocol No. 1 (see paragraphs 81 and 83 above) and finds that such circumstances exist in the present case, in view of the fact that her contribution was recognised as sufficient at the latest on 1 April 2001 (see paragraph 11 above). She could therefore reasonably rely on the promise of the law that she would be entitled to disability benefits whenever she satisfied the applicable health-related conditions. 106.", "In these circumstances, the Court does not consider that the reduction in the applicant’s disability degree in 2009, the resultant discontinuation of her disability pension in 2010 or any other factors pertaining to her pension status during the intervening period until 31 December 2011 were sufficient to extinguish her legitimate expectation that she would receive disability benefits should her disability again attain the requisite degree. On the contrary, the measures taken by the authorities and the judgment of 1 April 2011 in particular indicate that the authorities acted in full recognition of the applicant’s insured status, and therefore the applicant could have relied in a reasonably justified manner on the applicable legislation and had a legitimate expectation of receiving a disability benefit should the statutory conditions be satisfied. As the Government admit, but for the new conditions of the 2012 Act she would have qualified for disability allowance in 2013. 107. In short, between 2010 and 31 December 2011 the applicant, while not in receipt of a pension, continued to entertain a “legitimate expectation”, covered by the notion of “possession” in Article 1 of Protocol No.", "1. 108. When, following the entry into force of the new law and relying on her newly re-assessed and sufficiently impaired health, the applicant applied for disability allowance in 2012, she did no more, in the Court’s view, than seek to avail herself once again of an existing legitimate expectation to be provided with a social-security benefit, rather than pursuing the “acquisition” of a “possession”. It was not in dispute between the parties that the applicant would have been eligible for the disability allowance from the date on which her health impairment was found in 2012 to have exceeded the relevant threshold, had the new law not entered into force earlier that year (see paragraphs 22 and 60 above). 109.", "The interference in question, which resulted from the entry into force of the new law as from 2012, consisted in a complete refusal of the applicant’s request for the disability allowance; in other words, her right to derive benefits from the social-insurance scheme in question was infringed in a manner that resulted in the impairment of her pension rights. 110. These elements are sufficient for the Court to find that Article 1 of Protocol No. 1 is applicable in the present case. The Government’s preliminary objection concerning incompatibility ratione materiae with the provisions of the Convention must thus be dismissed.", "111. In view of this conclusion, the Court finds that it is not warranted to address the parties’ further arguments intended to elucidate the nature of the disputed entitlement as it is described by various international texts. 3. Compliance with Article 1 of Protocol No. 1 (a) General principles 112.", "An essential condition for an interference with a right protected by Article 1 of Protocol No. 1 to be deemed compatible with this provision is that it should be lawful. The rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see Iatridis, cited above, § 58; Wieczorek, cited above, § 58; and Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 96, 25 October 2012). 113.", "Moreover, any interference by a public authority with the peaceful enjoyment of possessions can only be justified if it serves a legitimate public (or general) interest. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to decide what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures interfering with the peaceful enjoyment of possessions. The notion of “public interest” is necessarily extensive. In particular, the decision to enact laws concerning social-insurance benefits will commonly involve consideration of economic and social issues.", "The Court finds it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one and will respect the legislature’s judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation (see, mutatis mutandis, The former King of Greece and Others v. Greece [GC], no. 25701/94, § 87, ECHR 2000-XII; Wieczorek, cited above, § 59; Frimu and Others v. Romania (dec.), nos. 45312/11, 45581/11, 45583/11, 45587/1 and 45588/11, § 40, 7 February 2012; Panfile v. Roumania (dec.), no. 13902/11, 20 March 2012, and Gogitidze and Others v. Georgia, no. 36862/05, § 96, 12 May 2015).", "114. This is particularly so, for instance, when passing laws in the context of a change of political and economic regime (see Valkov and Others, cited above, § 91; the adoption of policies to protect the public purse (see N.K.M. v. Hungary, no. 66529/11, §§ 49 and 61, 14 May 2013); or to reallocate funds (see Savickas v. Lithuania and Others (dec.), no. 66365/09, 15 October 2013); or of austerity measures prompted by a major economic crisis (see Koufaki and ADEDY v. Greece (dec.), nos.", "57665/12 and 57657/12, §§ 37 and 39, 7 May 2013; see also da Conceição Mateus and Santos Januário v. Portugal (dec.) nos. 62235/12 and 57725/12, § 22, 8 October 2013; da Silva Carvalho Rico v. Portugal (dec.), § 37, no. 13341/14, 1 September 2015). 115. In addition, Article 1 of Protocol No.", "1 requires that any interference be reasonably proportionate to the aim sought to be realised (see Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, §§ 81‑94, ECHR 2005‑VI). The requisite fair balance will not be struck where the person concerned bears an individual and excessive burden (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74, Series A no. 52; Kjartan Ásmundsson, cited above, § 45; Sargsyan, cited above, § 241; Maggio and Others, cited above, § 63; and Stefanetti and Others, cited above, § 66). 116.", "In considering whether the interference imposed an excessive individual burden the Court will have regard to the particular context in which the issue arises, namely that of a social-security scheme. Such schemes are an expression of a society’s solidarity with its vulnerable members (see Maggio and Others, § 61, and Stefanetti and Others, § 55, both cited above, and also, mutatis mutandis, Goudswaard-Van der Lans v. the Netherlands (dec.), no. 75255/01, ECHR 2005-XI). 117. The Court reiterates that the deprivation of the entirety of a pension is likely to breach the provisions of Article 1 of Protocol No.", "1 and that, conversely, reasonable reductions to a pension or related benefits are likely not to do so. However, the fair balance test cannot be based solely on the amount or percentage of the reduction suffered, in the abstract. In a number of cases the Court has endeavoured to assess all the relevant elements against the specific background (see Stefanetti and Others, cited above, § 59, with examples and further references; see also Domalewski, v. Poland (dec.), no. 34610/97, ECHR 1999‑V). In so doing, the Court has attached importance to such factors as the discriminatory nature of the loss of entitlement (see Kjartan Ásmundsson, cited above, § 43); the absence of transitional measures (see Moskal, cited above, § 74, where the applicant was faced, practically from one day to the next, with the total loss of her early-retirement pension, which constituted her sole source of income, and with poor prospects of being able to adapt to the change); the arbitrariness of the condition (see Klein, cited above, § 46), as well as the applicant’s good faith (see Moskal, cited above, § 44).", "118. An important consideration is whether the applicant’s right to derive benefits from the social-insurance scheme in question has been infringed in a manner resulting in the impairment of the essence of his or her pension rights (see Domalewski, cited above; Kjartan Ásmundsson, cited above, § 39; Wieczorek, cited above, § 57; Rasmussen, cited above, § 75; Valkov and Others, cited above, §§ 91 and 97; Maggio and Others, cited above, § 63; and Stefanetti and Others, cited above, § 55). (b) Application of these principles to the present case 119. In the present case the parties differed as to whether the interference with the applicant’s property right was “subject to the conditions provided for by law” within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1 and whether it was possible to identify a legitimate aim pursued by it.", "120. The Court notes that the interference consisted in the specific legislation introduced as of 2012 and in its application in the instant case. It is therefore satisfied that the interference complied with the requirement of lawfulness contained in the above provision. 121. The Court further considers that the interference complained of pursued the communal interest in protecting the public purse, by means of rationalising the system of disability-related social-security benefits.", "122. As to the proportionality of the interference, the respondent Government offered little comment. 123. The Court notes that the applicant was subjected to a complete deprivation of any entitlements, rather than to a commensurate reduction in her benefits, such as by, for example, calculating an allowance pro rata on the basis of the existing and missing days of social cover (see Kjartan Ásmundsson, §§ 44-45; Lakićević, § 72; and, a contrario, Richardson, § 24; and Wieczorek, § 71, all cited above), in view of the fact that her social-security cover was only 148 days short of the required length. This element gains particular importance in view of the fact that the applicant did not have any other significant income on which to subsist (see paragraph 25 above; compare also Kjartan Ásmundsson, cited above, § 44) and that she evidently had difficulties in pursuing gainful employment and belonged to the vulnerable group of disabled persons (see Alajos Kiss v. Hungary, no.", "38832/06, § 42, 20 May 2010). The Court is indeed mindful of the special characteristics of the type of pension at issue. Although, as mentioned above, the applicant was recommended for rehabilitation in December 2011, rehabilitation was not undertaken and she was not offered the related allowance (see paragraphs 17 and 104 above). 124. In the light of the above considerations, the Court is of the view that the disputed measure, albeit aimed at protecting the public purse by overhauling and rationalising the scheme of disability benefits, consisted in legislation which, in the circumstances, failed to strike a fair balance between the interests at stake.", "Such considerations cannot, in the Court’s view, justify legislating with retrospective effect and without transitional measures corresponding to the particular situation (see Moskal, cited above, §§ 74 and 76; see also the ruling of the Court of Justice of the European Union referred to in Baka v. Hungary [GC], no. 20261/12, § 69, 23 June 2016), entailing as it did the consequence of depriving the applicant of her legitimate expectation that she would receive disability benefits. Such a fundamental interference with the applicant’s rights is inconsistent with preserving a fair balance between the interests at stake (see, mutatis mutandis, Pressos Compania Naviera S.A. and Others, cited above, § 43). 125. It should also be noted that the applicant was deprived of entitlement to any allowance, despite the fact that there is no indication that she failed to act in good faith at all times, to co-operate with the authorities or to make any relevant claims or representations (compare Wieczorek, cited above, § 69 in fine).", "126. The Court thus considers that there was no reasonable relation of proportionality between the aim pursued and the means applied. It therefore finds that, notwithstanding the State’s wide margin of appreciation in this field, the applicant had to bear an excessive individual burden (see Kjartan Ásmundsson, cited above, § 45), amounting to a violation of her rights under Article 1 of Protocol No. 1. 127.", "Having reached this conclusion, there is no cause for the Court to consider the applicant’s alternative argument based on Article 8 of the Convention (see paragraph 59 above). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 128. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 129.", "The applicant claimed 13,185 euros (EUR) in respect of pecuniary damage, which amount corresponds to 68 months’ outstanding disability benefit. Moreover, she claimed EUR 6,000 in non-pecuniary damage. 130. The Government contested these claims. 131.", "The Court cannot speculate on the amount of disability benefit which would have been disbursed to the applicant had the violation not occurred. It therefore awards her a lump sum of EUR 10,000 in respect of the pecuniary damage sustained. Moreover, it considers that she must have suffered some non-pecuniary damage on account of the distress suffered and awards her, on the basis of equity, EUR 5,000 under this head. B. Costs and expenses 132.", "The applicant also claimed EUR 19,220, inclusive of value-added tax (VAT), for the costs and expenses incurred before the Court. This sum corresponds to 121.5 hours of legal work and 19.9 hours of paralegal work, billed by her lawyers and their staff at hourly fees of EUR 150 (inclusive of VAT) for lawyers’ fees and EUR 50 (inclusive of VAT) for the paralegals. 133. The Government contested this claim. 134.", "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 15,000 covering costs under all heads, less EUR 2,204.95, corresponding to the total amounts paid to the applicant’s lawyers under the Council of Europe’s legal-aid scheme with regard to the procedures before the Chamber and the Grand Chamber; the sum to be awarded is thus EUR 12,795.05. C. Default interest 135. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, 1.", "Joins to the merits, unanimously, the Government’s preliminary objection; 2. Holds, by nine votes to eight, that Article 1 of Protocol No. 1 to the Convention is applicable and therefore dismisses the Government’s preliminary objection; 3. Holds, by nine votes to eight, that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 4.", "Holds, by nine votes to eight, (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 12,795.05 (twelve thousand seven hundred and ninety-five euros and 5 cents), inclusive of 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 in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 13 December 2016. Søren PrebensenGuido RaimondiDeputy to the RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Judge Wojtyczek; (b) joint dissenting opinion of Judges Nußberger, Hirvelä, Bianku, Yudkivska, Møse, Lemmens and O’Leary. G.R.S.C.P.", "CONCURRING OPINION OF JUDGE WOJTYCZEK 1. I have voted for finding a violation of the Convention in the instant case; however, I respectfully disagree with the reasoning of the judgment. Equally, I subscribe to the way in which the minority opinion of eight judges has presented the existing case-law establishing the general principles pertaining to the protection of possessions under Article 1 of Protocol No. 1. Nonetheless, in the instant case I apply these general principles in a different manner to my colleagues in the minority.", "Moreover, the eight colleagues of the minority consider that those principles should be applied as they stand. In my view the established principles require certain additions and clarifications, which I shall attempt to expose below. In any event, the reasoning is founded upon principles firmly rejected by nine judges, which diminishes the authority of the judgment and its practical import. 2. The Court’s existing case-law on legitimate expectations is difficult to understand, due to lack of precision and inconsistencies (compare, for instance, the critical assessment made by M. Sigron, Legitimate Expectations under Article 1 of Protocol No.", "1 to the European Convention on Human Rights, Cambridge-Antwerp-Portland: Intersentia 2014, pp. 96‑97). I regret to say that the general principles as developed in the present judgment’s reasoning serve only to petrify the current state of confusion. In particular, the notion of legitimate expectations on which the reasoning is based appears vague and obscure, and its relationship with the notions of right, claim and legally protected interest is not clear. 3.", "Without entering into details, I should like to outline very briefly how I perceive the relationship between two fundamental concepts: subjective rights and legitimate expectations. A subjective right, by definition, entitles the right-holder to certain behaviour on the part of the right-obligor in his favour. Generally speaking, subjective rights are enforceable claims. Not only can the right-holder expect certain (future) conduct from the right-obligor, but he can also demand it and, if necessary, resort to remedies triggering an enforcement procedure. It should be noted in this context that private-law claims stemming from contracts or torts are typically subjective rights, even if the date that they are due is still in the future.", "A legitimate expectation is a legal position of a legal subject who can expect, in the specific factual and legal circumstances, certain conduct on the part of a State organ or another legal subject. The notion of legitimate expectation is useful in describing legal positions which do not have the status of subjective rights in that they enjoy weaker protection. If one can claim something against a legal subject, there is no need to say that one can expect that thing from the given legal subject. Using the term “legitimate expectation” in respect of enforceable claims creates confusion. The notion of legitimate expectations is particularly useful in social-security law.", "In this branch of law the acquisition of subjective rights is a long process, which begins with entry into the system in respect of certain benefits and ends with the fulfilment of all the criteria established by law. A person fulfilling only certain criteria may have an expectation of acquiring the subjective right as soon as all the criteria are fulfilled. The closer to the fulfilment of all the criteria, the stronger his expectation. A subjective right presupposes a precise definition of: (i) the right-holder; (ii) the right-obligor and (iii) his obligations, as well as (iv) the precise conditions in which those obligations must be fulfilled. A legitimate expectation corresponds to a situation in which the future obligations correlated with the expectation are defined with less precision or are subject to some uncertainties concerning their precise scope or nature.", "Drawing a clear demarcation line between subjective rights and legitimate expectations may be problematic in certain cases. In particular, deciding whether a legal obligation imposed on one legal subject in favour of another legal subject is precise enough to qualify as a subjective right of the latter, or whether it should be considered as not fulfilling this criterion and therefore justifying qualification as a legitimate expectation, may be open to dispute between reasonable lawyers. In any event, the protection of legitimate expectations extends the protection of the individual beyond the scope of the protection of his subjective rights. At the same time, it is important to note that subjective rights may differ as to the strength of their protection. Similarly, the level of the right ‑ holders’ subjective conviction – based on legislation and official declarations – that their rights should and will be upheld may vary.", "Both elements – subjective convictions and objective protection – interact. On the one hand, the strength of the assurances given to the right-holders should not be ignored when assessing the required level of protection of a right. On the other hand, the strength of the actual protection also determines the level of right-holders’ subjective convictions and expectations. 4. The judgment (in paragraph 79) explains the gist of the approach underlying its conclusions in the following way: “Notwithstanding the diversity of the expressions in the case-law referring to the requirement of a domestic legal basis generating a proprietary interest, their general tenor can be summarised as follows: for the recognition of a possession consisting in a legitimate expectation, the applicant must have an assertable right which, applying the principle enounced in paragraph 52 of Kopecký, may not fall short of a sufficiently established, substantive proprietary interest under the national law.” It is difficult to understand this statement.", "Firstly, it is not clear whether the expectation and the assertable right referred to protect against the same or different State organs (see § 6 below). Secondly, if a legal subject has an assertable right protecting him against a State organ, then what is the added value of qualifying his legal position as a legitimate expectation vis-à-vis this same organ? Thirdly, if a legal subject has an assertable right vis-à-vis a State organ, how could this legal position fall short of a sufficiently established, substantive proprietary interest under the national law? An assertable right exists only if there is a sufficiently established, substantive interest under the national law. On the other hand, not every legal interest is protected by a subjective right.", "Moreover, the subsequent reasoning pertaining to the specific legal position of the applicant in the instant case (see paragraphs 95 to 111) does not refer to the concepts set out in paragraph 79. It gives the impression that her position is considered not as an assertable right but as a legitimate expectation enjoying weaker protection than a subjective right. In my view, the scope of the notion of possession in Article 1 of Protocol No. 1 is limited to subjective rights (with pecuniary value) and does not encompass legitimate expectations which are not based on subjective rights (see § 4 of the dissenting opinion by the eight minority judges). 5.", "The category of possession within the meaning of Article 1 of Protocol No. 1 is extremely diverse and encompasses subjective rights of very different natures. It includes, inter alia, ownership of movable and immovable goods, other real rights protected erga omnes, pecuniary intellectual property rights and other pecuniary rights in immaterial goods, private-law assets (créances) stemming from tort or contract with other persons as well as acquired rights to social-security benefits. Their strength and the degree of protection should necessarily vary, depending on their nature and the weight of the values on which they are founded. 6.", "One of the main difficulties in applying Article 1 of Protocol No. 1 is related to the articulation between domestic law and the Convention. In order to establish whether there is a possession one must analyse the domestic law (see paragraph 89 of the judgment, and § 10 of the dissenting opinion). A possession is a subjective right, defined by domestic law. It exists only if it exists in domestic law and it exists only to the extent that it is recognised in domestic law.", "The domestic law defines, in particular, the right-holder, the right-obligors, the content of the right and the scope of the obligors’ obligations correlated with this right, as well as the tools for and degree of the protection. The importance of this last element should not be underestimated, as it co-defines, together with other elements, the content of the right itself. A right exists as a right with a certain strength. Some rights are unconditional and enjoy strong protection, including protection vis-à-vis the legislator, whereas some rights are precarious and enjoy weak protection, especially vis-à-vis the legislator. It is undisputed that, according to the Court’s established case-law, the Convention does not confer rights to specific social-security benefits (see paragraph 82 of the judgment and § 13 of the dissenting opinion).", "More generally, the Convention does not create specific possessions. In principle, the legislator is free to decide whether or not a specific interest will be protected by subjective rights (possessions in the meaning of Article 1 of Protocol No. 1). If the legislator is free to create possessions, then it is logical to recognise that it is also free to determine the strength of a right’s protection. If the legislator was free not to grant a specific right at all, then is there any reason that say that it could not grant a precarious and conditional right?", "If the Convention does not require that a specific right be granted, does it prohibit granting this right as a weak right? Moreover, there are often serious grounds in a State governed by the rule by law to grant only weak rights enjoying limited protection, for the sake of protecting other fundamental values. In principle, the Convention protects possessions as defined in domestic law. A possession is protected if it exists and to the extent that it exists. In other words, the Convention does not convert no-rights into rights.", "Similarly, it would be logical to conclude that it should not convert week rights into strong rights, non-enforceable claims into enforceable claims and toxic assets into healthy ones. On the other hand, if possessions are protected under the Convention only to extent to which they exist and enjoy protection under domestic law, then the practical effect of Article 1 of Protocol No. 1 would be extremely reduced. The role of the Court would be to check only whether the existing domestic law has been correctly applied. There may be special circumstances when a weak possession under domestic law may require stronger protection under the Convention.", "Such a transformation of a weak right into a stronger one by virtue of the Convention should always be explicitly addressed and justified by the Court. The transformation of a weak right into a stronger one may be justified, in particular if the right recognised in domestic law can be limited or withdrawn, provided that the principle of proportionality is observed. The application of this principle requires a balancing of values. The weight of different values under the national Constitution and the Convention may differ, and therefore the result of the balancing act may be different. The role of the Court is to ensure that in balancing values the High Contracting Parties did not exceed their margin of appreciation, for instance by excessively diminishing the weight of the values protected by the Convention.", "The matter is even more complicated in that domestic law has a hierarchical structure. One and the same right may enjoy strong protection against the administrative authorities and weak protection against the legislator. Moreover, the legal position of a legal subject may combine a subjective right vis-à-vis the administrative authorities with a legitimate expectation vis-à-vis the legislator. The most complicated legal problems stem from the disparity of protection vis-à-vis the administration and the legislator. If the interference with a subjective right is of a legislative nature, then the question arises whether the right is protected against the legislator.", "If there is clearly no protection of a legal subject’s right vis-à-vis the legislator in the domestic legal system, then the Court should not convert such a right, protected only vis-à-vis the administrative authorities and the judicial power, into a right offering protection also vis-à-vis the legislative power, unless there are special reasons for doing so and especially if the weight of the conflicting values under the Convention differs from the weight of the values under the national Constitution. 7. Subjective rights to social-security benefits are possessions within the meaning of Article 1 of Protocol No. 1. A complete revocation or a limitation of such a subjective right amounts to interference with possessions, and must fulfil the criteria set forth in the Convention.", "Such an interference should have a legal basis in domestic law and observe the principle of proportionality. It is important to stress that the point of departure for the identification of the possession and of the interference is the legislation in force prior to the interference. What matters is whether a legal subject had a subjective right (or an enforceable claim) before the date of the interference. The degree of protection of social-security rights under Article 1 of Protocol No. 1 should depend on several factors.", "As rightly stated in the separate opinion by eight judges, benefits directly linked to the level of contributions require stronger protection than other rights. This, however, is not the only parameter to be taken into account. The judgment’s reasoning attaches importance to the contributory nature of the benefit in question, implicitly conveying the idea that contributory benefits require stronger protection than non-contributory ones (see paragraphs 99 and 105). I subscribe to this approach, which clearly departs from the view expressed in Stec and Others v. the United Kingdom ([GC], nos. 65731/01 and 65900/01, ECHR 2006‑VI).", "Financial participation in the form of the contributions paid by insured persons for the purpose of financing social-security benefits is indeed an important argument pleading in favour of protection of the benefits financed from these contributions. It creates a strong moral basis for a reciprocal (but not necessarily strictly synallagmatic) obligation. However, the required level of protection of contributive rights that are not directly linked to the level of contributions will be lower than in the case of benefits directly linked to the level of contributions. In my view, moreover, benefits which replace salaries, such as retirement pensions and invalidity pensions, require much stronger protection than benefits which complement other sources of revenue. It is also important to take into account whether the benefits are granted for a specific period, for a period defined by the fulfilment of certain criteria or for an indefinite period.", "If legislation provides for a more precise time ‑ frame for the payment of benefits, this factor is an argument in favour of stronger protection. 8. In the instant case, there is no need to resort to the concept of legitimate expectation in order to conceptualise the applicant’s legal position. The applicant held a subjective right to an invalidity pension prior to 1 February 2010. This right was confirmed by an administrative act and the applicant in fact received the pension in question until the end of January 2010.", "She also fulfilled the criteria to receive either a disability pension or a rehabilitation allowance at some point in the second semester of 2011 and this fact was subsequently confirmed by the decision of 13 December 2011 (see paragraph 17 of the judgment). She had a subjective right (an enforceable claim) to receive one of these two benefits, even if this right was not confirmed by an administrative act. This right also constituted a possession within the meaning of Article 1 of Protocol No. 1. This is where the essential difference lies between me and my colleagues in the minority.", "Had her right to one of these two benefits been respected on 31 December 2011, she would also have been entitled to these two benefits after 1 January 2012 under the legislation which entered into force at that moment. In her specific circumstances, the actual implementation of her subjective right before 1 January 2012 would have given her the status of a subjective right-holder after that date. 9. An analysis of the Hungarian legal system leads to the conclusion that there are reasons pleading in favour of strong protection of the applicant’s right, but there are also serious reasons pleading against such protection. On one hand, the benefits in question were contributive and were in principle designed to replace other sources of revenue.", "Furthermore, the legislation in force before 1 February 2010 and the legislation in force at the end of 2011 provided for a specific time-frame for the implementation of those rights. They were to be granted and implemented as long as the health of the right-holder did not improve. All those reasons plead in favour of strong protection of the benefits in question against State interference, be that legislative, administrative or judicial in form. Moreover, the Constitution of Hungary in force until 31 December 2011 guaranteed the right to social security. It is true that a new paragraph 3 was introduced to Article 70E of the Constitution by the Act of 6 June 2011 which weakened the protection of pensions granted to persons below the retirement age.", "It is important to stress, however, that under that paragraph disability pensions could be reduced or terminated if the persons concerned were able to work. The Constitution did not allow the complete withdrawal of disability pensions granted to persons unable to work. Therefore, it cannot be said that – under the letter of the Hungarian Constitution – the subjective right acquired by the applicant was devoid of constitutional protection vis-à-vis parliament. Furthermore, the actual degree of protection of disability pensions under the Hungarian Constitution depends on the balancing of conflicting constitutional values. At the same time, the scope of the constitutional protection as determined by the case-law of the Constitutional Court was very narrow (see paragraphs 32 and 33 of the reasoning of the judgment).", "The 2011 Fundamental Law (the new Constitution) which entered into force on 1 January 2012 further reduced the degree of protection for social rights. These factors are a strong argument against stronger protection of the possession in question vis-à-vis legislative interference. In my view, the decisive factor in the instant case is the nature of the benefit. It is designed to replace employment income for persons who are unable to work. This fact justifies scrutiny of the strength of the right-holder’s protection against legislative change.", "10. The actual interference with the applicant’s subjective rights took place in several stages and had several dimensions. Firstly, the applicant was deprived of her disability pension as of 1 February 2010, due to a new method for establishing the level of disability set out in infra-legislative (infra-statutory) provisions. Secondly, she could receive neither the disability pension nor the rehabilitation allowance to which she was entitled in the second half of 2011, apparently due to the inaction of the administrative authorities. Thirdly, she was definitely deprived of the right to either of these two allowances as of 1 January 2012, due to a change in legislation decided by the national parliament.", "The Chamber judgment stated that the Court is prevented from examining the procedure having led to the judgment of 1 April 2011 because the application was filed more than 6 months later (see paragraph 31 of the Chamber judgment). This is somewhat ambiguous, but does not necessarily mean that the Court is prevented from examining the legal situation of the applicant after 31 January 2010. The Grand Chamber declared that it will examine whether the outcome of the proceedings ending with the judgment of 20 June 2013 is compatible with the Convention (see paragraphs 91 and 92). What matters is not so much the outcome as such of those proceedings but the legal position of the applicant as determined by domestic law and confirmed by that domestic judgment. 11.", "The question arises whether the first interference referred to above (in § 8) is a one-off interference or amounts to a continuous situation. The answer to this question may be disputed. For my colleagues of the minority, it was a one-off violation. Given that the legislation in force on 1 February 2010 did set out a time-frame for the implementation of the right in question (until the individual’s health improves), I would be inclined to see the applicant’s legal position after 1 February 2010 as a continuous interference with her subjective right, acquired prior to that date. But even if we consider this first interference as a one-off interference for the purpose of the calculation of the six-month period, there is certainly a new subjective right at stake in the second semester of 2011 and a new – twofold – interference (described above) with this subjective right.", "This interference came first from the administrative authorities, and only later from the legislator. In the instant case the interference with the applicant’s right was initially administrative in nature. Nonetheless, it is not possible to avoid an assessment of the legislative interference with effect from 1 January 2012. However, as stated above, such an assessment is not illegitimate, given the nature of the benefit in question. Therefore, it is justified to scrutinise the proportionality of the interference (both administrative and legislative) with the applicant’s possession.", "In my view, this interference was not proportionate and in this respect I agree with the reasoning of the judgment. Admittedly, we end up with the transformation of a right with limited protection against the legislator under domestic law into a right with somewhat stronger protection against the legislator. However, the specific nature of the right at stake justifies such an approach. 12. The first and foremost condition for the legitimacy of a court is the precision, clarity and methodological correctness of its reasoning.", "Only well-argued judgments can win the respect of citizens. The European Court of Human Rights should consolidate the rule of law by setting the highest possible standards in this respect. It is true that the Convention sets out the minimum European standard for substantive human-rights protection, but this ought not to prevent the Court from seeking and promoting excellence in the art of legal argument. In this respect, I should like to raise two questions. Firstly, I note that the judgment does not try to consider and discuss possible counter-arguments; in particular, it ignores the arguments put forward by the minority.", "Such a choice of argumentative strategy is problematic. I think that the argumentation of the minority deserves thorough consideration and serious discussion. Secondly, in many European States the domestic courts follow extremely high standards in the reasoning of judicial decisions. In particular, they pay the utmost attention to the precision of the conceptual apparatus and clearly state the applicable rules of interpretation. The quality of reasoning in the instant case does not reach the level of diligence attained in the most advanced States.", "Seen from this perspective, for many European lawyers, the way in which the judgment is reasoned may appear as a step back in the development of the standards of a democratic State ruled by law. Such a situation not only makes it difficult for the respondent States to implement the Convention and affects the authority of the Court, but also has a detrimental impact on European legal culture. JOINT DISSENTING OPINION OF JUDGES NUSSBERGER, HIRVELÄ, BIANKU, YUDKIVSKA, MØSE, LEMMENS AND O’LEARY 1. We regret that we cannot share the view of the majority that there has been a violation of Article 1 of Protocol No. 1 to the Convention.", "In our opinion, that provision is not applicable in the circumstances of the present case. Moreover, since we are unable to find a violation of Article 1 of Protocol No. 1, we consider, unlike the majority, that it is necessary to express ourselves separately on the issue of the alleged violation of Article 8 of the Convention. A. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.", "1 TO THE CONVENTION 1. General principles 2. It should be stressed at the outset that this part of our opinion has been drafted together with Judge Wojtyczek. Given that our interpretation of the general principles deriving from the Court’s established case-law on Article 1 of Protocol No. 1 is significantly different to that set out in the plurality opinion forming the judgment of the Court, it is necessary to develop our analysis of the jurisprudence in a comprehensive way, and not merely to limit ourselves to criticising those parts of the judgment, specific to the present case, with which we disagree.", "(a) The scope of Article 1 of Protocol No. 1 in general 3. The concept of “possessions” within the meaning of Article 1 of Protocol No. 1 has an autonomous meaning which is 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” for the purposes of this provision (see Beyeler v. Italy [GC], no.", "33202/96, § 100, ECHR 2000‑I; Broniowski v. Poland (dec.) [GC], no. 31443/96, § 98, ECHR 2002‑X; Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 63, ECHR 2007‑I; Depalle v. France [GC], no. 34044/02, § 62, ECHR 2010; Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no.", "38433/09, § 171, ECHR 2012; Fabris v. France [GC], no. 16574/08, § 49, ECHR 2013 (extracts); and Parrillo v. Italy [GC], no. 46470/11, § 211, ECHR 2015). 4. The Court has acknowledged in its case-law the relevance of the notion of “legitimate expectations” with respect to the concept of “possessions” (see the case-law starting with Pine Valley Developments Ltd and Others v. Ireland, 29 November 1991, § 51, Series A no.", "222, and Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, § 31, Series A no. 332). Pursuant to the Court’s established case-law, a “legitimate expectation” does not constitute an interest that in itself is protected under Article 1 of Protocol No. 1. According to this case-law, “no such expectation could come into play in the absence of an ‘asset’ falling within the ambit of Article 1 of Protocol No.", "1” (see Kopecký v. Slovakia [GC], no. 44912/98, § 48, ECHR 2004‑IX; and Maurice v. France [GC], no. 11810/03, § 65, ECHR 2005‑IX). 5. In a series of cases, the Court has found that the applicants did not have a “legitimate expectation” in circumstances where it could not be said that they had a currently enforceable claim that was reasonably established (see Kopecký, cited above, § 49, and the cases referred to in paragraphs 49‑51 of the judgment).", "The Court’s case-law thus does not contemplate the existence of a “genuine dispute” or an “arguable claim” as a criterion for determining whether there is a “legitimate expectation” protected by Article 1 of Protocol No. 1 (see Kopecký, cited above, § 52, and Maurice, cited above, § 66). On the contrary, where the proprietary interest is in the nature of a claim, the Court takes the view that it may be regarded as an “asset” only where it has a sufficient basis in domestic law, for example, where there is settled case-law of the domestic courts confirming its existence (see Kopecký, cited above, §§ 49 and 52; Maurice, cited above, § 66; Anheuser-Busch Inc., cited above, § 65; Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 94, ECHR 2007‑II; Centro Europa 7 S.r.l. and Di Stefano, cited above, § 173; and Parrillo, cited above, § 213).", "6. This principle has also been formulated in various other ways throughout the Court’s case-law. By way of example, in a number of cases the Court examined, respectively, whether the applicants had “a claim which was sufficiently established to be enforceable” (see Gratzinger and Gratzingerova v. the Czech Republic (dec.), no. 39794/98, § 74, ECHR 2002‑VII); whether they demonstrated the existence of “an assertable right under domestic law to a welfare benefit” (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2005‑X); or whether the persons concerned satisfied the “legal conditions laid down in domestic law for the grant of any particular form of benefits” (see Richardson v. the United Kingdom (dec.), no.", "26252/08, § 17, 10 April 2012). 7. In some cases the “legitimate expectation” may involve situations where the persons concerned are entitled to rely on the fact that a specific legal act will not be retrospectively invalidated to their detriment (see Kopecký, cited above, § 47, and Noreikienė and Noreika v. Lithuania, no. 17285/08, § 36, 24 November 2015). Such legal acts can consist, for example, of a contract (see Stretch v. the United Kingdom, no.", "44277/98, § 35, 24 June 2003), an administrative decision granting an advantage or recognising a right (see Pine Valley Developments Ltd and Others, cited above, § 51; Moskal v. Poland, no. 10373/05, § 45, 15 September 2009; and Hasani v. Croatia (dec.), no. 20844/09, 30 September 2010), or a judicial decision (see Gratzinger and Gratzingerova, cited above, § 73, and Velikoda v. Ukraine (dec.), no. 43331/12, § 20, 3 June 2014). In such cases the “legitimate expectation” is based on a reasonably justified reliance on a legal act which has a sound legal basis and which bears on property rights (see Kopecký, cited above, § 47).", "8. In other cases the “legitimate expectations” may simply relate to claims arising out of certain situations which are governed by a provision of domestic law. Where the applicant can argue, for example on the basis of established case-law, that his or her claim is currently enforceable and will be determined in his or her favour (see Gratzinger and Gratzingerova, cited above, § 72, and Maurice, cited above, § 66), in accordance with domestic law, this claim qualifies as an “asset” for the purposes of Article 1 of Protocol No. 1 (see Kopecký, cited above, § 48, referring to Pressos Compania Naviera S.A. and Others, cited above, § 31). 9.", "A legitimate expectation must be of a nature more concrete than a mere hope (see Gratzinger and Gratzingerova, cited above, § 73, and Kopecký, cited above, § 49). The hope that a long-extinguished property right may be revived or that the survival of an old property right which it had been impossible to exercise effectively can be recognised cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-fulfilment of the condition (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII, and the cases referred to; see also Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 83, ECHR 2001‑VIII; Gratzinger and Gratzingerova, cited above, § 69; Kopecký, cited above, § 35 (c); and Fabris, cited above, § 50).", "10. In short, where the proprietary interest is in the nature of a claim, it may be regarded as an “asset” attracting the guarantees of Article 1 of Protocol No. 1 where it is based on a specific legal act or where it has a sufficient basis in domestic law, for example where there is settled case-law of the domestic courts confirming it. By way of contrast, 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, cited above, § 50; Anheuser-Busch Inc., cited above, § 65; and Centro Europa 7 S.r.l. and Di Stefano, cited above, § 173).", "(b) The scope of Article 1 of Protocol No. 1 in regard to social benefits 11. In the modern, democratic State, many individuals are, for all or part of their lives, completely dependent for survival on social security and welfare benefits. Many domestic legal systems recognise that such individuals require a degree of certainty and security, and provide for benefits to be paid – subject to the fulfilment of the conditions of eligibility – as of right (see Stec and Others (dec.), cited above, § 51; Moskal, cited above, § 39; and Wieczorek v. Poland, no. 18176/05, § 65, 8 December 2009).", "12. The general principles relating to the scope of application of Article 1 of Protocol No. 1 are equally relevant when it comes to cases concerning social security and welfare benefits (see Stec and Others (dec.), cited above, § 54; Moskal, cited above, § 38; and Stummer v. Austria [GC], no. 37452/02, § 82, ECHR 2011). In particular, the Court has repeatedly held that Article 1 of Protocol No.", "1 does not guarantee, as such, any right to a pension or social benefit of a particular amount (see, for example, Kjartan Ásmundsson v. Iceland, no. 60669/00, § 39, ECHR 2004‑IX, and Wieczorek, cited above, § 57). The right to an old-age pension or any social benefit in a particular amount is not included among the rights and freedoms guaranteed by the Convention (see, for example, Aunola v. Finland (dec.), no. 30517/96, 15 March 2001; Pravednaya v. Russia, no. 69529/01, § 37, 18 November 2004; and Da Silva Carvalho Rico v. Portugal (dec.), no.", "13341/14, § 30, 1 September 2015). 13. Article 1 of Protocol No. 1 places no restriction on the Contracting States’ freedom to decide whether or not to have in place any form of social-security or pension scheme, or to choose the type or amount of benefits to provide under any such scheme. However, where a Contracting State has in force legislation providing for the payment as of right of a welfare benefit or pension – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No.", "1 but it does so only for persons satisfying its requirements (see Stec and Others (dec.), cited above, § 54; Andrejeva v. Latvia [GC], no. 55707/00, § 77, ECHR 2009; Carson and Others v. the United Kingdom [GC], no. 42184/05, § 64, ECHR 2010; and Stummer, cited above, § 82). 14. Within the member States of the Council of Europe, there exists a wide range of social-security benefits which are guaranteed in the form of subjective rights.", "Benefits are funded in a large variety of ways: some are paid for by contributions to a specific fund; some depend on a claimant’s contribution record; many are paid for out of general taxation on the basis of a statutorily defined status (see Stec and Others (dec.), cited above, § 50). 15. In certain circumstances, the making of compulsory contributions, for example to a pension fund or a social insurance scheme, may create a property right protected by Article 1 of Protocol No. 1 even before the contributor fulfils all the conditions to actually receive the pension or other benefit. This is the case when there is a direct link between the level of contributions and the benefits awarded (see Stec and Others (dec.), cited above, § 43) or in other words, when the making of a contribution creates a property right in a portion of the pension fund (see T. v. Sweden, no.", "10671/83, Commission decision of 4 March 1985, Decisions and Reports 42, at p. 229). In such a situation, the contributor has an enforceable claim to a share in the fund. 16. This situation is different from the situation where a person makes contributions without there being a direct link between the level of contributions and any benefits awarded. It is true that the Court has held that the right to a pension or other benefit which is based on employment can be assimilated to a property right when special contributions have been paid (see T. v. Sweden, cited above, and Klein v. Austria, no.", "57028/00, §§ 42-45, 3 March 2011). It is to be noted that in such a system the payment of contributions is a pre-condition for receiving the benefit. In other words, there is no entitlement to the benefit where such contributions have not been made. However, the benefit will only be granted to persons who have not only made contributions, but who also satisfy the other conditions laid down in domestic law (see, with respect to contributions made to an unemployment insurance fund, generating a right to emergency assistance when the entitlement to unemployment benefit is exhausted, Gaygusuz v. Austria, 16 September 1996, § 39, Reports of Judgments and Decisions 1996‑IV; see also Bellet, Huertas and Vialatte v. France (dec.), nos. 40832/98, 40833/98 and 40906/98, 27 April 1999).", "In such a situation, the contributor has an enforceable claim only once he or she fulfils all the conditions required to obtain the benefit. 17. In this respect, the fact that a person has entered into and forms part of a State social-security system (even a compulsory one) does not necessarily mean that that system cannot be changed either as to the conditions of eligibility of payment or as to the quantum of the benefit or pension (see Richardson, cited above, § 17, and Damjanac v. Croatia, no. 52943/10, § 86, 24 October 2013; see also Müller v. Austria, no. 5849/72, Commission’s report of 1 October 1975, DR 3, p. 25, §§ 30‑31; Skorkiewicz v. Poland (dec.), no.", "39860/98, 1 June 1999; and Kjartan Ásmundsson, cited above, § 39). Indeed, the Court has accepted the possibility of amendments to social-security legislation which may be adopted in response to societal changes and evolving views on the categories of persons who need social assistance (see Wieczorek, cited above, § 67). 18. Where a person fulfils the requirements to receive a social-security or welfare benefit – whether conditional or not on the prior payment of contributions –, he or she has a claim that constitutes an “asset” protected under Article 1 of Protocol No. 1 (see, a contrario, Bladh v. Sweden (dec.), no.", "46125/06, 10 November 2009). It should be noted that such a claim is enforceable only as long as the entitlement exists, that is, as long as the person fulfils the requirements laid down in domestic law as it stands (see Velikoda, cited above, § 23). 19. With respect to the loss of an entitlement to a social-security or welfare benefit, two situations have to be distinguished. 20.", "Where, on the one hand, the amount of the benefit is reduced or discontinued because of a change in the applicable rules, this constitutes an interference with possessions, which then requires to be justified under the general rule of Article 1, first paragraph, first sentence, of Protocol No. 1 (see Kjartan Ásmundsson, cited above, § 40; Rasmussen v. Poland, no. 38886/05, § 71, 28 April 2009; Wieczorek, cited above, § 57; Valkov and Others v. Bulgaria, nos. 2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05 and 2041/05, § 84, 25 October 2011; Richardson, cited above, § 17; Grudić v. Serbia, no. 31925/08, § 72, 17 April 2012; Khoniakina v. Georgia, no.", "17767/08, § 72, 19 June 2012; Damjanac, cited above, §§ 85 and 89; and Velikoda, cited above, § 25). 21. An important consideration in the assessment under the latter provision will be whether the applicant’s right to derive benefits from the social-security or welfare scheme in question has been interfered with in a manner resulting in the impairment of the essence of his or her social security or welfare rights (see Kjartan Ásmundsson, cited above, § 39; Wieczorek, cited above, § 57; Valkov and Others, cited above, § 91; and Khoniakina, cited above, § 71). However, the fair-balance test cannot be based solely on the amount or percentage of the reduction suffered, in the abstract. All the relevant elements of the case will have to be taken in account (see Stefanetti and Others v. Italy, nos.", "21838/10, 21849/10, 21852/10, 21822/10, 21860/10, 21863/10, 21869/10, and 21870/10, § 59, 15 April 2014). This includes the nature of the benefit taken away, in particular whether it has originated in a special advantageous pension scheme available only to certain groups of persons (see Cichopek and Others v. Poland (dec.), nos. 15189/10 and others, § 137, 14 May 2013; da Conceição Mateus and Santos Januário v. Portugal (dec.), nos. 62235/12 and 57725/12, § 24, 8 October 2013; and Da Silva Carvalho Rico, cited above, § 42). 22.", "Where, on the other hand, the person concerned ceases to satisfy the legal conditions laid down in the existing, unchanged domestic law for the grant of any particular form of benefits or pension, there is no interference with the rights under Article 1 of Protocol No. 1 (see Rasmussen, cited above, § 71; Richardson, cited above, § 17; and Damjanac, cited above, §§ 86 and 88). Indeed, the entitlement to a given benefit or pension can change with the evolution of the individual situation of the beneficiary. The Court has stated in this respect, with regard to disability pensions, that it is permissible for States to take measures to reassess the medical condition of persons receiving such pensions with a view to establishing whether they continue to be unfit to work, provided that such reassessment is in conformity with the law and attended by sufficient procedural guarantees (see Wieczorek, cited above, § 67, and Iwaszkiewicz v. Poland, no. 30614/06, §§ 50-51, 26 July 2011).", "2. Application of the principles to the present case 23. Turning to the application of the general principles to the facts of the present case, we agree with the majority on the starting point: the applicant cannot complain about an allegedly “continuing situation” originating in the discontinuation of her disability pension on 1 February 2010. Like the majority, we believe that the discontinuation of the disability pension was an instantaneous act, and that the final decision in this respect was taken by the Nyíregyháza Labour Court on 1 April 2011. As a result of the six-month rule contained in Article 35 § 1 of the Convention, the Court is precluded from examining the decision of 1 February 2010 and the subsequent proceedings up to the judgment of 1 April 2011, and is obliged to limit its examination to the decisions relating to the applicant’s later requests for a disability pension, submitted on 20 February 2012 and 15 August 2012 (see paragraphs 90-91 of the judgment).", "24. We note that between 1 May 1975 and 14 July 1997 the applicant made contributions to the social-security scheme (see paragraph 10 of the judgment). However, it is not alleged that she thus had acquired any claim to an identifiable share in a social-security fund. We therefore proceed on the basis that the payment of contributions was merely one of the pre-conditions for receiving a disability pension which became relevant once she satisfied the other conditions laid down in domestic law (see § 16 above). Unlike the majority (see paragraph 105 of the judgment), we thus do not consider that the applicant’s contributions created a property right protected under Article 1 of Protocol No.", "1. 25. We further note, like the majority, that the system of disability allowances in question, both in its pre-2012 and its current form, essentially operated on the basis of two cumulative eligibility criteria: (i) a “health condition”, under which the benefit was payable only to persons whose health and employment status so required, and (ii) a “contribution condition”, which required the fulfilment of a certain service period or a period covered by social-security contributions (see paragraph 93 of the judgment). 26. When in 2001 the applicant was granted a disability benefit (see paragraph 11 of the judgment), the relevant authorities considered that she met both the health condition and the contribution condition applicable pursuant to Act no.", "LXXXI of 1997 on Social-Security Pensions. That decision generated a legitimate expectation that she would receive the benefit on a monthly basis, so long as she continued to meet the two conditions and in particular the health condition. 27. The period during which the applicant received the disability benefit lasted until 1 February 2010. On that date, the relevant pension insurance authority found, on the basis of a new methodology for assessing the degree of health impairment, that the applicant had a disability of only 40%.", "It concluded that the applicant no longer fulfilled the health condition established by law, which had remained unchanged, and therefore withdrew her entitlement to a disability pension (see paragraphs 12-14 of the judgment). As indicated previously, the applicant’s challenges to this decision were ultimately dismissed by the Nyíregyháza Labour Court on 1 April 2011 (see paragraphs 15-16 of the judgment). In consequence, in accordance with the provisions of domestic law then in force, the applicant was not entitled to and did not receive any disability pension as of 1 February 2010. 28. From the moment that her entitlement to a disability pension was withdrawn, the applicant could no longer rely on a specific legal act to support the legitimate expectation that she would receive a disability pension.", "She could of course rely on the legislation in force at that point, but since she did not fulfil all of the conditions to receive a disability benefit she had no enforceable claim in that regard. It cannot be argued either, in our opinion, that the applicant, who had previously had a right to a disability pension because she fulfilled the eligibility requirements under the domestic law applicable at the relevant time, had a continuous legitimate expectation to receipt of that allowance or benefit for as long as one of those requirements continued to be met, regardless of how the relevant statutory requirements were amended or developed over time. In fact, the applicant had lost her proprietary interest, protected under Article 1 of Protocol No. 1, through the decision of 1 February 2010 withdrawing her entitlement to a disability pension. 29.", "Following that withdrawal of her disability pension and the rejection of her appeals, the applicant first requested a new assessment of her disability. This resulted in a disability score of 50%, as determined on 13 December 2011 by the second-instance administrative authority. This, however, was insufficient, in the given circumstances, to allow the conclusion that the applicant fulfilled the conditions laid down by domestic law for entitlement to a disability allowance (see paragraph 17 of the judgment). Thus, nothing changed in respect of her situation under Article 1 of Protocol No. 1: she still had no “enforceable claim” to a disability pension.", "The fact that rehabilitation was envisaged, but regrettably not taken forward (ibid. ), does not, in our opinion, alter this conclusion as regards the applicant’s legal situation. 30. On 1 January 2012 a new law on disability allowances (Act no. CXCI of 2011 on the Benefits Granted to Persons with Reduced Work Capacity) entered into force.", "It changed the conditions of eligibility for disability benefits, now called disability allowances. In particular, a new contribution condition was introduced, which was stricter than the one applicable under the old law (see paragraph 18 of the judgment). According to the majority, this law was of a retroactive nature (see paragraph 104 of the judgment). We cannot agree with that characterisation. The new law produced its effects only for the future, thus being of immediate but not retroactive application.", "31. We reiterate that according to the Court’s case-law the protection afforded by Article 1 of Protocol No. 1 does not go so far as to prevent the competent authorities from amending the relevant rules and reforming the social-security system (see § 17 above). While the new law on disability allowances could constitute an interference in the “possessions” of those persons who received a disability pension at the moment when the law entered into force (see §§ 20-21 above), this was not the case in respect of the applicant, who at that moment was not entitled to such a pension under the old law (see § 22 above). 32.", "The question whether any proprietary interest, within the meaning of Article 1 of Protocol No. 1, existed as from 1 January 2012 would thus have to be answered on the basis of the new law. The old law had been repealed, and could therefore no longer be the basis for any legitimate expectations to arise. In other words, although the applicant had fulfilled the contribution criterion as it applied in the past, this fact was no longer relevant once the new law entered into force, changing the relevant criteria. In order to answer the question whether, for the purposes of the applicability of Article 1 of Protocol No.", "1, the applicant’s claim had a sufficient basis in domestic law, it is the domestic law as it stood when the decisions were taken on her requests for a disability allowance, submitted on 20 February 2012 and 15 August 2012, that is relevant. 33. We would like to add that the fact that the applicant had made contributions under the old law does not change that finding. Indeed, as explained above, these contributions did not generate any claim to an identifiable share in a social-security fund, and therefore did not as such generate a proprietary interest protected under Article 1 of Protocol No. 1 (see § 24 above).", "34. Accordingly, the question is whether there was a sufficient basis in domestic law, as interpreted by the domestic courts, for the applicant’s claim to a disability allowance to qualify as an “asset” for the purposes of the applicability of Article 1 of Protocol No. 1. In this respect, the decisive issue in our opinion is whether the applicant could be said to have satisfied the requirements for the disability allowance, as laid down in domestic law (see, mutatis mutandis, Koivusaari and Others v. Finland (dec.), no. 20690/06, 23 February 2010).", "35. The applicant brought two requests based on the law on disability allowances (Act no. CXCI of 2011). As indicated above, that law made the entitlement to a disability allowance dependent on two conditions: a health condition and a – now stricter – contribution condition (see § 30 above). The first request was rejected on 5 June 2012 on the ground that she did not fulfil the new contribution condition (see paragraph 19 of the judgment).", "The second request was also rejected, by a decision taken on 23 November 2012 and confirmed by an appellate body on 27 February 2013, and the applicant’s challenge to that decision was rejected by the Nyíregyháza Administrative and Labour Court on 20 June 2013, again on the ground that the applicant did not fulfil the new contribution condition (see paragraphs 21-23 of the judgment). The applicant does not argue that the interpretation or the application of the new law by the domestic authorities was arbitrary or manifestly unreasonable, and we see no reason to conclude that they were. As indicated above, the Court has consistently held that no legitimate expectation for the purpose of Article 1 of Protocol No. 1 can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and where, as here, the applicant’s submissions are subsequently rejected by the national courts (see § 10 above). Thus, the conclusion to be drawn from the fact that the applicant’s requests were rejected on the ground that she did not fulfil one of the conditions laid down by the applicable law on disability allowances is that her claims had no basis in the new law or, in other words, that she had no “enforceable claim” under that law.", "36. The applicant argues, however, that she was entitled to a disability allowance on the basis of the former Hungarian Constitution, as interpreted by the Constitutional Court, as well as on the basis of Article 12 § 2 of the European Social Charter, referring to ILO Convention No. 102, and the United Nations Convention on the Rights of Persons with Disabilities. 37. We are not convinced by the applicant’s argument that the provisions of the former Constitution had been interpreted by the Constitutional Court as obliging the State to provide for payment of a social allowance to the extent that is required for basic subsistence.", "In this regard, we would like to point to the reasoning in the Constitutional Court’s decision no. 40/2012 (XII.6.) AB (see paragraph 33 of the judgment), where it held that the Fundamental Law which replaced the former Constitution as of 1 January 2012 provides for general State objectives, rather than for rights conferred on individuals, as far as its Article XIX on social security is concerned. Moreover, the legislature was already expressly entitled to reduce, transform into a social allowance or terminate disability pensions under the former Constitution, as from 6 June 2011. The Constitutional Court also referred to its well-established case-law, which does not interpret the State’s obligation to guarantee basic subsistence as a source of specific, directly enforceable constitutional rights.", "We are therefore not persuaded that the constitutional principles relied on by the applicant created an enforceable right, to be implemented by the legislature. 38. Furthermore, we are unable to accept that the international-law norms referred to by the applicant constitute a basis for an enforceable right to the impugned Hungarian disability allowance. Hungary has not accepted to be bound by the parts of the European Social Charter or the Revised European Social Charter relied on (see paragraph 36 of the judgment). Neither has it ratified the European Code of Social Security or ILO Conventions Nos.", "102 and 128 (see paragraphs 38, 40 and 41 of the judgment): it has thus not accepted the undertaking to secure at least a reduced invalidity benefit for those persons who have completed a period of five years of contribution prior to the contingency (see paragraph 42 of the judgment). In addition, the relevant provisions of the United Nations Convention on the Rights of Persons with Disabilities (see paragraph 39 of the judgment), although ratified by Hungary, do not contain any specific obligation that would entitle the applicant to a disability benefit. 39. The conclusion we draw from the foregoing is that the applicant’s claim had no basis in domestic law as it stood on the dates when her requests for a disability allowance were rejected. There was thus no claim under domestic law that could be considered an asset protected by Article 1 of Protocol No.", "1. In our opinion, therefore, the applicant did not have a “possession” within the meaning of Article 1 of Protocol No. 1, and the guarantees of that provision do not apply in the present case. 40. Accordingly, we would allow the Government’s objection based on the incompatibility ratione materiae of the complaint with the Convention and the Protocols thereto.", "Accordingly, there can be no violation of Article 1 of Protocol No. 1. B. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 41. In the event that the Court were to find Article 1 of Protocol No.", "1 inapplicable, the applicant, for the first time in her memorial of 30 September 2015 to the Grand Chamber, requested the Court to examine separately whether her right to respect for private life as guaranteed by Article 8 of the Convention had been infringed on account of the loss of her only source of income, resulting from the amendment of the eligibility criteria for the disability pension. 42. Since we find that Article 1 of Protocol No. 1 is indeed inapplicable, we consider that we should give our views on the complaint based on Article 8 of the Convention. 43.", "According to the Court’s case-law, the “case” referred to the Grand Chamber, within the meaning of Article 43 of the Convention, is the application as it has been declared admissible (see, among many other authorities, K. and T. v. Finland [GC], no. 25702/94, § 141, ECHR 2001‑VII, and Blokhin v. Russia [GC], no. 47152/06, § 91, ECHR 2016). In the present case, the question whether the impugned decision could be regarded as a failure to comply with the applicant’s right to respect for private life for the purposes of Article 8 of the Convention is a matter that was not covered by the decision declaring the application admissible, and ought to be viewed as a separate complaint. 44.", "In our opinion, therefore, the Grand Chamber should have concluded that it lacks jurisdiction to examine the complaint under Article 8 (see, mutatis mutandis, Herrmann v. Germany [GC], no. 9300/07, § 39, 26 June 2012, and Pentikäinen v. Finland [GC], no. 11882/10, § 81, ECHR 2015). C. FINAL REMARK 45. We would like to end with a final remark.", "We are very well aware of the applicant’s difficult situation. She fell through the holes of the social-security net when it was reformed. But nevertheless we consider that hard cases do not make good law. Such cases cannot be a reason to change the Court’s long-standing and well-entrenched approach to the interpretation of “possessions” and “legitimate expectations” within the meaning of Article 1 Protocol No. 1 to the Convention.", "[1]. Paragraph (3) was enacted on 6 June 2011. [2]. The Act’s provisions pertaining to the disability pension were repealed by Act no. CXCI of 2011 on the Benefits Granted to Persons with Reduced Work Capacity as of 1 January 2012 (see paragraph 31 below).", "[3]. See Act no. LXXXIV of 2007 quoted in paragraph 30 below. [4]. Source: EUROSTAT – Social protection statistics – pension expenditure and pension beneficiaries, data from December 2014" ]

[ "THIRD SECTION CASE OF NARİN v. TURKEY (Application no. 18907/02) JUDGMENT STRASBOURG 15 December 2009 FINAL 15/03/2010 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Narin v. Turkey, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Elisabet Fura,Boštjan M. Zupančič,Alvina Gyulumyan,Luis López Guerra,Işıl Karakaş,Ann Power, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 24 November 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "18907/02) 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 ten Turkish nationals, Ms Nesima Narin, Mr Hakan Narin, Ms Nimet Narin, Mr Mahmut Narin, Mr Yakup Narin, Ms Sevim Narin, Mr Özkan Narin, Ms Leyla Narin, Mr Ünal Narin and Mr Sertaç Narin (“the applicants”), on 9 April 2002. 2. The applicants were represented by Mr M. Bilal, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent. 3.", "The applicants alleged that their relative, Mr Abduvahit Narin, had been unlawfully killed by the security forces and that the national authorities had failed to conduct an effective investigation into the circumstances surrounding the killing in violation of Articles 2, 6 and 13 of the Convention. In their observations dated 22 September 2005 the applicants relied, for the first time, on Article 1 of Protocol No. 1 to the Convention and complained of the damage done to their hotel. 4. On 27 June 2005 the President of the Third Section decided to give notice of the application to the Government.", "It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1948, 1978, 1968, 1976, 1980, 1981, 1983, 1984, 1985 and 1986 respectively and live in Diyarbakır. 1.", "The killing of the applicant's relative, Abdulvahit Narin 6. On 3 October 1992, at 10:30 a.m., clashes occurred in the district of Kulp in the province of Diyarbakır, between the PKK (the Workers' Party of Kurdistan, an illegal organisation) and the security forces, subsequent to the killing of two gendarmes and grave injury of two other gendarmes in a military vehicle by PKK militants. At that time the applicant, Hakan Narin and his father, Abduvahit Narin, were in the Narin Hotel, which belonged to them. During the clash some other individuals from the town and hotel customers joined them in the basement of the hotel to seek shelter from the clash. There were a total of thirty-five people hiding in the basement of the hotel.", "7. According to the applicants' version of events, at around 4 p.m. the security forces raided the hotel and gathered the people on the ground floor. They singled out Adulvahit Narin from the crowd and took him into the hotel director's office. After a while the applicant, Hakan Narin, heard gunshots coming from the office. The security forces then allegedly poured petrol on the floor and set the hotel on fire.", "8. On 4 October 1992 two incident reports describing the events in question were prepared and signed by a number of gendarme officers who took part in the clashes. According to this report, on 3 October 1992, at around 10.30 a.m., PKK militants opened fire on a military vehicle on a main street in Kulp. As a result, two gendarmes died and two were severely injured. Hearing the gunfire, security forces arrived on the scene.", "PKK militants also fired at them and the security forces returned fire. The clashes, which lasted until 5 p.m., caused the destruction of a number of vehicles and some buildings. It was understood that the real aim of the PKK members was to take control of the Kulp Gendarmerie Station and to seize the weapons therein. Some of the PKK militants hid in the Narin Hotel and opened fire on the security forces. When leaving the town they set the hotel and a number of other buildings on fire.", "When they were informed that there was a burned body at the hotel, a team of security forces arrived at the hotel in the morning of 4 October 1992. They found an unidentifiable burned body, a Kalashnikov rifle and sixty-four empty cartridges there. The security forces noted that all the furniture in the hotel had been burned, there were a number of bullet holes in the walls and gas cannisters found in the kitchen had exploded as a result of the fire and had caused massive damage to the building. A sketch map describing the state of the hotel and location of the body was also drawn up by a gendarme officer. 2.", "The investigation into the killing of Abdulvahit Narin 9. On 4 October 1992, at 3:50 p.m., the Kulp Public Prosecutor arrived at the Narin Hotel with a doctor. They conducted a classical autopsy and an on-site investigation. The on-site investigation report noted that a burned body was lying in one of the ground-floor rooms of the hotel. The report also contained Hakan Narin's testimony that two expert sergeants[1], whose names he did not know but whom he could identify if shown, took his father to the director's office.", "He then heard gunshots coming from that direction, and saw the security forces throw grenades into the room. He further stated that M.Y., A.Y., M.A., and the teachers A.A., M.Y., H.S. and F.A., who were in the hotel at the time, also witnessed the incident. The report noted that five discharged bullet cartridges were found twenty or thirty metres from the body. Neither Hakan Narin nor the deceased's wife Perinaz Narin could determine whether the burned body was that of Abdulvahit Narin.", "10. The Kulp Public Prosecutor took statements from two gendarmes who were injured in the course of the clashes. They stated that they had come to Kulp from Diyarbakır Regional Gendarmerie Command in order to ensure security. When they arrived in Kulp they were attacked by members of the PKK and wounded as a result of the gunfire. 11.", "On 6 October 1992 the Kulp Public Prosecutor issued a decision of non-jurisdiction and referred the case to the Chief Public Prosecutor's office at the Diyarbakır State Security Court. 12. On 8 October 1992 the Diyarbakır Chief Public Prosecutor's Office issued a decision to join the investigation files concerning the killing of two gendarmes and Abdulvahit Narin, since both had occurred in the course of the events in Kulp. 13. On 25 June 1993 the public prosecutor at the State Security Court took statements from the deceased's two sons and two persons who had witnessed the events.", "The applicant Hakan Narin repeated the statement he had made to the public prosecutor during the on-site investigation. He further stated the following: “During the events in question, I was with the deceased (Abdulvahit Narin). The hotel was under gun and rocket fire. I locked the doors of the hotel and went down to the basement together with the customers for safety reasons. They (the soldiers) broke down the door and entered the hotel.", "My father was alive and holding my hand. Two expert sergeants who work in Kulp, namely N.T. and L.B., hit my hand and took my father to the director's room. I heard a sound of gunfire from the director's room. They had already locked down the basement when they took my father to the director's room.", "When the gunfire ended, they took us to the lounge and told us to take off our jackets. We took off our jackets. They poured petrol on us. However, they did not burn us. They then carried the jackets into the director's room.", "They poured petrol on my father and burned him. They left three hand grenades in the director's room. These bombs exploded one after the other. They burned everything in the hotel. The expert sergeants whom I have mentioned above caused the death of my father.", "There were thirty-five customers who witnessed this event. I request that criminal charges be brought against [the expert sergeants]...” 14. Azattin Narin, who is another of the sons of the deceased, stated that he had been in Istanbul at the time of the events. He had also heard that two expert sergeants, N.T. and L.B., had caused the death of his father.", "Mehmet Yıldırım and Aladdin Yıldırım, who were customers at the Narin Hotel at the time of the events, gave statements in line with Hakan Narin's. They added that the security forces took them to the station after the incident, but released them without taking statements from them. 15. In addition to the above statements, the applicants' representative submitted to the Court statements given by another witness, Nihat Ezer, on 13 August 2001. According to this witness, who sought shelter in the Narin Hotel during the clashes, Abdulvahit Narin was separated from the rest of the group and taken to the director's room in the hotel.", "The witness then heard gunshots coming from that room. The soldiers threw three hand grenades and the hotel caught fire. The witness was taken to the gendarme station together with other people and released afterwards. 16. On 12 May 1994 and 10 June 1994 the Diyarbakır Public Prosecutor took statements from N.T.", "and L.B. in relation to the allegations concerning the killing of Abdulvahit Narin. N.T. and L.B. denied the allegations that they had been involved in the killing of Abdulvahit Narin and claimed that they had taken part in the clashes against the PKK in order to ensure security in Kulp.", "They had seen that the Narin Hotel and a number of other buildings had caught fire and stated that they had gone back to their barracks when the clashes were over. 17. In a letter dated 28 July 1994 the Kulp Public Prosecutor requested the Gendarmerie Command in Kulp to provide information concerning the location of and duties assigned L.B. and N.T. on 3 October 1992.", "18. In a report dated 14 November 1994, signed by a gendarme sergeant and two gendarmes, it was stated that the location of and duties assigned to L.B. and N.T. on 3 October 1992 were unknown, since there was no record. 19.", "It transpires from the documents submitted by the parties that since 1994 no further steps have been taken to identify the perpetrators of the killing of Abdulvahit Narin. 3. The compensation concerning the killing of Abdulvahit Narin and the destruction of the Narin Hotel 20. On 24 November 1992, one of the sons of Abdulvahit Narin applied to the Kulp Civil Court of First Instance for an assessment report of the damage caused to the hotel in order to lodge actions for compensation. 21.", "On 28 September 1993 the applicants applied to the Ministry of the Interior (“the Ministry”) for compensation for the loss they had suffered as a result of the death of their relative and the damage done to the hotel. The Ministry rejected the request. 22. On 4 April 1994 the applicants brought an action for compensation in the Diyarbakır Administrative Court against the Ministry, for the damage they had suffered in respect of the death of their relative (“first set of proceedings”). In their application to the court the applicants noted that the perpetrators of the killing of Abdulvahit Narin were unknown.", "Although the officials claimed that he had been killed and that his hotel had been burned down by members of the PKK during the clashes, the witnesses stated Abdulvahit Narin had been killed by the security forces. Notwithstanding who killed the victim, the State was responsible for the death of the victim and was obliged to compensate for the damage resulting from his death and the destruction of the hotel. 23. On 12 July 1994 the applicants brought a second action against the Ministry, claiming compensation in respect of the material damage caused to the hotel (“second set of proceedings”). 24.", "By decisions of 17 November and 20 November 1995 the Diyarbakır Administrative Court decided that it had no jurisdiction over the cases. 25. On 6 November 1997 and 4 December 1997 the Supreme Administrative Court set aside the Diyarbakır Administrative Court's decisions of non-jurisdiction and remitted the cases to it for examination. 26. On 18 June 1999 the Diyarbakır Administrative Court partly accepted the applicants' request and awarded them 523,200,000 Turkish liras (TRL, approximately 1,223 euros (EUR) at the material time) in compensation for the pecuniary damage caused to the hotel.", "27. On 21 June 2000 the Diyarbakır Administrative Court, relying on the State's strict liability and “the social risk theory”, awarded the applicants a further TRL 738,107,475 (approximately EUR 1,264 at the material time) in compensation for the pecuniary and non-pecuniary damage they had suffered in respect of the death of their relative. This judgment was upheld by the Supreme Administrative Court on 13 December 2001. 28. On 16 June 2001 the Supreme Administrative Court upheld the judgment of the Diyarbakır Administrative Court concerning the damage caused to the hotel.", "29. On 18 January 2002, the administration paid the applicants the sum of TRL 2,091,892,880 (approximately EUR 1,732 at the material time) in compensation for the death of their relative and damage done to the hotel. 4. Current state of the investigation 30. In March 2002, the applicants applied to the Public Prosecutor's office at the Diyarbakır State Security Court requesting information about the outcome of the criminal investigation into the death of their relative.", "31. On 11 March 2002 the Public Prosecutor informed the applicants that the investigation was still pending. Following this response, on 9 April 2002 the applicants lodged their application with the European Court. 32. According to the Diyarbakır Chief Public Prosecutor's report of 28 October 2008, the investigation into the killing of Abdulvahit Narin and the two gendarmes is still pending.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. Administrative liability arising out of criminal offences 33. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation.", "If the claim is rejected in whole or in part, or if no reply is received within six days, the victim may bring administrative proceedings. B. Turkish Constitution 34. Article 125 §§ 1 and 7 of the Constitution provides: “All acts or decision of the authorities are subject to judicial review... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” 35. That provision established the State's strict liability, which comes into play if it is shown that, in the circumstances of a particular case, the State has failed in its obligation to maintain public order, ensure public safety or protect people's lives or property, without it being necessary to prove a tortuous act attributable to the authorities.", "Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons. THE LAW I. ALLEGED VIOLATION OF ARTICLES 2 AND 13 OF CONVENTION 36. The applicants complained that their relative had been unlawfully killed by the security forces and that the authorities had failed to conduct an effective investigation into his death, in violation of Articles 2 and 13 of the Convention. 37.", "The Court considers that these complaints should 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.", "The parties' observations 38. The Government submitted that the applicants' complaints were inadmissible for failure to observe the six-month rule within the meaning of Article 35 § 1 of the Convention. They pointed to the applicants' allegations that the authorities failed to conduct an effective investigation into the alleged killing. In this connection, the Government claimed that, even if the applicants are correct in this allegation, which they contest, they should have been aware of this situation much earlier and should not have waited for ten years to lodge their application with the Court (see Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002‑III, and Bulut and Yavuz v. Turkey (dec.), no.", "73065/01, 28 May 2002). The Government also reiterated the Court's case-law that if no remedies are available or if they are judged to be ineffective, the six-month time-limit runs from the date of the act complained of (see Hazar and Others v. Turkey (dec.), no. 62566/00, 10 January 2002). They thus asserted that the application has been lodged out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention. 39.", "The applicants did not comment on the Government's objection on the six-month rule. B. The Court's assessment 1. The applicable principles 40. The Court reiterates that the purpose of the six-month rule is to promote security of law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time.", "Furthermore, it ought also to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time (see Bulut and Yavuz, and Bayram and Yıldırım, both cited above). 41. As noted by the Government, if no remedies are available or if they are judged to be ineffective, the six-month time-limit in principle runs from the date of the act complained of (see Hazar and others v. Turkey (dec.), cited above). However, special considerations may apply in exceptional cases where an applicant avails himself or relies on an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it is appropriate to take as the start of the six-month period the date when he first became aware or ought to have become aware of those circumstances (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001).", "42. Consequently, where a death has occurred, applicant relatives are expected to take steps to keep track of the investigation's progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 158, 18 September 2009. On the same basis, where time is of the essence in resolving the issues in a case, there is a burden on the applicant to ensure that his or her claims are raised before the Court with the necessary expedition to ensure that they may be properly, and fairly, resolved (Varnava and Others, cited above, § 160). 43.", "In this connection, in a number of cases concerning ongoing investigations into the deaths of applicants' relatives the Court has examined the period of time from which the applicant can or should start doubting the effectiveness of a remedy (see Şükran Aydın and Others v. Turkey (dec.), no. 46231/99, 26 May 2005; Bulut and Yavuz, cited above; Bayram and Yıldırım, cited above; Kıniş v. Turkey (dec.), no. 13635/04, 28 June 2005; and Elsanova v. Russia (dec.) no. 57952/00, 15 November 2005). Although the Court has refrained from indicating a specific period for establishing when an investigation has become ineffective for the purposes of assessing when the six-month period runs from, the determination of such a period by the Court depended on the circumstances of each case and other factors such as the diligence and interest displayed by the applicants as well as the adequacy of the investigation in question.", "In this connection, in the above-mentioned Varnava and Others judgment (cited above, § 162), the Grand Chamber of the Court noted however that where the lack of progress or ineffectiveness of an investigation is readily apparent, the requirements of expedition may require an applicant to bring such a case before the Court within a matter of months, or at most, depending on the circumstances, a very few years after events. 2. Application of the above principles to the circumstances of the present case 44. In the instant case, the Court notes that immediately after the impugned events in question, the authorities commenced an investigation into the killing of Abdulvahit Narin (see paragraph 9 above). In this context, the investigating authorities took statements from a number of witnesses and the deceased's two sons and questioned two suspects, who allegedly killed Abdulvahit Narin, according to Hakan Narin (see paragraphs 13-16 above).", "45. Although the investigation into the killing of the applicants' relative is still pending, it does not appear that any further investigation has been carried out to identify the perpetrators of the killing of the applicant's relative since 1994 (see paragraph 19 above). In the Court's opinion, since the first applicant is the wife and the remaining applicants are the children of the deceased, they may be expected to display due diligence and to take the requisite initiative in informing themselves about the progress made in the investigation (see Varnava and Others, cited above, § 158). 46. However, the applicants did not show any interest by following up the conduct of or the progress made in the criminal investigation until March 2002 (see paragraph 31 above).", "They did pursue civil remedies before the administrative courts with a view to obtaining compensation for the death of their relative and the damage done to the family hotel (see paragraphs 20 29 above). 47. In this context, the Court reiterates that breaches of the right to life cannot be remedied exclusively through an award of compensation to the relatives of the victim (see Nikolova and Velichkova v. Bulgaria, no. 7888/03, §§ 56-57, 20 December 2007; Leonidis v. Greece, no. 43326/05, §§ 46-48, 8 January 2009; Amaç and Okkan v. Turkey, nos.", "54179/00 and 54176/00, §§ 32 and 35, 20 November 2007; and see also, a contrario, Uca v. Turkey (dec.), no. 743/06, 9 April 2008). For that reason, in a number of similar Turkish cases the Court has repeatedly refused to accept the effectiveness of this no-fault-based compensation procedure before the administrative courts in Article 2 cases, on the ground that it does not lead to the identification and punishment of those responsible (see, most recently, Bedir v. Turkey (dec.), no. 25070/02, 2 October 2007 and the cases cited therein). 48.", "This being so, the Court considers that the administrative proceedings the applicants sought to pursue in order to obtain compensation do not affect the running of the six-month period. It notes that the applicants were awarded compensation on the basis of the “social risk principle”, a no-fault-based principle adopted by administrative courts in Turkey when awarding compensation to those who suffer damage as a result of terrorist acts or in the fight against terrorism. 49. It follows therefore that the relevant domestic remedy for the applicants' complaint which would have had the potential to offer adequate redress was the criminal investigation that, in the circumstances of the present case, came to an end in 1994 (see paragraph 19 above), which is more than six months before the introduction of the application. 50.", "As noted above, although the applicants took the preliminary steps, they did not pursue the criminal investigation in respect of their grievances because they considered that those remedies were ineffective. Even assuming that there were no effective remedies in the present case, both the applicants and their representative must be considered to have been aware of this situation not later than the end of 1995, the year during which the prosecuting authorities, considering their inactivity, made it clear that they would not continue criminal proceedings against the security forces. 51. In the light of the foregoing the Court considers that the applicants have failed to comply with the six-month rule in respect of their complaints under Articles 2 and 13 of the Convention. This aspect of the case must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 52. The applicants complained that the administrative proceedings had not been completed within a reasonable time, contrary to Article 6 of the Convention. “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 53. The Government contested the complaint.", "A. Admissibility 54. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 55. The applicant complained that the length of the administrative proceedings had been in breach of the reasonable-time requirement of Article 6 § 1 of the Convention. They noted as a result of the excessive delays in the proceedings, the amount they were paid was not sufficient to compensate their damage. 56. The Government claimed that there had not been any inordinate delays in the course of the proceedings which, in fact, had been completed within a reasonable time.", "57. The Court notes that, pursuant to Article 13 of the Code of Administrative Procedure, persons who have sustained damage as a result of an administrative act have to apply to the administrative entity concerned and claim compensation for the damage they have sustained before they can lodge a compensation claim in the administrative courts in respect of such damage (see Hasefe v. Turkey, no. 25580/03, § 26, 8 January 2009). In other words, claiming compensation directly from the authorities is a compulsory precondition for bringing administrative proceedings. In the present case, the applicant complied with this requirement on 28 September 1993 (see paragraph 21 above).", "It follows that, for the purposes of the reasonable-time complaint, the proceedings in question began on 28 September 1993. They ended when the Supreme Administrative Court upheld the judgments concerning the loss resulting from the death of the applicants' relative and the damage done to the hotel, on 13 December 2001 and on 16 June 2001, respectively. The first set of proceedings lasted almost eight years and three months and second set of proceedings lasted approximately seven years and nine months before two levels of jurisdiction. 58. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case.", "Particular regard must be had to the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II) and what is at stake for the applicant (see Kudła v. Poland [GC], no. 30210/96, § 124, ECHR 2000‑XI). 59. Having particular regard to the fact that the examination of the case by the domestic courts was largely restricted to ascertaining whether the conditions for the applicability of the “social risk principle” obtained in the case before them, and not to examining in detail the security forces' alleged responsibility in the impugned events, the Court does not consider the subject matter of the case to be complex.", "On the other hand, in view of the nature of the cases in question, the Court considers that the subject matter of the cases was important for the applicants. 60. Despite this fact, which was not disputed by the Government, the proceedings do not appear to have been conducted with due diligence. In this connection, the Court notes that it took the administrative courts more than three years to decide on the jurisdiction of the competent court (see paragraphs 22-25). Furthermore, the Court considers the period that elapsed before the Supreme Administrative Court, which took two years to decide on the appeal lodged by the Ministry in the second set of proceedings, was also long, considering the nature of the proceedings (see paragraphs 26 and 28 above).", "In the absence of any convincing explanations from the Government, these delays must be considered to be attributable to the domestic courts. 61. In the light of the foregoing, the Court holds that the “reasonable time” requirement of Article 6 § 1 has not been satisfied. Consequently, there has been a violation of Article 6 § 1 of the Convention. III.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 62. In their observations sent to the Court on 22 September 2005 the applicants relied, for the first time, on Article 1 of Protocol No. 1 to the Convention and complained of the damage done to their hotel. 63.", "The Government contested the complaints. 64. The Court notes that these complaints were not introduced until 2005, that is, more than six months after the conclusion of the domestic proceedings. It follows that these complaints must also be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-compliance with the six‑month rule. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 65. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 66. The applicants claimed EUR 1,001,978 euros in respect of pecuniary and EUR 300,000 for non-pecuniary damage as a result of the alleged violations of the Convention. 67.", "The Government submitted that the amounts claimed were unfounded and excessive. 68. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, having regard to its finding of a violation under Article 6 of the Convention in respect of the excessive length of the proceedings in two sets of proceedings, it awards the applicants a total sum of EUR 8,500 in respect of non‑pecuniary damage. B.", "Costs and expenses 69. The applicants also claimed EUR 8,241 for the costs and expenses incurred before the Court. They noted that the amount claimed corresponded to sixty-seven hours' legal work in the preparation and presentation of the application. 70. The Government asked the Court to dismiss the applicant's claim.", "71. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria as well as to the fact that the applicants partly succeeded in their claims, the Court considers it reasonable to award the sum of EUR 1,500 for the proceedings before the Court. 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 1. Declares unanimously the complaint concerning the excessive length of the administrative proceedings admissible; 2. Declares by a majority the complaint concerning the alleged killing of the applicants' relative and the failure of the authorities to conduct an effective investigation inadmissible; 3. Holds unanimously that there has been a violation of Article 6 § 1 of the Convention; 4. Holds unanimously (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 Turkish liras at the rate applicable at the date of settlement: (i) EUR 8,500 (eight thousand five hundred euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage; (ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the 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; 5.", "Dismisses unanimously the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 15 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident [1]. Expert corporals and expert sergeants are men who opt to stay in the army following the completion of their national service and who thus become paid employees of the armed forces." ]

[ "FIRST SECTION CASE OF KRIVOKUĆA v. CROATIA (Application no. 38770/02) JUDGMENT STRASBOURG 23 March 2006 FINAL 23/06/2006 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 Krivokuća 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. Quesada, Deputy Section Registrar, Having deliberated in private on 2 March 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 38770/02) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Milan Krivokuća (“the applicant”), on 4 October 2002. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.", "3. On 25 November 2004 the Court declared the application partly inadmissible and decided to communicate the complaint concerning access to a court 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 1929 and lives in Maastricht, the Netherlands. 5. In May 1995 a certain A.Š. broke in and occupied the applicant’s summer house in Sabunike near Zadar. Following the applicant’s successful civil action, on 8 October 2001 A.Š.", "vacated the house. 6. On 3 February 1996 the Amendment to the Civil Obligations Act (“the 1996 Amendment”) entered into force. It provided that all proceedings concerning actions for damages resulting from terrorist acts or acts of violence were to be stayed pending the enactment of new legislation on the subject. 7.", "On 20 March 1999 the applicant brought a civil action against the State and the County of Zadar (Županija Zadarska – “the County”) with the Zadar Municipal Court seeking damages. He argued that the State and the County were liable for A.Š.’s breaking into his house and the ensuing damage. In particular, the applicant sought compensation for the rent lost due to the prolonged inability to let the house to tourists and for the value of the stolen movable property. 8. On 25 May 2000 the Municipal Court dismissed the applicant’s claim.", "It found that A.Š.’s act was not to be qualified as an act of violence for which the State or the County was liable. Accordingly, there was no need to stay the proceedings pursuant to the 1996 Amendment. The applicant appealed. 9. On 17 April 2002 the Zadar County Court quashed the first-instance judgment and remitted the case.", "It found that the subject-matter of the case was to be considered an act of violence for which the State or the County was liable. Accordingly, it instructed the Municipal Court to stay the proceedings pursuant to the 1996 Amendment. 10. On 30 April 2002 the Municipal Court stayed the proceedings. 11.", "On 31 July 2003 the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (“the 2003 Liability Act”) entered into force. 12. Pursuant to the 2003 Liability Act, on 15 February 2005 the Municipal Court resumed the proceedings and scheduled a hearing for 11 April 2005. II. RELEVANT DOMESTIC LAW 13.", "The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette, nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/1999) provided as follows: Section 180(1) “Liability for loss caused by death or bodily injury or by damage or destruction of another’s property, when it results from acts of violence or terrorist acts or from public demonstrations or manifestations, lies with the ... authority whose officers were under a duty, according to the laws in force, to prevent such loss.” 14. The relevant part of the Act Amending the Civil Obligations Act (Zakon o izmjeni Zakona o obveznim odnosima, Official Gazette no. 7/1996 – “the 1996 Amendment”) reads as follows: Section 1 “Section 180 of the Civil Obligations Act (the Official Gazette nos. 53/91, 73/91 and 3/94) shall be repealed.” Section 2 “Proceedings for damages instituted under section 180 of the Civil Obligations Act shall be stayed.", "The proceedings referred to in sub-section 1 of this section shall be resumed after the enactment of special legislation governing liability for damage resulting from terrorist acts.” 15. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01 and 117/03) provides: Section 212 “Proceedings shall be stayed: ... (6) where another statute so prescribes.” 16. The relevant part of the Reconstruction Act (Zakon o obnovi, Official Gazette nos. 24/1996, 54/1996, 87/1996 and 57/2000) provides, inter alia, that the State shall grant, under certain conditions, reconstruction assistance to owners of property (flats and family houses only) which has been damaged during the war.", "The request is to be submitted to the competent ministry. 17. The Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette no. 117/2003 – “the 2003 Liability Act”) provides, inter alia, that the State is to compensate only damage resulting from bodily injuries, impairment of health or death. All compensation for damage to property is to be sought under the Reconstruction Act.", "Section 10 provides that all proceedings stayed pursuant to the 1996 Amendment are to be resumed. 18. 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 court with jurisdiction fails to decide a claim concerning the applicant’s rights and obligations or a criminal charge against him or her within a reasonable time ... (2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the court with jurisdiction 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.” 19.", "Article 29 § 1 of the Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/2001 of 7 May 2001) reads as follows: “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” 20. On 24 March 2004 the Constitutional Court gave decision no. U-III-829/2004 in the case of Mr N., who had lodged a constitutional complaint under section 63 of the 2002 Constitutional Court Act alleging a breach of Article 29 § 1 of the Constitution. He complained about the length of proceedings and the lack of access to a court because his action in the domestic courts had been stayed by statute for an extended period.", "In its decision, the Constitutional Court held that there had been a violation of the constitutional rights to a hearing within a reasonable time and to access to a court. It ordered the court concerned to give a decision in Mr N.’s case within one year and awarded him compensation. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 21. The applicant complained about the prolonged inability to obtain compensation for his property.", "He relied on Article 1 of Protocol No. 1 to the Convention. In its partial decision on inadmissibility (see Krivokuća v. Croatia (dec.), no. 38770/02, 25 November 2004) the Court held that this situation was due to the 1996 legislation, which had prevented the courts from deciding on the merits of the applicant’s action for damages. It therefore decided to examine the case under Article 6 § 1 which, in the relevant part, reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] ... tribunal...” A. Admissibility 1.", "The applicant’s victim status 22. The Government submitted that the applicant could not claim to be a victim within the meaning of Article 34 of the Convention since on 31 July 2003 the Liability Act entered into force, which provided that the proceedings stayed under the 1996 Amendment were to be resumed. Observing that the Municipal and the County Court had differed in the legal qualification of the facts of the case and that the proceedings are still pending, the Government also expressed their doubts as to the applicability of the 1996 Amendment to the proceedings complained of. That being so, they argued, if the Court finds for the applicant he could obtain just satisfaction for a violation stemming from the legislation which should not have been applied to his case in the first place. Lastly, they noted that in the present case, unlike in the Kutić case and similar cases (see Kutić v. Croatia, no.", "48778/99, ECHR 2002‑II) the alleged act of violence had not been committed by unknown perpetrators but by an easily identifiable individual. Therefore, in their view, the applicant had an alternative to suing the State since he could have directly sued A.Š. for damages. 23. The applicant disagreed with the Government.", "24. The Court has held that an applicant could claim to be the victim of a violation of his right of access to a court on account that the proceedings were stayed for a long time and the alleged violation was not recognised by any decision of the domestic authorities, nor was the applicant awarded any compensation for it (see Urukalo and Nemet v. Croatia, no. 26886/02, §§ 23-27, 28 April 2005; and Lulić and Becker v. Croatia, no. 22857/02, §§ 30-34, 24 March 2005). 25.", "The Court has also held that its task is not to deal with errors of law that domestic courts may have committed unless and in so far as they may have infringed the rights and freedoms protected by the Convention (see, inter alia, mutatis mutandis, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I). Therefore, it is irrelevant whether the 1996 Amendment should have been applied to the applicant’s case. Rather, what is important is whether it was actually applied and whether its application resulted in proceedings being stayed for a long time (see, by converse implication, Gregurinčić v. Croatia (dec.), no. 12833/02, 1 September 2005, Marinković v. Croatia (dec.), no.", "13854/02, 16 June 2005 and Bijelić v. Croatia (dec.), no. 33250/02, 19 May 2005). 26. The Court observes that the proceedings complained of were stayed by the Zadar Municipal Court’s decision of 30 April 2002. However, they had been ex lege stayed from 20 March 1999, the day on which the applicant had brought his civil action, until at least 31 July 2003, when the 2003 Liability Act entered into force, that is, for about four years and four months.", "The alleged violation was not recognised by any decision of domestic courts, nor was the applicant awarded any compensation for it. 27. Lastly, the Court notes that even though they both aim at obtaining compensation for the same damage and are contingent, a tort claim for damages directed against a perpetrator of an act of violence and a similar claim directed against the State are separate claims, since they are based on different legal grounds and different criteria of liability. Rather than complaining about the violation of his right of access to a court in respect of his tort claim against A.Š., the applicant complained about such a violation in respect of his tort claim against the State – a “civil right” clearly recognised in domestic law. 28.", "In these circumstances, the Court finds that the applicant may claim to be the victim of a violation of his right of access to a court as guaranteed by Article 6 § 1 of the Convention. It follows that the Government’s objection must be dismissed. 2. Exhaustion of domestic remedies 29. The Government invited the Court to reject the application on the ground that the applicants had failed to exhaust domestic remedies as required under Article 35 § 1 of the Convention.", "In their opinion, the decision of the Constitutional Court of 24 March 2004 (see paragraph 20 above) created a new domestic remedy for the alleged lack of access to court. 30. The applicant did not comment on this issue. 31. The Court has held, in similar circumstances, that the remedy in issue does not constitute a remedy to be exhausted in respect of applications lodged before 24 March 2004 (see, for example, Papuk Trgovina d.d.", "v. Croatia, no. 2708/03, § 31, 6 October 2005, and Pikić v. Croatia, no. 16552/02, §§ 24-33, 18 January 2005). The present application was lodged on 4 October 2002. 32.", "Accordingly, the Government’s objection must be dismissed. 3. Conclusion 33. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 34. The Court has frequently found violations of the applicants’ right of access to a court under Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Kutić v. Croatia, cited above, and Multiplex v. Croatia, no. 58112/00, 10 July 2003).", "35. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. There has accordingly been a breach of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 36.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 37. The applicant claimed 84,052 euros (EUR) in respect of pecuniary and non-pecuniary damage. 38. The Government deemed the amount of pecuniary damage excessive.", "39. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 4,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 40.", "The applicant, who was not represented by a lawyer, did not make any claims under this head. Accordingly, the Court does not award him any. C. Default interest 41. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the 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 4,000 (four thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (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 23 March 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Santiago QuesadaChristos RozakisDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF BÍRO v. SLOVAKIA (No. 2) (Application no. 57678/00) JUDGMENT STRASBOURG 27 June 2006 FINAL 27/09/2006 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 Bíro v. Slovakia (no.", "2), The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrM. Pellonpää,MrS. Pavlovschi,MrL. Garlicki,MsL.", "Mijović,MrJ. Šikuta, judges,and Mr T.L. Early, Section Registrar, Having deliberated in private on 8 June 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 57678/00) 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 Dušan Bíro (“the applicant”), on 13 April 2000.", "2. The Slovakian Government (“the Government”) were represented by Mrs A. Poláčková, their Agent. 3. On 10 May 2005 the Court declared the application partly inadmissible and decided to communicate to the Government the complaints under Article 6 § 1 taken both alone and in conjunction with Article 13 of the Convention concerning the length of the proceedings in respect of the applicant's criminal complaints against A. and B., to which he joined his claims for damages, and concerning the lack of remedies in that respect. 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 1951 and lives in Bratislava. A. Facts underlying the case 5.", "The applicant was employed with a private commercial company. The company was associated with Mr A. and his son, Mr B., who both held shares in it and were also involved in its management. The company took credits from a bank. 6. The applicant provided security for the repayment of the bank credits by pledging in favour of the bank his savings which he had in an account at the bank.", "In order to secure his potential claims against the company and to provide for his compensation, the applicant and the company concluded two contracts in January and February 1998, respectively. 7. Mr A. then sold his share in the company to a third individual. The company subsequently failed to meet its payment obligations towards the bank and became insolvent. The bank consequently seized the corresponding amounts from the applicant's account.", "The applicant has received no indemnification from the company. B. Criminal and other complaints 8. On 22 February 1999 the applicant filed a criminal complaint with the public prosecution service accusing A. and B. of having committed criminal offences of fraud, fraudulent insolvency and usury in connection with the above transaction. At the same time, he requested that his claim for damages be secured under Article 47 of the Code of Criminal Procedure.", "9. In a letter of 11 March 1999 the Trnava District Prosecutor informed the applicant inter alia that the possibility of securing an aggrieved party's claim for damages only existed at the stage of proceedings after a criminal charge had been raised. As by that time no charges had been raised in the present case, the applicant's claim could not be secured. 10. The applicant's criminal complaint was examined by the Trnava District Office of Investigation which dismissed it, on 25 June 1999, finding that there was no case to answer.", "The decision indicated in its reasoning that the applicant had been interviewed and that, in the course of the interview, he had specified the amount of the damage which he had sustained when standing as surety for the above bank credits. The applicant challenged this decision by a complaint (sťažnosť) which was determined by the District Prosecutor on 17 August 1999. The prosecutor's decision contained information about the specific amount of the damage which the applicant had allegedly sustained. The prosecutor quashed the challenged decision as being premature. 11.", "The applicant's criminal complaint was dismissed again on 19 September 1999 and, on his further complaints, on 9 March 2000 and 25 March 2002. All these decisions refer inter alia to the applicant's criminal complaint of 22 February 1999. 12. The applicant challenged the decision of 25 March 2002 by numerous further complaints addressed to all levels of the public prosecution service. He alleged in particular that if no charges were brought promptly, there was the risk that the prosecution would become statute‑barred.", "13. On 6 February 2003 the Prosecutor General transmitted the complaints that had been submitted to him to the Trnava Regional Prosecutor who, in turn, transmitted the respective complaints to the District Prosecutor. The latter was instructed to ensure the commencement of criminal proceedings in the matter because the previous examination of the factual and legal side of the case had not been adequate. 14. On 3 March 2003 the District Prosecutor issued an instruction to the investigator under Article 174 § 2 (a) of the Code of Criminal Procedure directing him to commence a criminal prosecution on the basis of a suspicion that a criminal offence of infringing creditors' rights within the meaning of Article 256 § 1 (a) and § 3 of the Criminal Code had been committed.", "The instruction referred to the applicant's criminal complaints and also indicated that criminal proceedings should be commenced in connection with certain other creditors. 15. On 20 March 2003 the District Office of Investigation formally commenced a criminal prosecution under Article 160 § 1 of the Code of Criminal Procedure against one or more unknown persons alleging that they had infringed the applicant's rights as a creditor. 16. On 28 April 2003 the investigator interviewed the applicant.", "In response to his enquiry the applicant stated expressly that he wished his claim for damages to be joined to the criminal proceedings pursuant to Article 43 of the Code of Criminal Procedure. 17. Between April and November 2003 the investigator interviewed 8 witnesses. Between September 2003 and January 2004 the investigator summoned A. and B. several times for an interview. As they ignored the summons, the investigator had B. brought to the interview by the police (predvedenie) and asked that a nationwide search (pátranie) be carried out for A. who eventually came of his own accord.", "18. On 3 June 2004 A. and B. were charged with the offences of infringing the right of the applicant as a creditor pursuant to the above decision of 20 March 2003. They both appealed against this decision and their appeals were dismissed by the Regional Prosecutor on 20 August 2004. 19. In September 2004 the investigator invited the Land Registry and all banks in Slovakia to disclose information concerning the real property and bank accounts of A. and B.", "A search in the registry of motor vehicles was subsequently carried out. 20. During the proceedings, the applicant submitted, on numerous occasions, new evidence and made other written submissions and suggestions as regards the course of the investigation. He further complained several times about the way in which the proceedings were being conducted and filed unsuccessful complaints and criminal complaints against the investigators, prosecutor and other persons involved in the case. 21.", "The criminal proceedings are still pending. C. Constitutional complaints 22. In February 2005 the applicant who was represented by a lawyer lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd). He asserted a violation of his right to a hearing “without unjustified delay” under Article 48 § 2 of the Constitution and his right to a hearing “within a reasonable time” under Article 6 § 1 of the Convention in the proceedings before the District Office of Investigation in respect of his criminal complaint of 22 February 1999. He claimed 1,500,000[1] Slovakian korunas (SKK) by way of compensation in respect of non‑pecuniary damage.", "23. On 31 March 2005 the Constitutional Court declared the complaint inadmissible. It observed that the primary aim of criminal proceedings is to detect criminal offences and to punish the perpetrators and not to determine the aggrieved parties' claims for damages. Aggrieved parties' claims for damages were of a private law nature and were predominantly claims to be asserted in civil courts. The possibility of claiming damages in criminal proceedings was a privilege which did not make the determination of such claims the central issue of the proceedings and was limited by the above main aim of the proceedings.", "The Constitutional Court concluded that aggrieved parties in criminal proceedings did not enjoy the right to have their claims for damages determined without unjustified delay (Article 48 § 2 of the Constitution). In making this conclusion, the Constitutional Court relied on its previous decisions in cases file nos. IV. ÚS 4/02, IV. ÚS 166/03 and IV.", "ÚS 92/04. It later upheld this line of reasoning in the decision in the case file no. IV. ÚS 52/04. 24.", "In October 2005 the applicant turned to the Constitutional Court again. He argued that the Constitutional Court's decision of 31 March 2005 was erroneous and reiterated his complaint concerning the length of the proceedings in respect of his criminal complaint of 22 February 1999. 25. On 23 November 2005 the Constitutional Court declared the complaint inadmissible. It held that its decision of 31 March 2005 was final and subject to no appeal.", "The matter at hand thus had to be considered res iudicata and could not be reviewed again. II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution and the Constitutional Court's practice 26. Article 48 § 2 provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.", "B. Code of Criminal Procedure (Law no. 141/1961 Coll., as amended, in force until 31 December 2005) 27. Standing as an aggrieved party (poškodený) in criminal proceedings is governed by the seventh Section (Oddiel) of the second Chapter (Hlava). 28.", "Article 43 §§ 1 and 2 provides, inter alia, that a person who has suffered pecuniary or non‑pecuniary damage as a result of a criminal offence, may claim compensation from the accused and request the court, when convicting the accused, to order him or her to pay compensation for the damage. The aggrieved party further has the right to adduce evidence and to comment on it, to inspect the court file, to take part in the hearing and to make submissions. 29. Article 47 et seq. provide for the possibility of securing the claim of an aggrieved party for damages by impounding the charged person's property in situations when there is a well-founded suspicion that the payment of the claim would be hindered or frustrated.", "C. Code of Criminal Procedure (Law no. 301/2005, in force from 1 January 2006) 30. Standing as an aggrieved party is governed by the eighth Section of the second Chapter. 31. Persons who have suffered health, property, moral, or other damage; or whose legally protected rights or freedoms have been violated or jeopardized as a result of a criminal offence are considered aggrieved parties.", "They have inter alia the right to claim compensation in respect of their damage; to adduce evidence and to comment on it; to inspect the court file; to take part in the hearing; to make submissions etc. (Article 46 § 1). 32. An aggrieved party, who has a lawful claim against the accused person (obvinený) for compensation in respect of a damage resulting from a criminal offence, has the right to propose that a guilty verdict should include an order for compensation. The proposal must be made at latest by the closure of the investigation and must indicate the ground and scope of the claim (Article 46 § 3).", "33. Article 50 et seq. provide for the possibility of securing the claim of an aggrieved party for damages in situations when there is a well-founded suspicion that the payment of the claim would be hindered or frustrated. D. Code of Civil Procedure (Law no. 99/1963 Coll., as amended) and Relevant Practice 34.", "Under Article 83 if proceedings commence in relation to a specific matter, the same matter cannot be made the subject of other judicial proceedings. If a claim for damages is duly lodged in criminal proceedings, it is considered a lis pendens from the point of view of Article 83 of the Code of Civil Procedure (Collection of Judicial Decisions and Standpoints (Zbierka súdnych rozhodnutí a stanovísk), No. 22/1979). E. Civil Code 35. Under Article 112 if creditors make and duly pursue a claim in respect of their rights before a court or another authority, the statute of limitations is stayed from the day the claim is made.", "This includes the making of a civil-party claim for damages in criminal proceedings including in their pre‑trial stage (see, for example, Collection of Judicial Decisions and Standpoints Nos. III/1967, 131/1974 and 29/1985 and Selection of Decisions and Standpoints (Výber rozhodnutí a stanovísk) No. 27/1984). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 36.", "The applicant, who joined his claim for damages to his criminal complaints against A. and B., complained that the length of the proceedings in respect of these complaints had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 37. The Court observes that the applicant's claim for damages which he joined to the proceedings in respect of his criminal complaint of 22 February 1999 is compatible ratione materiae with the guarantees of Article 6 § 1 of the Convention (see Perez v. France [GC], no. 47287/99, §§ 67-70, ECHR 2004‑I, Krumpel and Krumpelová v. Slovakia, no. 56195/00, §§ 39‑41, 5 July 2005 and Pfleger v. the Czech Republic, no. 58116/00, §§ 37-41, 27 July 2004).", "38. The Government argued that the applicant had failed to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention in that he had failed to assert his complaint of the length of the proceedings by way of a complaint under Article 127 of the Constitution. 39. In his observations of 15 August 2005, in reply to those by the Government, the applicant informed the Court that he had in fact availed himself of the said remedy (see paragraphs 22 and 23 above). 40.", "It follows that the application cannot be rejected for non-exhaustion of domestic remedies. 41. As for the period to be taken into consideration, the Government contended that it only began on 28 April 2003 when the applicant stated before the investigator that he wished his claim for damages to be joined to the criminal proceedings in accordance with the relevant legal provisions. They concluded that, since then, the length of the proceedings had not been unreasonable and proposed that the relevant part of the application be declared inadmissible as being manifestly ill-founded. 42.", "In the applicant's view, his claim for damages was an inherent part of his criminal complaint of 22 February 1999. All the proceedings initiated as a result of it or opened further to it, were to be considered as one matter and constituted one set of proceedings. The initial dismissals of his criminal complaint were wrong, as evidenced by the fact that a criminal prosecution was eventually started and charges against A. and B. were brought. In the applicant's view, the proceedings were disjointed, slow and ineffective throughout. 43.", "The Court notes that the right to a fair trial holds so prominent a place in a democratic society that there can be no justification for interpreting Article 6 § 1 restrictively (see Perez, cited above, § 64). 44. The Court further notes that neither Slovakian legal order nor the Convention confer any right to have criminal prosecution instituted against another individual (see, among may other authorities, Helmers v. Sweden, judgment of 29 October 1991, Series A no. 212‑A, p. 14, § 29). However, once a criminal complaint is lodged, the law enforcement authorities in Slovakia are under a duty to follow it through.", "The making of a civil-party claim for damages in criminal proceedings constitutes an obstacle to the lodging of the same claim in the civil courts and has further legal consequences, for example, in respect of statute of limitations. Therefore, the determination of a criminal complaint to which a civil-party claim for damages was joined has direct consequences on the claim for damages (see, for example, Werner v. Austria, judgment of 24 November 1997, Reports of Judgments and Decisions 1997-VII, p. 2507, § 34). In view of the above, the Court finds that, as a matter of principle, civil-party claims for damages made in Slovakia jointly with or subsequently to the lodging of a criminal complaint enjoy the guarantees of Article 6 § 1 of the Convention from the moment they are made (see, for example, mutatis mutandis, Torri v. Italy, judgment of 1 July 1997, Reports 1997‑IV, p. 1179, § 23). 45. Turning to the circumstances of the present case, the Court observes that, in his criminal complaint of 22 February 1999, the applicant implied that he had sustained financial damage resulting from the actions of A. and B. of which he had been complaining.", "At the same time, with reference to the relevant legal provisions, he made a specific request that his claim for damages be secured. The Court further observes that, as transpires from the investigator's decision of 25 June 1999 and from the prosecutor's decision of 17 August 1999, the applicant had been interviewed and had provided a further specification of the damage that he had sustained. 46. The Court also observes that the decision of 20 March 2003 to commence a criminal prosecution as well as the previous decisions not to do so had been initiated by the applicant's criminal complaint of 22 February 1999. 47.", "In these circumstances, the Court finds that the period to be taken into consideration for the purposes of Article 6 § 1 of the Convention began on 22 February 1999. It has not yet ended. It has thus lasted more than 7 years and 3 months. In this period the matter was examined by the investigator and at three levels of the public prosecution service and it is still pending at the pre-trial stage of the proceedings. 48.", "The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 49.", "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). 50. The Court considers that, in cases such as the present one, regard must also be had to the fact that a civil-party claim for damages is not the only or central issue of the proceedings but it is secondary to the issue of criminal liability which must be determined in the same set of proceedings. 51.", "The Court notes that the criminal complaint of 22 February 1999 had been dismissed four times before it eventually led to the commencement of a criminal prosecution on 20 March 2003 and to the bringing of charges against specific persons on 3 June 2004. The latter two decisions may in fact be seen as overturning the previous four as being erroneous and based on insufficiently established facts. 52. The above considerations, in view of the overall length of the criminal proceedings in the context of which the applicant's claim for damages is to be determined and the stage at which they are still pending are sufficient for the Court to conclude that their length was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 53. The applicant further complained of the fact that in Slovakia there was no court to which application could be made to complain of the excessive length of proceedings. He relied on Article 13 of the Convention. 54.", "In the light of their arguments in respect of the complaint of the length of the proceedings the Government considered that the complaint under Article 13 of the Convention was manifestly ill-founded and that it raised no issue under that provision. 55. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 56. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no.", "30210/96, § 156, ECHR 2000-XI). 57. On 31 March 2005 the Constitutional Court declared inadmissible the applicant's constitutional complaint of the length of the present proceedings on the ground that, being an aggrieved party in criminal proceedings, he did not enjoy any right to have his claim for damages determined expeditiously. In view of this finding the Court considers that in the present case there has been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law for a violation of his right to a hearing within a reasonable time, as provided by Article 6 § 1 of the Convention. 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. Damage 59. The applicant claimed the equivalent of approximately 400,000 euros (EUR) in respect of pecuniary damage and the equivalent of approximately EUR 265,000 in respect of non-pecuniary damage. 60.", "The Government contested these claims. 61. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 4,800 under that head.", "B. Costs and expenses 62. The applicant also claimed the equivalent of approximately EUR 270 for the costs and expenses incurred before the domestic courts and the equivalent of approximately EUR 80 for those incurred before the Court. 63. The Government accepted the claim concerning the proceedings before the Court but contested the remaining claim.", "64. 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, in so far as the relevant part of the application has been substantiated and in view of the above criteria, the Court considers it reasonable to award the sum of EUR 150 covering costs under all heads. C. Default interest 65. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the remainder of 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 4,800 (four thousand eight hundred euros) in respect of non-pecuniary damage and EUR 150 (hundred fifty euros) in respect of costs and expenses, to be converted into Slovakian korunas at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 27 June 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyNicolas BratzaRegistrarPresident [1] SKK 1,500,000 is the equivalent of approximately 40,000 euros (EUR)" ]

[ "FIFTH SECTION CASE OF ANGELOVA AND ILIEV v. BULGARIA (Application no. 55523/00) JUDGMENT STRASBOURG 26 July 2007 FINAL 26/10/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Angelova and Iliev v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: MrP. Lorenzen, President,MrsS.", "Botoucharova,MrK. Jungwiert,MrR. Maruste,MrJ. Borrego Borrego,MrsR. Jaeger,MrM.", "Villiger, judges,and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 3 July 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 55523/00) 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 two Bulgarian nationals, Mrs Ginka Dimitrova Angelova (“the first applicant”) and Mr Mitko Dimitrov Iliev (“the second applicant”), who were born in 1933 and 1962 respectively and live in the village of Ivanski, on 7 February 2000. 2. The applicants were represented before the Court by Mr Y. Grozev, a lawyer practising in Sofia.", "3. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Karadjova, of the Ministry of Justice. 4. The applicants alleged that the authorities failed to carry out a prompt, effective and impartial investigation capable of leading to the trial and conviction of the individuals responsible for the ill-treatment and death of their relative who was of Roma origin. They also alleged that the domestic criminal legislation contained no specific provisions incriminating the offences of murder or serious bodily injury, or indeed any other felony, as separate criminal offences where the latter were racially motivated, nor did it contain explicit penalty-enhancing provisions relating to racially motivated offences.", "The applicants further alleged that the authorities failed in their duty to investigate and prosecute a racially motivated violent offence. Lastly, the applicants alleged that the length of the criminal proceedings against the assailants was excessive, which denied them access to a court to claim damages. 5. On 25 November 2004 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The first applicant was the mother and the second applicant was the brother of Mr Angel Dimitrov Iliev (“the victim”), who was of Roma origin and twenty-eight years old at the time of his death. A. The death of Mr Iliev 7.", "On the evening of 18 April 1996, in the town of Shumen, the victim was attacked by seven teenagers (“the assailants”) and beaten severely. He was also stabbed several times by one of the assailants. 8. The victim was taken to a hospital after the attack but died on the following morning, 19 April 1996. 9.", "As later submitted by the assailants, the attack was motivated by the victim's Roma ethnicity (see paragraphs 12-13 and 18-21 below). B. The criminal proceedings into the death of Mr Iliev 10. All of the assailants were detained and questioned by the police on the day of the attack, 18 April 1996. With one exception, all were juveniles.", "11. The assailants were all released after questioning, with the exception of G.M.G. (“the first assailant”), who was seventeen years old at the time. A knife had been found on him and two of the other assailants, N.R. and S.H., had implicated him as the person who had wielded the weapon.", "The first assailant was remanded in custody on suspicion of murder. 12. On 19 April 1996 the assailants were again questioned by the police. N.R. and S.H.", "confirmed their statements to the effect that the first assailant had wielded the weapon. Thereupon, a preliminary investigation was opened against him and he was charged with murder stemming from an act of hooliganism (see paragraph 56 below). He was then questioned, but declined to give a statement other than to confirm that the knife found on him was his own. 13. D.K., who was fifteen years old at the time, gave a statement on 19 April 1996, the relevant part of which reads: “...[We have been meeting] with the boys regularly for the past several months.", "We agree in advance where and when we will meet the next time, because we do not go to the same school... We hate junkies and [do not] take drugs... we [also] do not drink alcohol, either when we see each other or when we are apart... We talk about films, music and have [stated] on many occasions that we hate Gypsies – we call them “soot” (сажди) and “mangals” (мангали)... Blacks, Gypsies, Turks, all foreigners I hate. As for the Turks and the Gypsies[,] it is known that a high percentage of criminal offences are [committed] by Gypsies and Turks. At home I have heard my father talk about them that way... Last night... we met... as we had previously agreed. [It was a] simple gathering without any aim or idea of what we would do... We went for a walk in the city [park]... We [then] headed towards the train station... [Then] down towards the road... We passed by the bridge... and were walking [close to] the tracks.", "We were just passing and I [do not know] who noticed the Gypsy first... [The Gypsy] was about ten metres away, we were on one side of the road and he was on the other. We started walking after him... The first to catch up with him was [the first assailant] and the Gypsy asked him if he had [the time]. I do not think that anyone of us knew the Gypsy. [The first assailant] told him “I have, I have” and knocked his head against the wall.", "[He] held the Gypsy by the jacket from behind [so] that when he hit him the first time he did not [collapse] because [the first assailant] was holding him [up]. [The first assailant] turned him around immediately and knocked him [once] again [against] the wall. I think he hit him on the head again. [S.H.] went over... and kicked the Gypsy somewhere on the body.", "I did not see where. I and [one of the others] went over to [them] and [we all] brought the Gypsy to the ground. [He] was not able to put up any resistance because everything happened very quickly. He was shouting, because he was hurt. I was not thinking about what the Gypsy was saying and I did not care.", "Personally, I wanted to beat him up and nothing more. I think that the others also just wanted to beat him up... The others... were [also] hitting the Gypsy. I saw them when they hit him. The Gypsy was on the floor and was not able to put up any resistance.", "I was doing what the others were doing and did not watch what they were doing... At some point I saw that there was bleeding from his head. The blood was somewhere on [his] face. He was [still] moving... the same night I had seen that [the first assailant] had a knife... The knife is mine, [but] I gave it to [the first assailant]... a long time before this [night]... I did not know that [that] night [the first assailant had] the knife [with him]... ...", "While we were walking [behind] the Gypsy [and] before we caught up with him[,] I saw that [N.B.]... said to the [the first assailant] “Give me the knife” and I saw that [he] took it out of his pants and gave it to him. I did not see where [N.B.] put the knife and whether it remained in his hand. [But] when we were hitting the Gypsy on the floor I saw how [N.B.]", "stabbed [him] with the knife in [the buttocks] area... I saw that [N.B.] plunged the knife several times into the body of the Gypsy[,] always in that part of his body. The Gypsy was screaming. [N.B.]", "did not say anything, he was not swearing. [N.B.] made three or four jabs... [T]he Gypsy was still moving. Blood began to flow from the place where [N.B.] had [stabbed him]...", "The rest of us were continuing to hit... the Gypsy while [N.B.] was stabbing him...The Gypsy had not provoked us in any way[,] neither with words nor with actions... We beat him because he was a Gypsy... He had had enough. I saw that he was not bleeding profusely... We did not want to kill him, just to beat him up...I am not sure that only [N.B.] used the knife, but I cannot indicate that any one of the others used it.", "I did not see another [person using it]... ... I still do not know what happened to this person, whether he is [still] alive... We have beaten up Gypsies [before] and we [always] hear what happens [to them]...”. 14. An autopsy of the victim was performed on 20 April 1996. It established that he had been stabbed three times in the left outer thigh and twice in the abdominal cavity which resulted in the severance of the ischiadic nerve, the profunda femoris artery (deep artery of the thigh), the main intestine and the urethra.", "He also had bruises and contusions to his face and the back of his head. The autopsy concluded that the cause of death was massive internal loss of blood, resulting from the severance of the profunda femoris artery. 15. On the same day, 20 April 1996, the investigator commissioned a medical expert's report to establish the victim's wounds, whether any of them were in the stomach area, how they had been inflicted, what force had been used and whether his death had been inevitable or whether it could have been avoided by timely specialised medical assistance. It is unclear what was established by the medical expert.", "16. On 15 and 16 May 1996 four of the assailants, D.K., S.H., N.R. and N.B., were charged with hooliganism of exceptional cynicism and impudence (see paragraph 58 below). They were questioned in the presence of their lawyers and then released into their parents' charge. 17.", "D.K. confirmed his previous statement but denied knowing anything about the stabbing of the victim. He was unable to determine whether he was guilty or not. 18. S.H., who was sixteen years old at the time, pled guilty to the offence with which he had been charged.", "He expressed his hatred for Gypsies and stated that the group had purposefully looked for someone from that minority group to attack. S.H. retracted his previous statement of 19 April 1996 in respect of who had perpetrated the stabbings (see paragraph 11 above) and implicated N.B. as having been responsible. As to why he was changing his testimony, he claimed that the members of the group had had an understanding always to implicate the first assailant if they were ever caught, which the latter had apparently suggested and condoned.", "19. N.R., who was seventeen years old at the time, also pled guilty to the offence with which he had been charged. He also confirmed that they had purposefully looked for a Gypsy to attack, retracted his statement of 19 April 1996 (see paragraph 11 above) and implicated N.B. as having stabbed the victim. 20.", "N.B. (“the second assailant”), who was fifteen years old at the time, pled guilty to the offence with which he had been charged but denied any knowledge of the stabbings or of having perpetrated them. 21. On 22 May 1996 G.R.G., who was eighteen years old at the time, was charged with hooliganism of exceptional cynicism and impudence (see paragraph 58 below) and questioned in the presence of his lawyer. He was then released but a restriction was placed on him not to leave his place of residence without authorisation from the Prosecutor's Office.", "In his statement, he pled guilty to the offence with which he had been charged and confirmed the attack was motivated by the victim's Roma ethnicity but was unable to indicate who had perpetrated the stabbings. 22. The seventh member of the group, S.K., was never charged as he did not participate in the attack on the victim. 23. Also on 22 May 1996 two witnesses were questioned, one of whom was I.D., a member of the group who had not been present during the attack on 18 April 1996.", "He gave a statement to the investigation that he had met the first assailant later on the same evening and that the latter had confided in him that the second assailant had stabbed a Gypsy whom they had attacked but that he had taken the knife from him after the attack. I.D. also stated that in a subsequent conversation with the second assailant on 6 May 1996, the latter had inquired what kind of sentence he might receive if he were to confess but that he was scared to do so for fear of being sent to a juvenile correctional facility. The other witness, N.D., gave a statement attesting to the aforementioned conversation. 24.", "On 23 May 1996 the first assailant was questioned again. He confirmed that the group had purposefully looked for a Gypsy to assault on the evening of 18 April 1996. The first assailant also stated that he had given N.B. his knife before the attack and that the latter had stabbed the victim, but that there had been no prior warning or agreement about the incident. Lastly, the first assailant confirmed that he had taken the knife back from N.B.", "after the attack and that there had been a general understanding in the group that he would take responsibility if they were ever to get caught, but that it had not been agreed for this instance in particular. 25. On 14 June 1996 the Shumen District Prosecutor's Office found that there was a lack of evidence that the first assailant had stabbed the victim, dismissed the charges against him and released him. 26. The charges against the first assailant were amended on 17 June 1996 and, like the other members of the group, he was charged with hooliganism of exceptional cynicism and impudence (see paragraph 58 below).", "A restrictive measure was imposed on him whereby he was placed under the supervision of an inspector from the Juvenile Delinquency Unit (инспектор към Детска педагогическа стая). He was also questioned in the presence of his lawyer, pled not guilty to the offence with which he had been charged and reiterated his statement of 23 May 1996. 27. On 21 June 1996 N.R. and S.H.", "were charged with having made false statements to the investigation authorities on 19 April 1999, accusing the first assailant of the offence of murder, which resulted in charges being brought against him (see paragraphs 11 and 13 above and 59 below). They were questioned and then released into the charge of their parents. 28. On 26 June 1996 the second assailant was charged with negligent homicide resulting from an inflicted median bodily injury (see paragraph 57 below). He pled not guilty to the offence and insisted that he had not stabbed the victim.", "29. Due to their conflicting testimonies, a confrontation was organised on 3 July 1996 between the second assailant, N.R. and S.H. They each confirmed their previous statements. 30.", "On 15 April 1997 the results of the preliminary investigation were presented to the first and second assailants. 31. On 18 April 1997 the investigator in charge concluded in a report (обвинително заключение) that there was sufficient evidence against the assailants to obtain a conviction and that the case should proceed to trial. It is unclear when and whether the case file was transferred to the competent Prosecutor's Office. 32.", "A little more than a year later on 26 June 1998, a confrontation was organised between the second assailant and I.D. during which they confirmed their previous statements to the investigation. 33. On several occasions during the course of the preliminary investigation the applicants approached the investigator in charge with requests for information on the progress of the case. They were either refused information or were provided with scant details.", "Sometime in the spring of 1999 the lawyer of the applicants was granted access to the case file. 34. A confrontation was organised on 30 March 1999 between the second assailant and N.D., during which they confirmed their previous statements to the investigation. 35. On 6 April 1999 the second assailant petitioned the investigator to commission a medical report into his state of health, as he claimed to be suffering from a serious incurable disease.", "Such a report was ordered on 6 October 1999. The resulting medical report of 21 October 1999 established that the second assailant suffered from chronic pyelonephritis and back pain, which were typical for teenagers and would be naturally outgrown. 36. On 18 October 1999 the applicants filed a request with the investigator to be recognised as civil claimants in the criminal proceedings. 37.", "On 3 November 1999 the investigator commissioned a psychiatric evaluation of the second assailant. The resulting report, of an unknown date, found that he did not suffer from any serious psychiatric condition and that on the day of the attack his illnesses did not affect his understanding of the nature and consequences of his actions nor his ability to control them. 38. On 18 December 1999 the applicants filed a complaint with the Shumen Regional Prosecutor's Office, alleging that the investigation was being protracted. No apparent action was taken in response to their complaint.", "39. A confrontation was organised on 12 January 2000 between the second assailant and N.R., at which they gave conflicting testimony in respect of a conversation they had had shortly after the attack on the subject of whether to blame the first assailant for the stabbing. 40. On 17 April 2000 the investigator recognised the first applicant as a civil claimant in the criminal proceedings. 41.", "Between 17 April and 1 June 2000 the results of the preliminary investigation were presented to the second assailant, the other five accused and the first applicant. 42. On 2 June 2000 the investigator in charge concluded in a new report that the case should proceed to trial, but proposed that the charges for falsely incriminating the first assailant be dismissed. The case file was transferred to the Shumen Regional Prosecutor's Office on an unspecified date. 43.", "On 3 July 2000 the Shumen Regional Prosecutor's Office remitted the case with instructions that S.K. be questioned concerning the reasons why the group had initially blamed the first assailant for the stabbing, that the accused undergo psychiatric evaluations as to whether or not on the day of the attack they understood the nature and consequences of their actions and could control them, and that the charges against the second assailant be amended. 44. On 11 October 2000 a confrontation was organised between the first and second assailants, at which they gave conflicting testimony in respect of who had had the knife at the time of the attack. 45.", "On 12 October 2000 S.K. was questioned and gave a statement that there had not been a prior understanding in the group that the first assailant would always take the blame, but that following the attack the group had met and the first assailant had informed them that he would take responsibility for what had happened. 46. On 23 March 2001 D.K. was questioned but declined to answer any questions.", "47. The first assailant was questioned on 30 March 2001 and gave a statement attesting to the physical state of the second assailant at the time of the attack, the history of their relationship and his lack of knowledge as to any collusion by the other members of the group to help him by changing their respective testimonies. 48. The charges against the second assailant were amended on 2 April 2001 and a restriction was placed on him not to leave his place of residence without authorisation from the Prosecutor's Office. He was questioned and reiterated his previous statement that he had not been in possession of a knife during the attack and that he had not stabbed the victim.", "The results of the preliminary investigation were also presented to the second assailant on the same day. 49. Between 3 April and 4 June 2001 the results of the preliminary investigation were presented to the other five accused and the first applicant. 50. On 12 June 2001 the investigator in charge concluded in a new report that the case should proceed to trial.", "The case file was transferred to the Shumen Regional Prosecutor's Office on an unspecified date. 51. There was no development in the criminal proceedings during the following four years. 52. On 18 March 2005 the Shumen Regional Prosecutor's Office dismissed the charges of hooliganism of exceptional cynicism and impudence and of falsely incriminating someone before the authorities against all of the assailants who had been juveniles at the time of the attack – namely the first and second assailants, N.R., S.H.", "and D.K. – because the statute of limitation had expired in respect of them. Relying on the evidence collected and the tests conducted in the course of the preliminary investigation, the Shumen Regional Prosecutor's Office argued that the first assailant had stabbed the victim, given that he had had the knife and the victim's blood had been found on his clothes. It therefore dismissed the charges against the second assailant for negligent homicide resulting from an inflicted median bodily injury and remitted the case for further investigation, with instructions that the first assailant be again charged with murder stemming from an act of hooliganism (see paragraphs 12 above and 56 below). The only other remaining accused was G.R.G., who had been eighteen years old at the time of the attack and who continued to be charged with hooliganism of exceptional cynicism and impudence as the statute of limitation had not expired in respect of him (see paragraphs 21 above and 58 below).", "53. On 22 April 2005 the applicants and the victim's three sisters filed a request with the authorities to be recognised as civil claimants in the criminal proceedings and claimed 75,000 Bulgarian levs (approximately 38,461 euros) in damages. 54. On 16 May 2005 the applicants' lawyer met with a prosecutor from the Shumen Regional Prosecutor's Office who informed him that the case file had been requested and was being held by the Ministry of Justice. 55.", "The Court has been informed of no further developments in the criminal proceedings. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Criminal Code 1. Offences with which the assailants were charged 56.", "For the offence of murder stemming from an act of hooliganism the Criminal Code, as in force in 1996, envisaged a sentence of fifteen to twenty years' imprisonment, life imprisonment or death (Article 116 (10)). In 1998 the death penalty was replaced with “life imprisonment without the possibility of substitution”. For juveniles aged from sixteen to eighteen years, the sentence was five to twelve years' imprisonment (Article 63 § 2 (1)) and for those from fourteen to sixteen years – up to ten years' imprisonment (Article 63 § 1 (1) and (2)). The statute of limitation was twenty-two-and-a-half years for juveniles aged from sixteen to eighteen years (Article 80 § 1 (2) in conjunction with § 2 and Article 81 § 3) and fifteen years for those aged from fourteen to sixteen years (Article 80 § 1 (3) in conjunction with § 2 and Article 81 § 3). 57.", "For negligent homicide resulting from an inflicted median bodily injury, the Criminal Code envisaged a sentence of two to eight years' imprisonment (Article 124 § 1), which for juveniles aged fourteen to sixteen years was up to three years' imprisonment (Article 63 § 1 (3) and (4)). The statute of limitation for such juveniles was seven-and-a-half years (Article 80 § 1 (4) in conjunction with § 2 and Article 81 § 3). 58. For hooliganism of exceptional cynicism and impudence, the Criminal Code envisaged a sentence of up to five years' imprisonment (Article 325 § 2 (2)), which for juveniles aged fourteen to sixteen years was up to two years' imprisonment (Article 63 § 1 (4)). The statute of limitation for such juveniles was seven-and-a-half years (Article 80 § 1 (4) in conjunction with § 2 and Article 81 § 3).", "59. For making false statements to the authorities incriminating someone in having committed an offence, as a result of which charges were brought against that individual, the Criminal Code envisaged a sentence of one to ten years' imprisonment (Article 286 § 3), which for juveniles aged fourteen to sixteen years was up to three years' imprisonment (Article 63 § 1 (3) and (4)). The statute of limitation for such juveniles was seven-and-a-half years (Article 80 § 1 (4) in conjunction with § 2 and Article 81 § 3). 2. Racially motivated offences 60.", "Article 162 of the Criminal Code criminalises the propagation and incitement of hostility and hatred, as well as violence based, inter alia, on racial grounds. The relevant part of the Article provides: “1. [A person] who propagates or incites towards racial... hostility or hatred, or towards racial discrimination, shall be punished with imprisonment of up to three years and a public reprimand. 2. [A person] who [resorts to] violence against another or damages [his/her] property because of [his/her]... race... shall be punished with imprisonment of up to three years and a public reprimand.", "3. [A person] who forms or leads an organisation or group, the set goal of which is the perpetration of an offence under the preceding paragraphs, shall be punished with imprisonment of between one to six years and a public reprimand. 4. A member of such an organisation or group shall be punished with imprisonment of up to three years and a public reprimand.” 61. Article 163 of the Criminal Code criminalises, inter alia, racially motivated mob violence.", "The relevant part of the Article provides: “1. Persons who participate in a mob rallied in order to attack groups of [people], individuals or their property because of their... racial affiliation shall be punished [as follows]: (1) the instigators and leaders – with imprisonment of up to five years; (2) the remainder – with imprisonment of up to one year or probation. 2. If the mob or some of its participants are armed, the punishment shall be: (1) for the instigators and leaders – imprisonment of one to six years; (2) for the remainder – imprisonment of up to three years. 3.", "If an attack is carried out and, as a result, a serious bodily injury or death occurs, the instigators and leaders shall be punished with imprisonment of three to fifteen years, while the remainder shall be punished with imprisonment of up to five years, unless they are subject to a more severe punishment.” 62. Articles 416 to 418 of the Criminal Code criminalise racially motivated genocide and apartheid. 63. Article 54 § 1 provides that domestic courts are to take into account, inter alia, the motives of the perpetrator when determining the sentence to be imposed. B.", "Code of Criminal Procedure (1974) 64. Article 192, as in force at the relevant time, provided that criminal proceedings concerning publicly prosecutable offences could only be initiated by a prosecutor or an investigator, acting on a complaint or ex officio. The offences with which the assailants were charged were publicly prosecutable offences. 65. Under Article 237 § 6, as worded until 1 January 2000, a victim had a right of appeal to a higher ranking prosecutor against a decision not to proceed with pending criminal proceedings.", "After 30 April 2001 the victim had the right of appeal against such a decision by a prosecutor to the domestic courts. The victim had no other means to challenge a refusal to prosecute. 66. Victims of crime, or their successors, had the right to join the criminal proceedings as civil claimants and, in that connection, to claim damages, inspect the case file, make copies of relevant documents, adduce evidence, raise objections and make applications (Articles 60 § 1 and 63). They had the right to appeal against decisions of the courts which impinged on their rights and interests, which right they also had in respect of decisions of the investigating and prosecuting authorities until 2 May 2003 (Article 63 § 1).", "C. Code of Criminal Procedure (2006) 67. The new Code of Criminal Procedure introduced separate rights in the criminal proceedings for victims or their heirs , such as the right to participate in them, to be informed of their progress and to appeal against decisions terminating or suspending them (Articles 74 and 75). 68. Victims of crime or their heirs have the right to join criminal proceedings as civil claimants and, in that connection, to claim damages, inspect the case file, make copies of relevant documents, adduce evidence, raise objections and make applications (Articles 84 § 1 and 87). They also have the right to appeal against decisions of the courts which impinge on their rights and interests (Article 87 § 1).", "D. Protection against Discrimination Act (2004) 69. The Protection against Discrimination Act was passed in September 2003 and entered into force on 1 January 2004. It is a comprehensive piece of legislation designed to create machinery providing effective protection against discrimination. It applies mainly in the spheres of labour relations, State administration and the provision of services. The Act created a Commission for Protection against Discrimination with jurisdiction, inter alia, to hear individual complaints (sections 40 and 50).", "70. Section 9 of the Act provides for the shifting of the burden of proof in discrimination cases. Under that section, where a claimant is able to prove facts from which an inference might be drawn that there had been discriminatory treatment, it is incumbent on the defendant to prove that there had not been a violation of the right to equal treatment. 71. Once successful before the Commission, a plaintiff can initiate a tort action for damages before the domestic courts (section 74 (1)).", "If the damages were caused to a private person as a result of an unlawful act, action or inaction by State bodies or officials, the action for damages has to be filed under the State Responsibility for Damage Act (section 74 (2)). No relevant case-law was presented by the parties or was identified as having been reported, to indicate whether or how frequently the aforementioned provision has been utilised in obtaining redress for acts of discrimination from State bodies and officials. E. State and Municipalities Responsibility for Damage Act (1988) 72. The State and Municipalities Responsibility for Damage Act of 1988 (“the SMRDA”) provides that (a) the State and municipalities are liable for damage caused to private and juridical persons by the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties; and (b) that in certain cases the State is liable for damage caused to private persons by the organs of the investigation, the prosecution and the courts (sections 1-2). 73.", "The relevant domestic law and practice under section 1 of the SMRDA has been summarised in the case of Iovchev v. Bulgaria (no. 41211/98, §§ 76‑80, 2 February 2006). 74. Section 2 of the SMRDA provides, as relevant: “The State shall be liable for damage caused to [private persons] by the organs of... the investigation, the prosecution, the courts... for unlawful: 1. detention..., if [the detention order] has been set aside for lack of lawful grounds; 2. accusation of a crime, if the [accused] has been acquitted or the criminal proceedings have been terminated on the grounds that the actions were not perpetrated by the [accused] or that the actions do not constitute an offence, or because the criminal proceedings were opened after the statute of limitations expired or the actions were amnestied; 3. conviction of a crime ..., if the person concerned is subsequently acquitted...; 4. imposition by a court of compulsory medical treatment..., if [the decision] has been set aside for lack of lawful grounds; 5. imposition by a court of an administrative measure..., if [the decision] has been set aside as unlawful; 6. execution of an imposed sentence in excess of the set term or amount.” 75. Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the SMRDA have no claim under general tort law, as the Act is a lex specialis and excludes the application of the general regime (section 8 (1) of the Act; решение № 1370 от 16.XII.1992 г. по гр.д.", "№ 1181/92 г., IV г.о. and Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС). III.", "INTERNATIONAL INSTRUMENTS AND COMPARATIVE LAW ON RACIST VIOLENCE 76. The relevant international instruments and comparative law on racist violence has been summarised in paragraphs 76-82 of the Court's judgment in the case of Nachova and Others v. Bulgaria [GC] (nos. 43577/98 and 43579/98, 6 July 2005). THE LAW I. ALLEGED VIOLATION OF ARTICLES 2, 3 and 13 OF THE CONVENTION 77.", "The applicants complained under Articles 2, 3 and 13 of the Convention that the authorities failed to carry out a prompt, effective and impartial investigation capable of leading to the trial and conviction of the individuals responsible for the ill-treatment and death of their relative. They also complained that the domestic criminal legislation contained no specific provisions incriminating the offences of murder or serious bodily injury, or indeed any other felony, as separate criminal offences where the latter were racially motivated, nor did it contain explicit penalty-enhancing provisions relating to racially motivated offences. Lastly, they complained that the authorities had failed to apply the existing but similarly inadequate provisions of the Criminal Code concerning racially motivated offences. Articles 2, 3 and 13 of the Convention provide: Article 2 “1. Everyone's right to life shall be protected by law.", "No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 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.” 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. The parties' submissions 1. The Government 78.", "The Government contested the applicants' assertions and argued that the application should be declared inadmissible on account of a failure to exhaust domestic remedies. In particular, they considered it to be premature because the applicants had not waited for the completion of the criminal proceedings against the assailants which, they argued, could address and resolve some of the complaints raised before the Court. 79. Separately, the Government claimed that the investigation into the victim's death had been conducted by the authorities with the required diligence. They considered that the investigation had been extremely delicate and complex, given that most of the assailants had been juveniles at the time of the attack and kept changing their statements.", "As a result, the authorities needed to question the same witnesses on more than one occasion, and conducted confrontations between such witnesses and performed medical and other tests and analyses. In spite of their efforts, the assailants' testimonies remained contradictory, which resulted in the case being remitted on three occasions. In the end, murder charges had been brought against one of the assailants, which the Government argued was an indication that the investigation had been completely impartial and not discriminatory. 80. Separately, the Government noted that the first applicant had been recognised as a civil claimant in the criminal proceedings and had been provided with access to the investigation file.", "They claimed that her legitimate interests had therefore been adequately guaranteed and protected. 81. In view of the above, the Government argued that there had been no violations of Articles 2, 3 and 13 of the Convention, on the basis that the investigation had been conducted diligently in spite of the objective and subjective obstructions it had encountered. 2. The applicants 82.", "The applicants disagreed with the Government's assertion that they had failed to exhaust domestic remedies by not waiting for the completion of the criminal proceedings. They noted that in respect of most of the assailants, the criminal proceedings had been terminated on 18 March 2005 because the statute of limitations had expired. In respect of these individuals the criminal proceedings were no longer pending and they could no longer be charged with any other offence stemming from their participation in the attack against the applicants' relative. Thus, the applicants' complaints in respect of these persons could not be claimed to be premature. In respect of the murder charge, the applicants noted that criminal proceedings were pending only against the first assailant.", "They stressed, however, that there had been no further development in the criminal proceedings following the decision of 18 March 2005 and that the charges against the first assailant had not been amended. In any event, the applicants argued that the State's positive duty to investigate and prosecute the offenders included a time component. Referring to the Court's judgment in the case of Selmouni v. France [GC] (no. 25803/94, ECHR 1999‑V) the applicants argued that where such an investigation is unduly prolonged, its excessive length alone would render it ineffective. Lastly, they noted that the question of whether or not the investigation had been effective was a question on the merits and called for the Government's objection to be dismissed.", "83. Separately, the applicants reiterated their complaints and argued that the respondent State had violated its positive obligations under Articles 2 and 3 of the Convention to conduct an effective investigation capable of leading to the punishment of the individuals responsible for the ill-treatment and death of their relative. 84. Referring to the Court's case-law, the applicants argued that in the present case the investigation conducted by the authorities had clearly been ineffective as it had, for a considerable length of time, failed to result in prosecution and punishment of the assailants. 85.", "Lastly, the applicants claimed that the decision of 18 March 2005 of the Shumen Regional Prosecutor's Office had made it even more unlikely that any of the assailants would be punished for the death of their relative, because they considered that the evidence against the first assailant was not conclusive enough for a successful prosecution. They argued that the statements and evidence pointing to the second assailant as the stabber had been much more substantial and credible but noted that, due to the expiration of the statute of limitation, they had all become irrelevant. They submitted that, as a result of the investigation having taken such a long time and having been ineffectively conducted, any possibility of a successful prosecution of any of the assailants was precluded. 86. The applicants made similar submissions in respect of the investigation into their relative's ill-treatment by the assailants, which they likewise considered to have been excessively delayed and ineffective.", "They noted that none of the assailants had been charged with causing bodily injury to their relative but had only been charged with “hooliganism”, which allegedly carried a lighter sentence. However, even these charges were dismissed on 18 March 2005 against all but one of the assailants because the statute of limitations had expired. B. Admissibility 87. The Court notes that the Government argued that the applicants failed to exhaust domestic remedies by not waiting for the criminal proceedings against the assailants to be completed. The applicants meanwhile claimed that the question of exhaustion of domestic remedies was inextricably linked to the merits of the complaint and, in addition, that in respect of part of the assailants the criminal proceedings had in any event been terminated on 18 March 2005.", "88. The Court observes that that the criminal proceedings were opened against the assailants on 19 April 1996 and were still pending at the investigation stage when the applicants filed their complaints with the Court on 7 February 2000 arguing, inter alia, that the said proceedings were of excessive length and therefore ineffective. Subsequently, on 18 March 2005 the criminal proceedings against all but two of the assailants were terminated. Presumably, however, they are still ongoing against the two individuals in question. 89.", "The Court finds that the question of exhaustion of domestic remedies and the length of the criminal proceedings against the assailants inevitably relate to the merits of the applicants' complaint that the length of the investigation in itself rendered it ineffective. Therefore, to avoid prejudging the latter, these questions should be examined together. Accordingly, the Court holds that the question of exhaustion of domestic remedies should be joined to the merits. 90. In conclusion, the Court finds that the applicants' complaints under Articles 2, 3 and 13 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, or inadmissible on any other grounds.", "They must therefore be declared admissible. C. Merits 1. General principles 91. Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention and enshrines one of the basic values of the democratic societies making up the Council of Europe. The Court must subject allegations of breach of this provision to the most careful scrutiny (see Nachova and Others, cited above, § 93).", "92. The Court observes at the outset that the applicants did not contend that the authorities of the respondent State were responsible for the death of their relative; nor did they imply that the authorities knew or ought to have known that he was at risk of physical violence at the hands of third parties and failed to take appropriate measures to safeguard him against such a risk. The present case should therefore be distinguished from cases involving the alleged use of lethal force either by agents of the State or by private parties with their collusion (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324; Shanaghan v. the United Kingdom, no. 37715/97, § 90, 4 May 2001; Anguelova v. Bulgaria, no.", "38361/97, ECHR 2002‑IV; Nachova and Others, cited above; and Ognyanova and Choban v. Bulgaria, no. 46317/99, 23 February 2006), or in which the factual circumstances imposed an obligation on the authorities to protect an individual's life, for example where they had assumed responsibility for his welfare (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, ECHR 2002‑II) or where they knew or ought to have known that his life was at risk (see Osman v. the United Kingdom, judgment of 28 October 1998, Reports of Judgments and Decisions 1998‑VIII). 93. However, the absence of any direct State responsibility for the death of the applicants' relative does not exclude the applicability of Article 2 of the Convention.", "The Court reiterates that by requiring a State to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports 1998‑III, p. 1403, § 36), Article 2 § 1 of the Convention imposes a duty on that State to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions (see Osman, cited above, § 115). 94. The Court reiterates that in the circumstances of the present case this obligation requires that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life-threatening injuries in suspicious circumstances. The investigation must be capable of establishing the cause of the injuries and the identification of those responsible with a view to their punishment.", "Where death results, as in the present case, the investigation assumes even greater importance, having regard to the fact that the essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life (see Anguelova, cited above, § 137; Nachova and Others, cited above, § 110; and Ognyanova and Choban, cited above, § 103). 95. The Court reiterates that in cases involving allegations that State agents were responsible for the death of an individual, it has qualified the scope of the above-mentioned obligation as one of means, not of result. Thus, the authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death, or the person or persons responsible will risk falling foul of this standard (see Anguelova, cited above, § 139; Nachova and Others, cited above, § 113; and Ognyanova and Choban, cited above, § 105).", "96. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to request particular lines of inquiry or investigative procedures (see İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000‑VII, and Nachova and Others, cited above, § 111).", "97. A requirement of promptness and reasonable expedition is implicit in this context. It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see McKerr v. the United Kingdom, no. 28883/95, § 114, ECHR 2001‑III; and Ognyanova and Choban, cited above, § 106).", "98. Although there was no State involvement in the death of the applicants' relative, the Court considers that the above-mentioned basic procedural requirements apply with equal force to the conduct of an investigation into a life-threatening attack on an individual, regardless of whether or not death results (see, mutatis mutandis, M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003‑XII). Moreover it would add that, where that attack is racially motivated, it is particularly important that the investigation is pursued with vigour and impartiality, having regard to the need to reassert continuously society's condemnation of racism and to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence (see Menson and Others v. the United Kingdom (dec.), no.", "47916/99, ECHR 2003-V). 2. Application of these principles in the present case 99. The Court observes that the preliminary investigation into the death of the applicants' relative was opened almost immediately after the attack on 18 April 1996 (see paragraphs 10 and 11 above). Within less than a day the investigation had identified the persons who had perpetrated the attack, had detained or questioned all of them and had charged the first assailant with murder stemming from an act of hooliganism (see paragraph 12 above).", "At the same time, the investigation was informed by one of the assailants, D.K., that the attack had been racially motivated because the victim was of Roma origin (see paragraph 13 above). Within another month the investigation had commissioned medical and other reports and had charged the remaining five assailants with hooliganism of exceptional cynicism and impudence (see paragraphs 14-22 above). 100. The Court further observes that the changes in the testimonies of those assailants who had at first blamed the first assailant for stabbing the victim were initially dealt with expeditiously by the authorities. Namely, the charges against the first assailant were amended to hooliganism of exceptional cynicism and impudence (see paragraph 26 above), N.R.", "and S.H. were charged with having made false statements to the investigation authorities incriminating the first assailant, (see paragraph 27 above) and the second assailant was charged with negligent homicide resulting from an inflicted median bodily injury (see paragraph 28 above). 101. Over the next three years, however, the preliminary investigation became protracted for undisclosed reasons, with investigative procedures being performed approximately once a year (see paragraphs 30-34 above). From 1999 to 2001 there was more activity on the part of the authorities, but in spite of the numerous confrontations between witnesses, the medical and other evaluations and examinations performed and the investigator's proposals to bring the assailants to trial, nothing further of substance transpired (see paragraphs 34-50 above).", "Then, for a period of four years between 2001 and 2005, there were absolutely no further developments and the criminal proceedings remained at the investigation stage until the present case was communicated to the respondent Government (see paragraphs 5 and 50-52 above). As a result of the accumulated delays, the statute of limitations expired in respect of the majority of the assailants and the authorities terminated the criminal proceedings against them on 18 March 2005. Thus, in spite of the authorities having identified the assailants almost immediately after the attack and having determined with some degree of certainty the identity of the stabber, no one was brought to trial for the attack on the applicants' relative over a period of more than eleven years. 102. The Court observes in this respect that the Government failed to provide convincing explanations for the protraction of the criminal proceedings.", "It finds that the arguments put forward by them do not provide justification for the authorities' failure over several years to conclude the criminal proceedings and bring the assailants to trial. 103. The Court recognises that the preliminary investigation is still pending against two of the assailants, but, considering the length of the proceedings so far, it finds it questionable whether either of them will ever be brought to trial or be successfully convicted. In any event, the Court does not consider it necessary to make an assessment of this point in the context of the present proceedings, in view of the accumulated length of the proceedings so far and the fact that they were terminated in respect of the majority of the assailants due to the expiration of the statute of limitation as a result of the authorities' inactivity. In this respect, it also does not consider that the applicants should have waited for the completion of the criminal proceedings before filing their complaints with the Court, as the conclusion of those proceedings would not remedy their overall delay in any way.", "104. As to whether the respondent State's legal system provided adequate protection against racially motivated offences, the Court observes that it did not separately criminalise racially motivated murder or serious bodily injury (Articles 115-135 of the Criminal Code), nor did it contain explicit penalty-enhancing provisions relating to such offences if they were motivated by racism (Articles 116 and 131 of the Criminal Code). However, the Court considers that other means may also be employed to attain the desired result of punishing perpetrators who have racist motives. It observes in this respect that the possibility existed in domestic legislation to impose a more severe sentence depending on, inter alia, the motive of the offender (see paragraph 63 above). The Court further observes that the authorities charged the assailants with aggravated offences, which though failing to make a direct reference of the racist motives of the perpetrators provided for more severe sentences than those envisaged in domestic legislation for racial hatred offences (see paragraphs 56-61 above).", "Thus, it does not consider that domestic legislation and the lack of penalty-enhancing provisions for racist murder or serious bodily injury were responsible in the present case for hampering or constraining the authorities from conducting an effective investigation into the death of the applicants' relative and applying effectively the existing domestic legislation. 105. In conclusion, the Court finds that in the particular circumstances of the present case the authorities failed in their obligation under Article 2 of the Convention to effectively investigate the death of the applicants' relative promptly, expeditiously and with the required vigour, considering the racial motives of the attack and the need to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence. Thus, there has been a violation of Article 2 § 1 of the Convention. It follows that the Government's preliminary objection (see paragraphs 89 and 103 above) must be dismissed.", "106. Having regard to the above conclusion, the Court does not deem it necessary in the present case to make a separate finding under Articles 3 and 13 of the Convention (see, mutatis mutandis, Anguelova, cited above, § 150; Ognyanova and Choban, cited above, § 124; and Nachova and Others, cited above, § 123). II. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLES 2 AND 3 OF THE CONVENTION 107. The applicants alleged a violation of Article 14 in conjunction with Articles 2 and 3 of the Convention in that the authorities failed in their duty to investigate and prosecute a racially motivated violent offence.", "They referred, inter alia, to their Roma origin, the alleged widespread prejudices against their ethnic group and the authorities' consistent failure to address systematic patterns of violence and discrimination against their community. Article 14 of the Convention provides. “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. The parties' submissions 1. The Government 108.", "The Government contested the applicants' assertion and argued that the complaint should be declared inadmissible on account of a failure to exhaust the domestic remedies. They claimed that the applicants could have initiated an action against the authorities under the Protection against Discrimination Act, in force as from 1 January 2004, if they believed that there had been discriminatory motives for the investigation having taken too long or for any alleged inactivity on the part of the authorities. 109. In any event, the Government considered that there had not been any discriminatory motive in the way the authorities had conducted the investigation and argued that this had been demonstrated by the diligence with which it had been conducted, its preciseness and the severity of the charges finally brought against the first assailant. 2.", "The applicants 110. The applicants challenged the Government's claim that the complaint should be declared inadmissible on account of a failure to exhaust the domestic remedies. They argued that an action under the Protection against Discrimination Act was not a remedy that they were required to exhaust because it was neither effective nor available. The applicants noted that the Court had repeatedly held that there is no requirement that remedies that are neither adequate nor effective should be used (see, mutatis mutandis, Sakık and Others v. Turkey, judgment of 26 November 1997, Reports 1997‑VII, p. 2625, § 53) and that an individual must have clear, practical opportunity to challenge an act which is an interference with his or her rights (see De Geouffre de la Pradelle v. France, judgment of 16 December 1992, Series A no. 253‑B, p. 43, § 34 and Bellet v. France, judgment of 4 December 1995, Series A no.", "333‑B, p. 42, § 36). In respect of the lack of availability of the remedy claimed by the Government, the applicants noted that the Protection against Discrimination Act entered into force close to four years after they had lodged their complaints with the Court. With regard to its effectiveness, they argued that an action for damages, be it based on anti-discrimination legislation or general tort law, could not remedy the substance of their complaint before the Court, which was that the authorities had failed to conduct an effective investigation into the death of their relative and to prosecute the perpetrators. Moreover, an action under the Act would be directed against the investigation authorities and would require the applicants to prove discriminatory treatment by them on the basis of race, of which there was no direct evidence. Thus, the applicants claimed that there was no clear link between the complaints they raised before the Court and the remedy suggested by the Government.", "111. On the merits of their complaint, the applicants referred to the Court's judgment of 26 February 2004 in the case of Nachova and Others (cited above) and noted that States which are parties to the Convention had a positive duty to investigate possible discriminatory motives in cases where there was evidence of racially motivated violence. In line with the Court's ruling in that judgment, the applicants argued that Article 14 of the Convention, taken together with Article 2 and 3 of the Convention, contained a separate procedural obligation to carry out such an investigation. Such an obligation, they further argued, was fully in line with the Court's existing case-law under Articles 2 and 3 of the Convention (see Menson and Others (dec.), cited above) and the existing standards under international law (see the jurisprudence of the United Nations Committee on the Elimination of All Forms of Racial Discrimination – Case No. 4/1991, L.K.", "v. the Netherlands, Views adopted on 16 March 1993, para. 6.6.). The applicants thus claimed that in the present case Article 14, in conjunction with Articles 2 and 3 of the Convention, had been violated with respect to its procedural aspect – the duty to investigate where there is evidence reasonably suggesting that there was racially motivated violence and killing. 112. The applicants argued that the investigation had collected testimony and forensic evidence that clearly established that the victim was attacked, severely beaten and killed because of his race.", "In particular, the assailants testified that the victim was picked, beaten and killed because, and only because, he was a Roma. Sufficient evidence was also collected that this was by no means an isolated event for the assailants and that they had periodically practiced racist violence of a similar nature. Thus, in spite of the abundant evidence of the attack, the beating to which the victim was subjected and his resulting death, the assailants and the person who stabbed him were never prosecuted. This failure by the Bulgarian authorities was, the applicants argued, an unambiguous violation of Article 14 taken in conjunction with the procedural aspect of Articles 2 and 3 of the Convention. 113.", "Referring to the general situation of Roma in Bulgaria, the numerous incidents of racist attacks and the high rate of violence against them, as well as the specific facts in the present case, the applicants further claimed that the Bulgarian authorities should have investigated and prosecuted the racial discrimination aspect of the attack and should have brought charges reflecting the particular gravity of the racist violence. They argued that the authorities completely failed to do this and that nothing in the investigation addressed the racist motivation of the violence against their relative. The conduct of the prosecuting authorities therefore thwarted the course of justice and deprived them of an effective remedy against the discrimination suffered by the victim. B. Admissibility 114. The Court notes that this complaint is linked to the ones examined above (see paragraphs 77-106 above) and must therefore, likewise, be declared admissible.", "The Court does not find that the Government sufficiently substantiated their argument that the applicants should have exhausted the procedure under the Protection against Discrimination Act, as it does not consider it to have been proven that this procedure, introduced eight years after the attack and four years after the introduction of the application, would have been an effective remedy for their complaint under Article 14 of the Convention alleging that the authorities failed in their duty to investigate and prosecute a racially motivated violent offence. C. Merits 115. The Court reiterates that States have a general obligation under Article 2 of the Convention to conduct an effective investigation in cases of deprivation of life, which must be discharged without discrimination, as required by Article 14 of the Convention. Moreover, when investigating violent incidents State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Failing to do so and treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights.", "A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State's obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and not absolute; the authorities must do what is reasonable in the circumstances of the case (see Nachova and Others, cited above, § 160). 116. In the present case, the racist motives of the assailants in perpetrating the attack against the applicants' relative became known to the authorities at a very early stage of the investigation, when D.K.", "gave a statement to that affect on 19 April 1996 (see paragraph 13 above). The Court considers it completely unacceptable that, while aware that the attack was incited by racial hatred, the authorities did not expeditiously complete the preliminary investigation against the assailants and bring them to trial. On the contrary, they allowed the criminal proceedings to procrastinate and to remain at the investigation stage for more than eleven years. As a result, the statute of limitations expired in respect of the majority of the assailants. In addition, the Court observes that the authorities failed to also charge the assailants with any racially motivated offences.", "It notes in this respect the widespread prejudices and violence against Roma during the relevant period and the need to reassert continuously society's condemnation of racism and to maintain the confidence of minorities in the authorities' ability to protect them from the threat of racist violence (see Menson and Others (dec.), cited above). 117. Thus, the Court finds that in the present case the authorities failed to make the required distinction from other, non-racially motivated offences, which constitutes unjustified treatment irreconcilable with Article 14 of the Convention. Consequently, it finds that there has been a violation of Article 14 taken in conjunction with the procedural aspect of Article 2 of the Convention. 118.", "Having regard to the above conclusion, the Court does not deem it necessary in the present case to make a separate finding under Article 14 taken in conjunction with the procedural aspect of Article 3 of the Convention (see paragraph 106 above). III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 119. The applicants complained under Article 6 of the Convention in respect of the excessive length of the criminal proceedings against the assailants and alleged that this denied them access to a court to claim damages from the perpetrators, in that a civil action for damages was dependent on the outcome and findings of the criminal proceedings. The relevant part of Article 6 § 1 of the Convention provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...” 120.", "The Court notes that similar complaints were dismissed in the cases of Assenov and Others v. Bulgaria (judgment of 28 October 1998, Reports 1998‑VIII, p. 3292, §§ 110‑13) and Toteva v. Bulgaria (dec.) (no. 42027/98, 3 April 2003). The present case does not disclose any material difference. In particular, had the applicants initiated a civil action against the assailants, the competent civil court would have accepted it for examination. It is true that the court would have, in all likelihood, stayed the proceedings if it found that the relevant facts involved criminal acts.", "However, the civil courts are not bound by a refusal or delay of the prosecuting authorities to investigate. In circumstances where – as here – the applicants did not bring a civil action, it is a pure speculation to consider that the civil proceedings would have remained stayed for such a period, so as to give rise to a de facto denial of justice, as claimed by the applicants. 121. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 122. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 123. The applicants claimed 40,000 euros (EUR) on behalf of the victim, on their own behalf and also on behalf of the first applicant's three daughters, sisters of the victim. The amount claimed was to compensate the violation of the victim's rights and the pain and suffering caused to all his close relatives, mother, sisters and brother, as a result of the ineffective, prolonged and eventually aborted investigation and prosecution of those responsible for his beating and death, the loss of the moral and financial support he would have provided to his family as well as the thwarted opportunity for his relatives to file a claim for damages under national law for more than nine years.", "The applicants claimed that under Article 41 of the Convention non-pecuniary damages should be awarded in full to anyone who suffered a violation of the rights under the Convention and that the Court had awarded the highest amounts in compensation for violations of the right to life. They further noted that the Court in its case-law had outlined a number of circumstances that should be taken into consideration in such cases, such as whether the behaviour of the authorities was particularly blameworthy or the consequent investigation particularly flawed, the age of the victim (see Anguelova, cited above, § 173) and also whether it had been demonstrated that the responding State had tolerated a wider practice of abuse of Convention rights (see Nachova and Others, cited above, §§ 171-72). The applicants argued that in the present case there were several such factors that necessitated an increased award of damages, namely that their relative was the victim of a racist attack, beating and killing; that he was an innocent victim, randomly chosen because of the colour of his skin; that, in spite of the abundant evidence concerning the offence and the perpetrators, the authorities had chosen not to investigate and prosecute a blatantly racist crime; that such tacit approval of racism by the authorities was particularly blameworthy; and that the specific circumstances of the victim's death and the behaviour of the investigation and prosecution authorities should not be tolerated under any circumstances. Finally, the applicants claimed that the possibility for them to receive compensation from the assailants in the domestic courts was practically non-existent given the latest developments in the criminal proceedings, the expiration of the statute of limitation in respect of most of the perpetrators and the evidentiary difficulties of initiating a successful civil action for damages after so many years. 124.", "The Government stated that the applicants' claims were excessive, unsubstantiated and that they did not correspond to the size of awards made by the Court in previous similar cases. They referred to the judgment in the case of Nachova and Others (cited above) where the Court had awarded the relatives of the first victim EUR 25,000 jointly for pecuniary and non-pecuniary damage and the parents of the second victim EUR 22,000 jointly for pecuniary and non-pecuniary damage. The Government also referred to the case of Anguelova (cited above) where the Court had awarded the applicant EUR 19,050 for non-pecuniary damage. They also noted that any compensation for damages should be made on an equitable basis and considered the applicants' claim to be arbitrarily determined. The Government challenged the possibility for the applicants to claim damages on behalf of the victim's sisters, as the latter had not been party to the proceedings before the Court, and considered that they should not be awarded any sums in compensation.", "They argued that his sisters could have joined the proceedings in their own right and, had they done so, then they could have filed a claim for damages, such as had been done by the relatives of the victims in the above cited cases. The Government disagreed with the applicants' argument that they had no opportunity to seek damages from the assailants at domestic level, and referred to the civil claim filed by the applicants and the sisters of the victim in April 2005 within the framework of the pending criminal proceedings. 125. In respect of pecuniary damage, the Court reiterates that there must be a causal link between the damage claimed by an applicant and the violation of the Convention and that this may, in the appropriate case, include compensation in respect of loss of earnings (see, amongst others, the Barberà, Messegué and Jabardo v. Spain (Article 50), judgment of 13 June 1994, Series A no. 285‑C, pp.", "57-58, §§ 16-20, and Çakıcı v. Turkey [GC], no. 23657/94, § 127, ECHR 1999‑IV). The Court notes that in the present case private persons were responsible for the ill-treatment and death of the victim. Thus, although there is a direct link between his death and the claimed loss of financial support, the Government was not responsible for the assailants' actions and cannot therefore be held liable to compensate the applicants for the pecuniary damage suffered as a result. Accordingly, the Court rejects the applicants' claim for pecuniary damage.", "126. In the context of assessing the claim for non-pecuniary damage, the Court notes that, in respect of just satisfaction claims, Rule 60 of the Rules of Court requires the respective party to be an applicant and to have filed a claim to that effect. Rule 60 provides: “1. An applicant who wishes to obtain an award of just satisfaction under Article 41 of the Convention... must make a specific claim to that effect. 2.", "The applicant must submit itemised particulars of all claims... 3. If the applicant fails to comply with the requirements set out in the preceding paragraphs the Chamber may reject the claims in whole or in part.” 127. Thus, the principle is that awards can only be made to persons who are applicants in the proceedings before the Court. 128. The Court notes, however, that awards have also previously been made to surviving spouses and children and, where appropriate, to applicants who were surviving parents or siblings.", "It has also previously awarded sums as regards the deceased where it has found that there had been arbitrary detention or torture before his disappearance or death, such sums to be held for the person's heirs (see, among others, Çakıcı [GC], cited above, § 130, and Akdeniz and Others v. Turkey, no. 23954/94, § 133, 31 May 2001). The Court recognizes that in those cases the balance of the awards represented compensation for the victim's own pain and suffering at the hands of the police or security forces as a result of substantive violations of Articles 2 and/or 3 of the Convention. The present case relates to the ill-treatment and death of the applicants' relative as a result of actions by private individuals. Accordingly, only the pain and suffering of the applicants as a result of events subsequent to their relative's death – for which the respondent State was responsible – are relevant when assessing the award to be made.", "129. Separately, the Court notes that the victim's heirs were established soon after his death in 1996, and included his mother, brother and three sisters. The proceedings before the Court were initiated and maintained by his mother and brother, but that did not restrict, bar or hinder his three sisters from requesting to join the proceedings and claiming to be victims of the alleged violations in their own right. In so far as they failed to exercise their right to join the proceedings, the Court finds that they do not satisfy the requirements of Article 41 of the Convention and Rule 60 of the Rules of Court, namely to be applicants who claim to be an injured party and who have filed a valid claim for damages. 130.", "Accordingly, the Court, deciding on an equitable basis and having regard to awards in comparable cases (see Anguelova, cited above, § 173 and Nachova and Others, cited above, §§ 171-72), finds it appropriate in the circumstances of the present case to award EUR 15,000 jointly to the two applicants, plus any tax that may be chargeable on that amount. B. Costs and expenses 131. The applicants claimed EUR 6,000 for 65 hours of legal work by their lawyer before the Court, at the hourly rate of EUR 80, and for 23 hours of travelling time, at the hourly rate of EUR 40, on matters relating to the case. They submitted an agreement on legal fees concluded with their lawyer and a timesheet.", "The applicants requested that the costs and expenses incurred should be paid directly to their lawyer, Mr Y. Grozev. 132. The Government challenged the timesheet presented by the applicants and the number of hours claimed to have been worked by the applicants' lawyer in the proceedings before the Court, which they considered excessive for the work performed. Concerning the travel expenses, they argued that it had not been proven that any such trips had even taken place because no tickets or receipts had been presented to the Court. In any event, they considered the rate of EUR 40 per hour for travelling time for the lawyer to be excessive.", "133. The Court reiterates that, according to its case-law, an applicant is entitled to reimbursement of his or her costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. Noting the complexity of the case, the submissions of the applicants' lawyer and the other relevant factors, the Court considers it reasonable to award the sum of EUR 3,500 in respect of costs and expenses, plus any tax that may be chargeable on that amount. C. Default interest 134. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join to the merits the question of the exhaustion of domestic remedies in respect of Article 2 of the Convention; 2. Declares admissible the complaints concerning (a) the failure of the authorities to carry out a prompt, effective and impartial investigation capable of leading to the trial and conviction of the individuals responsible for the ill-treatment and death of the applicants' relative, and (b) the authorities' failure in their duty to investigate and prosecute a racially motivated violent offence; 3. Declares the remainder of the application inadmissible; 4. Holds that there has been a violation of Article 2 of the Convention and accordingly dismisses the Government's preliminary objection based on non-exhaustion of domestic remedies; 5.", "Holds that no separate issue arises under Articles 3 and 13 of the Convention; 6. Holds that there has been a violation of Article 14 in conjunction with Article 2 of the Convention; 7. Holds that no separate issue arises under Article 14 in conjunction with Article 3 of the Convention; 8. Holds (a) that the respondent State is to pay to 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 Bulgarian levs at the rate applicable on the date of settlement: (i) EUR 15,000 (fifteen thousand euros) in respect of non-pecuniary damage, payable jointly to the applicants; (ii) EUR 3,500 (three thousand five hundred euros) in respect of costs and expenses, payable into the bank account of the applicants' lawyer; (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; 9. Dismisses the remainder of the applicants' claim for just satisfaction.", "Done in English, and notified in writing on 26 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]

[ "FOURTH SECTION CASE OF GRĂDINAR v. MOLDOVA (Application no. 7170/02) JUDGMENT STRASBOURG 8 April 2008 FINAL 08/07/2008 This judgment may be subject to editorial revision. In the case of Grădinar v. Moldova, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Josep Casadevall,Giovanni Bonello,Stanislav Pavlovschi,Lech Garlicki,Ján Šikuta,Päivi Hirvelä, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 18 March 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 7170/02) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mrs Nina Grădinar (“the applicant”), on 28 November 2000.", "2. The applicant was represented by Mr N. Arnăut, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent at the time, Mr V. Pârlog. 3. The applicant complained, in particular, about the failure of the authorities to protect her late husband’s life and about the unfairness of the criminal proceedings against him.", "4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 11 April 2006 a Chamber of that Section decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1956 and lives in Comrat. She acts on behalf of her deceased husband, Mr Petru Grădinar (“G.”). 6. The facts of the case, as submitted by the parties, may be summarised as follows.", "1. The background of the case 7. G. was in conflict with a number of officers of the Comrat police and was allegedly persecuted by those officers for criticising them and helping alleged victims of police abuse. In 1993 G. was allegedly abducted by the local police and a ransom was requested. Having been kept for 15 days in the woods, he was released and on 24 December 1993 lodged a complaint against several officers of the local police, including D., the Deputy Chief of the Comrat police.", "A criminal investigation was opened but was discontinued for lack of evidence. 8. On 11 March 1995 M., a subordinate of D., made a complaint against G. for resisting the legitimate orders of the police. On the same day G. made a complaint against D., M. and another officer for abusing their power by beating him up at his home and requested the opening of a criminal investigation. The judge examining the two cases closed the first one for lack of evidence.", "The criminal investigation into G.’s complaint was discontinued some time later. 9. On 4 May 1995 the personnel of the local police station wrote a letter to various authorities in support of the three officers and against D.C. (one of the three accused in the present case). The Prosecutor General found that many of the statements by the police officers in that letter were unfounded and tendentious and contained gratuitous accusations against G., D.C. and the prosecutor who had opened the criminal investigation. There was mention of talk among the officers about possibly resorting to “illegal methods of fighting” the suspects.", "10. On 16 September 1995 a burnt-out car was found in a forest near Comrat. The police found the remains of a person in the boot of the car. A criminal investigation was opened and led to the conclusion that the victim was D. Three persons became the prime suspects: the C. brothers (D.C. and G.C.) and G. 11.", "According to the prosecution, the following events led to the murder of D. on the night of 15 to 16 September 1995. In 1994 D. had opened a criminal investigation against G.C. for “aggravated hooliganism”. The C. brothers and G. were in serious conflict with D. On 15 September 1995 D. visited a bar in Comrat, where he met with the C. brothers and G., was insulted by them and was hit outside the bar. They agreed to meet at around 4 a.m. at a roundabout to finish the dispute.", "12. When they met at 4 a.m., the C. brothers and G. beat D. and then forced him into the back of his police car and drove to a forest, followed by G. in his own car. In the forest, they continued beating D. and then loaded him into the boot of his car, sprayed petrol all over it and set the car on fire. The applicant disputed this version of events. 13.", "On 20 May 1997 the Chişinău Regional Court acquitted all three suspects. On 21 October 1997 the Court of Appeal upheld that judgment. 14. On 5 December 1997 a bomb exploded near G.’s house but nobody was hurt. G. lodged a complaint and requested measures of protection.", "The criminal investigation initiated at his request could not identify the bombers and was closed in February 1998. The Ministry of the Interior refused to apply measures of protection to him because he had not received any threats and there was no reason to expect a repeat of the bombing. 15. On 12 January 1998 the Supreme Court of Justice quashed the lower courts’ judgments of 20 May and 21 October 1997 and ordered a full rehearing of the case. 16.", "On 11 June 1999 G. and his son were killed in their car by gunmen. The criminal investigation subsequently launched did not reveal the identities of the killers. On 6 July 1999 the applicant insisted on the continuation of her late husband’s retrial in order to prove his innocence. She was recognised as his legal representative and was allowed to make submissions to the courts in addition to those made by the lawyer whom she had appointed. 2.", "Findings of the Chişinău Regional Court (judgment of 16 September 1999) 17. On 16 September 1999 the Chişinău Regional Court (“the first-instance court”), the only one which examined the witnesses in the case directly (except for P.O., the prison hospital doctor), found the following facts: (a) Administrative proceedings against D.C. and G. 18. On 17 September 1995 D.C. was taken to the local police station and questioned as a witness about the events of the night of 15 to 16 September 1995. On 18 September 1995 G. was taken to the same police station and also questioned as a witness about the same events. 19.", "They were not informed of their rights and were not assisted by lawyers. They were handcuffed while questioned. After the questioning, administrative files were opened on the basis of their alleged insults to D. at the bar and a judge ordered their arrest for ten days as an administrative sanction. During the administrative arrest further questioning took place and other procedural steps were taken, resulting in evidence later used in the criminal case against them. In particular, during this period (18-22 September 1995), G. and D.C. confessed to having murdered D. 20.", "The court found that the initial reports which had served as a basis for the administrative arrest had been filed in breach of the proper procedures. There had been no grounds for the administrative arrest because the two men were suspects in a criminal case and any detention should have been ordered on that basis. 21. On 19 September 1995 G. and D.C. were taken to a remand centre in Chişinău, where they were questioned again until 21 September 1995 as witnesses and without legal assistance. They made statements accepting their guilt during the questioning.", "22. On 21 September 1995 they were, for the first time, interviewed as suspects (as opposed to witnesses), still without having their rights explained and without access to a lawyer. (b) Alleged ill-treatment 23. On 9 October 1995 both D.C. and G. were questioned for the first time in the presence of their lawyers and each confessed to having committed the crime. However, when signing the record of the questioning, each wrote that he did not accept any guilt.", "The same happened on 7 November 1995 in respect of G.C., who had been arrested in Russia and extradited to Moldova. In his statement G.C. mentioned that G. and D. had fought in the woods and had both fallen to the ground before D. was immobilised and burned in his car. D.C. noted that after taking C.S. to the hospital where she worked after 3 a.m., they had driven back by the police station building and towards the roundabout.", "However, the court found that this was contradicted by the officer P.V., who had been in a police car parked next to the police station and who had not seen any car drive past the station at that time. 24. In early October 1995 G. lodged two complaints about ill-treatment by the police. On 15 December 1995 the investigating judge requested the prosecutor to investigate the allegations. On 1 March 1996 the prosecutor answered in respect of one complaint that the facts had not been confirmed but did not attach any documents from the investigation as required by law.", "There was no evidence of any investigation of the second complaint. 25. In October 1995 G. was admitted to a hospital for detainees, where he was examined by Dr P.O. on 13 October 1995. Dr P.O.", "testified in court that G. had complained to him of ill-treatment by the police, but because there were no visible signs, this had not been recorded in the medical report. The court noted that the medical report had been drawn up almost a month after the alleged ill-treatment, which prevented the verification of the allegations. However, G.’s medical file showed that he had complained of pain in the kidneys and broken chest bones and that he had been treated for injuries to his head and leg (“post-traumatic neuritis of the right leg”). Dr P.O. testified that such damage to the leg normally appeared as a result of blows or contusions to that area.", "The doctor’s conclusion that no chest-bone fractures had been found was not backed up by X-ray evidence as required by law. Subsequent X-ray pictures were of too poor a quality to establish whether the bones were intact. 26. On 20 March 1996 another medical examination of G. was carried out at the request of the investigator. While no signs of ill-treatment were found, the diagnosis was “mild consequences of craniocerebral trauma with hypertonic syndrome” and G. was advised to undergo in-patient treatment.", "He refused, but in May 1996 he had to be admitted to the hospital as a result of the head injuries and neuritis in the leg. He stayed at the hospital until December 1996. 27. The court also found that, owing to various violations of the rules on criminal procedure, including the use of ill-treatment for the purpose of obtaining a confession, the self-incriminatory declarations made by the third suspect, G.C., who had been arrested in Russia, could not be accepted as evidence. No proper request had been made by the Moldovan authorities to their Russian counterparts to question G.C.", "and he could not properly be questioned by the Russian authorities because he was not a Russian citizen. 28. The court found that in all the statements made by the suspects there was no fact of which the prosecution had not already been aware before the questioning. Furthermore, G.’s complaint that he had been shown a video of D.C.’s statements, including those made during the crime scene investigation, had been made at a time when he was still a witness and had no right of access to the case file; he was not even supposed to have known of the existence of that video recording. The court concluded that the only way for G. to have known about the recording was by having seen it, which confirmed his claim that he had been shown it in order to ensure that his confession concurred with those of D.C. 29.", "On the basis of all the evidence, the court found that the statements made by the suspects during questioning had not been given voluntarily but had been taken from them illegally under duress and could not constitute valid evidence. (c) Witness statements 30. The court then turned to the witness statements. The witnesses had given evidence on three matters: (i) the quarrel at the bar; (ii) the existence of unfriendly relations between the accused and D. (motive for the crime); and (iii) the events at around 4 a.m. at the C. brothers’ parents’ house (alibi for G.). (i) Witness statements regarding the quarrel at the bar 31.", "The court examined a number of witnesses whose written statements made at the police station about the events at the bar apparently confirmed that the accused had initiated the fight and been aggressive towards D. A number of those witnesses declared in court that they had been threatened or otherwise forced by the police to sign witness statements, whereas they had not witnessed the events described in the statements. One of these witnesses was C.E., who stated that under pressure from the police he had signed a false witness statement about having seen the accused’s car being driven in the direction of the roundabout at about 3 a.m. on the date of the crime. 32. The statements taken from seven other witnesses by the police in 1995 were read out in court, including that of M.E. who had been with C.E.", "and had confirmed his statement (see the preceding paragraph). They referred mostly to the events at the bar. Since these witnesses were uncontactable abroad and the accused could not confront and properly challenge them, and in virtue of guarantees provided for in Article 6 of the Convention, the court rejected their statements as evidence. 33. Another witness, a former colleague of D. who had been accused by G. of beating him up in 1995, confirmed his earlier statements attributing the initiation of the fight to the accused.", "He had gone with D. to the police station and, rather than talking about subsequently returning for any further meeting, they had agreed to go home after visiting the police station. The witness C.S. declared in court that she had seen part of a quarrel at the bar between the accused and D. but that later (at around 3.30 a.m.), when she had been taken to work by the accused in their car, they had been calm and had not spoken about the policemen. 34. The court concluded that not a single witness, including D.’s colleagues, had confirmed the prosecution’s version that D. and the suspects had agreed after the incident at the bar to meet at a later time near the roundabout to continue the dispute.", "35. Some of the police officers declared that G.C. had threatened D. with violence because of the administrative file opened against him. The court failed to see why in such circumstances and after allegedly being threatened that same night by the suspects, D. would have agreed to return for a fight, alone and without warning anyone, including the officer on duty at the police station, and without taking his weapon from the safe. 36.", "D.’s colleague, a police officer who was present during all the events at the bar, had not informed his superiors of any such meeting even though he would have been obliged to report anything suspect. Indeed, he did not confirm that such an agreement had taken place. Moreover, having called his wife from the police station, he had gone outside to be taken home by D. in his car but had not seen D. or his police car. He had run down the street hoping to see him, but passing by the roundabout several minutes later, he had not seen D. or anyone else there. 37.", "The court’s conclusion was that the incident at the bar, to the extent that it had happened, had ended there. (ii) Witness statements regarding the existence of unfriendly relations between the accused and D. (motive for the crime) 38. Other witness statements related to the alleged motives for the crime, for example, that relations between the suspects and D. were hostile on account of the criminal file opened against G.C. and that D. was worried about vengeance on their part. However, the court found no objective confirmation of such fears.", "On the contrary, D. had declared during questioning in the case in which G. had accused him of abduction in 1993 that he was on good terms with G. 39. In addition, while D. had opened a criminal investigation in respect of G.C. on 16 June 1994, he had not taken any measures in relation to him before handing the case to another investigator on 1 July 1994. There was no evidence in the file suggesting that G.C. had seen the materials in the file and thus found out about D.’s involvement in the case, and the case had been closed by another investigator in December 1994 following G.C.’s admission of having committed hooliganism.", "The court thus did not find any reasonable motive for revenge by G.C. based on that investigation. 40. Other witnesses called by the prosecution not only denied the allegation that G.C. had told them about killing D. while they were travelling in Russia, but declared that they had seen G.C.", "being beaten to obtain a confession from him. The court likewise rejected the evidence of a former officer from the police station in Comrat where D. had worked to the effect that he had been told by G.C. about the murder and its details. The court found that the witness was not impartial. (iii) Witness statements regarding the events at around 4 a.m. at the C. brothers’ parents’ house (alibi for G.).", "41. Another group of witnesses testified about the events at the house of the C. brothers’ parents. These witnesses (not only the parents) stated that they had butchered and processed a pig for about two hours and then taken the meat to the market at about 5.30 a.m. Two of them declared that they had been made to sign statements which did not entirely correspond to what they had witnessed, in particular being pressed by the police to indicate that the butchering had begun at a different time and to declare that G. had not been present. A meat seller at the market confirmed that at about 5.30 a.m. he had received meat from G.C. and that, judging by its weight, the butchering had taken between one and a half and two hours.", "42. Considering all the above witness statements, the court found that at around 4 a.m., the time of the murder according to the prosecution, the suspects had been at C. brothers’ parents’ house and could not have been in the woods to commit the crime as alleged. (d) Minutes of the crime scene investigation 43. The report of the crime scene investigation, together with a video recording of the investigation, depicted each of the accused showing the place and the manner in which they had allegedly committed the crime. According to the testimony of one of the police officers who had taken part, the investigation had been carried out on 18 September 1995.", "44. The court found a number of violations of the rules on criminal procedure in the investigation of the crime scene. In particular, the report had been signed and annexed to the case-file only at a much later stage, whereas by law, it should have been signed during or immediately after the investigation. The witnesses to the crime scene investigation confirmed that they had signed the report but that they had not been allowed near the crime scene and had seen the burnt-out car only from a distance. Contrary to legal requirements, they had not had any explanation of their rights and obligations as witnesses, they had not seen what the police had found on the scene and they had not seen the video recording of the event before signing the report and map.", "45. In addition, while a car tyre print had been found at the crime scene, a copy had not been made. D.’s documents, found intact and “conspicuously displayed” nearby, had not been examined for fingerprints, even though they had a plastic cover that could have retained prints. 46. A piece of fabric found on a bush had been described but not located on the map and not subjected to expert analysis.", "The analysis of the suspects’ clothes which they had worn on that night did not reveal any element suggesting that they had been at the crime scene. A petrol tank found at the scene had likewise not been analysed by the experts. 47. The prosecution had not produced to the court the video recording of the crime scene investigation. The map drawn did not indicate the exact position of a number of items and marks noted in the report as having been found at the crime scene.", "This made it impossible for the court to verify whether what the accused had indicated at the crime scene coincided with the map and the traces found. 48. The report of the investigation described the finding of a plastic tube in September 1995, but no details or measurements were given. It was only on 28 February 1996 that the investigator had presented as evidence a piece of plastic tubing which had allegedly been found at the crime scene and had been used for taking fuel from D.’s car in order to set the car on fire. The court rejected that evidence, along with the result of a forensic experiment that merely showed the possibility of evacuating fuel from the car’s tank in that manner.", "49. In the light of these findings, the court excluded the crime scene report as a whole from the evidence on account of the serious procedural violations. (e) An unexplored alternative lead 50. The court examined additional facts determined during the investigation. A witness testified that he worked as a security guard in a café near the roundabout and had seen a police car and another car stopping there and a fight taking place between their occupants.", "They had then all got back into their cars and shots had been heard. One car had left, followed by the police car, in the direction of Chişinău. He had not seen either of the two cars return in the direction of the wood where the burnt-out car was later found. 51. Other witnesses confirmed in court that they had heard shots that night but could not confirm their location.", "52. The defence claimed that, after a brief initial investigation of the shooting, including a ballistics report, the relevant evidence had been withdrawn and examined in a new criminal case, in order to prevent the examination of alternative leads in the accused’s case. The court found no evidence of any ballistics report, but noted the presence of records of interviews of witnesses who had heard the shots. Moreover, a cartridge case was found in D.’s car, the origin of which had not been explained. The court concluded that initially there had been another lead in the case which had not been fully investigated.", "53. The court also examined the evidence relating to the identification of the human remains found in the car and decided that the identity of the victim had not been established. 54. The court also found, from the statements of a number of witnesses, including police officers, that the assumption that the three suspects had committed the crime had emerged immediately and remained not just the main scenario under consideration, but in fact the only one examined during the entire investigation. In the court’s view, this was confirmed by the failure to examine in any detail the established fact of the shooting in the area of the roundabout.", "55. The court also noted the general attitude of the local police officers towards the suspects displayed in their letter of 4 May 1995 (see paragraph 9 above), which had led it to conclude that the local police had formed a strongly negative attitude towards the suspects even before the crime had been committed. Added to that was the loss to the police station in the form of the police car that had been destroyed. The court concluded that that police station should not have been involved at all in the investigation of the crime. Nonetheless, most procedural steps in the initial phase of the investigation of the case had been performed by officers from that police station.", "(f) Expert reports 56. The court examined the expert reports on various items found in and around the car. It concluded that most of those reports had been filed in serious breach of the rules on criminal procedure (notably, the presumed identity of the human remains found in the burnt-out car had already been written on the materials presented to the experts, who were under the impression that the fact had already been established) or had been seriously undermined by the improper manner in which samples had been obtained during the crime scene investigation. 57. The court concluded that these reports neither confirmed, nor denied the identity of the victim.", "The objects found in the car and identified as belonging to the alleged victim were not inseparable from him and could have been placed there. Moreover, the prosecution had given no explanation as to why those who had committed the crime, having taken measures thoroughly to destroy all traces, had left D.’s personal documents untouched in an open space nearby, “conspicuously displayed” with his picture attached. (g) Overall conclusion of the Chişinău Regional Court 58. The court considered that credibility could be attached to the statements by the accused that illegal forms of pressure had been used on them and to those made by some witnesses about being forced by the police to give false statements. 59.", "The court also found that the investigation had been unilateral and biased against the suspects. It found that it had not been proved that the remains in the burnt-out car belonged to the alleged victim. While it had been proved that a crime had been committed by burning the car and an unidentified person inside it, there was no evidence to show that the suspects were the perpetrators of the crime. Most of the evidence gathered was unreliable owing to breaches of criminal procedure and could not serve as a basis for a conviction. On the basis of its findings, the court acquitted all three suspects.", "3. Judgment of the Chişinău Court of Appeal (31 January 2000) 60. On 31 January 2000 the Court of Appeal quashed the judgment of the Chişinău Regional Court and adopted a new one, convicting D.C., G.C. and G. It did not sentence G. because of his death in 1999. 61.", "The court recounted in detail the sequence of events as submitted by the prosecution. It then examined the parties’ submissions and the material in the case file and examined one witness (Dr P.O.). The court noted the contents of the interviews of each of the accused during the investigation (of G.C. on 1 and 7 November 1995, of D.C. from 17 to 20 September, 9 October and 10 November 1995 and of G., without specifying any specific date in his case but rather stating that he had given genuine confessions “throughout the investigation”). 62.", "It found that the three suspects had on a number of occasions made genuine and consistent confessions in the presence of their lawyers and that G.C. had written one of his confessions himself. D.C.’s confession of 19 and 20 September 1995 had been filmed. 63. The court considered that all of the above precluded the possibility of ill-treatment and that the suspects’ confessions had incorrectly been excluded from the evidence by the first-instance court.", "The suspects had changed their statements towards the end of the investigation only to avoid criminal responsibility. 64. In the court’s opinion, there was no evidence of any ill-treatment of the accused. The officers questioned in that regard all denied having applied such treatment and G.’s personal medical file from his hospital treatment in October 1995 did not establish any evidence of ill-treatment. Dr P.O.", "did not confirm the ill-treatment. 65. The officer who had questioned G.C. after arresting him in Russia testified to the fact that G.C. had been lawfully questioned and that he had not been subjected to any form of ill-treatment.", "Because G.C. had a Russian residence visa in his passport for 1995, the Russian investigating authorities had treated him as a Russian citizen and there had thus been no need for a special request by any Moldovan authority to that effect. 66. The court noted that all three suspects had made similar statements, differing only as regards their respective roles in committing the crime. The court considered that their subsequent denial of committing the crime and the slight variations in their versions of events was an attempt to avoid criminal responsibility.", "67. The crime scene investigation had been conducted in the presence of witnesses and G.’s lawyer and was filmed. Both D.C. and G. had been able clearly to indicate the place and the manner of D.’s killing. 68. D.’s wife had identified the objects found in the burnt-out car and declared that the accused had often threatened her husband and family because of a criminal investigation opened by her husband against G.C.", "On 17 September 1995 the local police had called to inform her that her husband’s corpse had been found burned in the woods, together with his keys and documents. The court found that D. had indeed opened a criminal investigation against G.C. on 16 June 1994. 69. The car found at the crime scene belonged to the local police station.", "Blood samples from around the car coincided with the D.’s blood group. Moreover, no other disappearances had been reported during the relevant period in the region. There was no doubt in the view of the Court of Appeal that the corpse found in the car was D. 70. The court stated, without giving any further details, that a number of witnesses had “directly and indirectly shown that the accused were connected to the crime”. The statements of two other witnesses, excluded from the evidence by the first-instance court, were declared admissible by the Court of Appeal, although it did not specify why, or what those statements included.", "71. Moreover, the witness statements of M.F. and S.P. had been read in court but unlawfully excluded from the evidence by the first-instance court. 72.", "The court also found that the first-instance court had not given reasons for its decision to reject from the file several types of evidence. The court rejected as unproven, without giving any explanation, all the other evidence taken into account by the first-instance court in favour of the accused. It found each of the accused, including G., guilty as charged and decided to discontinue the proceedings against G. because of his death. 5. Judgment of the Supreme Court of Justice (30 May 2000) 73.", "On 30 May 2000 the Supreme Court of Justice upheld the judgment of the Court of Appeal. 74. The court first recounted in detail the prosecution’s version of events, the findings of the lower courts in the case and the arguments raised by the defence, including an alibi for the accused. 75. The court declared that it accepted only lawfully obtained evidence as the basis for its judgment, evidence which it found “sufficient to confirm the guilt of the accused [G.C.", "], [D.C.] and [G.] in having committed the acts of which they are accused”. It referred to the contents of the self-incriminating statements made by the accused on 9 October and 7 November 1995 and noted that these statements had been made in the presence of their lawyers. It confirmed the Court of Appeal’s acceptance of the self-incriminating statements as the “decisive evidence” in the case. The accused had made similar statements; the discrepancies relating to the role of each in committing the crime were the result of their attempt to transfer most of the guilt to the others. 76.", "The court also found that the accused had not withdrawn their statements until 6 March 1996, when they declared that they had been ill-treated. The first-instance court: “gave credibility to the accused’s declarations, even though they had not been proved, while deciding, without any basis, that witnesses who testified that there had been no ill-treatment were interested persons and should thus have their testimony excluded.” 77. The court also noted the statements of several witnesses who confirmed that the quarrel at the bar had taken place, that the accused had initiated it and that they had left for the hospital, while D. had left for the police station after 3 a.m. The testimonies largely coincided, as to the time and sequence of events, with the initial statements by the accused. 78.", "The witness C.S. confirmed that the accused had driven her to the hospital after 3 a.m. and confirmed the quarrel at the bar. Her statements largely coincided with those made by D.C. on 17 September 1995. The witnesses C.E. and M.E.", "stated that they had seen the accused in their car and the police car driving towards the roundabout shortly after 3 a.m. 79. The officer who had been on duty that night at the police station noted that D. and his colleague M. had come to the station at around 3.22 a.m. and that minutes later D. had left in the car. 80. Officer M. (se paragraph 8 above), remembered one of the accused shouting in the Gagauz language “I will burn you”. The officer did not speak that language but remembered the word and had later found out its meaning.", "81. The court noted that D. had opened a criminal investigation against G.C., which might have constituted a motive for revenge. 82. The court examined various pieces of evidence which proved, in its view, that the human remains found at the crime scene were those of D.: an expert report had found that the corpse was, in all probability, that of a man; the blood stains found coincided with D.’s blood group; and items found in and around the car, such as keys and documents, belonged to D. and had been recognised by his wife. 83.", "Lastly, the court declared that the above and “other evidence taken into account by the Court of Appeal” proved the accused’s guilt. No further details were given. II. RELEVANT DOMESTIC LAW 84. The relevant provisions of the Code of Criminal Procedure in force at the material time read as follows: Section 5 “Criminal proceedings cannot be instituted, and those already instituted shall be discontinued: ... (8) against a deceased person, with the exception of those cases where the proceedings are necessary for the rehabilitation of the deceased ...” Section 55 “...", "Evidence obtained in violation of the present Code or not properly examined during the court hearing cannot constitute the basis of a court conviction or of other procedural documents.” Section 59 “... A witness who refuses to testify shall be liable in accordance with Section 197 of the Criminal Code, and shall be liable for falsely testifying in accordance with Section 196 of the Criminal Code. ...” Section 62 “... When the accused is first questioned after being taken into custody, the questioning may take place only in the presence of defence counsel, whether chosen or officially appointed.” Section 115 “The minutes of an investigatory procedure shall be filed during the procedure or immediately thereafter. ... After the end of the questioning the audio or video recording shall be reproduced in full for the person questioned. ...", "The audio or video recording shall end with a declaration by the person questioned confirming the correctness of the recording.” Section 365 “... The following have the right to introduce a revision request: ... (b) the spouse and other close relatives of a convicted person, even after his or her death.” 85. The relevant provisions of the Act on compensation for damage caused by the illegal acts of the criminal investigating authorities, prosecuting authorities and courts (no. 1545 (1998)) read as follows: Section 3 “(1) Pursuant to the present Act, compensation shall be payable for pecuniary and non-pecuniary damage caused to a natural or legal person as a result of: (a) unlawful detention or arrest ...; (b) unlawful conviction ...; ... (d) unlawful administrative detention or arrest ...” Section 7 “(1) At the time of notifying about ... an acquittal ..., the natural person (in case of his or her death the heirs) ... shall be handed a notice in a typical form explaining their right and procedure for asking reparation for damage caused.” Section 12 “(1) The prosecutor responsible for the criminal investigation or the hierarchically superior prosecutor shall make an official apology in the name of the State to the groundlessly prosecuted person. (2) Official apology of the prosecutor shall be made in the case where: ... (c) an acquittal becomes final; ... (3) The prosecutor shall make an official apology in written form to the victim of the unlawful acts or to the latter’s close relatives.” THE LAW 86.", "The applicant submitted that the State had been responsible for failing to protect her husband G. from attack, despite his complaints against the local police, in breach of Article 2 of the Convention, the first paragraph of which reads: “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.” 87. She also complained about the unfairness of the proceedings against G., alleging a breach of Article 6 § 1 of the Convention, the relevant part of which reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” 88. She also considered that the authorities’ failure to protect her husband amounted to a violation of Article 18 of the Convention, which reads: “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.” I. ADMISSIBILITY OF THE COMPLAINTS A. Complaints under Articles 2 and 18 of the Convention 89.", "The Court considers that the applicant has not substantiated her complaints under Articles 2 and 18 of the Convention. It notes that a criminal investigation was opened into the 1997 attack but had to be closed for lack of information about the perpetrators of the attack (see paragraphs 14 and 16 above). There was no follow-up to that attack, or any threats or other information regarding an imminent attack or a specific source of danger to G. Another criminal investigation was conducted into G.’s murder. The applicant did not submit evidence to show that either of the two investigations had been superficial or inefficient. The authorities cannot, in such circumstances, be held responsible for failing to protect G. (compare, for example, Osman v. the United Kingdom, judgment of 28 October 1998, Reports of Judgments and Decisions 1998‑VIII).", "Accordingly, the Court concludes that the complaints under Articles 2 and 18 of the Convention are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention. B. Complaints under Article 6 of the Convention 90. The Court also notes that the present application was lodged by the applicant after the death of her husband (G.). It recalls that a person, non-governmental organisation or a group of individuals must, in order to be able to lodge a petition in pursuance of Article 34, claim “to be the victim of a violation ... of the rights set forth in the Convention...”.", "While it is true the rules of admissibility governed by Article 35 must be applied with some degree of flexibility and without excessive formalism, Article 34 requires that an individual applicant should claim to have been actually affected by the violation alleged (see Karner v. Austria, no. 40016/98, § 25, ECHR 2003‑IX and Fairfield and others v. the United Kingdom (dec.), 24790/04, 8 March 2005). 91. The Court has consistently rejected as inadmissible ratione personae applications lodged by the relatives of deceased persons in respect of alleged violations of rights other than those protected by Articles 2 and 3 of the Convention (see, for instance, Fairfield, cited above, and Biç and Others v. Turkey, no. 55955/00, § 24, 2 February 2006 and the further case-law mentioned therein).", "In this respect it has distinguished between applications continued by the relatives of the applicants who had personally lodged applications and died during the proceedings before the Court (see Dalban v. Romania [GC], no. 28114/95, § 39, ECHR 1999‑VI) and those lodged by the relatives after the death of the applicants. 92. However, it has also been established in the Court’s case-law that “the right to enjoy a good reputation and the right to have determined before a tribunal the justification of attacks upon such reputation must be considered to be civil rights within the meaning of Article 6 § 1 of the Convention” (Werner v. Poland, no. 26760/95, § 33, 15 November 2001; Kurzac v. Poland (dec.), no.", "31382/96, ECHR 2000‑VI). Accordingly, Article 6 of the Convention may apply under its civil head to proceedings which affect a person’s reputation even if, as happened in Kurzac, the proceedings concern a determination of a criminal charge against another person. 93. It is important, in such situations, to verify whether there was a “dispute” (“contestation”) over the civil right so invoked which can be said, at least on arguable grounds, to be recognised under domestic law. The Court must also be satisfied that the result of the proceedings at issue was directly decisive for the right asserted (see, mutatis mutandis, the Georgiadis v. Greece judgment of 29 May 1997, Reports 1997-III, p. 958-59, § 30, and the Rolf Gustafson v. Sweden judgment of 1 July 1997, Reports 1997-IV, p. 1160, § 38).", "94. The Court also reiterates its finding in Nölkenbockhoff v. Germany (no. 10300/83, 25 August 1987, § 33) that the principle of the presumption of innocence is intended to protect “everyone charged with a criminal offence” from having a verdict of guilty passed on him without his guilt having been proved according to law. It does not follow, however, that a decision whereby the innocence of a man “charged with a criminal offence” is put in issue after his death cannot be challenged by his widow under Article 25. She may be able to show both a legitimate material interest in her capacity as the deceased’s heir and a moral interest, on behalf of herself and of the family, in having her late husband exonerated from any finding of guilt (see, mutatis mutandis, the Deweer judgment of 27 February 1980, Series A no.", "35, pp. 19-20, § 37). 95. Turning to the circumstances of the present case, the Court notes that G., the applicant’s late husband, died after his case was sent for a full retrial and before any of the judgments in the new proceedings were adopted. Notwithstanding his death, G. was found guilty as charged.", "The Court considers that the present case resembles that in Nölkenbockhoff, cited above, in respect of the applicant’s victim status since G.’s conviction post-mortem has affected the applicant in a direct manner. In this respect, the Court notes that the only ground for the courts to have continued to examine the charges against G. was his widow’s express desire to prove that her late husband had not committed any crime. In their additional observations of 10 September 2007 the Government confirmed this by stating that the ultimate goal of the proceedings against G. after his death had been to establish the truth and that, had G. been proved innocent in those proceedings, he would have been fully rehabilitated, with important effects for any civil law claims. 96. The Court must verify whether domestic law gave the applicant any specific rights which could be considered “civil” within the meaning of Article 6 of the Convention.", "It notes that Moldovan law (see Article 5 (8) of the Code of Criminal Procedure (“CCP”), paragraph 84 above) prohibited the initiation or continuation of criminal proceedings against a deceased person, save when this was necessary for his or her rehabilitation. This appears to have been the case in respect of G. (see the preceding paragraph). 97. Moreover, Act no. 1545 (see paragraph 85 above) allowed the applicant, if she succeeded in proving the innocence of her deceased husband, to claim compensation and public apologies from the prosecution’s office for G.’s unlawful detention and conviction.", "Both these rights fall within the meaning of “civil rights” under Article 6 of the Convention. 98. It follows that the domestic law gave the applicant distinct rights in her own name when she was allowed to intervene in the proceedings following her husband’s death. 99. The Court also recalls that it is not its primary task to interpret domestic law.", "It notes that the domestic courts did not object to the applicant’s victim status and allowed her to intervene in the proceedings, recognising her a number of procedural rights such as the right to appeal, to submit evidence and to lodge civil claims. Such recognition of the applicant’s rights by the domestic courts creates a prima facie presumption that she indeed enjoyed the relevant rights, and that, since the domestic law allowed her to have the case examined by the courts, Article 6 of the Convention applied (cf., mutatis mutandis, Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 57, ECHR 2007‑...). 100. In view of the clear legal provisions, as interpreted by the domestic courts, by virtue of which the applicant could exercise her own civil rights within the criminal proceedings against G., the Court concludes that the applicant could rely on Article 6 of the Convention under its civil head (see Kurzac, cited above).", "101. Moreover, the Court considers that the exercise of the applicant’s rights, as well as the protection of the applicant’s former husband’s good name in line with the presumption of innocence (as in Nölkenbockhoff, cited above), depended solely on the outcome of the criminal proceedings against G. The finding of G.’s guilt in those proceedings precluded any civil claim since all such claims were subject to proving the unlawful detention or conviction of G. (see paragraph 85 above), an issue that became res judicata once G. had been convicted by a final court judgment. The Court therefore considers that any shortcomings in the proceedings capable of preventing the fair examination of the case against the applicant’s late husband and leading to an unfair conviction would necessarily result in violations of her own civil rights, since all her claims were subject to the finding of G.’s guilt or innocence. 102. The Court further notes that the Moldovan Government have not raised any objection relating to the applicant’s victim status, or lack of it.", "103. In conclusion, the Court considers that for the foregoing reasons and in the exceptional circumstances of the present case, the applicant has standing to introduce the present application. 104. The Court considers that the applicant’s complaint under Article 6 of the Convention raises questions of fact and law which are sufficiently serious that its determination should depend on an examination of its merits. No grounds for declaring it inadmissible have been established.", "The Court therefore declares this complaint admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 4 above), the Court will immediately consider the merits of the complaint. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION A. Arguments of the parties 105.", "The applicant complained that the criminal proceedings against her husband had been unfair. She claimed that over 100 various legal provisions had been breached during the criminal investigation and the trial, as plainly confirmed by the Chişinău Regional Court. 106. The Government submitted that the domestic courts had adopted reasoned judgments after examining all the evidence in the file and fully assessing the circumstances of the case. In their view, the Court could not take the place of the domestic courts by re-examining evidence.", "The domestic courts which examined G.’s case had been “independent and impartial” in accordance with Article 6 requirements, ensuring “equality of arms” and other procedural safeguards for G.’s representatives. B. The Court’s assessment 1. General principles 107. The Court reiterates that the effect of Article 6 § 1 is, inter alia, to place a “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence, without prejudice to its assessment or to whether they are relevant for its decision, given that the Court is not called upon to examine whether arguments are adequately met (see Perez v. France [GC], no.", "47287/99, § 80, ECHR 2004‑I, and Buzescuv. Romania, no. 61302/00, § 63, 24 May 2005). Nevertheless, although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument (see Van de Hurk v. the Netherlands, judgment of 19 April 1994, Series A no. 288, p. 20, §§ 59 and 61, and Burg v. France (dec.), no.", "34763/02, ECHR 2003-II). The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain and Hiro Balani v. Spain, judgments of 9 December 1994, Series A nos. 303-A and 303-B, p. 12, § 29, and pp. 29‑30, § 27, respectively, and Helle v. Finland, judgment of 19 December 1997, Reports of Judgments and Decisions 1997‑VIII, § 55). 108.", "For instance, in Ruiz Torija v. Spain (judgment of 9 December 1994, Series A no. 303‑A, §§ 29 and 30) the Court found that the failure of the domestic court to deal with the applicant’s contention that the court action against her had been time-barred amounted to a violation of Article 6 of the Convention. Similar failures to give sufficient reasons resulted in findings of violations of Article 6 of the Convention in Hiro Balani (cited above, §§ 27 and 28), Suominen v. Finland (no. 37801/97, §§ 34-38, 1 July 2003), Salov v. Ukraine (no. 65518/01, § 92, ECHR 2005‑... (extracts), Popov v. Moldova (no.", "2), (no. 19960/04, §§ 49-54, 6 December 2005), Melnic v. Moldova (no. 6923/03, §§ 39-44, 14 November 2006) and other similar cases. 2. Application of these principles to the present case 109.", "In the present case, although G. died before the re-examination of the case against him, he was found guilty of the crime with which he had been charged. The Court has serious reservations in respect of a legal system allowing the trial and conviction of deceased persons, given the obvious inability of such persons to defend themselves. However, the very special circumstances of the case include a request by the applicant, as the deceased person’s relative and legal representative, to continue the proceedings in order to prove his innocence. In view of this request and of its findings below, the Court does not consider it necessary to decide whether G.’s conviction after his death constituted in itself a violation of Article 6 of the Convention in the present case. 110.", "The Court notes that in her submissions the applicant relied on the findings of the Chişinău Regional Court as confirming the alleged breaches of domestic procedural law during the criminal investigation. Accordingly, it will examine whether the proceedings as a whole, including the manner in which the higher courts addressed specific findings of the lower court, were in compliance with Article 6 § 1 of the Convention. 111. The Court notes that a number of findings of the Chişinău Regional Court were not contradicted by the findings of the higher courts and that, accordingly, they must be considered as established facts (see Bimer S.A. v. Moldova, no. 15084/03, §§ 57-59, 10 July 2007).", "These included the fact that G. and the other accused were arrested and detained on the basis of a fabricated administrative offence, during which period of detention they were questioned and made self-incriminating statements in the absence of any procedural safeguards (see paragraphs 18-22 above). There was no response to the finding that G. had unlawfully been shown the video recording of D.C.’s statement at the crime scene (see paragraph 28 above) in order to obtain consistent statements by all the accused. 112. The Court further notes that the higher courts did not deal with the finding of the lower court that G. and the other co-accused had an alibi for the presumed time of the crime (see paragraphs 41-42 above), and that a number of serious procedural violations made unreliable most of the expert reports (see paragraphs 56-57 above). 113.", "The higher courts also relied on the many witness statements in G.’s case. However, the Court observes that no comment was made on the finding by the lower court that some of those statements were fabricated by the police (see paragraphs 31 and 41 above). 114. The Court concludes that while accepting as “decisive evidence” (see paragraph 75 above) the self-incriminating statements made by the accused, the domestic courts chose simply to remain silent with regard to a number of serious violations of the law noted by the lower court and to certain fundamental issues, such as the fact that the accused had an alibi for the presumed time of the murder. The Court could not find any explanation for such omission in the courts’ decisions and neither did the Government provide any clarification in this respect.", "115. In the light of the above observations and taking into account the proceedings as a whole, the Court considers that the domestic courts failed to give sufficient reasons for convicting G. and thus did not satisfy the requirements of fairness as required by Article 6 of the Convention. 116. The Court recalls its finding that the proceedings against G. concerned directly the applicant’s own rights (see paragraph 101 above). It concludes that G.’s conviction, in the absence of sufficient reasons, necessarily breached the applicant’s right to a fair trial.", "117. Accordingly, the Court finds that there has been a violation of Article 6 § 1 of the Convention. 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.” 119.", "Having been invited by the Court to make claims for just satisfaction under Article 41 of the Convention, the applicant did not submit any such claims. Accordingly, the Court makes no award under this head. FOR THESE REASONS, THE COURT 1. Declares unanimously inadmissible the complaints under Articles 2 and 18 of the Convention; 2. Declares by five votes to two admissible the complaint under Article 6 of the Convention; 3.", "Holds by five votes to two that there has been a violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 8 April 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rules 74 § 2 of the Rules of Court, the following separate opinions annexed to this judgment: (a) joint concurring opinion of judges Garlicki and Šikuta; (b) dissenting opinion of judge Bratza joined by judge Pavlovschi; (c) dissenting opinion of judge Pavlovschi. N.B.T.L.E. JOINT CONCURRING OPINION OF JUDGES GARLICKI AND ŠIKUTA While we agree that there has been a violation of Article 6 § 1 of the Convention, we are of the opinion that the violation results from the very fact that the retrial of G. took place after his death.", "We can accept that, in some situations, there may be a need for judicial examination of criminal charges even in respect of a deceased person. This may be so, in particular, in the case of so-called rehabilitation proceedings whose purpose is to correct a wrongful conviction. Moldovan law appears to be in line with the above when it states, in Article 5 (8) of the Code of Criminal Procedure: “Criminal proceedings cannot be instituted, and those already instituted, shall be discontinued:....against a deceased person, with the exception of those cases, where the proceedings are necessary for the rehabilitation of deceased....”. However, we consider that the continuation of the criminal proceedings in respect of G. in the present case could not be considered as true “rehabilitation” proceedings, for the following reasons. First, rehabilitation proceedings can take place only in a situation where there was a prior conviction.", "In the absence of such prior conviction, the presumption of innocence applies and there is no room for any rehabilitation. In the present case, G. had not been convicted by any court before his death and therefore the presumption of innocence applied in his case. Second, rehabilitation means restoring, repairing broken reputation. Rehabilitation processes are processes separate from those leading to a person’s conviction. Rehabilitation processes often concern situations where, under a previous totalitarian regime, a person is convicted based on non-democratic rules.", "Such rehabilitation proceedings lead to verdicts rehabilitating a person and discharging him or her of all accusations, restoring his or her reputation as a person without a criminal record. Proceedings in question in the instant case cannot be considered as rehabilitation proceedings. Rather, they appear to have been geared towards finishing those criminal proceedings which had been instituted against G. before his death. Finally, any posthumous continuation of a criminal trial carries inherent risks of unfairness, since the accused person cannot exercise the right to defend himself. Resurrections do not come into the province of criminal trials.", "Thus, when a trial ends with the conviction of a person who – at the time of his death – enjoyed the benefit of being presumed innocent, it is per se incompatible with the ensemble of guarantees afforded by Article 6 § 1 of the Convention. It is true that G.’s trial took place as a result of an express wish of his widow, and that a confirmation of his acquittal could have entitled her to compensation. But if the only way to obtain such entitlement was to try a dead person, it cannot legitimise such a trial and it simply shows the deficiency of the system of domestic remedies. DISSENTING OPINION OF JUDGE BRATZA JOINED BY JUDGE PAVLOVSCHI 1. I regret that I am unable to agree with the majority of the Chamber that the application is admissible and that the applicant’s rights under Article 6 have been violated.", "In my view, the case should have been declared inadmissible, not on the grounds that the applicant could not claim to be a victim – a point which, for the reasons given below, I would prefer to leave open – but on the grounds that the complaint is essentially of a “fourth instance” nature, the applicant being unable to show that the determination of the criminal charge against her husband, G., was vitiated by unfairness or that, on the material before the Court, his conviction can be qualified as arbitrary or unreasonable. (i) Victim status 2. At the time of his death in June 1999, G. and his two co-defendants (D.C. and G.C.) had been acquitted of the murder of D. by the Chisinau Regional Court and this acquittal had been upheld by the Court of Appeal. In January 1999, the Supreme Court had quashed the lower courts’ judgments and ordered a full rehearing of the case.", "G.’s death would, in principle, have meant that the proceedings against him were discontinued under section 5 (8) of the Code of Criminal Procedure. However, apparently on the insistence of his widow (the applicant), G. was re-tried, together with the two C. brothers. It appears that the applicant was recognised by the Regional Court as G.’s “legal representative” in the criminal proceedings and that she was permitted to make submissions to the various courts which heard the matter, in addition to those made by the lawyer whom she had appointed. 3. Having on the retrial been acquitted at first instance by the Regional Court, G. was, on 31 January 2000, found guilty by the Court of Appeal and this finding was upheld by the Supreme Court on 30 May 2000.", "In its judgment, the Court of Appeal, in finding G. guilty of the offences of which he had been charged, discontinued the proceedings against him under section 5 (8) of the Code of Criminal Procedure on the grounds of his death. 4. It is the proceedings before the two appellate courts which the applicant complains were unfair and in violation of her rights under Article 6 of the Convention. The central point at issue is whether she can claim to be “the victim of a violation” of her rights within the meaning of Article 34 of the Convention, that is, whether she can claim to have been personally affected by the alleged lack of fairness of the criminal proceedings against her deceased husband. 5.", "Although having the status of “legal representative” of her husband in the domestic proceedings, the applicant was at no stage herself subject to a “criminal charge” for the purposes of Article 6 and cannot claim to have been directly affected by any alleged unfairness in the criminal proceedings. Nor, since G. had died before any application was lodged with the Court, can the applicant claim to be pursuing on behalf of her husband proceedings already commenced by him. As is noted in the judgment (§ 91), the Court has in this regard drawn a distinction between cases where relatives seek to continue with an application duly lodged by an applicant who died during the proceedings before the Court (as in the case of Dalban v. Romania [GC], no. 28114/95, ECHR 1999-VI) and those where the application itself has been lodged by the relatives after the death of the alleged victim (as in the cases of Biç and Others v. Turkey, No. 55955/00 and Fairfield and Others v. the United Kingdom (dec.) 24790/04, 8 March 2005).", "In the former case, the Court has normally acceded to a request by the relatives to pursue the proceedings before the Court, in the latter, with the exception of cases involving alleged violations of Articles 2 and 3 of the Convention, it has been the consistent practice of the Court to reject the application as inadmissible ratione personae, even in a case such as the present where the relatives have been granted standing in the domestic forum to act on behalf of the alleged victim (see, for example, the case of Fairfield and Others, cited above). 6. In concluding that the applicant may claim to be a victim of Article 6 in the present case, the majority of the Chamber have relied on the civil rather than the criminal aspect of that Article. It is argued, in the first place, that the right to enjoy a good reputation is a civil right and that Article 6 may apply under its civil limb to proceedings which affect the reputation of an applicant, even if those proceedings involve a criminal charge against another person, in this case the applicant’s husband. Secondly, reliance is placed on the fact that the applicant, as G.’s widow, had a legitimate, moral and material interest in the proceedings against G., in that, had G. been found innocent, he would have been rehabilitated with important consequences for any civil law claims, in particular a claim for compensation and a public apology for G.’s unlawful detention and conviction.", "Two precedents are principally invoked in support of the majority’s reasoning – the Court’s decision declaring admissible the case of Kurzac v. Poland ((dec.), no. 31382/96, ECHR 2000-VI) and the Court’s judgment in the case of Nölkenbockhoff v. Germany (judgment of 25 August 1987, Series A no. 123). 7. Despite the persuasive value of these authorities, I have considerable doubt whether they afford a sufficiently strong basis on which to found the victim status of the present applicant.", "The Kurzac case concerned the special provisions of a Polish law which expressly entitled close relatives of a deceased victim of political repression to seek a review of his criminal conviction on his behalf and under the same conditions as those laid down for the victim himself. As the Court observed, the law “recognise[d] and protect[ed] a right to obtain, retrospectively, the acquittal of a deceased member of one’s family if his conviction was in fact not the result of a lawful finding that he was guilty of a criminal offence but a form of State persecution for activities against the totalitarian system”. It is true that the Court went on to state that, even though the applicant, as a sibling of the deceased victim, was not entitled to any financial reparation as a result of any acquittal, his civil rights were affected since an acquittal allowed him “to clear his brother’s name” and “to restore the honour and reputation of his family which was for a long time inevitably disgraced and brought into disrepute by his brother’s wrongful conviction”. However, I consider that this statement must be read in the particular context in which it was made, involving proceedings brought for the specific purpose of rehabilitating victims of political repression. The Court’s statement cannot, in my view, be applied generally to confer victim status on a widow who alleges that her deceased husband was convicted of an offence after an unfair trial, let alone in a case such as the present where, at the time of his death, G. had not been convicted of any offence.", "8. The majority appear to consider the retrial proceedings in the present case to be rehabilitation proceedings (§ 96) and, in this respect, find support in the submissions of the respondent Government, where it is affirmed that the ultimate goal of the proceedings against G. after his death had been to establish the truth and that “had G. been proved innocent in those proceedings, he would have been fully rehabilitated, with important effects for any civil law claims” (§ 95). I share the doubts of Judges Garlicki and Šikuta in their Joint Concurring Opinion as to whether the proceedings against G. can, on any view, be regarded as rehabilitation proceedings, which as they correctly point out, apply only where there has been a prior conviction. There is, moreover, nothing in the judgments of the domestic courts to suggest that the proceedings against G. were viewed as rehabilitation proceedings and the fact that the Court of Appeal invoked section 5 (8) of the Code of Criminal Procedure to discontinue the proceedings against D. on the grounds that he had died, indeed suggests the contrary. I do not, therefore, find the Kurzac decision to be of any real assistance in the present case.", "9. The same applies to the more recent authority of the Court in the case of Brudnicka and Others v. Poland (no. 54723/00, ECHR 2005-II) which similarly gave rise to an issue of the victim status of the applicant parties to a special form of procedure. The applicants were the heirs of members of a crew who had died in a shipwreck and the proceedings in question took place before the maritime chambers, administrative bodies whose role, inter alia, was to establish the cause of the accident. The applicants took part in the proceedings in which members of the crew were criticised by the maritime chambers and found to have been partly to blame for the accident.", "As heirs of the deceased crew members, the applicants were held by the Court to have victim status under Article 6 to claim that the maritime chambers were not independent and impartial tribunals. Although, in reaching this conclusion, the Court again founded on the civil right of the applicants to defend their reputation and that of their deceased relatives, I do not consider that the Court’s reasoning can be extended beyond the particular context to cover criminal proceedings resulting in the conviction of the applicant’s relative. 10. The Nölkenbockhoff judgment appears at first sight to be of greater assistance to the applicant, concerned as it was with the standing of a widow to complain of criminal proceedings against her husband. In the passage quoted in paragraph 94 of the current judgment the standing of the applicant as a widow to lodge proceedings in the Court is put on two bases – “the legitimate material interest” of the widow in her capacity as the deceased heir and “a moral interest, on behalf of herself and her family, in having her late husband exonerated from any finding of guilt”.", "However, this passage of the Court’s judgment must also be seen against the factual background of that case. The applicant’s late husband had been found guilty of several charges of breach of trust, criminal bankruptcy and fraud and was given a prison sentence. He appealed but died before a decision was taken on his appeal. His widow applied to the Regional Court for an order that the Treasury should bear the cost incurred by her husband in connection with the proceedings leading to his conviction and, in the alternative, that a decision on her application should be adjourned until such time as judgment on the appeal of one of her husband’s co-defendants had been given. The Regional Court rejected her application and, in the course of its judgment, observed that “had her husband not died, he would almost certainly have been convicted or his conviction would almost certainly have been upheld”.", "The applicant appealed against the decision to the Court of Appeal, complaining that the Regional Court’s finding before the judgment against her husband had become final violated the Basic Law and the presumption of innocence. The Court of Appeal dismissed her appeal and the Constitutional Court refused to entertain the applicant’s constitutional complaint. 11. In her Strasbourg proceedings, the applicant in the Nölkenbockhoff case complained of a number of violations of the Convention. These included a complaint that the criminal proceedings against her husband had been unfair and unduly lengthy in violation of Article 6 § 1 and that the refusal of the reimbursement of her husband’s costs and expenses had violated the principle of the presumption of innocence under Article 6 § 2 because they were based on the reasoning that her husband would have been, or would have remained, convicted.", "The former complaint was declared inadmissible, the Commission holding, inter alia, that “... these complaints are closely linked with the applicant’s late husband personally and the applicant... herself does not have a sufficient legal interest to justify their examination on her behalf.” (DR 50, page 187). The complaint under Article 6 § 2 was declared admissible by the Commission on the grounds that “... the close relatives of an accused, in particular his spouse and children have an interest of their own that the principle of presumption of innocence is respected in case the accused dies before a final conviction, as any statements violating this principle not only affect the accused’s reputation but to a certain extent also that of his family.” (ibid.) It is this latter complaint alone which the Court was addressing in upholding the applicant’s victim status in the passage quoted. 12. Despite the superficial similarity between the two cases, I am not persuaded that the Court’s reasoning in the Nölkenbockhoff case has any direct application to the present case.", "Although the judgment of the Chamber in the present case seems to assimilate the two by asserting that the applicant was seeking to protect her husband’s good name “in line with the presumption of innocence” (§ 101), Article 6 § 2 is not raised in the present case. The applicant’s complaint is not that the presumption of G.’s innocence was violated without his guilt having been proved but, on the contrary, that his guilt had been proved in a trial which was unfair, a complaint which was found to be inadmissible in the Nölkenbockhoff case itself. I have similar doubts as to the majority’s reliance on the applicant’s “legitimate material interest” as G.’s heir in proving the innocence of her husband, the argument being that in such an event she would have been entitled to claim compensation from the prosecution’s office for G.’s unlawful detention and conviction. Although, as noted above, the Government appear to concede that, if G. had been acquitted, this would have had “important effects for any civil law claim”, I remain sceptical whether this is so. In the Nölkenbockhoff case the final acquittal of the applicant’s husband would have entitled her to recover the costs and expenses incurred by her husband in defending the proceedings; in the present case, it is far from clear to me that the acquittal of G. on his retrial would have entitled him or his heirs to pecuniary or non-pecuniary damage under Act No.", "1545, such award being confined to cases where the detention or conviction was “unlawful”. 13. The speculative nature of any pecuniary interest which the applicant may have had in the outcome of the retrial of her husband serves to distinguish the case also from that of Ressegatti v. Switzerland (no. 17671/02, judgment of 13 July 2006), in which a Chamber held that the heirs of a plaintiff, who had died after unsuccessfully claiming a share in the profits from the exploitation of a boating marina in legal proceedings, could claim to be victims of a violation of Article 6 on the grounds that the proceedings had a direct effect on their inheritance rights, given that they were bound by the judgment and could not, in view of the rule of res judicata, seek to obtain a different result. 14.", "For these reasons, I am very doubtful whether, despite the unusual features of the procedure followed in the present case, the circumstances are such as to justify the Court in departing from its consistent case-law, rejecting applications lodged by relatives of alleged victims of a violation of Article 6 who have died. I note, however, that the Government have not only failed to raise any objection to the applicant’s victim status but appear even to have encouraged the Court to accept that she enjoys such status. This being so, I would prefer in the end to leave the question open and to base my decision as to the admissibility of the complaint on substantive grounds. (ii) Fairness of the proceedings 15. I should say at the outset that I have some sympathy with the view of Judges Garlicki and Šikuta in their Joint Concurring Opinion that the criminal trial of an individual who has died is of its very nature unfair and a breach of Article 6 of the Convention.", "However, I do not feel able to follow their approach in the present case, since this is not the nature of the applicant’s complaint; nor could it be, since it was on the applicant’s own insistence that her husband was retried. 16. In concluding that Article 6 was violated, the other members of the Chamber making up the majority rely on the inadequacy of the reasons given by the appellate courts to convict G., with the consequence that, in their view, the proceedings did not satisfy the requirements of fairness. 17. I have no quarrel with the statement of the general principles concerning the giving of reasons which is contained in paragraphs 107 and 108 of the judgment.", "In particular, I accept that Article 6 §1 has been interpreted as obliging courts and tribunals to give reasons for their decisions. However, as is correctly emphasised in the judgment, the Article cannot be understood as requiring a detailed answer to every argument. Equally importantly, the extent to which the duty to give reasons applies will inevitably vary according to the nature of the decision in question and the particular circumstances of the case. Moreover, while fairness requires that a tribunal conduct a proper examination of the submissions, arguments and evidence before it, it is for the tribunal to assess the extent to which they are relevant for its decision and the Court will in principle interfere only in a case where that assessment is manifestly arbitrary or unreasonable. 18.", "In concluding that insufficient reasons were given to convict G. four features of the decisions of the appellate courts are principally relied on: the failure of those courts to challenge the uncontradicted findings of the Regional Court that G. had been arrested on the basis of “a fabricated administrative offence” and had made self-incriminatory statements in the absence of procedural safeguards and that he had been unlawfully shown the video-recording of D.C.’s statement at the crime scene; the court’s failure to deal with the finding of the Regional Court that G. had an alibi for the presumed time of the crime and with the alleged unreliability of the expert reports; the lack of comment on the finding of the lower court that some of the witnesses’ statements had been fabricated; and the failure to comment on “ a number of serious violations of the law noted by the lower court”. 19. Although dissatisfied with the outcome of the appeal proceedings, the applicant does not complain about unfairness in the procedures before the Court of Appeal and the Supreme Court. All the defendants were legally represented in both courts and it is not suggested that there was any breach of the principle of equality of arms or that the applicant was unable through her counsel to present such arguments and submissions as she wished. 20.", "It is unclear from the judgment of the Court of Appeal what weight, if any, was placed by the defendants on the various findings of the Regional Court referred to in paragraph 18 above. What is clear from the judgment is that the principal focus of the appeal in that court as well as in the Supreme Court related to the statements made by each of the applicants admitting their involvement in the murder of D., which were held by the Court of Appeal to be “the decisive evidence” in the case. In those statements, the defendants recounted in detail the events of the night of 15-16 September 1995 – the quarrel with D. in the bar in Comrat; the agreement with D. to meet again later that night; the forcible taking of D. by the defendants at the roundabout and his being driven in the police car to the forest of Feranpont; and the beating of D. and setting alight of his car in the forest. 21. The Regional Court found that the defendants’ statements had not been given voluntarily but had been taken under duress and were inadmissible in evidence.", "The Court of Appeal and the Supreme Court rejected this finding, concluding on the evidence before them that the three suspects had on several occasions made genuine and consistent confessions which had been lawfully obtained. In reaching this conclusion, the two appellate courts placed reliance in particular on a number of factors: (i) G. and D.C. had first made statements accepting their guilt on 19 and 20 September 1995, D.C.’s confessions having been filmed. Their confessions had been repeated in their statements made in the presence of their lawyers on 9 October 1995. G.C., who had been arrested in Russia, had likewise confessed in statements made on 1 and 7 November 1995 in the presence of a lawyer and had written one of the confessions himself. (ii) There was no evidence of any ill-treatment of the defendants.", "The seven officers who had questioned G. and D.C. and who had given evidence at the trial, but whose evidence had been excluded by the Regional Court on the grounds that they were interested persons, had all denied any such treatment. Moreover G.’s personal medical file following his admission to hospital did not disclose any evidence of ill-treatment. The applicant’s allegations of ill-treatment were not confirmed by Doctor P.O. who had been recalled to give evidence before the Court of Appeal. It was not until 6 March 1996 that the defendants had sought for the first time to withdraw their statements on the grounds that they had been obtained by ill-treatment.", "(iii) The statements of the defendants as to the confrontation in the bar had been confirmed by the statements of several witnesses; other witnesses had given statements to the effect that they had seen the defendants driving in the direction of the roundabout at about 3.00 a.m. that D., having returned to the police station from the bar, had again left in the car shortly after 3.00 a.m. (iv) The crime scene investigation had been conducted in the presence of witnesses and G.’s lawyer and was filmed. D.C. and G. had been able clearly to indicate the place and manner of D.’s killing. (v) The evidence of D.’s wife confirmed that the defendants had often threatened her husband and family because of a criminal investigation which had been opened by her husband against G.C. The Court of Appeal confirmed that D. had opened such an investigation in June 1994. 22.", "On the basis of the material before the Court, the unanimous conclusion of the appellate courts that G.’s confession to the crime was genuine and voluntary cannot in my view be said to be arbitrary or unreasonable. Moreover, contrary to the view of the majority of the Chamber, the reasons given by the appellate court were, I consider, sufficient to justify the conviction of G. While it is true that the Supreme Court did not specifically address each of the complaints made by the defendants’ lawyers and while it might have been desirable that they should have done so, I am not persuaded that this failure gave rise to a violation of Article 6. The appellate courts having explained why they accepted the validity of the confessions made by the defendants, contrary to the view of the Regional Court, it was in my view unnecessary to address each of the other matters which had been relied on by the Regional Court and invoked by the defendants in the appeal proceedings. DISSENTING OPINION OF JUDGE PAVLOVSCHI I regret very much that it is impossible for me to share the majority’s finding that there has been a violation of Article 6 in the case before us. I fully agree with Judge Bratza’s position, expressed in his Dissenting Opinion, and readily join him.", "At the same time I find it necessary to add a few words of my own concerning the fourth-instance nature of the present application. It is generally accepted that the standard of proof applicable in criminal proceedings when finding a person guilty is “beyond a reasonable doubt”. This is the standard trial judges must apply after properly conducted judicial examination of the case. It is not open to international judges to re-assess the facts and the law in the place of national courts, because international judges do not have the possibility to fully examine charges brought against an accused, because they do not have sufficient knowledge of the member-State’s language, or of its national legislation or the practical application thereof. But to examine this issue in abstracto, in my view, would run counter to the basic principles of justice.", "In so far as the applicant’s complaint may be understood to concern assessment of the evidence and the result of the proceedings before the domestic courts, it is necessary to reiterate that, according to Article 19 of the Convention, the Court’s duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I). That is why it is not by chance that the European Court of Human Rights has constantly refused to act as a “fourth-instance” court.", "The same issue arises before us once more in the case of Gradinar v. Moldova. In substance, the applicant complained mainly about the assessment of evidence and the result of the proceedings before the domestic courts. This Court has already stated on numerous occasions that it is not its task to act as an appeal court of “fourth instance” by calling into question the outcome of domestic proceedings. The domestic courts are best placed to assess the credibility of witnesses and the relevance of evidence to the issues in the case and to interpret and apply the rules of substantive and procedural law (see, amongst many authorities, Vidal v. Belgium, judgment of 22 April 1992, Series A no. 235‑B, pp.", "32-33, § 33). During the domestic proceedings the applicant had the benefit of adversarial proceedings. She was legally represented throughout the proceedings and was able to present her position and call witnesses in support of her case. She failed to submit any single piece of evidence that the national judicial authorities had in any way restrained her rights or acted in any other arbitrary manner. The national courts held hearings on the merits of the case, heard statements from all necessary witnesses and the accused, and examined and assessed all the evidence at their disposal.", "Moreover, the factual and legal reasons for the national courts’ findings were set out at length both in the judgment of the Court of Appeal of 31 January 2000 and in that of the Supreme Court of Justice of 30 May 2000. In their judgments the national judicial authorities gave a very persuasive and detailed analysis of all the relevant circumstances of the case. In no way may their findings be considered “arbitrary” or “unreasonable”. Moreover, even the majority in their finding of a violation in the present case do not allege that Mr. G’ s conviction was “arbitrary or unreasonable”. Insofar as the relevant domestic decisions do not reveal any manifestly arbitrary reasoning, I consider that the applicant’s complaint under Article 6 § 1 is manifestly ill-founded and should have been rejected in accordance with Article 35 §§ 3 and 4 of the Convention or, alternatively, that no violation should have been found in the instant case." ]